COURT FILE NO.: Cayuga - 1111-999-07-0091, 06-0064, 07-0092
DATE: 2012·01·11
Citation: R. v. Nichols, 2012 ONCJ 24
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
— AND —
GARY I. NICHOLS and NICHOLS GRAVEL LTD.
Appellants/Applicants
Before Justice D.A. Harris
Heard: October 21, 2011
Judgment: January 11, 2012
P. Osier ......................................................................................... for the Appellants/Applicants
D. Kappos ..................................................................................................... for the Respondent
REASONS FOR JUDGMENT
HARRIS J.:
[1] In 2007, the Appellants were each charged with four counts of operating a quarry without a licence between 2004 and 2006, contrary to s. 7(1) of the Aggregate Resources Act thereby committing an offence contrary to s. 57(1) of that Act.
[2] Near the outset of the proceedings, on March 30, 2009, the presiding Justice of the Peace made a ruling dismissing an application to exclude search warrant evidence pursuant to the Canadian Charter of Rights and Freedoms.
[3] The Justice of the Peace ultimately convicted both Appellants with respect to all of the charges.
[4] On December 9, 2009, he sentenced both Appellants, imposing fines totalling $402,000.00.
[5] The Appellants appealed the ruling, the convictions and the sentences.
[6] Counsel for the Appellants raised a number of issues. I will address each of these separately.
APPEAL AGAINST CONVICTION
[7] The authority to allow an appeal against conviction is set out in s. 120 of the Provincial Offences Act which states:
- (1) On the hearing of an appeal against a conviction … the court by order,
(a) may allow the appeal where it is of the opinion that,
(i) the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground, there was a miscarriage of justice.
[8] This wording is similar to that contained in s. 686 of the Criminal Code of Canada. Decisions of the Supreme Court of Canada with respect to that legislation may therefore be applied here as well.
[9] These decisions make it clear that the test of whether a verdict was reasonable is whether the verdict is one which a properly instructed trier of fact acting judicially could reasonably have rendered. The function of an appellate court goes beyond merely finding that there is evidence to support a conviction. In order to apply the test, the appellate court must re-examine and to some extent reweigh and consider the effect of the evidence. The appellate court does not however simply substitute its view for that of the trial judge. Rather, great deference is to be paid to findings of credibility made at trial by the trier of fact.[^1]
[10] I must keep all of that in mind as I address each of the issues raised by the Appellants in their appeal against conviction.
WAS NICHOLS GRAVEL LTD. PRESENT FOR THE TRIAL?
[11] Counsel for the Appellants stated that at the outset of the trial proceedings, both Appellants were represented by counsel[^2] but that after the Justice of the Peace dismissed the application to quash the search warrant, the Appellants discharged that counsel. These statements were correct.
[12] Counsel went on to argue that when the trial recommenced, no one was appointed to represent Nichols Gravel Ltd. nor did Gary I. Nichols, who appeared personally, indicate that he appeared for Nichols Gravel Ltd. The trial, under court order, continued without Nichols Gravel Ltd. or Gary I. Nichols being represented. These statements by counsel for the Appellants were incorrect.
[13] The transcript of the proceedings on April 27, 2009 clearly indicates that the Justice of the Peace asked Mr. Nichols “I take it that you are representing yourself today, correct?” and Gary I. Nichols answered “That’s correct”. Following that, both Gary I. Nichols and Nichols Gravel Ltd. were arraigned and each time the question was asked “How do you plead?”, Gary I. Nichols answered “Not guilty”. The following exchange then occurred:
THE COURT: Mr. Nichols, I take it that on the count read out to you alleging these offences against Nichols Gravel Ltd., you pled not guilty on behalf of Nichols Gravel Ltd.?
GARY NICHOLS: That’s correct.
THE COURT: As a director of that company?
GARY NICHOLS: That’s correct.
[14] The Justice of the Peace had previously noted[^3] that “Mr. Nichols said in his application that he is a corporate officer of Nichols Gravel Ltd.”.
[15] Later he said “Mr. Gary I. Nichols pleaded not guilty on behalf of himself and on behalf of the company Nichols Gravel Ltd.”[^4] and that “Mr. Nichols chose to represent himself and act as agent for his company”[^5].
[16] Subsection 50(2) of the Provincial Offences Act provides that “A defendant that is a corporation shall appear and act by representative”. Clearly Gary I. Nichols was appearing as the representative of Nichols Gravel Ltd. When asked, he said that he was. He also demonstrated that fact by actively representing the company as well as himself throughout the trial.
[17] Subsection 50(3) of the Provincial Offences Act provides that “The court may bar any person, other than a person who is licensed under the Law Society Act, from appearing as a representative if the court finds that the person is not competent properly to represent or advise the person for whom he or she appears, or does not understand and comply with the duties and responsibilities of a representative.” However, a review of the record here reveals that the Justice of the Peace quite properly regarded Mr. Nichols as being very competent to represent Nichols Gravel Ltd. and himself.[^6]
[18] There is therefore no basis for this ground of appeal.
JURISDICTION / TITLE ISSUES
[19] These issues were dealt with earlier during an unsuccessful application on behalf of the Appellants to amend the Notice of Appeal.
