Court Information
Ontario Court of Justice (Toronto Region)
Between:
Her Majesty the Queen (Superintendent of Financial Services)
Appellant
- and -
Ralph Iacono
Respondent
Heard: 30 September 2015
Judgment: 10 November 2015
(52 paras.)
On appeal from the sentence imposed on 10 February 2015 by His Worship Justice of the Peace S. Nestico of the Ontario Court of Justice, at Toronto
Counsel for Appellant: Stephen Scharbach
Counsel for Respondent: Michael W. Lacy
Introduction
1Ralph Iacono was the president and principal broker of Terra Nova, a licenced mortgage brokerage; he also had his own licence as a mortgage broker, these licences having been issued under the Mortgage Brokers Act of Ontario, R.S.O. 1990, c.M.39. However, in December, 2012 the licences of both the company and Mr. Iacono were revoked. Administrative monetary penalties in the amount of $1,500 were also levied against each party. Terra Nova subsequently transferred its mortgage brokering business to Mortgage Lenders Limited, a separate Ontario business corporation and newly licenced mortgage brokerage, which then provided mortgage brokering services to Terra Nova's former clients, as well as others.
2The principal broker of the new Mortgage Lenders brokerage was "P.M.", a mortgage agent formerly employed by Terra Nova. Mr. Iacono was the office manager of Mortgage Lenders; there were other employees and agents. Notwithstanding that he no longer had a licence, Mr. Iacono continued to conduct mortgage brokering activity within Mortgage Lenders. Between December, 2012 and July, 2013, he acted as a mortgage broker in 14 transactions which netted Mortgage Lenders $48,967.20 in commissions. When the Superintendent of Financial Services learned of Mr. Iacono's role within Mortgage Lenders brokerage as an unlicenced broker, it suspended Mortgage Lenders brokerage licence on 29 July 2013, and ordered the company and Mr. Iacono to stop any mortgage brokering activity. Mortgage Lenders Limited subsequently ceased operation.
3In March, 2014 the defendant was charged with carrying on business and dealing with mortgages without a mortgage brokerage licence, contrary to the Mortgage Brokerages, Lenders and Administrators Act, 2006, S.O. 2006, c.29. On 6 February 2015, Mr. Iacono pleaded guilty before Justice of the Peace Nestico to one count of dealing in mortgages without a licence. The offence period was 1 January 2013 to 31 July 2013, being the time that the 14 transactions took place. The Crown sought a fine of $100,000 on sentencing; the defence submitted that a $10,000 fine should be imposed. After considering submissions, including written argument, the learned Justice of the Peace on 10 February 2015 imposed a $10,000 fine (plus 25% surcharge).
4It is against this sentence that the Crown appeals, submitting that the penalty is manifestly unfit, and fails to give effect to the principle of general deterrence.
Sentencing Submissions at Trial
5Crown counsel took the view before the trial Justice of the Peace that the maximum fine of $100,000 permitted by the legislation was the appropriate penalty in order to reflect the paramount consideration of general deterrence for regulatory offences. He noted that the count to which Mr. Iacono pleaded guilty represented the 14 unlicenced transactions by which he contravened the regulatory statute.
6It was submitted by the Crown that the sentence imposed by the Court must send a message to everyone in the mortgage brokering industry that these offences are to be taken seriously, and that the fine imposed should not be a mere licence for doing business. In the Crown's view, there was a degree of "moral blameworthiness" that one "wouldn't normally find in a strict liability offence". The proposed $100,000 fine, when taken in the context of the 14 transactions, represented $3,497 per transaction, whereas the $10,000 amount sought by the defence translated to $714 per transaction. Mr. Scharbach did acknowledge, though, that while $49,000 in commissions was paid to Mortgage Lenders, it was unclear how much of this amount was actually received by Mr. Iacono.
