Court File and Parties
Ontario Court of Justice
Date: 2015-08-04
Court File No.: Chapleau, 140077-01K; 140077-05K
In the Matter of: An appeal under clause 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended
Between:
Her Majesty the Queen Respondent
— And —
Ontario Corp 1796926 (Ontario Outdoor Recreational Alliance) And Michael Boudreau Appellants
Before: Justice P. Boucher
Heard on: July 16, 2015
Reasons for Judgment released on: August 4, 2015
Counsel
Brian Wilkie — counsel for the prosecution
Jonathan M. Poitras — counsel for the defendant Ontario Corp 1796926
Michael Boudreau — on his own behalf
Appeal Information
On appeal from the convictions by Justice of the Peace T.A. Hodgins on September 10, 2014 and from the sentences imposed on September 10, 2014.
BOUCHER, J.:
Background
[1] The appellant, Ontario Corp 1796926 (Ontario Outdoor Recreational Alliance) (hereinafter referred to as "OntORA") was convicted of the following offences:
(a) On or about the 20th day of August, 2011 at Oswald Township in the Northeast Region it committed the offence of occupy or use public lands or a road in contravention of a notice given under the Public Lands Act and thereby committed an offence pursuant to section 28(3) of the Public Lands Act R.S.O. 1990, C.P.43;
(b) On or about the 20th day of August 2011 at Oswald Township in the Northeast Region did commit the offence of unlawfully enter premises in contravention of the Trespass to Property Act for the purpose of fishing contrary to section 10(1)(a) of the Fish and Wildlife Conservation Act, S.O. 1997 c.41.
[2] The passing of sentence was suspended with respect to the first count. A fine of $20,000.00 with six months to pay was imposed on the second count.
[3] The appellant, Michael Boudreau, was convicted of the same offences. He was fined $500.00 on count one; $2,000.00 on count two. He was allowed six months to pay the fines.
[4] The appellants were tried jointly on an information sworn under Part III of the Provincial Offences Act.
[5] The appeals were heard on July 16, 2015 in the Ontario Court of Justice in Chapleau, Ontario. OntORA was represented by counsel. Mr. Boudreau represented himself. Although the appeals were therefore not jointly made, they were heard essentially at the same time. Counsel for OntORA made submissions first and Mr. Boudreau followed.
[6] Given that the issues in these appeals are intertwined I will deal with them together.
Issues
[7] Counsel for OntORA raised the following issues:
Did the justice of the peace err in law in his interpretation of the statutes? Put another way, did he err in determining that a portion of the Oswald road/trail was no longer a road and in fact a trail?
Did the justice of the peace fail to inquire into the financial ability of OntORA to pay the fine imposed? If so, was this an error in principle that allows me to revisit the sentence without the normal standard of deference? If not, was the sentence imposed demonstrably unfit?
[8] Mr. Boudreau raised the following issues in addition to the first issue raised by OntORA:
Can he be liable even though:
- He did not reach Oswald Lake;
- He did not fish in the lake; and
- He discouraged the other participants from breaking the law
[9] Mr. Boudreau did not appeal sentence. I gave him the opportunity to raise it, if he wished, during the hearing of the conviction appeals. He declined to pursue this issue.
Summary of the Facts at Trial
[10] At trial the parties entered an agreed statement of facts as exhibit one. It is reproduced in its entirety below:
(a) Oswald Lake is located approximately 20 km north east of Foleyet. An aerial photo showing the location of the Lake and nearby roads is admitted.
(b) A tourist camp has operated on Oswald Lake since at least 1971 when the first Land Use Permit was issued to Airways Outpost. The Land Use Permit is currently held by Air Ivanhoe Inc. The camp caters to fly-in tourists who seek a remote fishing experience.
(c) Oswald Lake has been a Designated Tourism Lake in the Chapleau District Land Use Guidelines since at least 2002. The Guidelines and the Crown Land Use Policy Atlas are important planning documents used by MNR to make decisions for the management of Crown land. Both documents state that designated tourism lakes may have road access restrictions applied to protect these lakes from increased access.
(d) In 1970s and 1980s, roads were built west of Oswald Lake to facilitate forestry operations. Over the next thirty years there were occasional problems with unauthorized roads built to Oswald Lake from these forestry roads. When these roads came to the attention of MNR, signs were installed banning their use for motorized access to Oswald Lake. The road had a berm installed on one part to try and restrict traffic and naturally grew in over the years such that it was used only by those travelling on foot or by ATVs by 2010. The issue of whether the "Oswald Lake Road" you will hear was traveled on by the defendants, was a road or a trail in 2010 and 2011 will be in argument. The defense will be taking the position that even if a berm had been placed, and the "road" had grown in, it was a road. The prosecution will be taking the position that part of it was once a road, but by 2010 it was only a trail. From here on in this agreed statement of fact, the term "Road/Trail" will be used in order to be fair to both defense and prosecution, until an ultimate decision is made.
