REGULATORY OFFENCES AND PRINCIPLES OF SENTENCING: IS THE
"PATCHWORK QUILT" IN NEED OF RESHAPING AND REFORM?
RICK LIBMAN
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DOCTOR OF PHILOSOPHY
GRADUATE PROGRAM IN LAW
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1+1 Canada Abstract
Sentencing dispositions are routinely imposed by courts in every jurisdiction across Canada, yet there is very little by way of statutory authority that guides courts in determining what punishment to impose. It has only been recently, for criminal offences, that the Parliament of Canada enacted a statement of sentencing purposes and principles so as to specify the goals and aims of punishment, and thus provide courts with a guiding rationale or sentencing philosophy. However, for regulatory offences, which protect society by regulating conduct that ranges from the air one breathes to the food that is consumed, no such statement of sentencing purposes or principles exists. This has resulted in uneven and inconsistent sentencing patterns and practices for regulatory offences, as well as uncertainty as to what are, in fact, the relevant sentencing considerations with respect to such offences, and the manner in which they should be interpreted and applied.
The question addressed in this thesis is whether there is a legitimate basis for the enactment by legislators of a statement of sentencing purposes and principles for regulatory offences. The author asserts that there is. All of the major approaches that are put forward for guiding the courts' sentencing discretion, such as the use of guideline judgments by appellate courts or mandatory sentencing guidelines, are analyzed. However, none is found to be as effective as the statutory codification of a statement of sentencing purposes and principles by the legislators who are responsible for enacting the same regulatory
iv legislation that courts are called upon to interpret, and impose punishment, where a regulated party fails to meet the regulatory standard. As a result, consideration should be given to enacting a statement of sentencing purposes and principles for regulatory offences that not only identifies and organizes what such sentencing considerations are, but states how courts should prioritize and implement them.
v Acknowledgments
I would like to express my sincere gratitude for the support, guidance and encouragement given to me by the members of supervisory committee:
Professors Alan Young, Poonam Puri, James Stribopoulos, Lesley Jacobs, Allan
Manson and Kenneth Jull. I would also like to thank all the members of the
Graduate Program in Law for their assistance, as well as my fellow graduate law students. Generous financial assistance was provided by both Osgoode Hall Law
School and the Ontario Graduate Scholarship Program. Most of all, however, I wish to acknowledge the love and support of my family.
VI TABLE OF CONTENTS
Abstract iv
Acknowledgments vi
INTRODUCTION 1
PART I: FRAMING THE PROBLEM: REGULATORY OFFENCES AND SENTENCING PROVISIONS
Chapter 1." .a patchwork quilt... in need of reform": Enforcement Mechanisms, Penalty Provisions and Punishment for Breaches of Regulatory Statutes
1 Introduction 12
2. Overview of Regulatory Offences, Enforcement Mechanisms and Penalty Provisions 13
3. The Nature of Regulatory Offences 16
4. Overlap of Regulatory Offences and Criminal Offences .20
5. Regulatory Offences and Statutory Interpretation 26
6. The Recent Trend of Escalating Penalties for Regulatory Offences .. .28
7. Statement of Sentencing Purposes and Principles in Other Statutes 33
8. Matrix of Regulatory Offences Sentencing Decisions ... 36
9. Conclusion 41
PART II: SETTING THE STAGE: PURPOSES AND PRINCIPLES OF SENTENCING FOR CRIMINAL OFFENCES
Chapter 2. "My object all sublime... to let the punishment fit the crime": Sentencing for Criminal Offences
1.1ntroduction 43
2. History of Sentencing Reform prior to the Criminal Code of Canada Statement of Sentencing Purposes and Principles 44
Vll 3. The Enactment of a Statement of Sentencing Purposes and Principles for Criminal Offences . .52
4. Sentencing Guidelines for Criminal Offences in the United States Federal Courts 58
5. Guideline Judgments for Criminal Offences in the United Kingdom .63
6. Sentencing Purposes and Principles for Criminal Offences in Australia and New Zealand 70
7. Sentencing Purposes and Principles for Criminal Offences in Civil Law Jurisdictions 80
8. Conclusion... 85
PART III: DEVELOPING THE FOUNDATION: PURPOSES AND PRINCIPLES OF SENTENCING FOR REGULATORY OFFENCES
Chapter 3. A "special approach" or "barrier of sentencing"? Sentencing for Regulatory Offences
1 .Introduction 87
2. Determining Sentencing Purposes and Principles for Regulatory Offences in Canada 88
3. R. v. Cotton Felts Ltd. and its Legacy 93
4. Differing Views as to Purposes and Principles of Sentencing for Regulatory Offences 100
5. Sentencing Purposes and Principles for Regulatory Offences in the United States 115
6. Sentencing Purposes and Principles for Regulatory Offences in the United Kingdom 123
7. Sentencing Purposes and Principles for Regulatory Offences in Australia and NewZealand 144
8. Conclusion... 149
vni Chapter 4. Regulatory Offences Sentencing Jurisprudence within Canada: A Survey of Workplace Safety, Consumer Protection and Environmental Regulation Decisions
1. Introduction 150
2. Workplace Safety Sentencing Decisions ... 152
3. Consumer Protection Sentencing Decisions ... .161
4. Environmental Regulation Sentencing Decisions ... 170
5. Conclusion ... 191
PART IV: SETTLING ON SOLUTIONS: THE REGULATORY CYCLE AND PURPOSES AND PRINCIPLES OF SENTENCING FOR REGULATORY OFFENCES
Chapter 5. The Regulatory Cycle and its Role in Shaping Purposes and Principles of Sentencing for Regulatory Offences
1. Introduction ... 194
2. Risk Assessment and Risk Management ... 198
3. Regulatory Enforcement Pyramids... 202
4. The Regulatory Cycle and "Penalties Principles".... 208
5. The Regulatory Cycle and Changing Regulatory Strategies.... 215
6. Conclusion.... 224
Chapter 6. Sentencing Purposes and Principles for Regulatory Offences: A New . Approach for Regulatory Justice
1. Introduction... 226
2. The British Columbia Public Health Act: A Model of Sentencing Purposes and Principles for Regulatory Offences enacted by Legislators ...229
3. Identifying and Prioritizing Sentencing Purposes and Principles for Regulatory Offences... 233
(i) remedying the harm or potential for harm... 235
IX (ii) rehabilitation... 237
(iii) general deterrence 243
(iv) denunciation ...245
4. Sentencing Purposes and Principles in a Statute of General Application ..251
5. Sentencing Purposes and Principles for All or Some Regulatory Offences..254
6. Conclusion 260
PARTV: FINISHING TOUCHES
Chapter 7. Retrofitting the Regulatory Offences Sentencing Toolbox: a New Set of Sentencing Options for a New Statement of Sentencing Purposes and Principles
1. Introduction... .263
2. Provincial Offences Legislation Sentencing Provisions... 265
3. Probation 267
4. Fine Option Programs 275
5. Alternative Measures.... 276
6. Alternative Penalties... 279
7. Creative Sentence Orders... 281
8. Restitution and Compensation... 283
9. Forfeiture... 285
10. Conditional Sentences 287
11. Victim Impact Statements... 291
12. Conclusion... 295
CONCLUSION 297
x ENDNOTES 302
BIBLIOGRAPHY 353
XI INTRODUCTION
Sentencing. It should come naturally to judges. After all, it is what most courts do much of the time. The resolution rate of charges in Ontario, whether criminal or quasi-criminal in nature, routinely approaches 90%: very few matters, in fact, go to trial.1 Of those that do, findings of guilt often result; appeals from such cases rarely succeed.2 Judges and justices of the peace should therefore be well versed in imposing sentences, and thoroughly familiar with the legal principles upon which such sentences are based.
But this is not always the case. At least not with the type of charges that arise most frequently, regulatory offences or provincial offences, and for which the overwhelming majority of persons will ever have contact with the administration of justice in the province of Ontario.3 "Provincial offences" are created by laws enacted by the province, or regulations or by-laws established under such authority, and involve all manner of regulated activities.4 There are also comparable federal laws for regulatory offences, or "contraventions," falling under the exclusive jurisdiction of the Parliament of Canada.5 Such statutes, in common, set out provisions that regulate conduct for our protection, ranging from rules of the road governing motor vehicles to protecting workers from dangerous equipment; from regulating the preparation of food products to the sale of services and goods, and to safeguarding the environment from noxious
1 substances. There is virtually no area that is neither the subject of regulation, nor a corresponding penalty, for breach of the regulatory standard.
The question that therefore arises is why should there be such uncertainty as to sentencing purposes and principles in this all encompassing area of the law? The answer appears to be relatively simple: there is no statement of what constitutes such sentencing purposes and principles for regulatory offences.
Consequently, judges and justices of the peace who impose sentences for regulatory offences do not have before them a guiding rationale or legislative statement explaining what aims are to be addressed by the court's sentence, or what goals are to be furthered through the imposition of punishment. Neither is this any more apparent to the lawyers and parties who appear before the courts, including accused persons and corporate defendants. As a result, there is the oft- espoused criticism that the absence of such a statement of sentencing purposes and principles for regulatory offences makes imposing punishment a lottery, where inconsistency and unpredictability abound. The statutory provisions that govern sentencing for regulatory offences have been described, aptly, as "a patchwork quilt ...in need of reform."6
Identifying the problem is easy. What is more difficult is crafting a solution.
Should there, in fact, be a statement of sentencing purposes and principles for regulatory offences, and if so, in what form it should take? Is this a matter best left to the appeal courts through rendering judgments providing guidance to lower
2 courts, or for the legislators by means of statutory enactment of sentencing purposes and principles for regulatory offences, or perhaps someone else such as a sentencing commission, which might then develop sentencing guidelines of a mandatory or discretionary nature? And if there is to be such a statement of sentencing purposes and principles, what should it say? Should the goals or aims to be achieved be prioritized in some hierarchical way? The means by which sentencing tools might best implement this sentencing statement is also relevant. It is these important questions that I wish to explore in this dissertation.
Much has been written on sentencing philosophies and the justifications for punishment; however, I take a pragmatic approach, and strive to put forth practical solutions.
I commence my discussion under Part I where I seek to identify and frame the problem. In Chapter 1, there is an overview of regulatory offences and sentencing provisions, as well as enforcement mechanisms. Regulatory offences correspond to an incredibly diverse and complex series of activities. Indeed, one of the challenges for courts when imposing a penalty for the commission of a regulatory offence is the breadth of the type of activity and conduct that may comprise the infraction. Whereas the Criminal Code of Canada7 includes a statement of sentencing purposes and principles to guide courts in determining punishment,8 there is no such guidance provided to courts sentencing those who commit regulatory offences. I illustrate the consequences of the lack of statutory guidance, in summary form, by a matrix of regulatory offences in the area of
3 workplace safety, consumer protection and environmental protection: regulatory agency sentencing patterns are of relevance in gauging the need for consistency and uniformity in the area of sentencing for regulatory offences generally. I conclude this introductory chapter by noting that it has been left to the courts, to fill in the gaps, when faced with the bewildering array of regulatory offences, enforcement mechanisms, and penalty provisions. What is lacking, however, is a consistent and rational approach. This requires, in turn, the identification and organization of sentencing purposes and principles for regulatory offences.
Part II of my dissertation is entitled "Setting the Stage". In Chapter 2, I set out purposes and principles of sentencing for criminal offences. I do so not only to identify what these purposes and principles are, but to analyze how these sentencing purposes and principles are organized and arranged. The approach with respect to Criminal Code sentencing purposes and principles affords a potential model for regulatory offences sentencing purposes and principles.
Moreover, there is a rich body of academic commentary and literature on the issue of sentencing purposes and principles for criminal offences in Canada, including numerous Parliamentary reports and Law Commission of Canada studies in the area, as well as the debate surrounding the amendments to the
Criminal Code in 1996 wherein a statement of sentencing purposes and principles was enacted for the first time.
4 I employ a multi-jurisdictional methodology, such that the approach taken to identifying sentencing purposes and principles for criminal offences in other countries is analyzed in this second chapter. This includes the use of mandatory sentencing guidelines, without an accompanying statement of purpose or guiding philosophy, in the federal courts in the United States; the role of guideline judgments in England, where there is a tradition of appellate review in sentencing matters; as well as the approach in other Commonwealth countries, such as
Australia and New Zealand, where the issue of sentencing purposes and principles has also been raised by law commissions and academics. Finally, reference is made to European countries with a civil law tradition, such as
Sweden, Switzerland, Finland and the Netherlands, that have considered sentencing purposes and principles. While these civilian jurisdictions differ in nature from common law systems, experts across different types of legal systems share the concern about the proper basis for imposing punishment, and have expressed an interest in providing sentencing practices aimed at promoting uniformity of approach and eliminating inconsistencies.
In Part III, which is comprised of Chapters 3 and 4, the foundation is developed for identifying those sentencing purposes and principles that are relevant for regulatory offences. Unlike the judge imposing sentence for a criminal offence, who need look no further than the Criminal Code for both a compilation of offences, and statement of sentencing purposes and principles, the justice of the peace or judge presiding over a regulatory offences case faces
5 a much more diverse and unwieldy situation. Given the absence of a statement of sentencing purposes and principles for regulatory offences, the law of sentencing for regulatory offences has therefore developed, on a default basis, in the courts; it has been left to those imposing sentences to fill in the gaps, with the common law development of sentencing principles, for the vast array of public welfare statutes. Chapter 3 sets out the purposes and principles of sentencing for regulatory offences that have been recognized by courts in this jurisdiction and elsewhere in Canada. Reference is made to the scholarly literature as well.
Consistent with the methodology in the previous chapter, a multi- jurisdictional analysis is employed. The approach taken to identifying sentencing purposes and principles for regulatory offences in other countries is analyzed in
Chapter 3. Commencing with the United States, it is noted that the federal sentencing guidelines are made applicable to many regulatory offences, and not just criminal offences. Sentencing purposes and principles for regulatory offences have also generated considerable interest and debate in the United Kingdom, both in the jurisprudence and academic literature. Of particular note is the advice provided by the Sentencing Advisory Panel for England and Wales to the Court of Appeal, Criminal Division, with respect to issuing a guideline judgment on environmental offences, which the Court declined to do. The issue as to the lack of guidance for sentencers in environmental cases in particular, and regulatory offences more generally, remains a contentious issue in the United Kingdom, and one that has been addressed in a number of subsequent reports and studies.
6 There have also been concerns expressed in Commonwealth countries, including Australia and New Zealand, respecting inconsistent sentencing practices for regulatory offences cases, and the desirability of sentencing guidelines.
The review in Chapter 3 of sentencing principles for regulatory offences in
Canada, the United States, the United Kingdom, Australia and New Zealand illustrates, in common, a concern that guidance is required for courts imposing sentences for such offences. However, there are differences of opinion as to how this guidance should be provided, and what form it might take. In order to see if the general observations made about sentencing practices and patterns are borne out, a matrix of regulatory offences sentencing decisions in the areas of workplace safety, consumer protection and environmental regulation within the
Canadian jurisprudence is examined in Chapter 4. This expands the matrix of regulatory offences sentencing decisions, put forward in summary form, in the first chapter. In the survey of sentencing cases that follows, decisions at the superior court level across Canada are analyzed, since this includes both judgments in trial courts as well as appeals against sentences imposed by lower courts. It is, of course, not possible to examine every type of regulatory offence or sentencing principle to test the argument that has been advanced as to the marked inconsistencies that apply in such cases, and thus the need for a statement of sentencing principles and purposes so as to promote uniformity and consistency of approach in sentencing dispositions. However, a sampling of
7 cases in the areas of workplace safety, consumer protection and environmental regulation seems apt for a number of reasons, especially since these type of cases are frequently before the courts, and merit attention given their relative importance. To be sure, these regulatory regimes are necessarily broad and distinct, but an examination of sentencing practices and patterns in these areas may provide insights as to different modes of sentencing theory. In addition, this analysis demonstrates the use of monetary penalties as the sanction of choice, as opposed to more flexible and innovative sentencing dispositions that are remedial in nature.
In Part IV (Chapters 5 and 6) solutions to the problem of sentencing inconsistencies and lack of guidance for regulatory offences are set out. It is my position that a new approach is required, one that identifies sentencing principles that are to be applied to regulatory offences specifically, and that is best suited to the regulatory context in which such offences occur. For where there has been a breach of a regulatory standard, the court must look not only backwards at the conduct that gave rise to the non-compliance, but forward as well, since the defendant will often continue to participate in the regulated endeavour following the imposition of punishment.
I explore this issue first in Chapter 5, which discusses the concept of the
"regulatory cycle" and its role in shaping sentencing principles for regulatory offences. By this it is meant that sentencing is merely one part, albeit a most
8 important part, in the regulatory offences context. The beginning of the regulatory cycle involves the identification of regulatory objectives; provisions are subsequently devised, and implemented, to give effect to these objectives, including the creation of regulatory offences. Enforcement strategies may thus include prosecution, in which case the offender, upon being convicted and sentenced, is often permitted to return to participate in the regulated activity, thereby continuing to be involved in the regulatory cycle, even after the imposition of punishment by the court. The focus of this chapter is to explore and critically analyze the concept of the regulatory cycle, and examine how it has the potential to play an important role in shaping regulatory offences sentencing principles. A proper understanding of the regulatory cycle is essential for courts when imposing punishment for regulatory offences, so as to better promote regulatory sentencing objectives and outcomes. The identification of sentencing principles for regulatory offences, in turn, bolsters the court's ability to select the sanction that best encourages the regulated actor's successful reintegration within the regulatory cycle.
Chapter 6 builds upon this theoretical discussion, and sets out those considerations which I argue should be recognized as constituting sentencing purposes and principles for regulatory offences. It is essential that a "sentencing rationale" for regulatory offences be clearly articulated by the legislators, so as to eliminate the problems caused by uncertain and unstructured sentencing practices that flow from the lack of a guiding philosophy for regulatory offences
9 sentencing purposes and principles. The court's punishment or sentence, in turn, should be designed to give effect to the regulatory goals of the legislators that are set out in the legislation. In particular, purposes and principles of sentencing that are appropriate for regulatory offences should be identified and enumerated in a sequential order for courts to consider, and implement, in their dispositions. It is only when courts approach sentencing on this basis, applying a statement of sentencing purposes and principles enacted by the legislators in these terms, that regulatory objectives will truly be furthered. This approach sets out and prioritizes the applicable sentencing purposes and principles for regulatory offences, and provides the courts with a clear rationale, aimed throughout, at furthering regulatory objectives.
I conclude my dissertation with Part V, which is entitled "Finishing
Touches." Chapter 7 contains a discussion of the sentencing tools that are required to best implement the statement of sentencing purposes and principles put forth for regulatory offences. The governing legislation in Ontario, the
Provincial Offences Act,9 which was enacted thirty years ago, provides courts with few sentencing options apart from fines, probation and imprisonment; in limited circumstances, restitution and community service may be imposed, the latter requiring the defendant's consent. Consequently, there have been concerns expressed that there is a need for a much broader range of penalties and a wider array of sentencing tools. As noted earlier, there has been a long-
10 standing tradition towards the use of monetary penalties as the sanction of choice, as opposed to other sentencing options that are remedial in nature.
It is my contention that an enhanced use of probation, restitution and community service orders, among other penalty provisions and ancillary orders, such as victim impact statements, would better equip courts with the necessary tools to deal with offenders who fail to achieve the regulatory standard, and are likely to return to the regulated activity following sentencing. Otherwise, the goal of achieving compliance with the regulatory standard, and changing the behaviour of the regulated party through sentencing, will be frustrated. In short, courts will not be able to play an effective role in the regulatory cycle unless they are given the sentencing tools to accomplish this. At the same time, however, care must be taken not to simply duplicate criminal law sentencing provisions that may not be well suited in the regulatory offences context. In this concluding chapter, I thus consider how the regulatory offences sentencing toolbox might be updated and equipped, in order to best implement a new statement of sentencing principles and purposes for regulatory offences.
11 PART I. FRAMING THE PROBLEM: REGULATORY OFFENCES AND SENTENCING PROVISIONS
Chapter 1." .a patchwork quilt... in need of reform": Enforcement Mechanisms, Penalty Provisions and Punishment for Breaches of Regulatory Statutes.
1. Introduction
Regulatory offences correspond to an incredibly diverse and complex series of activities. Indeed, one of the challenges for courts when imposing a penalty for the commission of a regulatory offence is the breadth of the type of activity and conduct that may comprise the infraction. Whereas the Criminal
Code of Canada10 includes a statement of sentencing purposes and principles to guide courts in determining punishment,11 there is no such guidance provided to courts sentencing those who commit regulatory offences. The consequences of the lack of statutory guidance are illustrated, in summary form, in this chapter, by a matrix of regulatory offences in the area of workplace safety, consumer protection and environmental protection: regulatory agency sentencing patterns are of relevance in gauging the need for consistency and uniformity in the area of sentencing for regulatory offences generally.
It has been left to the courts to fill in the gaps, with respect to the purposes and principles of sentencing for regulatory offences, when faced with this bewildering array of regulatory offences, enforcement mechanisms and penalty provisions. What is lacking, however, is a consistent and rational approach. This requires, in turn, the identification and organization of sentencing purposes and
12 principles for regulatory offences. Consideration must first be given to the nature of regulatory offences themselves, and how they not only differ, conceptually, from criminal offences, but also from each other.
2. Overview of Regulatory Offences; Enforcement Mechanisms and Penalty Provisions
The words of Justice Cory in R. v. Wholesale Travel Group Inc.^2 describing the pervasive nature of regulatory offences in our society are well known. He stated that it would be difficult to think of an aspect of our lives that is not regulated for our benefit and for the protection of society as a whole. To this he added:
From cradle to grave, we are protected by regulations; they apply to the doctors attending our entry into this world and to the morticians present at our departure. Every day, from waking to sleeping, we profit from regulatory measures which we often take for granted. On rising, we use various forms of energy whose safe distribution and use are governed by regulation. The trains, buses and other vehicles that get us to work are regulated for our safety. The food we eat and the beverages we drink are subject to regulation for the protection of our health.
In short, regulation is absolutely essential for our protection and well being as individuals, and for the effective functioning of society. It is properly present throughout our lives. The more complex the activity, the greater the need for and the greater our reliance upon regulation and its enforcement. For example, most people would have no idea what regulations are required for air transport or how they should be enforced. Of necessity, society relies on government regulation for its safety.
13 Regulatory offences thus correspond to an incredibly diverse and complex series of activities. Sayre, in 1933, classified regulatory offences into these eight categories: (1) illegal sales of intoxicating liquor (2) sales of impure or adulterated food or drugs (3) sales of misbranded articles (4) violations of anti-narcotic acts
(5) criminal nuisances (consisting of annoyances or injuries to public health, safety, repose or comfort; obstructions of highways) (6) violations of traffic regulations (7) violations of motor vehicle laws (8) violations of general police regulations, passed for the safety, health, or well-being of the community.14
The methods of regulation are themselves varied, and often do not necessitate the involvement of the criminal or quasi-criminal law.15 Indeed, the majority of "regulatory action" may involve attempts to secure compliance through persuasive efforts.16 Regulation by prosecution if necessary, but not necessarily prosecution, it might be said.17
However, regulatory schemes can be effective, ultimately, only where they provide for "significant penalties in the event of their breach" and "strong sanctions", to return to the words of Cory J. in the Wholesale Travel case.18 In a subsequent Supreme Court of Canada decision, it was observed that any regulatory statute which lacked prohibitions and penalties would be
"meaningless."19 After all, what would be the point in having "sophisticated codes of regulation" in the absence of provision being made for their enforcement?20 In response to this question, it has been stated:
14 Enforcement mechanisms exist as an aid to securing the policy objectives which underlie codes of regulation and the mechanism which is common to the vast majority of codes, although it may not be the only mechanism for which provision is made, is the criminal law.21
Sentencing for the commission of a regulatory offence has been described as "risk management on its head", that is, it represents a response to the failure of preventing a violation of a regulatory standard that embodies risk assessment.22 Risk assessment is a "scientific assessment of the true risk" whereas risk management "incorporates non-scientific factors to reach a policy decision."23 The scientific assessment of risk may be converted into laws or regulations; the extent of legal enforcement and allocation of resources for enforcement involves risk management.24 However, it is at the sentencing stage that courts have the opportunity of addressing the regulatory standards that have been set by the legislature.
But there is also the potential for either undermining or over-enforcing these regulatory standards: if a penalty that is imposed is overly lenient, such as a nominal fine, this may have the effect of "under-cutting" the legislature's risk assessment that led to the creation of the violation in the first place; for some it may represent a "license" fee that it is viewed as merely the cost of doing business or engaging in the regulated activity. On the other hand, if the penalty is
"too high", such as a crushing fine, it may not only inhibit business efficiency but also discourage other law-abiding persons from engaging in the activity or
15 remaining active in the field. The example of imposing a fine at either end of these extremes is apt, given that the enforcement of regulatory statutes is achieved by financial penalties to "a very large extent."26 A fine is the "primary mechanism" for regulatory and corporate punishment;27 it is the penalty that is
"most commonly invoked."28
One of the challenges facing those considering the imposition of a penalty for the commission of a regulatory offence is the breadth of the type of activity and conduct that may comprise the infraction. In a study on strict liability conducted for the Law Reform Commission of Canada in 1974, it was estimated that there were approximately 20,000 regulatory offences in each province plus an additional 20,000 federal offences.29 This did not take into account municipal infractions, such as by-law offences. At the same time, there were 700 Criminal
Code sections.30 By 1983, the Department of Justice estimated that there were
97,000 federal regulatory offences.31 Given these figures, there is no reason to believe that the number of regulatory offences at all levels of government has not continued to increase.32 It is thus hard to take issue with the Law Reform
Commission of Canada's prediction, made more than thirty years ago, that "the regulatory offence ... is here to stay."33
3. The Nature of Regulatory Offences
Unlike Criminal Code offences or "true crimes", which have a fault or moral blameworthiness element, regulatory or "public welfare" offences, as they
16 are sometimes called, do not always involve fault. Negligence may suffice.
Sometimes there will be a fault element; other times an absence of fault or absolute liability. In its seminal judgment in which the "half-way" house of strict liability was formally introduced into Canadian jurisprudence for regulatory offences, as a middle ground between fault (mens rea) and absence of fault
(absolute liability), the Supreme Court of Canada observed in R. v. Sault Ste.
Marie (City)34 that public welfare offences involve a "shift of emphasis", from protecting individual interests to protecting social and public interests.
Dickson J., rendering the unanimous judgment of the Court in the Sault
Ste. Marie case, stated that public welfare offences lie in a field of "conflicting values": on one hand it is essential for society to maintain through "effective enforcement" high standards of safety and public health so that the potential victims of those who "carry on latently pernicious activities have a strong claim to consideration"; on the other hand, there is a "generally held revulsion against punishment of the morally innocent."35
There are three categories of regulatory offences, flowing from the Sault
Ste. Marie decision, each of which is distinct in nature. They were enumerated by
Justice Dickson as follows: (1) mens rea offences - these offences consist of
"some positive state of mind", such as intent, knowledge or recklessness, and must be proven by the prosecution either as an inference from the nature of the act committed, or by additional evidence; (2) strict liability offences - for these
17 offences the prosecution is not required to prove mens rea, as the doing of the prohibited act prima facie imports the offence, leaving it open to the defendant to prove, on a balance of probabilities, that he/she took "all reasonable care"; this defence will be available where the accused person reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he/she took "all reasonable steps to avoid the particular event"; (3) absolute liability offences - for these offences, it is not open to the defendant to exculpate himself/herself by showing that he/she was "free of fault".36
As can be seen, regulatory or public welfare offences are not only different from criminal offences, they differ conceptually from each other. For some there may be a fault element (mens rea offences); for others fault is not required
(absolute liability offences). There is a presumption that public welfare offences fall into the strict liability category: whereas they are not subject to "full means rea", the principle that punishment generally should not be "inflicted on those without fault" applies.37
However, while the purpose of penalizing a public welfare or regulatory offence may be different from the purpose of penalizing a crime, "the means, a penalty, and the effect, punishment, remain the same."38 Indeed, Glanville
Williams has made the observation that "all crimes are, in a sense, public welfare offences,"39 all of which result from regulation: whether one describes these crimes as regulatory offences, public welfare offences or quasi-criminal offences,
18 they have in common the same procedure for prosecution and kind of punishment as other offences.40
In the Sault Ste. Marie decision, Dickson J. explained that public welfare offences are not "criminal in any real sense", but are prohibited in the public interest.41 While enforced as penal laws through the use of "the machinery of the criminal law", such offences are "in substance of a civil nature", and might be regarded as a "branch of administrative law."42However, the fundamental difference between criminal law, as a "system for public communication of values", as opposed to tort law, which "seeks to balance private benefits and public costs", becomes particularly important at the sentencing stage.43 Tort law
"prices" whereas the criminal law "prohibits". Hence, it is on sentencing that courts can draw a line between "enforcement of norms that were intended to price and those intended to prohibit."44
The type of activities to which public welfare offences relate were called
"everyday matters" by Dickson J.45 Examples given by the Court in Sault Ste.
Marie were traffic infractions, sales of impure food, violations of liquor laws, and the like. The case in question involved water pollution. Regulatory legislation is designed to ensure that "minimum standards" are adhered to in activities ranging from commerce, manufacturing and environmental protection.46 Regulatory offences are often offences of omission, unlike at common law where most crimes involved "positive acts".47 The growth of this distinct category of regulatory
19 offences, which unlike criminal offences, were "punishable without regard to any mental element" dates back to the middle of the nineteenth century in both
England and the United States, and typically involved offences such as selling adulterated or impure food, including milk, tobacco and liquor.48
"Everyday matters", to use the Sault Ste. Marie phrase, may concern the individual involved, or others implicated by the conduct. A person who discharges a pollutant into a water system may cause harm to himself/herself, or perhaps to others only. There may also be harm to fish and wildlife that inhabit the area. But equally, there may be no discernable harm to anyone until many years later. This is just one example of an offence that can encompass "a wide range of activities, effects and degrees of fault."49
4. Overlap of Regulatory Offences and Criminal Offences
Given that criminal offences are different in nature than regulatory offences, it would seem that punishment provisions or penalties should reflect this fundamental distinction. But this is not necessarily so as there may be overlap in the type of conduct that is sought to be punished by criminal or regulatory laws, and in the sanctions that may be imposed. Accordingly, the law of sentencing that has developed for criminal offences may have some relevance for punishing regulatory misconduct that is essentially criminal in nature, or at least comprises some elements of moral blameworthiness, as in the case of regulatory offences with a mens rea or fault element.
20 A case involving hunting charges under the Alberta Wildlife Act, as well as Criminal Code charges which were added in the course of the investigation, provides an illustration of how fine the line is as between the "seriousness" of regulatory offences and criminal offences. In R. v. M'sfo/,51 the Court considered whether the addition of criminal charges made the matter more serious for the defendants, such that their rights under the Charter of Rights and Freedoms52 needed to be reiterated. The provincial charges were hunting at night and hunting with a spotlight; the Criminal Code charges were obstruction of peace officers and failing to stop a motor vehicle while being pursued by peace officers.
The Court stated that the question as to whether the criminal charges were
"significantly most serious" was not easily answered, noting:
What is 'serious', like what is beautiful, sometimes lies in the eye of the beholder. To policemen whose lives are dedicated to the regulation and preservation of the wildlife resource, the offences they were ultimately investigating were probably more serious than the Criminal Code charges which ultimately were added to the hunting charges. The law lends some support to that argument since the maximum monetary penalty provided by the provincial statute is in fact higher than the maximum monetary penalty provided by the Criminal Code for the summary procedure offences.53
If the penalty amounts as between criminal offences and regulatory offences seem blurred, the line may be no more apparent as between regulatory offences themselves. It has already been noted that some monetary penalties for absolute liability offences, far from being minor penalties, are among the highest
21 fines available, such as the flying truck-wheels provisions under the Ontario
Highway Traffic Act54 or the administrative penalties pursuant to the Ontario
Environmental Enforcement Statute Law Amendment Act, 2005.55
And what of the situation where the regulatory offence carries a mens rea requirement, such that it more closely resembles in nature a criminal offence?
Should this not be a relevant consideration in sentencing, and thus reflected in the disposition of the Court? There is some authority in support of this proposition. In R. v. Virk,56 a case involving mens rea offences under the Ontario
Workplace Safety and Insurance Act, 199757 of making a false statement and failing to inform of a material change in circumstances, it was noted that very few public welfare offences fall into this category, thereby requiring the prosecution to prove wrongful intention or knowledge in addition to the prohibited conduct.
However, where there is a mens rea element, and thus some degree of moral blameworthiness or fault, this is a significant factor and justifies a difference in approach to sentencing.
Madigan J. explained the rationale for such a distinction on sentencing as between the different categories of regulatory offences. He stated:
Not all public welfare offences are equal in gravity. Some are more serious than others. Those requiring proof of wrongful intention or knowledge are more serious, for sentencing purposes, precisely because the prosecution has proven a guilty mind in addition to the prohibited conduct. Convictions for absolute liability and strict liability offences usually suggest'... nothing more than the
22 defendant has failed to meet a prescribed standard of care.' However, offences like those alleged and proven in this case tend to involve an element of fault or moral blameworthiness in that they prohibit conduct which is inherently wrong. Quite undeniably, the intention to defraud and the intention to lie qualify as morally blameworthy.58
The Court went on to comment that on a continuum of offences ranging from "public welfare offences to true criminal offences", the defendant had been found guilty of offences that were "more serious," and therefore more comparable to criminal offences, than to public welfare offences.59 As for the significance of this on sentencing, the Court observed:
In the case of most regulatory offences, the sentencing court usually attempts to balance the competing considerations in favour of rehabilitation of the offender and protection of the public. However, in cases involving proof of mens rea, the balance must favour the objectives of denunciation, retribution and deterrence. Whereas mens rea offences involve some degree of moral blameworthiness or fault, absolute liability and strict liability offences do not. This distinction justifies the difference in approach to sentencing.60
This approach to sentencing for regulatory offences, where the nature of the offence in question as either one of full mens rea, strict liability or absolute liability, is reflected in the sentence imposed, has been followed in numerous cases. These include decisions involving convictions for failing to remit retail sales tax, contrary to the Retail Sales Tax Act (Ont.),61 where fines in excess of
$100,000 were imposed;62 failing to declare earnings as required by the federal
Employment Insurance Act,63 where an Alberta court sentenced the defendant to
30 days' imprisonment;64 a breach of the Occupational Health and Safety Act,
23 1993 (Sask.) for failing to develop safety procedures, resulting in the employer being fined $30,000;66 engaging in unfair practices under the Business Practices
Act (Ont.),67 leading to imprisonment for 90 days, a restitution order and 2 years probation;68 infringements of the Fair Trading Act (Alta.),69 where fines and restitution orders were imposed;70 and breaches of the Local Authorities Election
Act (Alta.),71 resulting in a jail sentence of 14 days and a $2,000 fine.72
Indeed, in some cases, the same "regulatory misconduct" is made the subject of both criminal and civil penalties.73 The Competition Act74 offence of false or misleading advertising, which was the subject of the Wholesale Travel
Group Inc. case,75 was contained in the Criminal Code until 1969 when it was transferred to the Combines Investigation Act.76 Recent changes to the
Competition Act allow for misleading representations or deceptive marketing practices to be brought under either a criminal or civil track.77 Indeed, it appears that most matters under the Competition Act are dealt with under the civil track, leaving only the most serious offences to be the subject of a criminal prosecution.78
Another example of such regulatory overlap is provided by the workplace safety amendments to the Criminal Code, pursuant to Bill C-45, which imposes criminal liability on corporations and organizations.79 This legislation has the effect of potentially criminalizing conduct formerly prosecuted under provincial occupational health and safety legislation by imposing a duty on persons who
24 direct work to take reasonable steps so as to prevent bodily harm to workers and the public arising from such work.80
In other cases, there are multiple methods of enforcement available to the regulating agency. Under the Ontario Securities Act,81 for instance, it is open to the Securities Commission to enforce its jurisdiction by means of quasi-criminal proceedings before the Ontario Court of Justice, by way of administrative proceeding for an order in the public interest, or by applying for a declaration in the Superior Court of Justice. These "enforcement tools" have been held to provide the Securities Commission with a "range of remedial options" that can be deployed in its discretion, in order to meet the "wide variety of problems and issues that it must confront."82 Further, a charge of "insider trading" might also be prosecuted under the Criminal Code, as opposed to the provincial Securities Act legislation.
Under the Ontario Environmental Enforcement Statute Law Amendment
Act, 2005,8Z a new regime of administrative penalties has been created, that are absolute liability in nature. The amount of these absolute liability environmental penalties has been set at $100,000 for each day that a contravention occurs.84 It is also permissible under the legislation to prosecute polluters for "serious spills" in addition to levying an administrative penalty.85 There are also administrative penalties that flow from Criminal Code charges, such as an administrative
25 driver's licence suspension which is imposed following charges of drinking and driving.86
The recourse to such administrative tools of regulatory enforcement that operate outside of the court system is yet another enforcement mechanism.
What seems unreasonable to a court may not appear so to a regulator, and vice versa. Each represents different institutions with different interests. Regulators are concerned with reaching "practical and administrative results" which help achieve the general public interest goal of the legislation in question.87 In their role of "expert advisers" rather than "industrial police", regulators may seek a compromise solution that is acceptable to the groups involved.88 Those being regulated also play a significant role in the regulation of their own activities, and may be the "best judges of their self-interest".89 Conversely, courts of law must act on the basis of the record placed before them, without necessarily all the relevant facts or further factual investigation.90
5. Regulatory Offences and Statutory Interpretation
Whether the public welfare offence being enforced by the regulator is one of mens rea, strict liability or absolute liability, is a question of statutory interpretation.91 This is the legacy of the Sault Ste. Marie decision,92 even with the presumption that most public welfare offences fall into the strict liability category. There is an especially "strong presumption" in favour of strict liability in the "interpretive contest" between it and absolute liability.93 However, it is open to
26 the legislature to employ all three categories of regulatory offences within the same scheme. In its judgment concerning the Highway Traffic Act94 offence of operating a motor vehicle with a child who is not wearing a seat belt, the Ontario
Court of Appeal in R. v. Kanda 95noted that Part VI of the legislation, in creating numerous "equipment" offences, contained "clear illustrations of all three categories of regulatory offence".96 The examples cited by the Court included: the mens rea offence of a parent or guardian of a person under 16 years old authorizing or knowingly permitting the person to operate a bicycle on a highway unless the person is wearing a bicycle helmet; the strict liability offence of having the control or care of a motor vehicle that sounds any bell, horn or other signaling device as to make an unreasonable noise, or permits any unreasonable amount of smoke to escape from the motor vehicle; the absolute liability offence of flying truck wheels from a commercial motor vehicle.
The Court's conclusion in the Kanda case was that the seatbelt offence in question was one of strict liability. This classification of the offence struck the appropriate balance, in the Court's view, between encouraging drivers to be vigilant about the safety of child passengers in their vehicles, while not punishing those who exercise due diligence as to children's seat belts. It was noted, though, that the "minor penalty" for the offence pointed towards absolute liability.97 But this is not always the case. Indeed, the flying truck wheel offence cited by the Court as an example of an absolute liability offence, carries the highest monetary penalty provided in the Highway Traffic Act of Ontario: a fine of
27 up to $50,000 Similarly, the administrative absolute liability environmental penalty amount of $100,000 per day under the Ontario Environmental
Enforcement Statute Law Amendment Act, 2005 " constitutes a substantial sum.
Such penalty amounts for absolute liability offences are the antithesis of "minor penalties". As Swaigen observes, there is a "lack of rationality" in the regulatory offences classification scheme.100
The Ontario Court of Appeal's recent judgment in R. v. Raham,w upholding the constitutional validity of the Highway Traffic Act offence of stunt driving or racing,102 further illustrates the complexities that arise with respect to statutory interpretation and regulatory offences, particularly classifying the nature of the regulatory offence. Whereas the offence of speeding has been held to be one of absolute liability by appellate courts in Ontario,103 and in other provinces,104 it was found in Raham that while the offence of stunt driving or racing could reasonably be interpreted as an absolute liability offence, it was in fact a strict liability offence due to the presumption in favour of a constitutional interpretation. The Court recognized, however, that the prohibited conduct in the case, driving 50 kilometres in excess of the speed limit, was "identical to the conduct prohibited by the offence of speeding."105
6. The Recent Trend of Escalating Penalties for Regulatory Offences
Neither does it follow that the penalties for regulatory offences generally are invariably less serious than those for Criminal Code offences. Thus the
28 penalty provisions set out in the respective legislation do not necessarily reflect the differences between true crimes and minor offences. Indeed, the general penalty provision in the Provincial Offences Act of Ontario of $5,000106 has until recently exceeded that for Criminal Code summary conviction offences.107
Hence, the "simple fact", as noted by Sherrin, is that "regulatory offences can attract penalties as severe as criminal offences."108
At the time of the Supreme Court of Canada's judgment in Sault Ste.
Marie,™9 which was a pollution case, the highest fine available for most environmental offences was $5,000 or less, with imprisonment being an infrequent option.110 However, within a span of fifteen years, many federal and provincial environmental laws have been amended to provide for fines in the millions of dollars, substantial terms of imprisonment, and other serious consequences including forfeiture of property, suspension or cancellation of business licences, and clean-up orders.111
An individual sentenced to a period of imprisonment would find "little comfort", suggests Stuart, in the analysis that the so-called regulatory offence of misleading advertising, which carries a maximum sentence of five years' imprisonment, is not criminal.112 After all, "A person whose liberty has been restricted by way of imprisonment has lost no less liberty because he or she is being punished for the commission of a regulatory offence as opposed to a criminal offence. Jail is jail, whatever the reason for it," as Chief Justice Lamer
29 put it in his dissenting opinion in Wholesale Travel Group Inc.113 For this reason, many commentators have suggested that the focus is better spent on the penalty being sought by the state, and not in seeking to distinguish between the nature of regulatory offences and true crimes.114
In a Charter of Rights115 decision where the Supreme Court of Canada unanimously agreed that a justice of the peace conducting a trial for a regulatory offence possesses jurisdiction to grant Charter remedies as a "court of competent jurisdiction", the Court noted that while many prosecutions under provincial offences legislation involve "minor regulatory infractions", claims for
Charter of Rights relief generally arise from prosecutions involving "significant fines and the possibility of imprisonment."116 In such cases, the Court reasoned, the distinction between provincial courts operating under the Criminal Code and provincial offences legislation is far less material. Indeed, the maximum sentence faced by the individual defendant in the instant case, for an offence under the
Ontario Occupational Health and Safety Act, 117 of failing to comply with safety requirements on a construction project, was a fine of $25,000 and/or 12 months' imprisonment. These penalties far exceed those generally available for most
Criminal Code summary conviction offences.118
Many other examples of substantial regulatory offences penalties come to mind. Recent amendments to the Ontario Securities /Acf119setting out the punishment for the offence of misleading statements expose a defendant to a
30 fine of up to $5,000,000, and imprisonment for up to five years less one day, or to both. While it is possible for a conviction under a provincial law to result in a sentence in a federal penitentiary120, it is unusual for provincial statutes to authorize such sentences.121 Moreover, while the introduction of the conditional sentence regime for criminal offences under the Criminal Code permits such sentences to be served outside of an institution where the sentence imposed is less than two years' imprisonment, conversely, and "perhaps perversely", as
Archibald et al observe, "more people are actually going to jail for regulatory offences", given the unavailability of conditional sentences for such offences.122
Motor vehicle infractions provide another point of comparison. While the minimum penalty for a drinking and driving offence under the Criminal Code was recently raised from $600 to $1,000, the minimum penalty under the Ontario
Compulsory Automobile Insurance Ac?23 for a first conviction for driving a motor vehicle without insurance is $5,000. A subsequent conviction carries a minimum penalty of $10,000. In the case of a person who is in possession of a false or invalid insurance card, the penalty for a first offence is a minimum fine of
$10,000; subsequent convictions carry a minimum penalty of $20,000.
Under the Highway Traffic Act of Ontario,124 the offence of driving while suspended carries a minimum fine of $1,000 for a first offence, up to a maximum of $5,000. Subsequent convictions are punishable by a minimum fine of $2,000.
In each instance, there is also the possibility of imprisonment for up to six
31 months. Where the offence is in relation to a Criminal Code licence suspension, the minimum penalty increases to $5,000 for a first conviction, and $10,000 for subsequent convictions. There is also authority to impound the offender's motor vehicle. Indeed, the Ontario Court of Appeal has upheld a sentence of 10 days imprisonment and a fine of $5,000 imposed for a defendant who did not attend his trial for driving while suspended, and was sentenced in his absence, as permitted under the Provincial Offences Act125
The Highway Traffic Act offence of stunt driving or racing, which, as noted, was recently upheld by the Ontario Court of Appeal in Raham,:26 provides another example of a substantial penalty for a regulatory offence: upon being charged the driver is required to surrender his/her driver's licence to the police officer at the scene, and is subject to an automatic 7 day administrative licence suspension; the officer is required to impound the motor vehicle for 7 days at the cost and risk to the driver. In the event of conviction, the defendant faces a minimum fine of $2,000 with a maximum of $10,000, a term of imprisonment of up to 6 months, or both a fine and imprisonment, and a licence suspension for up to 2 years on a first conviction and 10 years for a subsequent conviction.
Indeed, even traffic fines have overtaken the quantum of fines "handed out for many criminal offences."127 Moreover, the "increased sanctions" for traffic offences in terms of high fines and demerit points, which may give rise to licence suspensions, mean that "traffic offence sentences are very much penal in nature
32 in many cases."128 There may also be an "adverse effect" on insurance premiums, especially in the case of younger drivers, or those with a record for other motor vehicle infractions .129
7. Statement of Sentencing Purposes and Principles in Other Statutes
In some cases, the public welfare statute creating the offence may address the issue of sentencing principles. Examples of this are found in environmental laws where the "polluter pays" principle is set out. According to this principle, polluters are assigned the responsibility for remedying contamination for which they are responsible, and bear the direct and immediate costs of pollution.130 Hence, in the Quebec Environmental Quality Act,^ the polluter pays principle that is contained in the legislation, was approved by the
Supreme Court of Canada.132 In fact, the Court noted that this principle has become "firmly entrenched" in environmental law throughout Canada, as it is found in almost all federal and provincial environmental legislation.133 It is also recognized at the international level, such as the sixteenth principle of Rio
Declaration on Environment and Development™4
In other statutes, a statement of sentencing considerations is set out, such that the sentencer is specifically directed to take into account the enumerated criteria. The Canadian Environmental Protection Act, 1999™5 exemplifies this approach. Nine distinct factors are set out, such as the harm or risk of harm caused by the commission of the offence, whether any remedial or preventive
33 action has been taken or proposed by the offender, and whether the offender committed the offence intentionally, recklessly or inadvertently. The Canada
Shipping Act, 200 fZ6 provides a similar list of factors for the Court to consider in determining the appropriate punishment for the offence of discharging a pollutant.
The recently enacted British Columbia Public Health Act137 contains sections on determining the appropriate sentence, and the purposes of sentencing. Under the former, the Court is directed to consider the purposes of sentencing set out in the legislation;138 the latter directs the Court to consider imposing one or more penalties to achieve factors such as furthering the regulatory objective underlying the provision that was contravened, or rehabilitating the offender.139 However, such provisions are specific to the legislation in question, and have no application to other public welfare statutes.
As a result, guidance to the courts is not provided on a more general level as to how sentencing should relate to "the regulatory objectives the legislators desire to achieve."140
Given the lack of legislative direction, some courts have attempted to summarize in a comprehensive manner the relevant sentencing principles for regulatory offences. The Law Reform Commission of Canada has referred to this approach as a "shopping list" of sentencing factors.141 An example of this summary of sentencing principles approach is illustrated in R. v. FraserlncU2,
34 where the defendant admitted responsibility for polluting a river with discharge from its pulp mill, contrary to the New Brunswick Clean Environment Actuz The
Court set out a list of 23 separate factors for consideration, including the nature of the offence; potential for actual and possible harm; the deliberateness of the offence; profit, if any realized; attempts to comply; the ease or difficulty of preventing pollution; technology available; and whether the offence resulted from negligence or not.
This "multiple approach of applicable factors"144 has been applied in numerous other environmental cases, including contravening approval and enforcement orders made under the Environmental Protection and Enhancement
Ac?45 respecting dust emissions and noise from the defendant's alfalfa processing operation;146 discharging a pollutant into the city's sewer system;147 depositing a deleterious substance in water frequented by fish;148 pollution from a sewage lagoon;149 and unlawfully transporting dangerous goods.150 It has also been employed in cases involving breaches of other public welfare offences, such as failing to ensure the health and safety of workers, contrary to the
Occupational Health and Safety Act (Sask.),151 in a case where a worker was crushed between the bucket lever arms and body of the loader;152 and failing to develop safety procedures.153
The problem with this "shopping list" or multiple factors approach taken by the courts is that no one sentencing principle or principles is emphasized, and
35 there is the very real risk that it "loses sight of the fundamental purposes of sentencing."154 Neither does there appear to be a priority or ordering among the various factors themselves. Indeed, the approach may be said to invite a new level of risk assessment that may be inconsistent with the "legislative assessment" as set out in the legislation.155 As Verhulst notes, inconsistency
"clearly remains" as it is not clear how the approximately two dozen principles that have been applied for regulatory offences by the courts interrelate, which principles are to be given priority, and which factors are to be considered as aggravating or mitigating.156
8. Matrix of Regulatory Offences Sentencing Decisions
To return to the differences between sentencing for criminal offences and sentencing for regulatory offences, there is one other important distinction to be noted. A statement of sentencing principles to guide "sentencers", that is, courts imposing sentence, has been included in the Criminal Code}57 There is no such statement enacted for regulatory offences generally, although some statutes do contain a statement of sentencing considerations that are specific to it, partiuculary in the area of environmental protection. What is it, then, that should guide courts when sentencing defendants for public welfare offences, and determining what kind of penalty to impose? Other cases for similar offences?
Other cases for different regulatory offences? The statute creating the offence?
Their own views of the offence or the offender? Comparable sentences under the
36 Criminal Code for true crimes? These are some of the questions that currently face Courts when imposing sentences for regulatory offences.
Regulatory agencies have powers to oversee a broad range of activities in areas ranging from "quality of life" to "social regulation".158 Let us consider a matrix of regulatory offences in the area of workplace safety, consumer protection and environmental regulation. These regimes are necessarily broad and distinct, but an examination of sentencing practices and patterns in these areas may help reveal consistencies and differences in modes of sentencing theory. Regulatory agency sentencing patterns present important implications concerning the need for consistency and uniformity in the area of sentencing for regulatory offences generally.
Workplace safety. On his second day at work in a plastics factory, a teenager is operating an oven conveyor that has an unguarded pinch-point. He gets caught in the machine and dies. The defendant, a sophisticated businessman, and his company are found guilty of creating a hazard: endangering a worker by failing to guard the pinch point.159 The company is fined
$30,000 and the individual defendant $10,000.160 Why is it that the Court determined that a monetary penalty rather than a period of imprisonment was sufficient punishment for the individual defendant? Is the quantum of fine for the corporate defendant enough to persuade it to comply with the law in the future, or is it merely the cost of doing business that will be passed on to consumers of its
37 products? What is the principle or principles of sentencing that the Court should consider in imposing the sentence in this case? Where are such principles of sentencing to be found? These are some of the questions facing sentencers when dealing with this workplace safety case.
Consumer protection. Over a period of 18 months, the defendant contracts to perform home renovations for 13 elderly or financially constrained families. For some of them, no work is done; for others there is a failure to honour any warranty. Their monetary loss is about $70,000. The money cannot be accounted for. There has been no restitution to the victims for any of their losses. The defendant is sent to jail for a total of 7 months.161 This is more than the summary conviction ceiling of 6 months imprisonment under the Criminal Code. Did the
Court essentially view the regulatory offence of committing an "unfair business practice" under the Business Practices Ac?62 as if it were fraud under the
Criminal Code, given that there is a mens rea element in the former offence?
Had the defendant been charged under the Criminal Code would he have received a similar sentence of imprisonment? Might he have received a conditional sentence of imprisonment so that he did not have to serve his sentence in jail? While this defendant abused the trust that his vulnerable victims placed in him and made off with all their money, for which he was sent to jail, the employer of the novice teenaged worker exposed him to the danger of an unsafe piece of equipment in the workplace for which the other lost his life, but that defendant was not sent to jail and given a monetary penalty instead. Are these
38 two regulatory offences sentences compatible with each other? What are the principles of sentencing that leads to jail being imposed in one such case but not the other? Why is it that the more serious consequence of the regulatory offence, the loss of life of a worker, results in a fine, but the loss of money by vulnerable victims, results in a period of imprisonment?
Environmental regulation. The defendant, a municipal corporation, pollutes a major river with sewer discharge for many years, causing harm to several fish species, and adversely impacting the area's reputation for tourism. However, the licensing authorities were aware of its conduct, and continued to issue water-use licences to the City despite its repeated non-compliance, and its obligation to build a proper sewage treatment plant. The Court imposes a fine of $5,000. But in addition the City is ordered by the Court to construct a sewage treatment plant so as to remedy any harm to fish or the fish habitat in the river. A time line is set by the Court as to when the plant was to be fully operational; for each month that the defendant failed to meet its timelines to have the plant in operation, an additional penalty of $5,000 would be imposed. The cost of building this plant is in excess of one million dollars.163 Although the defendant has been convicted of the regulatory offence of pollution, contrary to the federal Fisheries /Acf,164 the sentence imposed seems far beyond in magnitude what might have been levied for conviction for a criminal offence: there is a fine, but the Court has additionally imposed a "creative sentence" to ensure that the conduct does not occur again, and that the defendant will clean up the damage it has already caused. This type
39 of sentence seems aimed at both current and future behaviour by the defendant.165 But is it sufficiently punitive? Should it matter that the defendant is a municipal corporation, and that the ultimate cost of the project and its ability to pay for it may be passed on to taxpayers, or that other municipal services may be effected?
The matrix of cases above, in summary form, illustrates just some of the daunting questions faced by the courts when imposing sentences for what are regarded by many as "minor offences", but seem in reality to be quite serious breaches of public welfare statutes. Indeed, some may regard such offences as being at least as serious, if not more serious, than many criminal offences: the death of a worker in the first example; swindling elderly and vulnerable consumers out of their money in the second case; and polluting a major river system and endangering the environment in the third case. Indeed, Justice Cory referred to similar illustrations in the Wholesale Travel Group Inc. case where he posed the question whether "the single mother who steals a loaf of bread to sustain her family [is] more blameworthy than the employer who, through negligence, breaches regulations and thereby exposes his employees to dangerous working conditions, or the manufacturer who, as a result of negligence, sells dangerous products or pollutes the air and waters by its plant?"166
To some, harm to the environment merits greater sanctions than the commission of many criminal offences.167 It has also been observed that while
40 most people agree that causing death constitutes serious harm, and murder in fact carries the "harshest penalties in criminal law", every year in Canada the number of deaths in the workplace, which are rarely treated as a crime, far exceeds the number of homicides. Thus, the concept of harm might indicate which behaviour is serious, but little in terms of how society ought to respond to it.168
While the factual issues in our matrix of cases seem very different from each other, they all involve, in common, breaches of regulatory statutes. A fine is imposed in one case, jail in another. Construction of a sewage treatment plant is ordered in the third case. Are these sentences consistent with each other, or responsive to the underlying breaches of the public welfare statute in question?
Where is it that the sentencers should look for guidance in these types of cases?
Workplace safety, consumer protection and environmental regulation provide classic examples of strict liability offences; however, there are significant differences in the nature of the conduct sought to be regulated.
9. Conclusion
Although it may be an overstatement to say that there is at present
"chaos" in sentencing for regulatory offences,169 the statutory provisions that govern sentencing in regulatory offences resemble "a patchwork quilt ...in need of reform."170 The fact that courts have attempted to fill in the gaps, when faced with the bewildering array of regulatory offences, enforcement mechanisms, and
41 penalty provisions, is a testament to both the existence of the problem, and its magnitude.
There is a need for a consistent and rational approach for sentencing purposes and principles for regulatory offences. To consider how this might be done, and what form it should take, sentencing principles generally for true crimes or criminal offences will be examined in the next chapter, with particular emphasis on how the issue of inconsistency or disparity of sentencing among the various types of offences and offenders is addressed. Thereafter, one may turn to these same issues for regulatory offences, with the benefit of the experience gained from criminal offences, and consider what sentencing principles may lend themselves to the paradigm for minor offences, as opposed to true crimes. Only then will it be clear just how much the patchwork quilt is in need of reshaping and reform, and how this might best be accomplished.
42 PART II. SETTING THE STAGE: PURPOSES AND PRINCIPLES OF SENTENCING FOR CRIMINAL OFFENCES
Chapter 2. "My object all sublime... to let the punishment fit the crime": Sentencing for Criminal Offences
1. Introduction
The approach employed by the Criminal Code with respect to sentencing purposes and principles affords a potential model for regulatory offences sentencing purposes and principles. After all, criminal courts have had more than
100 years of sentencing experience in Canada. Additionally, there is a rich body of academic commentary and literature on the issue of sentencing purposes and principles for criminal offences in Canada, including numerous Parliamentary reports and Law Reform Commission of Canada studies in the area, as well as the debate surrounding the amendments to the Criminal Code in 1996 wherein a statement of sentencing purposes and principles was enacted for the first time.
The approach taken to identifying sentencing purposes and principles for criminal offences in other countries is also informative. This includes the use of mandatory sentencing guidelines in the federal courts in the United States, without an accompanying statement of purpose or guiding philosophy; the role of guideline judgments in England, where there is a tradition of appellate review in sentencing matters; as well as the approach in other Commonwealth countries, such as Australia and New Zealand, where the issue of sentencing purposes and principles has also been raised by Law Commissions and academics. Finally,
43 reference may be made to European countries with a civil law tradition, such as
Sweden, Switzerland, Finland and the Netherlands, that have considered sentencing purposes and principles for criminal offences. While these jurisdictions differ in nature from common law systems, experts across different types of legal systems share the concern about the proper basis for imposing punishment, and have expressed an interest in providing sentencing practices aimed at promoting uniformity of approach and eliminating inconsistencies.
2. History of Sentencing Reform prior to the Criminal Code of Canada Statement of Sentencing Purposes and Principles
In Gilbert and Sullivan's opera, The Mikado, the Judge, the Lord High
Executioner, sets out the clear terms of reference which guide his task:
My object all sublime I shall achieve in time - To let the punishment fit the crime, The punishment fit the crime;171
According to the Canadian Sentencing Handbook?72 a publication prepared for
Provincial Court Judges across Canada, there is a "half truth" captured in this lyrical statement, since the exercise of sentencing calls for a "proper balancing" of the principles of sentencing in order to arrive at a punishment that meets the public interest in protection, while respecting the individual rights of the offender.173 It is in this sense, according to the Handbook, that the appropriate sentence must "fit" the crime and not be excessive: the accused has a right to a
44 "fit" and "proper" sentence, that is, one that it is not excessive having regard to the circumstances.
The Lord High Executor's stated purpose in meting out punishment in The
Mikado is no mere whimsical matter. It has been said that the imposition of sentence "is one of the more important mechanisms through which society attempts to achieve its social goals."174 A "unity of purpose and philosophy" has been described by the Canadian Committee on Corrections as being essential to any system of criminal justice which purports to deal in a meaningful way with an offender against the criminal law.175 Indeed, the Ouimet Report issued in 1969 by this Committee expressed the view that there should be a "consistency in philosophy" from the time that the offender has his/her first contact with the police until the time of the offender's final discharge.176 A "common principle", in other words, was necessary respecting the legislative policy in the creation of offences, the extent of police powers in crime prevention and investigation, the operation of courts and lawyers, judicial policy in the disposition of offenders, and finally the construction and operation of correctional services.177
The Ouimet Report began its chapter on sentencing with this observation:
The greatest obstacles to the development of a unified system of criminal law and corrections have been the absence, to date, of any clearly articulated sentencing policy and the inadequacy of the services and facilities available to a judge responsible for the key operation in the entire process.178
45 Accordingly, the Committee's Report was not confined to only post-sentence issues, but also included a host of matters touching on the loss of liberty throughout the criminal process, as well as parole and imprisonment.179 The
Committee itself acknowledged that it was making "far reaching recommendations" with respect to both "sentencing policy" and "the necessity for increasing the range of dispositions" available to sentencers.180
The Law Reform Commission of Canada subsequently published a number of working papers and studies dealing with sentencing and imprisonment issues. In a 1976 report entitled, Dispositions and Sentences in the Criminal
Process, the need for a broader range of available sentences was explored, so as to provide options that could be applied with "restraint and justification" in order to promote "a sense of responsibility on the part of the offender and enable him to understand his actions in relation to the victim and society."181
Imprisonment was described as being an "exceptional sanction" that was to be limited to cases where it was required to protect society by separating offenders who posed a "serious threat" to the lives and personal security of members of the community; or to denounce behaviour that was "highly reprehensible" or a
"serious violation of basic values"; or to coerce offenders who willfully refused to submit to other sanctions.182 It was also stated that a court ought not to impose imprisonment unless it was certain that a less severe sanction could not achieve
"the objective set out by the legislator."183
46 Other Law Reform Commission reports concerned principles of
sentencing and dispositions,184 and imprisonment and release.185 In The
Principles of Sentencing and Dispositions, rather than defining the concept of
"punishment", the term "sanction" was used, so as to denote a penalty which
might be imposed for "purposes of punishment, protection, restitution or
treatment."186 This report went on to note that the purposes of the criminal law,
on one hand, and of sentencing and dispositions, on the other, are "closely tied
together", and unless one knows what the purposes of the criminal law are or
should be, it cannot be determined "how to formulate a consistent and rational
•sentencing policy."187 A legislative statement of "basic policy setting forth the
philosophy, the purposes, standards and criteria to be used in sentencing and
dispositions" was put forward as a means of promoting uniformity through
structuring and channeling discretion in the sentencing process.188 Such a
mechanism was more preferable than "taking all discretion away" from
prosecutors, judges or parole officials.189 Another recommendation called for the
drafting of a "sentencing guide" so as to assist courts in determining whether to
impose a custodial or non-custodial sentence: it was contemplated that this guide
would contain a statement of priorities and criteria to be considered in reaching
such a decision.190 As a general rule, non-custodial dispositions were to be given
priority, unless factors such as the gravity of the offence, the offender's previous
convictions and risk of recidivism dictated otherwise.191
47 In Imprisonment and Release, the Law Reform Commission echoed the importance of sentencing guidelines, as a device to "provide explicit principles and criteria to facilitate rational sentencing."192 Imprisonment was, once again, regarded as an "exceptional sanction", to be used only when other sanctions appeared to be ineffective. According to this report, courts may have no alternative but to consider the use of imprisonment as a "last resort" against offenders who "willfully default in carrying out obligations imposed under other sanctions."193 Imprisonment was also to be used rarely in cases of non-violent crimes against property or the public order.
The Government of Canada released two policy papers of its own, recognizing the need to articulate "clear policies or principles of sentencing". In
The Criminal Law in Canadian Society,™4 it was acknowledged that one of the most significant concerns in sentencing was the "apparent disparity" in sentences imposed for "similar crimes committed by similar offenders in similar circumstances", a problem compounded by the lack of guidelines as to the manner in which general principles ought to govern the choice of sentence, or the weight to be given to the different objectives or principles of sentencing.195
Indeed, a "statement of purpose and principles" was required for the criminal law generally, and not just sentencing. A subsequent publication, entitled
Sentencing,196 termed it a "striking omission" that the Criminal Code, since its inception in 1892, had failed to provide any "formal Parliamentary guidance" respecting a statement of purposes and principles which underlie the criminal law
48 generally, and sentencing in particular.197 Given that such standards or principles are issues of "public policy which are of fundamental importance," Parliament was stated to be "the most appropriate forum for their articulation."198
Subsequently, the Government of Canada announced the establishment of the Canadian Sentencing Commission in 1984. Its terms of reference directed that the Commission should be guided by the statement of purpose and principles set out in The Criminal Law in Canadian Society,™9 as well as sentencing and release practices. The Commission's Report, Sentencing
Reform: A Canadian Approach, was released in 1987.200 A research report commissioned by the Canadian Sentencing Commission noted that the "major danger" in Canada appeared to be the "tendency not to make hard choices on sentencing reform," given that previous sentencing reform "has been extremely incremental and hesitant".201 The Commission's report itself stated that the
"primary difficulty" with existing sentencing practices in Canada was that "there is no consensus on how sentencing should be approached."202 This, in turn, was exacerbated by the "almost complete absence of policy from Parliament on the principles that should govern the determination of sentences."203 In Chapter 6, entitled "A Rationale for Sentencing", the "goals" of sentencing were described as being: deterrence, rehabilitation, incapacitation, retribution, denunciation and
"just deserts". The paramount goal was identified as protection of the public, although this was stated to be not so much the "overall goal of sentencing, but of the entire penal system."204 The "fundamental purpose" of sentencing was said to
49 be to preserve authority of and promote respect for the law through the imposition of "just sanctions";205 the "paramount principle" governing the determination of a sentence is that the sentence be "proportionate to the gravity of the offence and the degree of responsibility of the offender for the offence."206
In response to the Sentencing Commission's Report, the Standing
Committee on Justice and Solicitor General conducted a review of sentencing and conditional release, holding public hearings across the country and visiting various institutions. The Report that it released in August, 1988, entitled Taking
Responsibility, endorsed the proposal that the Criminal Code should set out a statement of the purpose of sentencing, as well as the applicable principles which should guide discretion, such as proportionality.207 Noting that there was general consensus that "unwarranted disparity should be eradicated", the point was made:
Research on sentencing disparity demonstrates that the most frequently alleged cause for unwarranted variation is confusion about the purposes of sentencing. No sentencing goals are now set out in legislation. Conflicts and inconsistencies in case law appear to arise from the fact that it is often impossible to blend the elements of public protection, punishment, denunciation and deterrence; frequently, they are contradictory and inconsistent. It is important, therefore, to achieve consensus on a sentencing rationale for the guidance of the judiciary and the enlightenment of the general public.208
The Government of Canada responded to the Standing Committee's
Report with a 1990 Green Paper, Sentencing: Directions for Reform209, where the recommendation put forward in Taking Responsibility for a legislated
50 statement of sentencing principles was endorsed. It was observed in the Green
Paper that a rationale for sentencing "should clearly explain the basis for the imposition of legal sanctions."210 Another point that was addressed was that while a body of case law on sentencing had been developing since the 1921 amendments to the Criminal Code which permitted appellate review of "fitness of sentence", such case law was not generally accessible to the general public. As a result, "one of the basic tenets of our law, that it should be available and understood by the population, is not well met in respect of sentencing law."211
The Minister of Justice and Attorney General of Canada, Kim Campbell, echoed these statements, noting that the lack of a "clear, national set of objectives" to be applied in the sentencing process was incompatible with a system of sentencing which must be "understandable, accessible, and predictable - to judges, the public, correctional officials, and the offender."212
It is thus apparent that a central theme in the calls for reform leading to the introduction of a statement of principles for sentencing in the Criminal Code through the 1996 amendments has been the need to "structure sentencing discretion".213 All of the major groups involved, the Law Reform Commission of
Canada, the Canadian Sentencing Commission, Parliamentary Standing
Committees and the Government of Canada itself, recognized the "necessity for a legislated statement of sentencing purpose."214 Through this means, a "matrix of principles" is codified in order to "direct the sentencer's mind to factors which should be given appropriate play in deciding the kind of sentence and its extent."215
51 3. The Enactment of a Statement of Sentencing Purposes and Principles for Criminal Offences
Bill C-41 was introduced into Parliament as legislation that, for the first time, provided "comprehensive sentencing reform".216 It became law in
September, 1996.217 Stated simply, it was no longer possible for the legislature to
"passively sit back and avoid involvement" in the sentencing reform movement.218 Passage of legislation setting out the statement of purposes of sentencing also meant, as Roberts observed, "the debate over punishment has been particularly public."219 As it turned out, it was the conditional sentencing provisions of the legislation that ultimately proved better known, and certainly far more controversial, than the statement of sentencing principles. Indeed, the former has already been substantially restricted in scope through subsequent amendments, such that conditional sentences are no longer available for many criminal offences.220
According to Manson, Bill C-41 succeeds, at least, by organizing the new sentencing provisions in a "coherent" and "systematic manner".221 Beginning with alternative measures,222 which would remove a case from the criminal system entirely, the legislation moves next to the purpose223 and principles of sentencing.224 A series of provisions follow, dealing with procedural and evidentiary matters,225 after which are the sentencing options themselves, in ascending order of seriousness, starting with discharges226 and probation,227
52 moving next to fines and forfeiture,228 restitution,229 and culminating with conditional sentences230 and, finally, imprisonment.231
The purpose of sentencing, as set out in s.718, is cast in these terms:
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
The fundamental principle of sentencing is contained in s.718.1. It is that
"a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Other sentencing principles follow in s.718.2, including those factors that constitute aggravating circumstances.232 Additional sentencing principles are: a sentence should be similar to sentences imposed on similar offenders for similar offenders committed in similar circumstances;233 where consecutive sentences are imposed, the combined or total sentence
53 should not be unduly long or harsh; an offender should not be deprived of his/her liberty, if less restrictive sanctions may be appropriate in the circumstances;235 and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.236
There has been much scholarly debate both as to the impact and merits of the statement of purpose and principles of sentencing added to the Criminal
Code in 1996. Given the consensus in the sentencing reform movement advocating for the inclusion of such a sentencing statement, some have argued that the impact of the legislation may ultimately turn on issues such as the content of the statement, how it is structured, and the wording and qualification of the principles themselves.237 While it has been acknowledged that "it must be better for an institution to be purposeful than purposeless", and that there can be nothing wrong with including a statement of purpose as opposed to failing to articulate one, there remains the concern whether s.718 will achieve its goals, or merely constitute "a self-justificatory and empty platitude."238
That the sentencing landscape has been indubitably altered by these new
Criminal Code provisions is obvious, at least in the view of the Supreme Court of
Canada. In one of its first decisions concerning the sentencing principles enacted by Bill C-41, R. v. Gladue,239 a case where s.718.2(e) respecting aboriginal offenders was in issue, the Supreme Court observed that the passing into law of
54 the new Part XXIII of the Criminal Code, where these sentencing sections are grouped, constituted "a watershed, marking the first codification and significant reform of sentencing principles in the history of Canadian criminal law."240 The following year, in its seminal judgment on conditional sentences, R. v. Prow/x,241 the Supreme Court returned to this theme, noting that Bill C-41 "substantially reformed" Part XXIII of the Criminal Code by introducing, "inter alia, an express statement of the purposes and principles of sentencing, provisions for alternative measures for adult offenders and a new type of sanction, the conditional sentence of imprisonment."242
However, it is no small task to devise a fit sentence for an offender, even with the guidance provided by the new Criminal Code sections. Sentencing remains a very "human process".243 The imposition of a fit and proper sentence has been described as being "as difficult a task as any faced by a trial judge."244
It is essentially the product of "the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender."245 The term
"individualized sentencing" has been used to describe this process.246 This case- by-case nature of sentencing proceedings is said to be reflected in the principle of proportionality, which is described as being the fundamental principle of sentencing under s.718.1 of the Criminal Code. And in addition to complying with the principles of sentencing, the sentence imposed by the court must promote one or more of the objectives set out under s.718.