7The aggravating circumstances relied upon the prosecution in its written submissions before the Justice of the Peace included the following:
(i) the offence was not a singular, isolated incident, but consisted of unlicenced activity over a period of 6 months in connection with 14 separate transactions;
(ii) the illegal unlicenced activity started immediately after the defendant's mortgage broker licence was revoked for previous contraventions of the Act and regulations;
(iii) by continuing to act as an unlicenced mortgage broker, the defendant again contravened the Act and was in defiance of the Superintendent's Order;
(iv) the unlicenced activity only came to an end when the Superintendent became aware of it;
(v) the offences involved an element of deceit as the official paperwork prepared by the defendant falsely conveyed the impression that the transactions were brokered by another licenced mortgage agent;
(vi) the offence of continued mortgage brokering activity appeared to have been deliberate, and not due to mere negligence or carelessness
8Finally, while acknowledging that ability to pay is a relevant consideration for the Court to take into account in determining the amount of the fine, the Crown, relying on the Ontario Court of Appeal's decision in R v Cotton Felts Ltd (1982), 1982 CanLII 3695 (ON CA), 2 C.C.C. (3d) 287, submitted that deterrence, not ability to pay, is the paramount sentencing factor. Indeed, one's precarious financial situation or lack of readily available financial resources, in the words of a provincial offences appeal Court applying Cotton Felts, are "secondary considerations" in the sentencing process: Tarion Warranty Corp v Brown, 2012 ONCJ 122 at para. 79.
9Defence counsel, in turn, took the position that there were no authorities that supported the quantum of sentence sought by the Crown. Moreover, he distinguished the role played by Terra Nova which lent money to borrowers, as opposed to the business conducted by Mortgage Lenders which sought to shop for mortgages at the best possible rate, and where no money ever changed hands between it, the public and the client. As such, the defendant never took money from anyone, and no money was at risk.
10While the defendant violated the Act because he was not allowed to assist people in finding mortgages, the defence noted that the $49,000 generated in commissions did not represent a windfall arising from illegal activity, but rather was the amount that would have legitimately accrued to Mortgage Lenders. In terms of personal gain to Mr. Iacono, given that the Revenue Canada documents he produced on sentencing indicated that his taxable income for the 2013 year was $17,122, it followed that he did not receive "anywhere near the $49,000 in commissions". Hence, the proposed fine of $10,000 represented more than half his income for the year in which the offence occurred; it also amounted to 20% of the commissions generated by the 14 transactions.
11It was further submitted that while the defendant's previous infractions of the Act were dealt with by administrative monetary penalties, thereby allowing him to apply for registration after 24 months, the conviction would render him ineligible to ever be registered as a mortgage broker again.
12The one reported decision, R v Carmichael, [1997] O.J. No. 6178 (C.J.), involving a violation of the predecessor Mortgage Brokers Act, supported the $10,000 fine sought by the defence, it was argued, given in that case, a contested trial, the defendant, who was an unlicenced broker, participated in five transactions that generated over $100,000. He was fined $1,500 and his company $5,000. In contrast, Mr. Iacono pleaded guilty, and was a 51-year old first offender, with no previous regulatory or criminal convictions.
Reasons for Sentence
13Justice of the Peace Nestico commenced his reasons for sentence by noting that the case involved the statutory scheme of licencing of a mortgage broker, and that the controlling authority of the Cotton Felts decision applied.
14The relevant factors in determining the quantum of the fine included, according to the trial Justice: the size of the mortgage profile, the scope and the scale of the mortgage activity, the purpose and intent of the Act's registration provisions in order to protect the public at large and uphold the regulatory scheme, any harm to the clients financial or otherwise, and the deceptive acts of the defendant in regards to registration as a broker.
15Justice of the Peace Nestico proceeded to observe:
The Court has carefully assessed all these such factors and finds as follows. Denunciation and deterrence are very important sentencing principles in the context of regulatory sentencing proceedings as stressed by the Prosecution.
16He then turned to the circumstances of the defendant, noting that he had no prior convictions either criminally or for regulatory offences, and was of modest means. No one had suffered loss due to his actions. That said, the sentence "must send a message to Mr. Iacono and to the community the breaches of regulatory statutes have a consequence."