(e) 2010. Air Ivanhoe also operates camps at other lakes in the District. Joel Theriault is the president of Air Ivanhoe Inc. In the summer of 2010 Mr. Theriault met with MNR staff to express concerns that people were accessing Oswald Lake using ATVs.
(f) The road/trail that is the subject of these charges ("the Road/Trail") is located on Crown land under the Public Lands Act.
(g) As a result of the concerns raised by Joel Theriault, on September 9, 2010, MNR staff decommissioned the last 400 metres of the Road/Trail by cutting trees and laying them across the Road/Trail. On September 21, 2010 Kirk Ellis Area Supervisor Chapleau Administrative District Ministry of Natural Resources, pursuant to section 28 of the Public Lands Act "do hereby close the road known locally as the Oswald Lake Road west and all tributary roads and trails until further notice to vehicular and motorized snow vehicle use of said Road/Trail to access Oswald Lake. Closure indicated on the attached map." Signs were installed along the Road/Trail.
(h) 2011. Ontario Corporation 1796926, or Ontario Outdoor Recreational Alliance (OntORA), was incorporated in 2009. It was formed by concerned outdoors people from across the province as a result of what they believe to be "abusive MNR policies that set aside vast areas of Crown land and lakes for the exclusive use of paying tourists."
(i) Mike Boudreau became president of OntORA in May 2011 and was president at all relevant times.
(j) Over the summer of 2011 OntORA held public meetings, communicated with the press and with politicians to gather public support for their position against road closures on public land in the Chapleau District. OntORA also had various meetings with the Chapleau District Manager and the Area Supervisor of MNR to voice their concerns.
(k) During the summer OntORA organized a public protest for August 20, 2011 in Foleyet. The focus of the protest would be the re-opening of the Road/Trail to Oswald Lake. The intention was to meet in Foleyet and then drive up to the Road/Trail and clear it.
(l) August 20, 2011. As of August 20, 2011 there were four signs prohibiting the use of vehicles to gain access to Oswald Lake. Two of those signs were on Oates Road and two were on the Oswald Lake Road/Trail. A map showing the locations of the four signs is admitted as are photos of the four signs.
(m) A transcript of the relevant portions of the rally held on August 20, 2011, in Foleyet is admitted. Immediately after the rally a group of 20-25 men arrived at the Road/Trail as part of the OntORA protest. For the most part these men travelled on ATVs. Using chainsaws they removed the trees that MNR had laid across the Road/Trail the previous year. When their work was complete the Road/Trail was open such that an ATV could be driven to Oswald Lake from the start of the Road/Trail at West Oswald Lake Road/Trail.
(n) The defendant Louis Magnuson used a power saw to cut trees from the Road/Trail. When the Road/Trail was open he drove an ATV on the Road/Trail to Oswald Lake with an aluminum boat secured to a rack atop the ATV. He lowered the boat into the water and then drove the boat on Oswald Lake.
(o) The defendant Joe Gerner drove past the final two signs on his ATV and arrived at the location where the road/trail had been decommissioned. He used a power saw to cut trees from the Road/Trail. On arriving at Oswald Lake he then "symbolically" cast a fishing line in the water. He then handed the rod to Chris Brown.
(p) The defendant Chris Brown used a power saw to cut trees from the Road/Trail. On arriving at Oswald Lake he accepted the rod from Joe Gerner and symbolically cast a fishing line in the water. When he was asked to produce a fishing licence he could not produce it as he did not have it with him, but did have it in his truck, parked a number of miles away.
(q) The defendant Mike Boudreau drove past the final two signs on his ATV and arrived at the location where the road/trail had been decommissioned. He used a power saw to cut trees from the Road/Trail. When the Road/Trail was open he left the area. He did not reach the shore of Oswald Lake.
[11] Video recordings were filed as exhibit 7 at trial. They show various members of OntORA using chainsaws to remove the trees that had been felled by the Ministry.
[12] Mr. Boudreau can be seen operating a chainsaw on some trees. He indicates that they are just cleaning the trail. He states he doubts that anyone is going to go fishing; however, he adds, "there could be one or two".