55 The importance and relevance of each of the objectives identified in s.718 must vary, though, having regard to the circumstances of the offender and the nature of the offence. Thus, as one commentator notes, while the new sentencing provisions which came into force in Canada included for the first time an explicit statement of the purposes and principles of sentencing, the Criminal
Code "provides no guidance" on how a judge is to implement and give effect to these principles.247 In short, the sentencing sections constitute "a confusing mix of purposes, objectives and principles that are to be used in sentencing individual offenders."248
A "smorgasbord of justifications for punishment," it has been observed, remain available to the court in its determination of what constitutes a fit sentence, without providing direction to judges as to how to match "punishment purposes" with offenders.249 Moreover, the form and structure of the statement of sentencing "provides no hierarchy within the principles to direct decision-making in a forceful and principled way."250 In order to cover a large number of conflicting aims, "rather indecisive formulae" are set out in the legislation.251 It is not made clear, for example, under which conditions certain of the aims are to be favoured over others.252 The Criminal Code, according to another author, "remains silent on what ought to be done when conflicts arise between the various sentencing objectives."253 In such cases, judges are left to decide which of the enumerated principles of sentencing should apply to the particular offender. As a result, discretion "continues to be the hallmark of sentencing in Canada."254
56 Still, it is the legislature that sets out the sanction for breaching its statutes. The legislature's "attitude" cannot but help guide the courts in sentencing within those limits, as Decore observed in an article on Canadian sentencing practices more than forty-five years ago.255 That is, an analysis of the purposes underlying criminal sanctions assists one in attempting to answer the question, "Why do we punish?" It allows the court to move on to the next question: "How is the defendant to be punished?"256 The statement of sentencing principles in the Criminal Code, when viewed through this prism, serves the important task of providing "standard fundamental principles" and the framework within which courts may exercise their discretion in determining what is a fit and proper sentence, having regard to the particular facts in the case.257
Having a sentencing policy means, in the words of Mannheim, "not merely using one's discretion but using it in a specific and consistent manner, with some ultimate object in view."258 Creating sentencing standards requires a "coherent conception of purposes."259 Whereas the absence of agreement on "a philosophy of sentencing" is an invitation for "chaotic criminal sentencing" practices,260 a statement of sentencing purposes, even an imperfect one, brings order to the process. The "legislation of sentencing objectives" lessens the potential for disagreement among judges as to the legal objectives that govern in a particular case.261 In summary, the importance of a statutory statement of sentencing purpose and principle "cannot be over-stated."262
57 4. Sentencing Guidelines for Criminal Offences in the United States Federal Courts
The Canadian legislative response in devising a statement of sentencing principles for criminal offences stands in marked contrast to the approach in many other jurisdictions. In the United States, the absence of a guiding rationale of sentencing policy in the federal court sentencing guidelines was a deliberate omission, given the Sentencing Commission's inability to agree on a guiding philosophy. The United States Sentencing Commission's justification for this was that as a "practical matter", there was no need to choose between competing philosophies of punishment, such as a utilitarian perspective or retributive model
"because in most sentencing decisions the application of either philosophy will produce the same or similar results".263 As one of the Commissioners subsequently noted, in opening up the "black box" of sentencing, a "broad range of philosophical viewpoints" emerged, thus making consensus difficult and requiring compromise.264 Consequently, the sentencing guidelines have been said by one commentator to reflect "defiant atheoreticality".265
There has been considerable controversy generated by the refusal of the
United States Sentencing Commission to create a system of sentencing laws without articulating the principles that inform them. The title of Doob's article is instructive in this regard: "The United States Sentencing Commission Guidelines:
If you don't know where you are going, you might not get there".266 Von Hirsch commented, in turn, that without the guidance of a "coherent rationale" the choice
58 of a particular set of rules is arbitrary; while it might produce more consistent outcomes, it will not be apparent why those outcomes are either more effective or more just. He summarized the Commission's position thusly: "since people disagree over the aims of sentencing, it is best to have no rationale at all."267
Indeed, it has been contended that by making sentencing laws without articulating the principles upon which they are premised, the role of the sentencing judge is rendered even more difficult, since if judges are to be required to give reasons for their sentencing decisions, there must first be a
"reconsideration of what should count as a reason."268
The absence of sentencing principles in the United States federal sentencing guidelines also seems curious, having regard to the criticism of unbridled discretion that was said to characterize the American sentencing process. One way of checking such "unstructured discretionary power" so as to move from "unguided discretion to guided discretion" was through the means of
"the formulation of sentencing principles and criteria."269 Marvin Frankel's indictment of the pervasiveness of "lawlessness" in sentencing, as exercised in
America by his fellow judges, cited as a common theme the failure of Congress and state legislatures to study and resolve the "most basic of the questions affecting criminal penalties, the question of justification and purpose. Why do we impose punishment?"270 Frankel went on to observe that the "almost entire absence" of legislative determinations of law governing basic questions as to purposes and justifications of criminal sanctions meant that the court imposing
59 sentence must inevitably set out on a "multiplicity of courses" chosen by the individual decision-maker. The result was not unexpected: chaos.271 Criminal sentencing, in these conditions, was little more than a "game of chance".272
Sentencing judges were "left free to formulate and apply their own personal theories of punishment."273 Without any guidance on sentencing, it was little wonder that "sentences appear to be all over the lot."274 Consequently, it was proposed that a "sentencing guidelines" bill be enacted, so as to bring "welcome uniformity" to the sentencing process by articulating for the first time general purposes and goals of sentencing for the judge to consider prior to imposing any sentence of imprisonment.275
It is thus clear that the importance of "articulating the purposes of sentencing" was apparent to Congress when one traces the legislative history of the sentencing reform legislation that gave rise to the creation of the United
States Sentencing Commission.276 In the end, however, the Commission chose to express "no rationale whatsoever", and thus declined to further the debate as to the "proper goals of punishment."277 Koh argues that regardless of the reason for the Commission's failure to enunciate a "sentencing philosophy", this represents a "major flaw" in the guidelines. A sentencing rationale would have enabled the Commission to construct guidelines "capable of fulfilling defined societal objectives".278 More significantly, without a sentencing rationale, "judges, attorneys, defendants, and the public come no closer to understanding the reasons why a particular sentence is given."279 It has even been suggested that
60 Congress might hold hearings to determine why the Commission failed to address the "purposes of sentencing" as required by the Sentencing Reform
Act280
Another commentator, Miller, puts the matter this way as to the importance of stating the purposes of sentencing: different purposes produce
"different lengths and kinds of sentences."281 Hence, directions concerning sentencing purposes would assist judges in selecting among the different available sanctions, as well as in interpreting guideline ambiguities and determining how and whether to depart from the sentencing ranges set out by the guidelines. In short, purposes should play a "dominant role in shaping the sentence in each case."282 The identification of the purposes in each case would
"lead the judge to confront, in clear and principled terms, the most difficult sentencing question: What sentence should be imposed?"283 The Sentencing
Commission's failure to address the question, "What is the legitimate purpose of sentencing?" constitutes "a failure at the very heart of the guideline movement", according to another.284 Indeed, a public statement of sentencing purposes is
"essential" in order for the Commission to fulfill its principal policy goals of reducing disparity and reassessing sentencing severity.285 The absence of a
"coherent direction", even it is a "wrong direction", is a recipe for "confused rulemaking."286 In short, in the absence of a rationale, "anything goes".287
61 One of the members of the Sentencing Commission, Paul Robinson, issued a dissent, protesting the absence in the guidelines of a "coherent, articulated sentencing philosophy."288 Robinson contended that purposes are used as "guiding principles" for the "distribution" of criminal sanctions. While purposes may frequently conflict, ultimately a choice must be made to follow one purpose at the "expense" of another.289 However, when faced with such conflicting purposes, judges, legislators and the drafters of the sentencing guidelines have no principle to guide that decision. That is, without a principle governing when one sentencing purpose is to be followed at the expense of another, one is free to choose "whatever purpose justifies the desired sentence."290 Put another way, with no principle to "guide conflicting philosophies", the inevitable result is sentencing disparity "as different judges each make different personal, ad hoc choices among conflicting objectives."291
It has also been contended, by other critics of the federal guidelines, that the more limited role played by judges in applying "factual determinations" and
"rudimentary arithmetic operations" results in courts staying away from "larger questions relating to culpability and the purposes of criminal punishment."292 As another commentator has put it, equal treatment of convicted persons is not fair treatment unless the "deeper criteria of just punishment" are met.293 Indeed, the constitutionality of the guidelines' "piecemeal approach" has been thrown into question, given recent judgments by the United States Supreme Court in Blakely v. Washington294 and United States v. Booker295 where it was held that the right
62 to a jury trial under the Sixth Amendment requires juries, and not judges, to decide beyond a reasonable doubt any fact that exposes the defendant to an increased punishment, notwithstanding the applicable state or federal sentencing guidelines, respectively.296 The viability of the guidelines remains very much in issue, as evidenced by Dillon v. United States,297 a decision rendered in June,
2010, where a majority of the Supreme Court ruled that there is no constitutional requirement that entitles defendants to the benefit of retroactive sentence reductions in the Guidelines; the minority opined that Booker had dismantled the mandatory guidelines regime, and the Court "ought to finish the job."298
5. Guideline Judgments for Criminal Offences in the United Kingdom
To this point, our review of sentencing principles for criminal offences has focused on the experiences of one jurisdiction, Canada, which has enacted legislation setting out such principles little more than 10 years ago, as well as another jurisdiction, the United States, which deliberately refrained from doing so,
10 years before the Canadian legislation. The experience in the United Kingdom and Commonwealth countries is quite different, typically leaving the task of establishing sentencing principles to the courts, and not the legislature. It is helpful, then, for comparative purposes, to make reference to this approach in the United Kingdom, Australia and New Zealand. At the same time, it is important to heed the admonition of Ashworth that while sentencing reform issues do have elements in common, such as the desire to reduce sentencing disparities and concerns about the over-use of custodial dispositions, what "works best" will
63 necessarily depend on the legal and political situation in the particular jurisdiction; moreover, it should not be assumed that sentencing reform techniques are "simply transferable" from one criminal system to another, although they might be suitable, in modified form, for adoption in another jurisdiction .2"
England provides a "prime example" of a jurisdiction where there is a tradition of appellate review in sentencing matters, and particularly the use of providing guidance on sentencing principles in the form of judgments from the
Court of Appeal, Criminal Division.300 The English Parliamentary tradition is one of "general abstention from matters of sentencing policy."301 Ashworth notes that the advantage of giving the task of creating sentencing guidance to the judiciary is the experience judges' possess. But at the same time there are a number of institutional limitations: the way in which appeal courts operate makes them accustomed to dealing with particular cases and issues, which are initiated not by the court but by the parties who appear before them. Consequently, the court is not used to looking at the practice and structure as a, whole, such that judicial experience in the larger issue of sentencing reform may, in fact, be quite narrow.
Indeed, judges may lack experience in a number of "wider aspects" of the criminal justice system, such as the operation of agencies apart from corrections and probation.302 Sentencing policy, in any event, "lies within the purview of the legislature", and it cannot be contended that "judicial independence" mandates that sentencing is solely a judicial matter.303.
64 Under the guideline judgments system, the Court of Appeal, Criminal
Division, issues a decision that sets out "starting points" for imposing a sentence for a particular offence, but no formal structure beyond this.304 Thus, the sentencer is provided with a starting point sentence for the crime in question, and a list of factors, both in mitigation and aggravation, may be mentioned; factors that should play no role in increasing or decreasing the sentence, may also be discussed. In such "narrative style" of appeal judgments, a framework is imposed for sentencing while leaving "ample room for judicial discretion"; however, only a small number of crimes are covered, in fact, by guideline judgments.305 The result, according to Ashworth, is that, for the rest, guidance available from individual appeal judgments is "patchy - sometimes good, sometimes nonexistent."306
Whereas sentencing legislation tends to be very general, the Court of
Appeal, Criminal Division guideline decisions are restricted to the combination of facts in particular cases, thus providing "little guidance" to the courts below.307
There is also an absence in this format of "any principles resolution of sentencing policy issues".308 That said, guideline judgments do contribute towards "more rational and consistent sentencing practices."309 Guidance on "patterns of reasoning is essential", in order to bring "consistency and coherence" into the sentencing decision-making process, given the wide range of possible dispositions available to the courts.310
65 Another noted commentator on the English system, David Thomas, argues that although Court of Appeal, Criminal Division, decisions are not always carefully considered in terms of general principles, and may display some internal inconsistency, nevertheless that Court generally provides a "reasonably adequate mechanism" for developing and refining sentencing principles.311
According to Thomas, given a "sound statutory framework", that allows for the exercise of judicial discretion, courts can "reasonably be expected to develop coherent and articulated practices" in matters of sentencing.312 It has also been observed that as the guidelines reflect the "collective views" of judges, individual judges may be more inclined to "take them seriously."313 They are set out in
"readable narrative" and easy to use.314 Conversely, there are a number of reasons why statutory regulation of sentencing, particularly through legislative guidelines, is less desirable than the English model of deference to the judiciary in formulating principles of sentencing: the technical difficulties of legislating a
"closely controlled system of sentencing" with the requisite amount of detail required in the statute while not unduly restricting judicial discretion; close regulation of sentencing by legislation makes the process too vulnerable to "ill- considered manipulation for short-term political purposes"; and the diminishing of the judges' position to that of prosecutors, on account of the greater role that plea bargaining plays in legislative guidelines systems.315
Thomas contends that the English approach is also more consistent with the hierarchical structure of the judiciary that is central to the common law. That
66 is, higher levels of courts provide authoritative rulings on issues in dispute or subject to conflicting decisions in the courts below. However, a legislative guidelines approach would "subvert" the existing hierarchy by elevating the collective decisions of the lower courts to authoritative precedents without articulating reasons, which is characteristic of appeal decisions. Whereas the judicial guidelines method is necessarily limited to a relatively small number of variables which affects a high proportion of cases, it requires only one appellate decision to determine a significant sentencing factor.316 Another limitation of the
English system of appellate review had been that, at one point, sentence appeal cases could only be brought by the offender, and there was thus no jurisdiction to review excesses of leniency as opposed to those of severity; this, in turn, was said to limit the potential of the system to "correct idiosyncracies" of individual sentencers and to develop a "comprehensive jurisprudence of sentencing."317
While judicial discretion in sentencing may be controlled to some extent by the Court of Appeal, Criminal Division, it has been argued by others that the
"great diversity of penal philosophies underlying the available sentencing options" makes this a difficult task, particularly where the appeal court does not seek to rationalize these competing objectives or philosophies.318 The result is that at the trial level where there is no priority in sentencing objectives, trial judges are "left very much to their own devices"; the Court of Appeal, Criminal Division, is limited to dealing with the "random assortment of cases which comes before it."319 The guideline judgments that it issues are in relation to specific offences, but they do
67 not purport to provide a framework for comparison between offences. Hence, "any principled resolution of sentencing poBcy issues* is tacking.320Indeed , as Allen observes, it is doubtful whether tiie Court of Appeal would be in a position to formulate a "general rationale", or scale offences according to their gravity, given that it deals with issues on an ad hoc basis when they arise, and it tisuafly hears sentence appeals against custodial dispositions, in a White Paper on Criminal Justice released in 1986, the Government adverted to the desirability of articulating sentencing principles, slating tiiat ft is "important for the general principles which apply to the sentencing of particular kinds of offences and offenders to be well known to the courts, to be consistent and to command public confidence.*321
The limited effect of appellate guidance, as described by Allen, is by no means peculiar to tiie English courts. Cheang observed that experience has shown in Canada that appellate review of sentences in criminal cases is ano guarantor of uniformity of sentences."322 A more modest and practical goaf would be uniformity in application of sentencing principles, and not uniformity of sentences. Decore, writing in 1964, noted that with approximately 600 judges, comprising magistrates, county court judges, and supreme court judges imposing sentences across tie country, wifli no guidelines or established principles under the Criminal Code or any other legislation, it was not surprising that provincial appeal courts had not been particularly successful in establishing "a consistent set of sentencing principles."323 A ssmiiar observation was made by Samuels in
68 relation to the United Kingdom, who noted that with few exceptions, Parliament gives no instructions or guidance regarding sentencing criteria to the nearly 500 judges and 500 recorders practicing sentencing. As a result, the law and practice of sentencing is "almost entirely judge-made."324
In a study for the Canadian Sentencing Commission on the role of appellate courts in developing sentencing guidelines, Young commented that since the introduction of appellate review of fitness of sentence in 1921, appeal courts in Canada have not been "instrumental in designing relevant sentencing principles" to assist lower courts in determining appropriate sentencing principles; the need to achieve uniformity in sentences as a valid objective of sentence appeals has only been a recent concern, as the sentencing process traditionally emphasized the principle that the punishment should fit the offender.325 Young's observations bear out the English experience: while appellate courts have not developed a "consistent body of sentencing principles", it does appear that such courts do have some impact on the sentencing process, and can promote consistency by, inter alia, articulating relevant factors that should be taken into account, ascribing the weight that should be given to factors in any particular case, releasing general policy statements as to the purpose of particular sentencing measures, and recommending certain ranges of sentence for various offences.326 However, the effectiveness of detailed guidance from appellate courts is "almost wholly dependent upon the quality of guidance given by the appellate courts."327 To return to Ashworth's words: "It is one thing to criticize the
69 courts for a lack of uniformity in their approach to sentencing: it is quite another thing to spell out the approach which they ought to adopt."328
6. Sentencing Purposes and Principles for Criminal Offences in Australia and New Zealand
The experience in other Commonwealth jurisdictions with respect to sentencing purposes and principles is also instructive. In a 1987 discussion paper on sentencing, the Australian Law Reform Commission stated that a sentencing system should ensure that the choice and application of "sentencing goals" by all sentencers is based on the same standards.329 In addition, it should include rules that state its goals so as to avoid inconsistency between judicial officers and a sense of injustice among defendants. However, the Commission noted that there was currently no statutory guidance and little common law in
Australia at either the state or federal level on the goals of sentencing, or how they could be achieved. The Commission's tentative view was to propose the enactment of legislation that would set out the principal goals of sentencing, as well as procedures to implement them and guide the sentencing process, while at the same time preserving judicial discretion. It was also recommended that a sentencing commission should be established, in order to ensure the application of such a sentencing policy and practice on a continuing basis.330
In terms of the utility of a legislative response, the Australian Law Reform
Commission observed that legislation setting out sentencing goals and
70 procedures would provide "clearer guidelines" for not only those directly involved in the administration of justice, but the public as well.331 The goal was not to remove judicial discretion from the sentencing process, but to provide guidance by defining punishment purposes and priorities, and providing uniform sentencing procedures. A legislative statement of sentencing goals would provide a means to provide a clear statement of sentencing policy; the goals of punishment should be set out in legislation so as to govern the sentencing of offenders. The
Commission contemplated that "detailed principles" to guide courts in the imposition of punishment in accordance with the goals of sentencing should be expressly incorporated in the proposed sentencing legislation.332 As one commentator put it, in echoing these concerns about lack of uniformity in
Australian sentencing practices, greater legislative intervention was required since "for too long, too much was left unsaid in sentencing legislation."333
The Australian Law Reform Commission followed up its discussion paper with a report on sentencing, which was released the following year.334 One of the major themes in the report was the desirability of "structured discretion". By this the Commission meant that laws and procedures respecting decisions made on sentencing should be structured so as to lead to "consistency of treatment of offenders."335 One of the methods considered by the Commission to promote this was the provision of a statutory list of factors regarded as relevant to the exercise of the Court's discretion; similarly, a statutory list of factors that the Court should not consider would also be set out.336 In its discussion of the present means
71 available for ensuring consistency of treatment in sentencing, the Commission observed that reliance on appellate review was not an effective mechanism, given that the criminal appeal courts in Australia were "generally reluctant" to interfere with sentences on the basis of the discretion exercised by the trial courts, absent a manifestly unjust sentence.337 Moreover, unlike the case in the
United Kingdom, where guideline judgments were issued to assist sentencing decisions in future cases, appellate decisions in Australia were more likely to be restricted to considerations involved in the instant case.338
There has been support for the Australian Law Reform Commission's position by authors such as Zdenkowski who advocates for a sentencing policy which is "coherent, consistent, fair and widely accessible" through the means of a statement of the aims of punishment in statutory form.339 Zdenkowski argues that a specialist body such as a sentencing commission is best able to assist in the task of developing the relevant information about sentencing and sentencing policy, unlike the legislature, which lacks the time and resources to undertake the complex task of establishing considered sentencing principles. Likewise, an appeal court is not equipped to formulate sentencing policy, since it is primarily concerned with deciding the case before it, as opposed to taking a
"comprehensive view" of the policy ramifications of sentencing issues.340 In a prescient observation, the author also sounded a note of caution which echoes the concerns that have subsequently been made in relation to the Criminal Code of Canada's statement of sentencing principles, namely, that under a statutory
72 approach, there is the need to avoid contradictory statements of the purposes of sentencing. In particular, the aims should be clearly set out, as well as an indication of their priority; the manner in which any conflicts are to be resolved should also be specified. It was also noted that the level of specificity in the statement of sentencing purposes is important: if "extremely vague terms" are employed, the statement is likely to provide only little, if any, guidance to courts and others.341 This may result, in turn, in the sentencing statement being regarded as redundant, and hence of no assistance whatsoever.
Subsequent legislation in Australia did put in place sentencing purposes and principles, as was the case with the Sentencing Act 1991 (Victoria).342 The stated purpose of this statute is "to promote consistency of approach in the sentencing of offenders."343 One of the methods by which this is done is through a statement of "sentencing principles to be applied by courts in sentencing offenders".344 These principles are contained in Part 2 of the Act, which is entitled
"Governing Principles". Section 5(1) outlines the purposes for which sentences may be imposed, such as punishing the offender to an extent and in a manner which is just in all of the circumstances; subsection (2) directs the court as to which factors may be considered relevant, such as the nature and gravity of the offence, and the offender's culpability and degree of responsibility for the offence.
Freiberg comments, though, that the statute "blandly" states all the purposes of sentencing, thus merely restating the common law, which was found wanting by the drafters of the legislation.345 It also constitutes a "pragmatic recognition" that
73 there could be no agreement as to "whether there could or should be one dominant purpose of sentencing."346 However, the legislation is designed to
"guide more closely the exercise of a sentencer's discretion."347 It also responds to the criticism that the failure to "endorse a sentencing rationale" allows sentencers to "pick and choose" a rationale which seems appropriate at the time
"with little constraint", thereby violating the virtues of consistency and fairness.348
Other jurisdictions in Australia have followed suite, enacting legislation that sets out the purposes of sentencing, and the factors to be taken into account when imposing sentence.349
New Zealand enacted "comprehensive reform" of sentencing legislation in
2002.350 One of the stated objectives of the Sentencing Act 2002*^ was to enact legislation "that delivers greater clarity, consistency and transparency in sentencing."352 The Act expressly sets out the purposes for which a court may sentence or otherwise deal with an offender, including holding the offender
"accountable for harm done to the victim and the community by the offending", and promoting in the offender a "sense of responsibility" for the harm done, as well as providing for the interests of the victim and denouncing the offender's conduct.353 Interestingly, unlike the Canadian statement of sentencing purposes, the New Zealand statute states that to "avoid doubt, nothing about the order in which the purposes appear... implies that any purpose referred to must be given greater weight than any other purpose referred to."354 Other provisions set out the principles of sentencing for dealing with offenders, such as the gravity of the
74 offence and degree of culpability of the offender. 355 A list of both aggravating and mitigating factors is also provided.356 In short, the legislation "leaves judges with discretion" while setting out "general purposes and principles of sentencing «357
Hall notes that apart from these statutory provisions, there is appellate review as a check on judicial discretion in sentencing, including the use of guideline judgments, which have a "significant role to play in the formulation of sentencing policy and in the avoiding of unjustified disparity of sentence."358
Hence, "a judge is not set adrift on an uncharted sea involving his bearing unaided a personal burden of attempting to achieve abstract justice."359 Indeed, the purposes of sentencing provision in the Sentencing Act 2002 have been described as being "consistent with long-established case law and jurisprudential principles"360 whereas the principles of sentencing is a new provision aimed at providing "more guidance in sentencing legislation about matching the type and severity of sentences to the seriousness of the offending and the culpability of the offender."361 According to Roberts, the New Zealand sentencing reforms represent "a shaping of existing policy and practice, rather than a radical departure in a new direction", and thus are "much closer to the rather modest sentencing reforms introduced in Canada."362
With respect to the purposes of sentencing as set out in the New Zealand legislation, Roberts observes that it employs the same "smorgasbord approach to guiding judges" as does the Canadian statement of sentencing purposes.363.
75 Consequently, judges are at liberty to "pick and mix" from the menu of sentencing purposes, "according to their pre-existing individual preferences"; the result, according to Roberts, is that judges will continue to sentence offenders in much the same manner as they have been doing in the past, as it relates to the purposes of sentencing.364 It may be contended, then, that the New Zealand and
Canadian legislation serve, in common, to legislate the status quo as they represent "a legislative recognition of accepted common law purposes." On the other hand, by setting out sentencing principles, even re-affirming established ones with which judges are familiar, their placement on "a statutory footing" acts to "promote their visibility to all actors in the criminal process, enhance their standing among judges, and possibly result in a more uniform application."365
Roberts makes a similar observation in terms of the effect of creating a statutory list of both aggravating and mitigating factors. Whereas the Criminal
Code of Canada lists only aggravating factors,366 the Sentencing Act 2002 sets out both those in aggravation and mitigation.367 The advantages of creating such statutory sentencing factors are described as being threefold: (1) it isolates from the "morass of factors" considered relevant by the courts those which Parliament deems to be "particularly important", thereby increasing their relevance for the courts, while also allowing Parliament to exercise a degree of control over sentencing policy without unduly interfering with the discretion of courts to impose fit sentences in individual cases; (2) it enhances their "uniform application across courts", given that their relevance will appear much clearer to trial and appeal courts; and (3) in the absence of codification, sentencing factors that are
76 "buried" in the common law will be "inscrutable" to the public, whereas the creation of statutory factors will promote "public understanding and visibility".368
Roberts predicted that the Sentencing Act 2002 would provide judges with
"little guidance" on the "critical question of the purpose of sentencing" since all the traditional goals "remain on the table".369 Consequently, sentencing practices were unlikely to become more consistent, despite the intention of the reforms; judges were already familiar with the contents of s.7 and were thus likely to pay little attention to its contents. On the other hand, the principles of sentencing provision, s.8, did provide clarification of previous sentencing provisions, and extended beyond that found in terms of reforms in other jurisdictions. Two subsequent developments in New Zealand substantiate these concerns. The legislation was significantly amended in 2007 so as to provide for a hierarchy of sentences, including new community based sentences, and changes were made to s.8 respecting the imposition of maximum sentences or sentences approaching a maximum sentence.370 More significantly, the New Zealand Law
Commission issued a report in 2006 recommending that even greater guidance be provided forjudges so as to address the "highly discretionary nature" of the sentencing process.371 The recommendation that a Sentencing Council should be established in New Zealand to draft sentencing guidelines was accepted by the government, and it was expected that sentencing guidelines would take effect from 2009.372 However, the Sentencing Council was subsequently disbanded.
77 The New Zealand Law Commission acknowledged in its report that the
Sentencing Act 2002 codified sentencing purposes and principles, as well as aggravating and mitigating factors. However, it expressed the concern that judges generally "remain free to determine policy as to sentence levels".373 The result was that there was "significant inconsistency" in sentences imposed between both different courts and different judges, especially in relation to "lower end offences."374 As for ways of responding to this problem, guidance provided by the higher courts was "reactive rather than proactive" and was limited to the context of cases actually coming before the courts; Parliament, in turn, lacked a mechanism to "reliably alter policy" as to sentence levels, or "reliably predict" what sentence levels will flow from the maximum penalties provided or other legislative prescriptions.375 The solution, then, was to establish a Sentencing
Council to draft sentencing guidelines. In this manner, the Council would broaden the base of responsibility for determining sentencing policy, promote sentencing consistency as judges would be required to adhere to the guidelines unless they were satisfied that to do so would be contrary to the public interest, and
Parliament would be given greater input into sentencing policy.
As noted, the Government of New Zealand had formerly agreed that a
Sentencing Council should be established and given the task of drafting sentencing guidelines. In a document explaining the reasons for acting on the
Law Commission's recommendation, it was stated that judges receive "a small amount of guidance" from Parliament on sentencing, such as when the maximum
78 penalty for an offence is altered or legislation like the Sentencing Act 2002 is enacted, or from the Court of Appeal when it issues guideline judgments.376
However, sentencing practices were "still inconsistent" in New Zealand: different courts, and even different judges, were "sentencing inconsistently", especially for offences of lesser seriousness. This might be due, it was suggested, to "the limited scope of the existing sentencing guidance."377
In addition, it was noted that neither Parliament nor the Court of Appeal was in a position to address the "whole range of offending encountered daily by the courts."378 The latter, in particular, was not a forum that could take "full account" of the views of all interested parties, given that its judgments were issued in the context of individual cases, and based on the submissions of only the prosecution and defence. Hence, developing sentencing policy in this manner was not transparent; the public and "wider perspectives" were precluded from participating in the process. Finally, it was observed that the current lack of a transparent policy made the system "unpredictable" since the government could not "guess" how judicial sentencing practice would change in response to sentencing legislation that it enacted. The result was that corrections' resources could not be effectively managed, such as forecasting prison population or other likely impacts involving probation officers.
79 7. Sentencing Purposes and Principles for Criminal Offences in Civil Law Jurisdictions
Lastly, it is helpful to turn to European countries with a civil law tradition that have considered sentencing purposes and principles. While these jurisdictions differ in nature from common law systems, experts across different types of legal systems share the concern about the proper basis for imposing punishment, and have expressed an interest in providing sentencing practices aimed at promoting uniformity of approach and eliminating inconsistencies.
Jareborg points out that disparity in the treatment of offenders in and of itself may not be "wrong", given that it depends on what values or policies are pursued by the state in the sentencing process.379 However, where a penal system contains no penal policy or sentencing principles, no "criterion of rightness" is discernable, and there can be no "normative disparity."380 Indeed, in countries with such an
"incoherent system", it is not disparity that is the problem, but the system itself. It is argued that if a jurisdiction adopts a "coherent penal policy" where there is an
"overriding penal aim or ranking of aims", this will not necessarily eliminate disparity, but it will put in place criteria for measuring what differences in sentencing are appropriate or not.381
Sweden is an example of a civil law country that has enacted legislation that sets out the purposes and principles of sentencing. In the Swedish Penal
Code 1999, chapter 29 indicates that punishments shall, "with due regard to the need for consistency in sentencing" be determined within the scale of
80 punishments according to the "penal value" of the crime committed by the offender.382 Provisions that follow set out "aggravating circumstances"383 which are to be given special consideration, as well as "mitigating circumstances".384
Chapter 30 addresses the choice of sanction. Penal value is determined with reference to the "dimensions of harmfulness and culpability"; the assessment of penal value is important not only for the measurement of punishment, but also for the choice of sanction imposed by the court.385 The effect of these provisions is to replace with a legal structure what had been a "black box", such that disparity in sentencing can be identified and addressed.386
According to von Hirsch, the attraction of the Swedish model is that provides a framework for "more principled decisions", while comporting with traditions of "judicial responsibility": courts continue to shape the sentencing tariff, but in rendering their decisions they make recourse to an "explicit body of principles" legislated by Parliament.387 The result is "more reasoned decision making."388 Courts imposing sentence appear to be engaging more often in the type of "explicit reasoning" that the legislation is intended to promote, such as the penal value of the offence, aggravating or mitigating factors, and so on.389
Sweden, then, has put in place a statutory statement of sentencing purpose to
"shape and guide" its sentencing jurisprudence.390 It does so in terms that are specific and clearly laid out, thus constituting "elaborate guidance."391
81 Switzerland, on the other hand, which has one unified penal code at the federal level, along with autonomous procedural systems at the cantonal level, exemplifies a country with no sentencing guidelines.392 There are some "general rules" respecting aggravating and mitigating factors. In the result, judges possess
"wide sentencing discretion".393 There are requirements, however, forjudges to explain the reasons for imposing their sentences, and the criteria upon which the punishment is based. The Federal Supreme Court of Switzerland undertakes the task of reviewing the adequacy of the sentences imposed by the lower courts.
While the Supreme Court does not review sentences perse, it pronounces on the conformity of sentences handed down by the lower courts, and the reasons rendered having regard to the criminal code criteria, and what the Court considers to be a proper interpretation of these principles. In the lower courts, and for "mass offences", such as minor thefts, drunk driving and drug offences, sentencing conventions have also developed on an informal basis.394 The approach in Switzerland of deference to the judiciary in formulating sentencing policy, stands in marked contrast to the detailed legislative provisions which guide sentencing decisions in Sweden.
The Finnish Penal Code contains a chapter on sentencing, which was added in 1976. The express aim of the legislation was "reducing unwanted disparity in sentencing."395 To this end, chapter 6, section 1, directs courts to take into consideration in sentencing "all the relevant grounds for increasing and reducing the punishment and the uniformity of sentencing practice." In addition,
82 the punishment is to be measured such that "it is in just proportion to the harm and risk involved in the offence, and to the culpability of the offender manifested in the offence." According to this general provision, the starting point in assessing the seriousness of the offence is the harm and risk, as well as the culpability of the offender at the time of the offence. Aggravating and mitigating factors are also set out.396 The discretion of courts is also controlled by appellate review and decisions of the Court of Appeals and Supreme Court, which have the power to examine all aspects of the cases that come before them.397
Proportionality, predictability and equality are the central values in the
Finnish legislation; fairness and justness of sanctions are emphasized.398 By directing courts to pay special attention to "uniformity of sentencing practice", chapter 6 mandates that absent special reasons, the sentence imposed should be the "normal punishment", that is, the penal sanction most frequently levied in similar cases. This "notion of normal punishments" is intended to reduce unwarranted disparity by providing courts with a "firm starting point" for their decisions.399 It enhances the "predictability" of the system while promoting
"equal treatment" in similar cases. Moreover, it avoids the legislature having to devise the type of "very detailed guidance" necessary for "concrete standards", which would prove practically impossible to achieve.400 The result is that the
Finnish penal policy has put in place sentencing principles which are designed to ensure that courts impose "just penalties" through the mechanism of internal consistency: offences of similar seriousness receive similar punishments,
83 whereas offences of different seriousness receive punishments which are ranked, correspondingly, in severity.401 In short, there is "widespread commitment to the values of proportionality and predictability in sentencing."402
Thus Finland, like Sweden, has put in place a statutory statement of sentencing purpose to "shape and guide" its sentencing jurisprudence.403 Moreover, it is a
"reasonably coherent statement of sentencing purpose."404
The Dutch Penal Code405 contains few statutory rules, thus providing courts with "wide discretionary power" in choosing the type and severity of sanctions.406 In principle, the choice of sanction is determined by the seriousness of the offence and the aims of sentencing; it is open to the court to choose from among them in individual cases. Various factors may result in an upward adjustment or downward adjustment of sentence. Tak contends that the absence of mandatory rules for sentencing and sentencing guidelines has the potential for
"great disparity in sentencing."407 Appellate courts or the Supreme Court can undo "extreme unjust sentences", but this provides no guarantee of "full equality" in sentencing by the lower courts.408 It also appears that there is less disparity in sentencing for some offences, but this is due to the issuance of prosecutors' sentencing directives, which have a "standardizing effect", and the fact that courts place considerable reliance on the position taken by the prosecution.409
84 8. Conclusion
It is clear that there is a shared recognition among all these various jurisdictions as to the desirability of uniformity in sentencing practices with respect to criminal offences, and the importance of identifying sentencing purposes and principles. It is equally clear, though, that there is no unanimity as to how to best achieve these aims. On one thing there is agreement, however.
The court imposing sentence, like The Mikado, must be guided in its task, whatever that might be, and in whatever form that might take. Otherwise, on what principles is the sentence to be based? For what purposes is punishment to be imposed? And it is not only the court, but all the participants in the sentencing process, that have a keen interest in knowing the answers to these questions.
Stated shortly, the public has the right to an intelligible sentencing system.
The sentencing system governing criminal offences appears, however, to have limited utility as a model for courts that do more than simply impose punishment for morally wrongful behaviour, but instead craft sentences for regulated parties who fail to meet the regulatory standard, and are likely to return to participate in the regulated activity following sentencing. In the criminal offences sentencing model, "individualized sentencing" mandates focus on the party before the court; in the regulatory offences sentencing system, broader societal concerns are engaged. While there are aspects of criminal offences sentencing practices that may be modified for use by regulatory offences courts, such as addressing sentencing purposes and principles through legislation, or
85 the use of guideline judgments by appellate courts, consideration of these issues for regulatory offences must occur within the particular context that such conduct takes place. Consequently, before one can devise a system which is best suited to reflect regulatory offences sentencing purposes and principles, the relevant sentencing factors for such offences must first be identified and examined. It is this issue that is addressed in the following chapter. PART III. DEVELOPING THE FOUNDATION: PURPOSES AND PRINCIPLES OF SENTENCING FOR REGULATORY OFFENCES
Chapter 3. A "special approach" or "barrier of sentencing"? Sentencing for Regulatory Offences
1. Introduction
Regulatory offences are different, conceptually, than criminal offences.
That is, regulatory offences are distinct in that moral blameworthiness is not required, as is the case for true crimes. The essence of most regulatory offences is negligence, leaving it open to the defendant, on the basis of the doctrine of strict liability, to establish due diligence on a balance of probabilities, and exonerate himself/herself. An absence of fault will suffice for regulatory offences of absolute liability; on the other hand, some regulatory offences, like criminal offences, do require a mens rea element. These factors, which are unique to regulatory offences, limit the utility of sentencing considerations with respect to criminal offences.
Upon the punishment phase of proceedings, then, how is it that a court should determine what purposes and principles of sentencing should apply to this eclectic mix of regulatory offences? Does sentencing for regulatory offences constitute a veritable barrier to effective enforcement, as some have suggested, or does the difference between regulatory offences and criminal offences merit a special approach, as others have posited. It will be to these issues that this chapter is devoted. In the following chapter, a matrix of regulatory offences cases
87 in the areas of workplace safety, consumer protection and environmental regulation will be examined, in order to see if the general observations made here respecting sentencing practices and patterns are borne out by reference to the jurisprudence in Canada.
2. Determining Sentencing Purposes and Principles for Regulatory Offences in Canada
The problem that currently confronts sentencing courts in regulatory offences cases is an intractable one. It arises, in part, from the pervasive nature of regulatory offences. Unlike the judge imposing sentence for a criminal offence, who need look no further than the Criminal Code4™ for both a compilation of offences, and statement of sentencing purposes and principles, the justice of the peace or judge presiding over a regulatory offences case faces a much more diverse and unwieldy situation. There are, literally, tens of thousands of regulatory laws, governing every aspect of our lives. Some of these regulatory offences statutes do include, as Archibald et al observe, a statement of sentencing considerations that are "tailor-made to a specific area,411 such as the
Canadian Environmental Protection Act, 1999,412 where the "polluter pays" principle is set out.
But where there are no such sentencing provisions set out, where is the court to turn for guidance? In the case of federal regulatory offences which constitute "contraventions" within the meaning of the federal Contraventions
/Acf,413 the court is to be guided, in fact, by provincial offences legislation, to the
88 extent that it contains any sentencing provisions; in the case of the majority of other federal regulatory statutes, where such a ticketing or "minor offences" procedure is not available, federal regulatory offences are generally enforced through the procedural sections of the Criminal Code, as well as the
Interpretation Act4U Hence, where a particular regulatory statute enacted by
Parliament is "silent" as to its own sentencing principles, the Criminal Code provisions apply, such that its sentencing sections and jurisprudence may be of some assistance. At the same time, though, such provisions apply to criminal offences, as opposed to regulatory offences. As a result, these Criminal Code principles "may not be transferred directly."415
Provincial regulatory offences legislation, on the other hand, is based on a
"simplified criminal procedure model."416 The stated purpose of Ontario's
Provincial Offences Act is to provide a procedure that "reflects the distinction between provincial offences and criminal offences."417 While Part IV of this legislation deals with trial and sentencing issues, no statement of the purposes or principles of sentencing is set out. As such, there is no sentencing guidance that is provided to sentencers. In the words of one commentator in a recent article,
"... unlike the Code, the Provincial Offences Act, the procedural statute that governs prosecutions of provincial offences in Ontario, is silent on the subject of sentencing principles of strict liability defendants, including corproartions."418
Such a contrast in sentencing provisions, added the author, is both "stark and without support in law or public policy."419
89 This "unsatisfactory state of affairs" is compounded where the particular provincial Act "is silent with respect to sentencing."420 While some provincial statutes do contain a list of sentencing considerations, such as the Ontario
Environmental Protection Act42^ which enumerates a list of aggravating factors, such as whether the offence caused an adverse effect or resulted from reckless or intentional behaviour, as well as the defendant's conduct after the commission of the offence, including cooperation with the authorities,422 and British
Columbia's recently enacted Public Health Act,423 which addresses the relevant considerations in determining sentence424 and the purposes of sentencing,425 this is often not the case.
The law of sentencing for regulatory offences has therefore developed, on a default basis, in the courts. It has been left to sentencers to fill in the gaps, with the common law development of sentencing principles, for the vast array of public welfare statutes. Indeed, in some cases the statutory regimes which do apply may serve to frustrate the court's ability to impose a sentence which addresses issues such as the harm caused by the offence, or putting in place measures to prevent future violations of the regulatory standard, an example being the probation provisions of the Provincial Offences Act of Ontario426 which can only be imposed where the proceedings are commenced by information and not the ticketing procedure,427 are not available for absolute liability offences,428 and in some cases requires the defendant's consent to impose conditions, such
90 as community service. In British Columbia, to provide another example, probation orders under the Offence Act430 may be made for no more than six months, thereby frustrating the court's ability to put in place long term court sanctioned remedial and rehabilitation plans.431
It is perhaps due to the increasing complexity of regulatory provisions that courts have identified a list of multiple factors to consider in imposing sentence.
In some cases, over 20 considerations are identified, in what might be referred to as a "summary of sentencing principles" "432 or "shopping list"433 of sentencing factors approach. An example of this is illustrated by Fraser Inc.,434 a water pollution case caused by the defendant's pulp mill. Some 23 factors for consideration were itemized by the court, ranging from the nature of the offence, actual or potential harm, deliberateness of the offence, the attitude of the accused, attempts to comply, ease or difficulty of preventing pollution, technology available, uniformity of sentence, and innovative type of sentencing. A somewhat different approach was taken by the court in a British Columbia case, where the relevant factors were grouped under these categories: circumstances of the offence and circumstances of the offender, as well as factors in aggravation, factors in mitigation and sentencing objectives.435 However, as Archibald et al caution, this "multiple approach" may result in the court losing "sight of the fundamental purposes of sentencing", and perhaps even result in a sentence which is incompatible with the level of risk assessment set out in the legislation.436 Further, as Verhulst notes, it is not clear how the approximately two
91 dozen principles that have been applied for regulatory offences by the courts interrelate, which principles are to be given priority, and which factors are to be considered as aggravating or mitigating.437
These "multiple approach" sentencing decisions originate from trial courts of first instance, and are therefore not binding on other courts as judicial precedent, although they may be considered persuasive or influential. Indeed, there is an institutional limitation that constrains the development of a cohesive jurisprudence for regulatory offences sentencing decisions at the appellate level.
Whereas the Criminal Code provides for sentence appeals with leave of the court,438 the threshold for bringing an appeal against sentence to the Court of
Appeal under the Provincial Offences Act of Ontario is considerably more onerous. According to the Act, "special grounds" are required in order for leave to appeal to be granted.439 This is defined as requiring a judge of the Court of
Appeal to consider that "in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted."440 No further appeal or review may be brought against a decision granting or refusing leave to appeal under the Act.441 There are similar restrictive provisions for appeals to other provincial Courts of Appeal in respect of regulatory offences.
Not surprisingly, this stringent requirement for leave to appeal effectively limits the number of regulatory offences sentencing decisions that reach the level
92 of the Ontario Court of Appeal. It is also an established principle that appellate courts owe considerable deference to the decisions of the courts below in imposing sentence, absent an error in principle, failure to consider or over emphasizing a relevant factor, or the imposition of a sentence that is
"demonstrably unfit" or "clearly unreasonable."442 This, too, acts as a constraint on the ability of the appellate courts to assess the fitness of sentence, given that it is not simply a matter of the appeal court substituting its opinion of what the sentence should be for the particular regulatory offences infraction.443 The dearth of regulatory offences sentencing decisions in the provincial appellate courts bears out the efficacy of these institutional limitations.
3. R. v. Cotton Felts Ltd. and its Legacy
In one of the few sentencing cases to reach the Ontario Court of Appeal,
R. v. Cotton Felts Ltd.,444 the Court, for the first time following the enactment of the Provincial Offences Act (Ont.),445 discussed the principles of sentencing to be applied under the Ontario Occupational Health and Safety Act446. In upholding the $12,000. fine levied by the trial judge in relation to a workplace safety accident case, Blair J.A., on behalf of the unanimous Court, stated:
The Occupational Health and Safety Act is part of a large family of statutes creating what are known as public welfare offences. The Act has a proud place in this group of statutes because its progenitors, the Factory Acts, were among the first modern public welfare statutes designed to establish standards of health and safety in the work place. Examples of this type of statute are legion and cover all facets of life ranging from safety and consumer
93 protection to ecological conservation. In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all. To a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations. The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute. Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence.44*
The Court went on to comment that, in computing the quantum of fine, the controlling principle is that "without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere licence fee for illegal activity."448
In terms of the application of this element of deterrence to others, or
"general deterrence", the Court explained that this sentencing principle operates in a different manner for regulatory offences than it does for criminal offences.
Blair J.A. stated as follows in this regard:
With reference to these offences, deterrence is not to be taken only in its usual negative connotation of achieving compliance by threat of punishment. Recently my brother Zuber in R. v. Ramdass, a judgment pronounced on November 17, 1982, referred to deterrence in a more positive aspect. There he was dealing with a driving offence and he quoted an earlier unreported decision of this Court in R. v. Roussy, [1977] O.J. No. 1208 (released December 15, 1977), where the Court stated:
94 But in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the term deterrent in its widest sense. A sentence by emphasizing community disapproval of an act, and branding it as reprehensible has a moral or educative effect, and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.
This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of our society for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare of the public.449
Since the release of the Cotton Felts Ltd. decision over 25 years ago, the
Ontario Court of Appeal has not issued a similar regulatory offences sentencing decision of general application. What few sentencing cases do reach the Court of
Appeal are generally confined to the facts of the particular matter, as evidenced by a workplace fatality case in 2000 where the Crown appealed against the decision of the provincial offences appeal court that lowered the quantum of fine imposed bythe trial judge from $250,000 to $125,000 on two of the three counts.450 An employee had been killed while mining; the defendant was convicted, at trial, of failing to provide information, instruction and supervision; failing to maintain equipment; and failing to leave a guard to protect workers from a moving part. In restoring the sentence to the fine amount imposed at trial, the
Court of Appeal, in a six paragraph endorsement, simply observed that for offences of this nature, involving the death of an employee, the penalty imposed must be such that it "acts as a deterrent" to both the defendant and "as an example to the mining community as a whole".451 It went on to state that the
95 appeal court below had "diluted the importance" of deterrence by listing it as but one of the dozen factors to be considered in arriving at a fit sentence.452
The Cotton Felts Ltd. decision has also been referred to by other provincial appellate courts in regulatory offences sentencing decisions. The
Alberta Court of Appeal did so in R. v. Terroco Industries Ltd.,453 a case where the defendant was convicted of releasing chlorine gas into the environment, contrary to the Dangerous Goods Transportation and Handling yAcr^and the
Environmental Protection and Enhancement Act455 In its unanimous judgment, the Court identified a number of general sentencing principles that apply in such cases, noting that environmental offences require a "special approach."456 What exactly is this "special approach"? The Court of Appeal enumerated the following five factors as having particular application for environmental sentencing cases:
(1) culpability - which is the "dominant factor" in sentencing for environmental cases, and operates on a "sliding scale": the more diligent the offender, the lower the range of fit sentences; the less diligent the offender, the higher the range of fit sentences;457 (2) prior record and past involvement with the authorities; (3) acceptance of responsibility/remorse; (4) damage/harm - these factors include the "existence, potential, duration and degree of harm" which are to be "fully considered" in sentencing for environmental offences; where actual harm is established, this operates as an aggravating factor, particularly where the harm is a "readily foreseeable consequence of the underlying action";458 and (5)
96 deterrence - that is, a "key component of sentences imposed for breaches of environmental protection statutes should be specific and general deterrence."459
Having set out these special considerations, the Alberta Court of Appeal directed sentencing judges to first consider the "degree of culpability" of the offender. By this, the Court explained, a rigorous assessment of the facts of the
"predicate offence" is required, so as to determine "where the offender's conduct lies on the continuum between virtual due diligence and virtual intent."460 The importance of deterrence was also noted, given that it plays a "considerable role" in determining the appropriate sentence, and that general deterrence is also
"engaged" as others "must be made aware that what may appear to be cost effective but risky behaviour will result in a stiff penalty" were actual harm to occur.461
While the Cotton Felts Ltd. decision concerned a workplace safety infraction, and Terroco Industries was an environmental case, they involved, in common, corporate defendants. In R. v. United Keno Hill Mines Ltd.,462 Stuart
C.J. reasoned that special considerations apply in not only environmental sentencing cases, but for corporate offenders as well. This is due to the "size, wealth, nature of operations and power of a corporation" and the fact that the activities of one corporation "can reach into the lives of people and communities in many parts of the world."463 The Court went on to identify the following factors as having particular relevance for the sentencing of corporations for
97 environmental offences: criminality of conduct; extent of attempts to comply; remorse; size of corporation; profits realized by offence; and criminal record.
Stuart C.J. also questioned the effectiveness of fines as a sanction against corporations, since they are "easily displaced and rarely affect the source of illegal behaviour," and may simply be passed on to consumers or taxpayers.464
Instead, what was required on sentencing are sanctions which could reach the
"guiding mind" of the corporation -the corporate managers, directors or supervisors, since they were the "instigators of the illegality either through willfulness, willful blindness or incompetent supervisory practices."465 In this manner, sanctions would be imposed on the persons most directly responsible for the criminal activity. After all, pollution, as the Court put it bluntly, "is a crime."466
Different sentencing considerations for regulatory offences may thus be relevant for individual offenders, or at least apply differently for individuals than corporations. As Morgan J. explained in R. v. Schulzke,467 there is "a world of difference between an environmental offence committed by a large mining company, for example, caused by that corporate offender's eye towards increasing profits, than with an environmental offence committed by a private citizen with no economic business interests at stake."468 Stich a distinction is particularly germane in terms of the emphasis to be given to the factor of deterrence: a fine calculated to deter a "wealthy corporate offender" will be set at a different level than that for a person with modest economic means.469
98 In the British Columbia Court of Appeal's recent decision in R. v. Abbott, the Court applied the Cotton Felts case to an individual defendant, who was convicted of infractions under the Health Act47^ The defendant had refused to remove a septic tank and sewage disposal field that he had installed on his waterfront property on Vancouver Island; this sewage system was in proximity of a public drinking water source. Fines of $5,000 were imposed at trial on two counts of violating the Act, and a removal order of the septic system was issued as well. The Court of Appeal upheld the sentence, and in doing so rejected the defendant's argument that the removal order was unnecessary, given that no actual harm to the environment had been proven to result from the sewage system he had installed. Stating that the sentencing principles applicable to public welfare offences are generally considered to be denunciation and deterrence, as indicated by the Ontario Court of Appeal in Cotton Felts, the Court pointed out that the circumstances of the offence in question were, in fact, "very serious": there was a threat of sewage infiltrating a public drinking water source with "potentially very serious damage."472 Consequently, the removal order was justified. Kirkpatrick J.A., for the Court, explained:
I am unable to find any error in the approach taken by the sentencing judge or the summary conviction appeal judge to the removal order. Both had in mind the salutary principle that public welfare offences involving the contravention of rules designed and enforced to protect the physical, economic and social welfare of the public will attraction sanctions that are designed to deter the offender and other like-minded persons.473
99 4. Differing Views as to Purposes and Principles of Sentencing for Regulatory Offences
The review of leading regulatory offences sentencing decisions, to this point, illustrates Archibald's assertion that the key principles of sentencing, deterrence and denunciation, and particularly restorative justice and remedial measures in environmental protection cases, emerge principally from the jurisprudence, limited as it may be.474 Benidickson concurs in this assessment, stating that the task of determining the "most appropriate sentencing option" is generally left to the courts. As a result, the principles set out in sentencing decisions are of "considerable importance."475 The author acknowledges, though, that the legislature does have the power to set out the relevant principles of sentencing, and provides, as an example, the Canada Shipping Act,476 which identifies as relevant considerations for sentencing factors such as the harm or risk caused by the offence; total cost of clean-up and mitigation measures; remedial action taken by the offender to mitigate harm; precautions taken by the offender to avoid the offence; and any history of non-compliance with legislation designed to prevent or minimize pollution.477
The "silence" in most public welfare statutes on the issue of sentencing, then, effectively leaves it "entirely within the discretion of the court."478 There are some exceptions to this, particularly in the environmental area. Berger notes that the discretion of sentencing judges has been "further limited"479 by environmental legislation enacted in Ontario480 which prescribes similar aggravating factors in
100 the case of violations of the Environmental Protection yAcr481 and the Ontario
Water Resources ActA82 This list includes in the case of violations under the former, the offence caused an adverse effect, that the offender committed the offence "intentionally or recklessly", and that the offence was "motivated by a desire to increase revenue or decrease costs"483; in the case of latter, aggravating factors include that the offence caused an impairment of water quality, the defendant committed the act "intentionally or recklessly", and that in committing the offence the defendant was "motivated by a desire to increase revenue or decrease costs."484 Indeed, these provincial Acts require the Court to provide reasons if a determination is made that a statutorily enumerated aggravated factor "does not warrant a more severe penalty."485
A 1985 study paper prepared for the Law Reform Commission of Canada,
Sentencing in environmental cases,486 argued, in fact, for a "broader range of penalties" and "wider variety of sentencing tools" to reflect the wide range of offenders and offences which are comprised by environmental laws.487 It was noted, for example, that while some violations may be the result of deliberate, reckless or negligent conduct, others such as offences of absolute liability, might be nothing more than a "reasonable error of judgment."488 Moreover, while the imposition of a fine was the usual punishment for breaches of environmental statutes, the authors queried whether fines, alone, were adequate to cover all the circumstances, given the wide range of activities, effects and degrees of fault.
Indeed, fines may be too broad and too narrow at the same time. The former
101 where the "highest fines" are out of proportion to the means of most offenders and the gravity of "minor infractions"; the latter where they do not reflect some offenders' "extreme wealth" and the "great gravity of a minority of flagrant offences."489 This is exacerbated, in turn, by legislation that tends to incorporate, in a single statutory provision, what are separate environmental offences, which offences include different degrees of gravity and a wide range of conduct, without taking into account the ability of offenders to pay.490 A fine may be inadequate in some cases because it is unclear what the long-term impact of an accidental spill or emission will be; in other cases a fine may be inadequate due to the offender's ongoing behaviour and financial resources.
This Law Reform Commission Report identifies a further "conceptual problem" that is related to its discussion of the limitation of fines as a sanction for environmental offences. That is, there is "no consensus on the appropriate sentencing principles or the factors to be taken into account in sentencing and the relevant weight to be given different principles or factors."491 It is not clear, the authors observed, whether offences which are true crimes should be "treated differently" than regulatory offences in terms of the applicable sentencing principles and factors. By way of example, it was queried whether punishment was "capable of achieving rehabilitation or deterrence in environmental cases," or how might the victim be "taken into account in sentencing."492 To the extent that such factors merited consideration, the question, then, was to what degree was this to be done in the case of regulatory offences.
102 The authors of this Report concluded their introductory comments by stating that while courts frequently based their sentences on "deterrence", without attempting to reconcile these issues, it was important to address these
"underlying principles" so as to determine whether the goals of the prosecution had been achieved, namely, "prevention, abatement, restoration of the environment, and restitution to victims, as well as punishment of offenders."493
Writing 20 years before the enactment of the statement of sentencing purposes and principles to the Criminal Code, it was observed that the four objectives in criminal cases, protection of the public, retribution or punishment, reform and rehabilitation, and deterrence, were recognized in sentencing decisions for both environmental offences and criminal offences. However, it was not apparent as to how one was to decide between them, especially in cases where these objectives appeared to be "appropriate", but "incompatible" with each other.494
As one of the first commentators to touch on the importance of sentencing principles and purposes for public welfare offences, the views of the Law Reform
Commission are particularly significant. While the Report generated by the
Commission focused on environmental offences, it has been observed that such offences constitute "paradigmatic examples of regulatory offences."495
Environmental legislation provides a "particularly rich and informative counterpoint to so-called criminal legislation"; however, the observations and
103 analysis that may be gleaned from such provisions might well be said to apply to a "whole range of regulatory laws."496
The Law Commission's Report noted that very few attempts had been made in environmental cases to "articulate the relationship between underlying objectives such as retribution and deterrence and the relative weight to be given to them in different kinds of cases."497 While some decisions, such as United
Keno Hill Mines Ltd., 498 set out a "shopping list" of general principles and specific factors for sentencing on environmental cases, it appeared that a "different" or
"special" approach was required, especially where the polluters were corporations. After enumerating the sentencing factors from the case law, such as extent of potential and actual damage, intent, savings or gain derived from the offence, size and wealth of the corporation, and contrition or remorse, the Report turned to the issue as to whether sentencing "in public welfare cases generally, and environmental cases specifically, requires a different approach from sentencing in criminal cases."499 In its view, the most important differences in sentencing were "practical rather than theoretical considerations", which flowed from the fact that most polluters were corporations, and not individuals, and that the risk of pollution was "inherent in many otherwise socially useful activities and can be difficult or close to impossible to control."500 Hence, a "difference in emphasis" was appropriate on sentencing to reflect the difference between criminal offences and public welfare statutes: the latter were primarily offences based on negligence, and as such tended to lend themselves more to "general
104 deterrence, to consideration of actual and potential damage, to the role of the victim, and to a wider array of sanctions aimed at prevention and restitution or compensation."501
Commenting on the Law Commission's Report, Chappell echoed the concerns that, with few exceptions, courts were generally reluctant to impose substantial or innovative penalties in environmental cases, thus posing a "barrier of sentencing" to effective enforcement strategy.502 Chappell went on to observe that in order to produce a change in such views, "greater guidance" was required by the legislature respecting the "exercise of sentencing discretion."503 A sentencing commission was mentioned as one means of providing such guidance, as was the use of guidelines tailored to environmental offences, such as those in use in the United States.504 The author noted, however, that the possible need or use for such sentencing guidelines or "more formal curbs on judicial discretion" when sentencing environmental offenders in Canada, had not been addressed by the Law Commission in its Report.505
A point of departure, then, between the approach advocated by Swaigen and Bunt in their study paper for the Law Reform Commission, and Chappell's observations as to judicial officers and sentencing, is the latter's identification of the issue as being not so much to make courts take public welfare offences
"more seriously", but the desirability of providing a framework for how sentencing for such offences should be approached. In the result, sentences that are
105 different, and in some cases more stringent, might well be imposed. Hughes explains the distinction thusly: the "principles" of sentencing in environmental cases are not necessarily different from those in criminal cases, but what is different is the "way" in which these sentencing principles are applied.507
Another commentator, Wilson, questioned whether the Law Reform
Commission's recommendations with respect to the continued use of "traditional sanctions" such as fines and imprisonment for preventing pollution, were effective for artificial entities like corporations.508 He proposed, instead, the use of civil law remedies as being more flexible and effective, including, divestiture, licence revocation and probation. Such "structural remedies'' would permit the court to "restructure" the offender so as to prevent repetition of the offence.509
This would also provide an effective means for dealing with the reluctance of the courts to impose "large penalties" for pollution, which was regarded as merely a regulatory offence. Indeed, it appeared that strict liability offences, "by their nature, are not consistent with excessive penalties."510 Most corporate wrong doing, as noted by Puri,511 is not prohibited by the Criminal Code,5™ but by numerous regulatory statutes such as the Competition Act,5n the Canada
Business Corporations Act,514 the Ontario Business Corporations Act,515 the
Income Tax Act,516 occupational health and safety legislation, health and safety acts, environmental protection statutes, provincial securities acts, and the like.
Corporate structures which are deliberately set up as shells without assets, so as to be shielded from paying fines, frustrate enforcement of these regulatory
106 regimes.517 Moreover, it has been observed that unless "violators" are subject to escalating penalties for infractions of regulatory statutes, others will not voluntarily comply since they will be at a "competitive disadvantage with non- compliers."518
A recent article by Verhulst directly addresses the issue as to whether or not there should be a statement of sentencing purposes and principles for regulatory offences generally.519 Noting that the Government of Canada's response to complaints that sentencing for criminal offences in Canada lacked a principled, uniform approach, was to enact s.718 of the Criminal Code so as to legislate purposes and principles of sentencing, Verhulst observes that no similar amendments have been made to provincial statutes of general application, such as the British Columbia Offence Act,520 which contain sentencing provisions specific to the regulatory context. As a result, there is no guidance provided to courts "as to how sentencing should relate to the regulatory objectives the legislators desire to achieve."521 Where sentencing provisions are set out in a particular piece of legislation, as was recently done under the British Columbia
Public Health Act,522 the application of these sentencing sections is confined to that statute. Moreover, while courts have endeavoured to create "some uniformity of approach" by developing principles of sentencing for regulatory offences, inconsistency "clearly remains."523
107 The preferred approach, in Verhulst's view, is for legislators to assist the courts in achieving a "consistent and principled approach" in sentencing for regulatory offences so that it "aligns that part of the regulatory process with the underlying regulatory goals."524 The mechanism for doing so, in British Columbia, would be to amend the Offence Act525 and put in place general principles to be applied during the sentencing process, as well as expanding the list of available sanctions to permit "greater flexibility" of sentencing dispositions.526 Verhulst also contends that within the respective public welfare statutes, there should be included by the legislature, authority for "specific sanctions" or "guidance" that will assist the courts in achieving the regulatory objectives sought to be achieved. In her view, while legislation does not provide the sole means of addressing important sentencing issues, it does have a role to play. Stated shortly, in enacting laws, legislators seek to "achieve particular goals"; courts should be provided by the legislators with the means of achieving "those goals through sentencing."527
Sentencing in the context of regulatory offences is part of a "cycle",
Verhulst observes, unlike the case of criminal offences.528 The identification of regulatory goals starts the cycle, which then moves to drafting and implementing regulatory provisions in support of these objectives. Where a person engaged in a regulated activity is found in violation of such a provision, an enforcement strategy is to.bring a prosecution, after which sentencing follows in the event of a conviction. However, the cycle does not terminate at this stage necessarily,
108 except in the case of a disposition such as licence revocation or "permanent incapacitation"; instead, the offender is usually permitted to continue to participate in the regulated activity. Hence, courts should impose a sentence that takes this regulatory cycle into account, and in so doing "actively participate in achieving regulatory goals."529 In order to do so, however, courts must
"understand the regulatory scheme" and the offender's place within it, so as to be better able to "craft sentences that seek to align offenders' behaviour with those goals."530
The goal of designing sentences which further the "regulatory goals of the legislators" requires courts to embark on the following five steps: (1) encouraging the parties to make joint submissions on aggravating and mitigating factors, and the sanctions to be imposed, so as to provide the court with a "clear basis for sentencing"531; (2) the "first priority", to the extent that it is "possible and reasonable", should be to impose a sanction that remedies the violation, thereby giving effect to the principle of remediation; consequently, probation orders and community service orders should be the "first choice of sanctions", rather than simply imposing a monetary penalty, since fines are "divorced from the offence, the offender, and the regulatory goals," and are often regarded as a "fee for non compliance"; 532 (3) the "second priority", if it is likely that the offender will continue to engage in the regulated activity following sentencing, but there must be a change in the offender's behaviour in order to prevent future violations, should be for the court to impose a sanction to promote the necessary changes,
109 thereby giving effect to the principle of rehabilitationr ; (4) where the court is satisfied that the sanction would serve "a purpose that is consistent with the regulatory objective", and if the totality of the sentence would not be disproportionate due to any sanctions already imposed for the purposes of remediation and rehabilitation, the court should impose a sanction that will promote change in the behaviour of other persons, thereby giving effect to the principle of general deterrence534; and (5) where there are "sufficient aggravating factors" that make it appropriate, the court should impose a sanction that denounces and punishes the offender's behaviour, thereby giving effect to the principle of punishment535
Amendments to the Offence Acf36 would be made so as to require courts to consider these steps, in order, as well as to provide for a wider variety of sentencing dispositions, particularly in the area of probation and community service orders. The advantage of such an approach, as opposed to the statement of general sentencing principles under s.718 of the Criminal Code537 which provides "no guidance on how to resolve the conflict" between the principles and purposes, is that there is a clear priority to the various principles of sentencing, while providing courts with a "single, guiding purpose: to further the regulatory objective."538
The recently enacted British Columbia Public Health Acf539 provides an example of the approach advocated by Verhulst, that is, to legislate the principles
110 and purposes of sentencing in a regulatory context. In the section entitled
"determining sentence", the court is given the authority, before imposing a sentence, to request a joint submission from the offender and prosecutor, setting out any agreement on the circumstances that should be considered by the • sentencing judge as either mitigating or aggravating the offence, and the penalty to be imposed.540 The court is expressly directed to consider, in determining the appropriate sentence, circumstances that aggravate or mitigate the offence.541
There is also the requirement that the court consider the purposes of sentencing,542 and, to give effect to those purposes, to first consider as a penalty an order for "alternative penalties"543, such as community service for up to three years or paying compensation for the cost of remedial or preventive action, and second, to consider whether a fine or incarceration544 is also necessary.545
Section 106 of the legislation sets out the purposes of sentencing. It is stated that in imposing sentence, the sentencing judge may impose one or more penalties that, in order, achieve the following: first, if harm was caused, remedy the harm or compensate a person who remedied or suffered the harm, including the government, or, if no harm was caused, acknowledge the potential harm or further the regulatory objective underlying the provision that was contravened;546 second, if the offence was committed in relation to a regulated activity, or other activity, in which the offender is reasonably likely to continue to engage, rehabilitate the offender.547 The court is not permitted to impose any additional penalties if it would be "disproportionate to the offence", having regard to the
111 offender, the nature of the offence, and the totality of the offences imposed under the section.548 However, such a penalty may be imposed for the "purpose of achieving general deterrence" where the sentencing judge "reasonably believes that the additional penalty would have a deterrent effect, including because: the penalty imposed for the purposes of remedying the violation or rehabilitating the offender is inadequate to address the circumstances of the offence, or the nature of the penalty may assist others "similarly situated to the offender to avoid committing a similar offence" or educate others "similarly situated to the offender respecting the seriousness of the offence."549 Finally, a sentencing judge may impose a penalty for the purposes of punishing the offender if he/she committed the offence "knowingly or deliberately, or was reckless as to the commission of the offence" or "sufficient aggravating circumstances exist" such that the offender should be punished for the offence.550
The British Columbia Public Health Acf51 thus illustrates how the legislature can provide guidance to courts in fashioning sentences that reflect the purposes and principles of sentencing for regulatory offences, at least in relation to a specific statute. Jull cites another legislative response in a discussion paper on market surveillance administrator proceedings before the Alberta Utilities
Commission.552 Noting that the statute in question, the Alberta Utilities
Commission Act,55Z provides for administrative penalties of up to $1,000,000 for each day or part of a day on which the contravention occurs or continues,554 without specifying any intermediate ranges, Jull queries whether, "as a policy matter, is it wise to create ranges of penalties for certain types of infractions?"555
112 In response, Jull observes that most enforcement regimes contain categories of penalties that reflect the "gravity of different types of offences and specific fact situations."556 In fact, there are a number of techniques that are open to the legislators to employ in this regard, and thus provide guidance to courts in imposing penalties, under the particular statute. Referring to the federal
Office of the Superintendent of Financial Institutions Act,557 it is noted that
Cabinet is given the authority to make regulations by subject matter, namely, classifying each violation as a "minor violation", a "serious violation" or a "very serious violation",558 and to set a penalty, or range of penalties, in respect of each category of violations.559 The corresponding maximum penalties reflect these three different categories: in the case of a violation committed by a person,
$10,000 for a minor violation, $50,000 for a serious violation, and $100,000 for a very serious violation;560 in the case of a violation committed by an entity,
$25,000 for a minor violation, $100,000 for a serious violation, and $500,000 for a very serious violation.561 The legislation also addresses the criteria for determining the amount of the penalty. Four such factors are specified: (1) the degree of intention or negligence on the part of the person who committed the violation; (2) the harm done by the violation; (3) the history of the person who committed the violation in terms of prior violations or convictions under a financial institutions Act within a five year period preceding the violation; and (4) any other criteria prescribed by regulation.562
113 Accordingly, one technique that is available to legislators is to enact regulations that set out in a schedule a list of various sections of a statute, or perhaps even groups of statutes, and assign to them penalty categories such as minor, serious, or very serious. This, in turn, would guide courts in devising a corresponding sanction. While Jull's comments are proffered in respect of administrative penalties which extend from $0 - $1,000,000, with no intermediate range in between, the same broad and unstructured penalty ranges apply to many public welfare statutes, such as making a misleading statement under the
Ontario Securities Act563 which carries a maximum penalty of a fine up to
$5,000,000, or to imprisonment for up to five years less one day, or to both.564 It would also be open to the legislators to devise categories based on the
"magnitude of the maximum penalty".565 This method would allow regulators to elect which category of penalty is being sought in a particular case, and to tailor the penalty to a given fact situation. Once such ranges of maximum penalties are identified, this would help serve as a "distinguishing point" between minor, moderate and more serious infractions under the regulatory regime. Courts, in turn, would have a basis to distinguish between the seriousness of the offence in imposing sentence, in much the same way that the prosecutor's election in criminal cases to proceed by summary conviction or indictment exposes the offender to different penalty ranges upon conviction, and is thus a relevant consideration in sentencing.566
114 In summary, while the state of sentencing for regulatory offences in
Canada may not be in "chaos", it certainly appears that there is in the courts a lack of uniformity, and marked inconsistency, in applying sentencing purposes and principles to such offences.567 Indeed, how could it be otherwise, one might wonder, given the absence of any legislative rationale or guiding principfe in sentencing provisions for most regulatory offences. The situation bears many similarities, in fact, to that in the criminal courts prior to the 1996 amendments to the Criminal Code,568 when a statement of sentencing purposes and principles was enacted, for the first time, so as to provide legislative guidance to sentencers of criminal offences. Indeed, the Law Commission of Ontario in its recently released consultation paper, The Modernization of the Provincial Offences Act, has posed questions whether the Ontario Provincial Offences Act should contain sentencing purposes and/or sentencing principles, and, if so, what those purposes and/or principles should be.569 This lack of a sentencing rationale in the
Ontario legislation has also been noted by Keith in a recent article on the sentencing of corporations convicted of strict liability offences.570
5. Sentencing Purposes and Principles for Regulatory Offences in the United States
The approach to sentencing for regulatory offences in the United States provides a marked contrast to that in Canada, given that the federal sentencing guidelines are made applicable to many regulatory offences, and not just criminal offences. Pollock explains that environmental offences, for example, are grouped
115 in certain categories for which a "base penalty" is designated. The base level reflects the seriousness of the least egregious group of offences within the category; the base level is then adjusted upward or downward, depending on the circumstances surrounding the offence, to produce the final offence level. It is this final offence level which, in combination with the offender's criminal history, results in the sentence that the court must impose. Pollock comments that these
"rigid guidelines" have had the effect of removing virtually "all discretion" for sentencing in environmental cases.572
For individuals, there are three categories of environmental offences: (1) the most serious being offences involving knowing endangerment which results from the mishandling of hazardous or toxic substances, pesticides or other pollutants; (2) offences involving the mishandling of hazardous or toxic substances, as well as record keeping offences; and (3) offences involving other pollutants, including those not considered hazardous or toxic by legislation. Once the offence is placed in the appropriate category, and is adjusted to the specific offence characteristics, the offence level is further adjusted according to five factors which are set out in the guidelines: (1) nature of the victim of the crime;
(2) role of the defendant in the offence; (3) whether there was attempted or actual obstruction of the administration of justice; (4) whether the defendant was convicted on multiple counts; and (5) whether the defendant has accepted responsibility for the offence. These calculations result in an "adjusted offence level", after which the defendant's criminal history is calculated as to produce a
116 "score" which is an assessment of the need to increase the sentence to deter him/her from further criminal activity.573
Pollock observes that the sentencing process for individual offenders who commit environmental offences in the United States is thus "dramatically different" than in Canada.574 Whereas Canadian courts rely on "past precedent and judicial discretion" to arrive at a fit sentence, judges in the United States employ a "mechanical formula" to promote consistency and predictability in sentencing, while providing for a limited degree of discretion.575 In the former, a wide variety of sentencing factors may be taken into account, as set out in the
United Keno Hill Mines decision576; in the latter, judges are limited in the factors to be considered when sentencing an individual offender convicted of an environmental offence. The result, according to Pollock, is that the "harsh treatment" of environmental offenders by the United States Sentencing
Commission makes it "extremely likely" that a corporate executive will be imprisoned, as opposed to the case in Canada where this is unlikely to happen, but for the "most egregious violations."577
On the other hand, in terms of the sentencing of corporate offenders convicted of environmental offences, it appears that there is "very little difference" between the approach taken by courts in the United States and Canada.578
According to Pollock, both jurisdictions consider, in common, the following factors in such cases: the seriousness of offence, the circumstances surrounding its
117 commission, past corporate history, size of the corporation, measures taken to prevent repetition of the offence, and the amount of illegal profits. Imposing sentences that emphasize public protection, and deterring offenders from commiting further offences, are important sentencing principles in both jurisdictions.579 One difference, however, is that courts in the United States are directed to take into account the ability of corporate offenders to pass on the expense of the fine to consumers or others. In such cases, the court may decline to levy a fine, and consider instead alternative sanctions, such as placing the corporation on probation.580
Other commentators argue that despite the federal sentencing guidelines, there is still a significant degree of "inconsistent results for seemingly similar offences" for individuals convicted of environmental infractions.581 It is noted that while the guidelines require judges to view environmental crimes more seriously than in the past, it remains the case that many offenders are sentenced to minimum periods of jail or probation.582 This criticism is echoed by Barrett, who asserts that lenient sentencing practices have continued on account of the application notes which accompany the environmental sentencing guidelines, and are used to justify circumstances which allow for downward departures from the guidelines.583 In the result, environmental crimes are being treated as "mere regulatory annoyances", as opposed to "serious crimes," as they were intended.584 This contrasts with the comments of the United States Court of
118 Appeals, Fourth Circuit, in United States v. Ellen, a case of illegally discharging pollutants into wetlands, where it was stated:
The Sentencing Commission acted well within its discretion in classifying the instant offence as a serious one. Through the Clean Water Act and other environmental laws, Congress has determined that harm to the environment - even absent imminent threats to public health, welfare or safety - is a public policy concern of the greatest magnitude.586
O'Hear argues that the environmental guidelines are open to the criticism that they are inadequate in both protecting "low culpability" offenders from jail, as well as ensuring that "high culpability" defendants receive more substantial sentences.587 The reason for this, he argues, is that the guidelines fail to mandate a "broad inquiry" into basic culpability factors such as harm, dangerousness and intent: important culpability considerations, such as intent, are not considered, whereas other considerations, such as harm, are measured
"inconsistently and arbitrarily", thereby creating the risk that low culpability offenders who commit technical or inadvertent breaches of the law will receive lengthier terms of imprisonment than high culpability defendants.588
There are further "overarching" weaknesses in the environmental sentencing guidelines that O'Hear contends limits their effectiveness. These are the failure to identify any controlling purpose or principle; the failure to recognize culpability factors respecting intent and legitimacy; and the failure to present a
"coherent approach" to culpability factors such as dangerousness and harm. On
119 a general level, the guidelines identify no purpose that is to be served in sentencing a defendant convicted of an environmental offence. More specifically, there is no "clue" provided in the guidelines as to why the factual circumstances that the court is required to take into account have been deemed relevant by the
Sentencing Commission.589 In the absence of such "true guidance", there is a risk that the sentencing jurisprudence for environmental offences may develop in an "incoherent fashion", and thus potentially defeat any purposes that the
Commission did intend. Further, the public, defendants and victims alike, will lack confidence that sentences imposed for environmental violations reflect the
"principled balancing" that is required in the sentencing process.590
In terms of the importance of culpability factors, O'Hear notes that while the environmental guidelines lack "explicit principles", defendants convicted of environmental offences do receive sentences which are proportionate to the type of harm they have caused or threatened (the "harm principle"), as well as the likelihood that such conduct would cause harm (the "dangerousness principle").591 However, by failing to consider the element of intent, there is the danger that an offender who acts "purposely to cause harm" may be treated in the same manner as one who acts "negligently"; by failing to consider the issue of "legitimacy", there is the danger that an offender who acts on a "justifiable misunderstanding" of the law may be treated in the same manner as one who acts "in knowing defiance" of the law.592 Environmental law, O'Hear concludes, criminalizes a "vast range of conduct", from very low culpability to very high
120 culpability, and there is a need for the environmental guidelines to make sentencers engage in a broad inquiry into the factors of harm, dangerousness and intent.593
Environmental regulation, as noted earlier, is but one area of public welfare legislation, albeit with an increasingly high profile and escalating penalty provisions. This is not necessarily the case with other regulatory offences in the
United States. Indeed, an important characteristic of public welfare offences involves the nature of the penalties set out under the statute: the penalty which is imposed may be regarded as the "starting point" from which to determine if the legislation is a "traditional" public welfare statute.594 The cases that first defined public welfare offences were characterized by statutes that typically imposed
"light fines for violations, not prison terms."595 Courts, in turn, when dealing with such offences that did not require the traditional requirement of mens rea, would
"often hesitate to inflict heavy criminal penalties upon one who may have unknowingly become a criminal," thereby exhibiting a "distaste for strict liability."596 Hence, as the United States Supreme Court noted over fifty years ago, under public welfare statutes "penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation."597 Indeed, a study of violations under occupational health and safety legislation found that in 1975, the average fine per infraction was only $26, with the average number of inspections per firm being .02, thereby implying an expected fine per violation of
52 cents.598 On the other hand, the implementation of the sentencing guidelines
121 has "substantially increased" the likelihood that some period of imprisonment will be imposed "for all but the simplest offences."599
The federal sentencing guidelines are subject to another limitation as they relate to public welfare offences: they only apply to those offences that are enumerated within their ambit. That is, while portions of the guidelines relate to offences involving food and drugs,600 the environment, conservation and wildlife,601 and taxation,602 other categories of regulatory offences, such as motor vehicle infractions, are excluded. As a result, sentencing practices for such matters, which were described by a pre-guidelines commentator to "vary seriously from city to city and from time to time in the same city," have not been addressed, at least not by the federal sentencing guidelines, although state guidelines may apply.603 Indeed, traffic accidents are so prevalent in the United
States that the National Highway Traffic and Safety Administration annually publishes a "Crime Crash Clock", which shows that individuals are much more likely to be involved in a motor vehicle collision than to be a victim of crime.604
The United States sentencing guidelines, then, much like Canadian legislation, such as the Canadian Environmental Protection Acf05 or the British Columbia
Public Health Act,606 are subject to the same limitations inherent in statutes which are not of general application: their provisions have no impact beyond their immediate scope.