17The trial Justice rejected the position advocated by the Crown for the maximum financial penalty of $100,000 (plus the 25% victim surcharge) on the basis that it "far exceeds moral and legal culpability." Considering all the relevant sentencing considerations, the defendant's limited ability to pay, his admission of guilt and expression of remorse, Justice of the Peace Nestico accepted the position put forward by the defence and sentenced Mr. Iacono to a $10,000 fine with 6 months to pay. He declined the defendant's request to allow the fine to be paid over 1 year instead.
Submissions on Appeal
18On appeal, Crown counsel argues that the errors in sentencing committed by the learned trial Justice comprise failing to give appropriate consideration, weight and application to the principle of general deterrence in regulatory offences, as well as the accompanying aggravating circumstances. As a result, the sentence imposed reflects errors in principle, and, applying the Supreme Court of Canada's decision in R v Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, is not entitled to deference on appeal.
19The failure to give sufficient emphasis to the principle of general deterrence, in the view of Mr. Scharbach, is reflected by the fine imposed of $10,000 amounting to less than 25% of the commissions earned from the illegal activity, an amount that therefore risks being viewed by the public, and especially the mortgage brokering industry, to be a mere licence fee for illegal activity. In short, the potential monetary gain of the illegal activity will be seen to far exceed the potential penalty.
20General deterrence, the Crown submits, remains the paramount principle on sentencing since the Cotton Felts decision in 1982, and has been consistently applied and followed in numerous other regulatory offences cases since then, such as the recent decision of the Ontario Court of Appeal in Ontario (Ministry of Labour) v Flex-N-Gate Canada Co, 2014 ONCA 53, where it was held that deterrence has long been regarded as the most important sentencing principle for violations of public welfare statutes.
21Crown counsel submits further that the learned trial Justice failed to give the appropriate weight to the striking aggravating circumstances that were present in the case, and instead focused on the defendant's ability to pay which, although relevant, is not the paramount consideration in sentencing for a regulatory offence.
22Both in his written submissions on appeal and during oral argument, Crown counsel now submits that a fine of $75,000 would be a fit and appropriate sentence. A fine of this magnitude, it is argued, would achieve the paramount goal of deterrence and eliminate the monetary advantage achieved by the defendant through breaking the law.
23Defence counsel, on the other hand, submits that it is important when considering the appropriate penalty for the defendant's conduct to properly characterize the nature of the unlawful activity. Mr. Iacono did not cause any loss to the clients or any of the companies that fulfilled the mortgage needs. Indeed, the commissions paid in respect of the 14 transactions would have been payable to Mortgage Lenders Limited had one of the mortgage brokers who had been properly licenced acted as the broker. As a result, this is not a case, it is submitted, where the defendant himself profited $49,000 or diverted these monies to his own company.
24Mr. Lacy cautions that the standard in reviewing the sentence imposed by the learned trial Justice is not merely correctness, and that, as noted by Justice Doherty, on behalf of the Ontario Court of Appeal in R v Ramage, 2010 ONCA 488, a trial judge has an advantage over the appellate court when it comes to balancing the competing interests at play in sentencing. Sentencing is a fact-specific exercise of judicial discretion, and deference is owed to the trial Justice for good reason.
25The defence acknowledges that the Cotton Felts decision remains an important case in the context of regulatory sentencing, and that specific and general deterrence are significant considerations for such offences. It is conceded that a sentence must send a message to the accused and to the community that breaches of regulatory statutes have consequences, and that any fine imposed should not merely be a licence fee for engaging in illegal activity. However, there is nothing in the reasons for sentence which indicates that the trial Justice was not alive to these considerations, it is argued. Indeed, the trial Justice acknowledged that he was guided by these factors.
26In the view of defence counsel, there cannot be said to be a failure on the part of the sentencing Justice to consider any relevant factor on sentencing. While the principle of deterrence is the paramount factor on sentencing in the instant case, this does not operate to exclude any consideration of the limited ability of the defendant to pay a fine. In short, there is nothing clearly unreasonable about the sentence imposed by the trial Justice, and, as such, no basis for appellate intervention.