[13] The video also shows Mr. Boudreau leaving the last of three piles of felled trees indicating that he was done. He notes that his chainsaw is broken and leaves before the last of the trees are cleared to allow passage to Oswald Lake.
The Legislation
[14] Subsection 28(1) of the Public Lands Act R.S.O. 1990, c.P. 43 as amended read as follows as of September 21, 2010:
28(1) The Minister may cause to be erected on any public lands, including a road under the jurisdiction of the Minister, signs prohibiting, controlling or governing,
- The possession, occupation or any use or uses thereof; or
- The parking of vehicles thereon
[15] Subsection 28(3) of the Public Lands Act read as follows on August 20, 2011:
28(3) a person is guilty of an offence if the person possesses, occupies or uses any public lands or a road in contravention of a notice given under subsection (1) or parks a vehicle on public lands or a road in contravention of any such notice.
[16] Sections 48, 49 and 52 of the Public Lands Act read as follows as of September 21, 2010:
48 "public forest road" means a road, other than a private forest road, that is designated by the Minister as a public forest road
49 Except as otherwise provided in this Act, any person may exercise a public right of passage on a road other than a private forest road.
52 The district manager of the administrative district of the Ministry in which a public forest road is situate may, from time to time in his or her discretion and for such period or periods as he or she may determine, close the public forest road or part thereof to travel by the public generally or by any class or classes of the public or by the public generally with the exception of persons operating any class or classes of vehicles used for hauling forest products or other products designated by the regulations.
[17] Paragraph 10(1)(a) and section 98 of the Fish and Wildlife Conservation Act S.O. 1997, c. 41 as amended read as follows:
10(1) A person shall not,
a) enter premises in contravention of the Trespass to Property Act for the purpose of hunting or fishing
98 If a corporation commits an offence under this Act, an officer, director, employee or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted for the offence.
[18] Section 2 of the Trespass to Property Act, R.S.O. 1990, c. T.21 as amended reads as follows:
- (1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or (ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,
is guilty of an offence and on conviction is liable to a fine of not more than $2,000.
Analysis
Did the justice of the peace err in law in his interpretation of the statutes? Put another way, did he err in determining that a portion of the Oswald road/trail was no longer a road and in fact a trail?
[19] The justice of the peace found that section 28 of the Public Lands Act applied to the road/trail. He restricted his finding to that portion of the road/trail between the berm and Oswald Lake.
[20] He defined that portion as public land or Crown land instead of as a road. This distinction is of no consequence because section 28 clearly allows for restriction on the usage of "public lands or roads under the jurisdiction of the Minister".
[21] At trial and on appeal counsel for OntORA submitted that the Ministry was obliged to follow section 52 of the Public Lands Act if it wished to close the road. It should be noted that section 52 was amended within a few weeks of the last steps taken by the Ministry to restrict access on the road/trail.
[22] The wording of the section at the relevant time for this case dealt with public forest roads designated as such by the Minister. Whether or not the road/trail was designated as a public forest road was not established at trial. It was therefore not open to the justice of the peace to expect the Ministry to comply with section 52 in its dealings regarding the road/trail.
[23] In any event, the justice of the peace did not commit an error in determining that a portion of the road/trail was public land or Crown land rather than a road. This determination was available based on the trial record.
[24] Even if there was an error in this determination, it was of no consequence. Section 28 allows the Ministry to determine the use of roads under its control. Section 49 of the Public Lands Act contemplates that the public use of roads may be restricted by the Act. It does not state that it can only be restricted by section 52 of the Act. A road in section 49 is defined to include a road on public land.
[25] Finally, the argument that the maxim "once a road, always a road" requires resort to section 52 of the Public Lands Act in order to close a road is without merit. I have already determined that there was no evidence on the record to suggest that section 52 (as it then read) applied to this case. In addition, the wording of section 28 contemplates not only defining the use of public land or roads but also prohibiting their use. This broad wording extends to the felling of the trees in the last 400 metres of the road/trail.
[26] I therefore conclude that the justice of the peace did not err in his interpretation of the Public Lands Act and related statutes. In particular, he neither erred in finding that a portion of the road/trail was not a road nor in finding that section 28 of the Public Lands Act enabled the Ministry to restrict the use of the road/trail.
Can Michael Boudreau be liable even though:
i. He did not reach Oswald Lake;
ii. He did not fish in the lake; and
iii. He discouraged the other participants from breaking the law
[27] The justice of the peace found that Michael Boudreau was a party to the offences committed by Joe Gerner and Lou Magnuson. He also found that OntORA was a party to the same offences given Michael Boudreau's status as president of the corporation.