122 6. Sentencing Purposes and Principles for Regulatory Offences in the United Kingdom
Sentencing purposes and principles for regulatory offences have also generated considerable interest and debate in the United Kingdom, both in the jurisprudence and academic literature. Verhulst's607 proposal to amend the
British Columbia Offence Acf08so as to permit the sentencing judge to request that the offender and prosecutor present a joint submission respecting mitigating and aggravating circumstances, as well as the penalty to be imposed, as was subsequently done under that province's Public Health Act,609 follows the practice encouraged by the English Court of Appeal, Criminal Division, in R. v.
Friskies Petcare (U.K.) Ltd.™, a case involving a Health and Safety Acfu prosecution. The Court considered, in fact, that the problem in sentencing in such cases was not that the applicable sentencing principles are not well known, but rather that disputes might occur as to "whether the lower court sentenced upon the basis on which the case was presented to it."612
In Friskies Petcare (U.K.) Ltd.™ the Court of Appeal, Criminal Division, made reference to one of its previous decisions, R. v. F. Howe & Son
(Engineers) Ltd.,6U stating that it set out the "typical, but not exclusive aggravating and mitigation circumstances that may apply in any particular case."615 It too was a case of a company being fined for breaches of the Health and Safety at Work etc. Act, 1974™ where there had been a fatal accident to an employee who was electrocuted while cleaning the appellant's factory. Fines
123 totaling L.48,000 (U.K.) and costs of L.7,500 (U.K.) were imposed, following its guilty pleas to four offences under the Act. The Court took the opportunity to make some general observations about cases of this nature, acknowledging that
"disquiet has been expressed in several quarters that the level of fine for health and safety offences is too low", and that there was merit in such a contention.617
Indeed, there was an "increasing recognition in recent years of the seriousness of health and safety offences."618
While noting that each case must be considered according to its own particular circumstances, the Court proceeded to set out some of the relevant factors that should be taken into account on sentencing. In assessing the gravity of the breach of the statute, the Court noted that it is often helpful to look at "how far short of the appropriate standard" the defendant fell in failing to meet the
"reasonably practicable test."619 While it is often a "matter of chance" whether death or serious injury results from even a serious breach, the penalty should reflect "public disquiet at the unnecessary loss of life."620 Another seriously aggravating factor arises where the deliberate breach of health and safety legislation occurs "with a view to profit."621 The Court went on to point out that the standard of care imposed by the legislation is the same regardless of the size of the company: a person who uses a circular saw should be no less safe working for one company than another. Other matters stated to be relevant on sentencing were the degree of risk and extent of the danger created by the offence; the extent of the breach or breaches, that is, whether it was an isolated incident or
124 continued over a period of time; and the resources of the defendant and the effect of the fine on its business. Particular aggravating features were further stated to include a "failure to heed warnings", and where the defendant has
"deliberately profited financially from a failure to take necessary health and safety steps or specifically run a risk to save money."622
On the other hand, mitigating factors were said to include: (1) the "prompt admission of responsibility" and a "timely plea of guilty"; (2) steps to remedy deficiencies after they are made known to the defendant; and (3) a good safety record.623 The Court also observed that any fine should reflect not only the gravity of the offence, but also the means of the offender, including corporate defendants. To this it was added:
The objective of prosecutions for health and safety offences in the work place is to achieve a safe environment for those who work there and for other members of the public who may be affected. A fine needs to be large enough to bring that message home where the defendant is a company not only to those who manage it but also to its shareholders.624
The Court went on to conclude that the circumstances of the instant case dictated a "substantial penalty" as it was a "bad case": there appeared to have been a "flagrant disregard" for the safety of the defendant's employees; corners
"were cut" and "no real attention was paid to electrical safety."625 However, as the company was small and had limited resources, the total fines were varied to
L. 15,000 (U.K.), with no change to the order for costs; the financial penalty
125 imposed on the appellant company was thus reduced, in totality, from L. 55,500
(U.K.) to L.22,500 (U.K.). The result of this disposition is that in a leading English decision on sentencing principles for regulatory offences, a reduction of fine quantum by more than 50% was sanctioned, notwithstanding the serious aggravating factors that were said to be present.626
The observations made by the Court of Appeal, Criminal Division, in these
English decisions do illustrate, though, that appellate guidance may be provided to sentencers in regulatory offences decisions. However, both Friskies Petcare
(U.K.) Ltd.627 and F. Howe & Son (Engineers) Ltd.628 were cases involving appeals from the Crown Court, and not from sentences imposed by magistrates where, as Thomas notes, the "vast majority" of public welfare offences and other criminal offences cases are heard.629 While there are many cases where the sentences imposed by the Crown Court could also have been dealt with by magistrates' courts, the Court of Appeal, Criminal Division, hears such cases along with those involving "grave sentences for serious cases", and is therefore unlikely, according to Thomas, to view these cases as providing the opportunity to "educate" magistrates in the application of sentencing principles, such as through illustrating their application to the types of cases heard by magistrates on a daily basis.630
Thomas also notes that while a system therefore exists for developing and refining sentencing principles for Crown Court matters at the Court of Appeal
126 level, for sentencers in magistrates courts no adequate equivalent exists, notwithstanding the fact that the need for appellate guidance is greater for a variety of reasons, such as the larger number of individual sentencers involved, including lay-persons, and that the bulk of all criminal litigation, including public welfare offences, takes place before magistrates.631 The fact that the Court of
Appeal's jurisdiction does not "extend downward" to magistrates' courts where the majority of such cases are heard has been described by Kapardis as a "major weakness" in the use of case law techniques of structuring sentencing discretion in the English system.632 While the Sentencing Guidelines Council has formulated sentencing guidelines for magistrates,633 and most recently published sentencing guidelines on corporate manslaughter and health and safety offences causing death,634 these guidelines do not specify regulatory offences generally, or other discrete areas which are within the jurisdiction of magistrates, such as environmental offences, and are therefore of limited utility.
The concerns expressed by Kapardis are also echoed by Acres, who states that while the traditional objectives of sentencing are well known, their application in magistrates' courts is "open to question."635 Whereas the Crown
Court presides over "professional criminals", including bank robbers and large scale drug importers, and such sentencing principles therefore appear to be apt, magistrates, on the hand, deal with less serious matters and possess sentencing powers which are more limited, such that their principal sentencing function is denunciation, or as Acres puts it, "absorbing the anger and anxiety of society."636
127 Moreover, it is difficult to achieve consensus as to the relative seriousness of such lesser offences. As a result, there are many instances where motor vehicle offenders, for example, are given more severe sentences than those who commit crimes of violence or dishonesty.
In other cases, such as consumer protection offences, it is contended by
Cartwright that the fines imposed for these strict liability offences are usually
"inadequate".637 In short, securing consistency in sentencing practices in the magistrates' courts gives rise to "intractable problems."638 Hood observes, in turn, that this lack of agreement as to which categories should be used to classify offences or offenders in relation to sentencing, produces disparity in sentencing practices in magistrates' courts and other lower courts: there are neither "explicit legal rules indicating the kinds of sentence appropriate to different types of cases", apart from statutory maximum penalties, nor generally agreed upon set of objectives or general aims of sentencing.639
This lack of agreement on sentencing objectives among courts for public welfare offences is by no means restricted to magistrates' courts. There is much criticism as to how such principles and purposes of sentencing are applied, no matter the level of the court. In an editor's note accompanying the text of a
Crown Court decision, R. v. Severn Trent Water Ltd.,640 said to be the first prosecution of a water undertaker for supplying water which was unfit for human consumption, contrary to the Water Industry Act 1991,^ it was lamented that
128 "U.K. courts currently receive no formal guidance on sentencing for environmental offences."642 Indeed, in a subsequent decision, R. v. Milford
Haven Port Authority,643 a pollution case under the Water Resources Act 1991,644 the Court qf Appeal, Criminal Division, declined to issue sentencing guidelines for environmental offences, notwithstanding the recommendation from the newly- created Sentencing Advisory Panel that it do so.645
The Milford Haven Port Authority case involved a tanker, the Sea
Empress, which ran aground while sailing into the port of Milford Haven. It was under the supervision, at the time, of a professional pilot who was employed by the Port Authority; the ship was carrying a cargo of about 130,000 tons of North
Sea crude oil. The grounding was caused by a "serious navigational control error" on the part of the pilot.646 As a result, over 72,000 tons of crude and a quantity of bunker oil spilled from the tanker, causing widespread pollution in the
Milford Haven and to coastal waters to all sides. In fact, it constituted one of the largest oil spills ever recorded.The Port Authority entered a guilty plea to a count of causing polluting matter, the oil, to enter controlled waters. It was ordered to pay a record fine of L. 4,000,000 (U.K.) and assessed costs of L. 825,000. (U.K.).
An appeal was subsequently brought by the Port Authority against the quantum of the fine.
Prior to the release of the Court of Appeal's judgment in Milford Haven
Port Authority, the Sentencing Advisory Panel published its first advice to the
129 Court of Appeal.647 Under the provisions of the Crime and Disorder Act, 1998,648 a duty is placed on the Court to consider framing or revising guidelines whenever it is considering an appeal against sentence; the Sentencing Advisory Panel proposed, in turn, that the Court should issue a sentencing guideline judgment on environmental offences.649 The Panel observed in its advice that there were two
"main barriers" inhibiting fairness and consistency in sentencing for environmental offences: (1) judges and magistrates often have "little experience" with such offences because most breaches of environmental regulations are dealt with through administrative procedures; and (2) the range of defendants, from individuals and one-person firms to multi-national companies, makes it
"more than usually difficult to ensure that they are all treated fairly."650 These factors, in the Panel's view, underlined the "desirability of guidelines from the
Court of Appeal."651
The Panel's proposal for sentencing guidelines from the Court of Appeal for environmental offences was intended to address three particular issues: (1) clarifying the sentencing principles for such offences; (2) helping the courts achieve consistency in assessing the seriousness of a particular offence, by identifying the relevant aggravating and mitigating factors; and (3) providing guidance on the choice of sentence, and on setting the appropriate fine level.652
To this end, aggravating factors were set out, relating to the culpability of the defendant, such as the offence being a "deliberate or reckless breach of the law" as opposed to being due to carelessness;653 the actual or potential extent of the
130 damage, such as the pollutant being "noxious, widespread or pervasive, or liable to spread widely or have long-lasting effects";654 and the defendant's record for previous convictions for similar offences.655 Mitigating factors included those that reduced the seriousness of the offence, such as the fact that the individual defendant "played a relatively minor role in the commission of the offence" or that the offence was an "isolated lapse";656 and "personal mitigating factors", such as the defendant's "prompt reporting of the offence and ready co-operation with the enforcement authorities," as well as a timely guilty plea.657
The Sentencing Advisory Panel also addressed the issue of the choice of sentence, observing that a fine should generally be the "starting point" for sentencing both persons and companies for environmental offences, given that such offences are non-violent and "carry no immediate physical threat to the person," and are usually committed in situations where "the defendant has failed to devote proper resources to preventing a breach of the law."658 The general principle in imposing a financial penalty was that individuals and companies should not profit from their offences;659 the level of fine should reflect "how far below the relevant statutory environmental standard the defendant's behaviour actually fell."660 As for imprisonment, it was to be reserved for cases where there was a combination of serious damage, or the risk of serious damage, with a "very high degree of culpability on the part of the offender."661
131 Accordingly, the Court of Appeal, Criminal Division, in the Milford Haven
Port Authority decision had the opportunity of both addressing a substantial fine imposed in a serious case of pollution, as well as the first ever advice offered by the Sentencing Advisory Panel that it issue a guideline judgment on sentencing for environmental offences. In terms of the sentence imposed for the strict liability offence in question, the Court made reference to its decision in R. v. F. Howe &
Son (Engineers) Ltd.,662 stating that there was a "general perception" in relation to health and safety offences, as well as environmental offences, that the
"general level of sentencing is too low."663 However, it noted that the Court in F.
Howe & Son (Engineers) Ltd., while emphasizing that every case must be dealt with on its own particular facts, drew attention to "certain material factors", such as the extent to which the defendant fell short of his or her duty, the causing of death or serious injury, and the "skimping of proper precautions to make or save money or gain a competitive advantage."664 It proceeded to find, in the instant case, that while the trial judge was "rightly anxious to make clear that offences of this kind on this scale come high in the scale of seriousness", he failed to give the defendant full credit for its guilty plea, and did not consider the possible impact of a L. 4,000,000 (U.K.) fine on its ability to perform its public functions.665
Consequently, the fine imposed against the Port Authority was reduced to L.
750,000 (U.K.).666
132 As for the proposal by the Sentencing Advisory Panel that the Court of
Appeal issue a guideline judgment for environmental sentencing cases, the Court had this to say:
We are grateful for the advice furnished by the Sentencing Advisory Panel which we have read with interest. Having received the Panel's advice we are required by section 80(2) of the Crime and Disorder Act 1998 to consider whether we should frame guidelines or revise any existing guidelines. We have given such consideration, but do not conclude that we can usefully do more than draw attention to the factors relevant to sentence to which we have already briefly alluded.667
The Court's refusal to issue sentencing guidelines in Milford Haven Port
Authority was viewed by some as a "great disappointment."668 This is so, it was noted, because the opportunities for the Court of Appeal to consider sentencing guidelines for environmental offences "have been very few and far between."669
At the same time, however, the Sentencing Advisory Panel's advice did set out many of the factors relevant to sentence, to which the Court of Appeal did draw attention; moreover, it was "entitled to respond in this manner," that is, to consider whether or not to frame guidelines, as opposed to actually crafting them.670 Further, the reduction of the penalty imposed by the trial judge was balanced by the Court's recognition that it constituted "a very serious case calling for a substantial penalty."671 On the other hand, there was no explicit indication as to what criteria should be followed, and "precisely where the level of fine should be pitched," leading to the observation that it was "unfortunate" that the
Court of Appeal "declined to use the opportunity to provide guidance as to how
133 courts should assess financial penalties. The work of the Sentencing Advisory
Panel, commented Parpworth, appears to have been treated by the Court of
Appeal as being "superfluous",673 given its reliance on the F. Howe & Son
(Engineers) Ltd. decision for setting out the relevant factors on sentencing, and thus amounted to a "wasted effort."674
The criticisms of sentencing in environmental cases, namely, that inappropriate sentences are imposed for "serious cases", the "lack of formal guidance for the courts", inconsistency in similar cases, and the lack of "explicit connection" between the penalty imposed and the enforcement aim of protecting the environment, were thus not addressed through the issuance of a guideline judgment in the Milford Haven Port Authority case.675 There is, it is said, a perception that magistrates take "more account" of the circumstances of the offender than the severity of the offence.676 This gives rise, in turn, to the view that the low penalties that are imposed are indicative of the fact that the courts do not treat such offences "very seriously."677 Despite the comments of the Court of
Appeal in Milford Haven Port Authority, these concerns remain, as evidenced by an article written five years after the release of the Court's judgment, where it was opined that judges and magistrates are "understandably reluctant to impose substantial fines on environmental offenders who are not obviously at fault (eg., those who negligently commit strict liability offences.)"678 As another commentator put it, the evidence to date does suggest that sentencing guidelines on environmental offences would provide "some assistance" to lower courts that
134 often lack experience in dealing with such offences. Indeed, given the fact that the Court of Appeal found it necessary to reduce fines in pollution cases by substantial amounts, ranging from 75% to 85% in Cemex Cement Ltd.,680 Milford
Haven Port Authority,6^ and Anglian Water Services Ltd.682 such decisions might well be regarded as demonstrating the "inevitable consequence of a lack of clarity in the available sentencing guidance for environmental offences."683 On the other hand, the provision of "clear sentencing guidelines" would "be of real value to the court", and should lessen the times that appellate courts reduce fines imposed for regulatory offences on the ground that they were "manifestly excessive."684 Merely equipping courts with a "Friskies Schedule" to state aggravating and mitigating circumstances, as well as proposed sanctions, is not a "complete substitute for more formal sentencing guidelines."685
In a decision released in February, 2010, R. v. Thames Water Utilities
Ltd.,686 the Court of Appeal, Criminal Division, returned the issue of sentencing principles for breaches of environmental protection legislation. The Court, in fact, discussed the broader issue of a principled approach to sentencing for regulatory offences. In the case at bar, a large amount of bleach entered controlled waters, causing, it was conservatively estimated, the death of more than 2 tonnes of fish.The clean-up operation lasted several days. The defendant accepted responsibility for its conduct and pledged L 500,000 (U.K.) in compensation to restore the river in question. A fine of L. 125,000 (U.K.) was imposed by the trial judge, against which the defendant brought a sentence appeal.
135 The Court of Appeal, Criminal Division, commented in its judgment that the Sentencing Advisory Panel Advice to the Court of Appeal in March 2000 respecting environmental offences was "still relevant today".687 Moreover, there was "clearly an overlap" with the sentencing principles applicable to health and safety cases and those stated for environmental protection decisions.688 The purposes of sentencing in such cases, of particular importance, were described as being punishment, deterrence and reparation. After noting that punishment speaks for itself and required no further elaboration, the Court explained that deterrence, in this context, has three aspects: (1) making clear that the overall penalty for a breach of the law is always likely to be "more costly" than any expense that should have been incurred in avoiding the breach in the first place;
(2) the need for the overall penalty to be such as to bring the "necessary message home" to the particular defendant in order to deter future breaches, whether by that defendant or other potential offenders; and (3) the need for
"equal deterrence" of all potential offenders, whether wealthy or of limited means, particularly as the wealthiest potential offenders are likely, due to the scale of their operations, to have the "greatest potential to cause the most serious damage."689
With respect to reparation, which was described as being "one of the principal purposes of sentence" in such cases, the Court observed that the only formal order available to the sentencing court to achieve this is a compensation
136 order. In complex matters, however, the criminal courts will not be well suited to make such orders. Nevertheless, there was a "clear policy need" to encourage the making of voluntary reparation by offenders, whether by consenting to appropriate compensation orders, or the making or pledge of voluntary payments, while also "ensuring appropriate punishment and deterrence."691
This principled approach to sentence, in respect to a plea of guilty by a company to an offence, which would lead to the imposition of a fine, requires the court to consider, then, in order, the following: (1) an assessment, firstly, of the seriousness of the offence having regard to the facts, including consideration of all aggravating and mitigating features of the offence; (2) given the resultant assessment of seriousness and consideration of the offender's means, the court should next "identify the amount of a notional fine after a trial," such notional fine combining both the "punishment and deterrent elements of the sentence";692 (3) the Court should then consider the making of any appropriate compensation order and, if made, the extent to which the amount of the order should be imposed in addition to, or deducted from, the amount of the notional fine identified thus far; (4) the next consideration is for the Court to consider the question of the extent to which (such as by accepting any compensation order) the offender has "brought the message home to itself, and then the extent, if any, to which that should be reflected in a deduction from the amount of the notional fine thus far identified as appropriate; while the cost of "putting right the failures that led to the offence, and of ensuring lack of repetition" are not to be
137 taken into account in this regard, while failure to so is, in fact, a significant aggravating factor, the making of "substantial voluntary reparation" operates as a significant mitigating factor;693 (5) having made any reduction due to the extent to which the offender has brought the "necessary deterrent message home to itself", the Court is then to consider whether any other mitigating features justify a further reduction of the notional fine;694and (6) finally, the Court should deduct the appropriate percentage of discount for the guilty plea, thereby arriving at the final amount of the actual fine to be imposed, together with any orders of compensation. Applying these criteria to the instant case, the fine imposed was considered to be manifestly excessive, and was reduced from L 125,000 (U.K.) to L 50,000 (U.K.).
In setting out this approach for sentencers to follow, the Court of Appeal cautioned that it was in "no better position" than in the Anglian Water Services
Limited case695 "to give general guidance as to the appropriate levels of sentence in cases of this type."696 This was so, it explained, for a number of reasons, including the lack of sufficient data from the authorities. In particular, decisions of magistrates' courts were "necessarily based on the facts of the particular offences involved," and did not therefore provide "any help at all"; moreover, given the "likely infinite factual variety of offences of this type," and the "likely significant variety of the means of offenders", the Court observed "it may be very difficult to give general guidance anyway."697 As a result, the case was one where the appropriate level of punishment fell to be determined on its own facts,
138 "albeit guided in significant part" by the principles set out in Anglian Water
Services Limited,698 and the principled approach of sentencing put forth by the
Court.699
The issue as to the lack of guidance for sentencers in environmental cases in particular, and regulatory offences more generally, remains a contentious issue in the United Kingdom, and one that has been addressed in a number of subsequent reports and studies following the Court of Appeal's decision in Milford Haven. The Hampton Report, which was commissioned in
2004 to consider the scope for reducing "administrative burdens" by promoting more efficient approaches to regulatory inspection and enforcement, without comprising regulatory standards or outcomes, released its final report in March,
2005, entitled Reducing administrative burdens: effective inspection and enforcement700 It found that regulatory penalties failed to take the "economic value" of a breach into consideration, such that it was often in the interest of a business to pay a fine rather than comply with the statute.701 It was noted, for example, that in magistrates' courts, where the majority of such cases are heard, the average fine in environmental prosecutions between 2003 - 2004 was L.
3,861 (U.K.); for health and safety offences, in the same time period, the average fine was L. 4,306 (U.K.).702 Such penalties typically fell "far short" of the commercial value of the regulatory breach in question.703 Hence, these low fine levels failed to provide "effective deterrence."704 As a result, Hampton proposed two recommendations of particular note: (1) fine maxima in the magistrates'
139 courts should be increased and magistrates given more powers to set fines that are an "effective deterrent";705 (2) the Sentencing Guidelines Council should consider new guidance to courts on regulatory offences, including guidance on fine levels and setting fines to take into account the economic benefit realized by offenders.706 This latter recommendation has prompted one commentator to remark that while it is not clear whether a system of United States-style mandatory sentencing guidelines would "fit well" within the English system, consideration might nevertheless be given to limiting such a system to regulatory crimes, including environmental offences, so as to increase the likelihood that offenders receive sentences "appropriate to their crimes".707
Subsequent to the Hampton Report, Professor Macrory was asked to review regulatory enforcement, and examine what could be done to improve business compliance in the United Kingdom. A discussion paper was published in December, 2005, entitled Regulatory Justice: Sanctioning in a post-Hampton
World708 It was observed that just as the Hampton Report had documented . views from regulators and business alike that the current penalty regime was
"often cumbersome and inefficient", evidence was put before the review that penalties imposed by the courts were frequently "too low", and there was
"substantial inconsistencies in different parts of the country."709 The following factors were described as some of the "shortcomings" of the current practice: strict liability offences by their very nature involve lack of intent or recklessness, which may lead a court to "feel uncomfortable in imposing a high financial penalty
140 for a non-violent, negligent act"; there is a lack of "specialist knowledge" by magistrates due to the relative infrequency of prosecutions for regulatory offences that come before this very large bench, which leads in turn to
"inconsistent judgments" or fines that do not reflect the gain of business from its illegal activity;711 "inappropriately low fines" imposed by magistrates
"compromises the effectiveness of the regulatory relationship";712 and there is inconsistency in decisions at the magistrates level.713 It was further noted that while in many instances the fine maxima available to magistrates was sufficiently high to eliminate the economic benefits of non-compliance, it did not appear that magistrates considered this "the main objective in their sentencing policy."714
The Macrory Review proceeded to publish a consultation document, in
May, 2006, amplifying these concerns.715 It set out the following six "penalties principles" as the basis for any sanctioning regime: (1) sanctions should change the behaviour of the offender; (2) sanctions should ensure there is no financial benefit obtained by non-compliance; (3) sanctions should be responsive, and consider what is appropriate for the particular offender and the particular regulatory regime; (4) sanctions should be proportionate to the nature of the offence and the harm caused; (5) sanctions should aim to restore the harm caused by regulatory non-compliance; and (6) sanctions should aim to deter future non-compliance.716 The Review also addressed proposals aimed at improving the effectiveness of criminal courts for regulatory offences. Noting that criminal court judges hear cases in many differing areas, and that in order for the
141 court service to work effectively, the Sentencing Advisory Panel and the
Sentencing Guidelines Council formulate guidance on sentencing for particular offences, categories of offences and other sentencing issues, it was stated that given the "limited guidance" for regulatory non-compliance, consideration should be given to "prepare sentencing guidance in the area of regulatory non compliance for criminal court judges."717 Indeed, it was found that regulators and businesses alike were in agreement that there was a need for financial penalties to "reflect the seriousness of an offence more accurately than is currently the case."718 The Review concluded with a discussion of alternative penalties in the criminal courts, stating that new sanctions need to be developed in order to
"meet more than just the need of deterrence as the main objective of a sanction", including corporate rehabilitation orders, community projects, publicity orders and mandatory audits.719
Professor Macrory's final report was released in November, 2006.720 Its recommendations included that the Government should consider ensuring that regulators follow the six "penalties principles" set out above, as well making sentencing in the criminal courts "more effective", including introducing alternative sentencing options in the criminal courts for cases of regulatory non compliance.721 Macrory explained that the statement of "penalties principles" serves to "build a common understanding" of what the sanctioning regime is intended to achieve among regulators and the regulated community; it also provides a safeguard that such sanctions are used "fairly and consistently."722 As
142 for improving the effectiveness of criminal courts for cases of regulatory non compliance, it was recommended that the Government should request that the
Sentencing Guidelines Council prepare "general sentencing guidelines for cases of regulatory non-compliance."723 Macrory commented that such guidelines would be of "great value" to magistrates, who hear almost all criminal prosecutions of regulatory non-compliance against businesses, as the guidelines would be "focused on the principles that should be taken into consideration for sentencing cases of regulatory noh-compliance."724
The Government responded to the Macrory Review with a paper the following year, entitled Better Regulation: Next Steps on Regulatory Reform725 It announced that the Government was consulting on a Regulatory Enforcement and Sanctions Bill that would incorporate proposals from the Macrory Review so as to equip regulators with a "more flexible and modern sanctioning toolkit."726
This legislation, the Regulatory Enforcement and Sanctions Act 2008J21 was given Royal Assent on 21 July 2008. The regulatory sanctions it provides for are primarily civil in nature, and are administered by the regulators themselves, not the courts.728 The provision of sentencing guidelines advice for courts hearing regulatory offences thus remains in the hands of the Sentencing Guidelines
Council, or the proposed new Sentencing Council for England and Wales under the recently proclaimed Coroners and Justice Act (2009),729 notwithstanding these other legislative initiatives. In the meantime, other jurisdictions, such as
Ireland, have acknowledged the work done by Hampton and Macrory, and are
143 considering developing guidelines on sanctions for environmental crime while
"utilizing court judgments that have considered this area."730 To date, though, the
Sentencing Guidelines Council has refrained from developing sentencing guidelines for regulatory offences, either for magistrates' courts as a whole, or as a discrete category of offences or group of offences.731
7. Sentencing Purposes and Principles for Regulatory Offences in Australia and New Zealand
There have been similar concerns expressed in Australia and New
Zealand respecting inconsistent sentencing practices in regulatory offences cases, and the desirability of sentencing guidelines. Gunningham and
Johnstone's study of sentencing of Occupational Health and Safety Act732 offenders in Australia found that in the majority of jurisdictions, courts possess a
"very broad discretion in sentencing OHS offenders, and receive little guidance."733 As a result, "serious inconsistencies" exist between courts, especially the lower courts, in the penalties levied against such offenders.734
Sentencing guidelines for Occupational Health and Safety Act offences, on the other hand, provide a means of guiding the Courts' sentencing discretion, while making the sentencing process more transparent.
In terms of the content of such sentencing guidelines, the authors propose that they clearly specify the purposes of sentencing under the legislation, as well as the aggravating and mitigating factors that are relevant in determining whether
144 to increase or decrease the penalty in a particular case. There could also be
"presumptive guidelines" so as to indicate when dispositions such as fines,
probation and community service orders are to be used; the presumed range and severity of sanctions in each case might also be set out. The authors contend that such sentencing guidelines need not be as detailed and complex as the
United States sentencing guidelines in calculating a "base fine" and "culpability score", although the penalties imposed for occupational health and safety offenders should be tailored to the defendant's resources.735 In this manner, sentencing guidelines will ensure both the transparency of "tough penalties" at the pinnacle of the enforcement pyramid, and promote their deterrent value.736
Indeed, as Ayres and Braithwaite observe, the majority of regulatory action takes
place at the base of the enforcement pyramid, as attempts are made initially to
secure compliance by persuasion or warning letters, and criminal prosecution
occurs only later on.737 However, it is "irrational" for business to comply with laws when the costs of compliance are less than the benefits.738 Hence, the
importance of effective and consistent penalties, as opposed to "flea-bite fines."739
An inquiry into occupational health and safety by the Australia Industry
Commission produced a report in September, 1995, calling for the government to establish sentencing guidelines in each jurisdiction to assist courts when determining penalties.740 According to the Commission, sentencing guidelines should explain the factors that are relevant to the offence when deciding
145 penalties. In this manner, sentencing guidelines "help to ensure a degree of consistency in the sentencing process with and across jurisdictions."741
Subsequently, the New South Wales Standing Committee on Law and Justice issued a report, in 1997, endorsing the development of sentencing guidelines as a method of responding to concerns over the "lack of consistency in sentencing for OHS breaches."742 It was observed that sentencing guidelines are a way of
"achieving a level of consistency in the sentencing process."743 The application of sentencing guidelines was also viewed as highlighting the need for a systematic approach to workplace safety. The Committee's recommendation that sentencing guidelines be developed for use by the judiciary in occupational health and safety matters,744 led to legislation being enacted, the Occupational
Health and Safety Amendment (Sentencing Guidelines) Bill 2000,745 which permits the Attorney General to ask the Court to issue a guideline judgment respecting occupational health and safety offences.
Concerns have also been expressed as to inconsistent sentencing practices in other areas, such as environmental offences. Preston acknowledges that there is no "statutory guidance" respecting which purposes of sentencing should predominate for different types of offences or offenders, and that this choice is left to the discretion of the sentencer.746 However, such discretion must be exercised judicially, and involves consideration of the nature of the offence, its relative seriousness compared to other offences of similar and different types, and the offender's personal circumstances. According to Preston, the common
146 law and sentencing procedure statutes enunciate the purposes for which the court may impose a sentence on an offender, including retribution, denunciation, deterrence, protection of the community, rehabilitation, and restoration and reparation. Environmental offences are viewed by the community as crimes which are "extremely serious", and not mere administrative breaches, such that these sentencing considerations are appropriate, and merit the imposition of penalties where the severity of the punishment is commensurate with the seriousness of the conduct.747
It is also contended by Preston that there is a need for imposing sentences which uphold the "integrity of the regulatory system, given that offences which undermine its integrity are "objectively serious".748 Persons who commit environmental offences, thus, should be punished in proportion to the gravity of the crime. The sentence of the court constitutes "important denunciation" of criminal conduct; prevention is also an especially important consideration for environmental offences.749 Reference by the sentencing court, then, to the "purposes of sentencing" and respective sentencing considerations, assist the court in "explicating the rationale for sentence and contribute to a principled approach to sentencing for environmental offences."750 The lack of consensus among courts as to any "overriding rationale" in sentencing has also been documented by Johnstone, who found that to sentencers "what was more important than the underlying philosophy of sentencing was 'the circumstances of the case.'"751
147 The New Zealand Law Commission issued a report in 2005 with respect to
"infringement offences" and their place in the justice system.752 Such offences are reserved for "minor, high volume offences" and exclude imprisonment; where the enforcement authority issues an infringement notice, court proceedings may not be instituted.753 At the time of its report, there were 24 statutory infringement regimes in place, including the Civil Aviation Act 1990,754 the Building Act
2004,755 the Dog Control Act 1996 J56 the Fisheries Act 1996,757 the Health and
Safety in Employment Act 1992,758 and the Resource Management Act 1991.759
The Commission considered that infringement penalty setting should be
"influenced" by the sentencing purposes and principles that are appropriate for each particular regime, that is, such purposes ought to "reflect the policy objectives that the legislation creating the infringement offence aims to achieve."760
In its discussion of "a principled infringement penalty setting model", the
New Zealand Law Commission made reference to the Sentencing Act 2002,76: which sets out a framework for guiding courts respecting the imposition of penalties for offences in general.762 According to the Commission, four of the purposes under the Act which "provide guidance to sentencing judges" are also relevant to infringement penalty setting: holding the offender accountable for the harm caused by the offence,763 promoting a sense of responsibility and an acknowledgment of that harm,764 denunciation of the conduct,765 and deterring
148 the offender or others from committing the same or similar offence. The
Commission went on to observe that, wherever it was possible to do so, these principles should be taken into account and incorporated into the penalty structure for each infringement scheme.767
8. Conclusion
The review in this chapter of sentencing purposes and principles for regulatory offences in Canada, the United States, the United Kingdom, Australia and New Zealand illustrates a common concern that guidance is required for courts imposing sentences for such offences. However, there are differences of opinion as to how this guidance should be provided, and in what form it should take. To some, sentencing for regulatory offences constitutes a veritable barrier to effective enforcement. For others, the difference between regulatory offences and criminal offences merits a special approach. In order to see if the general observations made here respecting sentencing practices and patterns are borne out, in the following chapter a matrix of regulatory offences within the Canadian jurisprudence will be examined, in the areas of workplace safety, consumer protection and environmental regulation.
149 Chapter 4. Regulatory Offences Sentencing Jurisprudence within Canada: A Survey of Workplace Safety, Consumer Protection and Environmental Regulation Decisions
1. Introduction
In this chapter, a matrix of regulatory offences sentencing cases in the areas of workplace safety, consumer protection and environmental regulation within the Canadian jurisprudence will be examined. Approaches to sentencing purposes and principles for regulatory offences vary widely, as has been shown, in both the authorities and scholarly literature. In designing this matrix, emphasis is placed on the courts, specifically their sentencing decisions, in order to substantiate which sentencing purposes and principles are considered appropriate for regulatory offences, and how such considerations are identified and enumerated.
In the survey of sentencing cases that follows, decisions at the superior court level across Canada are analyzed, since this includes both judgments in trial courts as well as appeals against sentences imposed by lower courts. It is, of course, not possible to examine every type of regulatory offence or sentencing principle to test the argument that has been advanced as to the marked inconsistencies that apply in such cases, and thus the need for a statement of sentencing purposes and principles, so as to promote uniformity and consistency of approach in sentencing dispositions. However, a sampling of cases in the areas of workplace safety, consumer protection and environmental regulation
150 seems apt for a number of reasons, especially since these type of cases are frequently before the courts, and merit attention given their importance and relevancy: workplace safety laws protect one's physical well-being; consumer protection laws safeguard economic interests; and environmental regulation is concerned with "the quality of life to which we wish to expose our children."768
Rabbitt employed such a comparative approach in her study on Social
Regulation and Criminal Sanctions,769 where she examined five social regulatory agencies that were given responsibility for the implementation of "quality of life" and "social regulation."770 One of the goals of her thesis was to evaluate the degree to which the criminal enforcement programs of these agencies were successful, given that regulatory agencies often have the "primary responsibility" for investigating and sanctioning violations of regulatory statutes and regulations.771 Regulatory agency sanctioning patterns thus present "important implications for social justice."772 Dispositions imposed by the courts in response to such regulatory sanctioning schemes are no less important. As Gunningham observes, sanctions ought to be "sensitive to the nature of the behaviour to be controlled."773 It was Rabbitt's conclusion that there existed evidence of inconsistent sentencing patterns and "discretionary justice", although she attributed "prosecutorial decision-making" as one of the key factors contributing to such disparity.774
The broad nature of regulatory offences means that courts are called upon to impose sanctions in all manner of cases. After all, public welfare laws "pervade
151 the lives of ordinary people. However, the regulatory offences that are the subject of examination in this chapter, namely, workplace safety, consumer protection and environmental regulation, typify activities which animate regulatory legislation. Cory J. explained the evolution of such legislation in the Wholesale
Travel Group Inc. decision:
While some regulatory legislation such as that pertaining to the content of food and drink dates back to the Middle Ages, the number and significance of regulatory offences increased greatly with the onset of the Industrial Revolution. Unfettered industrialization had led to abuses. Regulations were therefore enacted to protect the vulnerable - particularly the children, men and women who laboured long hours in dangerous and unhealthy surroundings. Without these regulations many would have died. It later became necessary to regulate the manufactured products themselves and, still later, the discharge of effluent resulting from the manufacturing process. There is no doubt that regulatory offences were originally and still are designed to protect those who are unable to protect themselves.776
Having regard to these general observations as to the regulatory offences with which this chapter is concerned, let us turn first to workplace safety sentencing decisions.
2. Workplace Safety Sentencing Decisions
It seems appropriate to commence a review of regulatory offences sentencing jurisprudence in the area of workplace safety, given that one of the first cases to set out the general principles for sentencing for public welfare offences, R. v. Cotton Felts Ltd.,777 involved a prosecution under such legislation,
152 the Occupational Health and Safety Act of Ontario/Indeed, in the previous chapter it was noted that in the United Kingdom, the leading cases which set out sentencing principles for regulatory offences, R. v. Friskies Petcare (U.K.) Ltd.779 and R. v. F. Howe & Son (Engineers) Ltd.,780 both involved prosecutions under comparable legislation, the Health and Safety at Work etc. Act, 1974™
In Cotton Felts Ltd., the Ontario Court of Appeal upheld the $12,000. fine levied by the trial judge in relation to a workplace safety accident case. The incident involved a worker who was cleaning a machine that had not been stopped; his arm was sucked into the machine's rollers. As a result of the injury, his arm was amputated below the elbow. There had been a previous incident where another worker had injured his thumb while working on a similar machine that was in motion. Management was aware of the practice of cleaning machines that had not been turned off. Blair J.A., on behalf of the unanimous Court, commented that with respect to such legislation, "to a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations," and that "the amount of the fine will be determined by the need to enforce regulatory standards by deterrence."782
Very few regulatory offences sentencing cases reach the level of the
Ontario Court of Appeal, given the stringent leave to appeal requirement under the Provincial Offences Act783 However, the Court's comments in R. v. Cotton
Felts Lfd.784stand for the proposition that deterrence is the paramount
153 consideration when imposing sanctions, and this is to be reflected by fines in order to "enforce regulatory standards." Beyond these general comments, no further guidance is given. As a result, one finds, not surprisingly, a wide range of dispositions that vary both in magnitude of fine amounts, as well as a lack of non- financial sanctions designed to repair the harm done or to address rehabilitation and reparations, such as the use of compensatory terms, including restitution, or probationary terms designed to prevent repetition of the offence. Nevertheless, the Cotton Felts Ltd. decision is cited routinely, in every jurisdiction across
Canada.
By way of example, in the Ellis-Don785 case, which was decided by the
Supreme Court of Canada shortly after its judgment in Wholesale Travel Group
Inc.,786 the trial judge imposed a fine of $20,000 where a worker fell to his death in an elevator shaftway that had not been properly guarded. The fine was reduced on appeal to $10,000.787 The Ontario Court of Appeal majority judgment in the case was solely concerned with the constitutional issue of the due diligence defence, and did not therefore address the sentence appeal brought by the Crown, given that a new trial was ordered; however, the dissenting judge would have upheld the $10,000 fine.788 In the result, the Court of Appeal, applying its own judgment in Cotton Felts Ltd., upheld a lower level of fine in
Ellis-Don than it did in Cotton Felts Ltd., notwithstanding there was a fatality, and that the defendant was a major corporation. In other cases, the Court has upheld fines ranging from $2,000 where the defendant did not implement a proper traffic
154 control plan, resulting in a worker being hit by a truck, approved fines totaling
$35,000 imposed against a small family business where the boom of an excavator came into contact with live wires, causing minor burns to one employee while three others escaped injury,790 and restored two fines of
$250,000 in a case where a major company in the mining industry failed to maintain equipment and leave a guard to protect workers from a moving part in equipment, resulting in the death of a worker while mining.791
This wide range of fine amounts, and lack of non-monetary penalties, is also evident in the dispositions of the Ontario Superior Court. Unsuccessful crown appeals against the sentence imposed by the trial judge include decisions where the defendant was fined $3,500 for failing to provide sufficient instruction to protect a worker,792 a $5,000 fine where a worker died when a trench collapsed,793 and a non-custodial disposition, despite the crown's position seeking a period of imprisonment, where two workers died on a construction site due to the failure of the supervisor to have formwork inspected by a professional engineer, before allowing cement to be poured; the $30,000 fine and probation term for one year was left undisturbed on appeal.794 On the other hand, a
$250,000 fine was upheld in a case where a worker was crushed to death by a bundler machine, and the appellant company was insolvent at the time of sentencing.795 Fines totaling $650,000 against the corporate defendant, and
$8,000 against the supervisor, were levied by the court following the trial where a
155 worker was killed in an explosion due to a radio miscommunication during a blasting operation.796
A similar divergence in fine amounts and sentencing dispositions in workplace safety cases is evident in other jurisdictions. In Alberta, the Court of
Appeal found no error in the imposition of a $115,000 fine where an employee was killed due to a heavy bale of wire falling on him.797 This decision may be contrasted to R. v. Tech-Corrosion Services Ltd.798 in which the defendant's appeal against a much lower fine, $7,500, was dismissed. This case involved a crane striking a power line, which resulted in serious injuries to two workers. One of the men lost both arms below the elbow and both legs below the knee; the other lost one foot below the ankle. A similar case where a power line made contact with a tent pole, thereby causing the death of one worker and hospitalization of another, led to a considerably larger fine of $100,000.799 A
$300,000 fine was found not to be excessive where an employee died due to an explosion on a well site.800 In other cases, the penalties have included fines of
$15,000 for failing to report a fatal accident at a construction site and disturbing the accident scene,801 and six corporations being fined $70,000 where an employee was seriously injured when he climbed over a safety guardrail to investigate a machine malfunction and fell onto the back roller.802
Two recent decisions illustrate divergent approaches in sentencing for regulatory offences under the Alberta Occupational Health and Safety Act,802
156 notwithstanding that both make reference to the principle of deterrence as set out in Cotton Felts Ltd. In R. v. Independent Automatic Sprinkler Ltd.,804 the Crown brought an appeal against the $100,000 fine imposed in circumstances where two workers fell from the top of a pallet while attempting to install a sprinkler; the men were using a ladder on top of a strand board, a practice which was "highly inappropriate."805 One of the men died and the other survived, but was paralyzed.
On appeal, it was held that the fine failed to adequately "recognize the seriousness of the consequences of the degree of negligence."806 It was increased by more than three-fold, to $350,000. Conversely, a $5,000 fine was upheld in a case where two workers were seriously injured while offloading the flammable contents of a tanker truck; they had parked the truck too close to the tank they were filling, and failed to properly ground the truck to the tank. The workers were still suffering from their injuries at the time of the trial.807 In addition to the fine, the trial judge ordered the defendant to pay $95,000 to the Shock
Trauma Air Rescue Society. While the appeal court agreed that the defendant had not been "grossly negligent", the accident was "foreseeable and preventable."808 In the court's view, the range of fines for non-fatal offences where a guilty plea was entered appeared to be $70,000 - $125,000. As a result, the fine imposed on the appellant was well within this range, even though it had not shown remorse or taken responsibility through entering a guilty plea. The sentence imposed was within the range of sentences "for similar offenders in similar circumstances."809
157 These variations in penalties for like workplace safety offences appear in other jurisdictions. The death of a worker who was trapped under a loader resulted in a $30,000 fine being reduced on appeal by half, to $15,000, in one
Saskatchewan case.810 In arriving at this result, the court relied on Cotton Felts
Ltd. and another decision, R. v. Pederson,8^ where a worker was killed when the walls of a trench collapsed, and a $95,000 fine was lowered on appeal to
$35,000. Justice Krueger, who rendered the appeal judgment in Pederson, had previously decided another case, R. v. Saskatchewan Wheat Pool,812 where, although the convictions were set aside on appeal, the court made a point of commenting that the total fines imposed of $15,000 were reasonable, having regard to the worker's arm getting caught and severely damaged in a grain drying blower fan while he was cleaning it.813 The Pederson decision was also cited in R. v. Sage Well Services Ltd.,8U where the Crown's appeal against fines of $25,000 and $1,000 was dismissed. In that case, an oilfield accident occurred when a pumpjack moved, throwing the worker against the rig and then onto the ground, causing his death.
Significant fines have been imposed due to the risk of harm, as where a municipality failed to establish a system to ensure that its workers were not exposed to asbestos while repairing a swimming pool it operated.815 Citing the
Cotton Felts Ltd. decision, the $90,000 fine imposed by the trial judge was upheld on appeal. However, in a subsequent Manitoba case where the worker suffered a serious injury to his hand while operating a welding machine that was
158 not properly guarded, receiving an amputation as a result, fines totaling $15,000 were found to be fit.816
In R. v. Nova Scotia Power lnc8U, the trial judge imposed a fine of
$180,000 where the lift device in which a worker was standing crashed to the ground, killing him. As the conviction was set aside on appeal, the defendant's sentence appeal was rendered moot, and the quantum of fine was therefore not commented upon by the appeal court. However, in another Nova Scotia case decided afterward, R. v. Nova Scotia (Minister of Transportation and Public l/l/br/cs),818 the Crown successfully appealed the sentence imposed by the trial judge, which consisted of a $15,000 fine and a mandatory contribution of $7,500 to an education fund. This case involved a truck driver who collided with a
Ministry of Transportation vehicle that did not display the required "be prepared to stop signs". The collision injured one of the workers; the truck driver just managed to escape his burning truck before it exploded. He had been unable to return to work due to the psychological impact of the accident. In arriving at her sentencing decision, the trial judge stated that "the constant theme of sentencing is the need for deterrence",819 citing Cotton Felts Ltd. Nevertheless, the appeal court ruled that she failed to properly apply the factors set out by the Ontario
Court of Appeal in the Cotton Felts Ltd. decision, and that the fine and contribution to an education fund should have been at least twice the amount that was imposed. As a result, the sentence was varied to a fine of $30,000 and a
$15,000 education fund contribution. Accordingly, this case provides an
159 illustration of both the trial and appeal courts applying the Cotton Felts judgment, with significantly different results.
In New Brunswick, a fine of $30,000 was imposed at trial in R. v. Atcon
Construction Inc.,820 where a form for concrete made of steel located on top of a bridge column collapsed while concrete was being poured into it. Two of the men who were working on the structure were killed, and one other survived. The conviction was reversed, however, on appeal. Nevertheless, in a subsequent workplace accident case, involving an employee who was injured during his second shift when his wrist came in contact with a machine blade, the Atcon
Construction case was referred to.821 In this later decision, the trial judge had imposed fines fines totaling $19,000.822 The appeal court noted that there were fatalities in Atcon Construction, unlike the present case. The two $7,500 fines were lowered to $2,500, making for a total fine of $10,000, which was said to
"constitute sufficient deterrence in the circumstances."823
Finally, two Newfoundland cases involving fatalities on the work site stand in contrast to one another, in terms of the sentences imposed. In R. v. Corner
Brook Pulp and Paper Ltd.,824 an employee was crushed by a falling loader that had not been equipped with an emergency stopping device. The maximum fine permitted under the regulations at the time was $5,000. The fines of $2,000 for each of the two counts to which the defendant entered pleas of guilty before the trial judge were upheld on appeal. In a more recent decision, R. v. Miller Shipping
160 Ltd., a worker was also crushed to death when a boom truck tipped while offloading a heavy container onto a barge. On this occasion, fines totaling
$75,000 were imposed, a considerably higher amount than in the Corner Brook
Pulp and Paper Ltd. case. The appeal court noted that in imposing fines of this magnitude, the trial judge was "clearly motivated by the principle of deterrence",826 and cited the Cotton Felts Ltd. decision in support of this proposition. In upholding the sentence, Wells J. considered that there was
"ample precedent for the use of the principle of deterrence in cases such as this."827 A further appeal was brought to the Newfoundland Court of Appeal, resulting in one of the convictions being set aside.828
3. Consumer Protection Sentencing Decisions
This category of regulatory offences sentencing decisions involves measures designed to safeguard consumers, including the protection of competition. Indeed, the offence which was the subject of the Wholesale Travel
Group Inc.829 case in the Supreme Court of Canada was one such matter, namely, false or misleading advertising, contrary to the Competition Act830 It has existed in Canada since 1914, although it remained in the Criminal Code until
1969, at which time it was transferred to the Combines Investigation Act.831 In addition, the Ontario Court of Appeal expressly referred to these types of regulatory offences in Cotton Felts Ltd. where it was observed that:
161 The paramount importance of deterrence in this type of case has been recognized by this Court in a number of recent decisions. An example is provided by R. v. Hoffmann-LaRoche Limited (No.2) (1980), 30 O.R. (2d) 461. In that case Mr. Justice Linden imposed a fine of $50,000 for an offence under the Combines Investigation Act, R.S.C. 1970, c.C-23, and stated the principles governing the amount of a fine as follows:
In conclusion, I feel that a fine that is more than nominal, but which is not harsh, would be appropriate in this case. The amount must be substantial and significant so that it will not be viewed as merely a licence for illegality, nor as a mere slap on the wrist. The amount must be one that would be felt by this defendant. It should also serve as a warning to others who might be minded to engage in similar criminal activity that it will be costly for them to do so even if they do not succeed in their illegal aims.832
As the Court further noted in Cotton Felts Ltd., the $50,000 fine imposed in the
Hoffmann-LaRoche case for predatory pricing was upheld by the Ontario Court of
Appeal, which agreed that general deterrence was "the paramount factor to be considered in arriving at an appropriate sentence."833
The Ontario Court of Appeal considered numerous sentencing decisions under the Combines Investigation Act,834 the predecessor legislation to the
Competition Act,835 prior to the Cotton Felts Ltd. case. In one such decision, R. v.
Browning Arms Co. of Canada,836 the Court exhibited a marked difference of opinion as to the appropriate level of fine. The trial judge imposed fines of
$15,000 on each of the four counts of "resale price maintenance by dealers", being of the view that a total fine of $60,000 was required so that the monetary penalty did not amount to "a mere licence to carry on."837 A majority of the Court
162 of Appeal disagreed, holding that an appropriate fine would have been $10,000, consisting of $2,500 per count. This amounted to a total fine for the four counts that was still lower by $5,000 than the fines imposed for the trial judge for the individual counts. The dissenting judge would have reduced the fines to $25,000, with an equal amount attributable to each of the counts. Likewise, in R. v.
Steinberg's Ltd.828, a false advertising case, the trial judge's penalty of $10,000 per advertisement was found to be "too large a fine",839 resulting in a reduction to
$5,000 on each charge.
In a case under the Motor Vehicle Safety Act,840 involving failure to give notice of a defect in the construction design of a motor vehicle, the trial judge imposed the maximum fine of $10,000 on each count, one of which charged the defendant in its capacity as an importer, and the other as a manufacturer of motor vehicles; however, the fines were reduced by half to $5,000.841 As the
Court of Appeal noted, the offences did not "call for the maximum penalty, however, inadequate that maximum may appear to have been at the time."842
Nevertheless, the Court's judgment in this case was referred to in Cotton Felts
Ltd., in support of the proposition that the amount of the fine imposed is to be
"determined by the need to enforce regulatory standards by deterrence."843
Fines imposed in other Ontario cases include $35,000 for an illegal "co operative advertising" scheme which had the effect of fixing prices in the market place in R. v. A & M Records of Canada Ltd844 In another case involving
163 attempts to influence upward the price by which distributors advertised the defendant's products, the trial judge imposed a total fine of $200,000, relying on the A & M Records case.845 However, the Court of Appeal found that such a fine was "disproportionately high" and lowered it to $100,000.846 In R. v. Consumers
Distributing Co.,847 the Court of Appeal granted the Crown's appeal and held that the defendant was properly found guilty of misleading advertising, and remitted the matter to the County Court judge who had not addressed the sentence appeal against the $5,000 fine imposed by the trial judge; nevertheless, it remarked in doing so that a "nominal penalty would have been appropriate."848
To give effect to this observation, the fine was reduced to $1,000 by the summary conviction appeal judge.849 In another case of unduly lessening competition respecting ready mixed concrete, the fines imposed ranged from
$35,000 to $7,500.850
Significant fines in excess of one million dollars have been imposed on other occasions. In R. v. Canadian Oxygen Lfc/.,851 a scheme to unduly lessen competition in the sale or supply in Canada of products including compressed oxygen, nitrogen, carbon dioxide, argon and hydrogen, resulted in fines of
$1,700, 000 and $700,000 being imposed. In another Ontario case where misleading or false representations were made to the public about a patient lift, the corporation was fined $180,000 and its directors were fined $10,000 each.852
Although the Cotton Felts Ltd. decision was not expressly mentioned, Hill J. commented in imposing sentence that he was in agreement that general
164 deterrence was "the paramount sentencing principle in this case. A total fine of $135,000 was levied in another decision where misleading advertisements lasted for 100 weeks.854 Fines ranging from $300,000 to $100,000 were imposed in a case involving the principal manufacturers of large lamps in Canada and an
"industry sales plan" which was designed to virtually eliminate price competition from the marketplace.855
In terms of other appeal cases, fines totaling $19,600 were substituted in place of fines of $66,000 that the trial judge had levied for 22 counts of false or misleading advertisements.856 Charges under the Business Practices Acf57 of unfair practice by making false, deceptive or misleading representations to customers resulted in fines of $1,000 each.858 At the other end of the spectrum, the Ontario Court of Appeal has upheld a penitentiary sentence for convictions for misleading advertising, involving a fraudulent internet "yellow pages" business directory, where the revenues generated by the mail fraud scheme exceeded
$1,100,000.859 The trial judge sentenced two of the accused to 34 months' imprisonment and a $400,000 fine; another accused was given a nine month conditional sentence of imprisonment and fined $100,000. In upholding the terms of imprisonment, the Court of Appeal made these observations about the propriety of imposing "significant jail sentences" for misleading advertising:
The reality of the threat of jail sentences for general deterrence of individuals and corporate executives who commit "white-collar" crimes has become an effective and apparently necessary tool in the arsenal of law enforcement agencies.860
165 Feldman J.A., who delivered the Court's unanimous judgment in the
Serfaty case, went on to comment that despite the concern that a fine "not be seen just as a licence fee or cost of doing business," for some offenders "any fine without personal penalty may be viewed as just that."861 To this she added:
Obviously, not every case will require a custodial sentence. As with all sentencing decisions, the facts and circumstances of the offence and of the offender will have to be examined. The circumstances of the offence will include the extent and impact of the misleading material, the magnitude of the offence including the time period and geographic penetration of the dissemination of the material and the economic impact on the public, on the competitors of the offenders and the financial benefit to the offenders. However, in appropriate cases, significant jail sentences will not only be warranted, but required in order to meet the objectives of general deterrence and denunciation for this type of crime that some may still mistakenly view as relatively harmless.862
As for the fines imposed against the defendants, the court rejected the
submission that it constituted error for the trial judge to impose "two significant
punitive components of one sentence", consisting of the jail term and fine.863 To the contrary, Feldman J.A. explained:
One purpose of a fine as part of a sentence for an economic crime is to ensure that the offender does not retain the proceeds from the crime once the sentence is served. Also, a fine must be significant enough that it constitutes more than an effective licence fee or part of the cost of doing business.864
In short, the trial judge was held to have properly viewed the offence and the offenders as "requiring a significant fine in order to achieve the objectives of
166 general and specific deterrence as well as denunciation. However, the accused who received the fine of $100,000 had participated in the scheme at a
"lower level" than the others, such that while his culpability was "more than minimal", a reduction to $35,000 was appropriate.866
The Ontario Court of Appeal's judgment in Serfaty was recently considered in a Quebec case, R. v. Mouyal,867 involving telemarketing operations using deceptive or false representations over a seven-year period where millions of dollars were solicited. Relying on Serfaty, the prosecution sought a penitentiary sentence and a fine of 2 million dollars. The Quebec court, however, distinguished the case before it as being less serious, stating that a prison term
"should, even for serious offences, be the sentence of last resort."868 It was also relevant that the accused had contravened the Competition Act,869 and not the
Criminal Code,870 and thus the sentence to be imposed "has to reflect that very important distinction."871 A fine of $1,000, 000 was levied, along with probation for two years which included terms of $30,000 restitution and 240 hours of community work.
In British Columbia, a case involving a conspiracy to unduly lessen competition in relation to the price of cement over a ten-year period resulted in fines exceeding $200,000 being imposed against the principal accused party.872
The trial judge stated in this regard that such fines "must be such as to bring home to certain members of the business community the message that the
167 Combines Legislation is to be obeyed and cannot be flouted with impunity", lest penalties "amount to little more than a slap on the wrist."873 The British Columbia
Court of Appeal upheld the sentence, rejecting the submission that the size of the fines was excessive.874 Seaton J.A. commented in this regard:
As to the shock at the size of the fines I say "Good." I hope that some people are sufficiently shocked that they will reject this sort of conduct in the future.875
In another British Columbia decision where a mail order promotion was found to be misleading, fines of $15,000 were found not to be excessive, given that the objective of such a sentence was deterrence to the accused and to others.876
The Manitoba Court of Appeal upheld a $200 fine in a case of false or misleading advertising, rejecting the Crown's contention that the sentence was too low.877 This decision may be contrasted to the more recent case of R. v. Shell
Canada Products Ltd.,878 where the Crown again brought a sentence appeal against the quantum of fine levied by the trial judge.879 The accused had been found guilty of retail price maintenance, for which a fine of $100,000 was deemed appropriate. The Court of Appeal differed, however, as to its fitness: the majority considered that it was "inordinately low" and "but a slap on the wrist," resulting in the fine being doubled on appeal to $200,000. Monnin C.J.M. dissenting, held that the fine was "substantial", even for a corporation such as Shell, and would not have increased it.
168 Fines at the trial court level in Manitoba also exhibit marked variations. In
R. v. Bidwell Food Processors Ltd.,880 a defunct company was fined $4,000 for misleading statements in a flyer whereas the director received a fine of $2,500 and an employee was fined $2,000. These fine amounts may be contrasted with a $500 fine that was upheld on appeal as not being excessive, in a case where a catalogue published by the defendant was found to contain a misleading advertisement; approximately 150,000 copies of the catalogue were published each year.881 In a subsequent decision involving this same corporate defendant, a fine of $1,000 was imposed for a misleading advertisement in its sales catalogue; however, the conviction was set aside on appeal.882 A $1,000 fine was . also held to be appropriate in a case where a misleading advertisement was published on four separate occasions, receiving "fairly wide publicity" throughout the province.883
In other decisions, the Nova Scotia Court of Appeal overturned acquittals at trial and imposed fines totaling $339,700 against 73 insurance companies in a case involving a conspiracy to unduly lessen competition in the price of fire insurance on property throughout the province; the largest individual fine was
$15,000 while others were as low as $200.884 However, the Supreme Court of
Canada restored the not guilty verdicts of the trial judge.885 In another case involving a misleading advertisement in a newspaper, a fine of $1,000 was upheld by the Prince Edward Island Court of Appeal.886 Finally, a $1 fine for a false advertisement was successfully appealed by the Crown in a Newfoundland
169 decision where it was held that such a nominal penalty was inappropriate, having regard to the defendant's previous conviction for which it was fined $500, and
"the principle of deterrence and the protection of the public."887 The Court substituted a $750 fine.
4. Environmental Regulation Sentencing Decisions
There are generally accepted principles of sentencing for environmental regulation public welfare offences that have been recognized by the courts, notwithstanding that Cotton Felts Ltd. was not a pollution case, nor did it make reference to such offences, unlike other occupational health and safety and consumer protection decisions. However, as Justice Cory observed in the
Wholesale Travel case, a "spectre of tragedy" is evoked by the mere mention of names such as "Bhopal, Chernobyl and the Exxon Valdez" which leave no doubt as to the "potential human and environmental devastation which can result from the violation of regulatory measures."888 In a subsequent Supreme Court of
Canada decision, the Court stated that the "polluter pays" principle is "firmly entrenched in environmental law in Canada."889 According to this principle, polluters are assigned "the responsibility for remedying contamination for which they are responsible" and have imposed on them "the direct and immediate costs of pollution."890 Still other courts frame the issue of sentencing for environmental offences in this manner: pollution "is a crime"891 and there are "unique considerations"892 or a "special approach"893 required in the case of sentencing for environmental offences.
170 This more holistic approach to sentencing mandates that, unlike the case for other regulatory offences, fines are not the only sanction for punishment of environmental offences. That the court should craft dispositions to repair the harm done by the offender and ensure that measures are put in place to prevent the breach of the regulatory standard from recurring, is evident in many of the following decisions. In one often cited case, R. v. Bata Industries Ltd.,894
Ormston J. found the defendant guilty of permitting the discharge of liquid industrial waste from its shoe manufacturing facility into the ground, in violation of the Ontario Water Resources Act895 Noting that there are not only "unique sentencing considerations" for public welfare offences, but that within "the subtopic of public welfare offences, environmental offences have their own set of special circumstances", the Court considered, referring to Cotton Felts Ltd., that protection of the public is best achieved by "emphasizing general deterrence rather than specific deterrence as the dominant sentencing principle."896 In the result, the directors of the company were each fined $12,000, and the Court indicated that the appropriate financial penalty against the company was
$120,000.
Rather than imposing the entire amount of $120,000 as a fine that, in the normal course, would be deposited to the Consolidated Revenue Fund and eventually reallocated to the Ministry of the Environment, Justice Ormston determined that half of the amount should be allocated "directly to the
171 environment, that is to say, the local environment. In addition to a fine of
$60,000, the defendant corporation was placed on probation for two years, with conditions aimed at achieving the goals of sentencing, as identified by the Court.
One of these terms required the company to provide $60,000 to a local waste
Management Board so as to assist in funding a strategy for household removal of toxic waste, by means of a "toxic taxi". Another term required the defendant to publish on the front page of its newsletter, for international distribution, the facts leading to its conviction, including the details of the penalties and terms of probation. The probation order further directed Bata to prepare a technical advisory circular on the topic of toxic waste storage, pursuant to Ontario
Standards, for distribution to all of its companies in the world; place a caution on the land to warn future purchasers of the environmental damage caused, until such time as the Ministry of the Environment determined that the chemicals released no longer posed a threat; make environmental issues a mandatory agenda item on all Board of Director's meetings during the term of the probation order; and the company was ordered not to indemnify the two directors for the fines imposed by the court. On appeal, the fines against the individual defendants were reduced from $12,000 to $6,000; the Court further considered that the total monetary penalty against the company should have been $90,000 rather than $120,000, hence Bata's contribution to the toxic waste disposal program was reduced from $60,000 to $30,000.898 On further appeal to the
Ontario Court of Appeal, the term of the probation order prohibiting the company
172 from indemnifying the individual directors was held not to be appropriate, and was deleted.899
In other cases, fines alone have been imposed. For example, in R. v.
Safety-Kleen Canada Inc.900 the trial judge fined the defendant $20,000 for being in possession of waste for which the generator of the waste had not completed a manifest. The provincial offences appeal court reduced the fine to $10,000. The
Court of Appeal stated that, assuming there was jurisdiction to consider the fitness of sentence, it would not vary the penalty.901 In another case, where the defendant was convicted at trial of discharging a pollutant, a small amount of chlorine in a localized area on the top of a building, fines totaling $8,000 were imposed as the breach was regarded as a technical one by the trial judge. The
Crown's appeal against these fines was rendered moot upon the convictions being set aside on appeal.902 A further appeal to the Ontario Court of Appeal resulted in the convictions being restored, but without further consideration of the quantum of sentence.903
There is a significant degree of variation in fine amounts and dispositions among the courts in Ontario. Whereas breaches of the Environmental Protection
Acf04 for failing to keep proper records of stored P.C.B. waste led the trial judge to impose fines of just over $171,200, the appeal court reduced the fines to
$13,500.905 Conversely, a $100,000 fine and a 6 month period of imprisonment was imposed in a case where the defendant had been convicted numerous times
173 for violating anti-pollution by-laws, and was found in contempt of court for contravening an order made by a justice of the peace.906 The Ontario Court of
Appeal set the period of imprisonment aside when the contempt conviction was quashed;907 however, subsequent contempt proceedings were initiated,908 resulting in a 6 month jail sentence being reinstated.909 At the time, the defendant's company was in default of $150,000 in fines imposed for pollution offences.
Fines and restorative justice orders along the lines crafted in the Bata
Industries case are not uncommon. Hence, in R. v. Shamrock Chemicals Ltd.,^° fines of $4,000 under the Ontario Water Resources /tor911 for discharging contaminated water were upheld on appeal, fines of $5,000 under the
Environmental Protection Acfu were substituted for those of $49,500 and
$24,750, but the trial judge's probation order containing a condition that the defendants complete a hydrogeological report proposing a remedial action plan and timetable respecting the lands described in the information, which was to be submitted by a specified date to the local district office of the Ministry of the
Environment, was affirmed. Similarly, in R. v. Rainone Construction Ltd.,9™ where the defendant deposited deleterious substances into a river frequented by fish, contrary to the Fisheries Act,9U a $5,000 fine was imposed, along with a payment of $40,000 to promote the conservation and protection of fish habitat in the affected river. In a case where a mill deposited acutely lethal effluent into
Nipigon Bay, fines totaling $210,00 were levied, along with a requirement that
174 $35,000 be provided to designated environmental programs relating to the fishery in Ontario, and particularly in the Nipigon Bay area.915 Depositing a deleterious substance in the Old Welland Canal, under conditions where that substance might enter Twelve Mile Creek, a body of water frequented by fish, resulted in fines of $35,000 and an order to pay $95,000 to the Niagara
Peninsula Conservation Authority.916
In R. v. Canadian Tire Corp.911 the defendant was found guilty on three counts of importing bar fridges that contained illegal chlorofluorocarbons, contrary to the Canadian Environmental Protection Act918 and the Ozone
Depleting Substance Regulations919 The trial judge imposed a total penalty of
$25,000, which was made payable to the Canadian Dermatological Association.
However, in doing so, it was observed by the appeal court that the trial judge made no reference "to the role of the deterrence principle in this instance of public welfare sentencing," or to the Court of Appeal's judgment in Cotton Felts
Ltd., which mandated that deterrence in such cases was "a critical objective even in the case of a first offender."920 Hill J. concluded that the fines imposed at trial fell within the range of "a mere licence fee for illegal activity", and increased them to $25,000 per count.921
There are many cases, however where fines alone, of varying amounts, remain the disposition of preference. A spillage of a plasticizer and solvent mixture from a tanker truck at the defendant's nylon intermediate plant resulted in
175 fines of $3,000 to the individual accused, who was a controller, and a fine of
$50,000 to the corporation.922 A $4,000 per day fine was upheld in another case, involving a discharge of materials from the defendant's mine tailings dam, which could impair water quality.923 In R. v. Commander Business Furniture lnc.,92A the
Crown's appeal against sentence was dismissed where the defendant discharged paint odour into the air from its furniture spray-painting business.
Fines totaling $20,000 were imposed against the corporate defendant, which was no longer in existence, and the individual defendant, a director of the company, was fined $5,000. General deterrence had been "accorded the most prominent place" by the trial judge in fashioning these penalties.925 Another Crown sentence appeal failed where the defendant railway was fined $12,000 for managing
PCB's without a certificate of approval.926 On the other hand, fines totaling
$28,500 were upheld on appeal where the defendant was convicted of operating a waste management system and a waste disposal site without a certificate of approval, and using a waste management system without such approval.927
There is a plethora of environmental offences sentencing decisions in other jurisdictions. The Alberta Court of Appeal rendered an instructive decision in R. v. Terroco Industries Ltd.,928 a transportation of dangerous goods case where the driver of a transport truck, who was inexperienced, was given erroneous identifying documents respecting the nature of the solutions at the pick up site. When the driver mixed the products in a single tank of the truck, chlorine gas escaped; another driver at the site was seriously injured due to being
176 exposed to the gas. A barrel of the mixture also seeped into the ground near a well. The trial judge fined the defendant $50,000 for releasing chlorine gas into the environment, contrary to the Environmental Protection and Enhancement
Act,929 and $5,000 for transporting dangerous goods without compliance with the applicable safety requirements under the Dangerous Goods Transportation and
Handling Act9Z0 On appeal, the fines were increased, respectively, to $150,000 and $15,000. The Alberta Court of Appeal, in turn, upheld the $150,000 fine but restored the $5,000 penalty for transporting the goods.
In arriving at its decision, the Alberta Court of Appeal stated that sentencing principles for environmental offences require "a special approach",931 adopting the words of Morrow J. in the Kenaston Drilling (Artie) Ltd. case.932 A
"key component" of sentences imposed for breaches of environmental protection statutes, in the Court's view, was specific and general deterrence.933 Ritter J.A., for the Court, explained:
Often breaches will arise out of shortcuts or perceived cost effective approaches taken by the offender. These shortcuts are to be discouraged both specifically with respect to the offender and generally with respect to the industry at large. Businesses that do not take short cuts or engage in risky or thoughtless behaviour should not be placed at a competitive disadvantage. Ultimately, a fit sentence should consider both the offence and the offender. It should be such that it is cheaper to comply than to offend and it must be meaningful to the offender by securing and holding its attention.934
177 The Court went on to find that deterrence had a "considerable role to play in appropriate sentences" for the offences under consideration, given that the defendant's conduct involved "a significant degree of culpability" as it had chosen to conduct its affairs in a cost effective way, but did not properly consider that the inexperienced personnel "placed the environment and the public at risk."935 The principle of general deterrence also was engaged, so that others would be aware that "what may appear to be cost-effective but risky behaviour will result in a stiff penalty."936
Sentences that include orders aimed at preventing repetition of the offence or repairing the harm caused by the offender are also not uncommon in the Alberta courts. In Cool Spring Dairy Farms Ltd.,937 the accused, who were alfalfa producers, were found guilty of offences that related to emissions of dust from their facility that were beyond the prescribed levels. Due to the noise generated by their equipment, they were prohibited from operating the facility during certain hours, but they were found to have contravened this requirement.
The trial judge imposed fines totaling $50,000 between the defendants, and made an order requiring the facility to stop work. In addition, he ordered that the defendants pay security of a further $50,000, otherwise it would be deemed to be a decision by them to cease operations. There was also a requirement that the defendants submit a written report from a consultant as to steps to reduce the emissions of dust, after which time they were to meet with the Director to discuss
178 what arrangements would be put in place to achieve these measures. Failure to do so would result in forfeiture of the security.
On appeal, the Crown agreed to the removal of the term that failure to post the $50,000 security would be deemed as a decision by the defendants to cease their business. However, the appeal court was further of the opinion that the factor of deterrence, which "was the primary factor behind the sentences imposed" had been over-emphasized.938 As a result, the fine was reduced to
$25,000 globally for both defendants, and the security deposit and requirement that the defendants stop their operations pending the deposit was also set aside.
The conditions respecting the filing of the report and meeting with the Director thereafter were not disturbed.
The same judge who heard the Cool Spring Dairy Farms case, Sulyma J., subsequently decided a matter where the Crown brought a sentence appeal against a $7,000 fine in a case involving the off-loading of canisters that contained potassium superoxide.939 The canisters were classified as dangerous goods under the federal legislation, and hazardous waste under the provincial environmental law. The Crown had sought a penalty of six months' imprisonment before the trial judge, arguing that the potential for profits from the crime constituted an "extreme aggravating factor."940 The Court noted, however, applying United Keno Hill Mines Ltd.,941 that the range of "inherent criminality" in pollution cases can be extreme, and that the severity of punishment should be
179 "directly related to the degree of criminality inherent in the manner of committing the offence."942 Moreover, it did not follow, in the Court's view, that "the only fit sentence for an environmental offence which in turn involves a potential for profit is that of a custodial sentence."943 The sentence imposed by the trial judge was found not to be demonstrably unfit, or to have proceeded from any error of law or principle, thus resulting in the Crown's sentence appeal being dismissed.
Fines that were imposed in other Alberta cases have also been the subject of Crown appeals. In R. v. Blain's Custom Ag (99) Lto.,944 the trial judge fined the defendant $1,000 for refusing to produce records, as required by the
Environmental Protection and Enhancement Act (Alta.)945 The defendant believed that the records would be used against him in some inappropriate fashion; he later produced the records, and pleaded guilty to the offence. The defendant had been charged with other offences relating to the improper application of potentially dangerous chemicals, which were subsequently withdrawn. The sentence was upheld on appeal.
In another case, R. v. Centennial Zinc Plating Ltd.,946 a fine of $125,000 was imposed where the defendant unlawfully released cyanide and chrome compounds into the environment. The basis of the Crown's sentence appeal was that the trial judge had declined to make an order for community service or a
"creative sentence", namely, requiring the defendant to provide funding for research. As particularized by the Crown, the proposal was for a fund to be
180 established of approximately $50,000 per year for a total of $200,000, for a
Master's student or Ph.D. candidate to conduct research as to the type of micro organisms which might be "capable of in a sense naturally dealing with the cynanide," under the supervision of an assistant professor in the Soil
Biochemistry Department at the University of Alberta, and a representative of
Alberta Environment who was also a soil scientist.947 In addition, the Crown recommended that the defendant be fined $75,000 for the offence itself. The appeal court judge indicated that he would have been inclined, as a trial judge, to impose a greater total sanction, including both a fine and a community service order. However, he concluded that the sentence rendered by the trial judge was not patently unfit so as to require appellate intervention.