27As an additional issue, the defence seeks costs on appeal under the authority of s.129 of the Provincial Offences Act, R.S.O. 1990, c.P.33. The defence submits that this is, essentially, a test case where the Crown is seeking to attempt to set a range of penalties for breaches of a regulatory statute that is rarely prosecuted. These constitute exceptional circumstances, in his view, justifying the awarding of a modest costs order in the range of $3,500. Crown counsel opposes the costs order, arguing that there is nothing exceptional about the case or otherwise justifying the ordering of costs on appeal.
Analysis
28Sentencing for regulatory offences generally, and violations of the Mortgage Brokerages, Lenders and Administrators Act, 2006, in particular, is no small task. Unlike the Criminal Code, R.S.C. 1985, c.C-46, ss.718-718.2, where there is a statement of sentencing purposes and principles to guide sentencers, the Provincial Offences Act of Ontario contains no sentencing guidance for Courts imposing sentencing dispositions. And unlike other public welfare statutes which contain a statement of sentencing considerations unique to them, such as the Canadian Environmental Protection Act, 1999, S.C. 1999, c.33, setting out its own sentencing purposes and principles under ss.287-287.1, the regulatory statute under which the Justice of the Peace imposed sentence is silent as to sentencing purposes and principles. Indeed, there appears to be no reported decision at either the trial or appeal level since the enactment of the Mortgage Brokerages, Lenders and Administrators Act, 2006, to guide Courts imposing sentences under this legislation.
29There is much to be said, therefore, for the recommendation of the Law Commission of Ontario in its Report on the Modernization of the Provincial Offences Act: A New Framework and Other Reforms (Toronto: Law Commission of Ontario, 2011) at 89-90 which, in proposing the enactment of a legislated statement of sentencing purposes and principles in the Provincial Offences Act that would apply to all provincial offences, unless the offence-creating statute specifies that different or additional principles are to apply, commented:
… sentencing principles offer guidance to the judiciary so that sentences can be tailored to the different types of offences and offenders, and allows sentences to be more easily rationalized by appellate courts and among cases with similar fact situations
[I]ntroducing sentencing principles is not intended to complicate sentencing or to delay the process arbitrarily. Nor should it be a pro forma exercise that is applied to every offence that is not subject to principles established by an offence-creating statute. The purpose is to make sentencing more consistent and proportionate to the offence and circumstances of the offender and thus make it more effective.
30Turning to the instant case, and the sentence of a $10,000 fine imposed by the learned trial Justice, I am of the respectful opinion that the Crown's submissions that the sentence is unfit are not persuasive.
31Crown counsel, in seeking the maximum fine of $100,000 at trial, or $75,000 on appeal, conflates the defendant's role in generating the mortgage commissions for Mortgage Lenders as if this company was his alter ego, (as was the case with Terra Nova). However, the factual record placed before the Court indicated that Mortgage Lenders was a separate corporation that carried on other business apart from that generated by the defendant's unlawful activities. In addition, it was conceded by Crown counsel on the guilty plea proceedings, that it was unclear how much of the $49,000 in commissions found their way from Mortgage Lenders to Mr. Iacono. The tax return information for 2013 supported the defendant's claim that he did not personally profit to the full extent of this amount.
32There was no basis, therefore, to invite the Court to impose a sentence as if the defendant benefitted from the entirety of the $49,000 in commissions. Mortgage Lenders and Mr. Iacono were not one and the same. The Crown's sentencing submission for the maximum penalty thus miscast the defendant's relationship as an employee of the company, which was not alleged to have been a party to the wrongdoing.
33It also discounted the significance of Mr. Iacono's relatively early guilty plea, and considerable savings of trial Court time, as well as his circumstances as a 51-year old first offender who was unlikely to ever again participate in the regulated activity.
34Further, to the extent that the Crown considered that the defendant should not profit personally from any ill-gotten gains, there were a number of other sentencing tools that equipped the Court to specifically address this, apart from imposing a fine. Under s.50 of the Mortgage Brokerages, Lenders and Administrators Act, 2006, the Court has the authority to order a person convicted of breaching its provisions to pay compensation or make restitution in such amount and on such conditions as the Court considered just, in addition to any other penalty imposed. There was no power to do so under the former Mortgage Brokers Act.