[28] In making these findings he noted the following:
a) He attended at the portion of the road/trail between the berm and Oswald Lake;
b) He helped to cut the felled trees with a chainsaw;
c) He helped to move an all-terrain vehicle along the road/trail;
d) He encouraged people at the OntORA rally to access the lake and fish.
[29] Section 77(1)(b) of the Provincial Offences Act states that "every person is a party to an offence who does or omits to do anything for the purpose of aiding any person to commit it." It does not matter that Michael Boudreau did not touch the shores of Oswald Lake. Nor does it matter that he discouraged the rally participants from breaking the law.
[30] His actions that day were clearly caught by section 77(1)(b) of the Provincial Offences Act. It does not require that his actions mirror the actions of the offenders. If they did, then he would not be a party but rather a principal offender. Rather, the wording attaches liability to anyone who "does or omits to do anything for the purpose of aiding any person to commit it" (emphasis my own).
[31] In addition to the findings made by the justice of the peace, the record reflects the following:
a) On the video of the group cutting the felled trees Michael Boudreau states that he is just cleaning the trail and he does not think that anyone is going to go fishing. Then he adds "…there could be one or two";
b) Michael Boudreau admitted that but for OntORA and the rally, the cutting of trees on the road/trail and the expedition to Oswald Lake would not have happened.
[32] Asking the supporters at the rally to not break the law did not absolve Michael Boudreau of his responsibility as a party. Both he and OntORA achieved their stated goal of removing the felled trees and allowing access to the lake for fishing. The record clearly supports the findings made by the justice of the peace. This ground of appeal must therefore fail.
Did the justice of the peace fail to inquire into the financial ability of OntORA to pay the fine imposed? If so, was this an error in principle that allows me to revisit the sentence without the normal standard of deference? If not, was the sentence demonstrably unfit?
[33] OntORA submits that the justice of the peace failed to make an inquiry into the corporation's ability to pay the fine. It further submits that this failure led to an error in principle. This error in principle, it is submitted, allows this court to impose an appropriate sentence without regard to the principle of deference.
[34] Counsel for OntORA relies upon the decision Real Estate Council of Ontario v. Wang, 2013 ONCJ 515. At paragraph 22 the court held:
There is no confusion about the principles that apply in a criminal case to the imposition of fines. In R. v. Ward (1980), 56 CCC (2d) 15 (Ont. C.A.) at p. 18, Martin J.A. stated that "where a fine is an appropriate penalty, a fine of such magnitude should not be imposed, that having regard to the means of the offender, it cannot be paid within a reasonable time." Similarly, in R. v. Snider (1977), 37 C.C.C. (2d) 189 (Ont. C.A.) at p. 190, Martin J.A. also stated that having decided that a fine is an appropriate disposition, "the trial judge should only impose a fine that is within the offender's ability to pay, bearing in mind of course, the possibility that he may extend the time for payment." I see no reason why sentences for regulatory offences should involve a different principle. I am satisfied that in the circumstances here, the justice of the peace erred in principle both by failing to inquire into the defendants' financial circumstances, as contemplated by s. 57(3) of the P.O.A., and also by going on to impose fines that were clearly excessive and well beyond their ability to pay. The fines, in my view, were totally disproportionate to the gravity of the offences they had committed and would cause undue financial hardship to both the defendants and their numerous dependants.
[35] Subsection 57(3) of the Provincial Offences Act reads as follows:
(3) Where a defendant is convicted of an offence, the court may make such inquiries, on oath or otherwise, of and concerning the defendant as it considers desirable, including the defendant's economic circumstances, but the defendant shall not be compelled to answer.
[36] Between the trial dates and sentencing dates Joe Gerner replaced Michael Boudreau as president of OntORA. He spoke on behalf of the corporation at sentencing.
[37] Joe Gerner interrupted the justice of the peace when he started to ask him to make submissions. The exchange was as follows:
THE COURT: In regards to their submission, what is your submissions in regards to the …
MR. GERNER: Well, $20,000.00 is a lot more than OntORA can provide at this time due to the cost of the lawyer to get what we have. OntORA doesn't have $20,000.00 so I don't know if you would suggest if something can't be reached, OntORA will no longer cease to exist I guess. That's the way it's gotta be.