The British Columbia Court of Appeal recently considered the fitness of sentence in a case where the defendant was fined $10,000, and ordered to remove a septic tank and drainage field that he had installed on his property, without first obtaining a permit.948 The defendant lived on a waterfront property; the lake was a source of drinking water for the residents. The appeal court affirmed the fine on the basis that deterrence was "an appropriate goal in sentencing";949 it also found that the order to remove the septic tank was in accordance with the principles in environmental cases of the potential for harm
"to the environmental protection process."950 The British Columbia Court of
Appeal upheld the sentence, stating that the sentencing principles applicable to public welfare offences "are generally seen to be denunciation and
181 deterrence. It cited the Cotton Felts Ltd. decision as authority for these
"guiding principles."952 The circumstances of the offence were "very serious", given the threat of sewage infiltrating a public drinking water source "with potentially very serious damage."953 Kirkpatrick J.A., on behalf of the Court, concluded:
I am unable to find any error in the approach taken by the sentencing judge or the summary conviction appeal judge to the removal order. Both had in mind the salutary principle that public welfare offences involving the contravention of rules designed and enforced to protect the physical, economic and social welfare of the public will attract sanctions that are designed to deter the offender and other like-minded persons.954
Sentences in other British Columbia cases reveal significant differences in fine levels and accompanying orders. In one decision involving pollution of an anti-stain lumber agent that is acutely toxic to fish, even when greatly diluted, the trial judge imposed a fine of $35,000; however, the appeal court considered that the sentence was excessive, and reduced it to just $2,000.955 In another case where the defendant had been convicted at trial of permitting waste to be introduced into the environment, the Crown brought an appeal against the sentence of a $10,000 fine.956 The appeal court judge, though, allowed the defendant's appeal and set aside the convictions. In doing so, Shaw J. observed that such a high fine was uncalled for, and would have dismissed the Crown's sentence appeal, had it been necessary to do so.957 In yet another decision where significant fines were imposed at trial, $200,000, for discharging waste into water in excess of permit limits, the appeal court reduced the fines by more than
182 half, to a total of $95,000, on the basis that the penalty was not appropriate to the circumstances, giving too much emphasis to the concept of specific deterrence.958
On the other hand, exemplary fines have been upheld in a number of
British Columbia cases. In R. v. Fibreco Pulp /nc.,959 the trial judge imposed fines of $5,000 per day for the 40 day period that the defendant was found to have breached its permit which set the amount of waste that it was permitted to discharge into the Peace River. Its appeal against the total fine of $200,000, or
"forty days of fines" as Maczko J. phrased it, was dismissed, given that the fine was "entirely appropriate for this type of case."960 A further appeal to the British
Columbia Court of Appeal was dismissed.961
In another case, R. v. Alpha Manufacturing /nc.,962where convictions were imposed for dumping waste into the environment, the corporate defendant was fined $640,000, consisting of $390,000 which represented its profits from committing the offence, plus a further $250,000; the individual defendant,
Anderson, who was the principal of the company, was sentenced to 21 days of imprisonment and fined $75,000. The permit issued to the company allowed it to dump waste in an area specified by legal description. However, the defendants began dumping outside the area, and destroyed about seven acres of a bog. The appeal court considered that the trial judge was correct in giving "the deterrent aspect of the sentence paramount consideration," stating that this approach is
183 "particularly important in public welfare offences such as environmental offences."963 In support of this proposition Gray J. cited the Cotton Felts decision.
The fines imposed were considered fit in all the circumstances, particularly having regard to the significant harm to the environment. However, the jail sentence given to the individual defendant, who was a 60-year old woman with no prior convictions, was held to be excessive and was set aside. A further appeal by Anderson against the quantum of her fine was dismissed by the British
Columbia Court of Appeal.964
In one other recent decision, R. v. Canadian Pacific Railway Co.,965 where a train derailment resulted in approximately 75,000 litres of ethylene glycol spilling into a ditch opposite the Burrard Inlet, the trial judge imposed a sentence consisting of a $25,000 fine and a payment of $50,000 directed to be paid to the
Environmental Protection Fund under the Fisheries Act966 In upholding the sentence, Griest J. observed that the trial judge "recognized the priority of deterring the defendant and others from committing environmental offences in conjunction with the environmental impact of the spill."967
Sentencing decisions in environmental regulation cases in other jurisdictions show similar patterns of inconsistency. In a Saskatchewan case involving ditching that was undertaken in a wildlife habitat land to alleviate flooding problems, but without proper permits, the regional municipality was fined a total of $20,000; three individuals including the reeve, a councilor and rate
184 payer, were fined, respectively, $2000, $1,000 and $1,000.968 The appeal court found that the sentences were neither excessive nor otherwise inappropriate.
These fine amounts may be contrasted with another permit case, R. v. Echo Bay
Mines Ltd.,969 where the defendant was fined $4,000 on each of seven counts of quarrying without a land use permit. However, Marshall J. considered that the company's breach of the law was "benign and technical", thereby resulting in a reduction of the fines from $28,000 to $1,000.970 Conversely, in Kenaston Drilling
(Arctic) Lfcf.,971 Morrow J. increased a $100 fine to $2,000 against a corporation that had conducted a land use operation in a land management zone without a proper permit, observing:
In cases of this kind to fine a corporation such as the present one a mere $100 is to in effect invite breaches, to invite the gamble. Where the economic rewards are big enough persons or corporations will only be encouraged to take what might be termed a calculated risk. It seems to me that Courts should deal with this type of offence with resolution, should stress the deterrent, viz., the high cost, in the hope that the chance will not be taken because it is too costly.972
Substantial fines have been imposed in other cases. In R. v. Placer
Development Ltd.,973 the defendant was convicted on nine counts of diverting the flow of water within a water management area, for nine days, without authorization; de Weerdt J. fined it $4,000 on each of the four days that the work was done, and $5,000 on each of the five days immediately afterward, for a total of $21,000. In a subsequent case, de Weerdt J. upheld a fine of $15,000 for a corporate accused that was convicted of polluting water frequented by fish.974
185 However, the trial judge's order requiring the directors and chief executive officer to make a public apology was quashed on the basis that it was improper to coerce an apology from the defendant where none had been offered voluntarily.
In one other case, R. v. Northwest Territories (Commissioner),975 de
Weerdt J., sitting again as an appeal court, considered appeals by both the defendant and Crown where a dyke, containing a lagoon in which raw untreated sewage and municipal waste was stored, failed over a 10 day period.
Consequently, 12.3 million gallons of such sewage and waste was released into an inlet, which was an arm of the sea within Frobisher Bay, on the south shores of Baffin Island. The trial judge fined the defendant $49,000 and ordered it to make a payment order for $40,000 for the purpose of promoting the conservation and protection of fish or fish habitat in the Northwest Territories. This total penalty of $89,000 was raised on appeal to $200,000 on the basis that both the fine and payment order required variation. The fine was increased to $100,000 as was the payment order.976
There are examples of significant penalties in other cases. In R. v. Iqaluit
(City)977 a discharge of raw sewage from the defendant's two sewage lift stations into the waters of Koojesse Inlet on five occasions resulted in between 540,000 and 830,000 litres of effluent escaping to foul the waters adjacent to the City of
Iqaluit. The Court imposed a fine of $10,000 and made an order for $90,000 to
186 be paid to the Minister of Environment for the purpose of promoting the conservation and protection offish or fish habitat in Nunavut.978
The Cotton Felts Ltd. decision was cited in a Quebec case, R. v. Services environnementaux Laidlaw (Mercier) Ltee.,979 where a fine of $10,000 and costs of more than $25,000 were imposed against the defendant for discharging a contaminant into the environment. The Crown brought an appeal against the sentence, which was allowed. Sevigny J. observed that in pollution cases, the primary goal of sentencing is "la protection du public"980 since in such cases
"c'est toute la population environnante qui est la victime."981 Citing the need for deterrent penalties as discussed in Cotton Felts, the fine was raised to $50,000.
Fines exceeding $100, 000 were upheld by the Nova Scotia Court of
Appeal in R. v. Vac Daniels Lfc/.,982 a case where the corporate defendant and its president were convicted of failing to respond to demands by environmental officials as to where hazardous fluid waste had been deposited, as required by the Environmental Protection Act983 By refusing to provide information as to where the wastes were dumped, the defendants avoided costs of any cleanup.
The Court of Appeal affirmed the $90,000 fine to the company and $25,000 fine to its president, commenting, "Violations of rules for the protection of the environment strike at the interests of all individuals and call for strongly deterrent penalties."984
187 These fine levels stand in contrast to those in other Nova Scotia cases. In
R. v. Oxford Frozen Foods Ltd.,985 the trial judge imposed a fine of $6,000 for dumping deleterious substances in water frequented by fish. The defendant was also ordered to implement an environmental control program. Due to a breach in a dyke in one of the plant's waste treatment or holding lagoons, more than two million litres of waste water was discharged into a river. The defendant did not take any action to recover any of the lost waste water. Neither did it have a contingency plan for problems that developed through spills. On appeal, it was held that the trial judge had over-emphasized deterrence, and the fine was reduced to $4,000. In another case, the Crown's appeal, against a $300 fine for violating a Ministerial order by discharging waste and exceeding the prescribed limits, was dismissed.986 In upholding the sentence, Stewart J. stated that for regulatory offences and Fisheries Act and Regulations' offences, "general deterrence is paramount in sentencing,"987 citing Cotton Felts Ltd. as authority for this proposition. However, the violation was a technical one rather than deliberate, and the defendant had installed a new method to eliminate effluent and resolve the problem.
In a Crown sentence appeal case in New Brunswick, R. v. Fraser Papers
Inc. (Canada),988 the defendant was fined $1,000 for releasing a contaminant into the air that caused damage to property, contrary to the Clean Air Act.989 The prosecutor had sought a fine in the range of $10,000 to $15,000. It was determined that 19 homes and businesses had been sprayed with the pulp/liquor
188 fall-out, which the defendant cleaned at a cost of $9,361. However, there was no evidence that the fall-out resulted in harm to the environment or posed any risk to the health or safety of the public. The appeal court dismissed the Crown's appeal, holding that the trial judge had not committed any error in principle, or failed to consider a relevant factor or overemphasized any appropriate factors.
In another New Brunswick case where the Crown brought a sentence appeal, R. v. Gemtec Ltd.,990 the defendant was convicted of two counts of depositing a deleterious substance into the Jonathan Creek and the Petitcodiac
River. On the first count an absolute discharge was imposed; on the second count the individual defendant, who was the president of the company, was fined
$1,000 and ordered to pay $1,000 to the Environmental Damages Fund and another $1,000 to restore the Jonathan Creek, whereas the corporate defendant was fined $5,000 and ordered to make $10,000 payments to the same two beneficiaries. The total amount of the fines, thus, was $28,000. However, the
Crown sought an increase of these fines to a range of $70,000 to $80,000 on the basis that the trial judge erred by failing to give proper consideration to "the need to address both specific and general deterrence in the regulatory context."991
McNally J., disagreed, observing that the penalties and fines imposed by the trial judge did not amount to "a mere 'slap on the wrist' or a 'licence' to do business."992 As a result, the Crown's sentence appeal was dismissed.
189 Finally, the Courts in Newfoundland have also imposed penalties in varying amounts in environmental cases. In R. v. Lundrigan Group Ltd.,993 the defendant was found guilty of polluting a salmon river for which it was fined
$10,000. The substance released, silt, was harmful to fish, but it was not a toxic chemical, and there was no evidence of any fish kill. The appeal court held that the sentence imposed "properly emphasized the specific and general deterrence aspects of sentencing rather than the interests of the offender."994 Conversely, in
R. v. Pennecon Ltd.995 fines totaling $2,000 were reduced to $1,000 on appeal where the defendant was convicted of operating an asphalt plant, contrary to the
Department of Environment and Lands Act (N.S.)996 There had been an emission of a small quantity of non-toxic gravel dust into the air, with no serious or permanent risk to the environment.997 Indeed, the Crown agreed that, in the circumstances of the case, the fine should be reduced to $1,000.998
In a recent decision, R. v. Newfoundland Recycling Ltd.999 the defendant was fined $15,000 for discharging more than 1,000 litres of oil from its vessel into waters frequented by fish. The vessel had been tied to the dock when it sank, causing the oil spill. There was no immediate environmental impact and the act, resulting in the spill, was unintentional in nature. The appeal court found that the fines were not unfit. In coming to this conclusion, Dunn J. noted that in a similar case involving an oil spill of 1,000 litres from a vessel, R. v. Tahkuna (The),™00 a fine of $20,000 was upheld on appeal. Although there was no environmental damage in that case, 1500 feet of shoreline had been affected by the spill, and
190 the owners of the vessel paid Environment Canada $67,000 for the cost of the clean-up. Dunn J.'s decision was upheld on appeal.1001
5. Conclusion
As the review of sentencing jurisprudence in this matrix indicates, there is marked inconsistency in the dispositions imposed by courts throughout Canada in respect of workplace safety, consumer protection and environmental regulation decisions. That this is so is to be expected. There is no Supreme Court of
Canada case on point setting out the sentencing principles that should apply for regulatory offences generally, or to these categories of regulatory offences cases in particular. Appellate decisions throughout Canada vary, and are principally concerned with legislation which applies in the particular jurisdiction, save for public welfare legislation enacted by the federal government. Neither have legislators enacted a statement of sentencing purposes or principles for regulatory offences so as to guide courts imposing sentences in the same manner that Parliament has done for criminal offences. The sentencing jurisprudence that has thus emerged reflects these institutional limitations, and informs the debate with respect to the need for a clear statement of sentencing purposes and principles.
Indeed, one of the most often cited decisions governing regulatory offences sentencing considerations, R. v. Cotton Felts Ltd.,™02 was rendered more than 25 years ago, and appears to have been overtaken by other events,
191 such as increasingly high fine ceilings for public welfare offences that, in many cases, far exceed those for criminal offences. There has also been the development of other sentencing initiatives, especially creative sentencing orders, where the offender is required to provide funds to an agency, for example, to repair the harm it has caused, or to study ways in which a recurrence might best be prevented. In short, the Cotton Felts Ltd. decision is as likely to be cited, as the matrix of sentencing cases reveals, to increase a fine fivefold,1003 as it is to uphold a fine of a few hundred dollars.1004 Deterrence and denunciation, the key sentencing concepts promulgated by Cotton Felts Ltd., have been relied upon to impose creative sentencing orders,1005 but also in declining to do so.1006
Perhaps the greatest limitation that has developed, however, in the sentencing jurisprudence for regulatory offences, as the result of the Cotton Felts
Ltd. decision, is the emphasis it places on the use of fines as the penalty of preference for breaches of regulatory standards. While it is stated that fines should not operate as mere licence fees or the cost of doing business, fines remain, ultimately punitive in nature, and increasingly appear to be an insufficient sentencing tool, at least on their own. It has been observed that the use of "a fine-only sentence makes trial courts vulnerable to seemingly arbitrary sentence reductions or even increases by appellate courts."1007 Indeed, "pure number picking in fines" may bolster the impression that financial penalties "are merely a cost of doing business."1008 Fines, alone, clearly inhibit the creation of a culture of compliance.1009
192 It appears, then, that a new approach is required, in order to properly identify sentencing purposes and principles that are to be applied to regulatory offences specifically, and that are best suited to the regulatory context in which such offences occur. Where there has been a breach of a regulatory standard, the court must look not only backwards at the conduct which gave rise to the non-compliance, but forward as well, since the defendant will often continue to participate in the regulated activity following the imposition of punishment. It is therefore especially important that the court on sentencing address this consideration, which is very different than the context in which criminal defendants are punished for engaging in anti-social or morally blameworthy behaviour. It is to these issues that consideration will next be given.
193 PART IV. SETTLING ON SOLUTIONS: THE REGULATORY CYCLE AND PURPOSES AND PRINCIPLES OF SENTENCING FOR REGULATORY OFFENCES
Chapter 5. The Regulatory Cycle and its Role in Shaping Purposes and Principles of Sentencing for Regulatory Offences
1. Introduction
There is presently, as has been noted, no identified set of sentencing purposes and principles for regulatory offences. As a result, it is up to each court, in each case, to assess the circumstances of the offence, and the offender, and to impose a sentence that best reflects the melange of principles of traditional sentencing theory, including denunciation, deterrence, protection of the public, rehabilitation, reparations, and promoting a sense of responsibility in offenders along with an acknowledgment of the harm done to victims and the community, all in juxtaposition to public welfare or regulatory offences. But such offences correspond to an incredibly diverse and complex series of activities, ranging from protection of the environment, workplace safety and motor vehicle infractions.1010
These are but a few examples. Public welfare laws, as has been noted, "pervade the lives of ordinary people."1011
In a recent article on sentencing for regulatory offences, Verhulst comments that unlike sentencing in the criminal process where the imposition of punishment concludes a morally blameworthy offender's dealings with the State, sentencing in the context of regulatory offences, which are for the protection of the public from conduct which is not intrinsically evil, is better viewed as part of a
194 cycle, and not the culmination of a process.1012 That is, sentencing is merely one part, albeit a most important part, in the regulatory offences paradigm. The beginning of the regulatory cycle involves the identification of regulatory objectives; provisions are subsequently devised, and implemented, to give effect to these objectives, including the creation of regulatory offences.1013 Enforcement strategies may thus include prosecution, in which case the offender, upon being convicted and sentenced, is often permitted to return to participate in the regulated activity, thereby continuing to be involved in the regulatory cycle, even after the imposition of punishment by the court.
If criminal offences and regulatory infractions reflect different societal interests and purposes, it follows, as Verhulst suggests, that punishment principles should also mirror these differences. That is, the rationale for punishment imposed by the court for a criminal offence, and that for a breach of a regulatory provision, should find expression in the sanction or disposition of the court. As Gunningham observes, sanctions ought to be "sensitive to the nature of the behaviour to be controlled."1014 It is here that the regulatory cycle takes on particular importance: unlike criminal conduct where the party's actions will cease and the court's punishment will conclude the defendant's interactions with the state, the regulated actor will usually be permitted to continue participating in the regulatory endeavour, even after punishment has been imposed, unless even more severe enforcement actions are necessary, such as a licence suspension or revocation, that is, the final stages of the regulatory enforcement pyramid.
195 Regulatory theory, particularly as it relates to those who come into contact with the enforcement mechanism of prosecution, therefore has the potential to play an important role in the shaping of sentencing purposes and principles for regulatory offences. Stated shortly, regulatory theory can and should influence sentencing practices since regulation and sentencing alike are part of the same cycle; placing the offender within the regulatory context on sentencing allows the court to understand the underlying regulatory objectives.
Scholars like G.unningham,1015 Braithwaite,1016 Breyer,1017 and Archibald et al1018 make important contributions to regulatory theory literature in this area through their work on the model of the enforcement pyramid as it relates to regulatory offences. However, these studies tend to focus on the perspective of regulators, and their efforts to encourage regulatory compliance through enforcement strategies, but less so towards the attitudes of the regulated parties themselves, and the extent to which such factors should inform the disposition of the sentencing court in its choice of the appropriate sanction. The conduct of those being regulated, and an understanding of their motivations and responses to initiatives designed to induce compliance, is an important consideration for sentencing courts. "Attitudes" may be judged along with "activities".1019 Thus, it is necessary to distinguish between regulations and regulators, and those who are the intended beneficiaries of such "social policy objectives," including both the regulated parties and the public at large.1020 After all, as Glasbeek puts it, regulatees do "play a large role in the regulation of their activities", for they, and
496 not regulators, are the "best judges of their self-interest, they are the ones with the requisite skills and abilities to measure the costs and the benefits of their activities."1021
The focus of this chapter, then, will be to explore and critically analyze the concept of the regulatory cycle, and examine how it has the potential to play an important role in shaping regulatory offences sentencing purposes and principles.
A proper understanding of the regulatory cycle is essential for courts when imposing punishment for regulatory offences, so as to better promote regulatory sentencing objectives and outcomes. The identification of sentencing purposes and principles for regulatory offences bolsters, in turn, the ability of courts to select the sanction that best encourages the regulated actor's successful reintegration within the regulatory cycle.
In terms of this chapter's organization, there is first an overview of the concepts of risk assessment and risk management, which are central to the notion of the regulatory cycle. Whereas the risk assessment process leads to the choice of regulatory strategy, the risk management process leads to the choice of enforcement strategy. This is followed by a discussion of regulatory enforcement pyramids which include, as one option, prosecution of regulated parties who fail to meet the regulatory standard. The focus then moves to the two central topics in the chapter which apply these key concepts: (i) "penalties principles", and (ii) changing regulatory strategies. Penalties principles apply to both the particular
197 choice of sanction within the enforcement pyramid, and to the choice of sanction by the courts; an appreciation of changing regulatory strategies allows the court, when crafting its sentence, to better understand the offender's past and current behaviour. In the conclusion, observations are made for future consideration as to the utility of the regulatory cycle, and its potential for playing a role in the debate concerning the identification and enactment of sentencing purposes and principles for regulatory offences.
2. Risk Assessment and Risk Management
The regulatory cycle has its roots in risk assessment and risk management theory. As noted in Chapter 1, sentencing for the commission of a regulatory offence has been described as "risk management on its head": it represents a response to the failure of preventing a violation of a regulatory standard that embodies risk assessment.1022 Risk assessment is a "scientific assessment of the true risk" whereas risk management "incorporates non- scientific factors to reach a policy decision."1023 The scientific assessment of risk may be converted into laws or regulations; the extent of legal enforcement and allocation of resources for enforcement involves risk management.1024 However, it is at the sentencing stage that courts have the opportunity to address the regulatory standards that have been set by the legislature. That is, it is only where a regulated party has been found to have breached the regulatory
198 standard that the court has the opportunity of quantifying this shortcoming, as reflected by the penalty it imposes.
The risk assessment process informs the choice of regulatory strategy.
That is, it forms the basis of regulation, and the choice of what conduct will be required or prohibited. The risk management process, in turn, leads to the choice of enforcement strategy. It impacts on the enforcement pyramid, and the choice of sanction sought by the regulator on contravention of the regulatory standard.
An appreciation of this assists the court, on sentencing, in understanding the past and current behaviour of the offender. Specifically, it draws attention to any problems in the regulatory strategy that may have adversely affected compliance; it also reveals the nature of the relationship between the regulated party and the regulator, including enforcement practices. These factors are relevant to the court, and assist it in crafting a sentence that is responsive to the needs of the offender, particularly in moving the regulated party back to achieving compliance.
It is important, then, to examine the concepts of risk assessment and risk management at the outset, as they comprise the foundation of the regulatory cycle.
Risk assessment is described by Salter and Slaco as a "problem-oriented concept" whose use is said to imply that "developments should be allowed to proceed, and products used, unless serious problems have been identified."1025
The authors go on to point out that the model for risk assessment is largely taken
199 from epidemiology, where comparisons of fatality or disease rates are based on statistical information, there are no "standard yardsticks" for the measurement of risk in forums such as inquiries. Although inquiries are not the same as courts, the former is an instrument of the legal process that can take "evidence", and under specific conditions, such testimony can be used in a court. Science and scientists, however, routinely participate in the "making of public policy" or
"mandated science" as Salter calls it. 1026 Indeed, science in government is "tied closely to regulating and managing risks."1027 Risk assessment may be viewed, then, as "a procedure for bringing together a scientific and a value-based assessment."1028 That is, the scientific assessment of risk is "converted" into regulations or laws that are enacted or codified by legislators.1029
Yet, as Breyer notes, it is not all risk that is the subject of regulation, but only that which regulators identify in order to "make our lives safer by eliminating or reducing our exposure to certain potentially risky substances or even persons."1030 Measures designed to eliminate or reduce risk can be "enormously costly."1031 Whenever individuals engage in an activity, "there is a risk and eliminating that risk carries a cost."1032 Risk assessment may be considered, though, as an "essential means of directing regulatory resources where they can have the maximum impact on outcomes."1033 There must therefore be not only a
"real scientific basis" for the regulations or law that result from risk assessment, but a value judgment as to the desirability of expending resources to achieve this regulatory result.1034 Risk assessment is the "technical part" of the regulatory
200 system.1035 In short, it is designed to measure the risk associated with the substance.
Risk management, on the other hand, is "more policy-oriented", and involves determining "what to do about jt."1036 That is, risk management is the means by which the regulator decides what do about the "risks that the assessment reveals."1037 This process entails weighing policy options in view of the results of risk assessment, and "selecting appropriate control options including regulatory measures."1038
An integrated framework for risk assessment and risk management consists of six stages: (i) defining the problem and putting it in context (ii) analyzing the risks associated with the problem in context (iii) examining options for addressing the risks (iv) making decisions about which options to implement
(v) taking actions to implement the decisions (vi) conducting an evaluation of the action's results.1039 Predicting risk is a "scientifically related enterprise."1040
Certainty and objectivity are key components of the scientific process.1041 On the other hand, the "translation of risk assessment into law" entails a process of risk management involving the "incorporation of non-scientific factors to reach a policy decision."1042 Ricci observes that risk assessment "develops choices" for risk managers to rank according to criteria such as risk-cost-benefit analysis, and
"implement, monitor and change as new knowledge becomes accepted."1043
201 Regulators must also take into account a plethora of other factors, including circumstances which may be constantly changing, and require the expertise of other disciplines in order to arrive at a decision. In addition to a
"science foundation," there may be policy and "political considerations".1044
Issues take on more complexity when there is a "public interest involved."1045
Maintaining the public's confidence requires that all of the relevant information ought to be considered.1046 The public must be apprised of the "realities" of risk management.1047 Scott puts the matter this way: while risk can be measured precisely by a formula which is a "simple function of the magnitude of the loss and the probability of occurrence", the question for "ordinary people" whether a particular activity is considered risky depends on factors external to consequences or magnitude of the loss, and the probability of occurrence.1048
That is, while science provides a means for calculating the "probability of harm under certain conditions", decisions as to the "acceptability of risk" are beyond the proper scope of science and are the subject of risk management.1049 In short, regulatory risk management "prioritizes different types of risk and permits a calculation on which a plan of action can be based."1050
3. Regulatory Enforcement Pyramids
Instituting a prosecution before a court of law is one such "plan of action," as noted above, in the regulatory risk management spectrum. However, courts and regulatory agencies may view the risk associated with products or activities in very different ways. Each represents different institutions with different
202 interests. What seems unreasonable to a court may not appear to be unreasonable to a regulator.1051
Regulators are concerned with reaching administrative and practical results which help attain the general public interest goal of the legislation in question. Indeed, this may represent a compromise solution which is deemed acceptable by the groups involved. Regulators, it has been observed, prefer to think of themselves as "expert advisers rather than industrial police."1052 The sphere within which regulators operate is "dynamic and proactive."1053 Courts, on the other hand, must make decisions based on the record placed before them, without necessarily all of the relevant facts or further factual investigation. The judge's ruling must be "fair, the merits of which depend upon the relevant legal norm."1054 The role of the court is not to seek out additional information beyond that which is placed before it; neither is it concerned with establishing a working relationship with the parties. In the context of a prosecution, there is an adversarial relationship between the parties themselves, and the court is to take a detached, neutral role in making a determination on the merits of the case.
For these reasons, a compromise solution that is considered reasonable by a regulator, due to practical and administrative considerations, may not seem
"rational" to the judge upon viewing the matter in light of statutory interpretation and legal precedent in relation to the merits of the case.1055 Courts are "policy interpreters" whereas regulators act as "policy makers."1056 Regulators do not
203 simply make and enforce rules: they "commonly carry out a number of administrative, judicial-like, policy analysis, and other functions."1057
Given these limitations in the court system, and the breadth of regulators' responsibilities, punishment is weighed by regulators along with other compliance measures. It is here that the enforcement pyramid illustrates the graduated choices available to regulators, only one of which is prosecution. In fact, in the enforcement pyramid, most offences, explains Braithwaite, are at the base, and attract "gentle sanctions"; the intention is that "progressively fewer suffer the tougher sanctions."1058 This approach acts as a deterrent to those who fear being singled out and having the "book thrown at them."1059 At the same time, it encourages those who are being regulated to reform their ways so as to receive treatment which is more lenient. Regulatory institutions must be able to protect society "against knaves while leaving space for the nurturing of civic virtue."1060 Excellence in compliance, as Haines and Gurney observe, will not be achieved by "regulatory strategies in isolation from enforcement."1061
The base of the enforcement pyramid, then, is concerned with persuasion: most regulatory action occurs at the lowest level of the pyramid where attempts are made by regulators to coax compliance from the regulated party.1062
Voluntary or negotiated compliance measures, however, must be "backed" by other options. Thus, in the next phase of escalation are warning letters. Attempts to secure compliance thereafter are through the means of civil monetary
204 penalties. It is only following this stage that criminal prosecutions are brought.
Should further steps of increasing severity be required, it is open to the regulator to seek a shutdown or temporary licence suspension of the regulated activity.
The final step if this fails is permanent licence revocation.1063 From a regulatory perspective, it is essential that the response be "neither too lenient nor too severe."1064 In the "responsive regulation" approach, escalated responses which result in compliance must be followed by measures to "de-escalate down the pyramid."1065 To put it another way, the behaviour of the regulated party serves to
"channel the regulatory strategy to greater or lesser degrees of government intervention."1066 The goal is to encourage laggards to become leaders and
"committed compilers".1067 As Baar puts it, "positive compliance programs" seek to find the "right balance between persuasion and punishment."1068
The regulatory enforcement pyramid may be adapted to the theories of risk assessment and risk management.1069 Braithwaite uses the term "meta risk management" to describe the "risk management of risk management," that is, the application of risk management techniques to determine which level of risk management will be used by the state towards the actors in question.1070 Of course, risk assessment techniques are not infallible, and the risks of non compliance may be great, as where the regulated activity concerns the potential for harm as opposed to lost revenue.1071 However, the application of risk management principles to the regulatory enforcement pyramid, and the more efficient deployment of regulatory resources, constitutes a "shift from reactive law
205 enforcement to proactive risk management" where the regulator "scans its environment for the greatest risks and moves resources to where those risks can be managed."1072
Gunningham and Johnstone observe that while the enforcement pyramid involves both "carrots and sticks", it is usually the case that persons being regulated respond better to rewards than to punishments.1073 Moreover, those who comply willingly or voluntarily tend to do so with "far more commitment and effect" than those who are reluctant to undertake such efforts, and become compliant only under "threat of penalty."1074 In sum, "volunteers almost always behave better than conscripts."1075
Indeed, Braithwaite's approach may be said to be "bottom heavy" since it is contemplated that most action takes place at the base of the enforcement pyramid.1076 In Ayres and Braithwaite's view, regulatory agencies are most effective at securing compliance when they act as "benign big guns." That is, regulators can "speak softly" when they carry "big sticks", including a hierarchy of lesser sanctions; the larger and more various the sticks, the greater the likelihood that success will be achieved by "speaking softly."1077 Punishment is "expensive" whereas persuasion is "cheap". 1078At the same time, however, while regulators are attempting to build relationships with regulatees, other processes may be involved and operate at cross-purposes, such as organizations dealing with
206 compensation claims for injured parties, or inquiries as to the cause of industrial accidents, where issues of fault or blame potentially arise. 1079
The relationship between regulators and the regulated parties is hardly static or one-dimensional. Neither is this the product of the size of the enforcement weapons that are wielded by the former, nor the pain that may be inflicted on the latter. Just as regulators have the ability to move up and down the enforcement pyramid, the regulated parties may respond to initiatives aimed at inducing compliance with more or less commitment. The manner in which regulatees comply with their obligations is described by Johnstone as consisting of three stages: (i) a commitment to compliance (ii) learning what procedures are necessary for compliance (iii) institutionalizing compliance by implementing risk management systems.1080 These stages are not necessarily unilinear, and regulatees may move both backwards and forwards throughout the different phases.1081
In the first such stage, a form of "self regulation" takes place, owing to a commitment by management or the individual to comply with the regulatory regime. There may be a number of reasons or incentives for doing so, ranging from the desire to avoid unfavourable publicity, the imposition of a new regulatory requirement, or the result of a "shock induced by enforcement action".1082 The second phase involves learning how to comply or putting into effect a "design and establishment."1083 It is during this juncture that risk management systems
207 are typically developed.1084 Finally, there is institutionalism of compliance measures. According to Hutter, there are two discrete phases in this process: first, an "operational phase" where risk management systems, procedures and rules are implemented, and second, a "normalization phase" where behavioual change is institutionalized, and there is "compliance with risk management procedures and rules as part of the normal, everyday life" on the part of the regulated party.1085
4. The Regulatory Cycle and "Penalties Principles"
Despite the best efforts of regulators and regulatees, non-adversarial efforts aimed at achieving compliance, including negotiation, may not suffice, and prosecution might appear at some point to be the most appropriate enforcement response. It is clear that in terms of the regulatory enforcement pyramid, this is not the sanction of first choice; but neither is it the final option. Where charges are brought before a court, a successful prosecution will lead to conviction and punishment. However, unlike criminal conduct where the underlying act is blameworthy and morally wrong, leading to a penalty to deter the guilty party from repetition of the offence, regulatory offences are not inherently evil, and the regulatee will usually be permitted to return to participate in the regulated activity, even after the imposition of punishment by the court.
Professor Macrory in his report on Regulatory Justice in the United
Kingdom has identified a series of "penalties principles" that might serve as the
208 basis for such a regulatory offences sanctioning regime.1086 These principles are triggered by the enforcement apparatus of the pyramid, where less intrusive compliance strategies have failed to achieve the desired result. The penalties principles apply to not only the particular choice of sanction within the enforcement pyramid, but to the choice of sentence by the courts. They are a bridge between administrative and judicial sanctions. While regulators and courts have different roles and responsibilities, they both work toward achieving the same end within the regulatory context. That is, by operating under the same penalties principles with respect to the choice of sanction, there is a harmonization with respect to regulatory outcomes by courts through its role in the regulatory cycle. It is therefore important for courts to consider such punishment principles when imposing penalties for regulatory offences, since not only will the party usually be permitted to resume involvement in the regulated activity, the sentencing process also permits the court to "actively participate in achieving regulatory goals."1087
The Macrory "penalties principles" provide a framework for how a court might further regulatory objectives in sentencing the regulatee at this particular stage of the regulatory cycle. Just as regulators select certain sanctions in the enforcement pyramid so as to produce a desired impact on regulatees, when the enforcement mechanism of choice is prosecution the court in imposing punishment must understand what the sanctions are intended to achieve, so that it imposes a sentence which furthers the underlying regulatory objective, while
209 also permitting the party to resume participation in the regulated activity. Verhulst puts the matter this way:
By crafting a well-thought-out sentence that takes the regulatory cycle into account, the courts can actively participate in achieving regulatory goals. To do so, they must understand the regulatory scheme and the place of the offender within it, and then craft sentences that seek to align offenders' behaviour with those goals.1088
What, then, are Macrory's "penalties principles"? In the consultation document released by Professor Macrory, six such considerations were put forward as the basis for any sanctioning regime.1089 First, sanctions should change the behaviour of the offender. Second, sanctions should ensure that there is no financial benefit obtained by non-compliance. The third principle is that sanctions should be responsive and consider what is appropriate for both the particular offender and regulatory issue. Fourth, sanctions should be proportionate to the nature of the offence and harm caused. Fifth, sanctions should aim to restore the harm caused by regulatory non-compliance. Finally, sanctions should aim to deter future non-compliance.
The first penalties principle is directed at changing the regulated party's behaviour. This is to say a sanction should not be "focused solely on punishment", but that it should also ensure that the offender will be less likely to break the law in the future.1090 The second principle seeks to prevent offenders from benefiting financially from non-compliance. In this manner firms and
210 individuals who seek to profit from breaking the law will be met with sanctions
"specifically targeting the financial benefits gained through non-compliance," the intention being to reduce any financial incentive for engaging in such behaviour.1091 Responsive sanctioning is the goal of the third penalties principle.
It is desirable that the regulator be able to exercise discretion and determine whether the regulated party would respond to sanctions which are less punitive than prosecution, having regard to the particular offender and the particular regulatory issue.
Proportionate sanctioning is the subject of the fourth penalties principle.
Whereas the previous principle addresses the reasons for the failure of the regulatee to comply, this principle is concerned with the nature of the non compliance, and its consequences. The goal is to ensure that offenders are "held accountable" for the impact of either actual or potential consequences of their non-compliance, and that such considerations are "properly reflected in any sanction imposed."1092 The next principle is related: where harm is caused by the offender, the sanction should include an element of restoration of such harm.
Finally, the principle of deterrence is relevant. A sanction should discourage future non-compliance. This is accomplished by sanctions that send the message to the regulatory community that "non-compliance will not be tolerated and that there will be consequences."1093
211 Macrory's Final Report, entitled Regulatory Justice: Making Sanctions
Effective, contained the recommendation that regulators be guided by these six penalties principles.1094 The characteristics which guide the framework within which regulators operate were also set out, but augmented by one additional factor: regulators should avoid "perverse incentives" that might influence the choice of sanctioning response.1095 The report explained that penalties principles
"help build a common understanding of what a sanctioning regime should achieve amongst regulators and the regulated community" and that this provides a framework for regulators when deciding what enforcement action or sanction to choose.1096 It also provides a safeguard that sanctions will be used "fairly and consistently."1097 Macrory acknowledged that it might not be appropriate for all of the penalties principles to apply in each case; however, for the purpose of consistency of approach, the principles should "always be considered" by a regulator when "taking an enforcement action, or designing a specific sanctioning scheme."1098 In addition, it was emphasized that the penalties principles were to be regarded as the "underlying basis" of regulators' sanctioning regimes so as to achieve consistency, and not as "legally binding objectives."1099 To this end the majority of the principles were best understood, and now expressed, as "aims" rather than "absolutes."1100
These penalties principles inform the regulator's choice of prosecution in the enforcement pyramid. They become necessary when negotiation or lesser coercive measures are no longer considered to be a viable option. Not all of the
212 penalties principles need necessarily be applied at once, or to all of the parties whom are being regulated. However, the penalties principles assist the court in imposing punishment by providing a rationale for the sanction being pursued.
That is, the court will be better equipped to craft a sentence promoting compliance if it is clear what goals the sanction is intended to achieve. Most importantly, this enables the court to view the party at one particular stage of the regulatory cycle, as opposed to at its "end". For not only is it most likely that the offender will be permitted to continue to engage in the regulated activity following the imposition of sentence by the court, which is doubtlessly in the interests of the regulatee, but, as Verhulst notes, it is also in society's interest for this to happen, since the regulated activity in question "may be socially beneficial, creating employment or needed goods and services."1101 What is not in the societal interest is for "continued engagement" by the regulated actor in the behaviour that gave rise to the commission of the offence in the first place.1102
The Law Commission of Ontario in its recently released consultation paper, The Modernization of the Provincial Offences Act, has cited Verhulst's work in calling for submissions on the issue of sentencing principles for regulatory offences as a means of furthering regulatory objectives while imposing punishment to one who remains involved in the regulatory cycle.1103 In terms of the design of such provisions for regulatory legislation, and the factors which support their enactment, the Law Commission comments:
213 First, it should be remembered that the sentencing of regulatory offences is part of a cycle that does not typically end with sentencing. Normally the convicted person will continue to carry out the regulated activity, and for that matter, society usually has an interest in the person continuing to provide goods and services and employment.1104
The questions respecting sentencing posed by the Law Commission of
Ontario concern not only whether the Provincial Offences Act (Ont.) should contain sentencing purposes and/or sentencing principles, but, if so, what those purposes and/or principles should be.1105 Implicit in these questions is whether recognition of the regulatory cycle should formally be taken into account in expressing any such purposes or principles of sentencing, since the court is presented with a unique opportunity at the time of imposing sentence to "align" the behaviour of the offender in accordance with the goals of the regulatory scheme.1106
It may be said that there is a certain irony in the use of prosecution by regulators and the seeking of sanctions where, as Hawkins puts it, "there is already a body on the floor."1107 When a regulator identifies risk, and it is determined that "something ought to be done about it", a different set of considerations arise.1108 That is, in a "high risk situation", the procedures that will be employed by the regulator differ from those in a "low risk situation."1109 Risk characterization requires such determinations; categorizing the result informs the regulator's assessment of the risk and the response it deems appropriate to take.
Regulation may not guarantee the safety of the worker in Hawkins' example, but it is nevertheless essential to have a stratagem in place for the regulated
214 activity.1110 While Macrory's "penalties principles" are admittedly expressed in a high level of generality, not unlike sentencing principles for criminal offences, it is in their application to regulatory regimes that sets them apart. In particular, it is due to the unique nature of the regulatory cycle that requires such penalties principles to operate differently, as shall be discussed below.
5. The Regulatory Cycle and Changing Regulatory Strategies
Viewing an offender at a particular point of time in the regulatory cycle promotes an understanding of the nature of the regulated activity and how the party fits within it, in light of changing regulatory strategies. This is important for two discrete reasons put forward by Verhulst. The first is that the manner in which many activities are currently being regulated is moving away from "clearly articulated standards"; the second is that regulatory schemes are being enforced in a "less adversarial" manner.1111 In other words, the "regulatory environment is changing."1112 Consequently, these trends are relevant at the time of sentencing, not just for the purposes of determining what is an appropriate penalty for non compliance, but so that the court can view the party in a way that is different from one situated in the more traditional regulatory context, and take this into account when assessing the reasons for the offender's failure to comply with the regulatory standard.
The notion of the court acting as a partner in the regulatory cycle is hardly a novel idea. In a report submitted to the Department of Justice in 1991 on
215 positive compliance programs, Baar identified the problem of courts "forgiv[ing] non-compliance without an adequate understanding of the consequences of their actions for the quantum and distribution of risk and for the incidence of non performance."1113 The result was termed an "enforcement deficit", which reduces the incentive to "invest in compliance."1114 In terms very similar to those of
Verhulst, the authors cautioned against deterrent or punitive responses by the court, as opposed to the goal of determining whether the regulated actor's
"performance was inadequate and to impose the standardized incentive."1115
Indeed, the concern was expressed that the courts might "check regulatory discretion" and undermine the regulator's ability to "achieve their objectives."1116
An analogy may be drawn in this regard to the importance of courts giving reasons for judgment so that the parties understand the basis of its decision. The
Supreme Court of Canada has held that the delivery of "reasoned decisions" is inherent in the judge's role such that an accused person should not be left in a state of doubt as to why a conviction has been imposed.1117 In the case of regulatory offences, it has been observed that reasons for judgment serve another important function. Since the purpose of regulatory offences "is not so much to punish, as to encourage compliance with the regulatory standards", it is important for the offender, and others in the same position, as well as inspectors and agents of the regulator, to know "what the legal standard requires."1118 After all, as Black puts it, a rule "is only as good as its interpretation."1119
216 In much the same manner, the regulated party may find that it is alleged that he/she has failed to comply with a regulatory standard, although the standard has not been "clearly articulated," thereby inhibiting the regulatee's ability to understand the basis of the regulator's decision.1120 In fact, some regulators have moved away from design-based regulations, where the party is expressly told "how to do things."1121 While this approach has the advantage of being "clear and direct", it also may be said to be subject to the limitation that it is
"often slow to adapt to changing technology and expertise, and consequently may impair efficiency and innovation" in the regulated area.1122 Design-based regulations set out "detailed, prescriptive rules."1123 However, as one regulator has recently acknowledged, despite such supervisory actions as to how firms should operate their business, such prescriptive standards "have been unable to prevent misconduct", and have become "an increasing burden" on both the industry and regulator's resources.1124 Of course, the same might be said as to the limitations of criminal standards to prevent misconduct, and yet one would not necessarily suggest that such standards should be abandoned. This may properly lead, though, to a re-evaluation of the approach being undertaken so as to best promote compliance with the law or standard.
As a result, other regulatory strategies may be employed which shift the emphasis away from "reliance on detailed, prescriptive rules" to "high-level, broadly stated rules" in order to achieve the regulatory objective.1125 Such methods of regulation include "outcome-based" regulation, which provides for a
217 measurable result to be achieved, but without stating how to achieve it;
"performance-based" regulation, which provides for a non-measurable result to be achieved; and "principles-based" regulation, which sets out only an operational goal.1126 However, these modes of regulation contain less specific criteria, and may give rise to uncertainties as to how the result is to be optimally achieved. It is also to be acknowledged that regulatory offences cover such a broad range of activities that regulators may find that one strategy produces better results for certain types of activity, such as prescriptive rules for transportation of inherently dangerous substances, whereas a less detailed principles-based regulation might suffice for setting clean air levels.
The differences between these respective regulatory strategies may be illustrated by the following example concerning air pollution. In a "design-based" system the operator would be expressly told how to do things, such as "an operator must install a specified scrubber in a smoke stack." Conversely, in an
"outcome-based" regulation, the requirement might state "an operator must ensure that emissions from a smoke stack contain less 'x' parts per million of particulate matter 'y'". In a "performance-based" regulation, the requirement might read "an operator must ensure that emissions from a smoke stack do not contain particulate matter y in concentrations that may pollute the immediate environment." Finally, in "principles-based" regulation, the requirement might be worded "an operator must operate in a manner that is environmentally
218 It can be seen that in contrast to design-based regulation, these other enforcement strategies provide regulated persons with "greater operational flexibility."1128 However, at the same time, the standards may be not be as well- defined, thereby creating potential for uncertainty for the regulated parties, among others, in terms of what is required for compliance, or at least acting with due diligence so as to avoid liability for the commission of a regulatory offence.
Black acknowledges this concern for principles-based regulation, conceding that
"it must be possible to predict, at the time of the action" whether or not it would be a breach of a principle.1129 The same concern would be warranted, albeit to a lesser extent, in respect of performance-based regulations, and even outcome- based regulations. It may be that the more imprecise the regulatory strategy, the more egregious the result that is required so as to warrant prosecution, since uncertainty in measuring outcomes may detract from proof of the regulatory offence. The fact remains, however, that whatever the regulatory strategy, sentencing courts when dealing with the offender at this particular juncture of the regulatory cycle are presented with a unique opportunity to examine the regulatory strategy in issue, and consider "how sentences can be used to assist offenders to determine, meet and even exceed regulatory standards in the future."1130
The movement away from design-based regulation has been accompanied by another change in regulatory strategies, namely, a shift to a less
219 adversarial approach to enforcement, or more measured use of this step of the regulatory pyramid.1131 In the case of a design-based standard, it should be apparent whether enforcement action is clearly warranted: the operator, in the air pollution example above, has either installed a specified scrubber in a smoke stack or not. Likewise, it should be readily apparent when an outcome-based standard has been violated, the requirement in the air pollution example being that "an operator must ensure that emissions from a smoke stack contain less 'x' parts per million of particulate matter 'y'". As Verhulst comments, either the outcome is within "acceptable parameters or not."1132
On the other hand, in the case of performance-based or principles-based regulation, it is not necessarily as clear whether enforcement action is warranted.
In a performance-based regulation, as where the requirement in our example reads "an operator must ensure that emissions from a smoke stack do not contain particulate matter 'y' in concentrations that may pollute the immediate environment", how is the regulated party to know if the "immediate" environment is being "polluted?" Moreover, all emissions produce pollution. The issue, though, is how much pollution should be tolerated. Likewise, in the principles-based regulation where the requirement reads "an operator must operate in a manner that is environmentally sound", how is the regulatee to know if the operations are
"environmentally sound?" Other issues may arise, such as those involving causation: the regulated party's actions may not be the sole cause of the pollution, but a contributing cause of it. To what degree must the regulated party
220 cause the pollution in order to warrant prosecution or other enforcement action?
There may also be the need for expert evidence to substantiate the party's responsibility for the pollution, or to interpret technical data from test results or other scientific processes. In short, evaluations of conformity by regulators may be "fluid and abstract", instead of "concrete and unproblematic."1133
Given that these regulatory strategies may create "less certainty about whether an offence has been committed", warnings and more cooperative approaches, including negotiation, might seem preferable to the more formal measures of investigation and prosecution.1134 Indeed, in some cases, a return to prescriptive standards may be warranted. Violations which are of a technical nature may be "overlooked" in exchange for agreements to devote resources into practices or technologies that are aimed at addressing the "larger problems"; indeed, even "clear violations" might be tolerated where they are not of a serious nature, or it seems that the regulated party is making genuine efforts to become compliant.1135 Moreover, as Hawkins observes, what "risk" means to a regulator may change at certain times, and be viewed at different points in different ways.1136 Regulatory objectives may "change overtime."1137 The regulator may identify risk in a manifest way and "redress harms when they occur"; conversely the approach may be to "obscure risk" and seek to make the public "feel sanguine about the risks that are obscured."1138 But incentives to negotiate and cooperate within the regulated industry may equally be undermined if it appears that enforcement is not a viable option.
221 Black and Baldwin put forth the concept of "really responsive regulation", having regard to the fact that regulatory powers are not always "clear" and there may be limited legal powers available to the regulator.1139 Indeed, it may be difficult to evaluate the success or failure of a regulatory strategy, and even if it is possible to do so, it may prove "very difficult to improve the regulatory system by adjusting enforcement strategies and legal powers."1140 According to the authors, the "really responsive regulator" should not be confined to one particular strategy of enforcement, much less to enforcement as the 'control method of first choice."1141 However, a failure to provide "clear objectives" may make it extremely difficult to state what 'compliance' involves."1142 For Gunningham, who proposes the approach of "smart regulation" in preference to "responsive regulation", given that the latter may be limited due to individual instruments not being designed to facilitate responsive regulation or because of there being "no potential for coordinated interaction between instruments", the regulated party does not interact with state regulators only, but rather with a number of parties who employ different instruments in order to achieve compliance.1143
Accordingly, when a court is considering what sentence to impose on the regulated party who has failed to meet the requisite compliance standard, it must have regard to these changing regulatory strategies. After all, the reformulation of the regulatory requirement may have played a role in the offender having difficulty in meeting the regulatory goal. Conversely, failure to achieve regulatory
222 compliance with standards, that are prescriptive and detailed, may be indicative of an institutional "attitude" of lack of commitment to compliance that requires re orientation. Nevertheless, the offender appears before the court, in both these instances, at one particular point of the regulatory cycle, and is most likely to be permitted to resume his/her regulated activity. The court, in turn, should look both forwards and backwards at the conduct of the regulated party. Past attempts at compliance and the offender's response to non-adversarial enforcement entreaties are germane to sentencing; the future relationship between the regulated party and the regulator is also a relevant consideration.1144 That is, the court should be mindful of the fact that, following its involvement in the matter, the parties are likely to continue dealing with each other in the same regulatory endeavour.
In essence, then, the question for the court at the sentencing stage is whether it can "enhance the cooperative model of enforcement and assist offenders to move to the next stage of compliance?"1145 To put the matter another way, taking into account the past relationship between the regulated party and the regulatory authority, how will the sentence imposed by the court impact on the parties' ability to move forward and resume a non-adversarial, cooperative working relationship. A successful compliance strategy, even if it emerges at the time of sentencing, has as much "symbolic significance" as one arrived at earlier during the course of the regulatory cycle.1146
223 6. Conclusion
There is a danger for courts and regulators to operate at cross-purposes.
While the roles of these respective institutions are clearly different, and each is properly concerned with distinct tasks and goals, they deal in common with a regulated party who has failed to act in compliance with the regulatory standard.
Whereas regulators are proactive in nature and may have instituted a prosecution as a tool of last resort, while courts react to the record placed before them and must impose punishment where it has been established that the regulatee's conduct exhibited a lack of reasonable care or due diligence, both regulators and courts interact, in common, with a regulated party during the course of the regulatory cycle.
However, a failure by the court to take into account, at the time of sentencing, that the offender has been subject to regulatory strategies that may have evolved over time, or did not meet standards that may not be clearly articulated, risks undermining the regulatory objective being enforced. It is also important for the court to be aware of the "penalties principles" that inform the sanction it is being asked to impose. These considerations are important because the offender will usually be permitted to resume his/her involvement in the regulated activity, and thus continue to engage the regulatory cycle, following the imposition of punishment by the court.
224 In short, courts have an important role to play as partners in the regulatory cycle. The penalties that are imposed by courts cannot be determined in a vacuum without regard for how they will operate within the regulatory context.
The goal of furthering the regulatory objective, at the time of sentencing, will be better appreciated by the court by viewing the offender at one particular point in the regulatory cycle, as opposed to at the end of the process, so as to successfully reintegrate the regulated actor within the regulatory regime.
The identification and provision of sentencing purposes and principles for regulatory offences thus enhances the ability of courts to select the sanction that best encourages the regulated actor's successful reintegration within the regulatory cycle. A sentencing rationale or guiding purpose which promotes furthering the regulatory objective would help focus the court's choice of sanction in order to hold the offender accountable for his/her conduct, as well as ensuring that the offender will maintain compliance with the regulatory standard in the future. Consequently, the concept of the regulatory cycle has an important role to play in the current debate respecting the enactment of a statement of sentencing purposes and principles for regulatory offences
225 Chapter 6. Sentencing Purposes and Principles for Regulatory Offences: A New
Approach for Regulatory Justice
1. Introduction
A statement of sentencing purposes and principles for regulatory offences is desirable for a number of reasons. These include providing certainty as to what such sentencing purposes and principles are, and promoting uniformity in approach by removing the matter from courts on a default basis. Another is to enact sentencing purposes and principles in a transparent manner by the same legislative body that has responsibility for enacting the public welfare legislation for which the courts are asked to interpret and impose punishment, as opposed to leaving the matter for judges to decide, based on the circumstances of a particular case. Further, a "sentencing rationale" provides "the foundation for solutions to unwarranted variation" since it makes known "what are the grounds for imposing penal sanctions and the principles governing the sentencing nrsN^ot. "1147 process.
All of these considerations, it may be said, are aimed at eliminating the problems caused by uncertain and unstructured sentencing practices, that effectively make sentencing for regulatory offences a game of chance. This is the antithesis of regulatory justice. Instead, a new approach is required for identifying and enacting sentencing purposes and principles for regulatory offences.
Otherwise the sentencing jurisprudence for regulatory offences will continue to
226 resemble a lottery, where inconsistency and unpredictability abound, as illustrated in the matrix of workplace safety, consumer protection and environmental regulation sentencing decisions within Canada, set out in Chapter
4.
Were a sentencing rationale to be formulated for regulatory offences, courts, and the parties appearing before them, would doubtlessly be guided by it.
This is not to say that a statement of sentencing purposes and principles would be a panacea, as the discussion in chapter 2 with respect to the statement of sentencing principles under the Criminal Code1148 clearly demonstrates.
However, it is better to know what the legislators' stated and intended sentencing goals and aims are for regulatory offences, than not knowing this. As Manson comments, there can be nothing wrong with including a statement of purpose for sentencing, as opposed to failing to articulate one1149 Another author has put it this way: legislating "mandatory sentencing considerations" under the Provincial
Offences Act "would provide trial courts with sufficient guidance and flexibility to ensure that a principled approach to sentencing is reflected in the reasons provided for the sentence and the ultimate decision."1150
The relationship between the regulatory cycle and sentencing purposes and principles for regulatory offences has been described in the previous chapter. As Verhulst observes, once the court "understands the regulatory context", namely, the regulatory strategies that are appropriate to the standards
227 governing the conduct of the regulated party, as well as the "penalties principles" that informs the choice of the sanction being sought by the regulator, the court will be in a better position to determine the sentence it should impose.1151 The court's punishment or sentence, in turn, should be designed to give effect to the regulatory goals that are set out in the legislation.
It now falls to be determined how these regulatory offences sentencing purposes and principles should be identified and set out. To this end I turn first to the recently enacted British Columbia Public Health Act,U52 which provides a model for how a statement of sentencing purposes and principles for regulatory offences might be set out by legislators. This is followed by a discussion as to the importance of prioritizing sentencing purposes and principles for regulatory offences. These purposes and principles of sentencing are then specified, including, in order, remedying the harm or potential for harm, rehabilitation, general deterrence, and denunciation. I next discuss the desirability of setting out these purposes and principles of sentencing in a statute of general application, in
Ontario the Provincial Offences Act,U5Z as opposed to a statute that does not apply to other regulatory legislation within the jurisdiction, as is the case with
British Columbia's Public Health legislation. Consideration is also given to whether such a statement of sentencing purposes and principles should apply to all regulatory offences, or only to those where sentencing dispositions such as imprisonment, probation and elevated fines are available, as opposed to minor offences governed by a ticketing procedure. Finally, concluding observations are
228 made as to the utility of sentencing purposes and principles for regulatory offences, particularly in furthering the role courts play in the regulatory cycle.
2. The British Columbia Public Health Act: A Model of Sentencing Purposes and Principles for Regulatory Offences enacted by Legislators
Verhulst proposes that the British Columbia Offence /Act1154 which is the equivalent legislation to Ontario's Provincial Offences Act,n55 should be amended to specify five considerations or "sentencing steps" for courts to consider, in order, when determining what punishment to impose for breach of a regulatory statute.1156 By providing these measures in a provincial offences statute of general application, the sentencing provisions would apply to all provincial offences legislation in the province, as opposed to being limited to the particular statute, which is currently the case with Acts such as the British
Columbia Public Health >4cf,1157 or the Canadian Environmental Protection
>Acf,1158 these statutes setting out sentencing provisions that do not apply to other
Acts. The desirability of specifying sentencing purposes and principles in a statute of general application will be discussed in more detail below.
The "sentencing steps" which Verhulst advocates are the following:
1. encourage joint submissions on aggravating and mitigating factors, and the sanctions to be imposed (the "Friskies Schedule");1159
2. to the extent it is possible and reasonable, impose a sanction that remedies the violation (remediation);
229 3. if it is likely that the offender will continue to engage in the regulated activity after sentencing, but the offender's behaviour must change to prevent future violations, impose a sanction that promotes the necessary changes (rehabilitation);
4. if it is appropriate in the circumstances and would likely have social value, impose a sanction that will promote change in the behaviour of other persons (general deterrence);
5. if aggravating circumstances make it appropriate, impose a sanction that denounces and punishes the offender's behaviour (punishment).
The requirement that courts approach regulatory offences sentencing decisions by considering these factors, in order, would result in sentences that are, Verhulst contends, responsive to the "regulatory goals of the legislators."1160
This approach also takes into account the unique relationship between the regulator and regulated party, at the time of sentencing, where both previous attempts at compliance and future efforts to do so, are relevant and should be reflected in the disposition crafted by the court.1161 The sequential order of sentencing principles, as set out in the "steps", also ensures that there is a principled progression in the court's analysis, and the sanctions which may be imposed.
A statute that provides a model for this approach is the recently enacted
British Columbia Public Health >Acf.1162 In its sentencing provisions, criteria for determining sentence1163 and purposes of sentencing1164 are specifically set out, with a view to identifying sentencing principles which are appropriate for regulatory offences, having regard to the regulatory cycle. These sections read as follows:
230 Determining sentence
105(1) Before imposing a sentence, a sentencing judge may request a joint submission from the offender and the prosecutor setting out any agreement on (a) the circumstances that should be considered by the sentencing judge as either mitigating or aggravating the offence, and
(b) the penalty to be imposed.
(2) In determining the appropriate sentence, the sentencing judge must consider, in accordance with the regulations, circumstances that aggravate or mitigate the offence.
(3) In determining the appropriate sentence, a sentencing judge must
(a) consider the purposes of sentencing set out in section 106 [purposes of sentencing], and
(b) to give effect to those purposes,
(i) first, consider as a penalty one or more of the orders that may be made under section 107 [alternative penalties], and
(ii) second, consider whether a fine or incarceration under section 108 [fines and incarceration] is also necessary.
•Purposes of sentencing
106(1) In imposing a sentence, a sentencing judge may impose one or more penalties that, in order, achieve the following:
(a) first,
(i) if harm was caused, remedy the harm or compensate a person who remedied or suffered the harm, including the government, or
(ii) if no harm was caused, acknowledge the potential harm or further the regulatory objective underlying the provision that was contravened;
231 (b) second, if the offence was committed in relation to a regulated activity or other activity that the offender is reasonably likely to continue to engage in, rehabilitate the offender.
(2) In addition to a penalty imposed under subsection (1), a sentencing judge may impose one or more penalties under subsection (3) or (4), unless it would be disproportionate to the offence, given the offender, the nature of the offence and the total of the penalties imposed under this section.
(3) A sentencing judge may impose a penalty for the purpose of achieving general deterrence if the sentencing judge reasonably believes that the additional penalty would have a deterrent effect, including because
(a) the penalty imposed under subsection (1) is inadequate to address the circumstances related to the offence, or
(b) the nature of the penalty may
(i) assist others similarly situated to the offender to avoid committing a similar offence, or
(ii) educate others similarly situated to the offender respecting the seriousness of the offence.
(4) A sentencing judge may impose a penalty for the purpose of punishing the offender if
(a) the offender committed the offence knowingly or deliberately, or was reckless as to the commission of the offence, or
(b) sufficient aggravating circumstances exist that the offender should be punished for the offence.
These provisions are complemented by sections that specify "alternative penalties",1165 such as compensation or community service, and that are designed to "give effect to the purposes of sentencing". The remaining sections under Division 3, which governs sentencing under the Act, address fine levels and length of imprisonment for offences,1166 as well as stating the factors to take into consideration for imposing a fine "in a lesser amount that the sentencing
232 judge considers appropriate," due to the offender's inability to pay.1167 There is also a provision for applying to the court to vary an order made with respect to alternative penalties,1168 as well as a mechanism for recovery of such penalties.1169
3. Identifying and Prioritizing Sentencing Purposes and Principles for Regulatory Offences
There is much to be said for the approach proposed by Verhulst, and exemplified by the British Columbia Public Health Act. 1170 While the parties before the court may themselves be asked to come to an agreement on the aggravating and mitigating circumstances of the offence, as well as the penalty to be imposed, it is not a requirement that they do so; however, where a consensus on such factors is present, it will ensure that all of the relevant considerations on sentencing are before the court, and obviate the necessity for resolving factual disputes as to their application. In the event that there is an agreement on the relevant sentencing considerations that do aggravate and mitigate the offence, if not the ultimate disposition itself, the proper basis upon which the court should impose its sentence will be clearly established. Conversely, where the parties are unable to arrive at such an agreement, the court will be required to resolve these factual disputes in order to arrive at the correct basis for arriving at its sentencing decision, an issue that is not unique to regulatory offences sentencing hearings.1171
233 In the paradigm advocated by Verhulst, purposes and principles of sentencing that are appropriate for regulatory offences are identified and enumerated, in a sequential order for courts to consider and implement, in their dispositions. The hierarchy of such principles is important, as it answers the oft- made criticism of the Criminal Code1172 statement of sentencing principles and purposes under s.718, namely, that merely listing sentencing objectives in a
"smorgasbord approach," provides no direction as to the priority to be attached to competing principles, or how the court is to choose as between them.1173
However, by ranking in priority "the concerns that may be at some point conflicting", courts are provided with a mechanism "to resolve dilemmas arising from the need to consider competing principles."1174 A "progression in regulatory approaches," as expressed through sentencing purposes and principles, is therefore essential.1175
With respect to the content of these sentencing purposes and principles generally, Verhulst's approach is consistent with the jurisprudence that
recognizes the "special approach" that is required when imposing punishment for
breaches of the regulatory standard, such as in the area of protection of the environment, where remediation of the harm done, and rehabilitation measures, are especially important considerations.1176 It also accords with the factors of general deterrence and denunciation in sentencing for regulatory offences, as stated in cases such as the Ontario Court of Appeal's decision in R. v. Cotton
Felts LtdU17 Indeed, environmental offences, while said to merit a "special
234 approach," have also been described as constituting "paradigmatic examples of regulatory offences."1178
For all manner of regulatory offences, then, a premium is rightly placed on measures that obligate the responsible party to remediate the harm, or potential for harm, he/she causes, given one's voluntary participation in the regulated activity. This also prevents the party from benefiting from any non-compliance, or having the incentive to do so, by failing to meet the regulatory standard; it means, as well, that the party who achieves and maintains compliance is not placed at a competitive disadvantage as a result of doing so.1179 In addition, such a set of sentencing principles are sufficiently general as to provide guidance across the wide field of regulatory offences, while not being so open-ended or imprecise that no real direction is provided. In short, a sentencing rationale which is set out along these lines accords with what should be the reality of the sentencing process for regulatory offenders, and therefore meets the goals of "clarity, consistency and realism".1180
(i) remedying the harm or potential for harm
The placing of priority on the sentencing principle that a regulatory offender must first remedy the harm or potential for harm he/she causes, is to effectively extend the "polluter pays" principle, that is, where polluters are assigned "the responsibility for remedying contamination for which they are responsible" and have imposed on them "the direct and immediate costs of pollution",1181 to regulatory offences violators more generally. Thus, a party
235 breaching the regulatory standard, whether in the area of consumer protection, workplace safety or environmental regulation, should, firstly, repair any harm he/she causes, through the making of restitution or compensation to the aggrieved party or victim, including the regulatory authority or government.
The use of restitution in this manner has been described as an "ideal measure" since it "personalizes the offence by inviting the offender to see his or her conduct in terms of the damage and injury done to the victim."1182 Restitution has also been described as a "rational sanction": it underlines "the larger social interest inherent in the individual victim's loss" which is "reaffirmed through restitution to victim," while also working "towards self-correction, and prevents or at least discourages the offender's committal to a life of crime", such that the community "enjoys a measure of protection, security and savings."1183 Stated simply, a sanction which is aimed at remedying "the harm caused by regulatory non-compliance," where it is appropriate to do so, addresses the "needs of victims" while ensuring that regulatory offenders "take responsibility for their actions and its consequences."1184
There is a further reason why remedying the harm done, or potential for such harm, merits primacy as a sentencing consideration for regulatory offences.
It is in keeping with restorative justice principles.1185 Restoring the victim to the position he/she was in prior to the commission of the offence constitutes an important goal of the overall sentencing process. Restorative justice is a means
236 of repairing harm done to victims and communities; it also promotes the goal of making offenders feel accountable for their conduct, and acknowledging responsibility. Such considerations are recognized as purposes and principles of sentencing under the Criminal CodeU8& Restorative justice principles are particularly appropriate for regulatory offences, given the nature of such conduct and its potential to impact the community at large when there is a failure to meet the regulatory standard, while providing the court with an opportunity to encourage the regulated party to make amends for its actions.1187
(ii) rehabilitation
The next priority in the sentencing purposes and principles paradigm emphasizes rehabilitation. As Verhulst explains, sanctions that are designed to rehabilitate the offender are appropriate, not as a matter of course, but only where it is likely that the regulated party will continue to participate in the regulated activity following the imposition of punishment.1188 This sentencing principle reflects the unique nature of the regulatory cycle for regulatory offences offenders: the sentence meted out by the court does not usually conclude the party's involvement in the regulated endeavour; hence, courts should craft dispositions that will encourage the party to meet the regulatory standard in the future. Put another way, sanctions should be aimed at changing the offender's behaviour, such that he/she "moves back into compliance."1189
237 At present, fines remain the usual penalty for failure to meet the regulatory standard.1190 They are intended to "eliminate any financial gain or benefit from non-compliance."1191 However, such sentences are punitive in nature, and do not operate as catalysts to "change attitudes or long-term behaviour".1192 Indeed, having offenders promote compliance is likely to be more effective at changing behaviour than merely imposing fines.1193 It is also problematic to rely on a process "of attaching a monetary value in sentencing."1194 A fine that is set too low may be viewed be as being "simply worth the price" of the violation to gain a business advantage; a fine that is set too high may have the undesirable effect of dissuading "lawful business efficiency."1195 In short, financial penalties may not always send the right message: fines which fail to act as a deterrent may actually provide an incentive for others "to fail to comply in return for a profit."1196 This is the antithesis of creating a "compliance culture."1197
On the other hand, rehabilitative measures may be effectively put in place by court orders such as probation, which constitutes a mechanism for allowing persons who have been found guilty of an offence to "be given an opportunity to rehabilitate themselves, without being sent to prison, through the supervision of probation officers and the convicting court."1198 There is authority under the
Provincial Offences Act of Ontario to place persons convicted of provincial offences on probation.1199 As is the case under the Criminal Code probation provisions,1200 probation under the Provincial Offences Act is considered an appropriate sentencing disposition "having regard to the age, character and
238 background of the defendant, the nature of the offence and the circumstances surrounding its commission."1201 Where probation is imposed, the party is not only required to follow the conditions or terms set out by the sentencing court in the order, but additionally faces a penalty for failing to do so.1202 In the case of regulatory offences, terms of probation may be imposed to not only "address the cause of non-compliance" with the regulatory standard, but also to "instill long- term behavioural change."1203 These measures, as Archibald et al observe, provide a "welcome change" in comparison to the "monetary quantifications required by a fine."1204 Hence, the "principal virtue of probation" has been said to be "not in probation itself, but in the contrast which it provides to the inflexibility of imprisonment, and the impersonal nature of the fine."1205
Indeed, changes made by Bill C-451206 to the Criminal Code in 2003 respecting the use of probation for "organizations"1207 found guilty of criminal offences are considerably broader than those terms that may be imposed for individuals convicted of criminal offences who are placed on probation.1208 By way of example, the organization may be required to establish policies, standards and procedures to reduce the likelihood of the organization committing a subsequent offence,1209 and to communicate such policies, standards and procedures to its representatives.1210 Other terms authorize the organization to be required to report to the court on the implementation of these policies, standards and procedures,1211 and to notify the public of the offence of which the organization was convicted, the sentence imposed by the court, and any
239 measures that the organization is taking to reduce the likelihood of its committing a subsequent offence.1212
These terms are essentially rehabilitative in nature, and demonstrate the utility of courts commencing the sentencing analysis for regulated actors by giving primacy to the consideration of "restorative and remedial remedies first", prior to progressing to "the notion of deterrence."1213 This is not to say, as
Archibald et al observe, that the principles of remediation and rehabilitation will necessarily be given precedence over the principles of deterrence and denunciation. Rather, the focus of the court should first be on restorative and remedial measures.1214
The utility of rehabilitative measures for corporate offenders convicted of regulatory offences has been questioned by commentators such as Swaigen and
Bunt in their study paper for the Law Reform Commission of Canada.1215 As the authors comment, while corporations "can be coerced or pressured into changing policies and practices and revising systems and structures," the "central purpose" of the corporation is profit; hence, "how can you 'cure' the corporate compulsion to show a profit?"1216 In the words of another scholar, when a corporation is punished, there is "no soul to damn" and "no body to kick."1217
It is to be acknowledged that corporate offenders are different from individual offenders: while some sanctions, such as fines, may be imposed in
240 both cases, in other instances this is not possible, as in the case of the use of imprisonment since the corporation has no liberty interest. However, this is not to say that rehabilitative sanctions are inapplicable for corporate offenders. Indeed, the Criminal Code organization sentencing provisions1218 reflect these differences, and recognize, through measures such as s.732.1(3.1)(f)), which allow the judge to require the organization to inform the public about the conviction, sentence and procedures adopted to prevent the offence from recurring, that "the public and customers may play an important role in influencing and monitoring corporate behaviour."1219 Hence, there are sentencing factors that can be devised to further rehabilitative initiatives by corporate offenders. Examples set out in the Criminal Code organization provisions include directing the sentencing court to take into account any penalty imposed by the organization on a representative for their role in the commission of the offence;1220 any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of the offence;1221 and any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence.1222
There are many examples of regulatory offences probation orders being imposed by courts on corporations for the express purpose of rehabilitation. In R. v. General Scrap Iron and Metals Ltd.,1223 Watson J., as he then was, observed that the imposition of probation in the case of corporate offenders, and the potential for subsequent breach proceedings, constitutes an effective means of
241 elevating the "level of social supervision of corporations", having regard to the fact that the "entity being sanctioned is not the entity being spoken to by the sentence disposition."1224 Indeed, where the recurrence of the breach of the regulatory standard is "real", the court may consider that a probation order is more effective than a fine, since probation may be used to require the corporation to expend funds to improve its monitoring systems, as well as providing funds to alleviate the damage "both known and unknown" that it has caused."1225
Similarly, in R. v. Panarctic Oils Ltd.,1226 the court noted that while a fine would reinforce the principle of deterrence, a probationary order would provide the defendant with "the opportunity that it requests to rehabilitate itself."1227
Probation also provides the means to require an offender to prepare a report proposing a remedial action plan and timetable concerning the lands it has polluted,1228 or making a contribution towards forest maintenance and restoration, as part of a probation order, which the court considered to be "a reasonable, even laudable, remedy for the harm done."1229 Indeed, it has been recently held by the Ontario Court of Appeal in Ontario (Minister of the
Environment) v. Quinte-Eco Consultants /nc.1230 to be a proper use of probation to impose a term that the offender not engage directly or indirectly in the business of environmental consulting, under the authority of the Provincial
Offences Act (Ont.) 1231 so as to "to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant." The Court considered that the
242 condition was "both rehabilitative in nature and served the purpose of preventing similar unlawful conduct, even though it may have had a punitive consequence."1232
Other creative uses of probation have included terms requiring the corporation to fund a program to assist householders in ridding themselves of toxic waste, publish on the front page of their newsletter details of the conviction and penalties and terms of probation, prepare a technical advisory circular on the topic of toxic waste storage, place a caution on the land to warn future purchasers of the environmental damage caused, and a condition that it make environmental issues a mandatory agenda item on all Board of Directors'
Meetings during the term of the probation order.1233 It has also been suggested that the court could order an "imbedded auditor" within a convicted corporation, so as to allow regulatory inspectors to monitor the company's compliance for a set period of time.1234
(Hi) general deterrence
The next step in the sentencing calculus involves consideration of the principle of general deterrence. While remedial and rehabilitative measures may be sufficient to achieve the regulatory objective, it should not be assumed that this will be the case in all instances. Indeed, a sanction which is designed to change the behaviour of others may be particularly apposite where a "systemic problem exists throughout a regulated industry," and the sentence of the court
243 would demonstrate that "failure to achieve certain standards will not be tolerated."1235 Given the nature of the offence, and the circumstances of the offender, remedial and rehabilitative sanctions may simply be insufficient, and an
"additional penalty" will be required to convey to the regulated community that the penalty imposed by the court will not merely constitute the "business-cost for non-compliance."1236 Through the principle of general deterrence, courts can
"send a message to other players in the industry."1237
The Ontario Court of Appeal in its Cotton Felts Ltd. decision, addressed the operation of the general deterrence principle in relation to offenders who breach the regulatory standard, stating that in computing the quantum of fine, the controlling principle is that "without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere licence fee for illegal activity."1238 Sanctions should therefore "signal to others within the regulated community that non-compliance will not be tolerated and that there will be consequences."1239 There must therefore be a "deterrent effect" in the court's sanction, when imposed to effect a change in the behaviour of others.1240
Given that fines, as noted in Cotton Felts Ltd., are the disposition of choice on sentencing for breaching the regulatory standard, it is important that there is an effective deterrent effect of such penalties when this sentencing consideration is implicated. Otherwise, there will be the unintended result that such dispositions
244 are regarded as merely the cost of doing business. A deterrent penalty must be intended to send a strong message that the risk of failing to achieve the regulatory standard will not be tolerated. To return to Professor Macrory's
"penalties principles", such sanctions should ensure that there is no financial benefit obtained by non-compliance.1241 That is, it is important that there is no incentive to fail to meet the regulatory standard in order to make a profit.1242
(iv) denunciation
Finally, the court may impose a sentence to emphasize the principle of denunciation for the purpose of punishing the regulated party. Verhulst contends that a punitive response will be justified where the offender commits the regulatory offence where there are "key aggravating factors", such as "deliberate or reckless conduct."1243 The British Columbia Public Health Act1244 employs similar language, providing that a penalty may be imposed for the purpose of punishing the offender where the party committed the offence "knowingly or deliberately, or was reckless as to the commission of the offence,"1245 or
"sufficient aggravating circumstances exist."1246 In Verhulst's view, while most regulatory offences do not require proof of negligence or intent, the presence of
"deliberate or reckless conduct" merits punishment.1247 Indeed, conduct of this nature may constitute "key aggravating factors."1248
245 It is to be acknowledged that while mens rea is not usually a constituent element of regulatory offences, its presence places the offender on a similar footing to one who commits a criminal offence, and therefore merits greater punishment. As Madigan J. explained in R. v. Wr/c,1249 where there is a mens rea element in a regulatory offence, and thus some degree of moral blameworthiness or fault, this has "significance for sentencing" and should be reflected in the court's disposition, since such offences are "much more serious and therefore more comparable to criminal offences than to public welfare offences."1250
Care must be taken, though, not to unduly limit the legitimate sentencing principle of denunciation to only those cases where there is knowing or deliberate or reckless conduct on the part of the offender. Most regulatory offences by definition involve negligence (strict liability), while others may preclude a fault element altogether (absolute liability). Consequently, it will be few regulatory offences that incorporate the elements specified by Verhulst, and will thereby be deserving of punishment. Indeed, the Supreme Court of Canada in the Sault Ste.
