Court of Appeal for Ontario

Date: 20210929 Docket: C69445

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

Collingwood Prime Realty Holdings Corp. & Issa El-Hinn Respondent

Counsel: Rick Visca, Holly Akin and Erryl Taggart, for the appellant Melanie Webb, for the respondent

Heard: September 21, 2021 by video conference

On appeal from the judgment of Justice David E. Harris of the Superior Court of Justice, dated May 12, 2020 with reasons reported at 2020 ONSC 2953, allowing the appeal from the sentences imposed on August 21, 2018 and September 12, 2018 by His Worship Justice of the Peace Mangesh S. Duggal.

Reasons for Decision

[1] The Crown appeals the decision of the summary conviction appeal judge which reduced the sentence imposed at first instance on a conviction under the Canadian Environmental Protection Act.

[2] A brief overview of the facts is necessary.

Facts

[3] The respondent Collingwood Property Holdings Corp (“the corporation”) was the owner of property in Collingwood. The respondent Issa El-Hinn (“El-Hinn”) was the sole director and operating mind of the corporation. The respondents were given a written warning by Environmental and Climate Change Canada (“ECCC”) to remove transformers containing hazardous toxins. Ten months later the transformers were still there. The ECCC officers issued a Notice of Intent to issue an Environmental Compliance Order (“NOI”), to which the corporation did not respond. The ECCC officers then issued an Environmental Protection Compliance Order (“EPCO”) pursuant to s. 235(1) of the Canadian Environmental Protection Act (“CEPA”), requiring the removal of the equipment and an electronic report. The equipment was not removed nor was the report filed by their respective deadlines. Over a year later, the ECCC officers executed a search warrant on the property and found one of the transformers was still in use. The equipment was eventually removed, four years after the initial inspection. El-Hinn and the corporation were jointly charged in an 11-count information and plead guilty.

The sentence

[4] The sentencing judge imposed separate fines amounting to $220,000 and a custodial term of 45 intermittent days on El-Hinn pursuant to s. 275(2)(b)(i) of CEPA. He also fined the corporation $40,000 for count 1, $10,000 for count 2, $1,250 each for counts 3-10 amounting to $10,000 for those counts, and $140,000 for count 11 ($200,000 in total).

[5] The sentencing judge considered mitigating and aggravating factors. Mitigating factors were that the El-Hinn was a first offender, the transformers were eventually removed, El-Hinn was of otherwise good character, and the guilty pleas merited some leniency. Aggravating factors included the quantity and hazardous nature of the toxins, the large passage of time in regulatory compliance despite having financial capacity and having been issued an order to comply, cost avoidance, and great potential harm of the toxins. The sentencing judge noted the purposes of sentencing under the CEPA are to preserve the environment, to deter violations of the Act, to denounce damage or risk of damage to the environment and human health, and to reinforce the “polluter pays” principle for environmental restoration. The lack of actual injury was not found to be a mitigating factor, as under CEPA potential for harm is the relevant factor to consider in sentencing. The sentencing justice relied on R. v. Sinclair (2009), 45 C.E.L.R. (3d) 222 (Ont. C.J.) finding that though in Sinclair actual harm to the environment was deliberately inflicted, El-Hinn’s moral culpability is similar despite no actual environmental damage. This is due to El-Hinn’s sustained non-compliance with warnings and orders.

Summary Conviction Appeal Court

[6] The appellate judge allowed El-Hinn and the corporation’s appeal against both the fines and term of incarceration. He eliminated the term of incarceration and reduced the fines. He did so on the basis that there was an error in principle by the sentencing judge in finding parity with Sinclair. The appellate judge found that the moral responsibility of each Sinclair and El-Hinn were not similar. The sentencing judge’s finding was therefore found to amount to an error in principle, and deference was lost. The appellate judge reasoned that Sinclair had a much more blameworthy state of mind than did El-Hinn, as Sinclair was knowingly and intentionally polluting the environment. The harm in Sinclair was not caused by delay or negligence, but rather was caused by deliberate and calculated acts of pollution. El-Hinn and the company had a lower degree of culpability, as they were passively negligent. Further, unlike Sinclair, El-Hinn and the company also were not attempting to profit at the expense of the environment, which demonstrates a lower degree of moral culpability. Finally, the appellate judge found that Sinclair also should have been distinguished because there was actual harm to the environment, whereas in the case at hand there was not.

[7] The appellate judge found that a jail sentence should only be imposed if it is necessary to achieve sentencing principles (s. 287.1(1) of CEPA incorporates the restraint principle under s. 718.2 of the Criminal Code)[1]. The appellate judge determined that while the proper test is the potential harm to the environment, s. 718.2 (a)(iii.1) of the Criminal Code requires a court to take into account harm to the victim in sentencing. Actual harm to the environment is not present in this case. The appellate judge found that these factors, plus the COVID-19 crisis weakening the public interest in jail sentence, militates against custody for El-Hinn. He found that fines are enough to fulfil sentencing objectives, especially as El-Hinn’s culpability was lower than that determined by the sentencing judge.

[8] The appellate judge reduced the fines to $150,000 for the corporation and $170,000 for El-Hinn. In doing so, he determined that counts 1 through 10 should be dealt with as the same charge.

Crown appeal

[9] The Crown appeals arguing that the original sentence should be restored as there was no error in principle.

Analysis

[10] We allow the appeal in part.

[11] We agree with the appellate judge that there was an error in principle in comparing the case to Sinclair where there were deliberate actions to harm the environment which are not analogous to the situation here. Having found otherwise, the sentencing judge erred in principle and the appellate judge did not owe the decision deference. We agree that the incarceration of El-Hinn is not proportional and should be eliminated.

[12] We do not agree with the appellate judge’s reduction of the fines. It was not an error for the sentencing judge to impose separate fines for each count. Concurrent sentences apply only to incarceration. In this regard we restore the sentencing judge’s determination.

[13] The appeal is allowed with respect to the fines but dismissed with respect to the incarceration.

“David Watt J.A.”

“M.L. Benotto J.A.”

“Gary Trotter J.A.”

[1] See also: Ontario (Labour) v. New Mex Canada Inc. 2019 ONCA 30, 144 O.R. (3d) 673 released after the sentencing decision at first instance.