35It is also open to a Court to employ, to this end, the probation terms of the Provincial Offences Act. Under s.72(3)(a) the defendant could have been required as a term of probation to satisfy any compensation or restitution that is authorized by a provincial statute, in this case s.50 of the Mortgage Brokerages, Lenders and Administrators Act, 2006.
36Additionally, it is a proper term of probation under s.72(3)(c) to prohibit the offender from working in the regulated industry, while subject to probation for up to two years (the maximum period of probation available under the Provincial Offences Act), in order to serve the purpose of preventing similar unlawful conduct while at the same time promoting rehabilitation: see Ontario (Ministry of the Environment) v Quinte-Eco Consultants Inc., 2008 ONCA 630 at para 5.
37Failure to comply with any such terms of probation constitutes the offence of breach of probation, contrary to s.75 of the Act, which is punishable by a fine of up to $1,000 and/or 30 days' imprisonment, and also allows the Court to extend the period of probation for an additional year: s.75(d).
38These type of creative sentencing, or restorative justice and remedial outcomes, serve to promote and enhance compliance with the regulatory standard, in a way that complements the traditional deterrence component of sentencing, which in the case of regulatory offences is most often expressed through the use of monetary penalties: see Gordon S. Campbell, "Fostering a Compliance Culture Through Creative Sentencing for Environmental Offences" (2004), 9 Can. Crim. L. Rev. 1; Sherie Verhulst, "Legislating a Principled Approach to Sentencing in Relation to Regulatory Offences" (2008), 12 Can. Crim. L. Rev 281.
39Indeed, as noted by Archibald, Jull and Roach, Regulatory and Corporate Liability: From Due Diligence to Risk Management (Toronto: Canada Law Book, looseleaf ed) at 12-2, the consideration of restorative and remedial remedies first, before progressing to the notion of deterrence, also has the advantage of avoiding "some of the mathematical and moral problems inherent in assessing the appropriate monetary value of fines." This approach to sentencing dispositions for regulatory offences is also advocated by the Ontario Law Commission: see Report on the Modernization of the Provincial Offences Act: A New Framework and Other Reforms at 89, which describes such a model as being "responsive, flexible and is better suited to promote compliance."
40Apart from mischaracterizing the circumstances of the offender, Crown counsel also misconstrued the nature of the regulatory offence in issue by inviting the Court to treat it as one that was closer to a "true crime". This is reflected in his sentencing submissions to the trial Justice where he suggested that there was a "moral blameworthiness" that attached to this strict liability offence in a way not typically found in others.
41There is properly, in my view, a recognition of the fact that those regulatory offences which have a mens rea or fault component, differ significantly from those where there is an absence of fault (absolute liability), or those, like in the instant case, where the defendant has failed to establish due diligence or reasonable care in relation to a strict liability infraction. This difference in quality of failure to meet the regulated standard is properly reflected on sentencing. As stated in R v Virk, [2002] O.J. No. 4102 (C.J.) at para. 54:
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 defendant has failed to meet a prescribed standard of care." However, offences like those alleged and proven in this case [the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16] 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.
42Indeed, under the predecessor legislation, the Mortgage Brokers Act, s.31(1) required that every person who contravened any provision of the Act or the regulations did so "knowingly." That is, the Act created a mens rea regulatory offence. The punishment, under this provision, was a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both. In contrast, the penalty provision of the Mortgage Brokerages, Lenders and Administrators Act, 2006, s.49(1), retains the maximum fine and imprisonment limits of $100,000 and/or one year imprisonment; however it no longer requires, under s.48, that contraventions of the Act, such as dealing or trading in mortgages without a licence, take place "knowingly," thereby substituting a strict liability offence.
43Accordingly, in suggesting that the offence for which the defendant was to be sentenced contained an element of moral blameworthiness, Crown counsel erroneously invited the Court to impose a sentence that reflected the former mens rea offence, which is no longer in existence. It is also not in accordance with the Ontario Court of Appeal's decision in R v Benlolo (2006), 2006 CanLII 19284 (ON CA), 212 O.A.C. 227 at para. 14, where the Court noted the significance, for sentencing purposes, of the replacement of a strict liability offence with one of full mens rea. Here it is the opposite that is the case.
