Court of Appeal for Ontario
Date: 2017-06-30 Docket: C63801
Judges: Watt, Benotto and Roberts JJ.A.
Between
Her Majesty the Queen Respondent
and
Today Food Inc. Moving Party/Appellant
Counsel
Liming Qu, in person for the appellant
Amanda Ross, for the respondent
Heard in Writing
June 27, 2017
On Appeal
On appeal from the sentence imposed on April 13, 2015 by Justice of the Peace G. Fantino and upheld by Justice B. Brown of the Ontario Court of Justice on February 17, 2016.
Reasons for Decision
[1] The appellant was convicted of operating a food premises in a manner permitting a public health hazard. A fine of $6,255 was imposed by the Justice of the Peace. The appeal relates to sentence only.
[2] The appellant was a small, family-run grocery store owned and operated by a married couple from 2004-2014.
[3] On August 29, 2012, the store was investigated by a health inspector. A closure order was issued and the store was charged with operating food premises in manner permitting a health hazard, contrary to s. 11(a)(i) of Ontario Food Premises Regulation 562, pursuant to the Health Protection and Promotion Act, R.S.O. 1990, ch. 7, s. 100(4).
[4] Later that day, the appellants claim they thoroughly cleaned the store and addressed the deficiencies identified by the inspector. They allege that they were told the inspector would return the next day but he did not return until August 31, and they were not granted a conditional pass until after the long weekend on September 4, 2012. As a result, they were closed for seven days. The appellants sold their store in 2014. They are now virtually destitute.
[5] At trial, the Crown read in past offences to which Today Food Inc. had pled guilty in 2011 under Regulation 562. These involved failing to sanitize utensils, to wash hands and to maintain food at proper temperatures. The justice considered these offences to be "aggravating" circumstances although no evidence was provided as to the basis for the charges. The justice also commented that the owners do not learn from their mistakes and were wasting court resources. Although there was no evidence the store shop remained in violation of the Regulation for a full seven days in his reasons, the justice said it was.
[6] The Crown concedes the sentence was based on a misapprehension of evidence as to how long the store remained in a state of violation.
[7] The parties have jointly requested that this court reduce the sentence to $1,500, payable over two years.
[8] There are several reasons to accept the joint proposal. The justice of the peace misapprehended the evidence, ignored the fact that the store had been sold so specific deterrence was not an issue, took no notice of the appellant's ability to pay and had no information about previous convictions that had been considered "aggravating".
[9] The appeal as to sentence is allowed and the fine is reduced to $1,500, payable over two years.
David Watt J.A.
M.L. Benotto J.A.
L.B. Roberts J.A.