THE COURT: Submissions from, your reply for …
MR. DEMARS: Your Worship, I mean with the action taken, it's caused a lot of grief for the province. He can ask for time to pay – I mean he can ask for a year to pay, the Crown will not object. And at the end of the year if OntORA can't pay, they can make application to his Worship, another Worship to get …
MR. GERNER: Well …
MR. DEMARS: … an extension of time to pay.
MR. GERNER: How about Ontora just dissolved or went bankrupt; that's about the only way we can do it at this time. Ontora does not have $20,000.00 and the only thing left for us to do would be to dissolve the corporation or go bankrupt. And that's the choice I give to you, that's …
THE COURT: Under the circumstances, sir, the – the court would be willing to take – to set the matter over for further submissions if you felt that that's what you needed to do, but …
MR. GERNER: There's no other choice, we don't have $20,000.00. Its either bankruptcy or dissolve the corporation – either way.
[38] The justice of the peace then proceeded with his reasons for sentence and imposed the fine on the corporation as recommended by the Crown.
[39] The Crown acknowledged in the hearing of the appeal that the Justice of the Peace did not make a specific inquiry into the ability to pay as contemplated by subsection 57(3) of the Provincial Offences Act. However, the exchange noted above clearly demonstrates that the justice of the peace complied with that subsection in spirit:
a) He attempted to solicit submissions but was interrupted.
b) He offered, for the second time, an adjournment so more fulsome submissions could be made. He was told by Joe Gerner that the corporation could not pay that amount "at this time due to the cost of the lawyer to get what we have."
c) When an extended period of time to pay was suggested by the Crown Joe Gerner simply ignored this comment and continued with his stated position: the amount of the fine would force the corporation into bankruptcy or dissolution;
d) When he spoke to his own sentence, Joe Gerner provided details regarding his financial situation. When he was afforded an opportunity to make submissions for the corporation he declined to elaborate.
[40] I therefore find that in the case on appeal, the justice of the peace did not commit an error in principle with respect to the provisions of subsection 57(3) of the Provincial Offences Act.
[41] The next question to be decided is whether the sentences imposed were demonstrably unfit.
[42] Appeal courts must give considerable deference to sentences imposed by trial courts unless the sentence is demonstrably unfit. The Supreme Court of Canada explained this principle in R. v. Proulx, 2000 SCC 5, para 127:
Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts. As explained in M. (C.A.), supra, at para 90: "Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.
[43] The justice of the peace's reasons for sentence are as follows:
THE COURT: … the court has to take into account the provisions of Cotton Felts. The court has to look at general deterrence and specific deterrence. Under the circumstances, what we have here today is as described in the submissions before the court here today. The corporate entity that profited from the actions taken, and the actions which have been provoked by the actions of the corporation; offences which people have been found guilty, that ministries have – have deployed man power and expense to cover. It was a well-publicised activity that OntORA put forward. There was a rally, advertising, public notices, public officials being – being invited according to the evidence provided to the court here today; and, that every effort was put forward in regards to making this the largest um sceptical in regards to civil disobedience in this area, over this issue. Under the circumstances I'm not swayed by the – by the position that we – that we will be bankrupt. The court – the court has to look at what the general deterrence is. What would this court, taking into account the circumstances, what would this court do to prevent – to deter other organizations from following the same civil disobedience actions that you took. It would have to be an amount of a fine that would indicate to them; and, I would suggest that the general deterrence out weighs specific at this point, and I'm in agreement with the Crown.
[44] The justice of the peace specifically found that the corporation profited from the activity leading to the charges. This finding was available to him on the record. When Michael Boudreau was questioned on this issue at trial the following exchange took place:
Q. So, this rally and this protest I think, you describe it as a successful operation in the sense that you got the word out, right?
A. Operation meaning what we did or operation meaning OntORA?
Q. Well, I'm saying the rally plus the decommissioning at Oswald?
A. We did what we had to do and it was successful.
Q. And you got a fair amount of media coverage, is that right?
A. Yes, fair amount of membership.
Q. And your membership increased?
A. Yes, big time.
[45] The justice of the peace also found that the government was required to make expenditures of monies and human resources to deal with the actions of the appellants, which he described as large-scale civil disobedience. The record clearly supports these findings as well. The police and conservation officers met several times with the appellants prior to and during the rally. They worked hard at ensuring the rally and expedition to Oswald Lake were peaceful. They had officers stationed along the road/trail to ensure everyone's safety as well as to document the event.
[46] This was a very well publicised public event. It was done specifically to draw attention to the corporation's belief that the Ministry was unlawfully restricting access to lakes in general and to Oswald Lake in particular. The media attention increased membership in the corporation. These memberships helped to create a legal fund.