44In the final analysis, then, having regard to the circumstances of this offence and this offender, I cannot agree that the imposition of a $10,000 fine (plus 25% surcharge) is a mere slap on the wrist or licence fee to engage in unlawful activity. To the contrary, the conviction will preclude the defendant from ever acting as a licenced mortgage broker again. Indeed, Mortgage Lenders Limited, the defendant's employer, has ceased operation.
45As noted earlier, a fine of this magnitude represents well over half of the defendant's income for the year in which it was levied. It also amounts to 20% of the commissions which were earned by the defendant's employer, and was shut down once the defendant's conduct came to light. The offence for which the defendant was convicted, conducting mortgage business without a licence, thus appears to have been treated seriously; there were serious consequences, in fact, both to the defendant and his employer, namely, they are no longer permitted by the regulator to participate in the regulated activity. In short, the message it clearly sends to the mortgage brokerage community is that the game is not worth the candle.
46Indeed, the sentencing Justice instructed himself, properly, on the basis of the controlling authority, R v Cotton Felts Ltd, that deterrence was the paramount consideration on sentencing. He carefully considered the competing aggravating and mitigating factors as enumerated by counsel in their written and oral submissions. I am, respectfully, unable to discern any error of principle that indicates either a failure to consider a relevant sentencing principle, or a failure to give effect to a sentencing principle so identified.
47Professor Macrory, in his study of regulatory enforcement in the United Kingdom, puts forth 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 the regulatory non-compliance; and (6) sanctions should aim to deter future non-compliance: see Richard Macrory, Regulatory Justice: Sanctioning in a post-Hampton World (Consultation Document, May 2006) [http://www.cabinetoffice.gov.uk/regulation/documents/pdf/penalties]. Viewing the penalty imposed in this case, through this prism, reinforces my view that the quantum of the fine will not be viewed as a mere licence fee, but rather, as a sanction that is proportionate and responsive, and a deterrent.
48For these reasons I have respectfully concluded that the Crown's appeal against the sentence imposed must be dismissed.
49As for the supplementary issue raised by the defendant as to an order of costs on appeal, I am not persuaded that this is a case where there is a reason to depart from the general rule that costs are not awarded in provincial offences appeals: see Haliburton (County) v Gillespie, 2013 ONCA 275.
50The Crown took the position that a substantial fine should be imposed at trial; it maintained this position on appeal, albeit unsuccessfully. I see nothing exceptional in the Crown's sentencing position, or its conduct throughout the proceedings, in seeking to review a sentence under a statute it prosecutes, albeit infrequently, that merits the awarding of a costs order against it.
51That said, I do appreciate the additional time and expence that the defendant has been subjected to as a result of these appeal proceedings. However, this is inherent in the nature of the appellate system, which is an integral part of the administration of justice and enhances "the fairness of the process", even though the majority of such appeals are not successful: see R v R.R., 2008 ONCA 497 at para. 16.
52For these reasons, although I have dismissed the Crown's appeal, I make no order as to costs against it.
R. Libman J
Date: 10 November 2015
Footnotes
1This Act repealed the Mortgage Brokers Act on 1 July 2008.
2Section 49(1) of the Mortgage Brokerages, Lenders and Administrators Act, 2006, provides that every individual convicted of an offence under the Act is liable to a fine of not more than $100,000 or imprisonment for a term of not more than one year or both a fine and imprisonment.
3The defendant was originally charged with 28 separate counts which corresponded to each of the mortgage transactions. There were 14 charges for carrying on business without a brokerage licence, contrary to s.2(2) of the Act, and 14 charges for dealing in mortgages for remuneration without a mortgage broker's or agent's licence, contrary to s.2(3). As part of the plea resolution, there was an amendment to one count so that it applied to all 14 transactions, and it was to this count that the defendant pleaded guilty. The other counts were subsequently withdrawn. It appears from the endorsements on the back of the information that the defendant, who first appeared in court on 1 May 2014, indicated his intention to plead guilty on 30 October 2014, as the matter was adjourned on that date to 6 February 2015 for plea and sentencing. No trial date was ever set.