Marie decision took into account "the virtual impossibility in most regulatory cases of proving wrongful intention" as a justification for recognizing strict liability as a middle ground or "half-way house" between offences involving mens rea and those of absolute liability.1251 The vast majority of regulatory offences, following Sault Ste Marie, have been interpreted, in fact, as strict liability offences, that is, offences where there has been "negligent violation of statutes."1252 Moreover, those public welfare offences that do contain a mens rea
246 element, as Archibald et al observe,1253 are likely to qualify for prosecution under the Bill-45 Criminal Code negligence provisions for organizations.1254
In any event, the sentencing principle of denunciation may seem particularly appropriate in strict liability offences where the defendant has failed to exercise reasonable care, and as a result a death has occurred on the work site, or a serious spill has polluted a town's water supply. These are offences that may be as likely the result of a failure to put in place sufficient compliance systems, or to train employees adequately, or to properly gauge the foreseeability of an event from happening, as opposed to knowing or deliberate or reckless conduct on the part of the regulated party. This is not to say that actual harm is required so as to justify punishment. Endangering public health, or failing to care for vulnerable persons under one's supervision, may be sufficient to merit a penalty for the purpose of punishing the offender. Accordingly, it would seem appropriate, as a sentencing principle for regulatory offences, to reserve denunciatory penalties for conduct that is sufficiently aggravating in nature, and may even justify prohibiting the offender from participating in the regulated activity for a temporary or permanent period of time. However, the bar must not be set so high that such punishment will be imposed in all but the most egregious of cases, and that for all intent and purposes courts are restricted to imposing denunciatory sentences for regulatory offences conduct that is, essentially, the equivalent of a criminal offence.
247 The use of denunciation as a sentencing principle for breaches of the regulatory standard is in accordance with the meaning of denunciation as it operates on sentencing more generally. Denunciation is, in essence, "a communication process which uses the medium of language to express condemnation."1255 In R. v. C.AM.,1256 Lamer C.J., on behalf of the unanimous
Court, stated in this regard:
The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.1257
Where the party's failure to meet the requisite regulatory standard is such that a denunciatory sentence is appropriate, the court should impose a sentence on this basis. It may well be that the "culpability of the offender," as opposed to the circumstances of the offence, provides sufficient aggravating features that are deserving of punishment.1258 Indeed, the "victim" of most regulatory offences will be "society as whole rather than a specific person."1259 Still, there will be regulatory offences comprised of essentially negligent behaviour, as demonstrated in the matrix of sentencing jurisprudence in Chapter 4, where it is appropriate to fashion a sentence that denounces socially unacceptable behaviour: in the area of workplace safety, as in the case where a worker was killed in an explosion due to a radio miscommunication during a blasting operation, and the court fined the company $650,000;1260 in the area of
248 consumer protection, as where convictions for misleading advertising, involving a fraudulent internet "yellow pages" business directory where the revenues generated by the mail fraud scheme exceeded $1,100,000, resulted in jail sentences being imposed;1261 and in the area of environmental regulation, as where a defendant who had been convicted numerous times for violating anti pollution by-laws, and was found in contempt of court due to violating an order made by a justice of the peace, was imprisoned for six months.1262
Justice Cory recognized the utility of imprisonment as a sanction for regulatory offences in the Wholesale Travel Group Inc. decision.1263 He put the matter in these terms:
Regulatory schemes can only be effective if they provide for significant penalties in the event of their breach. Indeed, although it may be rare that imprisonment is sought, it must be available as a sanction if there is to be effective enforcement of the regulatory measure. Nor is the imposition of imprisonment unreasonable in light of the danger that can accrue to the public from breaches of regulatory statutes. The spectre of tragedy evoked by such names as Thalidomide, Bhopal, Chernobyl and the Exxon Valdez can leave no doubt as to the potential human and environmental devastation which can result from the violation of regulatory measures. Strong sanctions including imprisonment are vital to the prevention of similar catastrophes. The potential for serious harm flowing from the breach of regulatory measures is too great for it to be said that imprisonment can never be imposed as a sanction.1264
As can be seen, punishment or imprisonment is an important sentencing tool for regulatory offences. It is not linked, however, to knowing or deliberate or reckless conduct on the part of the offender, but, as Archibald et al note, to the "potential
249 gravity of the adverse effect."1265 As the authors go on to comment, this approach is "consistent with the foundation of regulatory offences in public welfare."1266
Verhulst does acknowledge that there will be cases where punishment or denunciation is justified for breaches of regulatory statutes, apart from cases involving intentional, deliberate or reckless acts. She cites, as examples of sufficient aggravating factors which merit such a "punitive response", the offender's failure to exercise due diligence "if it would have been simple or inexpensive to do so, or if the risks of harm were particularly high," or the party's
"dismissive or obstructive attitude towards regulatory officials", especially "if attempts have been made to suppress the offence or re-direct blame."1267 These considerations would clearly constitute the requisite "sufficient aggravating circumstances," so as to be deserving of punishment, under s.106(4)(b) of the
British Columbia Public Health Act™8
Finally, it should be noted that punishment or denunciation may involve an element of incapacitation to protect society, apart from the use of imprisonment.
Incapacitation is achieved, primarily, through the use of custodial sentences.1269
However, in the context of regulatory offences, an incapacitation order will
"generally prohibit the offender from engaging in certain regulated activities or acting in certain capacities temporarily (or even permanently).1270 As Verhulst observes, such sanctions are particularly effective for activities that require licences or permits to operate, but are not restricted to such operations.1271 For
250 repeat offenders who have not been deterred by monetary penalties, incapacitation while severe, may nonetheless be appropriate.1272 There is a need for such sanctions when deterrence is unsuccessful or ineffective, and cooperative approaches have been exhausted; in the regulatory enforcement pyramid, the ultimate sanctions are licence suspension and licence revocation.1273 Without recourse to these incapacitation measures, when all else fails, the enforcement pyramid cannot be effective.1274
4. Sentencing Purposes and Principles in a Statute of General Application
The British Columbia Public Health Act's provisions with respect to punishment appear in the context of a discrete regulatory law statute, and not one of general application for all regulatory offences, as would be the case with a similar provision pertaining to punishment purposes and principles in the British
Columbia Offence Act1275 or Ontario's Provincial Offences /\cf.1276 It may well be appropriate, as a matter of statutory drafting, to word a provision broadly for ease of application to other provincial statutes, in much the same way that the Criminal
Code1277 statement of statutory sentencing purposes and principles is set out,1278 an Act that applies to other federal statutes creating criminal offences. There is a presumption of coherence and consistent expression, such that statutes enacted by the legislature that deal with the same subject are presumed to be drafted with the other in mind, and not to contain "contradictions or inconsistencies."1279
Indeed, statutes that deal with the same subject matter are to be interpreted with reference to each other, to ensure that they operate together harmoniously.1280
251 However, it is preferable that a statement of sentencing purposes and principles should be placed in a provincial offences statute of general application, so that these principles are transferable, and may therefore be applied uniformly to all other statutes containing offences in the jurisdiction. Otherwise, a court lacks the power to make an order that is authorized under one statute, but not another. In Ontario, the vehicle for this would be the Provincial Offences /\cf.1281
If it is thought desirable to do so, it is open to the legislators to craft additional sentencing principles to apply to a particular statute, should a purpose or principle, such as denunciation, be considered to merit primacy for breaches of a particular regulatory standard. Another approach, that is available, is to set out additional sentencing considerations that apply to particular regulated parties, following the model provided by the Criminal Code probation provisions for organizations only.1282
An illustration of the type of issues that arise where a provincial statute contains sentencing considerations, that are not of general application, is illustrated by the Ontario Regulatory Modernization Act, 2007F.1283 This Act includes a provision stating that where a person has a previous conviction under the same or another statute, it should be regarded by the court as an
"aggravating factor"1284 that may be used to justify "a more severe penalty."1285
The inclusion of aggravating factors in one statute, as opposed to an Act of general application where sentencing considerations are grouped together and
252 organized, has the potential to make it more difficult, if not confusing, for the parties, including courts, to be aware of the relevant sentencing purposes and principles, and to apply and prioritize them in a consistent manner. Of course, it remains open for a statute to set out additional aggravating factors on sentencing, depending on the manner of the commission of the proscribed act, or the conduct of the offender.1286 There may also be enacted a statement of sentencing purposes and principles specific to the particular statute, with reference to the Act of general application.1287
The Ontario Court of Appeal's decision in R. v. Serfaty1288 provides an illustration of the application of such additional sentencing provisions. In upholding penitentiary sentences imposed for a mail fraud scheme involving an
Internet Yellow Pages business directory that generated over $1.1 million, contrary to the Competition Act,1289 the Court noted that a number of the circumstances in the case qualified as aggravating factors under s.380.1 of the
Criminal Code?290 respecting punishment for fraud, which had been enacted as part of the government's recent corporate crime initiative.1291 These factors were stated to be the following: (1) the value of the fraud committed exceeds one million dollars:1292 this amount was exceeded in the case; (2) the offence adversely affected, or had the potential to adversely affect, the stability of the
Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market:1293 the Court found that the nature of the misleading invoice scheme forced business people to scrutinize
253 every invoice for fraud, thereby "undermining consumer and business confidence in the marketplace;"1294 (3) the offence involved a large number of victims:1295 it was stated that there were hundreds of thousands of victims; and (4) in committing the offence, the offender took advantage of the "high regard in which the offender was held in the community":1296 the accused were found to have traded on a "known brand", and the deceit was "compounded" as the brand was not their own."1297 This Code provision, then, provides an illustration of aggravating circumstances peculiar to an offence, "without limiting the generality" of the sentencing principles that are stated to operate more broadly.1298 Indeed, it is even stated that the court should not consider, as mitigating factors on sentencing, a list of considerations, such as the offender's employment, employment skills or status or reputation in the community "if those circumstances were relevant to, contributed to, or were used in the commission of the offence."1299
5. Sentencing Purposes and Principles for All or Some Regulatory Offences
An issue that does arise with respect to enumerating a statement of sentencing purposes and principles in a statute of general application, such as the Ontario Provincial Offences Act, is that the Act differentiates between ticket offences under Part I, where there is a maximum fine level of $1,000, and no possibility of imprisonment or use of probation,1300 in contrast to Part III proceedings, where the Act authorizes the use of imprisonment and probation, a general penalty of $5,000, and other sentencing dispositions.1301 The question
254 which therefore may be posed is whether a statement of sentencing purposes and principles should reflect these differences, and be limited in its application to the more serious Part III proceedings only, or whether such a sentencing statement of purposes and principles should be applicable to all manner of proceedings under the Act, notwithstanding these procedural distinctions.
There are arguments that may be fashioned, with some force, in support of excluding a statement of sentencing purposes and principles from the Part I ticketing procedure. The provisions under Part I allow for proceedings which are not permitted under Part III, such as default convictions where the defendant fails to respond to a ticket,1302 or fails to appear at trial;1303 Part I also permits re- openings and the striking out of the conviction by a justice of the peace, following a finding of guilt, where it is not the defendant's fault that he/she was convicted without a trial.1304 It is consistent with such provisions, it might be said, that a statement of sentencing purposes and principles should be inapplicable to Part I proceedings, since these Part I procedures do not apply, in turn, to the trial and sentencing provisions under Part III of the Act. Moreover, sentencing provisions that are set out under Part III, such as imprisonment and probation, are inapplicable to Part I proceedings.1305
It may further be contended that if fines are the only available penalty under Part I of the Act, and minimal ones at that, at least for the most part, there is no practical need for a guiding rationale on sentencing for courts, given that
255 monetary dispositions will almost always be imposed. Indeed, the amount of many such fines is determined at the time the offender is charged, that is, the court imposes "set fines".1306 Further, the statement of purpose under the Ontario
Provincial Offences Act, which refers to "a procedure that reflects the distinction between provincial offences and criminal offences,"1307 might be said to be consistent with a statement of sentencing considerations not applying to those offences that are most unlike criminal offences, namely, ticket offences under
Part I of the legislation, as opposed to Part III offences that, in common with criminal offences, are initiated by sworn information.1308
On the other hand, there are a number of arguments which may be marshaled in support of a statement of sentencing purposes and principles applying to all proceedings under the Provincial Offences Act (Ont), despite the procedural differences and other distinctions between Part I and Part III of the legislation. To begin, it is not infrequently the case that offences which are the subject of a Part III proceeding, such as the Highway Traffic Act (Ont.) offence of careless driving,1309 might be charged under Part I, where, for example, the provincial offences officer considers that the nature of the infraction does not justify the laying of an information, and exposing the defendant to a greater penalty and the more formal Part III procedure. The opposite is also true. The officer might decide to lay a charge under Part III for an offence that is usually prosecuted under Part I, such as speeding,1310 in order to have the matter accompany a more serious offence that is committed at the same time, such as
256 driving while suspended.1311 In either case, the disposition of the court most likely to be imposed is a fine, in accordance with the Cotton Felts Ltd. decision,1312 regardless of whether the offence is charged under Part I or Part III of the
Provincial Offences Act. A deterrent or exemplary monetary penalty may thus result, notwithstanding how the proceeding is conducted; conversely, the court may decide to impose no fine at all, as where there are extenuating circumstances that justify this penalty option.1313
In exercising its discretion to determine the amount of any fine, or vary a monetary penalty that is predetermined, that is, a "set fine", courts should approach the matter on a sound and principled basis, including the determination as to whether or not to raise or lower the prescribed fine, and if so, by what amount. For example, an offender who comes before the court for the first time and accepts responsibility for his/her conduct, may be contrasted with one who has a previous record for the same offence, and lacks remorse. On what basis would a court determine the appropriate financial penalty, and distinguish between these two cases, if a statement of sentencing purposes and principles did not apply under Part I of the Act? It is the penalty amount that is impacted by the mode of procedure, not the underlying sentencing considerations. To preclude sentencing purposes and principles from applying if the matter is treated as a ticket offence, but not if charged by an information, thus seems an arbitrary distinction.
257 Moreover, it is the case with many Criminal Code offences that the prosecutor has an election as to the applicable trial procedure, which impacts, in turn, upon the available penalty and manner of trial that follows. If the election for such offences is by way of summary conviction, as opposed to indictment, in which case lesser penalties apply, the prosecutor's election evidences its view as to the seriousness of the charge. However, it does not result in the Code purposes and principles of sentencing provisions not applying to such offences, merely because the Crown considers that the summary mode of procedure will suffice for punishment or other purposes, such as a more expeditious hearing of the matter.
In the context of the Ontario Provincial Offences >Acf,1314 if a statement of sentencing purposes and principles did not apply to all manner of regulatory offences, the mode of procedure would become the determining factor with respect to the applicability of such sentencing purposes and principles. That is, the question as to whether or not there was a statement of purposes and principles applying to a sentencing hearing would depend entirely upon the nature of the proceedings, as opposed to the unique character of regulatory offences themselves. This would inevitably give rise to unpredictability and disparities in treatment of offences and offenders, and undermine the intended goals of certainty and consistency that the enactment of a statement of sentencing purposes and principles for regulatory offences is designed to achieve. It would also produce the anomalous result that the same basic rules of
258 procedure and admissibility of evidence would apply to all manner of provincial offences trial proceedings, but not sentencing hearings. In short, it would create a large body of offences for which sentencing considerations would continue to be inapplicable, and perhaps foster a perception that such offences were less deserving of penalties being imposed on a principled basis.
Therefore, the better view, on balance, is that a statement of sentencing purposes and principles should be enacted for all regulatory offences. This uniform approach has the advantage of being both principled and rational. The limitation of quantum of fine amount, or unavailability of other sentencing options, due to one mode of procedure, may properly be viewed as one factor for the court to consider on sentencing with regard to the seriousness of the offence, and the need, if any, for a deterrent penalty. It ought not, however, be used to preclude a principled approach from being taken to sentencing itself, merely because either imprisonment or a fine in excess of $1,000. is not an available sentencing option. Fines, even in minimal amounts, may trigger adverse consequences, as in the case of default of payment giving rise to suspension of a driver's licence, or non-renewal of a permit due to an outstanding balance.
Indeed, the fine ranges themselves may be expanded or increased, as recent amendments to the Provincial Offences Act demonstrate.1315
Chief Justice Bonkalo described the impact that provincial offences have on the administration of justice in the province of Ontario in her remarks at the
259 Opening of the Courts in 2009. Noting that approximately 2 million charges had been brought before the Ontario Court of Justice, comprised of criminal cases, family law matters and provincial offences, of which the vast majority were provincial offences, she commented:
Many can be resolved quickly, some are complex, lengthy proceedings. Every one of them is important to the community and those directly affected by any case.13
It follows that there is no reason to think that a person, who comes before the court charged with a provincial offences ticket, would consider that such a matter is any less deserving of principled consideration, including on sentencing, than one who appears before the court under Part III of the Provincial Offences Act, or otherwise.
6. Conclusion
Regulatory offences are conceptually distinct from criminal offences, being offences that consist essentially of negligent conduct by a regulated actor who fails to meet the regulatory standard. Consequently, the sentencing principles and purposes that are appropriate for regulatory offences are not the same as those for true crimes. Nevertheless, it is essential that, as in the case of our criminal law, sentencing purposes and principles for regulatory offences are identified and stated by the legislators, such that there can be no doubt as to
260 what such sentencing principles are, and what is the guiding rationale behind them.
The ordering of sentencing purposes and principles for regulatory offences has similarities to the structure of enforcement based regulatory pyramids, where actions which are persuasive and voluntary are first considered, before moving on to more coercive measures, including criminal prosecution, and ultimately licence suspension or revocation.1317 Sentencing purposes and principles for regulatory offences should borrow from this model. Courts should first consider remedial and rehabilitative measures, such as restitution or probation, before moving to more punitive responses, such as fines and imprisonment. The ultimate weapon in the court's sentencing arsenal, incapacitation, is the same as that at the apex of the enforcement pyramid: the power to suspend or prevent the regulated party from participating in the regulated activity. In short, such an orderly and principled approach aims first at fostering a compliance culture; however, where more drastic steps are required, a culture change may also be sanctioned.
It is thus not only important to enact a statement of such sentencing purposes and principles, but to arrange them in a hierarchical order so that courts may interpret and apply them in a coherent and logical fashion for all manner of regulatory offences, regardless of the procedure by which they are brought before the court. Having regard to the regulatory cycle in particular, and the unique nature of regulatory offences generally, this statement of sentencing
261 purposes and principles should require sentencing courts to do, in order, the following:
1. impose a sanction that remedies the violation, where it is possible and reasonable to do so;
2. impose a sanction to rehabilitate the offender, so as to promote the necessary changes, where it is likely that the offender will continue to engage in the regulated activity after sentencing, but the offender's behaviour must change to prevent future violations;
3. impose a sanction for general deterrence so as to promote change in the behaviour of other persons, where it is appropriate in the circumstances, and would likely have social value;
4. impose a sanction to denounce, and therefore punish, the offender's behaviour, where aggravating circumstances make it appropriate to do so.
It is only when courts impose sentences for regulatory offences on this basis, applying a statement of sentencing purposes and principles enacted by the legislators, that regulatory objectives will truly be furthered. This approach, in simple terms, sets out and prioritizes the applicable sentencing purposes and principles for regulatory offences, and provides the courts with a clear rationale, aimed throughout, at furthering regulatory objectives, and hence, regulatory justice.
262 PARTV. FINISHING TOUCHES
Chapter 7. Retrofitting the Regulatory Offences Sentencing Toolbox: a New Set of Sentencing Options for a New Statement of Sentencing Purposes and Principles
1. Introduction
It is essential that courts are equipped with the necessary sentencing tools to give effect to the enactment of a new statement of sentencing purposes and principles for regulatory offences. Otherwise, the goal of achieving compliance with the regulatory standard, and changing the behaviour of the regulated party, through sentencing, will be frustrated. Stated shortly, courts will not be able to play an effective role in the regulatory cycle unless they are given the sentencing powers with which this may be done.
Indeed, almost from the time of implementation in 1980 of the Provincial
Offences Act (Ont.),n™ concerns have been expressed that the sentencing options provided under the legislation were unduly limited.1319 This was noted, for example, in the Law Commission of Canada's study paper in 1985, entitled,
Sentencing in environmental cases, where it was stated that due to "the wide range of offenders and contemplated by environmental laws," there was a need for "a broader range of penalties and a wider variety of sentencing tools."1320
These sentiments have been expressed, in relation to all manner of regulatory offences, by Archibald et al,1321 Verhulst,1322 the Ontario Law Reform
Commission,1323 and most recently Keith.1324 The issue is not unique to
263 Ontario.1325 An enhanced use of probation, restitution and community service orders, among other penalty provisions, it is contended, would better equip courts with the necessary tools to sanction offenders who fail to achieve the regulatory standard, and are likely to return to the regulated activity following sentencing.
On the other hand, it is clear that the stated intention of regulatory procedural statutes, such as the Provincial Offences Act of Ontario,1326 is to enact a procedure that "reflects the distinction between provincial offences and criminal offences."1327 Hence, the more limited use of sentencing dispositions is in keeping with this fundamental difference. Indeed, the Provincial Offences Act, unlike the Criminal Code,™28 does not contain penalties that may be imposed for provincial offences, other than a general penalty, where no such punishment is set out in a provincial statute.1329 Moreover, the few offences it does include are
"primarily procedural in nature",1330 such as failing to appear in court,1331 making a false statement,1332 contempt of court1333 and publishing the name of a young person.1334 Instead, the Act "creates a number of procedures to govern sentencing, and to govern the collection of fines,"1335 the latter being the most common form of punishment imposed by courts respecting the enforcement of public welfare statutes.1336
While a detailed examination of the scope of all such sentencing provisions is beyond the scope of this paper, it is appropriate to at least consider,
264 in this concluding chapter, how the regulatory offences sentencing toolbox might be updated and equipped, in order to best implement a new statement of sentencing purposes and principles for regulatory offences.
2. Provincial Offences Legislation Sentencing Provisions
All provinces have provincial offences legislation in one form or the other.
The majority, as exemplified by Ontario's Provincial Offences Act 1337and the
British Columbia Offence >Acf,1338 contain discrete sentencing provisions of their own. However, some provinces simply provide for the summary conviction procedure set out in the Criminal Code1339 to apply, including punishment.1340
Typically, provincial offences sentencing provisions differ dramatically with those contained in the Code, particularly ones that have been added to the Criminal
Code more recently, and that equip courts with broader and more innovative sentencing options, as in the case of conditional sentences for individuals,1341 and probationary terms for organizations.1342
The sentencing options that are available under the Provincial Offences
Act of Ontario are essentially these: fines, probation and imprisonment, or a combination thereof, such as a fine and period of imprisonment, or a suspended sentence and term of probation.1343 Discharges are not available, as there is no record of convictions under the Act.1344 In particular, a number of sentencing provisions deal with fine enforcement and ancillary issues, such as surcharges,1345 the victims' justice fund account,1346 fine due dates1347 and
265 extension of time for payment of fines,1348regulations for work credits for fines,1349 civil enforcement of fines1350 and default of payment of fines.1351 Probation may be imposed for up to 2 years1352; there is a penalty for breaching the terms of a probation order.1353 Where imprisonment is ordered, that is, the statute creating the offence provides for such a penalty, such as the Highway Traffic Act (Ont.) offence of careless driving,1354 where there is a minimum fine of $400 and not more than $2,000, or imprisonment for up to 6 months, or both,1355 under the
Provincial Offences Act the court may suspend the passing of sentence and place the offender on probation,1356 or, where less than 90 days' imprisonment is imposed, order that the sentence be served on an intermittent basis, such as over weekends.1357
In crafting such sentences, however, a number of questions may be posed. Did the court take into account how the breach of the regulatory standard impacted the victim? How would the victim, if he/she so wished, convey such information to the court? If such information were made available to the court, how should it play a role in the court's disposition, for example, might it support a term of probation, or influence the quantum of fine, or even be reflected in a custodial disposition as where a denunciatory sentence is warranted, but the victim attests to post-offence conduct by the offender mitigating the harm done?
Community service, restitution or compensation, are examples of other matters that the court might wish to consider in crafting its sentence, especially where the regulated party is likely to continue participating in the regulatory activity following
266 sentencing. It is to these sentencing measures, and related provisions, that consideration will now be given.
3. Probation
The probation provisions under the Provincial Offences Act (Ont.)1368 particularly illustrate the limitations of the Act's sentencing powers, especially when compared to the use of probation for offenders who commit criminal offences. Probation under the Ontario provincial offences legislation may be imposed for a maximum of 2 years1359 whereas the Criminal Code1360 maximum period of probation is 3 years.1361 The latter neither distinguishes between the use of probation for indictable (more serious) or summary conviction (less serious) offences. Probation may be imposed in either case so long as the offence is not one where there is a minimum punishment prescribed by law,1362 or the sentence of the court does not exceed two years,1363 thereby amounting to a penitentiary sentence.1364 Conversely, probation under the Provincial Offences
Act is available only where the offence is one where the proceedings have been commenced by information, that is, Part III proceedings, as opposed to the Part I ticket procedure;1365 neither must the individual have been convicted of an absolute liability offence.1366
Under both the federal and provincial legislation, there are statutory or compulsory terms that must appear in a probation order, as well as those that are optional and may be imposed at the court's discretion. A comparison of these
267 provisions readily demonstrates the limitations of probationary terms for offenders who breach provincial regulatory statutes, subject to the sentencing powers that may be set out in the particular provincial statute.1367 This is particularly the case respecting optional conditions that may be utilized in a provincial offences probation order. Even the mandatory terms of probation differ, although there are three such conditions in both criminal offence and provincial offences probation orders.
Under the Criminal Code the statutory or compulsory terms of probation are the following: (1) keep the peace and be of good behaviour;1368 (2) appear before the court when required to do so by the court;1369 and (3) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation.1370 These differ somewhat from the mandatory three terms which are deemed to be contained in Ontario provincial offences probation orders: (1) the defendant not commit the same "or any related or similar offence", or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment;1371 (2) the defendant appear before the court as and when required;1372 and (3) the defendant notify the court of any change in the defendant's address.1373 In essence, the keeping the peace and being of good behaviour clause of the provincial offences probation order is worded more narrowly than its criminal counterpart, and the matters to notify the court of, as
268 opposed to a probation officer, are confined to a change of address, as opposed to any change of name, employment or occupation.1374
It is with respect to the optional or discretionary terms of probation that may be imposed on sentencing, however, where it is most readily apparent as to the restrictive manner in which provincial offences probation orders operate. The more restrictive terms of probation under the Provincial Offences Act are said to reflect "the different character of provincial offences".1375 Under the Criminal
Code, there is a currently a list of 10 such optional conditions that may be imposed;1376 additional optional terms of probation are set out for organizations.1377 In the case of offenders placed on probation in relation to criminal offences, the optional terms include matters such as requiring the person to report to a probation officer,1378 or remaining within the jurisdiction of the court.1379 Other terms include requiring the offender to abstain from owning, possessing or carrying a weapon,1380 or providing for the support or care of dependents.1381 It is also open to the court to direct that the offender perform up to 240 hours of community service over a period of not more than 18 months.1382
Another optional condition is that the court may require the person to "comply with such other reasonable conditions as the court considers desirable" in order to protect society and facilitating "the offender's successful reintegration into the community."1383
As noted, there are also further optional conditions that are specifically set out in the Code for organizations.1384 These terms read as follows:
269 732.1(3.1) The court may prescribe, as additional conditions of a probation order made in respect of an organization, that the offender do one or more of the following:
(a) make restitution to a person for any loss or damage that they suffered as a result of the offence;
(b) establish policies, standards and procedures to reduce the likelihood of the organization committing a subsequent offence;
(c) communicate those policies, standards and procedures to its representatives;
(d) report to the court on the implementation of those policies, standards and procedures;
(e) identify the senior officer who is responsible for compliance with those policies, standards and procedures;
(f) provide, in the manner specified by the court, the following information to the public, namely,
(i) the offence of which the organization was conviction,
(ii) the sentence imposed by the court, and
(iii) any measures that the organization is taking - including, any policies, standards and procedures established under paragraph (b) - to reduce the likelihood of it committing a subsequent offence; and
(g) comply with any other reasonable conditions that the court considers desirable to prevent the organization from committing subsequent offences or to remedy the harm caused by the offence.
By way of comparison, there are only four optional conditions that may be included in probation orders under the Provincial Offences Act. The first is that the defendant satisfy any compensation or restitution that is required or
270 authorized by an Act.1385 The effect of this is that compensation or restitution may be ordered as a term of probation only where it is specifically permitted by the enactment creating the offence; the Provincial Offences Act does not itself authorize this.1386 Conversely, probation provisions in provincial offences legislation in other jurisdictions across Canada expressly permit compensation or restitution to be made a condition of such orders.1387
The second optional term is that the defendant perform community service. This condition requires the consent of the defendant, and the offence must be one that is punishable by imprisonment.1388 These are significant limitations on the use of community service, and appear to reflect the view that such orders, at least in relation to provincial offences, are "sufficiently draconian in their intrusion on the liberty of the subject to require their restriction to circumstances in which they are an alternative to imprisonment."1389 Unlike the
Code, there is no prescribed period over which such community service is to be completed, nor any ceiling on the number of hours of community service that may be ordered by the court. Moreover, provincial offences legislation in other
Canadian jurisdictions authorizes the imposition of community service as a term of probation.1390
The third optional term is that where the conviction is for an offence punishable by imprisonment, the court may impose such other conditions relating to the circumstances of the offence and of the defendant that contributed to the
271 commission of the offence, as the court considers "appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant."1391 This term therefore requires that the conditions "relate to the circumstances that actually contributed to the commission of the offence."1392
Finally, there is an optional condition respecting a reporting requirement.
Where the court considers it necessary for the purposes of implementing the conditions of the probation order, it may direct that the defendant report to a
"responsible person" designated by the court, as well as be under the supervision of the person to whom the defendant is required to report, where the circumstances warrant it.1393 This optional term differs from the Code reporting condition in three significant ways: it can only be imposed where the requirement to report is "considered necessary" for the purpose of implementing the other conditions of the probation order; the defendant must report to a "responsible person" as opposed to a probation officer; and the term that the defendant be under the supervision of the person to whom he/she reports is only to be imposed where "the circumstances warrant it".1394
Probation orders enable the court to supervise the conduct of the offender for a significant period of time following the imposition of the court's sentence.
Under the Provincial Offences Act this can be for a maximum of 2 years.1395 In addition, the offender can be punished for failing to follow the terms of probation.
This includes fining the defendant up to $1,000, or imposing imprisonment for a
272 maximum of 30 days, or both; the court can also make changes or additions to the probation order, and extend its application for an additional 1 year period.1396
Alternatively, it is open to the justice who made the original probation order to revoke it, and instead impose the sentence that was suspended upon the making of the probation order.1397
For offenders convicted of regulatory offences, the operation of s.72(3) of the Provincial Offences Act respecting optional or additional terms of probation severely limits the court's ability to use probation as a means of furthering the regulatory objective through remedial and rehabilitative measures. Indeed, a probationary term that is appropriate for rehabilitation may have "a secondary punitive effect."1398 Community service, for example, is permitted only with the defendant's consent and where the underlying offence is punishable by imprisonment; compensation and restitution are available only where authorized by the statute in question. However, as Verhulst observes, in order for courts "to craft the most appropriate sentence", it is essential that there be "a wide variety of sentencing options".1399 The Ontario provincial offences legislation, on the other hand, appears to inhibit such sentences, at least through the restrictive scope of probation orders.
Moreover, the Act makes it difficult to put in place other innovative approaches, such as the use of an "imbedded auditor" to monitor compliance by the defendant with the court's order, as proposed by Archibald et al.1400 Another
273 measure the authors put forth is a requirement that corporations post a bond, as a form of security to the Crown, to ensure that there are funds available to satisfy any potential fines or remediation "in any sector where there are significant regulatory constraints."1401 Such terms might well be included in a provincial offences probation order, were there the authority under s.72(3)(c) to do so, on the basis that such conditions would "prevent similar unlawful conduct" or
"contribute to the rehabilitation of the defendant. "On the other hand, the Criminal
Code probation terms for organizations1402 provide a model of what additional terms of probation might be considered desirable and appropriate, especially in relation to corporations convicted of breaching regulatory statutes.
At a minimum, these Criminal Code provisions suggest that it is appropriate to set out probationary terms that operate differently for corporations than for individuals. Indeed, the Criminal Code probationary provisions for organizations seem particularly apposite for regulated parties who fail to adhere to the regulatory standard, as they are particularly directed towards remedial and rehabilitative goals. As Keith notes in a recent article on sentencing corporate offenders convicted of regulatory offences, enacting "more extensive provisions with respect to probationary orders" under the Provincial Offences Act in the same manner as the Code organization probation provisions would address "the complex and socially important role of sentencing a corporate offender."1403
274 4. Fine Option Programs
Least it be thought that the issue of sentencing inflexibility merely stems from the restrictive manner in which probation is provided for under the Ontario
Provincial Offences Act,U04 it should be noted that there is a dearth of other sentencing options and ancillary provisions in the legislation, beyond fines and jail. There is currently no fine option program or manner in which work credits can be performed in lieu of financial penalties. It was contemplated in the original legislation that such a program be established in order to allow the offender to satisfy a fine by performing specified work.1405 There is no requirement under s.67 of the Act that the fine must be in default in order for the defendant to be eligible for the work credit program. A similar fine option program is set out under s.736 of the Code1406. For impecunious offenders who commit regulatory offences and are fined, then, there is no system in place of "working off' fines, although other relief from payment provisions are available.1407
While regulations were enacted to permit such a fine option program to operate for provincial offences, there continues to be no such program in existence in Ontario.1408 Indeed, the schedule of fine option program districts has been revoked.1409 As a result, Ontario is one of the few jurisdictions in Canada not to have a fine option program in operation.1410 It has been observed that such programs are "clearly aimed at offenders of limited means for whom a fine is the appropriate disposition."1411
275 The Supreme Court of Canada has made reference to the absence of the fine option program in Ontario, commenting that the dismantling of the program's administrative apparatus appeared to be in response to "budget cuts".1412 The defendant in the case in question had been convicted of being in possession of contraband tobacco, contrary to the Excise >4ct1413 and was sentenced to the minimum fine, of which he was unable to afford. The trial judge commented that had the fine option program been available in Ontario, he would have enrolled the defendant to work off the debt over a period of time through community service.1414 This case attests to the usefulness of fine option programs for regulatory offences, and their potential application under provincial offences legislation.
5. Alternative Measures
Other options, such as "alternative measures"1415 which are set out in the
Criminal Code for adult offenders, or "extra-judicial sanctions" for young persons,1416 are not available under the Provincial Offences Act fO/if.j.1417 Some public welfare statutes do, in fact, authorize such alternative measures, as in the case of the Canadian Environmental Protection Act, 1999,1418 which sets out
"environmental protection alternative measures."1419 In essence, "alternative measures" are a form of diversion: the court is authorized to dismiss a charge where the defendant has entered into, or completed, an agreed upon program of alternative measures, such as community service, attendance at a victim awareness program, or donation to a charitable organization. Such programs are
276 in keeping with restorative justice initiatives, by furthering the offender's rehabilitation through taking responsibility for the wrongful act, and acknowledging its impact on the victim. As is the case for fine option programs, it is up to the province to design and implement alternative measures or diversion
1420 programs.
Alternative measures are desirable for regulatory offences for a number of reasons, notwithstanding that regulated offenders are not given a criminal record upon conviction for failing to meet the regulatory standard. To begin, it is a form of encouraging voluntary compliance, in much the same way that regulators attempt to coax cooperation through measures at the base of the regulatory pyramid, as opposed to more formal steps such as prosecution. This, in turn, preserves court time for trials of regulatory matters that are considerd to be more deserving of prosecution. From the standpoint of the regulated party, there are also obvious benefits. Though not exposed to a criminal record, a conviction for a regulatory offence makes the offender subject to a harsher penalty in the event of a subsequent conviction for the same or a similar offence, under the authority of the Regulatory Modernization Act (Onf.).1421 Previous convictions may also be used on cross-examination at trial proceedings to impugn the credibility of the offender, even where the conviction is for a regulatory offence.1422
Alternative measures under the Criminal Code are available only where "it is not inconsistent with the protection of society."1423 Other requirements include that such measures must be appropriate having regard to the needs of the
277 person alleged to have committed the offence, and the interests of society and of the victim.1424 Victim input is an important component of diversion resolution agreements which found alternative measures.1425 The defendant must accept responsibility for the conduct that forms the basis of the offence with which he/she has been charged;1426 alternative measures are not to be used if the person denies participation or involvement in the commission of the offence,1427 or wishes to have the charge dealt with by the court.1428 Failure to complete the alternative measures program will lead to the continuation of the proceedings against the defendant.1429
In terms of how alternative measures might be proffered under provincial offences legislation, there are examples of public welfare statutes that contain such provisions, and might therefore serve as a model for Ontario's Provincial
Offences Act. Incorporation of alternative measures into this procedural Act would thereby extend the ambit of such programs to all manner of regulatory offences, in much the same manner as does the Code. Under the Canadian
Environmental Protection Act, 1999,1430 "environmental protection alternative measures" are cast in similar terms to s.717 of the Code: where such measures have been used to deal with a person alleged to have committed a designated offence under the Act, the court may dismiss the charge, upon being satisfied that the person has complied with the agreement.1431 The federal Species at
Risk Act1432 also puts in place an alternative measures scheme. Under this statute, an alternative measures agreement may remain in force for up to 3
278 years;1433 it may be supervised by governmental or non-governmental organizations.1434 These regulatory statutes effectively put in place diversion programs based on the Code, with appropriate modifications for the particular legislation. It would be open to the Provincial Offences Act to do the same: enact an alternative measures provision of general application, while allowing for modifications to suit individual provincial regulatory Acts.
6. Alternative Penalties
Alternative penalties, unlike alternative measures that are performed in advance of proceedings before the court, flow from a finding of guilt after the proceedings, and permit the court to impose a sanction that is beyond the typical penalty of a fine, probation or imprisonment. The British Columbia Public Health
Act1435 employs such an approach for regulatory offences. Some of the alternative penalties it provides resemble, in fact, terms that might be included in a probation orders; however, others are quite innovative and appear particularly well suited for regulated actors who have failed to achieve the regulatory standard.
A number of the alternative penalties in the British Columbia legislation might be considered to be quite traditional in nature, such as requiring the offender to pay compensation for the cost of a "remedial or preventive action taken by or on behalf of the person as a result of the commission of the offence."1436 Community service may be ordered for a period of up to 3
279 years. 1437The court may also require that the offender not engage in any activity that may result in the continuation or repetition of the offence, or the commission of a similar offence under the Act,1438 or to comply with any conditions that the court considers appropriate for preventing the person from continuing or repeating the offence, or committing a similar offence under the Act.1439
With respect to some of the other more creative alternative penalties, the court may order that the offender submit information to the minister or a health officer, respecting the activities of the person, for a period of up to 3 years.1440
Where the offender is a corporation, the court may designate a senior official within the corporation as the person responsible for monitoring compliance with the legislation, or the terms or conditions of any licence or permit held by the corporation under the Act.1441 The offender can also be ordered to develop guidelines or standards, or implement a process, for the purposes of preventing the person from continuing or repeating the offence, or committing a similar offence.1442 These guidelines or standards may be made available over a 3 year period, from the time of their development, to another person or class of persons.1443 The court also has the authority to order the offender to publish the facts relating to the commission of the offence, as well as any other information it considers appropriate.1444 In addition, the offender may be required to post a bond in an amount of money that the court considers appropriate for the purpose of ensuring compliance with a prohibition, direction or requirement imposed as an alternative penalty.1445
280 The goal of alternative penalties is to "give effect to the purposes of sentencing" as set under the Public Health ActU4e The enactment of a statement of sentencing purposes and principles under the Provincial Offences Act of
Ontario1447 should likewise lead to a consideration of such innovative measures, which might encompass alternative penalties provisions, so as to give the court broader flexibility in crafting a disposition that will encourage the offender to resume participation in the regulated activity, in a fully compliant manner.
7. Creative Sentence Orders
A recent trend in regulatory offences sentencing cases involves the courts imposing innovative sentencing dispositions that incorporate restorative justice principles, so as to give effect to the "polluter pays" principle.1448 However, such
"creative sentences" are dependent upon the statutory authority provided in the offence-creating statute. An example of sentencing powers of this nature is illustrated by s.79.2 of the Fisheries Act,U49 which gives the court the authority to make orders such as prohibiting the person from doing any act or engaging in any activity that may, in the opinion of the court, result in the continuation or repetition of the offence1450 or directing the person to take any action the court considers appropriate to remedy or avoid any harm to any fish, fishery or fish habitat that resulted or may result from the commission of the offence.1451
281 These provisions, which are not unlike "alternative penalties" as set out under the British Columbia Public Health Act,U52 permit the court to effectively require the defendant to "take action" and clean up the mess for which it is responsible.1453 In addition, the defendant may be ordered to pay monies to
"laudable groups or agencies" rather than merely being fined.1454 Decisions including creative sentencing orders have imposed requirements that the defendant provide the Ministry with a rationalized long-term site monitoring program and an engineering report that was to be submitted to the informant.1455
In another case, the defendant was required to establish scholarships for students enrolled in environmental science and resources technology, and construct an effluent treatment plant for which it had to post an irrevocable letter of guarantee respecting the plant's construction.1456
There is no authority to make such orders under the Provincial Offences
Act of Ontario,1457 the necessary authorization having to be found in the applicable legislation. Whether styled as "alternative penalties" or "creative sentences", the inclusion of such provisions in a procedural statute of general application would better permit courts to craft sentences that emphasize remedial and rehabilitative measures for all manner of regulatory offences. This is in keeping with the underlying values of the regulatory regime, and thereby fosters a compliance culture. In essence, such sentences permit the court to be an active participant in the regulatory cycle, within the proper confines of sentencing, by furthering the regulatory objective and moving the offender towards
282 compliance and a better relationship with regulators. There remains, if necessary, other sentencing powers to emphasize deterrence and denunciation.
Creative sentencing provisions do not detract from such dispositions, but rather bolster the ability of courts to be more flexible and innovative in fashioning the most appropriate sentence, having regard to all the circumstances.
8. Restitution and Compensation
Restitution and compensation are examples of "compensatory community sanctions".1458 These measures are directed at "redressing the victim of an offence for loss or injury suffered."1459 They are not, strictly speaking, the same: compensation is "monetary payment to redress property loss" whereas restitution is "financial reimbursement for either property damage of for physical injury."1460
The Law Reform Commission of Canada in its 1974 paper on "Restitution and
Compensation" commented that restitution "challenges the offender to see the conflict in values between himself, the victim, and society;" in particular, it "invites the offender to see his conduct in terms of the damage it has done to the victim's rights and expectations."1461
The Criminal CodeU62 provides for restitution and compensation to be awarded, either as a term of probation as an optional "reasonable condition",1463 or as a free-standing order.1464 The latter may be entered as a judgment in civil court and enforced as such if it is "not paid without delay".1465 In this manner, the amount of restitution becomes enforceable against the offender as if the order
283 was a judgment of the civil court. Conversely, a probation term of compensation or restitution (the term "reparations" is sometimes used as well) is enforceable only during the currency of the probation order, and thereafter only if breach proceedings are initiated, and successfully prosecuted. In either event, the Criminal Code encourages the use of such compensatory terms: the statement of purpose in s.718 directs courts on sentencing to impose sanctions to "provide reparations for harm done to victims or to the community",1467 as well as to "promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community."1468
On the other hand, the Provincial Offences Act (Ont.)1469 severely restricts the ability of courts to award restitution or compensation to victims of regulatory offences. Unlike the Criminal Code, restitution may not be imposed as a free standing order, independent of probation, in relation to provincial offences.
Conversely, provincial offences legislation in other jurisdictions across Canada authorizes the awarding of compensation on sentencing, as a remedy for persons aggrieved due to loss or damage to property caused by the defendant.1470 Indeed, as the England and Wales Court of Criminal Appeal very recently stated in R. v. Thames Water Utilities Ltd.,1471, there is "a clear policy need" to encourage the making of voluntary reparation by offenders who commit regulatory offences, whether by consenting to compensation orders, or making or pledging voluntary payments.1472
284 As for probation, the provincial statute in question must authorize the use of compensation or restitution in order for such a condition to be attached; there is no authority under the Ontario Provincial Offences Act itself to do so. 1473
Further, apart from breach of probation proceedings, there is no enforcement mechanism for restitution under the legislation, such as seeking to have unpaid restitution orders enforced as a judgment in the civil courts, as permitted by the
Code, as well as provincial offences legislation in other jurisdictions.1474 The effect of these limitations is to significantly restrict the utility of such restitution and compensation provisions for regulatory offences, notwithstanding that this sanction is a method of encouraging offenders to take responsibility for their actions, while providing an effective means of redress to victims.
9. Forfeiture
Under the Criminal Code1475 there is a power for a judge on sentencing to order forfeiture of property that is "offence-related property," and where the offence was committed in relation to that property.1476 A similar provision is contained in the Controlled Drugs and Substances ActU77 The Code also sets out forfeiture powers on sentencing in relation to "proceeds of crime".1478 A detailed set of procedures is provided for all these forfeiture provisions. While forfeiture is recognized as being "technically part of the sentence", a forfeiture order is not punishment specifically for the offence.1479 Instead, these provisions are designed to "deprive offenders of the profits of their crimes and take away any motivation to pursue their criminal activities."1480
i 285 It is not uncommon for public welfare statutes to employ forfeiture powers for courts on sentencing. Forfeiture is considered to be an "additional punishment" for the more serious regulatory offences, especially where there is a commercial or profit motivation. It is a particularly effective tool where there have been repeated violations of the law, since a method to prevent repetition of the offence is to "forfeit the means used in the commission of the offence."1481
Forfeiture also permits the "fruits" of such violations to be confiscated, including the offender's assets, so that there is no regulatory windfall as a result of one's non-compliance. Hence, the Fisheries Act provides that a court may order that anything seized, or the proceeds realized from its disposition, be forfeited to the
Crown.1482 Other regulatory statutes that employ similar forfeiture provisions typically include hunting and wildlife legislation.
For example, in a case of unlawfully hunting at night under the Manitoba
Wildlife Act1483 the defendants were each fined $600, plus costs; the truck and rifles used in the commission of the offence, which were worth approximately
$45,000, were the subject of a forfeiture order.1484 In a Newfoundland fisheries case, the court fined the defendant $25,000, and ordered forfeiture of the crab traps which had been seized by the authorities, as well as the amount of money
($132,000) realized from the sale of the crab which had been illegally caught.1485
It has been observed, however, that forfeiture is "a rough tool of justice", given that it does not permit the court to take into account the mitigating factors that
286 Parliament has set out under s.718.2 of the Criminal Code as being relevant on sentencing.1486
Conversely, the Provincial Offences Act (Ont.)1487 refers to forfeiture only in the context of Part I (ticket) proceedings. Pursuant to s.12(2), which deals with consequences of conviction, it is stated that any thing seized in connection with the offence after the service of the offence notice under Part I is not liable to forfeiture. It appears that the rationale for this provision is that when the offence notice is delivered, the defendant "will know what articles have been taken from him and thus be aware of the potential consequences of conviction."1488 It also minimizes the "possibility of an unreasonable seizure of goods" once the officer has decided that the offence does not warrant the issuance of a summons, and thus any appearance in court by the defendant1489 The absence, then, of forfeiture powers under the sentencing provisions of the Provincial Offences Act, precludes the court from making any order in relation to the proceeds of regulatory offences, or items used in furtherance of the commission of the offence, absent a provision to this effect in the underlying public welfare legislation in question.1490
10. Conditional Sentences
Consideration should also be given to conditional sentences as a sentencing option for regulatory offences. Indeed, it was at the same time that a statement of sentencing purposes and principles was enacted for criminal
287 offences that the conditional sentence regime was also created, pursuant to the
1996 amendments to the Criminal CodeU9^ Such sentences are an alternative to the traditional method of imprisonment, since incarceration is not required to be served within an institution; they also constitute a means by which the court can implement its sentencing powers so as to "craft the appropriate disposition for an offender."1492 Conditional sentences are additionally said to achieve restorative objectives of sentencing, while providing denunciation and deterrence.1493
It is neither necessary nor desirable to set out in detail the Criminal Code conditional sentence provisions, other than to note that a procedure is in place governing the imposition of such sentences.1494 Among other things, conditional sentences must be consistent with the fundamental purpose and principles of sentencing. Certain offences are excluded, depending upon their nature or maximum terms of imprisonment, including offences punishable by mandatory minimum terms of imprisonment.1495 There are also compulsory conditions and optional conditions which may be attached to the conditional sentence order;1496 a mechanism exists for breach of conditional sentence proceedings.1497
Conditional sentences, however, are not available for provincial regulatory sentences. They are "creatures of statute." Hence, the absence of provisions authorizing the use of conditional sentences under the Provincial Offences Act of
Ontario1498 renders them inapplicable.1499 Neither may they be imposed as an enforcement mechanism for unpaid fines.1500 Indeed, it is questionable whether
288 innovative sentences fashioned by courts which seek to invoke aspects of conditional sentence orders, such as a house arrest term, are proper, notwithstanding that the offender may well have consented to such a provision so as to avoid serving a period of imprisonment in an institution.1501
The absence of legislative authority to impose conditional sentences for offenders who commit provincial offences, as opposed to criminal offences, produces a number of anomalous results. Conditional sentences carry broader optional (and compulsory) conditions which might be attached to the court's order, and thus be better suited for the regulatory context, as opposed to the more narrow terms of provincial offences probation terms which restrict, for example, the use of community service and restitution or compensation.
Community service of up to 240 hours over an 18 month period may be made an optional condition of a conditional sentence;1502a term of restitution may be attached, as well, to the conditional sentence order.1503 The procedure for breach proceedings of conditional sentences provides further incentive for the offender to comply with the disposition of the court, given that non-compliance with a conditional sentence order may result in the sentence being converted into one that is served in an institution.
Further, a conditional sentence may be imposed for an offender who commits, for example, the Criminal Code fraud offence,1504 but not related offences under provincial statutes, such as a violation of the Securities Act, which
289 is punishable by imprisonment of up to 5 years less one day, and a maximum fine of $5 million dollars, or both.1505 To give another example, a person charged with the Criminal Code offence of street racing,1506 who might be permitted to plead guilty to the Ontario Highway Traffic Act offence of street racing,1507 is subject to a period of imprisonment in both instances, but is required to serve such a sentence, in an institution, only in relation to the provincial offence.
Finally, a conditional sentence might be imposed with respect to a federal regulatory offence, due to the application of the Criminal Code sentencing provisions, but not the equivalent provincial regulatory offence, as in the case of a workplace accident that occurs in relation to a federal undertaking where both the federal and provincial health and safety provisions "co-exist" on the same work site.1508
Whether conditional sentences are a viable sentencing tool whose use should be expanded, or restricted, is a matter for the legislators. Certainly there are competing policy considerations engaged with respect to the availability of conditional sentences for regulatory offences. On one hand, the inability to grant conditional sentences for regulatory offences produces the "perverse" result, according to Archibald et al, that "more people are actually going to jail for regulatory offences" than those who commit criminal offences.1509 On the other hand, providing different procedural options might be viewed as a legitimate basis upon which to distinguish provincial offences from criminal offences, as the statement of purpose in Ontario's Provincial Offences Act makes clear.1510
290 Hence, the inapplicability of criminal offences sentencing dispositions, such as conditional sentences, in relation to provincial offences, is in keeping with this distinction between regulatory offences and true crimes. It is clear, however, that conditional sentences do constitute a sentencing option that provide courts with flexibility in crafting sentences, while allowing offenders to serve sentences in the community, thereby furthering their rehabilitation. The unavailability of conditional sentences under the Provincial Offences Act of Ontario is thus another example of the more limited form of dispositions that illuminate the regulatory offences sentencing process.
11. Victim Impact Statements
Lastly, it is appropriate to consider an issue that plays a role in the sentencing process, victim impact statements, notwithstanding that it is not itself a sentencing tool or disposition, but rather one that impacts the court's sentence.
Although the breach of the regulatory standard may cause harm, or potential for harm, to a person or the community, there is no formalized mechanism under the
Ontario Provincial Offences Act1511 to provide victims of regulatory offences with the opportunity to convey such information to courts, thereby depriving the judge or justice of the peace at the time of sentencing of hearing how the commission of the regulatory offence has impacted the party most directly impacted by the regulated offender's conduct. This contrasts to the Criminal Code1512 where there are detailed provisions which allow the victim of a crime1513 to file before the court a victim impact statement, in prescribed written form,1514 "describing the harm done to, or loss suffered by, the victim arising from the commission of the
291 offence." Such a victim may also read his/her statement to the court; the court, in turn, has the obligation to inquire of the prosecutor, prior to sentencing, whether the victim has had the opportunity to prepare a victim impact statement,1S17 and may adjourn the proceedings to allow this to be done.151*
The victim impact statement provisions of the Code reflect the objective that courts should impose sentences mat "provide reparations for harm done to victims or to the community,31519 Accordingly, victims play a "significant rote" in the sentencing process.1520 In fact, a number of purposes are served by victim impact statements in the sentencing process; courts receive "relevant evidence" concerning the effect or impact of the crime from the person able to provide direct evidence on point; resort to the "best evidence on the subject of victim toss", namely, the victim himseff/herseff, assures an accurate measure of any necessary compensation and brings home to the offender me consequences of his/her behaviour; victim participation in the trial process "serves to improve the victim's perception of the legitimacy" of the process; and Information respecting the "individuality of the victim" promotes an understanding of the consequences of the crime in the context of the personal circumstances of the victim.1521 in short, without this type of information "a Court would be unable on its own to adequately understand the harm done and the loss suffered by a victim.*1522 This, in turn, helps the court "to understand the circumstances and consequences of tirecrim e more fully, and to apply the purposes and principles of sentencing in a more textured context"1523
292 A number of decisions support the practice of receiving victim impact statements into evidence on sentencing with respect to regulatory offences.
However, this is up to the individual judge or justice of the peace. Hence, while victim impact statements have been adduced in evidence in provincial offences proceedings in the Ontario courts,1524 as well as other jurisdictions,1525 there is no automatic right to do so. As a result, the authority of courts to hear such evidence remains unclear. Equally uncertain is the manner that such evidence should take when it is tendered, given that there are no prescribed victim impact statement forms, as is the case under the Code, and whether the victim has the right to personally address the court, or someone else, if the victim is unavailable to do so. It may also be unclear whether a person would be considered a "victim," and thus entitled to participate in the sentencing process, where he/she does not suffer harm immediately or directly, but is nevertheless impacted by the regulated party's conduct, as might occur in a pollution case. Indeed, in environmental cases where the community is put at risk, it may be that there is no one who does not consider that he/she qualifies as a "victim".The fact that some classes of victims of regulatory offences may be easier to identify than others, however, is no reason to preclude the court from hearing such evidence on sentencing.
These are just a few of the uncertainties that illuminate the victim impact statement process, at present, in relation to provincial offences and other public welfare statutes.
293 One of the anomalies that results from this omission in provincial offences legislation is that for victims of both criminal and regulatory offences, which are the subject of the same or related transactions, such as stealing a car contrary to the Criminal Code,1526 and causing an accident while driving it away in excess of the speed limit contrary to the Highway Traffic Act (Ont.),W27 the victim would be permitted to describe to the sentencing court, as of right, the impact of the offence on him/her only for the former offence, but not the latter. The same result is produced where the defendant is charged with a Code offence, such as dangerous driving,1528 but is permitted to plead guilty to a provincial offence, such as careless driving1529: the victim is entitled to address the court in the former instance only, but not the latter.
The enactment of victim impact statement provisions under the Provincial
Offences Act (Ont.) would allow victims of regulatory offences to play a greater role in the sentencing process, while ensuring that courts receive information as to the impact of the offence on those most directly affected. This furthers the court's ability to address the issue of remedial measures as well as rehabilitation of the offender, and the other sentencing principles, deterrence and denunciation. Indeed, a statement of sentencing principles and purposes for regulatory offences that accords priority to remediation undertaken by the regulated party would doubtlessly be enhanced by the nature and quality of information furnished by victim impact statements.
294 12. Conclusion
Changes to the Ontario Provincial Offences Act are required in order to expand and modernize its sentencing powers. To this end, the probation provisions of the Act might be enhanced to provide for lengthier periods of probation; optional conditions could be increased so as to mandate community service and restitution, as of right, in probation orders. So too might the discrete probation sections of the Criminal Code for organizations be added. Other new sentencing powers might include alternative measures or diversion, alternative penalties, creative sentence orders, restitution, forfeiture of the proceeds of a regulatory offence, conditional sentences, and providing for the admissibility of victim impact statements in relation to all public welfare offences.These additions to the sentencing landscape for provincial offences would be very significant, but are in keeping with the goal of furthering the regulatory objective on sentencing.
In the result, courts would be equipped with much more flexible, and modern, sentencing options.
On the other hand, expanding the regulatory toolbox in this manner would continue to blur the distinction between criminal offences and regulatory offences. However, the intention of provincial legislative regimes for regulatory offences is premised on the distinction between true crimes and public welfare offences, and to provide a procedure which reflects this difference. It must be acknowledged that the addition to the Provincial Offences Act of the panoply of sentencing powers reviewed here, especially dispositions such as conditional
295 sentences, would inevitably make provincial offences courts resemble, more and more, criminal courts. Whether the addition of such enhanced sentencing options makes the cost of the regulatory toolbox too high, or its use unwieldy, is a question that merits further reflection.
296 CONCLUSION
Regulatory justice requires the enactment of a statement of sentencing purposes and principles for regulatory offences. It is essential for there to be such a guiding philosophy or sentencing rationale, set out by the legislators who are responsible for enacting regulatory offences, so that courts may craft dispositions that further regulatory objectives with respect to offenders who fail to meet the regulatory standard. This statement of sentencing purposes and principles should be specifically tailored towards regulatory offences, and organized and arranged in a hierarchical manner, in the manner set out in
Chapter 6.
The overarching problem that is produced by the failure to enact such a statement of sentencing purposes and principles for regulatory offences is reflected by inconsistent and widely differing penalties imposed by trial judges and justices of the peace. This is the inevitable result of the failure to provide a clearly articulated sentencing rationale for regulatory offences. Courts are required to identify sentencing purposes and principles on a case-by-case basis, with little, if any, guidance from the legislators. Even where such guidance exists, it tends to be limited to a particular public welfare statute, or reflect sentencing pronouncements of appellate courts, such as Cotton Felts Lfc/.1530, rendered many years earlier, and when fewer sentencing options were available, or considered to be appropriate. The limited number of sentencing tools that are
297 currently available to implement the courts' dispositions for regulatory offences exarcerbates this problem.
The patchwork quilt of sentencing provisions that governs regulatory offences thus gives rise to the types of inconsistencies as demonstrated in the examples of sentencing decisions set out in Chapter 1. The loss of life by a worker on his second day of work due to his employer's negligence in failing to provide proper safety training results in a fine.1531 Elderly victims are pressured into entering into an unfair business transaction, lose their life savings, and the defendant is imprisoned.1532 A major river system is polluted for many years by a municipal corporation, which results in its being ordered to expend millions of dollars to construct a sewage treatment facility, and remain the subject of ongoing supervision by the court to ensure that it complies with the regulatory standard.1533 The individual results in the these cases may well be justified, but a uniform, rational and principled approach is missing, such that the court and the parties must determine on their own what sentencing purposes and principles should apply.
While reshaping and reform of sentencing considerations for regulatory offences is therefore necessary, a number of further issues will inevitably arise from initiatives in this direction. Some regulators view prosecution as a tool of last resort, whereas others take a proactive approach towards the laying of charges.
An examination of regulators who employ these different prosecution strategies
298 may prove instructive, since courts that impose sentences for regulatory offences on an infrequent basis, due to regulator's strategies respecting the use of prosecution as an enforcement mechanism, may lack an institutional knowledge or memory of sentencing purposes and principles for such offences. This, in turn, may contribute to inconsistent sentencing practices and patterns.
Regulatory offences, themselves, are comprised of three distinct categories: mes rea offences, strict liability offences and offences of absolute liability. Further research is desirable as to whether sentencing purposes and principles should be identical for all such regulatory offences, or whether these different types of regulatory offences should have discrete sentencing considerations. As noted in Chapter 3, regulatory offences incorporating mens rea may be likened to criminal offences, and thereby deserving of greater punishment than regulatory offences which lack mens rea, as most do. Absolute liability offences, on the other hand, contain no fault element at all. Strict liability offences, in turn, incorporate due diligence or reasonable care. Is it appropriate that punishment principles make no reference to these important distinctions?
That is, should regulatory offences exhibiting intentional conduct (mens rea offences), negligent conduct (strict liability offences) and faultless conduct
(absolute liability offences) be punished in the same way?
Lastly, I have set out in Chapter 7 a number of additional or enhanced sentencing tools that might be considered by courts when imposing punishment
299 for regulatory offences. These new sentencing options, for the most part, are triggered by the laying of charges and a successful prosecution. What is not discussed, however, and merits further examination, are other alternatives, such as the use of administrative penalties, which are not imposed by courts but by enforcement agencies. The application of administrative penalties to regulatory offences is currently being studied by the Law Commission of Ontario.1534 One of the implications for sentencing regulatory offenders is that a party who is assessed an administrative penalty may additionally be prosecuted, according to some administrative penalty schemes. This is the case, for example, under the
Environmental Enforcement Act (Onf.J.1535 The question that may therefore be posed is to what extent, if any, should this be reflected in sentencing purposes and principles for such offenders who are both assessed an administrative penalty and subsequently prosecuted, such that the court is in the unique position of sentencing a party who has already been punished by the regulator for failing to meet the regulatory standard. This issue is not unique, given that administrative penalties are used in relation to criminal offences, such as administrative driving suspensions that flow from charges that are laid for drinking and driving offences. However, the issue has yet to be examined in relation to regulatory offences sentencing cases, and merits further consideration.
To conclude, the question as to whether there should be a statement of sentencing purposes and principles for regulatory offences gives rise to
300 numerous additional issues. I have attempted to suggest only a number of them.
There are doubtless many others. While I have sought to answer the research question I have posed in the affirmative, it is my hope that others will not only consider this same issue and offer their views, but raise additional questions and concerns so as to make better known the important issue of sentencing purposes and principles for regulatory offences.
301 ENDNOTES
1 Chief Justice Brian W. Lennox of the Ontario Court of Justice in his speech at the Opening of the Courts, on 10 January 2007, noted that in 2006 there were 600,000 criminal charges brought in the Ontario Court of Justice, of which 87% were dealt with by guilty plea or withdrawal. The trial rate was 5-8%. 2 R. v. R.R.., 2008 ONCA 497, 90 O.R. (3d) 641, 238 O.A.C. 242, [2008] O.J. No. 2468 at para. 16 (QL) [R.R.]. 3 Opening of the Courts, note 1.There were over 1,700,000 charges under the Provincial Offence Act, R.S.O. 1990, c.P.33 [Provincial Offences Act (Ont.)], bought before the Ontario Court of Justice in 2006, plus 11,000 appeals, according to Chief Justice Lennox in his Opening of the Courts 2007 speech. In terms of criminal charges, the number was 550,000. That is, there were almost three times as many provincial offences or regulatory offences, than criminal offences, before the courts. The statistics which are available for 2009 indicate there were 2,159,186 charges received by the Ontario Court of Justice for charges under the Provincial Offences Act. Of these the trial rate was 2.5%. Chief Justice Bonkalo's speech at the Opening of the Courts delivered on 14 September 2010 put the numbers as 600,000 criminal charges as opposed to 2 million provincial offence and highway traffic charges. 4 Provincial Offences Act (Ont), note 3, s.1(1) definition of "offence". The terms "provincial offences", "regulatory offences" and "public welfare offences" are used inter-changeably throughout this thesis. 5 Contraventions Act, S.C. 1992, c.47, s.2 definition of "contravention". [Contraventions Act] 6 T.L. Archibald, K.E. Jull, and K.W. Roach, Regulatory and Corporate Liability: From Due Diligence to Risk Management (Aurora: Canada Law Book Inc., looseleaf) at 12-9-12-10. 7 Criminal Code, R.S.C. 1985, c.C-46 [Criminal Code]. 8 Criminal Code, note 7, s.718. 9 Provincial Offences Act (Ont), note 3. 10 Criminal Code, note 7. 11 Criminal Code, note 7, s.718. 12 R v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, [1991] S.C.J. No. 79 (QL) [Wholesale Travel Group Inc.]. 13 IM?o/esa/e Travel Group Inc., note 12 at [QL] paras. 136-137. 14 F.B. Sayre, "Public Welfare Offences" (1933), 33 Colum. L. Rev. 55 at 73. Colin Scott, "Regulatory Crime: History, Functions, Problems, Solutions", University College Dublin Working Papers in Law, Criminology & Socio-Legal Studies, Research Paper No. 13/2009 at 5 observes that while some regulatory offences originated in common law, the majority "originated in statute and were instrumental in character - targeting some identified mischief such as the adulteration of bread or the giving of short measure." 15 Liora Salter, Methods of Regulation (Vancouver: Simon Fraser University Department of Communication, 1986). 16 Ian Ayres and John Braithwaite, Responsive Regulation. Transcending the Deregulation Debate (New York: Oxford University Press, 1992) 35. In Canada "a great deal of the power" of regulatory agencies is dependent upon persuasion: Liora Salter and Debra Slaco, Public Inquiries in Canada (Ottawa: Government of Canada, 1981) at 210. 17 Ayres, note 16 at 40 describes this strategy as "regulation by raised eyebrows" or "regulation by vice-regal suasion", noting in their study of approximately 100 Australian regulatory agencies that while enormous powers were given to these regulators, it was hardly necessary to use them in order to secure compliance. 18 Wholesale Travel Group Inc., note 12 at [QL] para. 219. 19 R. v. Hydro-Quebec, [1997] 3 S.C.R. 213, [1997] S.C.J. No. 76 at para. 46 (QL) [Hydro- Quebec]. 20 Jeremy Rowan-Robinson, Paul Q. Watchman, and C.R. Barker, "Crime and Regulation", [1988] Crim. LR. 211. 21 Rowan-Robinson, note 20. See further Keith Hawkins and John M. Thomas, "The Enforcement Process in Regulatory Bureaucracies" in Keith Hawkins, and John M. Thomas, eds., Enforcing
302 Regulation (Hingham: Kluwer-Nijhoff Publishing, 1984); Neil Gunningham, Dorothy Thornton, and Robert A. Kagan, "Motivating Management: Corporate Compliance in Environmental Protection" (2005), 27 Law and Policy 289; Keith Hawkins, "Bargain and Bluff. Compliance Strategy and Deterrence in the Enforcement of Regulation" (1983), 5 Law & Policy Quarterly 35 at 48. Fiona Haines and David Gurney, "The Shadows of the Law: Contemporary Approaches to Regulation and the Problem of Regulatory Conflict" (2003), 25 Law & Pol'y 353 at 360: "Excellence in compliance is not achieved by regulatory strategies in isolation from enforcement. Regulatory strategies aimed at encouraging organizational behaviour that extends 'beyond compliance' must be underpinned by a rational enforcement strategy." Whether enforcement mechanisms which are aimed at deterrence are as effective as those which seek to encourage compliance with regulations, is another matter: see M. Condon, "Rethinking Enforcement and Litigation in Ontario Securities Regulation" (2006), 32 Queen's L.J. 1. 22 Archibald, note 6 at 12-1. 23 Archibald, note 6 at 1-16.3. 24 Archibald, note 6 at 1-16.3. See further in this regard Salter, note 16 at 151. 25 Archibald, note 6 at 12-1. 26 R. v. Cotton Felts Ltd. (1982), 2 C.C.C. (3d) 287, [1982] O.J. No. 178 at para. 19 (QL) (C.A.) [Cotton Felts Ltd.]. "Archibald, note 6 at 12-1. 28 L.H. Leigh, "The Criminal Liability of Corporations and Other Groups" (1977), 9 Ottawa L. Rev. 247. 29 Law Reform Commission of Canada, Studies in Strict Liability (Ottawa: Government of Canada, 1974) at 2. 30 The first Criminal Code of Canada, which was enacted in 1892, contained 983 sections: see D.H. Brown, The Genesis of the Canadian Criminal Code of 1892 (Toronto: Osgoode Society, 1989) at 126. The current Criminal Code, note 7, contains fewer section numbers due to the numbering method which is employed, but there are considerably more provisions in total; it is approximately 1600 pages in length. 31 Law Reform Commission of Canada, Policy Implementation, Compliance and Administrative Law (Working Paper 51) (Ottawa: Government of Canada, 1986) at 38. 32 Wholesale Travel Group Inc., note 12 at [QL] para. 134. 33 Law Reform Commission of Canada, Our Criminal Law (Ottawa: Government of Canada, 1976) at 11. 34 R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59 (QL), 40 C.C.C. (2d) 353 at 364 [Sault Ste. Marie]. 35 Sault Ste. Marie, note 34 at [C.C.C] 362-363. 36 Sault Ste. Marie, note 34 at [C.C.C] 373-374. 37 Sault Ste. Marie, note 34 at [C.C.C] 374. 38 J. Swaigen, Regulatory Offences in Canada. Liability & Defences (Toronto: Carswell Thompson Professional Publishing, 1992) at 219. 39 Glanville Williams, Criminal Law. The General Part (2nd ed.) (London: Stevens & Sons Limited, 1961) at 235. 40 R. Libman, Libman on Regulatory Offences in Canada (Salt Spring Island: Earlscourt Legal Press Inc., looseleaf) at 1-3. 41 Sault Ste. Marie, note 34 at [C.C.C] 357. 42 Sault Ste. Marie, note 34 at [C.C.C] 357. See further Colin Howard, Strict Responsibility (London: Sweet & Maxwell, 1963) at 1 who noted that regulatory offences are often part of a legislative scheme "for the administrative regulation of society." For a discussion of the difference between a crime which is malum in se, that is "a wrong in itself or an act which is inherently and essentially evil, and malum prohibitum, that is "a wrong prohibited," although the act is not inherently immoral but its commission is forbidden by positive law, see Richard L. Gray, "Eliminating the (Absurd) Distinction Between Malum In Se and Malum Prohibitum Crimes" (1995), 73 Wash. U.L.Q. 1369. The author notes that increasingly public welfare or offences equated with malum prohibitum proscribe conduct that was previously in the nature of tort law.
303 See further Nancy T. Wolfe, "Mala in Se. A Disappearing Doctrine?" (1981), 19 Criminology 131; Rollin M. Perkins, "Criminal Liability Without Fault: A Disquieting Trend" (1983), 68 Iowa L. Rev. 1067. 43 John C. Coffee Jr., "Does 'Unlawful' Mean 'Criminal'?: Reflections on the Disappearing Tort/Crime Distinction in American Law" (1991), 71 Bost. U.L.R. 194. 44 Coffee, note 43. Although it might be said that since penalties create financial incentives to dissuade a person or corporation from engaging in conduct which is unlawful, a penalty is the "price" of violating the law: see Karen Yeung, "Quantifying Regulatory Penalties: Australian Competition Law Penalties in Perspective" (1999), 23 Melb. U. L. Rev. 440 at 446. 45 Sault Ste. Marie, note 34 at [C.C.C.] 357. 46 Clayton C. Ruby and K.E. Jull, "The Charter and Regulatory Offences: A Wholesale Revision" (1992), 14C.R. (4th) 226 at 228. 7 Swaigen, note 38 at 4. 48 Sayre, note 14 at 56. See further Ingeborg Paulus, The Search for Pure Food. A Sociology of Legislation in Britain (Bristol: Barleyman Press, 1974); R.J. Asher, '"Mens Rea' or a Duty of Care? The Development of Strict Liability" (1967-1971), 1 Auckland U.L. Rev 80; Leonard Wolfram, "Guilt Without Guilty Intent- Strict Liability Food Laws" (1955), 10 Food Drug Cosm. L.J. 355; Peter B. Hutt, "Criminal Prosecution for Adulteration and Misbranding of Food at Common Law" (1960), 15 Food Drug Cosm. L.J. 382. Law Reform Commission of Canada, Sentencing in environmental cases (Ottawa: Law Reform Commission of Canada, 1985) at 4. 50 Alberta Wildlife Act, R.S.A. 2000, c.W-10 [Wildlife Act (Alta.)]. 51 R. v. Mistol, 2002 ABPC 123, 321 A.R. 220, [2002] A.J. No. 922 (QL) [Mistol]. 52 Canadian Charter of Rights and Freedoms, Schedule B, The Constitution Act, 1982 [Charter of Rights] 53 Mistol, note 51 at [QL] para. 22. 54 Highway Traffic Act, R.S.O. 1990, c.H.8 [Highway Traffic Act (Ont.)] 55 Environmental Enforcement Statute Law Amendment Act, 2005, S.O. 2005, c. 12 [Environmental Enforcement Act (Ont.)]. 66 R. v. Virk, [2002] O.J. No. 4102 (QL) (C.J.) [Virk]. 57 Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16 [Workplace Safety and Insurance Act (Ont.)]. 58 Virk, note 56 at para. 54. 59 Virk, note 56 at para. 56. 60 Virk, note 56 at para. 57. The defendant was subsequently sentenced to 5 months' imprisonment, ordered to pay restitution of $33,596 to the Workplace Safety Insurance Board, and placed on probation for two years. 61 Retail Sales Tax Act, R.S.O. 1990, c.R.31 [Retail Sales Tax Act (Ont.)]. 62 R. v. Beach Motors Inc., [2002] O.J. No. 4458 (QL) (C.J.) [Beach Motors Inc.]. 63 Employment Insurance Act, S.C. 1996, c.18 [Employment Insurance Act]. 64 R. v. Cox, 2003 ABPC 9, [2003] A.J. No. 152 (QL) [Cox]. 65 Occupational Health and Safety Act, 1993, S.S. 1993, c.0-1.1 [Occupational Health and Safety Act (Sask.)]. 66 R. v. Westfair Foods Ltd., 2005 SKPC 26, 263 Sask. R. 162, [2005] S.J. No. 279 (QL) [Westfair Foods Ltd.]. 67 Business Practices Act, R.S.O. 1990, c.B.18 [Business Practices Act (Ont.)]. 68 R. v. Pellegrini, 2006 ONCJ 297, [2006] O.J. No. 3369 (QL) (C.J.) [Pellegrini]. 69 Fair Trading Act, R.S.A. 2000, c.F-2 [Fair Trading Act (Alta.)]. 70 R. v. Kreft, 2006 ABPC 258, 407 A.R. 376, 66 Alta. L.R. (4th) 341, [2006] A.J. No. 1249 (QL) [Kreft]. Local Authorities Election Act, R.S.A. 2000, c.L-21 [Local Authorities Election Act (Alta.)]. 72 R. v. Aftergood, 2007 ABPC 122, 419 A.R. 82, 74 Alta. L.R. (4th) 368, [2007] A.J. No. 820 (QL) [Aftergood]. 3 S.P.Green. "Why It's a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Context of Regulatory Offences" (1997), 46 Emory L.J. 1533 at 1544.
