SENTENCING PURPOSES AND PRINCIPLES FOR PROVINCIAL OFFENCES The Modernization of the Provincial Offences Act June 2010 Commissioned by the Law Commission of Ontario Prepared by The Honourable Mr. Justice Rick Libman The LCO commissioned this paper to provide background research for its Modernization of the Provincial Offences Act project. The views expressed in this paper do not necessarily reflect the views of the LCO. Acknowledgments I would like to express my appreciation to the Law Commission of Ontario for providing me with this opportunity to author a research paper on sentencing purposes and principles for provincial offences. I would also like to thank the Office of the Chief Justice of the Ontario Court of Justice for supporting, and indeed encouraging, my interest and involvement in this project. I have particularly benefited from the guidance and helpful comments and observations made by Mark Schofield, Law Commission of Ontario Counsel in Residence; Professors Alan Young and Liora Salter of Osgoode Hall Law School York University; Professor Kenneth Jull of the University of Toronto Faculty of Law, and Faculty of Graduate Studies Osgoode Hall Law School York University; Senior Advisory Justice of the Peace Andrew C. Clark; Sheilagh Stewart, Crown Counsel, Ministry of Attorney General, Ontario; and Sherie Verhulst, Legislative Counsel, Ministry of Attorney General, British Columbia. I am also grateful for the assistance of Despina Cadieux, a law student, who reviewed and edited a draft of this research paper, as well as Grace Dadone for her secretarial assistance. The views expressed in this research paper represent my own personal opinions, gleaned from my combined experiences as a Crown Counsel, adjunct law professor, graduate law student and judge of the Ontario Court of Justice. They do not purport to represent the views of the any of the institutions with which I am, or have been, affiliated. Rick Libman Table of Contents INTRODUCTION………………………………………………………………………. 1 PART I: FRAMING THE PROBLEM A. Regulatory Offences and Sentencing Provisions 1. Introduction………………………………………………………………………….11 2. Overview of Regulatory Offences, Enforcement Mechanisms and Penalty Provisions………………………………………………………………………………12 3. The Nature of Regulatory Offences……………..………………………………..16 4. Overlap of Regulatory Offences and Criminal Offences………………………..19 5. Regulatory Offences and Statutory Interpretation… …………………………...22 6. The Recent Trend of Escalating Penalties for Regulatory Offences …………24 7. Matrix of Regulatory Offences Sentencing Decisions…………………………..32 8. Statement of Sentencing Purposes and Principles in Other Statutes….……..37 9. Conclusion…………………………………………………………………………..40 PART II: SETTING THE STAGE A. Purposes and Principles of Sentencing for Criminal Offences 1. Introduction………………………………………………………………………… 42 2. History of Sentencing Reform prior to the Criminal Code of Canada Statement of Sentencing Purposes and Principles …………………………………………...43 3. The Enactment of a Statement of Sentencing Purposes and Principles for Criminal Offences ……………………………………………..50 4. Conclusion…………………………………………………………………………..56 PART III: DEVELOPING THE FOUNDATION A. Purposes and Principles of Sentencing for Regulatory Offences 1.Introduction… ………………………………………………………………..58 2. Determining Sentencing Purposes and Principles for Regulatory Offences in Canada…. …………………………………………………………………………….59 3. R.. v. Cotton Felts Ltd. and its Legacy……….…………………………………..64 4. Differing Views as to Purposes and Principles of Sentencing for Regulatory Offences………………………………………………………………………………..71 5. Conclusion…………………………………………………………………………..86 B. Regulatory Offences Sentencing Jurisprudence within Canada: A Survey of Workplace Safety, Consumer Protection and Environmental Regulation Decisions 1. Introduction………………………………………………………………………….88 2. Workplace Safety Sentencing Decisions……………………………………..….91 3. Consumer Protection Sentencing Decisions………………………………… 100 4. Environmental Regulation Sentencing Decisions……………………………...109 5. Conclusion… … ………………………………………………………………..129 Part IV: SETTLING ON SOLUTIONS A. The Regulatory Cycle and its Role in Shaping Purposes and Principles of Sentencing for Regulatory Offences 1. Introduction……………...…………………………………………………………132 2. Risk Assessment and Risk Management………………………………………136 3. Regulatory Enforcement Pyramids……………………………………………...141 4. The Regulatory Cycle and “Penalties Principles”……………………………...146 5. The Regulatory Cycle and Changing Regulatory Strategies…………………153 6. Conclusion…………………………………………………………………………162 B. Sentencing Purposes and Principles for Regulatory Offences: a New Approach for Regulatory Justice 1. Introduction………………………………………………………………………...165 2. The British Columbia Public Health Act: A Model of Sentencing Purposes and Principles for Regulatory Offences enacted by Legislators……………………...168 3. Identifying and Prioritizing Sentencing Purposes and Principles for Regulatory Offences………………………………………………………………………..……..173 (i) remedying the harm or potential for harm………………………………………174 (ii) rehabilitation………………………………………………………………………176 (iii) general deterrence……………………………………………………………….182 (iv) denunciation……………………………………………………………………...184 4. Sentencing Purposes and Principles in a Statute of General Application…..190 5. Sentencing Purposes and Principles for All or Some Regulatory Offences …………...................................................................................................……..193 6. Conclusion…………………………………………………………………………199 Part V: FINISHING TOUCHES A. Retrofitting the Regulatory Offences Sentencing Toolbox: a New Set of Sentencing Options for a New Statement of Sentencing Purposes and Principles 1. Introduction……………………………………………………………………….. 203 2. Provincial Offences Legislation Sentencing Provisions……………………….205 3. Victim Impact Statements………………………………………………………...207 4. Probation…………………………………………………………………………...210 5. Fine Option Programs…………………………………………………………….218 6. Alternative Measures……………………………………………………………..219 7. Alternative Penalties………………………………………………………………222 8. Creative Sentence Orders………………………………………………………..224 9. Restitution and Compensation…………………………………………………..227 10. Forfeiture………………………………………………………………………….229 11. Conditional Sentences…………………………………………………………..231 12. Conclusion………………………………………………………………………..235 CONCLUSION………………………………………………………………………..237 ENDNOTES…………………………………………………………………………. 241 Sentencing Purposes and Principles For Provincial Offences 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, provincial offences under Ontario’s Provincial Offences Act3, which are a form of a regulatory or public welfare offence, and for which the overwhelming majority of persons will ever have contact with the administration of justice in the province of Ontario.4 “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.5 There are also comparable federal laws for regulatory offences, or “contraventions,” falling under the exclusive jurisdiction of the Parliament of Canada.6 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 pieces of equipment; from regulating the preparation of food products to the sale of services and goods, and to safeguarding the environment. There is virtually no Commissioned by the Law Commission of Ontario 1 June 2010 Sentencing Purposes and Principles For Provincial Offences area that is neither the subject of regulation, nor a corresponding penalty for breach of the regulatory standard. The question which 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 which govern sentencing for regulatory offences have been described, aptly, as “a patchwork quilt … in need of reform.”7 Identifying the problem is easy. What is more difficult is crafting a solution. The issue addressed in this research paper, in response to the questions posed by the Law Commission of Ontario