[47] The possible bankruptcy of the corporation was discussed by the Ontario Court of Appeal in R. v. Metron Construction Corp., 2013 ONCA 541. The court held as follows:
103 … In contrast, in the case of a corporation that carries on no or limited business and has no or few employees, the impact of a fine on the corporation's economic viability may be of little consequence.
104 If appropriate, the prospect of bankruptcy should not be precluded.
108 It is apparent from this passage that the sentencing judge considered himself precluded from imposing a fine that might result in the bankruptcy of the corporation. In my view, this was an error. The economic viability of a corporation is properly a factor to be considered but it is not determinative. Certainly it is not a condition precedent to the imposition of a fine nor does it necessarily dictate the quantum of the fine.
[48] The justice of the peace turned his mind to the negative financial impact that a large fine would have on the corporation. He found that the need for general deterrence was paramount given the unique circumstances and level of civil disobedience in this case. I do not find that he overemphasized general deterrence.
[49] I invited submissions regarding the appropriate range of sentence. A sentence that falls outside of the appropriate range is prima facie unfit. Counsel on the appeal suggested that this was a unique case and that they could not find any jurisprudence that would be of assistance.
[50] The justice of the peace imposed a $20,000.00 fine on an offence for which the maximum fine was $25,000.00 (paragraph 10(1)(a) of the Fish and Wildlife Conservation Act). He allowed the corporation six months to pay the fine. Counsel for the appellant suggested that a fine close to the maximum should be reserved for the most serious of offenders. He suggested that the fishing that took place was merely symbolic and that a significant fine was not appropriate.
[51] While the fishing that took place may have been symbolic in the sense that it did not last the whole day, the work involved in moving the three piles of felled trees was far from symbolic. The video filed at trial shows just how sophisticated, planned and difficult it was to accomplish. These were not piles of three or four felled trees. They were significant.
[52] The justice of the peace agreed with the Crown that this level of civil interference with decisions lawfully made by the Crown requires a serious penalty. I agree. The sentence was not demonstrably unfit in the circumstances of this case and this appellant.
[53] The decision in Wang is distinguishable from the case on appeal. It dealt with individuals rather than a corporation. The process regarding sentencing was also quite different. Justice Fairgrieve noted the following at paragraphs 19, 20 and 21:
19 After stating that he was not seeking a jail term, the prosecutor gave his opinion that "the reasonable floor" would be a fine of $5,000 per count, for a total of $20,000, without indicating whether those fines should be imposed on each defendant individually or on both collectively, presumably because they were a married couple. Oddly, perhaps, the justice of the peace made the same error when he simply announced, during the defendants' submissions and without any reasons justifying his conclusion, that there would be a fine of $5,000 per count for a total of $20,000. It was only after the court clerk reminded him that there were two separate defendants that he altered the fines to $2,500 for each defendant on each charge, again without giving any reasons for finding that each person shared equal culpability and should be penalized in the same way.
20 The Court's interruption came after the defendants were asked if they had anything to say, and Mr. Wang was speaking on behalf of his wife. The exchange was as follows:
Mr. Wang: My wife says another baby's coming and we have 4 kids totally – really hard to pay huge money – 20,000 is a huge money for my family
The Court: I can appreciate it's a huge amount for your family, sir, but you have broken the law. It's very clear to me today.
21 In his submissions, Mr. Wang went on to state that he now realizes that he did something wrong, but pointed out that there was no damage done to anyone or any financial gain to him or his wife, since she would have been entitled to her commission on the transaction in any event, even if she had done all of the work by herself. It was at this point that the justice of the peace cut off Mr. Wang's submissions, stating simply "A fine of $5,000 on each of the four counts, sir."
[54] Justice Fairgrieve further held at paragraph 25 that the
…sentencing in this case suffered from both procedural and substantive errors, not the least of which was the failure of the justice of the peace to give any reasons explaining the quantum of the fines he imposed. There is clearly nothing wrong with a justice of the peace in a trial court accepting a prosecutor's submissions, at least if the prosecutor justifies his position and the justice explains why he agrees, but neither occurred here.
[55] The sentencing that took place in the case under appeal was far different from that which took place in Wang. None of the errors committed in Wang occurred in the case under appeal.
[56] For the foregoing reasons, the appeals from conviction and sentence by OntORA are dismissed, as is the appeal from conviction by Michael Boudreau.
Released: August 4, 2015
Signed: "Justice P. Boucher"