304 74 Competition Act, R.S.C. 1985, c.C-34 [Competition Act]. 75 Wholesale Travel Group Inc., note 12. 76 Combines Investigation Act, R.S.C. 1985, c.C-23 [Combines Investigation Act.]. 77 See Competition Bureau, Information Bureau, 22 September 1999, "Misleading Representations and Deceptive Marketing Practices: Choice of Criminal or Civil Track under the Competition Act." 78 Competition Bureau, "Conformity Continuum Information Bulletin" (23 December 2003). 79 Bill C-45, An Act to Amend the Criminal Code (Criminal Liability of Organizations), S.C. 2003, c.21 [Bill C-45]. The legislation came into force on 31 March 2004. 80 In the first prosecution under these new Criminal Code amendments, a contractor was directing construction work outside a house, but then left the scene to get materials for the job, when the trench collapsed killing a worker. The Criminal Code charges were subsequently withdrawn, and the defendant was permitted to plead guilty for a $50,000 fine under the Ontario Occupational Health and Safety Act, R.S.O. 1990, c.O.1 [Occupational Health and Safety Act (Ont.)]: see R. v. Fantini, [2005] O.J. No. 2361 (QL) (C.J.) [Fantinf]. To date there has been one further prosecution under the legislation, a case where an employee was crushed to death by a concrete press: R. v. Transpave Inc., 2008 QCCQ 1598, [2008] Q.J. No. 1857 (QL) [Transpave Inc]. The company pleaded guilty to a count of criminal negligence causing death, arising from this workplace accident, and was fined $100,000. In October, 2010, charges were laid against a Toronto construction company, and three of its officers and employees, in a workplace fatality case where a scaffolding collapsed, resulting in four workers falling to their deaths.One other worker was injured as well. The case, which is in its initial stages, is currently before the courts. 81 Securities Act, R.S.O. 1990, c.S.5 [Securities Act (Ont.)]. 82 WilderM. Ontario Securities Commission (2001), 53 O.R. (3d) 519, 142 O.A.C. 300, [2001] O.J. No. 1017 at para. 23 (QL) [Wilder]. In this case the Court rejected a challenge to the Security Commission's jurisdiction to reprimand a lawyer. 83 Environmental Enforcement Act (Ont.), note 55. 84 Environmental Enforcement Act (Ont), note 55, s. 182.1(5). 85 Environmental Enforcement Act (Ont), note 55, s. 182.1(11). The first administrative penalty imposed under the legislation occurred on 3 March 2008. CGC Inc. of Hagersville, an operator of a gypsum drywall plant, was assessed a penalty of $9,000 for failing to comply with environmental laws: a run off from a gypsum processing plant entered a tributary of the Grand River, putting local water quality at risk. See further S. Berger, "The Future of Environmental Prosecutions in Ontario" (2006), 19 C.E.L.R. (3d) 32; R. Libman, "Bill 133 and 'Environmental Penalties': Absolute Liability when Necessary but Necessarily Absolute Liability?" (2005), 16 C.E.L.R. (3d) 155; J. Swaigen, "Absolute Liability Revisited: Lew's v. Tetreaulf in S. Berger and D. Saxe, eds., Environmental Law: The Year in Rew'ew/2006 (Aurora: Canada Law Book Inc., 2007). 86 Highway Traffic Act (Ont), note 54, s.48.3(1). 87 J. Gobert, "Corporate Criminality: New Crimes for the Times", [1994] Crim. L.R. 722. 88 Gobert, note 87 at 725. See also Law Reform Commission of Canada, note 49 at 15 where it is noted that some regulators may even feel that where abatement has been achieved due to a prosecution, a fine may be "irrelevant" and "counter-productive" due to straining relations between enforcement officials, or reducing resources available to the offender for improvement of the environment. 89 H.J. Glasbeek, "Commercial Morality Through Capitalist Law: Limited Possibilities" (1993), 27 R.J.T. 263 at 301. 90 S.G. Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation (Cambridge: Harvard University Press, 1993) at 57-58. 91 Levis (City) v. Tetreault, 2006 SCC 12, [2006] 1 S.C.R. 420, [2006] S.C.J. No. 12 (QL) [Lews]. 92 Sault Ste. Marie, note 34. 93 R. v. Kanda, 2008 ONCA 22, 88 O.R. (3d) 732, 233 O.A.C. 118, [2008] O.J. No. 80 at para. 43 (QL) [Kanda]; R. v. Raham, 2010 ONCA 206, 99 O.R. (3d) 241, 260 O.A.C. 143, [2010] O.J. No. 1091 at para 37 (QL) [Raham]. 94 Highway Traffic Act (Ont), note 54.
305 95 Kanda, note 93 at [QL] para. 43. 96 Kanda, note 93 at [QL] para. 21. 97 Kanda, note 93 at [QL] para. 44. 98 Highway Traffic Act (Ont), note 54, s.84.1(3). The minimum penalty for the offence is $2,000. 99 Environmental Enforcement Act (Ont), note 55. 100 Swaigen, note 38 at 52. 101 Raham, note 93. 102 Highway Traffic Act (Ont), note 54, s. 172(1). 103 R. v. Hickey (1976), 13 O.R. (2d) 228 (C.A.) [Hickey]; R. v. Polewsky (2005), 202 C.C.C. (3d) 257, [2005] O.J. No. 4500 (QL) (C.A.), leave to appeal to S.C.C. refused, [2006] 1 S.C.R. xiii [Polewsky]. 104 R. v. Harper (1986), 53 C.R. (3d) 185, [1986] B.C.J. No. 706 (QL) (C.A.) [Harper], R. v. Lemieux (1978), 41 C.C.C. (2d) 33, [1978] Q.J. No. 184 (QL) (C.A.) [Lemieux]; R. v. Naugler (1981), 49 N.S.R. (2d) 677, [1981] N.S.J. No. 547 (QL) (C.A.) [Naugler]. 105 Raham, note 93 at [QL] para. 51. 106 Provincial Offences Act (Ont), note 3, s.61. 107 Criminal Code, note 7, s..787(1). 108 Christopher Sherrin, Charter Rights in Regulatory vs. Criminal Proceedings: A Distinction in Need of a Difference? (Osgoode Hall Law School, York University: Ph.D. dissertation, 2008) at 217. 109 Sault Ste. Marie, note 34. 110 J. Swaigen, "Negligence, Reverse Onuses and Environmental Offences: Some Practical Considerations" (1992), 2 J. Envtl. L. & Prac. 149 at 153. 111 Swaigen, note 110. See also K.R. Webb, "Regulatory Offences. The Mental Element and the Charter. Rough Road Ahead" (1989), 21 Ottawa L.R. 419 at 421. 112 Don Stuart, Canadian Criminal Law, 5th ed. (Toronto: Thomson Canada Limited, 2007) at 195. 113 Wholesale Travel Group Inc., note 12 at [QL] para. 42. For a more recent comment to the same effect, see R. v. Dial Drug Stores Ltd. (2001), 52 O.R. (3d) 367, [2001] O.J. No. 159 at para. 103 (QL) (C.J.); rev'd (2003). 63 O.R. (3d) 529, [2003] O.J. No. 754 (QL) (S.C.J.) [Dial Drug Stores Ltd.]: "It would be cold comfort to those whose rights were infringed on the way to a conviction that the time they spent in a penitentiary was only a 'mode of enforcement' of a regulatory statute. It looks like jail and punishment to me and I am sure to anyone involved." 11 See, for example, Law Reform Commission of Ontario, Report on the Basis of Liability for Provincial Offences (Toronto: Government of Ontario, 1990); P. Hogg, Constitutional Law of Canada, 5th ed., (Toronto: Carswell Professional Publishing, looseleaf) at 398; Stuart, note 87 at 195; Ruby, note 46 at 242; K.E. Jull, "Reserving Rooms in Jail: A Principled Approach" (1999), 42 Crim. L.Q. 67 at 110; Alan Brudner, "Imprisonment and Strict Liability" (1990), 40 U.T.L.J. 738 at 743-744. 115 Charter of Rights, note 52. 116 R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79 at para. 84 (QL) [974649 Ontario Inc.]. Occupational Health and Safety Act (Ont), note 80. 118 In a recent decision considering the Competition Act, note 74, offence of making false or misleading representations to the public, the Ontario Court of Appeal observed in R. v. Stucky, 2009 ONCA 151, [2009] O.J. No. 600 at para. 20 (QL) [Stucky]: "Since the decision in Sault Ste. Marie, the distinction between criminal and regulatory offences has blurred. The label attached to the offence is no longer determinative. Rather, the penalties attached to the conduct, the values underlying the offence, and whether the offence is one for which mens rea is required must be considered." 119 Securities Act (Ont), note 81. 120 The Criminal Code, note 7, s.743.1(1) provides that a person who is sentenced to imprisonment for a criminal offence for a term of at least two years is to serve it in a penitentiary. 121 Hogg, note 113 at 591. 122 Archibald, note 6 at 9-2. For a summary of cases holding that conditional sentences are unavailable for provincial offences, see Libman, note 40 at 11.2(t).
306 123 Compulsory Automobile Insurance Act, R.S.O. 1990, c.C.25 [Compulsory Automobile Insurance Act (Ont.)]. 124 Highway Traffic Act (Ont.), note 54. 125 R. v. Jenkins, 2010 ONCA278, 99 O.R. (3d) 561, 260 O.A.C. 296, 2010 O.J. No. 1517 (QL) [Jenkins]. Trials held in the absence of the defendant, or ex parte proceedings, are permitted under s.54 of the Provincial Offences Act (Ont), note 3. The Court of Appeal in Jenkins rejected a constitutional challenge to the validity of such proceedings. 126 Raham, note 93. 127 R v. Hughes, 2004 ABQB 521, [2004] A.J. No. 895 at para. 19 (QL) [Hughes]. 128 Hughes, note 127 at [QL] para. 21 129 R. v. Welcher, 2007 NLTD 87, 267 Nfld. & P.E.I.R. 211, [2007] N.J. 153 at para. 34 (QL) \ Welcher]. Bruce Pardy, Environmental Law. A Guide to Concepts (Markham: Butterworths Canada Ltd., 1996) at 187 defines the polluter pays principle as a principle of liability that, "whenever possible, the actor that causes pollution damage should pay for restoration, compensation and future prevention." 131 Environmental Quality Act, R.S.Q., c.Q-2, s.31.43 [Environmental Quality Act (Que.)]. 132 Imperial Oil Canada v. Quebec (Minister of the Environment), 2003 SCC 58, [2003] 2 S.C.R. 624, [2003] S.C.J. No. 59 (QL) [Imperial Oil Canada]. 133 Imperial Oil Canada, note 132 at [QL] para. 23. The recently enacted Ontario Environmental Enforcement Act, note 54, was introduced as the '"You Spill You Pay' Bill". 134 Rio Declaration on Environment and Development UN Doc. A/Conf. 151/5/Rev. 1 (1992) [Rio Declaration]. 135 Canadian Environmental Protection Act, 1999, S.C. 1999, c.33, s.287 [Canadian Environmental Protection Act.]. 136 Canada Shipping Act, 2001, S.C. 2001, c.16., s.191(4) [Canada Shipping Act]. 137 Public Health Act, S.B.C. 2008, c.28 [Public Health Act (B.C.)] 138 Public Health Act (B.C.), note 137, s. 105(3). 139 Public Health Act (B.C.), note 137, s. 106(1). 140 Sherie Verhulst, "Legislating a Principled Approach to Sentencing in Relation to Regulatory Offences" (2008), 12 Can. Crim. L. Rev. 281. 141 Law Reform Commission of Canada, note 49 at 16. 142 R. v. Fraser Inc. (1993), 139 N.B.R. (2d) 125, [1993] N.B.J. No. 641 (QL) (Prov.Ct.) [Fraser Inc.]. 143 Clean Environment Act, R.S.N.B. 1993, c.C-6 [Clean Environment Act (N.B.)]. 144 S. D. Berger, The Prosecution and Defence of Environmental Offences (Aurora: Canada Law Book Inc., looseleaf) at 7-3; Libman, note 40 at 11.2(c). 145 Environmental Protection and Enhancement Act ,R.S.A. 1980, c.E-13.3 [Environmental Protection and Enhancement Act (Alta.)] 146 R. v. Cool Spring Dairy Farms Ltd., 1999 ABQB 247, 242 A.R. 143, [1999] A.J. No. 366 (QL) [Cool Spring Dairy Farms Ltd.]. W R. v. Van Waters & Rogers Ltd., 1998 ABPC 55, 220 A.R. 315, [1998] A.J. No. 642 (QL) [Van Waters & Rogers Ltd.]. "~148 R. v. Goodman, 2005 BCPC 482, [2005] B.C.J. No. 2322 (QL) [Goodman]. 149 R. v. 100 Mile House (Village), [1993] B.C.J. No. 2848 (QL) (Prov.Ct.) [100 Mile House]. 150 R. v. Snap-On Tools Canada Ltd., [2002] O.J. No. 5520 (QL) (C.J.) [Snap-On Tools Canada Ltd.]. 151 Occupational Health and Safety Act (Sask.), note 65. 152 R. v. Rosin, 2005 SKPC 69, 267 Sask. R. 154, [2005] S.J. No. 471 (QL), var'd 2005 SKQB 537, 273 Sask. R. 114, [2005] S.J. No. 757 (QL) [Rosin]. 153 R. v. Westfair Foods Ltd., 2005 SKPC 26, 263 Sask. R.162, [2005] S.J. No. 279 (QL) [Westfair Foods Ltd.]. 154 Archibald, note 6 at 12-9. 155 Archibald, note 6 at 12-9. 156 Verhulst, note 140 at 282.
307 157 Criminal Code, note 7, s.718. 158 Caitilin R. Rabbitt, Social Regulation and Criminal Sanctions: Social Control for a Democratic Society (New York University: Ph.D dissertation, 2005). 159 R. v. Adomako, [2002] O.J. No. 3050 (QL) (C.J.) [Adomako]. The offence is under the Occupational Health and Safety Act (Ont), note 80. 160 R. v. Adomako, [2002] O.J. No. 3915 (QL) (C.J.) [Adomako]. 161 R. v. Kirk, 2005 ONCJ 352, [2005] O.J. No. 3316 (QL) [Kirk] 162 Business Practices Act (Ont.), note 67, s.2. 163 R. v. Dawson (City), 2003 YKTC 16, [2003] Y.J. No. 22 (QL) [Dawson]. The time-line for construction of the facility was subsequently extended, given the City's financial situation which necessitated that it was under the management of a trustee: see R. v. Dawson (City), 2004 YKTC 69, [2004] Y.J. No. 94 (QL) [Dawson]. 164 Fisheries Act, R.S.C. 1985, c.F-14, s.36(3) [Fisheries Act]. 165 For a discussion on the use of "creative sentences" see Gordon S. Campbell, "Fostering a Compliance Culture Through Creative Sentencing for Environmental Offences" (2004), 9 Can. Crim. L. Rev. 1; Elaine L. Hughes and Larry A. Reynolds, "Creative Sentencing and Environmental Protection" (2009), 19 J.E.L.P 105; Cecily Y. Strickland and Scott R. Miller, "Creative Sentencing, Restorative Justice and Environmental Law: Responding to the Terra Nova FPSO Oil Spill" (2007), 30 Dalhousie L.J. 547; Libman, note 40, at 11.2(x). 166 Wholesale Travel Group Inc., note 12 at [QL] para. 131. 167 See, for example, Charles J. Babbitt, Dennis C. Cory and Beth L. Kruchek, "Discretion and the Criminalization of Environmental Law" (2004), 15 Duke Envtl. L. & Pol'y F. 1; Duncan Chappell, From Sawdust to Toxic Blobs: A Consideration of Sanctioning Strategies to Combat Pollution in Canada (Ottawa: Government of Canada, 1989): Chapter 6. A Matter of Enforcement: Or No More Mr. Nice Guy? In David C. Fortney, "Thinking Outside the 'Black Box': Tailored Enforcement in Environmental Criminal Law", (2003), 81 Tex. L. Rev. 1609 at 1610, reference is made to a survey of public perception of the severity of various crimes, the result of which was that environmental crime was ranked seventh, ahead of armed robbery and other serious crimes. 168 Law Reform Commission of Canada, What is a Crime? Challenges and Alternatives. (Discussion Paper) (Ottawa: Government of Canada, 2003) at-3. l69Verhulst, note 140 at 282. 170 Archibald, note 6 at 12-9-12-10. 171 W.S. Gilbert and A. Sullivan, The Mikado, Act II, No. 17 "A more humane Mikado". 172 Canadian Association of Provincial Court Judges, Canadian Sentencing Handbook (Ottawa: Canadian Association of Provincial Court Judges, 1982). 173 Canadian Association of Provincial Court Judges, note 172 at 23. 174 John Hogarth, Sentencing as a Human Process (Toronto: University of Toronto Press, 1971) at 3. 175 Canadian Committee on Corrections, Towards Unity: Criminal Justice and Corrections (Ottawa: Government of Canada, 1969) at 185. 76 Canadian Committee on Corrections, note 175 at 16. 177 Canadian Committee on Corrections, note 175 at 185. 178 Canadian Committee on Corrections, note 175 at 185. 179 See Allan Manson, "The Reform of Sentencing in Canada" in Don Stuart, R.J. Delisle and Allan Manson, eds., Towards a Clear and Just Criminal Law (Toronto: Thomson Canada Ltd., 1999) 457 at 461. 180 Canadian Committee on Corrections, note 175 at 185. 181 Law Reform Commission of Canada, Dispositions and Sentences in the Criminal Process (Ottawa: Government of Canada, 1976) at 8-9. This was the Law Reform Commission's first report in the area of criminal law. In the preface, at 1, the importance of the "operation of the law and its consequences in practice," as opposed to the "written law," was noted. 182 Law Reform Commission of Canada, note 181 at 26 [Recommendation 14.1]. 183 Law Reform Commission of Canada, note 181 at 26 [Recommendation 14.3]. 184 Law Reform Commission of Canada, The Principles of Sentencing and Dispositions (Ottawa: Government of Canada, 1974).
308 185 Law Reform Commission of Canada, Imprisonment and Release (Ottawa: Government of Canada, 1975). 186 Law Reform Commission of Canada, note 184 at ix. 187 Law Reform Commission of Canada, note 184 at 1. 188 Law Reform Commission of Canada, note 184 at 25. 189 Law Reform Commission of Canada, note 184 at 35. Law Reform Commission of Canada, note 184 at 13. Law Reform Commission of Canada, note 184 at 13. Law Reform Commission of Canada, note 185 at 17. 193 Law Reform Commission of Canada, note 185 at 13. 194 Government of Canada, The Criminal Law in Canadian Society (Ottawa: Government of Canada, 1982). 195 Government of Canada, note 194 at 33. 196 Government of Canada, Sentencing (Ottawa: Government of Canada, 1984). 197 Government of Canada, note 196 at 33. . 198 Government of Canada, note 196 at 33. 199 Government of Canada, note 194. 200 Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa: Canadian Government Publishing Centre, 1986). 201 Aidan Vining, Issues Relating to Sentencing Guidelines: An Evaluation of U.S. Experiences and Their Relevance for Canada (Ottawa: Government of Canada, 1988) at 50. 202 Canadian Sentencing Commission, note 200 at 77. 203 Canadian Sentencing Commission, note 200 at xxii. These views were shared by the Government of Canada: see the comments of the Minister of Justice and Attorney General of Canada, A. Kim Campbell, "Sentencing reform in Canada" (1990), 32 Canadian Journal of Criminology 387. 204 Canadian Sentencing Commission, note 200 at 146. 205 Canadian Sentencing Commission, note 200 at 151 [Recommendation 6.1]. 206 Canadian Sentencing Commission, note 200 at 154 [Recommendation 6.2(4)(a)]. 207 Standing Committee on Justice and Solicitor General, Taking Responsibility. Report of the Standing Committee on Justice and Solicitor General on its Review of Sentencing, Conditional Release and Related Aspects of Corrections (Ottawa: Government of Canada, 1988) at 44-46. 208 Standing Committee on Justice and Solicitor General, note 207 at 43. In its examination of the history of sentencing reform in Canada, the Report made reference to an earlier Standing Committee Report which identified the problem of "broad discretion of the courts" as leading to "not only to great sentence disparities but also has left judges without assistance to make their difficult decisions." See Standing Senate Committee on Legal and Constitutional Affairs, Parole in Canada (Report) (Ottawa: Information Canada, 1974) at 51. 209Govemment of Canada, Sentencing: Directions for Reform (Ottawa: Government of Canada, 1990). 210 Government of Canada, note 209 at 4. 211 Government of Canada, note 209 at 5. 212 Campbell, note 203 at 390. 213 Manson, note 179 at 459. 214 Julian V. Roberts and Andrew von Hirsch, "Statutory Sentencing Reform: The Purpose and Principles of Sentencing" (1995), 37 Crim. L.Q. 220 at 222. See also Anthony N. Doob, "The New Role of Parliament in Canadian Sentencing" (1997), 9 Fed. Sent. R. 239. 215 Manson, note 179 at 459. 216 Manson, note 179 at 460. 217 Bill C-41, An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c.22 [Bill C-41], 218 Alan Young, The Role of an Appellate Court in Developing Sentencing Guidelines (Ottawa: Government of Canada, 1988) at 99. 219 Julian V. Roberts, "Sentencing Reform: The Canadian Approach" (1997), 9 Fed. Sent. R. 245 at 248.
309 220 Bill C-9, An Act to amend the Criminal Code (Conditional Sentence of Imprisonment,), S.C. 2007, c.12 [Bill C-9]. The current provision is found in s.742.1 of the Criminal Code. An even more restrictive amendment to s.742.1, which would have precluded conditional sentences for all indictable offences punishable by 10 years' imprisonment or more, had been introduced by the Government in 2006 as Bill C-9 but was not passed into law. As Allan Manson observes in "The Reform of Sentencing in Canada, note 176 at 467, the eventual role of the "controversial and enigmatic conditional sentence ... remains to be determined." 221 Manson, note 179 at 468. For a detailed recent analysis of these provisions, see Gilles Renaud, The Sentencing Code of Canada. Principles and Objectives (Markham: LexisNexis Canada Inc. 2009). 222 Criminal Code, note 7, s.717. 223 Criminal Code, note 7, s.718. 224 Criminal Code, note 7, s.718.1 225 Criminal Code, note 7, ss.720-729. 226 Criminal Code, note 7, s.730(1). 227 Criminal Code, note 7, ss.731-733. 228 Criminal Code, note 7, ss.734-737. 229 Criminal Code, note 7, ss.738-741. 230 Criminal Code, note 7, s.742.1. 231 Criminal Code, note 7, s.743. 232 Criminal Code, note 7, s.718.2(a). Examples are crimes motivated by hate or prejudice (s.718.2(a)(i)); abuse of the offender's spouse (s.718.2(a)(ii)) or of a person under 18 years old (s.718.2(a)(ii.1)). Abuse of a position of trust is another example: s.718.2(a)(iii). 33 Criminal Code, note 7, s.718.2(b): the principle of parity or consistency. 234 Criminal Code, note 7, s.718.2(c): the principle of totality. 235 Criminal Code, note 7, s.718.2(d): the principle of restraint. 236 Criminal Code, note 7, s.718.2(e): the principle of restraint and aboriginal persons. 237 Manson, note 179 at 468. 238 Manson, note 179 at 468. 239 R v. Gladue, [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19 (QL) [Gladue]. 240 Gladue, note 239 at [QL] para. 39. See also R v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11 (QL) [Wells] applying the Gladue case. 241 R v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6 (QL) [Proulx]. 242 Proulx, note 241 at [QL] para. 14. 243 The use of this phrase was popularized by John Hogarth; Sentencing as a Human Process (Toronto: University of Toronto Press, 1971). 244 R v. Hamilton (2004), 72 O.R. (3d) 1, [2004] O.J. No. 3252 at para. 1(QL) (C.A.) [Hamilton] 245 Hamilton, note 244 at [QL] para. 87. 246 R v. McDonnell, [1997] 1 S.C.R. 948, [1997] S.C.J. No. 42 at para. 29 (QL) [McDonnell]. 247 Dale E. Ives, "Inequality, Crime and Sentencing: Borde, Hamilton and the Relevance of Social Disadvantage in Canadian Sentencing Law" (2004), 30 Queen's L.J.114 at 118. 248 Ives, note 247 at 138. 249 Anthony N. Doob, "Punishment in Late-Twentieth-Century Canada: An Afterword" in Strange, Carolyn, ed., Qualities of Mercy: Justice, Punishment and Discretion (Vancouver: University of British Columbia Press, 1996) at 168. 250 Manson, note 179 at 472. See too K.E. Jull, "Reserving Rooms in Jail: A Principled Approach" (1999), 42 Crim. L.Q. 67 at 77-79. Andrew J. Ashworth, "Sentencing Reform Structures" (1992), 16 Crime & Just. 181 at 189. 252 Roberts, note 214 at 223. 253 Clayton C. Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Ltd., 2008) at 21. 254 Allan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001) at 80. 255 J.V. Decore, "Criminal Sentencing: The Role of the Canadian Courts of Appeal and the Concept of Uniformity" (1963-64), 6 Crim. L.Q. 324.
310 256 Decore, note 255 at 334. See also Julian V. Roberts and Andrew von Hirsch, "Legislating the Purpose and Principles of Sentencing" in Julian V. Roberts and David P. Cole, eds., Making Sense of Sentencing (Toronto: University of Toronto Press) at 49. 257 Decore, note 255 at 375. 258 Hermann Mannheim, "Some Aspects of Judicial Sentencing Policy" (1958), 67 Yale L.J. 961 at 962. 259 Andrew von Hirsch, Doing Justice: The Choice of Punishments (New York: Hill and Wang, 1976) at 32. 260 Molly Cheang, Sentencing: A Study in the Proper Allocation of Responsibility (Osgoode Hall Law School, York University: Ph.D. dissertation, 1974) at 290. 261 T.S. Palys and Stan Divorski, "Explaining Sentence Disparity" (1986), 28 Cdn. Journal of Criminology 347 at 360. 262 Roberts, note 214 at 239. See also Julian V. Roberts and Andrew von Hirsch, "Legislating the Purpose and Principles of Sentencing" in Julian V. Roberts and David P. Cole, eds., Making Sense of Sentencing (Toronto: University of Toronto Press) at 60. 263 United States Sentencing Commission, Guidelines Manual (Washington D.C., United States Sentencing Commission, 1995), ch. 1, pt. A, #3 at 3. 264 Stephen Breyer, "Federal Sentencing Guidelines Revisited" (1999), 14 Crim. Just. 28 at 29. See also llene H. Nagel, "Structuring Sentencing Discretion: The New Federal Sentencing Guidelines" (1990), 80 J. Crim. L. & Criminology 883 at 914-915 describing the problems inherent in the "group process" of writing guidelines for violations of over 1000 federal statutes. See further Frank O. Bowman, "The Quality of Mercy Must Be Restrained, and Other Lessons in Learning to Love the Federal Sentencing Guidelines," [1996] Wis. L. Rev. 679 at 686-687. 265 Kevin Cole, "The Empty Idea of Sentencing Disparity" (1997), 91 Nw. U.L. Rev. 1336. 266 Anthony N. Doob, "The United States Sentencing Commission Guidelines: If you don't know where you are going, you might not get there" in Chris Clarkson and Rod Morgan, eds., The Politics of Sentencing Reform (Oxford: Clarendon Press, 1995). 267 Andrew von Hirsch, "Federal Sentencing Guidelines: Do They Provide Principled Guidance?" (1989), 27 Am. Crim. L. Rev. 367 at 370-371. Michael K. Block, "Emerging Problems in the Sentencing Commission's Approach to Guideline Amendments" (1989), 1 Fed. Sent. R. 451. The author, like [current U.S. Supreme Court Judge] Stephen Breyer, was a member of the Sentencing Commission. 269 Kenneth C. Davis, Discretionary Justice. A Preliminary Inquiry (Baton Rouge: Louisiana State University Press, 1969) at 135. 270 Marvin E. Frankel, Criminal Sentences. Law without Order (Hew York: Hill and Wang, 1972) at 7. 271 Frankel, note 270 at 105-106. Frankel has also provided a retrospective on the guidelines system that was put in place after his influential book: see, for example, Marvin E. Frankel, "Sentencing Guidelines: A Need for Creative Collaboration" (1992), 101 Yale L. J. 2043; Marvin E. Frankel and Leonard Orland, "A Conversation about Sentencing Commissions and Guidelines" (1993), 64 U. Colo. L. Rev. 655. See further Michael H. Tonry, "The Success of Judge Frankel's Sentencing Commission" 91993), 64 U. Colo. L. Rev. 713 272 Edward M. Kennedy, "Criminal Sentencing: A Game of Chance" (1976), 60 Judicature 208. 273 Pierce O'Donnell, Michael J. Churgin and Dennis E. Curtis, Towards a Just and Effective Sentencing System. Agenda for Legislative Reform (New York: Praeger Publishers, 1977) at 3 274 Jon O. Newman, "A Better Way to Sentence Criminals" (1977), 63 A.B.A.J. 1562. 275 Sentencing Guideline Bill, S. 2699, 94th Cong. 2d Sess. [Sentencing Guideline Bill] The legislation was introduced by Senator Kennedy. It was this bill that recommended the creation of the United States Sentencing Commission which was to be given the mandate of establishing specific, fixed sentencing ranges for similar defendants who commit similar crimes. See also Edward M. Kennedy, "Symposium on Sentencing, Part I. Introduction" (1978), 7 Hofstra L. Rev. 1. The legislation that eventually passed was the Sentencing Reform Act of 1984, P.L. No. 98-473, 98. Stat. 1987 (codified at 18 U.S.C. ss.3551-3673 (1988); 28 U.S.C. ss.991-998 (1988)) [Sentencing Reform Act].
311 276 Steve Y. Koh, "Reestablishing the Federal Judge's Role in Sentencing" (1992), 101 Yale L.J. 1109 at 1116; Charles J. Ogletree Jr., "The Death of Discretion? Reflections on the Federal Sentencing Guidelines" (1988), 101 Harv. L. Rev. 1938 at 1951. The purposes identified in the Sentencing Reform Act were included in the American Law Institute's Model Penal Code, s.1.02(2) (1962) as well as in a number of versions of the American Bar Association's Criminal Justice Standards for Sentencing: see Marc Miller, "Purposes at Sentencing" (1992), 66 S. Cal. L. Rev. 413 at 456-457; Cheang, note 260 at 70-71; Sol Rubin, "The Model Sentencing Act" (1964), 39N.Y.U.L. Rev. 251 at 260. 277 Koh, note 276 at 1118. 278 Koh, note 276 at 1118. 279 Koh, note 276 at 1118. See further Charles J. Ogletree Jr., "The Death of Discretion? Reflections on the Federal Sentencing Guidelines" (1988), 101 Harv. L. Rev. 1938 at 1951-1953. 280 Lawrence S. Lustberg, "The Importance of Purposes in Choosing Between Prison and Probation" (1991), 3 Fed. Sent. R. 334 at 335. Vining, note 201 at 21, observes in relation to sentencing commissions in Minnesota and Pennsylvania, that sentencing guidelines have encouraged the "development of clearly articulated sentencing policy", and that this articulation appears to have facilitated "increased coherence in overall sentencing policy." 2f*1 Miller, note 276 at 443. 282 Miller, note 276 at 463. 283 Miller, note 276 at 465. See further Daniel J. Freed and Marc Miller, "Taking 'Purposes" Seriously: The Neglected Requirement of Guideline Sentencing" (1991), 3 Fed. Sent. R. 295; Paul J. Hofer, and Mark H. Allenbaugh, "The Reason Behind the Rules: Finding and Using the Philosophy of the Federal Sentencing Guidelines" (2003), 40 Am. Crim. L. Rev. 19 at 21. 284 Aaron J. Rappaport, "Speaking of Purposes" (1999), 12 Fed. Sent. R. 95. 285 Aaron J. Rappaport, "The U.S. Sentencing Commission's Troubling Silence about the Purposes of Punishment" (2003), 6 Buff. Crim. L. Rev. 1043 at1095. 286 Stanley A. Weigel, "The Sentencing Reform Act of 1984: A Practical Appraisal" (1988), 36 U.C.LA. L. Rev. 83 at 98-99. 287 Michael H.Tonry, "The Politics and Processes of Sentencing Commissions" (1991), 37 Crime & Delinquency 307 at 325. 288 Paul H. Robinson, "Dissent From The United States Sentencing Commission's Proposed Guidelines" (1986), 77 J. Crim. L & Criminology 1112 at 1113. See further Paul H. Robinson, "A Sentencing System for the 21st Century?" (1987), 66 Tex. L. Rev. 1 at 14; Paul H. Robinson, "The Federal Sentencing Guidelines: Ten Years Later. An Introduction and Comments" (1997), 91 Nw. U.L. Rev. 1231 at 1240. 289 Paul H. Robinson, "Hybrid Principles for the Distribution of Criminal Sanctions" (1987), 82 Nw. U. L. Rev. 19 at 19-20. 290 Robinson, note 289 at 21. 291 Paul H. Robinson, "Legality and Discretion in the Distribution of Criminal Sanctions" (1988), 25 Harv. J. on Legis. 393 at 428. The author refers at 427 to the Canadian Sentencing Commission's Report on Sentencing Reform, note 200, in support of his argument that a statement of objectives can reduce sentencing disparity, given that "judges' differing philosophies are a prime cause of such inconsistency." 292 Kate Stith and Jose A. Cabranes, "Judging Under the Federal Sentencing Guidelines" (1997), 91 Nw. U.L. Rev. 1247 at 1255-1256. See also Kate Stith and Jose A. Cabranes, Fear of Judging. Sentencing Guidelines in the Federal Courts (Chicago: University of Chicago Press, 1998). James M. Anderson, Jeffrey R. Kling and Kate Stith, "Measuring Interjudge Sentencing Disparity: Before and After the Federal Sentencing Guidelines" (1999), 42 J. L. & Econ. 271 at 304 note that implementation of the Guidelines and statutory minimum sentences have given rise to complaints, in fact, of "undue uniformity in sentencing." To the same effect see Kenneth N. Flaxman, "The Hidden Dangers of Sentencing Guidelines" (1979), 7 Hofstra L. Rev. 259 at 261: "... unless great caution is used in creating sentencing guidelines, the result will be the same: overall uniformity at the expense of individual fairness"; Daniel J. Freed, "Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers" (1992), 101 Yale L.J. 1681.
312 Franklin E. Zimring, "Sentencing Reform in the States: Some Sobering Lessons from the 1970's" (1981), 2 N. III. U.L Rev. 1 at 16. 294 Blakely v. Washington, 542 U.S. 296 (2004) [Blakely]. 295 United States v. Booker, 543 U.S. 220 (2005) [Booker]. 296 Michael M. O'Hear, "Sentencing the Green-Collar Offender: Punishment, Culpability and Environmental Crime" (2004), 95 J. Crim. L. & Criminology 133 at 138. The future of the federal sentencing guidelines in view of these United States Supreme Court decisions, much like the guidelines themselves, has produced much commentary and debate: see, for example, Douglas A. Berman, "Examining the Blakely Earthquake and Its Aftershocks" (2004), 16 Fed. Sent. R. 307; Douglas A. Berman, "Foreword: Beyond Blakely and Booker. Pondering Modern Sentencing Process" (2005), 95 J. Crim. L. & Criminology 653; Steven L. Chanenson and Daniel F. Wilhelm, "Evolution and Denial: State Sentencing after Blakely and Booker" (2005), 18 Fed. Sent. R. 1; Steven L. Chanenson, "The Next Era of Sentencing Reform" (2005), 54 Emory L. J. 517; Kevin R. Reitz, "The Enforceability of Sentencing Guidelines" (2005), 58 Stan. L. Rev. 157; Kevin R. Reitz, "The New Sentencing Conundrum: Policy and Constitutional Law at Cross-Purposes" (2005), 105 Colum. L. Rev. 1082; Albert W. Alschuler, "To Sever or not to Sever? Why Blakely Requires Action by Congress" (2004), 17 Fed. Sent. R. 11; Larry Kupers, "Proposal for a Viable Federal Sentencing Scheme in the Wake of Blakely v. Washington" (2004), 17 Fed. Sent. R. 28; Jane L. McClellan and Jon M. Sands, "The Hedgehog, the Fox, and the Guidelines: Blakely's Possible Implications for the 'Safety Valve'" (2004), 17 Fed. Sent. R. 40; Aaron J. Rappaport, "What the Supreme Court Should Do: Save Sentencing Reform, Gut the Guidelines" (2004), 17 Fed. Sent. R. 46; Nancy J. King and Susan R. Klein, "Beyond Blakely" (2004), 16 Fed. Sent. R. 316; Mark D. Harris, "Blakely's Unfinished Business" (2004), 17 Fed. Sent. R. 83; Douglas A. Berman, "Conceptualizing Blakely" (2004), 17 Fed. Sent. R. 89; Jenia I. Turner, "Implementing Blakely" (2004), 17 Fed. Sent. R. 106; Frank O. Bowman, III, "Function Over Formalism: A Provisional Theory of the Constitutional Law of Crime and Punishment" (2004), 17 Fed. Sent. R. 1. Neither have these developments escaped attention north of the border: see William Trudell, "Sentencing in the United States ... Clear as Mud (Slinging)!" (2005), 26 Ontario Criminal Lawyers' Association Newsletter (No. 1) 14. 297 United States v. Dillon, 130 S.Ct. 2683 (2010) [Dillon]. 298 Dillon, note 297 at 2703, per Stevens J. The defendant recived a sentence of approximately 27 years in this case for cocaine offences, the Guidelines providing for a range of 262 - 327 month's imprisonment. The sentencing judge would have imposed a five year sentence, but for the Guidelines. For a recent article criticizing the harsh sentencing ranges in the Guidelines, notwithstanding the advantages of "uniform sentences and efficient processes", see Ricardo J. Bascuas, "The American Inquisition: Sentencing After the Federal Guidelines" (2010), 45 Wake Forest L. Rev 1 at 5. 299 Ashworth, note 251 at 181. 300 Ashworth, note 251 at 203. 301 Andrew Ashworth, "Sentencing Purposes in England" (1991), 3 Fed. Sent. R. 377. 302 Ashworth, note 251 at 203. 303 Ashworth, note 251 at 233. In "Techniques for Reducing Subjective Disparity in Sentencing" in Council of Europe, Disparities in Sentencing: Causes and Solutions (Vol. XXVI) (Strasbourg: Council of Europe, 1989) 236-237, Ashworth concedes that the enactment of statutory principles would serve as more dynamic machinery" in order to permit changes in sentencing policy. However, this approach of formulating general statutory principles and leaving it to courts to apply them would work best, in his view, where the judiciary would feel compelled to follow the spirit of the legislation, as opposed to a jurisdiction like England. See further in this regard Alec Samuels, "Consistency in sentencing" in Donald C. Pennington and Sally Lloyd-Bostock, eds., The Psychology of Sentencing (Oxford: Short Run Press, 1978) at 69: "Fundamental law, including fundamental sentencing principles, should be made by Parliament, not the judges"; Andrew von Hirsch, "Guiding Principles for Sentencing: The Proposed Swedish Law," [1987] Crim. L.R. 746 at 755. 304 Ashworth, note 251 at 218. A case compendium of guideline judgments was published by the Sentencing Guidelines Council in March, 2005.
313 305 Ashworth, note 251 at 219. According to a 1986 editorial published in me Criminal Law Review, the number of guideline judgments is quite smaif, consisting of two or three decisions per year, prompftig tt« auftor te question whaflw ftt Court possessed th# necessary mseurees or expertise to deal with the types of offences which most frequently arise in the sentencing courts: see Editorial, The Next Criminal Justice Bill," £1986] Crim. L. Rev. 281 at 284. ^Ashworth, note 251 at 219. 307 Andrew Ashworth, "Techniques of Guidance on Sentencing," (19S4] Crim LR. 519 at 520. 308 Andrew von Hirsch, "Guidance by numbers or words? Numerical versus narrative guidelines for sentencing' in Martin Wasik and Ken Pease, eds., Sentencing reform. Guidance or guidelines? (Manchester, Manchester University Press, 1887) at 57. *• Ashworth, note 307 at 521. 3,0 Ashworth, note 307 at 526-527 s" David A Thomas, "Sentencing in Magistrates* Courts - A Lack of Judicial Guidance* Vol 146 Justice of the Peace (August 8,1981) at 467. 312 David A. Thomas, "Sentencing: some current questions" in Donald C. Pennington and Sa% Uoyd-Sostock, eds., The Psychology of Sentencing (Oxford" Short Rw Press, 1987) at 21-22. 313 Ken Pease, "Sentencing and measurement some analogiesfrom psychology" in Martin Wasik and Ken Pease, eds, Sentencing reform- Guidance or guidelines? (Manchester: Manchester University Press, 1987) at 135; Leslie T. WtfWns, "Sentencing Guidelines to Reduce Disparity?*, 1980] Crim. L.R. 201 at 214. \ m Samuels, note 303 at 69 319 David A. Thomas, The Justice Model of Sentencing - Its Implosions for tie Engfeh Sentencing System" in University of Cambridge. msfltute of Criminology, Tfte Future of Sentencing (Cambridge: University of Cambridge, Institute of Criminology, 1982) at 69. See further D, J. Gaiiigan, "Guidelines and Just Desserts: A Critique of Recent Trends In Sentencing Reform," [1981] Crim. LR. 297 at 310-311. 3,$ Thomas, note 315 at 73. 317 Thomas, note 315 at 73. A limited right of appealfor me Crown against "unduly lenient" sentences was created by the Criminal Appeal Act 13Q5 (c.35). 318 Michael J. Alien, "Sentencing Guidelines: Lessons to be Learned?" (1988), 38 N. If. Legal Q. 315 at 317; Roger Hood and Richard Sparks, Key Issues in Criminology (New York: McGraw-Hill Book Company, 1970) at 156. 319 Allen, note 318 at 317-318. 320 von Hirsch, note 308 at 57; Andrew Ashworth and Andrew von Hirsch, "Recognising Elephants: The Problem of the Custody Threshold,* 11997] Crim. L. Rev. 187 at 19a 321 United Kingdom Home Office, Criminal Jusfee; Plansfor Legislation (London: H.M.S.O. 1986), Cmnd 9658 at para. 6. This legislate* did not ultimately pass. Subsequent proposals were put forward to promote "better justice mrough a more consistent approach to sentencing"* see United Kingdom Home Office, Crane, Justice and Protecting the Public (London: H.M.S.O.1990) at 2. The Criminal Jmtice Act 1991 (c.53), s.1 {Criminal Justice Acf], did impose criteria for sentencing decisions of "moderate or low seriousness*, and established proportionality as a leading principle, but left it for tie courts to work out its application for other offences; see Ashworth, not 251 at 213. Subsequently, under the Crime and Disorder Act 1999 (c.37), ss.80-81 fCrtoe and Disorder Acf], a Sentencing Advisory Panel was established as an Independent advisory and consultative body whose function is to provide "fully researched, objective advice" to the Court of Appeal so as to assist the Court when it frames or revises sentencing guidelines. 322 Cheana, note 260 at 161. 388 Decors, note 255 at 375-376. 324 Samuels, note 303 at 66. 325 Young, note 218 at 8. 326 Young, note 218 at 89, Whether lower courts are amenable to appellate influence is another matter. Young cites a survey of 778tower cour t decisions in Canada where appellate statement of principle were cited in only 18% of the decisions, and just 7.3% of the cases made reference to appellate statements of range of sentence. Samuels, note 303 at 68, makes a similar observation inrespect o f English sentencers, noting that as they comprise "usually forceful characters, usually
314 working alone, the promotion of consistency is necessarily difficult." The effectiveness of any new approach clearly is largely dependent on cooperation from the judiciary: see Ashworth, note 298 at 123. 327 Gavin Dingwall, "The Court of Appeal and 'Guideline' Judgments" (1997), 48 N. Ir. Legal Q. 143 at 150; Leslie T. Wilkins, Consumerist Criminology (London: Heinemann, 1984) at 19; Ken Pease, "Punishment Demand and Punishment Numbers" in Don M. Gottredson and Ronald V. Clarke, eds., Policy and Theory in Criminal Justice. Contributions in Honour of Leslie T. Wilkins (Aldershot: Gower Publishing Company Limited, 1990) at 115. 28 Andrew Ashworth, "Criminal Justice, Rights and Sentencing: A Review of Sentencing Policy and Problems" in Ivan Potas, ed., Sentencing in Australia. Issues, Policy and Reform (Canberra: Australian Institute of Criminology, 1987) at 38. 329 Australian Law Reform Commission, Sentencing: Procedure (Discussion Paper No. 29) (Sydney: Australian Government Publishing Service, 1987) at 13. 30 Australian Law Reform Commission, note 329 at 13. 331 Australian Law Reform Commission, note 329 at 13. 332 Australian Law Reform Commission, note 329 at 20. A previous research paper prepared for the Australian Law Reform Commission on sentencing discretion had also recommended that there should be a legislative provision for a broad statement of principle indicating the aims and objects of sentencing: see Ivan Potas, Limiting Sentencing Discretion: Strategies for Reducing the Incidence of Unjustified Disparities (Research Paper No. 7) (Sydney: Australian Law Reform Commission, 1979), Recommendation Xi. 333 Richard G. Fox, "Controlling Sentencers" (1987), 20 A.N.Z.J. Crim. 218 at 230. 334 Australian Law Reform Commission, Sentencing (Report No. 44) (Canberra: Australian Government Publishing Service, 1988). 335 Australian Law Reform Commission, note 334 at xxii. 336 Australian Law Reform Commission, note 334 at xxii. An example of the latter would be the defendant's choice to plead not guilty. However, the Court would be under no obligation to consider all or any of the factors which were deemed to be relevant. 337 Australian Law Reform Commission, note 334 at 81-82. 338 The New South Wales Law Reform Commission, Sentencing (Discussion Paper 33, 1996), published at http://www.lawlink.nsw.qov.au/lrc.nsf/paqes/DP33CH3, recommended against attempts to limit judicial discretion on sentencing, other than by review of sentences by appellate courts: see Chapter 6 on "Guiding Judicial Discretion". See further J. Spiegelman, "Sentencing Guideline Judgments" (1999), 73 Aust L.J. 876 at 833 describing the "useful role" played by sentencing guidelines. 339 George Zdenkowski, "Sentencing of Federal and ACT Offenders: Some Reform Proposals" in Ivan Potas, ed., Sentencing in Australia. Issues, Policy and Reform (Canberra: Australian Institute of Criminology, 1987) at 490. See further Honor Figgis, "Mandatory and Guideline Sentencing: Recent Developments" (Briefing Paper No. 18/98) (www.parliament.nsw.gov.au/qi/librarv/publicn.html). 340 Zdenkowski, note 339 at 498. 341 Zdenkowski, note 339 at 498. 342 Sentencing Act, 49/91 [Sentencing Act (Vict.)]. 343 Sentencing Act (Vict.), note 342, s.1(a). 344 Sentencing Act (Vict.), note 342, s.1(a). 345 Arie Freiberg, "Sentencing Reform in Victoria: A Case Study" in Chris Clarkson and Rod Morgan, eds., The Politics of Sentencing Reform (Oxford: Clarendon Press, 1995) at 62. See further Arie Freiberg, "Sentencing and Punishment in Australia in the 1990's" in Michael Tonry, ed., Penal Reform in Overcrowded Times (Oxford: Oxford University Press, 2001). 346 Arie Freiberg and Stuart Ross, Sentencing Reform and Penal Change. The Victorian Experience (Sydney: The Federation Press, 1999) at 29. 347 Freiberg, note 346 at 203. 348 Mirko Bagaric, Punishment and sentencing: a rational approach (London: Cavendish Publishing Limited, 2001) at 3, 11; Richard Edney and Mirko Bagaric, Australian Sentencing. Principles and Practice (Melbourne: Cambridge University Press, 2007) at 33.See also Mirko
315 Bagaric, "Sentencing: The Road to Nowhere" (1999), 21 Sydney L. Rev. 597; J. Smith, "Clothing the Emperor: Towards a Jurisprudence of Sentencing" (1997), 30 ANZJ Crim 168 at 174:"Out of the rabble of case analysis of sentencing decisions, there is one principle which emerges supreme: judicial discretion." 349 New South Wales Crimes (Sentencing Procedure) Act 1999, 92/99, s.3a; [Crimes (Sentencing Procedure) Act (N.S. W)] New South Wales Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, ss.3(a), 21(a) [Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing Act)(N.S.W.)]; Queensland Penalties and Sentences Act 1992, s.3; [Penalties and Sentences Act (Queen.)]; South Australia Criminal Law (Sentencing) Act 1988, s.10 [Criminal Law (Sentencing Act (S.A)]; Tasmania Sentencing Act 1997, 59/97, [Sentencing Act (Tas.)] s.3; Western Australia Sentencing Act 1995, 76/95, ss.6-8 [Sentencing Act (W.A.)]; Northern Territory Sentencing Act 1995, ss.5-6a [Sentencing Act (N. T.)]. Geoffrey G. Hall, Sentencing: 2007 Reforms in Context (Wellington: LexisNexis NZ Ltd, 2007) at 70. See also Julian V. Roberts, "Sentencing Reform in New Zealand: An Analysis of the Sentencing Act 2002" (2003), 36 Aust. & N.Z. J. of Crim. 249. 351 Sentencing Act, 9/02 [Sentencing Act (N.Z.)]. 352 New Zealand Ministry of Justice, Reforming the criminal justice system (Wellington: New Zealand Ministry of Justice, 2002) at 1. 353 Sentencing Act (N.Z.), note 351, s.7(1). 354 Sentencing Act (N.Z), note 351, s.7(2). See further Roberts, note 350 at 256. 355 Sentencing Act (N.Z), note 351, s.8. 356 Sentencing Act (N.Z), note 351, s.9. 357 New Zealand Ministry of Justice, note 352 at 4. 358 Geoffrey Hall, "Reducing Disparity by Judicial Self-Regulation: Sentencing Factors and Guideline Judgments" (1991), 14 N.Z. Universities L. Rev. 208 at 227. See also Hall, note 350 at 7-8. 359 R. v. Rushby, [1977] 1 N.S.W.L.R. 594 at 597 (C.A.), per Street C.J [Rushby]. 360 Hall, note 350 at 82. 361 Hall, note 350 at 88. 362 Roberts, note 350 at 254. 363 Roberts, note 350 at 256. 364 Roberts, note 350 at 256. 365 Roberts, note 350 at 257. 366 Criminal Code, note 7, s.718.2(a). 367 Sentencing Act (N.Z.), note 351, s.9. 368 Roberts, note 350 at 265. 369 Roberts, note 350 at 267. 370 Sentencing Amendment Act 2007, 27/07 [Sentencing Amendment Act (N.Z.)]. See Hall, note 350 at 72. 371 New Zealand Law Commission, Sentencing Guidelines and Parole Reform (Report 94) (Wellington: Government of New Zealand, 2006) at 9. 2 New Zealand Ministry of Justice, Effective Interventions - Fact Sheets - A Sentencing Council and Sentencing Guidelines [http://www.justice.govt.nz/effective- interventions/fact_sheets/sentencing-council-and-sentencing-guidelines.asp] 373 New Zealand Law Commission, note 371 at 9. 374 New Zealand Law Commission, note 371 at 9. 375 New Zealand Law Commission, note 371 at 9. 376 New Zealand Ministry of Justice, note 372. 0-7-7 New Zealand Ministry of Justice, note 372. 378 New Zealand Ministry of Justice, note 372. 379 Nils Jareborg, "Introductory Report" in Council of Europe, Disparities in Sentencing: Causes and Solutions (Vol. XXVI) (Strasbourg: Council of Europe, 1989) at 7-9. 380 Jareborg, note 379 at 7-9. 381 Jareborg, note 379 at 13. 382 Swedish Penal Code 1999, Ds 1999:36, c.29, s.1 [Penal Code (Swed)].
316 383 Penal Code (Swed.), note 382, s.2. 384 Penal Code (Swed.), note 382, s.3. 385 Nils "Jareborg, "The Swedish Sentencing Reform" in Chris Clarkson and Rod Morgan, eds., The Politics of Sentencing Reform (Oxford: Clarendon Press, 1995) at 103-105. 386 Jareborg, note 385 at 122. See further Andrew von Hirsch and Nils Jareborg, "Gauging Criminal Harm: A Living-Standard Analysis" (1991), 11 Oxford J. Legal Stud. 1 at 36-37. 387 Andrew von Hirsch, "Guiding Principles for Sentencing: The Proposed Swedish Law," [1987] Crim. L.R. 746 at 754. See also Zdenkowski, note 339 at 498-500. 388 Andrew von Hirsch, "Sentencing Reform in Sweden" in Michael H. Tonry and Kathleen Hatlestad, eds., Sentencing Reform in Overcrowded Times. A Comparative Perspective (New York: Oxford University Press, 1997) at 214. 389 von Hirsch, note 388. 390 von Hirsch, note 308 at 47. 391 Zdenkowski, note 339 at 498. 392 Martin Killias, Andre, Kuhn, and Simone Ronez, "Sentencing in Switzerland" in Michael H. Tonry and Kathleen Hatlestad, eds., Sentencing Reform in Overcrowded Times. A Comparative Perspective (New York: Oxford University Press, 1997). 393 Killias, note 392 at 204. 394 Killias, note 392 at 204. 395 Tapio Lappi-Seppala, "Sentencing and Punishment in Finland" in Michael H. Tonry and Richard S. Frase, eds., Sentencing and Sanctions in Western Countries (Oxford: Oxford University Press, 2001) at 93. 396 Finnish Penal Code, 466/1976, c.6, ss. 2-4 [Penal Code (Fin.)]. 397 Lappi-Seppala, note 395 at 97. 398 Lappi-Seppala, note 395 at 123. 399 Lappi-Seppala, note 395 at 135. 400 Lappi-Seppala, note 395 at 138. 401 Lappi-Seppala, note 395 at 139. 402 Patrick Tornudd, "Sentencing and Punishment in Finland" in Michael Tonry and Kathleen Hatlestad, eds., Sentencing Reform in Overcrowded Times. A Comparative Perspective (New York: Oxford University Press, 1997) at 189. 403 von Hirsch, note 308 at 47. 404 von Hirsch, note 308 at 60. Von Hirsch observes, however, that the Swedish provisions provide more guidance than the Finnish ones, as the steps for determining sentence are "more clearly spelled out." See also Zdenkowski, note 339 at 498-500. 405 Netherlands Penal Code (1886) [Penal Code (Neth)] 406 Peter J. Tak, "Sentencing and Punishment in The Netherlands" in Michael H.Tonry and Richard S. Frase, eds., Sentencing and Sanctions in Western Countries (Oxford: Oxford University Press, 2001) at 175. 407 Peter J. Tak, "Sentencing and Punishment in the Netherlands" in Michael H. Tonry and Kathleen Hatlestad, eds., Sentencing Reform in Overcrowded Times. A Comparative Perspective (New York: Oxford University Press, 1997) at 199. 408 Tak, note 406 at 175. 409 Tak, note 406 at 176. 410 Criminal Code, note 7. 411 Archibald, note 6 at 12-5. 412 Canadian Environmental Protection Act, note 135, s.287. 413 Contraventions Act, note 5. This Act applies to "minor federal offences" which may be enforced through the application of provincial laws regulations. Currently, this is the case in Ontario, Nova Scotia, New Brunswick, Manitoba, Prince Edward Island, Newfoundland, Quebec and British Columbia. See Application of Provincial Laws Regulations, SOR/96-312. 414 Interpretation Act, R.S.C. 1985, c.l-21 [Interpretation Act]. 415 Archibald, note 6 at 12-6. 416 Archibald, note 6 at 12-7. 417 Provincial Offences Act (Ont), note 3, s.2(1).
317 418 Norman A. Keith, "Sentencing the Corporate Offender: From Deterrence to Corporate Social Responsibility" (2010), 56 Crm. L.Q. 294 at 303. The author might also have added that the legislation is equally silent on sentencing principles for corporate defendants convicted of absolue liability and mens rea provincial offences, and not just strict liability offences. 419 Keith, note 418 at 308. 420 Archibald, note 6 at 12-7. 421 Environmental Protection Act, R.S.O. 1990, c.E.19 [Environmental Protection Act (Ont.)]. 422 Environmental Protection Act (Ont), note 421, s. 188.1(1). 423 Public Health Act (B.C.), note 137. 424 Public Health Act (B.C.), note 137, s.105. 425 Public Health Act (B.C.), note 137, s.106. 426 Provincial Offences Act (Ont), note 3. 427 Provincial Offences Act (Ont), note 3, s.72(1). 428 Provincial Offences Act (Ont), note 3, s.72(7). 429 Provincial Offences Act (Ont), note 3, s.72(3)(b). 430 Offence Act, R.S.B.C. 1996, c.338 [Offence Act (B.C.)]. 431 Offence Act (B.C.), note 430, s.89(4). The six month limit of probation coincides with the six month limit of imprisonment under s.4 of the Offence Act, as probation was "designed to be a substitute for prison": see Verhulst, note 140 at 290. 432 Libman, note 40 at 11-20. See also Berger, note 144 at 7-13. 433 Law Reform Commission of Canada, note 49 at 16. 434 Fraser Inc. note 142. 435 100 Mile House, note 149. 436 Archibald, note 6 at 12-9. 437 Verhulst, note 140 at 282. 438 Criminal Code, note 7, s.675(1)(b) [appeal by the defendant]; s.676(1)(d) [appeal by the Attorney General], 439 Provincial Offences Act (Ont), note 3, ss. 131(1), 139(1). 440 Provincial Offences Act (Ont), note 3, ss.131(2), 139(2). 441 Provincial Offences Act (OntJ, note 3, ss.131(3), 139(4). For a recent example of the high threshold required for meeting the leave to appeal standard, see R. v. Ade-Ajayi, 2011 ONCA 192, [2011] O.J. No. 1016 at para. 15 (QL) [Ade-Ajayi\: "Appeals to this Court on matters under the Provincial Offences Act are very much the exceptions, and particularly so with respect to sentence." 442 R. v. Shropshire, [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52 at para 46 (QL) [Shropshire]: "An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulations of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit." See further in this regard R. v. CA. M., [1996], 1 S.C.R. 500, [1996] S.C.J. No. 28 at para. 89 (QL) [CAM.]; Proulx, note 236 at [QL] para. 123; R. v. G.W., [1999] 3 S.C.R. 597, [1999] S.C.J. No. 37 at paras. 18-19 (QL) [G.W.]; McDonnell, note 246 at [QL] paras. 14-17. 443 There is a distinction, however, between the "principle" as opposed to "fitness" of sentence, the former putting in issue the legality of the sentence: see R. v. Gardiner, [1982] 2 S.C.R. 368, [1982] S.C.J.No. 71 (QL) [Gardiner]. 444 Cotton Felts Ltd., note 26. 445 Provincial Offences Act (Ont.), note 3. 446 Occupational Health and Safety Act (Ont.), note 80 447 Cotton Felts Ltd., note 26 at [QL] para. 19. 448 Cotton Felts Ltd., note 26 at [QL] para. 22. 449 Cotton Felts Ltd., note 26 at [QL] para.23. Interestingly, despite making these sweeping pronouncements in the judgment, the Court concluded its reasons at [QL] para. 24 by referring to the discretion of the trial judge to impose a fine, even if it would have been disposed to impose a
318 greater or lesser fine, noting that "a fine is 'peculiarly in the discretion of the trial judge - a discretion with which an appellate court should not lightly interfere'". 450 R. v. Inco Ltd. (2000), 132 O.A.C. 268, [2000] O.J. No. 1868 (QL) [Inco Ltd.]. One of the convictions was set aside on appeal. Hence, the Crown's sentence appeal to the Court of Appeal proceeded on two counts only. 451 Inco Ltd., note 450 at [QL] para. 4. 452 Inco Ltd., note 450 at [QL] para. 5. 453 R. v. Terroco Industries Ltd., 2005 ABCA 141, 367 A.R. 1, 41 Alta. L.R. (4th) 1, [2005] A.J. No. 361 (QL). [Terroco Industries Ltd.] The test for hearing appeals in regulatory offences cases under the Alberta legislation, like Ontario, is set at a high threshold, requiring a judge of the Alberta Court of Appeal to be satisfied that the case "involves question of law of sufficient importance to justify a further appeal": Provincial Offences Procedure Act, R.S.A. 2000, c.P-34, s. 19(1) [Provincial Offences Procedures Act (Alta.)]. 454 Dangerous Goods Transportation and Handling Act, S.A. 1998, c.D-3.5 [Dangerous Goods Transportation and Handling Act (Alta.)]. 455 Environmental Protection and Enhancement Act, S.A. 1992 c.E-13.3 [Environmental Protection and Enhancement Act (Alta.)]. 456 Terroco Industries Ltd., note 453 at [QL] para. 34. One of the earliest cases to advocate this approach is R. v. Kenaston Drilling (Arctic) Ltd. (1973) 12 C.C.C. (2d) 383, [1973] N.W.T.J. No. 1 at para. 13 (QL) (S.C.). [Kenaston Drilling (Arctic) Ltd.]. See also R. v. United Keno Hill Mines Ltd. M980), 10 C.E.L.R. 43, [1980] Y.J. No. 10 at para. 6 (QL) (T.C.) [United Keno Hill Mines Ltd.]. Terroco Industries Ltd., note 453 at [QL] para. 35. 458 Terroco Industries Ltd., note 453 at [QL] para. 45. In Kenaston Drilling (Arctic) Ltd., note 456 at [QL] at para. 13, the Court stated in this regard: "But surely the test to apply in approaching the question of sentence should be less a concern of what the damage was but more a concern of what the damage might have been." 459 Terroco Industries Ltd., note 453 at [QL] para. 53. 460 Terroco Industries Ltd., note 453 at [QL] para. 66. 461 Terroco Industries Ltd., note 453 at [QL] paras 74, 76. 462 United Keno Hill Mines Ltd., note 456. 463 United Keno Hill Mines Ltd., note 456 at [QL] para. 17. 464 United Keno Hill Mines Ltd., note 456 at [QL] para. 39. 465 United Keno Hill Mines Ltd., note 456 at [QL] para. 39. In a far-ranging and prescient discussion of the need for courts to be given the power to require "complete access to internal corporate allocations of responsibility" (para. 49), additional sentencing options and non-criminal governmental tools were recommended, including imposing statutory duties of an affirmative duty on senior echelon corporate officials to control corporate activities, the power to order restitution against corporate offenders or officials, licence suspension or revocation orders, and diversion schemes. The genesis of this "special approach" required for corporate offenders who commit environmental offences, as discussed in cases such as United Keno Hill Mines Ltd., is outlined by Robert Elliot Pollock, Corporate executive liability for environmental offences: A comparison of the Ontario and Untied States approach. (Osgoode Hall Law School, York University: LL.M thesis, 1994) at 98. 466 United Keno Hill Mines Ltd., note 456 at [QL] para. 9. Stuart CJ at [QL] paras 7-8 traced the history of punishment provisions for pollution, ranging from capital punishment in England in 1307 for violating air pollution standards, to the twentieth century and late 1960's where pollution was regarded as a "minor if not trivial offence." In Canada, legislative amendments subsequently increased fines from $500 to $10,000 whereas in the United States jail terms, large fines and civil liabilities were enacted for environmental violations. Indeed, at the time of the Supreme Court of Canada's decision in Sault Ste. Marie, note 34 which was released shortly before United Keno Hill Mines Ltd., fine provisions for pollution offences were still relatively modest compared to their present levels. 467 R. v. Schulzke, 2008 SKPC 149, [2008] S.J. No. 790 (QL) [Schulzke], 468 Schulzke, note 467 at [QL] para. 110. 469 Schulzke, note 467 at [QL] para. 111.
319 470 R v. Abbott, 2008 BCCA 198, 81 B.C.L.R. (4th) 16, [2008] B.C.J. No. 824 (QL) [Abbott]. . Appeals to the British Columbia Court of Appeal in a regulatory offences case require the granting of leave to appeal "on any ground that involves a question of law alone": Offence Act, note 430, s.124(1). 471 Health Act, R.S.B.C. 1996, c.179 [Health Act (B.C.)]. 472 Abbott, note 470 at [QL] para. 34 473 Abbott, note 470 at [QL] para. 49. 474 Archibald, note 6 at 12-12 -12-16. 475 Jamie Benidickson, Environmental Law, 3r" ed. (Toronto: Irwin Law Inc., 2009) at 183. 476 Canada Shipping Act, note 136 477 Canada Shipping Act, note 136, s. 664(2). 478 P. Puri, "Sentencing the Criminal Corporation" (2001), 39 Osgoode Hall L.J. 611 at 620. 479 Berger, note 144 at 7-45. 480 Environmental Enforcement Act (Ont), note 55. This legislation also put in place administrative environmental penalties which are absolute liability in nature: see Libman, note 85. 481 Environmental Protection Act (Ont), note 421. 482 Ontario Water Resources Act, R.S.O. 1990, c.O.40 [Ontario Water Resources Act]. 483 Environmental Enforcement Act (Ont.), note 55, enacting s. 188.1(1) to the Environmental Protection Act (On.t), note 421. 484 Environmental Enforcement Act (Ont), note 55, enacting s.110.1(1) to the Ontario Water Resources Act, note 482. 485 Environmental Enforcement Act (Ont), note 55, enacting s. 188.1(3) to the Environmental Protection Act (Ont), note 421; Environmental Enforcement Act (Ont.), note 55, enacting s.110.1(3) to the Ontario Water Resources Act, note 482. A similar provision appears in the Regulatory Modernization Act, 2007, S.O. 2007, c.4, s.15(4) [Regulatory Modernization Act(Ont)], which requires the Court to indicate, where the prosecutor is of the opinion that a previous conviction constitutes an aggravating factor, whether it is imposing a "more severe penalty" having regard to the previous conviction, or, alternatively, if the court decides that the previous conviction does not "justify a more severe penalty", the reasons for that decision. 486Law Reform Commission of Canada, note 49. The report was authored by John Swaigen and Gail Bunt. 487 Law Reform Commission of Canada, note 49 at 7. 488 Law Reform Commission of Canada, note 49 at 2. 489 Law Reform Commission of Canada, note 49 at 5. 490 This point is also made by C.L.Saga, in an article published shortly before the Law Reform Commission' study paper, Sentencing for environmental offences, note 49, entitled "Regulatory Offences, Infractions and Alternative Compliance Measures" (1984), 42 U. Toronto Fac. L. Rev. 25 at 34, where it was noted that, for pollution offences, the gravity and risk of harm varies from case to case. 491 Law Reform Commission of Canada, note 49 at 6. 492 Law Reform Commission of Canada, note 49 at 6. 493 Law Reform Commission of Canada, note 49 at 7. 494 Law Reform Commission of Canada, note 49 at 8. 495Sherrin, note 108 at 2. 496 Sherrin, note 108, uses the example of the relatively low penalties imposed for environmental offences as the basis for his examination as to whether the distinction between criminal offences and regulatory offences under the Charter of Rights, note 52, is justified by the penalties imposed for such offences. 497 Law Reform Commission of Canada, note 49 at 16. 498 United Keno Hill Mines Ltd., note 456. 499 Law Reform Commission of Canada, note 49 at 40. 500 Law Reform Commission of Canada, note 49 at 41. 501 Law Reform Commission of Canada, note 49 at 42-43. The authors went on to recommend a number of measures that reflected, in their view, the civil nature of public welfare offences, such as a shift in the onus of proof of ability to pay, or illegal gain, to the defendant; discovery by the
320 crown; or a separate trial of the "quantum issue" before a different court official than the trial judge, such as a master in civil proceedings. In support of its position, the Commission pointed to the fact that courts had five years' experience in applying Sault Ste. Marie, note 34, yet the Ontario Court of Appeal in Cotton Felts Ltd., note 26, stated that the range for fines in public welfare offences appeared to be too low. 502 Chappell, note 167 at 35. This point is made as well by Murray Rankin, "Economic Incentives for Environmental Protection: Some Canadian Approaches" (1991), 1 J.E.L.P. 241 at 244, who concluded in his study of penalties imposed for infractions of environmental statutes that most fines were "very low." By way of illustration, of 201 polluters who were fined between January 1984 and June 1989 for contravening the Waste Management Act, R.S.B.C. 1996, c.482 [Waste Management Act (B.C.)], the average fine was $723., with the majority of such fines being in the range of $100-$200. 503 Chappell, note 167 at 36. 504 See Pollock, note 465 at 117-120, explaining the operation of the U.S. sentencing guidelines to environmental offences. A fine is to be imposed in all cases, except where the defendant establishes he/she is unable to pay, and is unlikely to pay any fine. The amount of the fine is determined by reference to a fine table. Suspended sentences are not available under the guidelines; imprisonment is considered the norm, not the exception. 51)5 Pollock, note 465 at 73. 506 Chappell, note 167, views the issue through the lens of enforcement strategies, as evidenced by the title of the chapter where he made these observations: "A Matter of Enforcement: Or No More Mr. Nice Guy." Swaigen, on the other hand, in his subsequent publication, Regulatory Offences in Canada. Liability & Defences, note 38 at 227-228, stated that the problem of sentencing disparity and inconsistency in fine levels was best left to appellate courts which could overturn "inappropriate penalties" and establish the "appropriate range of penalties." 507 Elaine L. Hughes, "Sentencing Environmental Offenders: Objectives and Principles" (1994), 4 J.E.L.P. 185 at 189. 508 John D. Wilson, "Re-thinking Penalties for Corporate Environmental Offenders: A View of the Law Reform Commission of Canada's Sentencing in Environmental Cases" (1986), 31 McGill L.J. 313. 509 Wilson, note 508 at 325. 510 Wilson, note 508 at 321. 511 Puri, note 478 at 614. 512 Criminal Code, note 7. 513 Competition Act, note 74. 514 Canada Business Corporations Act, R.S.C. 1985, c. C-44 [Canada Business Corporations Act]. 515 Ontario Business Corporations Act, R.S.O. 1990, c.B.16 [Business Corporations Act (Ont.)]. 516 Income Tax Act, R.S.C. 1985, c.1 (5th Supp.) [Income Tax Act]. 517 John Swaigen and David Estrin, Environment on Trial. A Guide to Ontario Environmental Law and Policy, 3 ed. (Toronto: Emond Montgomery Publications Ltd., 1993) at 454. 518 Sidney A. Shapiro and Randy S. Rabinowitz, "Punishment Versus Cooperation in Regulatory Enforcement: A Case Study of OSHA" (1997), 49 Admin. L. Rev. 713 at 762. 519Verhulst, note 140. 520 Offence Act (B.C.), note 430. 521 Verhulst, note 140 at 282. 522 Public Health Act (B.C.), note 137. Sentencing is addressed under Division 3 (sentencing) of Part 8 (administrative penalties, offences and sentencing) of the Act, and contains sections on the purposes and principles of sentencing for regulatory offences: s.105 determining purpose; s.106 purposes of sentence. This legislation went into effect on 31 March 2009. 623 Verhulst, note 140 at 282. 524 Verhulst, note 140 at 282. 525 Offence Act (B.C.), note 430. 526 Under this approach, each province would be required to amend their respective provincial offences legislation of general application. In Ontario, the Provincial Offences Act, note 3, is the
321 governing statute. The desirability of providing a statement of sentencing purposes and principles in a statute of general application, as opposed to one that does not apply to other statutes, as is the case with the Public Health Act (B.C.), note 137, is discussed further in Chapter 6. 527 Verhulst, note 140 at 283. 528 Verhulst, note 140, at 283 cites in this regard Richard Johnstone [From Fact to Fiction - Rethinking OHS Enforcement (Australia: National Research Center for OHS Regulation, July 2003, Working Paper No. 11) who argues that regulated persons undergo three stages: (1) committing, by senior management, to compliance (2) learning what procedures, technologies, etc are necessary for compliance (3) institutionalizing compliance by implementing risk management systems and normalizing compliance as part of corporate behavior. 529 Verhulst, note 140 at 283. 530 Verhulst, note 140 at 283. 531 Verhulst, note 140 at 287. This practice has originated in the United Kingdom where counsel are encouraged to submit a "Friskies Schedule" which is a joint submission between the Crown and defence stating those factors which are agreed as being the "relevant mitigating and aggravating features that the court should take into account." The name is derived from R. v. Friskies Petcare (UK) Ltd., [2000] EWCA Crim 95, [2000] 2 Cr App R (S) 401, [2000] E.W.J. J. No. 1568 at para. 2 (QL) (CCA.) [Friskies Petcare (U.K.) Ltd.]. The Court added that it strongly recommended this procedure be routinely adopted in Health and Safety Act prosecutions. It has become an accepted practice in the Crown Court and Magistrates' Courts to produce "Friskies Schedules": see Neil Parpworth, "Environmental Offences: The Need for Sentencing Guidelines in the Crown Court," [2009] J.P.L. 18 at 28; Martha Grekos, "Environmental Fines - All Small Change?", [2004] J.P.L. 1330 at 1332-1333. 532 Verhulst, note 140 at 288. 533 Verhulst, note 140 recommends lengthening the period of probation orders to at least three years in order to give effect to this sentencing principle. This period is the current maximum period that probation may be imposed under the Criminal Code, note 7, s.732.2(2)(b). Under the British Columbia Offence Act, note 430, s.89(4), probation orders are currently limited to a maximum term of six months; under the Ontario Provincial Offences Act, note 3, s.72(4), probation may be imposed for up to 2 years.. fe34 Verhulst, note 140 at 291. 535 Verhulst, note 140 at 292. 536 Offence Act (B.C.), note 430. 537 Criminal Code, note 7. 538 Verhulst, note 140 at 295. 539 Public Health Act (B.C.), note 137. 540 Public Health Act (B.C.), note 137, s. 105(1). 541 Public Health Act (B.C.), note 137, s. 105(2). 542 Public Health Act (B.C.), note 137, s.106. 543 Public Health Act (B.C.), note 137, s.107. 544 Public Health Act (B.C.), note 137, s.108. 545 Public Health Act (B.C.), note 137, s. 105(3). 546 Public Health Act (B.C.), note 137, s.106(1)(a) 547 Public Health Act (B.C.), note 137, s.106(1)(b) 548 Public Health Act (B.C.), note 137, s. 106(2). 549 Public Health Act (B.C.), note 137, s. 106(3). 550 Public Health Act (B.C.), note 137, s. 106(4). 551 Public Health Act (B.C.), note 137. 552 K.E. Jull, Consultation on Market Surveillance Administrator Proceedings Before the Alberta Utilities Commission (Bulletin 2009-15) (Discussion Paper, June 30, 2009) 553 Alberta Utilities Commission Act, S.A. 2007, c.A-37.2 [Utilities Commission Act (Ma.)]. 554 Utilities Commission Act (Alta.), note 553, s.63(2)(a). 555 Jull, note 552 at 14. 556 Jull, note 552 at 14.
322 557 Office of the Superintendent of Financial Institutions Act, R.S.C. 1985, c.18 [Office of the Superintendent of Financial Institutions Act]. 558 Office of the Superintendent of Financial Institutions Act, note 557, s.25(1)(b). 559 Office of the Superintendent of Financial Institutions Act, note 557, s.25(1)(c). 560 Office of the Superintendent of Financial Institutions Act, note 557, s.25(2)(a). 561 Office of the Superintendent of Financial Institutions Act, note 557, s.25(2)(b). 562 Office of the Superintendent of Financial Institutions Act, note 557, s.26. 563 Securities Act (Ont), note 81. 564 Securities Act (Ont), note 81, s. 122(1). 565 Jull, note 552 at 14. 566 Jull, note 552 gives the example of theft under $5,000, contrary to s.334 of the Criminal Code, note 7, to illustrate the difference in penalty provisions based on the procedure that the prosecutor elects to follow: where the prosecutor elects to proceed by indictment, the maximum penalty is imprisonment for two years; where the prosecutor elects to proceed by summary conviction, the maximum penalty is a fine of $2,000, or imprisonment for six months, or both. 567 Verhulst, note 140 at 282. 568 Criminal Code, note 7. 569 Ontario Law Commission, The Modernization of the Provincial Offences Act. (Consultation Paper, November 2009) (Toronto: Law Commission of Ontario, 2009) at 17. 570 Keith, note 418. 571 Pollock, note 465 at 117. 572 Pollock, note 465 at 117. 573 Pollock, note 465 at 120. See further O'Hear, note 296 at 197-202. 574 Pollock, note 465 at 126. 575 Pollock, note 465 at 126. 576 United Keno Hill Mines Ltd., note 456. 577 Pollock, note 465 at 128. 578 Pollock, note 465 at 132. 579 Pollock, note 465 at 132. 580 See further in this regard Arnold W. Reitze, "Criminal Enforcement of Pollution Control Laws" (2002-2003), 9 EnvtI. Law. 1; Kerri Ann Riley, "United States v. Eidson: 'Navigating' The Way Toward Stiffer Penalties for Environmental Crimes" (1998), 9 Vill. EnvtI. L.J. 605; Jane F. Barrett, "'Green Collar' Criminals: Why Should They Receive Special Treatment?" (1997), 8 Md. J. Contemp. Legal Issues 107; Mark A. Cohen, "Environmental Crime and Punishment: Legal/Economic Theory and Empirical Evidence on Enforcement of Federal Environmental Statutes" (1992), 82 J. Crim. L. & Criminology 1054; David D. Mix, "The Misdemeanor Approach to Pollution Control" (1968), 10 Ariz. L. Rev. 90. 581 Charles J. Babbitt, Dennis C. Cory, and Beth L. Kruchek, "Discretion and the Criminalization of Environmental Law" (2004), 15 Duke EnvtI. L. & Pol'y F. 1 at 11. 582 Babbitt, note 580 at 37. 583 Jane Barrett, "Sentencing Environmental Crimes Under the United States Sentencing Guidelines-A Sentencing Lottery?" (1992), 22 EnvtI. L 1421 at 1427-1428. One of the enumerated grounds is public welfare. For such cases, the court may increase the sentence above the guidelines range. On the other hand, negligent conduct may be used to justify a downward departure in sentencing: see Lisa A. Harig, "Ignorance is not Bliss: Responsible Corporate Officers Convicted of Environmental Crimes and the Federal Sentencing Guidelines" (1992), 42 Duke L.J. 145 at 159-160. *84 Barrett, note 583 at 1448. 585 United States v. Ellen, 961 F. 2d 462 (4th Cir., 1992), cert, denied, 113 S.Ct. 217 (1992)
Ellen, note 585 at 468. 587 O'Hear, note 296 at 137. 588 O'Hear, note 296 at 138-139. 589 O'Hear, note 296 at 217. 590 O'Hear, note 296 at 218.
323 591 O'Hear, note 296 at 219. 592 O'Hear, note 296 at 220. 593 O'Hear, note 296 at 265. 594 Kepten D. Carmichael, "Strict Criminal Liability for Environmental Violations: A Need for Judicial Restraint" (1996), 71 Ind. L. J. 729 at 742. 595 Carmichael, note 594. 596 Robert H. Iseman, "The Criminal Responsibility of Corporate Officials for Pollution of the Environment" (1972), 37 Alb. L. Rev. 61 at 69 597 Morissette v. United States, 342 U.S. 246 at 256 (1952) [Morissette]. 598 Ann P. Bartel and Lacy Glenn Thomas, "Direct and Indirect Effects of Regulation: A New Look at OSHA's Impact" (1985), 28 Journal of Law & Economics 1 at 1-2. Eric Schlosser, Fast Food Nation. The Dark Side of the Ail-American Meal (New York: Perennial Press, 2002) at 179, comments that in the 1980's the "typical American employer" could expect an OSHA inspection about once every 80 years. 599 Steven M. Kowal, "Defending Food and Drug Criminal Cases in a New Era of Criminal Enforcement" (1991), 46 Food Drug Cosm. L. J. 273. 600 United States Sentencing Commission, Guidelines Manual (Washington D.C, United States Sentencing Commission, 1995), Part N. 601 United States Sentencing Commission, note 600, Part Q. 602 United States Sentencing Commission, note 600, PartT. 603 George Warren, Traffic Courts (Boston: Little, Brown and Company, 1942) at 159. 604 Thomas A. Garrett and Gary A. Wagner, "Red Ink in the Rearview Mirror: Local Fiscal Conditions and the Issuance of Traffic Tickets" (2009), 52 J. of Law and Econ. 71. Violations of traffic laws are the most common form of reported crime in the United States: see Laurence H. Ross, "Traffic Law Violation: A Folk Crime" (1960-61), 8 Soc. Probs. 231. 605 Canadian Environmental Protection Act, note 135. 606 Public Health Act (B.C.), note 137. 607Verhulst, note 140. 608 Offence Act (B.C.), note 430. 609 Public Health Act (B.C.), note 137, s. 105(1). 610 Friskies Petcare (U.K.) Ltd., note 531. 611 Health and Safety at Work etc. Act. 1974 (c.37) [Health and Safety at Work Act (U.K.)]. 612 Friskies Petcare (U.K.) Ltd., note 531 at [QL] para. 2. 613 Friskies Petcare (U.K.) Ltd., note 531 at [QL] para. 2. 614 R. v. F. Howe & Son (Engineers) Ltd., [1998] EWCA Crim 3154, [1999] 2 All E.R. 249, [1999] 2 Cr. App. R. (S.) 37 (CCA.) [F. Howe & Son (Engineers) Ltd.] 615 Friskies Petcare (U.K.) Ltd., note 531 at [QL] para. 2. 616 Health and Safety at Work Act (U.K.), note 611. 617 F. Howe & Son (Engineers) Ltd., note 614 at [Cr. App. R. (S.)] 43. 618 F. Howe & Son (Engineers) Ltd., note 614 at [Cr. App. R. (S.)] 43. 619 F. Howe & Son (Engineers) Ltd., note 614 at [Cr. App. R. (S.)] 43. 620 F. Howe & Son (Engineers) Ltd., note 614 at [Cr. App. R. (S.)] 43. 621 F. Howe & Son (Engineers) Ltd., note 614 at [Cr. App. R. (S.)J 43. 622 F. Howe & Son (Engineers) Ltd., note 614 at [Cr. App. R. (S.)] 43. 623 F. Howe & Son (Engineers) Ltd., note 614 at [Cr. App. R. (S.)] 44. 624 F. Howe & Son (Engineers) Ltd., note 614 at [Cr. App. R. (S.)] 44. 625 F. Howe & Son (Engineers) Ltd., note 614 at [Cr. App. R. (S.)] 44-45. 626 According to the United Kingdom Sentencing Guidelines Council, Guideline Judgments Case Compendium (London: Sentencing Guidelines Secretariat, 2005) 100-101, F. Howe & Son (Engineers) Ltd., note 614, remains the leading guideline judgment on sentencing for health and safety offences. Reference is made to an additional decision, R. v. Rolico Screw & Rivet Co. Ltd., [1999] 2 Cr. App. R. (S.) 436 (CCA.) [Rolico Screw & Rivet Co. Ltd.], as supporting the principles from F. Howe & Son (Engineers) Ltd. For a more recent application of the F. Howe & Son (Engineers) Ltd. case, see R. v. Balfour Beatty Rail Infrastructure Services Ltd., [2006] EWCA Crim 1586, [2007] Bus. L.R. 77 (CCA.) [Balfour Beatty Rail Infrastructure Services Ltd.]
324 where a breach of the Health and Safety at Work Act (U.K.), note 611, involving a rail disaster where over 100 passengers were injured and four persons were killed, resulted in a fine of L 10 million (U.K.) being reduced on appeal to L 7.5 million (U.K.). 627 Friskies Petcare (U.K.) Ltd., note 531. 628 F. Howe & Son (Engineers) Ltd., note 614. 629 Thomas, note 311 at 468. 630 Thomas, note 311. Indeed, the Court in F. Howe & Son (Engineers) Ltd., note 614 at [Cr. App. R. (S.)] 45 observed that the Magistrates properly declined jurisdiction to hear the case since, on a summary trial, an offence under the Health and Safety at Work Act (U.K.), note 611, is punishable by a maximum fine of L. 20,000 (U.K.), whereas on indictment the amount of the fine is unlimited. As a result, in the Court's view, magistrates "should always think carefully" prior to accepting jurisdiction in health and safety at work cases, where it is arguable that the monetary penalty may exceed the limit of the magistrates' jurisdiction, or where death or serious injury are involved. 631 Thomas, note 311 at 467-468. 632 Andreas Kapardis, Sentencing by English Magistrates as a Human Process (Nicosia: Asselia Publishers, 1985) at 15. 633 United Kingdom Sentencing Guidelines Council, Magistrates' court sentencing guidelines (12 May 2008) (London: Sentencing Guidelines Secretariat, 2008). A number of updates were subsequently published throughout 2008 and 2009. 634 United Kingdom Sentencing Guidelines Council, Corporate manslaughter and health and safety offences causing death (9 February 2010) (London: Sentencing Guidelines Secretariat, 2010). For a recent article discussing these sentencing guidelines, see Neil Davies, "Sentencing Guidance: Corporate Manslaughter and Health and Safety Offences Causing Death - Maintaining the Status Quo?" [2010] 5 Crim.L.R. 402. 635 Douglas Acres, "Consistently achieving our sentencing aims" in Donald C. Pennington and Sally Lloyd-Bostock, eds., The Psychology of Sentencing (Oxford: Short Run Press, 1987) at 61. 636 Acres, note 635. 637 Peter Cartwright, Consumer Protection and the Criminal Law (Cambridge: Cambridge University Press, 2001) at 71. 638 Cartwright, note 637 at 62. 639 Hood, note 318 at 155-156. See further Roger Hood, Sentencing in Magistrates' Courts: a study in variations of policy (London: Stevens & Sons Limited, 1962) at 123-127; Roger Hood, Sentencing the Motoring Offender (London: Heinemann, 1972) 148; Kapardis, note 632 at 7. 640 R. v. Severn Trent Water Ltd. (1996), 8 J. Envtl. L.Rev. 389 (Crwn Ct.) [Severn Trent Water Ltd.] 641 Water Industry Act 1991, (c.56) [Water Industry Act (U.K.)]. 642 Severn Trent Water Ltd., note 640. Interestingly, this judgment does not appear to be published in any of the major sentencing reports. The case involved a contaminant which entered the water supply system owned and managed by the defendant; a substantial part of the Worcester area was affected as a result. Fines totaling L45,000 (U.K.) were imposed. 643 R. v. Milford Haven Port Authority, [2000] 2 Cr. App. R. (S.) 423, [2000] E.W.J. No. 1731 (QL) CCA.) [Milford Haven Port Authority]. £ " Water Resources Act, 1991 (c.57) [Water Resources Act (U.K.)]. 645 The process by which the Sentencing Advisory Panel put forward its advice to the Court of Appeal in Milford Haven Port Authority, note 643, is discussed by Neil Parpworth, "Environmental Offences: Views from the Sentencing Advisory Panel for England and Wales," [2000] 8 Env. Liability 91. See too Parpworth, "The Advice on Environmental Offences from the Sentencing Advisory Panel: The Court of Appeal's Response," [2000] 8 Env. Liability 159. 646 Milford Haven Port Authority, note 643 at [Cr. App. R. (S.)] 425. 647 Sentencing Advisory Panel, Environmental Offences (1 March 2000) [http://www.sentencing- guidelines.gov. uk./advice/index.html]. Crimes and Disorder Act, 1998 (c.37), s.80 [Crimes and Disorder Act (U.K.)]. 649 There were five offences on which the Panel was directed to advise: (1) integrated pollution control and air pollution control - carrying on a prescribed process without, or in breach of,
325 authorization, contrary to the Environmental Protection Act 1990 (c.43), s.23 [Environmental Protection Act (U.K.)]; (2) depositing, recovering or disposing of controlled waste without a site licence or in breach of its conditions, contrary to the Environmental Protection Act (U.K.), s.33; (3) polluting controlled waters, contrary to the Water Resources Act 1991, note 644, s.85; (4) abstracting water illegally, contrary to the Water Resources Act 1991, note 644, s.24; and (5) failing to meet packaging, recycling and recovery obligations, or to register or to provide information, contrary to the Environment Act 1995 (c.25), s.93 [Environment Act (U.K.)] and Producer Responsibility Obligations (Packaging Waste) Regulations 1997, S.I. 1997 (No. 648) [Producer Responsibility Obligations (Packaging Waste Regulations (U.K.)]. While these categories of offences involve pollution of controlled waters and inappropriate disposal of waste, it has been held that environmental offences in a different category should attract "a similar judicial process" in terms of forging "a framework of consistency in sentencing with appropriate guidelines": see R v. Yorkshire Water Services Ltd., [2001] EWCA Crim 2635 at para. 18, [2002] 2 Cr. App. R. (S.) 13 (CCA.) [Yorkshire Water Services Ltd.], considering the offence of supplying water unfit for human consumption, contrary to the Water Industry Act (U.K.), note 641, s.70(1). 650 Sentencing Advisory Panel, Environmental Offences (1 March 2000) [http://www.sentencing- guidelines.gov.uk./advice/index.html] at 1. Sentencing Advisory Panel, note 650 at 2. 652 Sentencing Advisory Panel, note 650 at 1. 653 Sentencing Advisory Panel, note 650 at 3, para. 6. 654 Sentencing Advisory Panel, note 650 at 3, para. 7. 655 Sentencing Advisory Panel, note 650 at 3, para. 8. While this factor should increase the sentence, the Panel added that it was not to do so to such an extent that would be "disproportionate to the facts of the facts." 656 Sentencing Advisory Panel, note 650 at 4, para. 11. 657 Sentencing Advisory Panel, note 650 at 4, para. 12. 658 Sentencing Advisory Panel, note 650 at 4, para. 14. 659 Sentencing Advisory Panel, note 650 at 5, para. 16. 660 Sentencing Advisory Panel, note 650 at 5, para. 17. 661 Sentencing Advisory Panel, note 650 at 7, para. 29. See further Neil Parpworth, "Environmental Offences: Enforcement, Prosecution and Sentencing" (2000), 164 J.P. 596, discussing the process by which the Sentencing Advisory Panel framed its proposal for advice to the Court of Appeal. 662 F. Howe & Son (Engineers) Ltd., note 614. 663 Milford Haven Port Authority, note 643 at [Cr. App. R. (S.)] 429. 664 Milford Haven Port Authority, note 643 at [Cr. App. R. (S.)] 429. 665 Milford Haven Port Authority, note 643 at [Cr. App. R. (S.)] 435, [2000] E.W.J. No. 1731 (QL) (CCA.). 66 This fine reduction amounts to more than 80% from that imposed at trial, a percentage decrease that has been recently exceeded in R v. Cemex Cement Ltd., [2007] EWCA Crim 1759, [2008] 1 Cr. App. R. (S.) 80 (CCA.) [Cemex Cement Ltd.], a pollution case, where the L. 400,000 (U.K.) fine imposed at trial was varied on appeal to L. 50,000 (U.K.), amounting to a reduction of over 87%: see Neil Parpworth, note 526 at 19. Reference is also made to R v. Anglian Water Services Ltd., [2003] EWCA Crim 2243, [2004] 1 Cr. App. R. (S.) 62 (CCA.) [Anglian Water Services Ltd.], where a fine of L. 200,000 (U.K.) for discharging sewage into a river was reduced by 70% on appeal to L. 60,000 (U.K.). 667 Milford Haven Port Authority, note 643 at [Cr. App. R. (S.)] 429. 668 Martin Davies, "Case Notes, Sentencing for Environmental Offences: R v. Milford Haven Port Authority, unreported, Court of Appeal, 16 March 2000" (2000), 2 Envtl. L. Rev. 195 at 197. 669 Davies, note 668 at 197. 670 Neil Parpworth, "The Advice on Environmental Offences from the Sentencing Advisory Panel: The Court of Appeal's Response," note 645 at 166. 671 Davies, note 668 at 200.
326 672 Rik Navarro and David Stott, "A Brief Comment Sanctions for Pollution" (2002), 14 J. Envtl. L. 299. 673 Neil Parpworth, "The Advice on Environmental Offences from the Sentencing Advisory Panel: The Court of Appeal's Response," note 645 at 167. 674 Neil Parpworth, Katharine Thompson, and Brian Jones, "Environmental Offences: Utilizing Civil Penalties," [2005] J.P.L. 560 at 580. The authors point out that the rejection of the Sentencing Advisory Panel's advice in Milford Haven Port Authority, note 643, does not preclude the Court of Appeal in a subsequent decision from acting on this advice. Indeed, in a recent judgment, R. v. Kelleher, [2009] Crim. L.R. 369, [2008] EWCA Crim 3055, [2009] 2 Cr. App. R. (S.) 25 (CCA.) [Kelleher], a sentence appeal case where the defendant was convicted of conspiracy to deposit controlled waste, contrary to the Environmental Protection Act 1990 (c.43), the Court did make reference to the Advice to the Court of Appeal issued by the Sentencing Advisory Panel on environmental offences. See further Neil Parpworth and Katharine Thompson, "Fly-tipping: a real environmental crime," [2009] JPL 1133; Neil Parpworth, "The Advice on Environmental Offences from the Sentencing Advisory Panel: The Court of Appeal's Response," note 645 at 166. 675 Paula de Prez, "Beyond judicial sanctions: the negative impact of conviction for environmental offences" (2000), 2 Envtl. L Rev. 11 at 12. See further Paula de Prez, "Excuses, excuses: the ritual trivialization of environmental prosecutions" (2000), 12 J. Envtl. L. 65. 676 Bridget M. Hutter, The Reasonable Arm of the Law? The Law Enforcement Procedures of Environmental Health Officers (Oxford: Clarendon Press, 1988) at 77. 677 Hutter, note 676 at 183 678 Michael Watson, "Environmental Offences: the Reality of Environmental Crime" (2005), 7 Envtl. L. Rev. 190 at 199. 679 Parpworth, note 661 at 598. 880 Cemex Cement Ltd., note 666. 881 Milford Haven Port Authority, note 643. 882 Anglian Water Services Ltd., note 666. 883 Parpworth, note 531 at 28; Neil Parpworth, "Environmental Offences: Making the Punishment Fit the Crime" (2003), 167 J.P. 704 at 706. 684 Parpworth, note 531 at 30-31. 885 Parpworth, note 531 at 29. However, Richard Kimblin, "Environmental Offences - An Update and Reply", [2008] J.P.L. 926 at 929 observes that while the results in the Court of Appeal cases discussed by Parpworth may lead one to conclude that fresh guidelines would be of benefit, "the reality is that all sentencing is a task of measuring facts and circumstances, based on wide experience. When that goes wrong, there is an appellate court to put it right." See further Richard Kimblin, "Penalties in regulatory crime" (2005) 17 Env Law & Management 169. 686 R. v. Thames Water Utilities Ltd., [2010] EWCA Crim 202 [Thames Water Utilities Ltd.]. 687 Thames Water Utilities Ltd , note 686, para. 38. 688 Thames Water Utilities Ltd , note 686, para. 39. 689 Thames Water Utilities Ltd , note 686, subpara. 39 vii. 690 Thames Water Utilities Ltd , note 686, subpara. 39 xi. 891 Thames Water Utilities Ltd , note 686, para. 53. 892 Thames Water Utilities Ltd, note 686, subpara. 54 (ii). 693 Thames Water Utilities Ltd , note 686, subpara. 54(iv). 694 Thames Water Utilities Ltd , note 686, subpara. 54(v). 695 Anglian Water Services Ltd., note 666. 696 Thames Water Utilities Ltd , note 686, para. 52. 697 Thames Water Utilities Ltd , note 686, para. 52 698 Anglian Water Services Ltd., note 666. 699 Thames Water Utilities Ltd, note 686, para. 52. To this end it should be noted that only did the Court consider that consistency of fine level would therefore be difficult to achieve between cases, as would consistency of proportionality between the fine and the gravity of the offence, but that such consistency was "not a primary aim of sentencing in cases of this type": see subpara.39(x). See further Neil Parpworth, "Sentencing for environmental offences: a principled
327 approach," [2010] 1 Env. Liability 20, for a recent analysis of the Thames Water Utilities Ltd. decision. 700 United Kingdom Treasury, Reducing administrative burdens: effective inspection and enforcement (Hampton Review- Final Report) March 2005 (www.hm-treasury.gv.uk/hampton). 701 United Kingdom Treasury, note 700 at 6, para. 16. 702 United Kingdom Treasury, note 700 at 6, para. 17. 703 United Kingdom Treasury, note 700 at 6, para. 17. 704 United Kingdom Treasury, note 700 at 38, para. 2.74. 705 United Kingdom Treasury, note 700 at 38 [Recommendation 6]. 706 United Kingdom Treasury, note 700 at 38 [Recommendation 7]. 707 Raymond W. Mushel, "Reflections Upon American Environmental Enforcement Experience As It May Relate To Post-Hampton Developments in England and Wales" (2007), 19 J. Envtl. L. 201 at 213. 708 United Kingdom, Department for Business Enterprise & Regulatory Reform, Regulatory Justice: Sanctioning in a post-Hampton World (Discussion Paper, December, 2005) [http://www.cabinetoffice.gov.uk/regulation/documents/pdf/penalties] 09 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 708 at 3. 710 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 708 at 13. 711 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 708 at 14. It was reported by the Department for Constitutional Affairs that a magistrate typically presides over a health and safety offence every 14 years, and an environmental case every seven years. The environmental "expertise" of judges or magistrates is therefore likely to be "very limited", and this lack of exposure is "largely replicated" in the Crown Court: see Neil Parpworth, "Environmental Offences: The Need for Sentencing Guidelines in the Crown Court," [2008] J.P.L. 18 at 29. 712 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 708 at 14-15. 713 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 708 at 15. 714 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 708 at 26. See further Andrew Waite, "Implementing Environmental Legislation: The Critical Role of Enforcement and Compliance: A New Garden of Eden? Stimuli to Enforcement and Compliance in Environmental Law" (2007), 24 Pace Envtl. L. Rev. 343 at 351-354; Terence Moran, "Magistrates' Courts and Environmental Regulators - Attitudes and Opportunities" (2005), 4 Journal of Environmental Health Research [http://www.cieh.org/JEHR/magistrates- _environmental_regulators.html].Michael Watson, "Low Fines for Environmental Offences? Blame the Regulators not the Courts" (2003), 167 J.P. 50 at 52, argues that the "underlying problem" is the reluctance of regulatory bodies to bring prosecutions, and that if this were done more frequently "magistrates would be better equipped to treat environmental offences as serious crimes." Another note of caution is expressed by Richard Kimblin, "Environmental Offences - An Update and Reply", note 685 at 928, who observes that it is only a very small proportion of penalties that exceed L. 100,000 (U.K.). The Court of Appeal adverted to this factor in R. v. Clifton Steel Ltd., [2007] EWCA Crim 1537 at para. 22 [Clifton Steel Ltd.] where it stated, "We do not accept that one gains any great advantage from a consideration of averages." 715 United Kingdom, Department for Business Enterprise & Regulatory Reform, Regulatory Justice: Sanctioning in a post-Hampton World (Consultation Document, May 2006) [http://www.cabinetoffice.gov.uk/regulation/documents/pdf/penalties] For a helpful review of this report, see Neil Parpworth, "Sanctioning for regulatory non-compliance in England: the consultation document," [2006] 4 Env. Liability 147. 716 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 715 at 8. 717 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 715 at 26. A question for consultation, in fact, asked whether "sentencing guidance" should be prepared for areas of regulatory non-compliance. 718 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 715 at 41. 719 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 715 at 90. 720 United Kingdom, Department for Business Enterprise & Regulatory Reform, Regulatory Justice: Making Sanctions Effective (Final Report, November, 2006) [http://www.cabinetoffice.gov.uk/regulation/penalties]
328 721 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 6. 722 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 27. 723 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 40 [Recommendation 3]. 24 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 39. The Sentencing Guidelines Council subsequently acknowledged the request from the Department of Business, Enterprise and Regulatory Reform to develop such guidelines, given that the Government had accepted all of the Macrory Review's recommendations. However, in the minutes of the Council's meeting on 12 October 2007, it was indicated that a general guideline for regulatory offences could not be developed within the work program for 2007-2008 due to the number of other high priority projects. The Council did publish in 2008 Magistrates' Court Sentencing Guidelines, but these do not address regulatory offences specifically. The reluctance of the Sentencing Guidelines Council to act further on drafting guidelines for regulatory offences may also reflect the fact that legislation was being considered, the Coroners and Justice Bill (2009), which proposes under Part 4, Chapter 1, to establish, in the place of the Sentencing Advisory Panel and the Sentencing Guidelines Council, a Sentencing Council for England and Wales, with the power to draft such sentencing guidelines. The legislation was subsequently enacted as the Coroners and Justice Act 2009 (c.25) [Coroners and Justice Act (U.K.)]. It came into force on 1 February 2010. 725 United Kingdom, Department for Business, Enterprise & Regulatory Reform, Better Regulation: Next Steps on Regulatory Reform (July, 2007) [http://www.cabinetoffice.gov.uk/regulation/]. 26 United Kingdom, Department for Business, Enterprise & Regulatory Reform, note 725 at 8. 727 Regulatory Enforcement and Sanctions Act 2008 (c.13) [Regulatory Enforcement and Sanctions Act (U.K.)]. 728 Regulatory Enforcement and Sanctions Act (U.K.), note 727, Part 3 sets out these civil sanctions, including fixed monetary penalties, variable monetary penalties, restoration notices, compliance notices, stop notices, and enforcement undertakings. See United Kingdom Department for Business Enterprise and Regulatory Reform, Regulatory Enforcement and Sanctions Act 2008. Guidance to the Act (July 2008). [http://berr.gov.uk./bre/inspection- enforcement/implementing-principles/sanctions-bills/page44047.html] Professor Macrory discusses the key features of the Act, as well as the recommendation to enact administrative penalties, in "New approaches to regulatory sanctions" (2008), 20 Env. Law & Management 210; "Reforming Regulatory Sanctions - A Personal Perspective" (2009), 10 Envtl. L.Rev. 69. See further Carolyn Abbott, "The Regulatory Enforcement and Sanctions Act 2008" (2009), 10 Envtl. L. Rev. 38; Michael Faure, Anthony Ogus and Niels Philipsen, "Enforcement Practices for Breaches of Consumer Protection Legislation" (2008), 20 Loy. Consumer L. Rev. 361; Neil Parpworth, Katharine Thompson, and Brian Jones, "Environmental Offences: Utilizing Civil Penalties," note 677; Martha Grekos, "Environmental Fines-All Small Change?", [2004] J.P.L. 1330; I. Dennis, "Regulation and criminal justice," [2006] Crim. L.R. 675; Michael Watson, "The enforcement of environmental law: civil or criminal penalties?" (2005), 17 Env. Law & Management 3; Adam Crawford, "Governing Through Anti-Social Behaviour. Regulatory Challenges to Criminal Justice", British Journal of Criminology 0:azp041 (2009). 729 Coroners and Justice Act (U.K.), note 724. 730 J. Dara Lynott, "The Detection and Prosecution of Environmental Crime," [2008] 1 Judicial Studies Institute Journal 185 at 207. 731 Andrew Ash worth, "Sentencing Guidelines and the Sentencing Council," [2010] 5 Crim.L.R. 389 at 399 comments that "The use of guidelines to enhance consistency of approach to sentencing is an essential aspect of the rule of law." The author was a member of the Sentencing Advisory Panel from 1999 to 2010. It seems curious that the area of regulatory offences has yet to attract to more attention from the Sentencing Council, given the volume of regulatory offences heard by the courts. See further Andrew Ashworth, Sentencing and Criminal Justice, 5th ed. (Cambridge: Cambridge University Press, 2010) at 55-61 discussing the Sentencing Advisory Panel, the Sentencing Guidelines Council and the Sentencing Council.
329 732 Victoria Occupational Health and Safety Act 1985, No. 10190/1985. [Occupational Health and Safety Act (Vict.)]The legislation was subsequently repealed by the Victoria Occupational Health and Safety Act 2004, No. 107/2004. [Occupational Health and Safety Act (Vict.)] 733 Neil Gunningham and Richard Johnstone, Regulating Workplace Safety: System and Sanctions (Oxford: Oxford University Press, 1999) at 277. 734 Gunningham, note 733 at 279. 735 Gunningham, note 733 at 286-287. 736 Gunningham, note 733 at 291-292. 737Ayres, note 16 at 35-36. 738Ayres, note 16 at 37-38. 739Ayres, note 16 at 49. 740 Australia Industry Commission, Work, Health and Safety. An Inquiry into Occupational Health and Safety (Report No. 47) (Melbourne: Australian Government Publishing Service, 1995) atxiii [Recommendation 15]. 41 Australia Industry Commission, note 740 at 114. 742 New South Wales Standing Committee on Law and Justice, Report on the Inquiry Into Workplace Safety (Report No. 8) (Sydney: Parliament of New South Wales Legislative Council, 1997) at 55. 743 New South Wales Standing Committee on Law and Justice, note 742 at 56. 744 New South Wales Standing Committee on Law and Justice, note 742 at 56 [Recommendation 13]. 745 New South Wales Occupational Health and Safety Amendment (Sentencing Guidelines) Bill 2000, No. 9/2000. [Occupational Health and Safety Amendment (Sentencing Guidelines)(N.S.W.)]. 746 Brian J. Preston, "Principled sentencing for environmental offences - Part 1: Purposes of sentencing" (2007), 31 Crim. L. J. 91. 747 Preston, note 746 at 93-94. 748 Brian J. Preston, "Principled sentencing for environmental offences - Part 2: Sentencing considerations and options" (2007), 31 Crim. L. J. 142 at 143. 749 Preston, note 748 at 163. 750 Preston, note 748 at 164. 751 Richard Johnstone, Occupational Health and Safety, Courts and Crime. The Legal Construction of Occupational Health and Safety Offences in Victoria (Sydney: The Federation Press, 2003) at 195. See also Richard Johnstone, The Court and the Factory. The Legal Construction of Occupational Health and Saftey Offences in Victoria (University of Melbourne: PhD dissertation, 1994) at 550 advocating the use of sentencing guidelines. 752 New Zealand Law Commission, The infringement system: a framework for reform (Wellington: Government of New Zealand, 2005). David Wilson, "Instant fines: instant justice? The use of infringement offence notices in New Zealand" (2001), 10 Social Policy Journal of New Zealand 72, comments that the use of infringement notices or instant fines has grown considerably following their introduction in New Zealand in 1968. 753 New Zealand Law Commission, note 752 at 7-8 [Recommendations 7-9]. 754 Civil Aviation Act 1990, 98/90 [Civil Aviation Act (N.Z.)]. 755 Building Act 2004, 72/04 [Building Act (N.Z.)]. 756 Dog Control Act 1996, 13/96 [Dog Control Act (N.Z.)]. 757 Fisheries Act 1996, 88/96 [Fisheries Act (N.Z.)]. 758 Health and Safety in Employment Act 1992, 96/92 [Health and Safety in Employment Act (N.Z.)]. Resource Management Act 1991, 69/91 [Resource Management Act (N.Z.)]. 760 New Zealand Law Commission, note 752 at 49. 761 Sentencing Act (N.Z.), note 351. 762 New Zealand Law Commission, note 752 at 49. 763 Sentencing Act (N.Z.), note 351, s.7(1)(a). 764 Sentencing Act (N.Z.), note 351,s.7(1)(b). 765 Sentencing Act (N.Z.), note 351,s.7(1)(e).
330 766 Sentencing Act (N.Z.), note 351,s.7(1)(f). 767 New Zealand Law Commission, note 752 at 50. 768 774957 Canada Ltee (Spraytech, Societe d'arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42 at para. 1(QL) [Spraytech]. 769Rabbitt, note 158. 770 The agencies were comprised of two consumer protection agencies: National Highway Traffic Safety Administration, Food and Drug Administration; two worker safety agencies: Occupational Safety and Health Administration, Mine Safety and Health Administration, and an environmental agency: Environmental Protection Agency: 7*Rabbitt, note 158 at 119. 772Rabbitt, note 158 at 119. 773 Neil Gunningham, Safeguarding the Worker. Job Hazards and the Role of the Law (Sydney: The Law Book Company Limited, 1984) at 325. 774Rabbitt, note 158 at 301. 775 Swaigen, note 38 at xxxv. 776 Wholesale Travel Group Inc., note 12 at [QL] para. 122. 777 Cotton Felts Ltd., note 26. 778 Occupational Health and Safety Act (Ont), note 80. 779 Friskies Petcare (U.K.) Ltd., note 531. 780 F. Howe & Son (Engineers) Ltd., note 614. 781 Health and Safety at Work Act (U.K.)], note 611. 782 Cotton Felts Ltd., note 26 at [QL] para. 19. 783 Provincial Offences Act (Ont), note 3, ss. 131(2), 139(2). 784 Cotton Felts Ltd., note 26. 785 R v. Ellis-Don Ltd., [1992] 1 S.C.R. 840, [1992] S.C.J. No. 33 (QL) [Ellis-Don Ltd.]. 786 Wholesale Travel Group Inc., note 12. 787 R. v. Ellis-Don Ltd., [1987] O.J. No. 1669 (QL) (Dist.Ct.) [Ellis-Don Ltd.] 788 R v. Ellis-Don Ltd. (1990), 1 O.R. (3d) 193, 42 O.A.C. 49, [1990] O.J. No. 2208 (Q.L.)[E///s- Don Ltd.]. 789 Ontario (Ministry of Labour) v.Bruno's Contracting (Thunder Bay) Ltd., 2008 ONCA495, 237 O.A.C. 311, [2008] O.J. No. 2442 (QL) [In Chambers] [Bruno's Contracting (Thunder Bay) Ltd.]. 790 R v. Henry Heyink Construction Ltd. (1999), 118 O.A.C. 22261, [1999] O.J. No. 238 (QL) [Henry Heyink Construction Ltd.]. 791 Inco Ltd., note 450. 792 R v. 663374 Ontario Ltd., [1991] O.J. No. 1631 (QL) (Gen.Div.) [663374 Ontario Ltd.]. 793 R v. Law's Contracting Co., [1988] O.J. No. 1872 (QL) (Dist.Ct.) [Law's Contracting Co.]. 794 R v. Di Franco, [2008] O.J. No. 879 (QL) (S.C.J.) [Di Franco]. The terms of probation are not specified in the judgment, although it was noted that the defendant was willing to take educational courses respecting "safety in the workplace." 795 R v. Stelco Inc., [2006] O.J. No. 3332 (QL) (S.C.J.) [Stelco Inc.]. 796 R v. Inco Ltd., [2001] O.J. No. 4938 (QL) (S.C.J.) [Inco Ltd.]. 797 R v. General Scrap Iron & Metals Ltd., 2003 ABCA 107, 327 A.R. 84, 13 Alta. L.R. (4th) 31, [2003] A.J. No. 390 (QL) [General Scrap Iron & Metals Ltd.]. The Court declined to grant leave to appeal against the judgment upholding the trial judge's decision: see R v. General Scrap Iron & Metals Ltd., 2003 ABQB 22, 322 A.R. 63, 11 Alta. L.R. (4th) 213, [2003] A.J. No. 13(QL) [General Scrap Iron & Metals Ltd.]. 798 R v. Tech-Corrosion Services Ltd. (1986), 68 A.R. 161, 43 Alta. L.R. (2d) 88, [1986] A.J. No. 40 (QL) (Q.B.) [Tech-Corrosion Services Ltd]. 799 R v. Fiesta Party Rentals Ltd., [2001] A.J. No. 1778 (QL) (Q.B.) [Fiesta Party Rentals Ltd.]. 800 R v. Trican Well Service Ltd., 2005 ABQB 904, 389 A.R. 236, [2005] A.J. No. 1720 (QL) YTrican Well Service Ltd.]. 801 R v. Peter Kiewit Sons Co. (1991), 84 Alta. L.R. (2d) 395, [1991] A.J. No. 302 (QL) (Q.B.) [Peter Kiewit Sons Co.]. 802 R v. Kal Tire Ltd., 2008 ABQB 551, [2008] A.J. No. 992 (QL) [Kal Tire Ltd.].
331 803 Occupational Health and Safety Act, R.S.A. 1980, c.O-2 [Occupational Health and Safety Act
804 R. v. Independent Automatic Sprinkler Ltd., 2009 ABQB 264, [2009] A.J. No. 476 (QL) [Independent Automatic Sprinkler Ltd]. Independent Automatic Sprinkler Ltd., note 804 at [QL] para. 10. 806 \ndependent Automatic Sprinkler Ltd., note 804 at [QL] para. 21. 807 R. v. Rose's Well Services Ltd. (c.o.b. Dial Oilfield Services), 2009 ABQB 266, [2009] A.J. No. 499 (QL) [Rose's Well Services Ltd.] 808 Rose's Well Services Ltd.], note 807 at [QL] para. 50. 809 Rose's Well Services Ltd.], note 807 at [QL] para. 102. 810 Rosin, note 152. 811 R. v. Pederson, 2000 SKQB 255, 194 Sask. R. 102, [2000] S.J. No. 401 (QL) [Pederson]. 812 R. v. Saskatchewan Wheat Pool (1999), 185 Sask. R. 114, [1999] S.J. No. 711 (QL) (Q.B.) [Saskatchewan Wheat Poof]. Saskatchewan Wheat Pool., note 812 at [QL] para. 32. 814 R. v. Sage Well Services Ltd., 2000 SKQB 259, 194 Sask. R. 65, [2000] S.J. No. 448 (QL) [Sage Well Services Ltd.] 815 R. v. Winnipeg (City), 2002 MBQB 96, 164 Man. R. (2d) 69, [2002] M.J. No. 122 (QL), affd 2002 MBCA 129, 170 Man. R. (2d) 13, [2002] M.J. No. 396 (QL) [Winnipeg]. 816 fi.v. Canadian National Railway Co., 2005 MBQB 71, 193 Man. R. (2d) 119, [2005] M.J. No. 104 (QL) [Canadian National Railway Co.]. 817 R. v. Nova Scotia Power Inc. (1999), 173 N.S.R. (2d) 179, [1999] N.S.J. No. 26 (QL) (S.C.) [Nova Scotia Power Inc.]. 818 R. v. Nova Scotia (Minister of Transportation and Public Works) 2003 NSSC 274, 277 N.S.R. (2d) 11, [2003] N.S.J. No. 558 (QL) [Nova Scotia (Minister of Transportation and Public Works)]. Nova Scotia (Minister of Transportation and Public Works), note 818 at [QL] para. 13. 820 R. v. Atcon Construction Inc. (1995), 162 N.B.R. (2d) 26, [1995] N.B.J. No. 217 (QL) (Q.B.), affd (1995), 168 N.B.R. (2d) 238, [1995] N.B.J. No. 427 (QL) (C.A.) [Atcon Construction Inc.]. 821 R. v. Hub Meat Packers Ltd. (2000), 226 N.B.R. (2d) 33, [2000] N.B.J. No. 133 (QL) (Q.B.) [Hub Meat Packers Ltd.]. 22 The four offences and respective fine amounts comprised: failing to provide immediate notification of an accident ($2,000), disturbing an accident scene ($2,000), failing to take reasonable precautions to safeguard the health of a worker ($7,500), and failing to insure that the machine was installed and repaired according to manufacturer specifications ($7,500). 823 Hub Meat Packers Ltd., note 821 at [QL] para. 17. 824 R. v. Corner Brook Pulp and Paper Ltd. (1990), 85 Nfld. & P.E.I.R. 64, [1990] N.J. No. 417 (QL) (S.C.) [Corner Brook Pulp and Paper Ltd.]. 825 R. v. Miller Shipping Ltd., 2007 NLTD 208, 272 Nfld. & P.E.I.R. 305, [2007] N.J. No. 412 (QL) [Miller Shipping Ltd.]. 826 Miller Shipping Ltd., note 825 at [QL] para. 57. 827Miller Shipping Ltd., note 825 at [QL] para. 60. 828 R. v. Miller Shipping Ltd., 2009 NLCA 57, [2009] N.J. No. 274 (QL) [Miller Shipping Ltd.]. 829 Wholesale Travel Group Inc., note 12. 830 Competition Act, note 74. 831 Combines Investigation Act, note 76. See Wholesale Travel Group Inc., note 12 at [QL] para. 142. 832 Cotton Felts Ltd., note 26 at [QL] para. 20. 833 R. v. Hoffmann-La Roche Ltd. (Nos. 1 and 2) (1981), 33 O.R. (2d) 694, [1981] O.J. No. 3075 at para. 130 (QL) (C.A.) [Hoffmann-La Roche Ltd.]. The Court noted in this decision that fines as high as $75,000 were upheld in a previous Combines Investigation Act, note 76 case: see R. v. St. Lawrence Corp. Ltd., [1969] 2 O.R. 305, [1969] O.J. No. 1326 (QL) (C.A.) [St. Lawrence Corp. Ltd.]. In another conspiracy to unduly lessen competition case, R. v. Armco Canada Ltd. (1977), 13 O.R. (2d) 32, [1976] O.J. No. 2066 (QL) (C.A.), leave to appeal refused, [1976] 1 S.C.R. vii
332 [Armco Canada Ltd.], fines up to $125,000 were approved on appeal. Both the St. Lawrence Corp. and Armco Canada decisions were referred to in Cotton Felts Ltd. 834 Combines Investigation Act, note 76. 835 Competition Act, note 74. 836 R. v. Browning Arms Co. of Canada, [1974] O.J. No. 502 (QL) (C.A.) [Browning Arms Co. of Canada]. 837 Browning Arms Co. of Canada, note .836 at para. 2. 838 R. v. Steinberg's LW(1976), 13 O.R. (2d) 293, [1976] O.J. No. 2201 (QL) (C.A.) [Steinberg's Ltd.]. 839 Steinberg's Ltd, note 838 at [QL] para. 32. 840 Motor Vehicle Safety Act, R.S.C. 1970, c.26 [Motor Vehicle Safety Act]. 841 R. v. Ford Motor Co. of Canada (1979), 49 C.C.C. (2d) 1, 1979] O.J. No. 964 (QL) (C.A.) [Ford Motor Co. of Canada]. 842 Ford Motor Co. of Canada, note 841 at [QL] para. 54. The maximum fine had been increased to $100,000 after the commencement of proceedings against the defendant. 843 Cotton Felts Ltd., note 26 at [QL] para. 19. 844 R. v. A. & M. Records of Canada Ltd. (1980), 51 C.P.R. (2d) 225, [1980] O.J. No. 3910 (QL) (Co.Ct.) [A. & M. Records of Canada Ltd.]. 845 R v. Epson (Canada) Ltd. (1987), 19 C.P.R. (3d) 195, [1987] O.J. No. 2708 (QL) (Dist.Ct.) [Epson (Canada) Ltd.]. M R. v. Epson (Canada) Ltd. (1990), 32 C.P.R. (3d) 78, [1990] O.J. No. 1003 (QL) (C.A.) [Epson (Canada) Ltd.]. 847 R v. Consumers Distributing Co. (1980), 57 C.C.C. (2d) 317,[1980] O.J. No. 290 (QL) (C.A.) [Consumers Distributing Co.] Consumers Distributing Co., note 847 at [QL] para. 30. 849 R v. Consumers Distributing Co., [1981] O.J. No. 304 (QL) (Co.Ct.) [Consumers Distributing Co.]. 850 R v. A.B.C. Ready-Mix Ltd. (1972), 17 C.P.R. (2d) 91, [1972] O.J. No. 367 (QL) (H.C.) [A.B.C. Ready-Mix Ltd]. 851 R v. Canadian Oxygen Ltd., [1991] O.J. No. 1797 (QL) (Gen.Div.) [Canadian Oxygen Ltd.]. In a related case, the court also imposed a fine of $1,700,000: see R v. Canadian Liquid Air Ltd., [1991] O.J. No. 1780 (QL) (Gen.Div.) [Canadian Liquid Air Ltd.]. 852 R v. Medi-Man Rehabilitation Products, Inc. (1998), 76 O.T.C. 143, [1998] O.J. No. 2709 (QL) j'S.C.J.) [Medi-Man Rehabilitation Products, Inc.] Medi-Man Rehabilitation Products, Inc , note 852 at [QL] para. 12. 854 R v. F.W. Woolworth Co, [1992] O.J. No. 1507 (QL) (Gen.Div.) [F.W. Woolworth Co.]. 855 R v. Canadian General Electric Co. (1977), 35 C.P.R. (2d) 210., [1977] O.J. No. 509 (QL) (H.C.) [Canadian General Electric Co.]. 856 R v. Total Ford Sales Ltd. (1987), 18 C.P.R. (3d) 404, [1987] O.J. No. 1421 (QL) (Dist.Ct.) [Total Ford Sales Ltd.]. Business Practices Act (Ont), note 67. 858 Ontario (Motor Vehicle Dealers Act, Registrar) v. Bechaalani, [2005] O.J. No. 4631 (QL) (S.C.J.) [Bechaalani]. 859 R v. Serfaty (2006), 81 O.R. (3d) 440, 212 O.A.C. 227, [2006] O.J. No. 2281 (QL) [Serfaty]. 860 Serfaty, note 859 at [QL] para. 32. 861 Serfaty, note 859 at [QL] para. 33. 862 Serfaty, note 859 at [QL] para. 35. 863 Serfaty, note 859 at [QL] para. 40. 864 Serfaty, note 859 at [QL] para. 41. 865 Serfaty, note 859 at [QL] para. 42. 866 Serfaty, note 859 at [QL] para.47. 867 R v. Mouyal, 2007 QCCQ 6141, [2007].Q.J. No. 6077 (QL) [Mouyaf]. 868 Mouyal, note 867 at [QL] para. 27. 869 Competition Act, note 74. 870 Criminal Code, note 7.
333 871 Mouyal, note 867 at [QL] para. 40. 872 R. v. Ocean Construction Supplies Ltd. (1974), 15 C.P.R. (2d) 224, [1974] B.C.J. No. 391 (QL) (S.C.) [Ocean Construction Supplies Ltd.}. Ocean Construction Supplies Ltd., note 872 at para. 23. 874 R. v. Ocean Construction Supplies Ltd. (1974), 22 C.P.R. (2d) 340, [1974] B.C.J. No. 118 (QL) (C.A.) [Ocean Construction Supplies Ltd.]. 75 Ocean Construction Supplies Ltd., note 874 at para. 16. 876 R. v. Muralex Distributions Inc. (1987), 15 B.C.L.R. (2d) 151, [1987] B.C.J. No. 1496 (QL) (Co.Ct.) [Muralex Distributions Inc.]. 877 ft v. T. Eaton Co. (1974), 17 C.C.C. (2d) 501, [1974] M.J. No. 13 (QL) (C.A.) [T. Eaton Co.]. 878 R. v. Shell Canada Products LW(1990), 65 Man. R. (2d) 1, [1990] M.J. No. 73 (QL) (C.A.) [Shell Canada Products Ltd.]. 879 R. v. Shell Canada Products Ltd. (1989), 25 C.P.R. (3d) 101, [1989] M.J. No. 742 (QL) (Q.B.) [Shell Canada Products Ltd.]. 880 R. v. Bidwell Food Processors Ltd. (1976), 29 C.P.R. (2d) 266, [1976] M.J. No. 272 (QL) (Q.B.) [Bidwell Food Processors Ltd.]. 881 R. v. Giftwares Wholesale Co. (1977), 36 C.C.C. (2d) 330., [1977] M.J. No. 307 (QL) (Co.Ct.) [Giftwares Wholesale Co]. 882 R. v. Giftwares Wholesale Co. (1979), 49 C.C.C. (2d) 322, [1979] M.J. No. 354 (QL) (Co.Ct.) [Giftwares Wholesale Co.] 883 R. v. Miller's T.V. Ltd. (1982), 19 Man. R. (2d) 259, [1982] M.J. No. 400 (QL) (Co.Ct.) [Miller's T.V. Ltd.]. 884 R. v. Aetna Insurance Co. et a/(1975), 13 N.S.R. (2d) 693, [1975] N.S.J. No. 425 (QL) (C.A.) [Aetna Insurance Co.]. 885 R. v. Aetna Insurance Co., [1978] 1 S.C.R. 731, [1977] S.C.J. No. 75 (QL) [Aetna Insurance Co.]. 886 R. v. S.S. Kresge Co. Ltd. (1975), 8 Nfld. & P.E.I. R. 415, [1975] P.E.I. J. No. 59 (C.A.) [S.S. Kresge Co. Ltd.]. 887 R. v. Mad Man Murphy Limited (1983), 45 Nfld. & P.E.I.R. 116, [1983] N.J. No. 168 at para.10 (QL) (Dist.Ct.) [Mad Man Murphy Limited]. 888 Wholesale Travel Group Inc., note 12 at [QL] para. 219. 889 Imperial Oil Canada, note 132 at [QL] para. 23. 890 Imperial Oil Canada, note 132 at [QL] para. 24. 891 United Keno Hill Mines Ltd., note 456 at [QL] para. 9. 892 United Keno Hill Mines Ltd., note 456 at [QL] para. 5. 893 Kenaston Drilling (Arctic) Ltd., note 456 at [QL] para. 13. 894 R v. Bata Industries Ltd. (1992), 7 C.E.L.R. (N.S.) 245 at 293 (Ont.Prov.Div.) [Bata Industries Ltd.]. 895 Ontario Water Resources Act, note 482. 896 Safa Industries Ltd., note 894 at 294-295. 897 Bata Industries Ltd., note 894 at 306. 898 R. v. Bata Industries Ltd. (1993), 14 O.R. (3d) 354, [1993] O.J. No. 1679 (QL) (Gen.Div.) [Bata Industries Ltd.]. 899 R. v. Bata Industries Ltd. (1995), 25 O.R. (3d) 321, [1995] O.J. No. 2691 (QL) (C.A.) [Safa Industries Ltd.]. This remedial approach in pollution cases was recently endorsed by the English Court of Appeal, Criminal Division, in Thames Water Utilities Ltd., note 686. 900 R. v. Safety-Kleen Canada Inc. (1997), 32 O.R. (3d) 493, [1997] O.J. No. 800 (QL) (C.A.) [Safety-Kleen Canada Inc.]. 901 Safety-Kleen Canada Inc., note 900 at [QL] para. 27. Under the Provincial Offences Act (Ont), note 3, appeals to the Ontario Court of Appeal must involve a question of law, otherwise the Court lacks jurisdiction to hear the matter. 902 R. v. Dow Chemical Canada Inc., [1997] O.J. No. 3301 (QL) (Gen.Div.) [Dow Chemical Canada Inc.]. 903 R. v. Dow Chemical Canada Inc. (2000), 47 O.R. (3d) 577, 130 O.A.C. 26, [2000] O.J. No. 757 (QL) [Dow Chemical Canada Inc.].
334 904 Environmental Protection Act (Ont.), note 421. 905 R. v. Ontario Hydro, [1988] O.J. No. 1673 (QL) (Dist.Ct.) [Ontario Hydro]. 906 R v. B.E.S.T. Plating Shoppe Ltd. (1986), 1 C.E.L.R. (N.S.) 85, [1986] O.J. No. 706 (QL) M.C.) [B.E.S.T. Plating Shoppe Ltd.]. 907 R v. B.E.S.T. Plating Shoppe Ltd. and Siapas (1987), 59 O.R. (2d) 145, 21 O.A.C. 62, [1987] O.J. No. 165 (QL) [B.E.S.T. Plating Shoppe Ltd. and Siapas]. 908 Toronto (Metropolitan) v. Siapas (1988), 3 C.E.L.R. (N.S.) 122, [1988] O.J. No. 1359 (QL) m.C.) [Siapas]. 909 Toronto (Metropolitan) v. Siapas, [1988] O.J. No. 2564 (QL) (H.C.) [Siapas]. 910 R v. Shamrock Chemicals Ltd. (1989), 4 C.E.L.R. (N.S.) 315, [1989] O.J. No. 2356 (QL) (Dist.Ct.) [Shamrock Chemicals Ltd.]. 11 Ontario Water Resources Act, note 482. 912 Environmental Protection Act (Ont.), note 421. 913 R v. Rainone Construction Ltd., [1999] O.J. No. 3315 (QL) (S.C.J.) [Rainone Construction Ltd.]. 914 Fisheries Act, note 164. 915 R v. Domtar Packaging Red Rock Mill, a Division of Domtar Inc. (2000), 36 C.E.L.R. (N.S.) 307, [2000] O.J. No. 5112 (QL) (S.C.J.) [Domtar Packaging Red Rock Mill]. 916 R v. Domtar Specialty Fine Papers, a Division ofDomtarlnc, [2001] O.T.C. 335, [2001] O.J. No. 1733 (QL) (S.C.J.) [Domtar Specialty Fine Papers]. 917 R v. Canadian Tire Corp., [2004] O.T.C. 668, [2004] O.J. No. 3129 (QL) (S.C.J.) [Canadian Tire Corp.]. 918 Canadian Environmental Protection Act, note 135. 919 Ozone Depleting Substance Regulations 1998, SOR/99-7[OzoA7e Depleting Substance Regulations]. 920 Canadian Tire Corp., note 917 at [QL] para. 101. 921 Canadian Tire Corp., note 917 at [QL] para. 113. 922 R v. Dupont Canada Inc., [1992] O.J. No. 2144 (QL) (Gen.Div.) [Dupont Canada Inc.]. 923 R v. Matachewan Consolidated Mines Ltd. (1994), 13 C.E.L.R. (N.S.) 156, [1994] O.J. No. 4196 (QL) (Gen.Div.) [Matchewan Consolidated Mines Ltd.]. 924 R v. Commander Business Furniture Inc., [1994] O.J. No. 313 (QL) (Gen.Div.) [Commander Business Furniture Inc.]. 925 Commander Business Furniture Inc., note 924 at para. 22. 926 R v. Canadian Pacific Ltd. (1994), 15 C.E.L.R. (N.S.) 181, [1994] O.J. No. 2573 (QL) (Gen.Div.) [Canadian Pacific Ltd.]. 927 R v. Lopes (1988), 3 C.E.L.R. (N.S.) 78, [1988] O.J. No. 874 (QL) (Dist.Ct.) [Lopes]. 928 Terroco Industries Ltd., note 453. 929 Environmental Protection and Enhancement Act (Alta.), note 455. 930 Dangerous Goods Transportation and Handling Act (Alta.), note 454. 931 Terroco Industries Ltd., note 453 at [QL] para. 34. 932 Kenaston Drilling (Arctic) Ltd., note 456 at [QL] para. 13. 933 Terroco Industries Ltd., note 453 at [QL] para. 53. 934 Terroco Industries Ltd., note 453 at [QL] para. 63. 935 Terroco Industries Ltd., note 453 at [QL] para. 74. 936 Terroco Industries Ltd., note 453 at [QL] para. 76. 937 Cool Spring Dairy Farms Ltd., note 146. 938 Cool Spring Dairy Farms Ltd., note 146 at [QL] para. 10. 939 R v. Lefebvre, 1999 ABQB 523, 247 A.R. 178, [1999] A.J. No. 801 (QL) [Lefebvre]. 940 Lefebvre, note 939 at [QL] para. 12. 941 United Keno Hill Mines Ltd., note 456. 942 Lefebvre, note 939 at [QL] para. 13. 943 Lefebvre, note 939 at [QL] para. 19. 944 R v. Blain's Custom Ag (99) Ltd., 2004 ABQB 615, [2004] A.J. No. 945 (QL) [Blain's Custom Ag (99) Ltd.].
335 945 Environmental Protection and Enhancement Act (Ma.), note 455. 946 R. v. Centennial Zinc Plating Ltd., 2004 ABQB 211, 353 A.R. 300, [2004] A.J. No. 319 (QL) [Centennial Zinc Plating Ltd.]. 947 Centennial Zinc Plating Ltd., note 946 at [QL] para. 77. 948 Abbott, note 470. 949 Abbott, note 470 at [QL] para. 22. 950 Abbott, note 470 at [QL] para. 23. 951 Abbott, note 470 at [QL] para. 32. 952 Abbott, note 470 at [QL] para. 32 953 Abbott, note 470 at [QL] para. 34. 954 Abbott, note 470 at [QL] para. 49. 955 R. v. Western Stevedoring Co. (1984), 13 C.E.L.R. 159, [1984] B.C.J. No. 754 (QL) (Co.Ct.) [Western Stevedoring Co.]. 956 R.v. Enso Forest Products Ltd. (1992), 70 B.C.L.R. (2d) 145, [1992] B.C.J. No. 1429 (QL) (S.C.) [Enso Forest Products Ltd.]. No opinion was expressed as to the appropriate quantum of fine as the defendant had not brought an appeal against sentence. Justice Shaw expressed an opinion as to the fitness of sentence in the event that the case was appealed further, and since, as he explained, he had formed a view on the sentence appeal. In fact, the Crown brought such an appeal, which was dismissed in a split decision: R. v. Enso Forest Products Ltd. (1993), 38 B.C.A.C. 74, 85 B.C.L.R. (2d) 249, [1993] B.C.J. No. 2409 (QL) [Enso Forest Products Ltd.]. 958 R. v. Canadian Pacific Forest Products Ltd., [1992] B.C.J. No. 1339 (QL) (S.C.) [Canadian Pacific Forest Products Ltd.]. 959 R. v. Fibreco Pulp Inc. (1993), 10 C.E.L.R. (N.S.) 1, [1993] B.C.J. No. 218 (QL) (S.C.) [Fibreco Pulp Inc.]. 960 Fibreco Pulp Inc., note 959 at [C.E.L.R.] para. 70. 961 R. v. Fibreco Pulp Inc. (1998), 106 B.C.A.C. 4, [1998] B.C.J. No. 758 (QL) [Fibreco Pulp Inc.]. 962 R. v. Alpha Manufacturing Inc., 2005 BCSC 1644, [2005] B.C.J. No. 2598 (QL) [Alpha Manufacturing Inc.]. 963 Alpha Manufacturing Inc., note 962 at [QL] para. 47. 964R v. Alpha Manufacturing Inc., 2009 BCCA443, [2009] B.C.J. No. 2169 (QL) [Alpha Manufacturing Inc.]. 965 R. v. Canadian Pacific Railway Co., 2008 BCSC 1681, [2008] B.C.J. No. 2381 (QL) [Canadian Pacific Railway Co.]. 966 Fisheries Act, note 164. 967 Canadian Pacific Railway Co., note 965 at [QL] para. 17. 968 R. v. Churchbridge (Regional Municipality), 2005 SKQB 524, 273 Sask. R. 29, [2005] S.J. No. 746 (QL) [Churchbridge]. 969 R. v. Echo Bay Mines Ltd., [1984] N.W.T.R. 303, [1984] N.W.T.J. No. 35 (QL) (S.C.) [Echo Bay Mines Ltd.]. 970 Echo Bay Mines Ltd., note 969 at [QL] para. 23. 971 Kenaston Drilling (Arctic) Ltd., note 456. 972 Kenaston Drilling (Arctic) Ltd., note 456.at [QL] para. 14. 973 R. v. Placer Development Ltd., [1983] N.W.T.R. 351, [1982] N.W.T.J. No. 37 (QL) (S.C.) [Placer Development Ltd.]. 974 R. v. Northwest Territories Power Corp., [1990] N.W.T.R. 125, [1990] N.W.T.J. No. 38 (QL) (S.C.) [Northwest Territories Power Corp.]. 975 R. v. Northwest Territories (Commissioner), [1994] N.W.T.R. 354, [1994] N.W.T.J. No. 58 (QL) (S.C.) [Northwest Territories]. 76 The payment order was also varied to state that while the funds were to be used to promote the conservation and protection of fish or fish habitat in the waters of or adjacent to the Northwest Territories, such use could also include the construction of an aquarium at Iqaluit, and the funding or conduct of programs approved by the Department of Environment of Canada related to sewage and waste treatment and disposal in order to meet the requirements of the Fisheries Act, note 161, in relation to the Northwest Territories.
336 977 R. v. Iqaluit (City), [2002] Nu. J. No. 1 (QL) (C.J.) [Iqaluit]. 978 The terms of this order made under the Fisheries Act, note 164, appear in R. v. Iqaluit (City), [2002] Nu. J. No. 2 (QL) (C.J.) [Iqaluit]. The defendant was ordered to draft and implement a standard operating procedures manual for the City's sewage lift stations, and to develop a training course regarding spill, response and clean-up of sewage and other pollutants, as well as training its Public Works' employees pursuant to this course. The manual and training course were to be approved by Environment Canada before the manual was made effective, implemented and the training commenced. 979 R. v. Services environnementaux Laidlaw (Mercier) Ltee , [1998] R.J.Q. 276, [1997] Q.J. No. 4156 (QL) (C.S.).[ [Services environnementaux Laidlaw (Mercier) Ltee]. 980 Services environnementaux Laidlaw (Mercier) Ltee., note 979 at [QL] para. 16. 981 Services environnementaux Laidlaw (Mercier) Ltee., note 979 at [QL] para. 18. 982 R. v. Vac Daniels Ltd. (1997), 159 N.S.R. (2d) 399, [1997] N.S.J. No. 160 (QL) (C.A.) [Vac Daniels Ltd.]. 983 Environmental Protection Act, S.N.S. 1973, c.6 [Environmental Protection Act (N.S.)]. 984 Vac Daniels Ltd., note 982 at [QL] para. 7. 985 R. v. Oxford Frozen Foods Ltd. (1989), 91 N.S.R. (2d) 334, [1989] N.S.J. No. 500 (QL) (Co.Ct.) [Oxford Frozen Foods Ltd.]. 986 R. v. B.A. Denton Management Ltd. (1993), 127 N.S.R. (2d) 386, [1993] N.S.J. No. 542 (QL) (S.C.) [B.A. Denton Management Ltd.]. B.A. Denton Management Ltd., note 986 at [QL] para. 5. 988 R v. Fraser Papers Inc. (Canada), 2001 NBQB 191, 242 N.B.R. (2d) 373, [2001] N.B.J. No. 404 (QL) [Fraser Papers Inc. (Canada)]. 989 Clean Air Act, S.N.B. 1997, c.C-5.2 [Clean Air Act (N.B.)]. 990 R. v. Gemfec Ltd., 2007 NBQB 199, 321 N.B.R. (2d) 200, [2007] N.B.J. No. 202 (QL) [Gemtec Ltd.]. 991 Gemtec Ltd., note 990 at [QL] para. 54. 992 Gemtec Ltd., note 990 at [QL] para. 61. 993 R. v. Lundrigan Group Ltd., [1990] N.J. No. 449 (QL) (S.C.) [Lundigran Group Ltd.]. 994 Lundrigan Group Ltd., note 993 at para. 58. 995 R. v. Pennecon Ltd. , [1996] N.J. No. 9 (QL) (S.C.) [Pennecon Ltd.]. 996 Department of Environment and Lands Act, R.S.N. 1990, c.D-11 [Department of Environment and Lands Act (Nfld)]. 997 At trial the director of the company was also found guilty and fined $500; however, an acquittal was substituted on appeal on the basis that the Crown had not established a prima facie case against him. adfi Pennecon Ltd., note 995 at para. 22. 999 R. v. Newfoundland Recycling Ltd., 2008 NLTD 38, 274 Nfld. & P.E.I.R. 83, [2008] N.J. No. 71 (QL) [Newfoundland Recycling Ltd.]. 1000 R. v. Tahkuna (The) (2002), 210 Nfld. & P.E.I.R. 68, [2002] N.J. No. 62 (QL) (S.C.) [Tahkuna]. 1001 R, v. Newfoundland Recycling Ltd., 2009 NLCA28, 284 Nfld. & P.E.I.R. 153, [2009] N.J. No. 105 (QL) [Newfoundland Recycling Ltd.]. 1002 Cotton Felts Ltd., note 26. 1003 Services environnementaux Laidlaw (Mercier) Ltee, note 979. 1004 B.A. Denton Management Ltd., note 986. 1005 Abbott, note 470. 1006 Centennial Zinc Plating Ltd., note 946. 1007 Campbell, note 165 at 13. 1008 Campbell, note 165 at 32. 1009 See for example Campbell, note 165; Hughes, note 165; Strickland, note 165; Verhulst, note 140. The limitations on the use of fines generally is discussed by the Law Reform Commission of Canada, Sentencing in environmental cases, note 49. (Ottawa: Law Reform Commission of Canada, 1985). This report, it should be noted, post-dates the Cotton Felts decision, and indeed references it. 1010 Sayre, note 14.
337 1011 Swaigen, note 38 at xxxv. 1012Verhulst, note 140 at 283. 1013 p (3|enn Hubbard, Money, the Financial System and the Economy (New York: Addison- Wesley Publishing Company, Inc., 1994) at 384, describes the regulatory cycle, in the context of banking regulation, as consisting of four stages: "financial crisis, regulation, financial innovation, and regulatory response." Tara Naib, Enron and the Regulatory Cycle (Duke University, thesis, 2002) at 7 compresses the regulatory cycle into three categories: crisis, regulatory response, and innovation, observing that Hubbard's "regulatory response" moves in the direction from response to regulation. 1014 Gunningham, note 773 at 325. 1015 Gunningham, note 733. See also Neil Gunningham and Peter Grabosky, Smart Regulation. Designing Environmental Policy (Oxford: Clarendon Press, 1998); Neil Gunningham, Robert A. Kagan, and Dorothy Thornton, Shades of Green. Business, Regulation and Environment (Stanford: Stanford University Press, 2003). 016 Ayres, note 16. See also John Braithwaite, To Punish or Persuade: Enforcement of Coal Mining Safety (Albany: State University of New York Press, 1985); John Braithwaite, Restorative Justice & Responsive Regulation (New York: Oxford University Press, 2002). 1017 Breyer, note 90. 1018 Archibald, note 6. 1019 Keith Hawkins, Environment and Enforcement. Regulation and the Social Definition of Pollution (Oxford: Clarendon Press, 1984) at 109. 1020 Andrew Hopkins, Making Safety Work. Getting Management Commitment to Occupational Health and Safety (St. Leonards: Allen & Unwin, 1995) at 73. 1021 Glasbeek, note 89 at 301-302. 1022 Archibald, note 6 at 12-1. 1023 Archibald, note 6 at 1-16. 1024 Archibald, note 6 at 1-16. 1025 Salter, note 16 at 151. See also Ellen Baar, Positive Compliance Programs: Their Potential as Instruments for Regulatory Reform (Vol. 1) (Ottawa: Department of Justice, 1991) at 111-16 respecting risk assessment and safety regulation. 1026 Liora Salter, Mandated Science: Science and Scientists in the Making of Standards (Dordrecht: Kluwer Academic Publishers, 1988) at 1. 27 G. Bruce Doern and Ted Reed, "Canada's Changing Science-Bases Policy and Regulatory Regime: Issues and Framework" in G.Bruce Doern and Ted Reed, eds., Risky Business. Canada's Changing Science-Based Policy and Regulatory Regime (Toronto: University of Toronto Press, 2000) at 7. 1028 Salter, note 1026 at 176. 1029 Archibald, note 6 at 1-16. 1030 Breyer, note 90 at 3. 1031 Fazil Mihlar, "The Federal Government and the 'RIAS' Process: Origins, Need, and Non compliance" in G. Bruce Doern, Margaret M. Hill, Michael J. Prince, and Richard J. Shultz, eds., Changing the Rules. Canadian Regulatory Regimes and Institutions (Toronto: University of Toronto Press, 1999) at 281. 1032 Mihlar, note 1031. 1033 United Kingdom Treasury, note 700 at 4. 1034 Archibald, note 6 at 1-10. 1035 Breyer, note 90 at 9. 1036 Breyer, note 90 at 9. 1037 Breyer, note 90 at 10. 1038 Archibald, note 6 at 1-27. 1039Douglas Powell, "Risk-Based Regulatory Responses in Global Food Trade: A Case Study of Guatemalan Raspberry Imports into the United States and Canada, 1996-1998" in G.Bruce Doern and Ted Reed, eds., Risky Business. Canada's Changing Science-Based Policy and Regulatory Regime (Toronto: University of Toronto Press, 2000) at 137-138 states that this integrative
338 framework for risk managers was developed in 1997 by the U.S. Presidential/Congressional Commission on Risk Assessment and Risk Management. 1040Breyer, note 90 at 42. 1041 Archibald, note 6 at 1-20. 1042 Archibald, note 6 at 1-34. 1043 Paolo F.Ricci, Environmental and Health Risk Assessment and Management. Principles and Practices (Dordrecht: Springer, 2006) at 37. See also Albert J. Reiss Jr., "The Institutionalization of Risk" in James F. Short Jr., and Lee Clarke, eds., Organizations, Uncertainties, and Risk (Boulder: Westview Press, 1992) at 302. 044 Ivo Krupka, "The Pest Management Regulatory Agency: The Resilience of Science in Pesticide Regulation" in G. Bruce Doern and Ted Reed, eds., Risky Business. Canada's Changing Science-Based Policy and Regulatory Regime (Toronto: University of Toronto Press, 2000) at 243. See also Breyer, note 90 at 57. 1045 Bill Jarvis, "A Question of Balance: New Approaches for Science-Based Regulation" in G. Bruce Doern and Ted Reed, eds., Risky Business. Canada's Changing Science-Based Policy and Regulatory Regime (Toronto: University of Toronto Press, 2000) at 317. See further Anthony Barker, "Expert Advice and Formal Public Involvement on Public Policies Involving Risk" in James F. Short Jr. and Lee Clarke, eds., Organizations, Uncertainties, and Risk (Boulder: Westview Press, 1992). 1046 Jarvis, note 1045 4t 322. 1047 Mihlar, note 1031 at 284. 1048 Dayna N. Scott, "Confronting Chronic Pollution: A Socio-Legal Analysis of Risk and Precaution" (2008), 46 Osgoode Hall L.J. 293 at 308. 1049 Jeremy D. Fraiberg and Michael J. Trebilcock, "Risk Regulation: Technocratic and Democratic Tools for Regulatory Reform" (1998), 43 McGill L.J. 835 at 857. 1050 Archibald, note 6 at 1-32. 1051 Breyer, note 90 at 57. 1052 Gobert, note 87 at 725. 1053 Richard Johnstone, "Putting the Regulated Back into Regulation" (1999), 26 J. L. & Soc'y 378 at 382. 1054 Breyer, note 90 at 57. 1055 Breyer, note 90 at 58. 1056 Daniel E. Lane, "Fisheries and Oceans Canada: Science and Conservation" in G. Bruce Doern and Ted Reed, eds., Risky Business. Canada's Changing Science-Based Policy and Regulatory Regime (Toronto: University of Toronto Press, 2000) at 271. 105 Michael J. Prince, "Aristotle's Benchmarks: Institutions and Accountabilities of the Canadian Regulatory State" in G. Bruce Doern, Margaret M. Hill, Michael J. Prince, and Richard J. Shultz, eds., Changing the Rules. Canadian Regulatory Regimes and Institutions (Toronto: University of Toronto Press, 1999) at 229. 1058 Braithwaite, To Punish or Persuade: Enforcement of Coal Mining Safety, note 1016 at 142. 1059 Braithwaite, To Punish or Persuade: Enforcement of Coal Mining Safety, note 1016 at 142. 1060 Ayres, note 16 at 53. See also Johnstone, note 1051 at 379: "The challenge is to develop enforcement strategies that punish the worst offenders, while at the same time encouraging and helping employers to comply voluntarily"; Gunningham and Grabosky, note 1015 at 396. 1061 Fiona Haines and David Gurney, "The Shadows of the Law: Contemporary Approaches to Regulation and the Problem of Regulatory Conflict" (2003), 25 Law & Pol'y 353 at 360. 1062 Ayres, note 16 at 35. Neil Gunningham, Legislating For Job Safety. A Critique of Occupational Health and Safety Legislation in Australia and a Programme for Reform (Melbourne: Australian Society of Labor Lawyers, 1983) at 16 comments that the "favoured tools" of inspectorates are advice, guidance and persuasion. 1063 While the regulatory enforcement pyramid is ordered in this way, this is not to suggest that the regulator will necessarily employ such a sequential approach. For example, in a particularly egregious case of willful or repeated non-compliance, the regulator may move directly to prosecution; conversely, where it is thought that a prosecution may prove ineffective due to limited court or prosecutorial resources, recourse to licence suspension or revocation may be
339 pursued, particularly if there are other regulated parties available to provide comparable goods and services. Likewise, enforcement officers may prefer administrative monetary schemes as opposed to fines imposed by courts, so as to obviate the necessity of a time-consuming and lengthy prosecution. 1064 Archibald, note 6 at 14-8. 1065Ayres, note 16 at 36. 1066Ayres, note 16 at 4. 1067 Gunningham, Kagan, and Thornton, note 1015 at 99-102, use these terms to describe environmental management styles in order of progressiveness and commitment to regulatory compliance: "environmental laggards", "reluctant compilers", "committed compilers", "environmental strategists" and "true believers". 1068 Baar, note 1025 at 1-1. 1069 Archibald, note 6 at 14-8. 1070 John Braithwaite, "Meta Risk Management and Responsive Regulation for Tax System Integrity" (2003), 25 Law & Policy 1. 1071 Archibald, note 6 at 14-9. 1072 Braithwaite, note 1070 at 14-15. See also United Kingdom Treasury, note 700 at 9 which recommends that risk assessment should be employed comprehensively by regulators, and that penalties should be based on risk assessment. 1073 Gunningham, note 733 at 116. 1074 Gunningham, note 733 at 116. 1075 Gunningham, note 733 at 116. 1076 Gunningham, note 733 at 124. 1077Ayres, note 16 at 19. 1078Ayres, note 16 at 19. 1079 Gunningham, note 733 at 123. See also Fiona Haines, Corporate Regulation. Beyond 'Punish'or 'Persuade' (Oxford: Clarendon Press, 1997) at 221. 1080 Richard Johnstone, From Fiction to Fact- Rethinking OHS Enforcement (Working Paper 11) (Australia: National Research Centre for OHS Regulation, 2003) at 4. Bridget M. Hutter, Regulation and Risk: Occupational Health and Safety on the Railways (Oxford: Oxford University Press, 2001) at 303. 82 Johnstone, note 1080 at 4. Of course, many, if not most regulated parties, may be committed to compliance on their own, without the necessity of the types of incentives mentioned by Johnstone. 1083 Hutter, note 1081 at 301-302. 1084 Johnstone, note 1080 at 4. 1085 Hutter, note 1081 at 301-302. See also Johnstone, note 1078 at 4. 1086 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 8. 1087 Verhulst, note 140 at 283. 1088 Verhulst, note 140 at 283. 1089 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 8. 1090 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 8. 1091 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 8. 1092 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 20. 1093 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 20. 1094 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 725 at 6. 1095 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 725 at 6 1096 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 725 at 27. 1097 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 725 at 27. 1098 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 725 at 28. 1099 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 725 at 28. 1100 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 725 at 28. Macrory qualified the wording of four of the six penalties principles so that they now read: (i) a sanction should aim to change the behaviour of the offender (ii) a sanction should aim to eliminate any financial gain or benefit from non-compliance (iii) a sanction should be responsive
340 and consider what is appropriate for the particular offender and the regulatory issue, which can include punishment and the public stigma that should be associated with a criminal conviction (iv) a sanction should be proportionate to the nature of the offence and the harm caused (v) a sanction should aim to restore the harm caused by regulatory non-compliance, where appropriate (vi) a sanction should aim to deter future non-compliance. 1101 Verhulst, note 140 at 283. 1102Verhulst, note 140 at 283. 1103 Ontario Law Commission, note 569 at 14. 1104 Ontario Law Commission, note 569 at 14. 1105 Ontario Law Commission, note 569 at 17. 1106Verhulst, note 140 at 283. 1107 Keith Hawkins, "'FATCATS' and Prosecution in a Regulatory Agency: A Footnote on the Social Construction of Risk" in James F. Short Jr. and Lee Clarke, eds., Organizations, Uncertainties, and Risk (Boulder: Westview Press, 1992) at 296. 1108 Hawkins, note 1107 at 296. 1109 Baar, note 1025 at III-7. 1110 Hopkins, note 1020 at 55. 1111 Verhulst, note 140 at 283. 1112 Gunningham and Grabosky, note 1015 at 265. See too Julia Black and Robert Baldwin, "Really Responsive Regulation" (2008), 71 Mod. L. Rev. 59 at 73-76. 1113 Baar, note 1025 at IV-20. 1114 Baar, note 1025 at XII-4. 1115 Baar, note 1025 at IV-21. 1116 Baar, note 1025 at IV-21. In a subsequent study, it was noted that the term "positive compliance" denotes an approach to regulation which "relegates as much as possible to an administrative rather than a judicial process": see Liora Salter, An Inventory of Positive Compliance Programs in the U.K., Australia, and U.S.A. (Vol. 2, Technical Report) (Ottawa: Department of Justice, 1988) at vii. 1117 R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30 (QL) [Sheppa.rd]; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, [2002] S.C.J. No. 29 (QL) [Braich]; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, [2006] S.C.J. No. 17 (QL) [Gagnon]. 1118 ft v. Goebel, 2003 ABQB 422, 338 A.R. 201, 17 Alta. L.R. (4th) 153, [2003] A.J. No. 591 at para.13(QL) [Goebel]. 1119 Julia Black, Rules and Regulators (Oxford: Clarendon Press, 1997) at 13. 1120 Verhulst, note 140 at 283. 1121 Verhulst, note 140 at 283. 1122 Verhulst, note 140 at 283. See also Ontario Law Commission, note 569 at 14-15. 1123 Julia Black, Martyn Hopper and Christa Band, "Making a success of Principles-based regulation" Law and Financial Markets Review (May 2007) at 191. 11 United Kingdom Financial Services Authority, Principles-based regulation. Focusing on the outcomes that matter (London: The Financial Services Authority, 2007) at 6. 1125 Black, note 1119 at 191; United Kingdom Financial Services Authority, note 1135 at 6. See too Elizabeth Bluff and Neil Gunningham, "Principle, Process, Performance or What? New Approaches to OHS Standards Setting" in Elizabeth Bluff, Neil Gunningham, and Richard Johnstone, eds., OHS Regulation for a Changing World of Work (Sydney: The Federation Press, 2004). 1126 Verhulst, note 140 at 284; Ontario Law Commission, note 569 at 15. For a discussion of how standards should be classified, see Gunningham, note 733, chapter 2, "From Compliance to Best Practice in OHS: The Roles of Specification, Performance, and Systems-Based Standards". 1127 These particular examples are used by Sherie Verhulst, note 140 at 284. Similar illustrations are used by the Ontario Law Commission, note 569 at 15. Presumably the parties have entered into a negotiation to produce these results, or exchanged views as to the desirability of the particular regulatory strategy for the activity in question. 1128 Verhulst, note 140 at 284; Ontario Law Commission, note 569 at 15. 1129 Black, note 1119 at 196.
341 1130 Verhulst, note 140 at 284; Ontario Law Commission, note 569 at 15. 1131 Verhulst, note 140 at 284; Ontario Law Commission, note 569 at15. 1132 Verhulst, note 140 at 285. 1133 Hawkins, note 1019 at 109. 1134 Ontario Law Commission, note 569 at 15. 1135 Verhulst, note 140 at 285. 1136 Hawkins, note 1107 at 281. 1137 Black, note 1123 at 80. 1138 Albert J. Reiss Jr., "The Institutionalization of Risk" in James F. Short Jr., and Lee Clarke, eds., Organizations, Uncertainties, and Risk (Boulder: Westview Press, 1992) at 307. 1139 Black, note 1123. 1140 Black, note 1123. 1141 Black, note 1123 at 69. 1142 Black, note 1123 at 80. 1143Gunningham and Grabosky, note 1015 at 403. The authors give the example of pollution taxes as being "static" and not "dynamic", such that they cannot be effectively "tailored" to correspond to the behaviour of the party. "44 Verhulst, note 140 at 286; Ontario Law Commission, note 569 at 15. 45 Verhulst, note 140 at 286. 46 Hawkins, note 1019 at 109. 47 Canadian Sentencing Commission, note 200 at 133. 1148 Criminal Code, note 7. 49 Manson, note 179 at 468. 50 Keith, note 418 at 316-317. 1151 Verhulst, note 140 at 286. 1152 Public Health Act (B.C.), note 137. 53 Provincial Offences Act (Ont), note 3. 1154 Offence Act (B.C.), note 430. 1155 Provincial Offences Act (Ont.), note 3. 1156 Verhulst, note 140 at 283. 1157 Public Health Act (B.C.), note 137. 1158 Canadian Environmental Protection Act, note 135. 1159 This practice is derived from Friskies Petcare (UK) Ltd., note 531. 1160 Verhulst, note 140 at 286. 1161 Ontario Law Commission, note 569 at 15. 1162 Public Health Act (B.C.), note 137. 1163 Public Health Act (B.C.), note 137. s.105. 1164 Public Health Act (B. C), note 137, s. 106. 65 Public Health Act (B.C.), note 137. s.107. 66 Public Health Act (B.C.), note 137. s. 108(1). 67 Public Health Act (B.C.), note 137.S.108 (2). 68 Public Health Act (B. C), note 137.s. 109. 69 Public Health Act (B.C.), note 137.S.110. 70 Public Health Act (B.C.), note 137. 71 It is an established rule of sentencing procedure that where the defendant pleads guilty to the commission of an offence, but disputes the existence of any aggravating factors, the prosecution is required to establish on a sentencing hearing such aggravating factors on the standard of proof beyond a reasonable doubt: see Gardiner, note 443. In recommending that joint positions and agreements on the relevant factors be placed before the sentencing court, the English Court of Criminal Appeal in Friskies Petcare (UK) Ltd., note 531, para.3, similarly considered that a hearing should take place to determine whether a particular aggravating feature has been established so that "all sides know what the issues are and the court can make its decision appropriately." See further in this regard R. v. Newton (1982), 77 Cr. App. R. 13, 4 Cr. App. R.
342 (S.) 388 (CCA.) [Newton], the case from which a "Newton hearing" originates, as referred to in Friskies Petcare. 1172 Criminal Code, note 7. 1173 See, for example, Manson, note 179 at 472; Jull, note 250 at 77-79; Ives, note 247 at 118; Doob, note 249 at 168; Ashworth, note 251 at 189; Roberts, note 214 at 223. 1174 Canadian Sentencing Commission, note 200 at 134. 1175 Archibald, note 6 at 12-38. CL Keith, note 418 at 316, who recommends that since there is "no purpose clause for the sentencing under the POA," a provision equivalent to s.718 of the Code should be enacted "which sets out the purpose of sentencing under the POA." The author does not go on to set out the actual content of such a sentencing provision. 1176 See, for example, United Keno Hill Mines Ltd., note 456; Kenaston Drilling (Arctic) Ltd., note 456; Bata Industries Ltd., note 894; Law Reform Commission of Canada, note 49 at 40-44. 1177 Cotton Felts Ltd., note 26. The very recent decision of the England and Wales Court of Criminal Appeal in Thames Water Utilities Ltd., note 686, is also particularly illuminating in this regard. The Court, in setting out a new principled approach to sentencing for regulatory offences, identified punishment, deterrence and reparation as being "particularly important purposes" of sentence in such cases, and stated that that there was "a clear policy need" to encourage the making of voluntary reparation by offenders, whether by consenting to compensation orders, or making or pledging voluntary payments: see paras. 39(vi), 53. 1178Sherrin, note 108 at 2. 1179Verhulst, note 140 at 287. 1180 Canadian Sentencing Commission, note 200 at 134. 1181 Imperial Oil Canada, note 132 at [QL] para. 24. 1182 Canadian Sentencing Commission, note 200 at 390. 1183 Law Reform Commission of Canada, Restitution and compensation: Fines (Working Paper 5) (Ottawa: Government of Canada, 1974) at 7-8. See also R. v. Zelensky, [1978] 2 S.C.R. 940 at 952, per Laskin C.J., [1978] S.C.J. No. 48 (QL) [Zelensky]. 1184 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 31. 1185 See, for example, Braithwaite, Restorative Justice & Responsive Regulation, note 1016. 1186 Criminal Code, ntite 7, s.718(e), (f). 1187 See Campbell, note 165, Hughes, note 165; Strickland, note 165; Libman, note 40 at 11.2(x). 1188Verhulst, note 140 at 289. 1189 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 29. 1190 Cotton Felts Ltd., note 26. 1191 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 29. 1192Verhulst, note 140 at 289. 1193 See Ellen Baar, Positive Compliance Programs: Their Potential as Instruments for Regulatory Reform (Vol. 1) [Working Document] (Ottawa: Department of Justice, 1991) at 76; Archibald, note 6 at 12-12. 1194 Archibald, note 6 at 12-1. 1195 Archibald, note 6 at 12-1. 1196 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 20. 1197 See, for example, Gordon S. Campbell, note 165; Hughes, note 165; Strickland, note 165. 1198 Ruby, note 253 at 427. 1199 Provincial Offences Act (Ont.), note 3, s.72(1). 1200 Provincial Offences Act (Ont), note 3, s.731(1). 1201 Provincial Offences Act (Ont), note 3, s.72(1). These considerations, which are also set out in s.731(1) of the Criminal Code, note 7, "reflect the origins of probation as relief from the constraints of incarceration justified on the basis of the offender's age or character or because of the minor nature of the offence": Canadian Sentencing Commission, note 200 at 351. 1202 Under the Provincial Offences Act (Ont), note 3, s.75(d), the offence of breach of probation is punishable by a fine of up to $1,000, or imprisonment for a term of not more than 30 days, or to both. Again, it is noteworthy to contrast the more robust provisions respecting probation breaches under the Criminal Code, note 7: s.733.1(1) allows the prosecutor to elect to proceed by indictment, in which case the offender may be imprisoned for up to two years, or by way of
343 summary conviction, which makes the defendant liable to imprisonment for up to 18 months, or a fine of up to $2,000, or both. The usual maximum period of summary conviction imprisonment is six months: s.787(1). 1203 Verhulst, note 140 at 289. 1204 Archibald, note 6 at 12-1. 1205 Ruby, note 253 at 427. 1206 Bill C-45, note 79. 1207 The definition of "organization" in s.2 of the Criminal Code, note 7, includes a public body, body corporate, society, company, firm, partnership, trade union or municipality. It also encompasses "an association of persons" that is created for a common purpose, has an organizational structure, and holds itself out to the public as an association of persons. 12d8 Criminal Code, note 7, s.732.1(3.1). 1209 Criminal Code, note 7, s.732.1(3.1)(b). Prior to making a probation order containing this term, the court is directed under s.732.1(3.2) to consider whether "it would be more appropriate for another regulatory body to supervise the development or implementation of the policies, standards and procedures" referred to in s.732.1(3.1)(b). 1210 Criminal Code, note 7, s.732.1(3.1)(c). 1211 Criminal Code, note 7, s.732.1(3.1)(d). 1212 Criminal Code, note 7, s.732.1(3.1)(f). To date, no such probation order has been imposed by a court. However, in one of the few cases under the legislation, Transpav6 Inc., note 80, where an employee was crushed to death by a concrete press, the defendant company pled guilty to one count of criminal negligence causing death and was fined $100,000. Although probation was not ordered, it should be noted that the defendant had spent approximately $500,000 on improvements to reduce the likelihood of a similar incident occurring in the future. It would have been open to the court, had the defendant not taken such measures, to craft terms in a probation order to the same effect so as to reduce the likelihood of the organization committing a subsequent offence: see Criminal Code, note 7, s.732.1(3.1)(b), (g). 1213 Archibald, note 6 at 12-2. 1214 Archibald, note 6 at 12-2. 1215 Law Reform Commission of Canada, note 49 1216 Law Reform Commission of Canada, note 49 at 12. 1217 John C. Coffee Jr., "'No Soul To Damn: No Body To Kick': An Unscandalized Inquiry Into The Problem of Corporate Punishment" (1981), 79 Mich. L. Rev. 386. 1218 Criminal Code, note 7, s.718.21. 1219 Archibald, note 6 at 12-5. 1220 Criminal Code, note 7, s.718.21(h). 1221 Criminal Code, note 7, s.718.21(i). 1222 Criminal Code, note 7, s.718.21(j). 1223 General Scrap Iron & Metals Ltd., note 797. 1224 General Scrap Iron & Metals Ltd., note 797 at [QL] paras. 27-28. 1225 R. v. Potocan Mining Co. (1996), 183 N.B.R. (2d) 54, [1996] N.B.J. No. 567 at para 29 (QL) (Prov.Ct.) [Potocan Mining Co.]. 1226 R. v. Panarctic Oils Ltd., [1983] N.W.T.R. 143, [1983] N.W.T.J. No. 17 (QL) [Panarctic Oils Ltd.]. 1227 Panarctic Oils Ltd., note 1226 at [QL] para. 47. 1228 See, for example, Shamrock Chemicals Ltd., note 910. 1229 Woods v. Ontario (Minister of Natural Resources), [2007] O.J. No. 1208 at para. 7 (QL) IjS.C.J.) [Woods]. 230 Ontario (Minister of the Environment) v. Quinte-Eco Consultants Inc., 2008 ONCA 630, [2008] O.J. No. 3533 (QL) [Quinte-Eco Consultants Inc.]. 1231 Provincial Offences Act (Ont), note 3, s.72(3)(c). 1232 Quinte-Eco Consultants Inc., note 1230 at [QL] para. 5. 1233 Bata Industries Ltd., note 894. 1234 Archibald, note 6 at 12-2. 1235 Verhulst, note 140 at 291.
344 1236 Verhulst, note 140 at 291. 1237 Archibald, note 6 at 12-12.1. 1238 Cotton Felts Ltd., note 26 at [QL] para. 22.. 1239 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 31. 1240 Canadian Sentencing Commission, note 200 at 135. 1241 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 715 at 8. 1242 United Kingdom, Department for Business Enterprise & Regulatory Reform, note 720 at 20. 1243 Verhulst, note 140 at 292-293. 1244 Public Health Act (B. C), note 137. 1245 Public Health Act (B.C.), note 137, s.106(4)(a). 1246 Public Health Act (B.C.), note 137, s.106(4)(b). 1247 Verhulst, note 140 at 293. 1248 Verhulst, note 140 at 292. 1249 Virk, note 56. 1250 Virk, note 56 at para. 56. 1251 Sault Ste. Marie, note 34 at [C.C.C.] 373. 1252 Swaigen, note 38 at xxxvi. 1253 Archibald, note 6 at 12-15. 1254 Criminal Code, note 7, ss.22.1, 22.2. 1255 Canadian Sentencing Commission, note 200 at 142. 1256 C.A.M., note 442. 1257 C.A.M., note 442 at [QL] para. 81. 1258 Verhulst, note 140 at 292. 1259 Archibald, note 6 at 12-14. 1260 Inco Ltd., note 450. 1261 Serfaty, note 859. 1262 Siapas, note 909. 1263 Wholesale Travel Group Inc., note 12. 1264 Wholesale Travel Group Inc., note 12 at [QL] para. 219. 1265 Archibald, note 6 at 12-18.1. 1266 Archibald, note 6 at 12-18.1. 1267 Verhulst, note 140 at 293. 1268 Public Health Act (B.C.), note 137. 1269 Canadian Sentencing Commission, note 200 at 139. 1270 Verhulst, note 140 at 294. 1271 For example, an individual who is convicted of an offence involving cruelty or mistreatment of an animal may receive a sentence that incorporates incapacitation by prohibiting the person from having custody of animals for a period of time. 1272 Archibald, note 6 at 12-36 -12-37. 1273Ayres, note 16 at 35. 1274 Archibald, note 6 at 12-38; J. Scholz, "Enforcement Policy and Corporate Misconduct: The Changing Perspective of Deterrence Theory" (1997). 60 Law & Contemp. Probs 253 at 254. 1275 Offence Act (B.C.), note 430. 1276 Provincial Offences Act (Ont.), note 3. 1277 Criminal Code, note 7. 1278 Criminal Code, note 7, s.718. 1279 Ruth Sullivan, Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008) at 325. See also Ruth Sullivan, Statutory Interpretation, 2nd ed. (Toronto: Irwin Law Inc., 2007) at 303. 1280 Sullivan, Construction of Statutes, note 1279 at 412; Sullivan, Statutory Interpretation, note 1279aM49-151. 1281 Provincial Offences Act (Ont.), note 3. 1282 Criminal Code, note 7, s.732(3.1). 1283 Regulatory Modernization Act (Ont.), note 485. 1284 Regulatory Modernization Act (Ont), note 485, s.15(3).
345 1285 Regulatory Modernization Act (Ont), note 485, s.15(4)(b). 1286 For example, s.718.01 of the Criminal Code, note 7, provides that where a sentence is being imposed for an offence which involves the abuse of a person under the age of 18 years, the court shall "give primary consideration to the objectives of denunciation and deterrence of such conduct." 1287 An illustration of this is s.10 of the Controlled Drugs and Substances Act, S.C. 1996, c.19 [Controlled Drugs and Substances Act], which provides its own purposes of sentencing "without restricting the generality of the Criminal Code." 1288 Serfaty, note 859. 1289 Competition Act, note 74. 1290 Criminal Code, note 7. 1291 Bill C-13, An Act to amend the Criminal Code (Capital Markets Fraud and Evidence- Gathering), S.C. 2004, c.3 [Bill C-13], 1292 Criminal Code, note 7, s.380.1(1)(a). 1293 Criminal Code, note 7, s.380.1(1)(b). 1294 Serfaty, note 859 at [QL] 37. 1295 Criminal Code, note 7, s.380.1(1)(c). 1296 Criminal Code, note 7, s.380.1(1)(d). 1297 Serfaty, note 859 at [QL] para. 37. 1298 Criminal Code, note 7, s.380.1(1). 1299 Criminal Code, note 7, s.380.1(2). 1300 Provincial Offences Act (Ont), note 3, s.12(1). 1301 There is additionally Part II of the Provincial Offences Act (Ont), note 3, which governs the procedure for parking infractions. Given that such offences cannot be charged under Part I, they are not mentioned further. 1302 Provincial Offences Act (Ont.), note 3, s.9(1). 1303 Provincial Offences Act (Ont.), note 3, s.9.1(1). 1304 Provincial Offences Act (Ont.), note 3, s.11(1). 1305 Provincial Offences Act (Ont.), note 3, s.72(1)(a). 1306 Provincial Offences Act (Ont.), note 3, s.1(1) defines a set fine as "the amount of fine set by the Chief Justice of the Ontario Court of Justice for an offence for the purpose of proceedings commenced under Part I or II." 1307 Provincial Offences Act (Ont.), note 3, s.2(1). 1308 Similar reasoning has been employed to hold that justices of the peace presiding over provincial offences proceedings of unrepresented defendants are not required to provide the same standard of "minimum assistance" at trials for ticket offences under Part I, as opposed to trials for the more serious Part III sworn information procedure: see R. v. Saeed, 2010 ONCJ 251, [2010] O.J. No. 2680 (QL) [Saeed]. The opposite result was reached in R v. Rijal, 2010 ONCJ 329, [2010] O.J. No. 3440 (QL) [Rijal], where it was found that the same standard of "minimum assistance" should be given to unrepresented defendants by trial justices, regardless whether the proceedings are under Part I or Part III of the Provincial Offences Act. 1309 Highway Traffic Act (Ont), note 54. 1310 Highway Traffic Act (Ont.), note 54, s.128. 1311 Highway Traffic Act (Ont), note 54, s.53(1). 1312 Cotton Felts Ltd., note 26. 1313 The fact that offences such as careless driving might be the subject of proceedings under either Part I or Part III of the Provincial Offences Act, depending upon the charging decision of the officer, was considered by the court to be a reason not to differentiate between the level of "minimum assistance" provided to unrepresented defendants by the trial justice in Part I and Part III proceedings: see Rijal, note 1308 at [QL] para.59 (QL). Cf. Saeed, note 1308, where the court distinguished between the level of assistance to be provided to unrepresented defendants charged with provincial offences on the basis whether the proceeding was governed by Part I or Part III, the latter meriting more assistance than the former. 1314 Provincial Offences Act (Ont.), note 3.
346 1315 Good Government Act, 2009, S.O. 2009, c.33, s.1(18), effective 15 December 2009 [Good Government Act (Ont.)]. This amendment to s.12(1) of the Provincial Offences Act (Ont), note 3, increased the maximum fine amount for Part I offences from $500 to $1,000. 1316 Opening of the Courts, 14 September 2009, Speech of Chief Justice Annemarie Bonkalo. Chief Justice Bonkalo's most recent speech at the Opening of the Courts, delivered on 14 September 2010, put the numbers as 600,000 criminal charges as opposed to 2 million provincial offence and highway traffic charges. 1317 See, for example, Ayres, note 16 at 35; Archibald, note 6 at 14-13; United Kingdom, Department for Business Enterprise & Regulatory Reform, note 708 at 8. 13 Provincial Offences Act (Ont), note 3. 1319 The Provincial Offences Act (Ont), note 3, as enacted by S.O. 1979, c.4, was given third reading on 27 March 1979, after having originally been introduced in the legislature in April, 1978. It was reintroduced for first reading on 6 March 1979. In order to allow for the design and implementation of the new court systems and procedures under the Act, there was a delay until 31 March 1980 before the legislation went into effect. See W. Douglas Drinkwalter and J. Douglas Ewart, Ontario Provincial Offences Procedure (Toronto: The Carsweil Company Limited, 1980) at vi-vii. 1320 Law Reform Commission of Canada, note 49, at 7. 1321 Archibald, note 6 at 12-7-12-10. 1322 Verhulst, note 140 at 286. 1323 Ontario Law Commission, note 569 at 16. 1324 Keith, note 418 at 316-318. 1325 See Richard Macrory, Regulation, Enforcement and Governance in Environmental Law (Oxford: Hart Publishing, 2010) at 26 who observes: "When one looks at the current system of regulatory sanctions in this country, be it environmental, trading standards or health and safety, it is remarkable how narrow the range of sanctions are." 1326 Provincial Offences Act (Ont), note 3. 1327 Provincial Offences Act (Ont), note 3, s.2(1). 1328 Criminal Code, note 7. 1329 Provincial Offences Act (Ont), note 3, s.61 provides that except where otherwise provided by law, every person who is convicted of an offence is liable to a fine of not more than $5,000. This "residual penalty" therefore does not provide for the use of imprisonment. When the Act was first enacted, the fine ceiling was set at $2,000. 1330 Sheilagh Stewart, Stewart on Provincial Offences Procedure in Ontario, 2nd ed. (Salt Spring Island: Earlscourt Legal Press, 2005) at 1. 1331 Provincial Offences Act (Ont.), note 3, s.42. 1332 Provincial Offences Act (Ont.), note 3, s.86. 1333 Provincial Offences Act (Ont.), note 3, s.91. 1334 Provincial Offences Act (Ont.), note 3, s.99. 1335 Drinkwalter, note 1319 at 212. 1336 Cotton Felts Ltd., note 26 at [QL] para. 19; Law Reform Commission of Canada, note 49 at 5. 1337 Provincial Offences Act (Ont), note 3. 1338 Offence Act (B.C.), note 430. 1339 Criminal Code, note 7. 1340 See, for example, the Nova Scotia Summary Proceedings Act, R.S. N.S. 1989, c.450 [Summary Proceedings Act (N.S.)]. 1341 BillC-41, note 217. 1342 Bill C-45, note 79. 1343 Stewart, note 1330 at 239. 1344 Stewart, note 1330 at 240. The one exception is s.97(1)(b) of the Provincial Offences Act (Ont.), note 3, which permits the court to grant an absolute discharge to young persons. However, this does not permit a power to grant absolute or conditional charges to be implied for adult offenders: see R. v. Sztuke (1993), 16 O.R. (4th) 559, [1993] O.J. No. 3038 (QL) (C.A.) [Sztuke]. 1345 Provincial Offences Act (Ont), note 3, s.60.1(1). 1346 Provincial Offences Act (Ont), note 3, s.60.1(4).
347 1347 Provincial Offences Act (Ont), note 3, s.66(1). 1348 Provincial Offences Act (Ont), note 3, s.66(2). 1349 Provincial Offences Act (Ont.), note 3, s.67. However, the fine option program contemplated by this section is not in force. As a result, there is no such program in operation in the province which allows for the payment of fines by means of credit for work. 1350 Provincial Offences Act (Ont), note 3, s.68. 1351 Provincial Offences Act (Ont), note 3, s.69. 1352 Provincial Offences Act (Ont), note 3, s.72(4). 1353 Provincial Offences Act (Ont), note 3, s.75. 1354 Highway Traffic Act (Ont), note 54, s.130. 1355 The Road Safety Act, S.O. 2009, c.5 [Road Safety Act (Ont.)] has raised the minimum penalty to $400 and increased the maximum amount to $2,000, but leaves unchanged the 6 months maximum period of imprisonment. 1356 Provincial Offences Act (Ont.), note 3, s.72(1)(a), 1357 Provincial Offences Act (Ont), note 3, s.72(1)(c). 1358 Provincial Offences Act (Ont.), note 3. 1359 Provincial Offences Act (Ont), note 3, s.72(4). 1360 Criminal Code, note 7. 1361 Criminal Code, note 7, s.732.2(2)(b). 1362 Criminal Code, note 7, s.731(1)(a). 1363 Criminal Code, note 7, s.731(1)(b). 1364 Criminal Code, note 7, s.743.1(1)(b). 1365 Provincial Offences Act (Ont.), note 3, s.72(1)(a). The preclusion of probation for proceedings commenced by certificate of offence under Part I has been affirmed by the courts in Ontario: see, for example, R. v. Nickel City Transport (Sudbury) Ltd. (1993), 14 O.R. (3d) 115, 63 O.A.C. 289 [Nickel City Transport (Sudbury) Ltd:], and more recently Ontario (Ministry of Labour) v. Creations by Helen Inc., 2007 ONCJ 713, [2007] O.J. No. 5560 (QL) [Creations by Helen Inc.]. 1366 Provincial Offences Act (Ont), note 3, s.72(7). 1367 The Occupational Health and Safety Act (Ont), note 80, s.2, provides that despite what is stated within any general or special legislation, such as the Provincial Offences Act, the provisions of the Occupational Health and Safety Act are to prevail. Given that the legislation contains penalties which are either fines or imprisonment, it is arguable that a Provincial Offences Act probation order may not be imposed: see Stewart, note 1330 at 272-273. 1368 Criminal Code, note 7, s.732.1(2)(a). 1369 Criminal Code, note 7, s.732.1(2)(b). 1370 Criminal Code, note 7, s.732.1(2)(c). 1371 Provincial Offences Act (Ont.), note 3, s.72(2)(a). 1372 Provincial Offences Act (Ont), note 3, s.72(2)(b). 1373 Provincial Offences Act (Ont.), note 3, s.72(2)(c). 1374 Drinkwalter, note 1319 at 245; Stewart, note 1330 at 273. 1375 Drinkwalter, note 1319 at.245. 1376 Criminal Code, note 7, s.732.1(3). 1377 Criminal Code, note 7, s.732.1(3.1). 1378 Criminal Code, note 7, s.732.1(3)(a). 1379 Criminal Code, note 7, s.732.1(3)(b). 1380 Criminal Code, note 7, s.732.1(3)(d). 1381 Criminal Code, note 7, s.732.1(3)(e). 1382 Criminal Code, note 7, s.732.1(3)(f). 1383 Criminal Code, note 7, s.732.1(3)h). 1384 Criminal Code, note 7, s.732.1(3.1). 1385 Provincial Offences Act (Ont), note 3, s.72(3)(a). 1386 Drinkwalter.-note 1319 at 245 explains that a reason for this limitation is that otherwise there would be "a significant potential for many persons to see provincial offence proceedings as a cheap and expeditious way to recover money for damages, particularly damages to automobiles."
348 1387 See, for example, the New Brunswick Provincial Offences Procedure Act, S.N.B. 1987, c.P- 22.1, s.74(3)(a) [Provincial Offences Procedure Act (N.B.)]. The Offence Act (B.C.), note 430, s.89(3)(a), contains a similar restitution and reparation condition, although the legislation provides for the entering into of a recognizance when sentence is suspended, as opposed to probation. The effect, however, is the same. 1388 Provincial Offences Act (Ont), note 3, s.72(3)(b). 1389 Drinkwalter, note 1319 at 245. 1390 See, for example, the Provincial Offences Procedure Act (N.B.), note 1387, s.74(3)(b). 1391 Provincial Offences Act (Ont.), note 3, s.72(3)(c). 1392 Drinkwalter, note 1319 at 246 provides the example that a defendant who is convicted of a liquor offence could not be prohibited from driving an automobile, or vice versa, unless the conduct prohibited actually contributed to the commission of the offence for which the defendant was found guilty. 1393 Provincial Offences Act (Ont), note 3, s.72(3)(d). 1394 Drinkwalter, note 1319 at 246. 1395 Provincial Offences Act (Ont.), note 3, s.72(4). 1396 Provincial Offences Act (Ont.), note 3, s.75(d). 1397 Provincial Offences Act (Ont), note 3, s.75(e). 1398 Ruby, note 253 at 441. 1399 Verhulst, note 140 at 286. 1400 Archibald, note 6 at 12-2. 1401 Archibald, note 6 at 13-13. 1402 Criminal Code, note 7, s.732.1(3.1). 1403 Keith, note 418 at 318. 1404 Provincial Offences Act (Ont.), note 3. 1405 Drinkwalter, note 1319 at 233. 1406 See Canadian Sentencing Commission, note 200 at 354-355 for a discussion of the use of fine option programs under the Criminal Code. 1407 For example, the defendant may request an extension of time for payment of the fine under s.66(2) of the Provincial Offences Act (Ont), note 3. Where the fine is a minimum fine, the court also has a limited jurisdiction to grant relief if there are "exceptional circumstances" to do so, such that payment of the minimum fine "would be unduly oppressive or otherwise not in the interests of justice": s.59(2). 1408 Fine Option Program, R.R.O. 1990, Reg. 948 (Fine Option Program). 1409 O.Reg. 925/93. See further Stewart, note 1330 at 293. 1410 Stewart, note 1330 at 293. The other jurisdictions without fine option programs are British Columbia, Nunavut and Newfoundland and Labrador. 1411 R. v. Wu (2001), 152 O.A.C. 300, [2001] O.J. No. 4885 at para. 42 (QL) [Wu]. 1412 R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, [2003] S.C.J. No. 78 at para. 54 (QL) [Wu]. 1413 Excise Act, R.S.C. 1985, c.E-14 [Excise Act]. 1414 Wu, note 1412 at [QL] para. 52. The trial judge imposed a conditional sentence of 75 days in default of payment of the minimum fine. This sentence was upheld by the Ontario Court of Appeal, in a split decision, but the Supreme Court of Canada reversed this decision, holding 8:1 that it was an error to impose a conditional sentence for default of payment of the fine. 1415 Criminal Code, note 7, s.717. 1416 Youth Criminal Justice Act, S.C. 2002, c.1, s.10 [Youth Criminal Justice Act]. 1417 Provincial Offences Act (Ont.), note 3. 1418 Canadian Environmental Protection Act, note 135. 1419 Canadian Environmental Protection Act, note 135, s.295. 1420 Ruby, note 253 at 134-135. 1421 Regulatory Modernization Act (Ont), note 485, ss.15(3), (4)(b). 1422 See for example R. v. Watkins (1992), 54 O.A.C. 200, [1992] O.J. No. 169 (QL) [Watkins] holding thats.12(1) of the Canada Evidence Act, R.S.C. 1985, c.C-5, permits cross-examination as to convictions for offences under all federal statutes. The statute in question was the Unemplyment Insurance Act, R.S.C. 1985, c.U-1, and the defendant had been convicted of
349 offences of dishonestly under it. At her trial for manslaughter, it was held that the cross- examination was proper. It appears that cross-examination is also permitted as to convictions for provincial regulatory offences under the authority of the Ontario Evidence Act, R.S.O. 1990, c.E.23, s.22, at least where the offence is one involving "moral turpitude": Deep v. Wood (1983), 143 D.L.R. (3d) 246, [1983] O.J. No. 23 (QL) at para. 9 (C.A.) [Deep]. See more recently R. v. Jackson, 2010 ONCJ 487, [2010] O.J. No. 4521 (QL) at paras. 245-252 [Jackson]. 1423 Criminal Code, note 7, s.717(1). 1424 Criminal Code, note 7, s.717(1)(b). 1425 Ruby, note 253 at 134-136. 1426 Criminal Code, note 7, s.717(1)(c). 1427 Criminal Code, note 7, s.717(2)(a). 1428 Criminal Code, note 7, s.717(2)(b). 1429 Ruby, note 253 at 134-136. 1430 Canadian Environmental Protection Act, note 135. 1431 Canadian Environmental Protection Act, note 135, s.296. 1432 Species at Risk Act, S.C. 2002, c.29 [Species at Risk Act]. 1433 Species at Risk Act, note 1432, s.110. 1434 Species at Risk Act, note 1432, s. 109(2). 1435 Public Health Act (B.C.), note 137, s.107. 1436 Public Health Act (B.C.), note 137, s.107(1)(c). 1437 Public Health Act (B.C.), note 137, s.107(1)(d). Note there is no maximum period of community service set out, unlike the ceiling of 240 hours in the Criminal Code probationary provisions pursuant to s.732.1(3)(f). 1438 Public Health Act (B.C.), note 137, s.107(1)(e). 1439 Public Health Act (B.C.), note 137, s.107(1)(f). •1440 Public Health Act (B.C.), note 137, s.107(1)(g). 1441 Public Health Act (B.C.), note 137, s.107(1)(h). This term has similarities with the optional probation condition for organizations: see Criminal Code, s.732.1(3.1)(e) imposing a like obligation on the organization's senior officer. 1442 Public Health Act (B.C.), note 137, s.107(1)(i). This provision is not unlike Criminal Code, s.732(3.1)(b) respecting the organization's obligation to establish policies, standards and procedures for this same purpose. 1443 Public Health Act (B.C.), note 137, s.107(1)(j). 1444 Public Health Act (B. C), note 137, s. 107(1 )(k). Such a term resembles Criminal Code, s.732(3.1)(f) respecting the organization's obligation to inform the public of such information. 1445 Public Health Act (B.C.), note 137, s.107(1)(l). 1446 Public Health Act (B.C.), note 137, s. 107(1). 1447 Provincial Offences Act (Ont), note 3. 1448 See Campbell, note 165; Hughes, note 165; Strickland, note 165; Libman, note 40 at 11.2(x). 1449 S.C. 1991, c.1, s.24, amending Fisheries Act, note 164. 1450 Fisheries Act, note 164, s.79.2(a). 1451 Fisheries Act, note 164, s.79(2)(b). 1452 Public Health Act (B.C.), note 137, s.107. 1453 R. v. Silver Hart Mines Ltd:, [1991] N.W.T.J. No. 160 (QL) [Silver Hart Mines Ltd.]. 1454 R. v. Amoco Canada Petroleum Co. (1993), 13 C.E.L.R. (N.S.) 317 (Alta.Prov.Ct). [Amoco Canada Petroleum Co.] 1455 Fletcher v. Kingston (City), [1999] O.J. No. 5705 (QL) (Prov.Div.) [Fletcher]. 1456 Corner Brook Pulp and Paper Ltd., note 824. 1457 Provincial Offences Act (Ont.), note 3. 1458 Canadian Sentencing Commission, note 200 at 348. 1459 Canadian Sentencing Commission, note 200 at 352. 1460 Canadian Sentencing Commission, note 200 at 353. 1461 Law Reform Commission of Canada, note 1183 at 375. 1462 Criminal Code, note 7.
350 1463 Criminal Code, note 7, s.732.1(3)(h). See R. v. Scherer (1984), 5 O.A.C. 297, [1984] O.J. No. 156 (QL) [Scherer] holding that the sentencing court has the authority to make "restitution or reparation" a term of probation where it is satisfied that the term can be reasonably performed during the period of probation. See further Ruby, note 253 at 645. 1464 Criminal Code, note 7, s.738(1). 1465 Criminal Code, note 7, s.741(1). 1466 Joan Barrett, Balancing Charter Interests. Victims' Rights and Third Party Remedies (Toronto: Thomson Canada Limited, 2001) at 4-77. 1467 Criminal Code, note 7, s.718(1)(e). 1468 Criminal Code, note 7, s.718(1)(f). 1469 Provincial Offences Act (Ont.), note 3. 1470 See, for example, Alberta's Provincial Offences Procedure Act, note 453, s.8(1), which authorizes an award of up to $2,000 as compensation for the victim's loss. If the amount awarded is not paid within the time ordered by the justice, the victim may file the order and have it entered as a judgment in the Court of Queen's bench where it is enforceable in the same manner as if it were a judgment rendered against the defendant in the Court of Queen's bench in civil proceedings: s.8(2). ,471 Thames Water Utilities Ltd., note 686. 1472 Thames Water Utilities Ltd., note 686, para. 53. See further Parpworth, note 699 at 31, who comments that such voluntary reparation provides an incentive for other polluters to acknowledge their responsibilities and "take swift action to put matters right." 1473 Provincial Offences Act (Ont.), note 3, s.72(3)(b). 1474 Provincial Offences Procedure Act (Alta.), note 453, s.8(2). 1475 Criminal Code, note 7. 1476 Criminal Code, note 7, s.490.1. 1477 Controlled Drugs and Substances Act, note 1287, s.16(1). 1478 Criminal Code, note 7, s.462.31(1). 1479 Ruby, note 253 at 663. 1480 R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392, [2006] S.C.J. No. 10 at para. 9 (QL) [Lavigne]. 1481 Archibald, note 6 at 12-13. 1482 Fisheries Act, note 164, s.72 1483 Wildlife Act, C.C.S.M. C.W130 [Wildlife Act (Man.)]. 1484 Turner v. Manitoba, 2001 MBCA 207, 160 Man. R. (2d) 256, [2001] M.J. No. 562 (QL) [Turner]. 1485 R. v. Perry, [2003] N.J. No. 27 (QL) (Prov.Ct.) [Perry]. 1486 R. v. Oafes (2002), 214 Nfld. & P.E.I.R. 166, [2002] N.J. No. 165 at para 12 (QL) (S.C.), affd 2004 NLCA6, 233 Nfld. & P.E.I.R. 138, [2004] N.J. No. 29 (QL) [Oates]. 1487 Provincial Offences Act (Ont.), note 3. 1488 Drinkwalter, note 1319 at 67. 1489 Stewart, note 1330 at 269. 1490 For example, the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c.41 [Fish and Wildlife Conservation Act (Ont.)], provides for forfeiture in certain circumstances. See further Stewart, note 1330 at 262. 1491 BillC-41, note 214. 1492 Ruby, note 253 at 533. 1493 Proulx, note 241; Gladue, note 239. 1494 Criminal Code, note 7, ss.742-742 7. 1495 Criminal Code, note 7, s.742.1. 1496 Criminal Code, note 7, s.742.3. 1497 Criminal Code, note 7, s.742.6 1498 Provincial Offences Act (Ont.), note 3 1499 See, for example, Virk, note 56. For a discussion of other cases to this effect, see Libman, note 40 at 11.2(t) 1500 Wu, note 1412.
351 1501 See, for example, R. v. Mitchell, 2007 ONCJ 218, [2007] O.J. No.2016 (QL) [Mitchell]; R. v. Wagenaar, 2006 ONCJ 551, [2006] O.J. No. 5531 (QL) [Wagenaar]. 1502 Criminal Code, note 7, s.742.3(2)(d). 1503 See, for example, R. v. Stroshein, 2001 SKCA 20, 203 Sask. R. 183, [2001] S.J. No. 90 (QL) [Stroshein]. 04 Criminal Code, note 7, s.380. 1505 Securities Act (Ont.), note 81, s.122. 1506 Criminal Code, note 7, s. 249.2. 1507 Highway Traffic Act (Ont), note 53, s.172. 1508 R. v. Scott Steel Ltd., 2003 BCSC 271, [2003] B.C.J. No. 396 (QL), leave to appeal refused, 2004 BCCA 2, [2004] B.C.J. No. 2 (QL) [Scott Steel Ltd.]. 1509 Archibald, note 6 at 9-2. 1510 Provincial Offences Act (Ont), note 3, s.2(1). 1511 Provincial Offences Act (Ont.), note 3 1512 Criminal Code, note 7. 1513 The Criminal Code, note 7, definition of "victim" includes "a person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence": s.722(4)(a). Where no such person is capable of making a victim impact statement due to, for example, death or illness, the victim's spouse, common-law partner, relative or anyone responsible for the care or support of that person, or any dependent of that person, may provide a victim impact statement: s.722(4)(b). 1514 Criminal Code, note 7, s.722(2). 1515 Criminal Code, note 7, s.722(1) 1516 Criminal Code, note 7, s.722(2.1). 1517 Criminal Code, note 7, s.722.2(1). 1518 Criminal Code, note 7, s.722.2(2). 1519 Criminal Code, note 7, s.718(e). 1520 Ruby, note 253 at 633. See further Barrett, note 1466 at 4-22-4-23. 1521 R v. Gabriel (1999), 98 O.T.C. 193, [1999] O.J. No. 2579 at para. 19 (QL) (S.C.) [Gabriel]. 1522 R. v. Neely, [2003] O.J. No. 1977 at para. 191 (QL) (S.C.) [Neely]. 1523 R. v. Taylor (2004), 189 O.A.C. 388, [2004] O.J. No. 3439 at para. 42 (QL) [7ay/or], 1524 See, for example, R. v. Hatchings, 2004 ONCJ 200, [2004] O.J. No. 3950 (QL) [Hatchings]; R. v. Trigiani, [2000] O.J. No. 5872 at para 16 (QL) (C.J.), aff'd (2001), 18 M.V.R. (4th) 222, [2001] O.J. No. 6111 (QL) (S.C.J.) [Trigiani]; R. v. Messercola, 2005 ONCJ 6, [2005] O.J. No. 126 (QL) [Messercola]; Di Franco, note 794. For a recent case where there were objections to the admissibility of portions of the victim impact statements, see R. v. Long Lake Forest Products Inc., 2009 ONCJ 241, [2009] O.J. No. 2193 (QL). [Long Lake Forest Products Inc.]. 1525 R. v. Robinson, 2008 BCSC 1195, [2008] B.C.J. No. 1691 (QL) [Robinson]. 1526 Criminal Code, note 7, s.335. 1527 Highway Traffic Act (Ont), note 54, s.128. 1528 Criminal Code, note 7, s.249. 1529 Highway Traffic Act (Ont), note 54, s. 130. 1530 Cotton Felts Ltd., note 26. 1531 Adomako, note 160. ]532-Kirk, note 161. 1533 Dawson, note 163. 1534 Ontario Law Commission, note 569 at 10-12. 1535 Environmental Enforcement Act (Ont), note 55, s.182.1(11).
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R. v. Corner Brook Pulp and Paper Ltd. (1990), 85 Nfld. & P.E.I.R. 64, [1990] N.J. No. 417 (QL) (S.C.) R. v. Corner Brook Pulp & Paper Ltd. (1996), 22 C.E.L.R. (N.S.) 199 (Nfld.Prov.Ct.) R. v. Lundrigan Group Ltd., [1990] N.J. No. 449 (QL) (S.C.) R. v. Mad Man Murphy Limited (1983), 45 Nfld. & P.E.I.R. 116, [1983] N.J. No. 168 (QL) (Dist.Ct.) R. v. Miller Shipping Ltd., 2007 NLTD 208, 272 Nfld. & P.E.I.R. 305, [2007] N.J. No. 412 (QL) R. v. Miller Shipping Ltd., 2009 NLCA 57, [2009] N.J. No. 274 (QL) R. v. Newfoundland Recycling Ltd., 2008 NLTD 38, 274 Nfld. & P.E.I.R. 83, [2008] N.J. No. 71 (QL) R. v. Newfoundland Recycling Ltd., 2009 NLCA 28, 284 Nfld. & P.E.I.R. 153, [2009] N.J. No. 105 (QL) R. v. Oates (2002), 214 Nfld. & P.E.I.R. 166, [2002] N.J. No. 165 (QL) (S.C), affd 2004 NLCA 6, 233 Nfld. & P.E.I.R. 138, [2004] N.J. No. 29 (QL) R. v. Pennecon Ltd., [1996] N.J. No. 9 (QL) (S.C.) R. v. Perry, [2003] N.J. No. 27 (QL) (Prov.Ct.) R. v. Tahkuna (The) (2002), 210 Nfld. & P.E.I.R. 68, [2002] N.J. No. 62 (QL) (S.C.) R. v. Welcher, 2007 NLTD 87, 267 Nfld. & P.E.I.R. 211, [2007] N.J. 153 (QL)
Northwest Territories
R. v. Echo Bay Mines Ltd., [1984] N.W.T.R. 303, [1984] N.W.T.J. No. 35 (QL) (S.C.) R. v. Kenaston Drilling (Arctic) Ltd (1973), 12 C.C.C. (2d) 383, [1973] N.W.T.J. No. 1 (QL) (S.C.) R. v. Northwest Territories (Commissioner), [1994] N.W.T.R. 354, [1994] N.W.T.J. No. 58 (QL) (S.C.) R. v. Northwest Territories Power Corp., [1990] N.W.T.R. 125, [1990] N.W.T.J. No. 38 (QL) (S.C.) R. v. Panarctic Oils Ltd., [1983] N.W.T.R. 143, [1983] N.W.T.J. No. 17 (QL) R. v. Placer Development Ltd., [1983] N.W.T.R. 351, [1982] N.W.T.J. No. 37 (QL) (S.C.) R. v. Silver Hart Mines Ltd., [1991] N.W.T.J. No. 160 (QL)
Nova Scotia
R. v. Aetna Insurance Co. era/(1975), 13 N.S.R. (2d) 693, [1975] N.S.J. No. 425 (QL) (C.A.) R. v. B.A. Denton Management Ltd. (1993), 127 N.S.R. (2d) 386, [1993] N.S.J. No. 542 (QL) (S.C.) R. v. A/at/g/er(1981), 49 N.S.R. (2d) 677, [1981] N.S.J. No. 547 (QL) (C.A.) R. v. Nova Scotia (Minister of Transportation and Public Works), 2003 NSSC 274, 277 N.S.R. (2d) 11, [2003] N.S.J. No. 558 (QL) R. v. Nova Scotia Power Inc., (1999), 173 N.S.R. (2d) 179, [1999] N.S.J. No. 26 (QL) (S.C.) R. v. Oxford Frozen Foods Ltd. (1989), 91 N.S.R. (2d) 334, [1989] N.S.J. No. 500 (QL) (Co.Ct.)
355 R v. Vac Daniels Ltd. (1997), 159 N.S.R. (2d) 399, [1997] N.S.J. No. 160 (QL) (C.A.)
Nunavut
R v. Iqaluit (City), [2002] Nu. J. No. 1 (QL) (C.J.) R. v. Iqaluit (City), [2002] Nu. J. No. 2 (QL) (C.J.)
Ontario
Deep v. Wood (1983), 143 D.L.R. (3d) 246, [1983] O.J. No. 23 (QL) (C.A.) Fletcher v. Kingston (City), [1999] O.J. No. 5705 (QL) (Prov.Div.) Ontario (Minister of the Environment) v. Quinte-Eco Consultants Inc., 2008 ONCA 630, [2008] O.J. No. 3533 (QL) Ontario (Ministry of Labour) M.Bruno's Contracting (Thunder Bay) Ltd., 2008 ONCA 495, 237 O.A.C. 311, [2008] O.J. No. 2442 (QL) [In Chambers] Ontario (Ministry of Labour) v. Creations by Helen Inc., 2007 ONCJ 713, [2007] O.J. No. 5560 (QL) Ontario (Motor Vehicle Dealers Act, Registrar) v. Bechaalani, [2005] O.J. No. 4631 (QL) (S.C.J.) R. v. A &M Records of Canada Ltd. (1980), 51 C.P.R. (2d) 225, [1980] O.J. No. 3910 (QL) (Co.Ct.) R. v. ARC. Ready-Mix Ltd. (1972), 17 C.P.R. (2d) 91, [1972] O.J. No. 367 (QL) (H.C.) R. v. Ade-Ajayi, 2011 ONCA 192, [2011] O.J. No. 1016 (QL) R. v. Adomako, [2002] O.J. No. 3050 (QL) (C.J.) R. v. Adomako, [2002] O.J. No. 3915 (QL) (C.J.) R. v. Armco Canada Ltd. (1977), 13 O.R. (2d) 32, [1976] O.J. No. 2066 (QL) (C.A.), leave to appeal refused, [1976] 1 S.C.R. vii R v. Bata Industries Ltd. (1992), 7 C.E.L.R. (N.S.) 245 at 293 (Ont.Prov.Div.) R. v. Bata Industries Ltd. (1993), 14 O.R. (3d) 354, [1993] O.J. No. 1679 (QL) (Gen.Div.) R. v. Bata Industries Ltd. (1995), 25 O.R. (3d) 321, [1995] O.J. No. 2691 (QL) (C.A.) R. v. Beach Motors Inc., [2002] O.J. No. 4458 (QL) (C.J.) R. v. B.E.S.T. Plating Shoppe Ltd. (1986), 1 C.E.L.R. (N.S.) 85, [1986] O.J. No. 706 (QL) (H.C.) R. v. B.E.S.T. Plating Shoppe Ltd. and Siapas (1987), 59 O.R. (2d) 145, 21 O.A.C. 62, [1987] O.J. No. 165 (QL) R. v. Browning Arms Co. of Canada (1974), 18 C.C.C. (2d) 298, [1974] O.J. No. 502 (QL) (C.A.) R. v. Canadian General Electric Co. (1977) 35 C.P.R. (2d) 210, [1977] O.J. No. 509 (QL) (H.C.) R. v. Canadian Liquid Air Ltd., [1991] O.J. No. 1780 (QL) (Gen.Div.) R v. Canadian Oxygen Ltd., [1991] O.J. No. 1797 (QL) (Gen.Div.) R v. Canadian Pacific Ltd. (1994), 15 C.E.L.R. (N.S.) 181, [1994] O.J. No. 2573 (QL) (Gen.Div.) R v. Canadian Tire Corp., [2004] O.T.C. 668, [2004] O.J. No. 3129 (QL) (S.C.J.) R v. Commander Busines Furniture Inc. [1994] O.J. No. 313 (QL) (Gen.Div.) R v. Consumers Distributing Co. (1980), 57 C.C.C. (2d) 317, [1980] O.J. No. 290 (QL) (C.A.) R v. Consumers Distributing Co., [1981] O.J. No. 304 (QL) (Co.Ct.) R v. Cotton Felts Ltd. (1982), 2 C.C.C. (3d) 287, [1982] O.J. No. 178 (QL) (C.A.) R v. Dial Drug Stores Ltd. (2001), 52 O.R. (3d) 367, [2001] O.J. No. 159 (QL) (C.J.); rev'd (2003), 63 O.R. (3d) 529, [2003] O.J. No. 754 (QL) (S.C.J.) R v. Di Franco, [2008] O.J. No. 879 (QL) (S.C.J.) R v. Domtar Packaging Red Rock Mill, a Division ofDomtarlnc. (2000), 36 C.E.L.R. (N.S.) 307, [2000] O.J. No. 5112 (QL) (S.C.J.) R v. Domtar Specialty Fine Papers, a Division ofDomtarlnc, [2001] O.T.C. 335, [2001] O.J. No. 1733 (QL) (S.C.J.) R v. Dow Chemical Canada Inc., [1997] O.J. No. 3301 (QL) (Gen.Div.) R v. Dow Chemical Canada Inc. (2000), 47 O.R. (3d) 577, 130 O.A.C. 26, [2000] O.J. No. 757 (QL) R v. Dupont Canada Inc., [1992] O.J. No. 2144 (QL) (Gen.Div.)
356 R. v. Ellis-Don Ltd., [1987] O.J. No. 1669 (QL) (Dist.Ct.) R. v. Ellis-Don Ltd. (1990), 1 O.R. (3d) 193, 42 O.A.C. 49, [1990] O.J. No. 2208 (Q.L) R v. Epson (Canada) Ltd. (1987), 19 C.P.R. (3d) 195 , [1987] O.J. No. 2708 (QL) (Dist.Ct.) R v. Epson (Canada) Ltd. (1990), 32 C.P.R. (3d) 78, [1990] O.J. No. 1003 (QL) (C.A.) R. v. F.W. Woolworth Co, [1992] O.J. No. 1507 (QL) (Gen.Div.) R. v. Fantini, [2005] O.J. No. 2361 (QL) (C.J.) R v. Ford Motor Co. of Canada (1979), 49 C.C.C. (2d) 1, [1979] O.J. No. 964 (QL) (C.A.) R v. Gabriel (1999), 98 O.T.C. 193, [1999] O.J. No. 2579 (QL) (S.C.) R. v. Hamilton (2004), 72 O.R. (3d) 1, [2004] O.J. No. 3252 (QL) (C.A.) R. v. Henry Heyink Construction Ltd. (1999), 118 O.A.C. 22261, [1999] O.J. No. 238 (QL) R. v. Hickey (1976), 13 O.R. (2d) 228 (C.A.) R. v. Hoffmann-LaRoche Limited (No.2) (1980), 30 O.R. (2d) 461 (H.C.) R. v. Hoffmann-La Roche Ltd. (Nos. 1 and 2) (1981), 33 O.R. (2d) 694, [1981] O.J. No. 3075 (QL) (C.A.) R. v. Hutchings, 2004 ONCJ 200, [2004] O.J. No. 3950 (QL) R. v. Inco Ltd. (2000), 132 O.A.C. 268, [2000] O.J. No. 1868 (QL) R. v. Inco Ltd., [2001] O.J. No. 4938 (QL) (S.C.J.) R. v. Jackson, 2010 ONCJ 487, [2010] O.J. No. 4521 (QL) R. v. Jenkins, 2010 ONCA 278, 99 O.R. (3d) 561, 260 O.A.C. 296, [2010] O.J. No. 1517 R. v. Kanda, 2008 ONCA 22, 88 O.R. (3d) 732, 233 O.A.C. 118, [2008] O.J. No. 80 (QL) R. v. Kirk, 2005 ONCJ 352, [2005] O.J. No. 3316 (QL) R v. Law's Contracting Co., [1988] O.J. No. 1872 (QL) (Dist.Ct.) R v. Long Lake Forest Products Inc., 2009 ONCJ 241, [2009] O.J. No. 2193 (QL) R v. Lopes (1988), 3 C.E.L.R. (N.S.) 78, [1988] O.J. No. 874 (QL) (Dist.Ct.) R v. Matachewan Consolidated Mines Ltd. (1994), 13 C.E.L.R. (N.S.) 156, [1994] O.J. No. 4196 (QL) (Gen.Div.) R v. Medi-Man Rehabilitation Products, Inc. (1998), 76 O.T.C. 143, [1998] O.J. No. 2709 (QL) (S.C.J.) R v. Messercola, 2005 ONCJ 6, [2005] O.J. No. 126 (QL) R v. Mitchell, 2007 ONCJ 218, [2007] O.J. No.2016 (QL) R v. Neely, [2003] O.J. No. 1977 (QL) (S.C.) R v. Nickel City Transport (Sudbury) Ltd. (1993), 14 O.R. (3d) 115, 63 O.A.C. 289 R v. Ontario Hydro, [1988] O.J. No. 1673 (QL) (Dist.Ct.) R v. Pellegrini, 2006 ONCJ 297, [2006] O.J. No. 3369 (QL) R v. Polewsky (2005), 202 C.C.C. (3d) 257, [2005] O.J. No. 4500 (QL) (C.A.), leave to appeal to S.C.C. refused, [2006] 1 S.C.R. xiii R v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, 238 O.A.C. 242, [2008] O.J. No. 2468 (QL) R v. Raham, 2010 ONCA 206, 99 O.R. (3d) 241, 260 O.A.C. 143, [2010] O.J. No. 1091 (QL) R v. Rainone Construction Ltd., [1999] O.J. No. 3315 (QL) (S.C.J.) R v. Rijal, 2010 ONCJ 329, [2010] O.J. No. 3440 (QL) R v. Saeed, 2010 ONCJ 251, [2010] O.J. No.2689 (QL). R v. Safety-Kleen Canada Inc. (1997), 32 O.R. (3d) 493, [1997] O.J. No. 800 (QL) (C.A.) R v. Serfaty (2006), 81 O.R. (3d) 440, 212 O.A.C. 227, [2006] O.J. No. 2281 (QL) R v. Shamrock Chemicals Ltd. (1989), 4 C.E.L.R. (N.S.) 315, [1989] O.J. No. 2356 (QL) (Dist.Ct.) R v. Snap-On Tools Canada Ltd., [2002] O.J. No. 5520 (QL) (C.J.) R v. Stelco Inc., [2006] O.J. No. 3332 (QL) (S.C.J.) R v. St. Lawrence Corp. Ltd., [1969] 2 O.R. 305, [1969] O.J. No. 1326 (QL) (C.A.) R v. Steinberg's Ltd. (1976), 13 O.R. (2d) 293, [1976] O.J. No. 2201 (QL) (C.A.) R v. Stucky, 2009 ONCA 151, F2009] O.J. No. 600 (QL) R v. Sztuke (1993), 16 O.R. (4h) 559, [1993] O.J. No. 3038 (QL) (C.A.) R v. Taylor (2004), 189 O.A.C. 388, [2004] O.J. No. 3439 (QL) R v. Total Ford Sales Ltd. (1987), 18 C.P.R. (3d) 404, [1987] O.J. No. 1421 (QL) (Dist.Ct.) R v. Trigiani, [2000] O.J. No. 5872 at para 16 (QL) (C.J.), aff'd (2001), 18 M.V.R. (4th) 222, [2001] O.J. No. 6111 (QL) (S.C.J.) R v. Virk, [2002] O.J. No. 4102 (QL) (C.J.)
357 R. v. Wagenaar, 2006 ONCJ 551, [2006] O.J. No. 5531 (QL) R. v. Watkins (1992), 54 O.A.C. 200, [1992] O.J. No. 169 (QL) R. v. Wells (2003), 38 M.V.R. (4th) 93, [2003] O.J. No. 2025 (QL) (C.J.) R. v. Wu (2001), 152 O.A.C. 300, [2001] O.J. No. 4885 (QL) R. v. 663374 Ontario Ltd., [1991] O.J. No. 1631 (QL)(Gen.Div.) Toronto (Metropolitan) v. Siapas (1988), 3 C.E.L.R. (N.S.) 122, [1988] O.J. No. 1359 (QL) (H.C.) Toronto (Metropolitan) v. Siapas, [1988] O.J. No. 2564 (QL) (H.C.) Wilderv. Ontario Securities Commission (2001), 53 O.R. (3d) 519, 142 O.A.C. 300, [2001] O.J. No. 1017 (QL) Woods\i. Ontario (Minister of Natural Resources), [2007] O.J. No. 1208 (QL) (S.C.J.)
Prince Edward Island
R. v. S.S. Kresge Co. Ltd. (1975), 8 Nfld. & P.E.I. R. 415, [1975] P.E.I. J. No. 59 (C.A.)
Quebec
R. v. Lemieux (1978), 41 C.C.C. (2d) 33, [1978] Q.J. No. 184 (QL) (C.A.) R. v. Mouyal, 2007 QCCQ 6141, [2007] Q.J. No. 6077 (QL) R. v. Services environnementaux Laidlaw (Mercier) Ltee, [1998] R.J.Q. 276, [1997] Q.J. No. 4156 (QL) (C.S.) R. v. Transpave Inc., 2008 QCCQ 1598, [2008] Q.J. No. 1857 (QL)
Saskatchewan
R. v. Churchbridge (Regional Municipality), 2005 SKQB 524, 273 Sask. R. 29, [2005] S.J. No. 746 (QL) R. v. Pederson, 2000 SKQB 255, 194 Sask. R. 102, [2000] S.J. No. 401 (QL) R. v. Rosin, 2005 SKPC 69, 267 Sask. R. 154, [2005] S.J. No. 471 (QL), var'd 2005 SKQB 537, 273 Sask. R. 114, [2005] S.J. No. 757 (QL) R. v. Sage Well Services Ltd., 2000 SKQB 259, 194 Sask. R. 65, [2000] S.J. No. 448 (QL) R. v. Saskaatchewan Wheat Pool (1999), 185 Sask. R. 114, [1999] S.J. No. 711 (QL) (Q.B.) R v. Schulzke, 2008 SKPC 149, [2008] S.J. No. 790 (QL) R. v. Stroshein, 2001 SKCA 20, 203 Sask. R. 183, [2001] S.J. No. 90 (QL) R. v. Westfair Foods Ltd., 2005 SKPC 26, 263 Sask. R. 162, [2005] S.J. No. 279 (QL)
Yukon
R. v. Dawson (City), 2003 YKTC 16, [2003] Y.J. No. 22 (QL) R. v. Dawson (City), 2004 YKTC 69, [2004] Y.J. No. 94 (QL) R. v. United Keno Hill Mines Ltd. (1980), 10 C.E.L.R. 43, [1980] Y.J. No. 10 (QL) (T.C.)
Australia
R. v. Rushby, [1977] 1 N.S.W.L.R. 594 (C.A.)
United Kingdom
R. v. Anglian Water Services Ltd., [2003] EWCA Crim 2243, [2004] 1 Cr. App. R. (S.) 62 (CCA.) R. v. Balfour Beatty Rail Infrastructure Services Ltd., [2006] EWCA Crim 1586, [2007] Bus. L.R. 77 (CCA.)
358 R. v. Cemex Cement Ltd., [2007] EWCA Crim 1759, [2008] 1 Cr. App. R. (S.) 80 (CCA.) R. v. Clifton Steel Ltd., [2007] EWCA Crim 1537 (CCA.). R v. F. Howe & Son (Engineers) ZJd,[1998] EWCA Crim 3154, [1999] 2 All E.R. 249, [1999] 2 Cr. App. R. (S.) 37 (CCA.) R. v. Friskies Petcare (UK) Ltd., [2000] EWCA Crim 95, [2000] 2 Cr App R (S) 401, [2000] E.W.J. J. No. 1568 (QL) (CCA.) R v. Kelleher, [2009] Crim. L.R. 369, [2008] EWCA Crim 3055, [2009] 2 Cr. App. R. (S.) 25 (CCA.) R. v. Milford Haven Port Authority, [2000] 2 Cr. App. R. (S.) 423, [2000] E.W.J. No. 1731 (QL) (CCA.) R. v. Newton (1982), 77 Cr. App. R. 13, 4 Cr. App. R. (S.) 388 (CCA.) R. v. Ro//co Screw & Rivet Co. Ltd., [1999] 2 Cr. App. R. (S.) 436 (CCA.) R v. Thames Water Utilities Ltd., [2010] EWCA Crim 202 (CCA.) R v. Severn Trent Water Ltd. (1996), 8 J. Envtl. L.Rev. 389 (Crwn Ct.) R v. Yorkshire Water Services Ltd., [2001] EWCA Crim 2635, [2002] 2 Cr. App. R. (S.) 13 (CCA.)
United States
Blakelyv. Washington, 542 U.S. 296 (2004) Morissette v. United States, 342 U.S. 246 (1952) United States v. Booker, 543 U.S. 220 (2005) United States v. Dillon, 130 S.Ct. 2683 (2010) United Statesv. Ellen, 961 F. 2d 462 (4ih Cir. 1992), cert, denied, 113 S.Ct. 217 (1992)
359 Legislation
Canada
An Act to amend the Criminal Code (Sentencing) and other Acts in consequence thereof (Bill C- 41), S.C. 1995, c.22 An Act to amend the Criminal Code (Criminal Liability of Organizations) (Bill C-45), S. C. 2003, c.21 An Act to amend the Criminal Code (Capital Markets Fraud and Evidence-Gathering) (Bill C-13) S.C. 2004, c.3. An Act to amend the Criminal Code of Canada (Conditional Sentence of Imprisonment), (Bill C-9) (2006) An Act to amend the Criminal Code (Conditional Sentence of Imprisonment), S.C. 2007, c.12 Application of Provincial Laws Regulations, SOR/96-312. Canada Business Corporations Act, R.S.C. 1985, c.C-44 Canada Shipping Act, R.S.C. 1985, c.S-9 Canada Shipping Act, 2001, S.C. 2001, c.16 Canadian Charter of Rights and Freedoms, Schedule B, The Constitution Act, 1982 Canada Evidence Act, R.S.C. 1985, c.C-5 Canadian Environmental Protection Act, 1999, S.C. 1999, c.33 Canadian Environmental Protection Act, R.S.C. 1985, c.16 Combines Investigation Act, R.S.C. 1970, c.C-23. Combines Investigation Act, R.S.C. 1985, c.C-23 Competition Act, R.S.C. 1985, c.C-34 Contraventions Act, S.C. 1992, c.47 Controlled Drugs and Substances Act, S.C. 1996, c. 19 Criminal Code, R.S.C. 1985c.C-46 Employment Insurance Act, S.C. 1996, c.18 Excise Act, R.S.C. 1985, c.E-14 Fisheries Act, R.S.C. 1985, c.F-14 Income Tax Act, R.S.C. 1985, c.1 (5th Supp.) Interpretation Act, R.S.C. 1985, c.l-21 Motor Vehicle Safety Act, R.S.C. 1970, c.26 Office of the Superintendent of Financial Institutions Act, R.S.C. 1985, c.18 Ozone Depleting Substance Regulations, 1998, SOR/99-7. Species at Risk Act, S.C. 2002, c.29 Unemplyment Insurance Act, R.S.C. 1985, c.U-1 Youth Criminal Justice Act, S.C. 2002, c.1
Alberta
Alberta Utilities Commission Act. S.A. 2007, cA-37.2 Dangerous Goods Transportation and Handling Act, S.A. 1998, c.D-3.5 Environmental Protection and Enhancement Act, R.S.A. 1980c.E-13.3 Environmental Protection and Enhancement Act, S.A. 1992 c.E-13.3 Fair Trading Act, R.S.A. 2000, c.F-2 Local Authorities Election Act, R.S.A. 2000, c.l-21 Occupational Health and Safety Act, R.S.A. 1980, c.O-2 Provincial Offences Procedure Act, R.S.A. 2000, c.P-34 Wildlife Act, R.S.A. 2000, c.W-10
360 British Columbia
Health Act, R.S.B.C. 1996, c.179 Offence Act, R.S.B.C. 1996, c.338 Public Health Act, S.B.C. 2008, c.28 Waste Management Act, R.S.B.C. 1996, c.482
Manitoba
Wildlife Act, C.C.S.M., C.W130
New Brunswick
Clean Air Act, S.N.B. 1997, c.C-5.2 Clean Environment Act, R.S.N. B. 1973, c.C-6 Provincial Offences Procedure Act, S.N.B. 1987, c.P-22.1
Newfoundland
Department of Environment and Lands Act, R.S.N. 1990, c.D-11
Nova Scotia
Environmental Protection Act, S.N.S. 1973, c.6 Summary Proceedings Act, R.S. N.S. 1989, c.450
Ontario
Business Corporations Act, R.S.O. 1990, c.B.16 Business Practices Act, R.S.O. 1990, c.B.18 Compulsory Automobile Insurance Act, R.S.O. 1990, c.C.25 Environmental Enforcement Statute Law Amendment Act, 2005, S.O. 2005, c.12 Environmental Protection Act, R.S.O. 1980, c.141 Environmental Protection Act, R.S.O. 1990, c.E.19 Evidence Act, R.S.O. 1990, c.E.23. Fine Option Program, R.R.O. 1990, Reg. 948 Fish and Wildlife Conservation Act, 1997, S.O. 1997, c.41 Good Government Act, 2009, S.O. 2009, c.33. Highway Traffic Act, R.S.O. 1990, c.H.8 Occupational Health and Safety Act, R.S.O. 1980, c.321 Occupational Health and Safety Act, R.S 0.1990, c 0.1 Ontario Water Resources Act, R.S.O. 1980, c.361 Ontario Water Resources Act, R.S.O. 1990, c.O.40 Provincial Offences Act, S.O. 1979, c.4 Provincial Offences Act, R.S.O. 1990, c.P.33 Regulatory Modernization Act, 2007, S.O. 2007, c.4 Retail Sales Tax Act, R.S.O. 1990, c.R.31 Road Safety Act, S.O. 2009, c.5 Securities Act, R.S.O. 1990, c.S.5 Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16
361 Quebec
Environmental Quality Act, R.S.Q., c.Q-2
Saskatchewan
Occupational Health and Safety Act, 1993, S.S. 1993, c.0-1.1
Australia
New South Wales Crimes (Sentencing Procedure) Act 1999, 92/99 New South Wales Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 New South Wales Occupational Health and Safety Amendment (Sentencing Guidelines) Bill 2000, No. 9/2000 Northern Territory Sentencing Act 1995 Queensland Penalties and Sentences Act 1992 South Australia Criminal Law (Sentencing) Act 1988 Tasmania Sentencing Act 1997, 59/97 Victoria Occupational Health and Safety Act 1985, No. 10190/1985 Victoria Occupational Health and Safety Act 2004, No. 107/2004 Victoria Sentencing Act 1991, 49/91 Western Australia Sentencing Act 1995, 76/95
Finland
Finnish Penal Code, 466/1976.
International
Rio Declaration on Environment and Development, UN Doc. A/Conf. 151/5/Rev. 1 (1992)
Netherlands
Netherlands Penal Code (1886)
New Zealand
Building Act 2004, 72/04 Civil Aviation Act 1990, 98/90 Dog Control Act 1996, 13/96 Fisheries Act 1996, 88/96 Health and Safety in Employment Act 1992, 96/92 Resource Management Act 1991, 69/91 Sentencing Act 2002, 9/02 Sentencing Amendment Act 2007, 27/07
362 Sweden
Swedish Penal Code 1999, Ds 1999:36
Switzerland
Switzerland Penal Code
United Kingdom
Coroners and Justice Act 2009 (c.25) Coroners and Justice Bill (2009) Crime and Disorder Act 1998 (c.37) Criminal Appeal Act 1995 (c.35) Criminal Justice Act 1991 (c.53) Environment Act 1995 (c.25) Environmental Protection Act 1990 (c.43) Health and Safety at Work etc. Act 1974 (c.37) Producer Responsibility Obligations (Packaging Waste) Regulations 1997, S.I. 1997 (No. 648) Regulatory Enforcement and Sanctions Act 2008 (c. 13) Water Industry Act 1991 (c 56) Water Resources Act 1991 (c.57)
United States
Clean Water Act, 33 U.S.C. # 1251. Model Penal Code (1962) [American Law Institute] Occupational Health and Safety Act of 1970, P.L 91-596, 84 Stat. 1590 Sentencing Guidelines Bill, S. 2699, 94th Cong. 2d Sess. Sentencing Reform Act of 1984, P.L. No. 98-473, 98. Stat. 1987 (codified at 18 U.S.C. #3551- 3673 (1988); 28 U.S.C. 991-998 (1988))
363 Literature
Abbott, Carolyn, "The Regulatory Enforcement and Sanctions Act 2008" (2009), 10 Envtl. L. Rev. 38.
Acres, Douglas, "Consistently achieving our sentencing aims" in Pennington, Donald C, and Lloyd-Bostock, Sally, eds., The Psychology of Sentencing (Oxford: Short Run Press, 1987).
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