[20] The Appellants applied for the right to argue that there was no authority in law for the Ministry of Natural Resources to impose the provisions of the Aggregate Resources Act here because the land in question fell within the title claim of the Haudenosaunee Six Nations by virtue of the Haldimand Grant or alternatively that the lands were purchased and received in Crown Land Patents from His Majesty King George III and the patents did not reserve to the Crown any mineral rights except with respect to gold and silver.
[21] Although the information underlying these arguments was within the knowledge of the Appellants, these issues were not raised during the trial and no evidence was led to provide a factual basis with respect to them. I found that in these circumstances it would not be in the interests of justice to allow the Appellants to raise these issues on appeal.[^7] Accordingly, I dismissed the application to amend the Notice of Appeal and the application to admit fresh evidence in support of such application.[^8]
SEARCH WARRANT
[22] Counsel for the Appellants argued that the Justice of the Peace erred in dismissing the preliminary application to exclude all evidence obtained during the execution of the search warrant. Counsel could not however enumerate a specific error on the part of the Justice of the Peace. His argument was not that the Justice of the Peace could not have reached the decision that he did but rather that he should not have done so.
[23] That of course is not the test on an appeal. On the contrary, I must show proper deference to the decisions of the presiding Justice of the Peace just as he was required to show deference to the Justice who issued the warrant.
[24] In R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.), at 188, Sopinka J. described the grounds upon which a reviewing court may set aside a wiretap authorization:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
[25] Justice Sopinka subsequently held in R. v. Grant (1993), 1993 CanLII 68 (SCC), 84 C.C.C. (3d) 173 (S.C.C.), at 195 that this test also applied to a review of search warrants.
[26] This was restated more recently by the Ontario Court of Appeal in R. v. Manders, 2007 ONCA 849, [2007] O.J. No. 4757 (Ont. C.A.), at para. 11:
The test the trial judge was required to apply in determining the complaint of constitutional infringement raised by the appellant at trial was whether there was reliable evidence in the sworn information before the justice that might reasonably be believed on the basis of which the justice could have granted the warrant. The test was not whether, in the reviewing judge's opinion, the warrants should have issued, much less whether the reviewing judge would have issued the warrants himself if asked.[^9]
[27] Durno J. stated at para. 75 in R. v. Colbourne, [1998] O.J. No. 5913 (Ont. S.C.J.) (affirmed by the Ontario Court of Appeal at 2001 CanLII 4711 (ON CA), [2001] O.J. No. 3620) that:
There is a constitutional presumption of validity with respect to a search conducted pursuant to a search warrant and the information to obtain sworn in support of the issuance of the warrant. Therefore, the applicant bears the evidentiary burden on the balance of probabilities to establish the unreasonableness of the search by attacking the information to obtain, or the search warrant itself.[^10]
[28] So the presiding Justice of the Peace was required to show considerable deference to the issuing Justice. Similarly I must give considerable deference to the decisions of the presiding Justice of the Peace. The question before me is not whether I would have made the same decisions that he did both with respect to the manner in which the warrant was obtained and with respect to the manner in which it was executed. The question before me is whether the presiding Justice of the Peace could reasonably have reached the decisions that he did.
[29] Counsel for the Appellants conceded before me that the Justice of the Peace could have done what he did. Counsel’s argument was that the Justice of the Peace should not have made the decisions that he did.
[30] That is not a valid reason for me to overrule the decision of the Justice of the Peace. Neither is there any other reason for me to overrule his decisions. Accordingly, this ground of appeal also fails.
ABSOLUTE LIABILITY OR STRICT LIABILITY OFFENCE
[31] Counsel for the Respondent conceded quite correctly that the Justice of the Peace erred in classifying the offences here as absolute liability offences. They were in fact strict liability offences.
[32] Counsel for the Respondent argued however that this error had no effect on the outcome of the trial.
[33] I agree.
[34] The Supreme Court of Canada in R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 (S.C.C.) determined that all regulatory offences fall into one of three categories. They are to be classified as absolute liability offences, strict liability offences or full mens rea offences.
[35] In all three categories, the burden is on the Crown to prove the actus reus of the offence beyond a reasonable doubt. After that, the rules vary depending on which category the offence falls into.
[36] In the case of an absolute liability offence, the case would be over and a conviction should be entered.
[37] In the case of a strict liability offence however, it would then be open to the defendant
to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.[^11]
[38] In this case, the Justice of the Peace was satisfied that the Crown had proven the actus reus of the offences beyond a reasonable doubt.
[39] It was therefore open to the Appellants to prove, on a balance of probabilities, that they had exercised due diligence. However, no such evidence was ever introduced here.
[40] Accordingly, even if the Justice of the Peace correctly classified the offences here as strict liability offences, he still would have had to find both Appellants guilty of all of the charges in any event.
[41] I note that there was nothing advanced during the appeal to suggest that the Appellants declined to advance a due diligence defence during the trial because of the Justice of the Peace’s mistaken belief that these were absolute liability offences. Neither was there any suggestion that any such evidence even existed. Certainly there was no application to introduce fresh evidence in this regard, and I note that the Appellants and their counsel are certainly aware of this procedure and are prepared to resort to it when they think it is to their advantage to do so.[^12]
[42] The curative portion of s. 120(1)(b)(iii) of the Provincial Offences Act provides:
- (1) On the hearing of an appeal against a conviction … the court by order,
(b) may dismiss the appeal where,
(iii) although the court is of the opinion that on any ground mentioned in subclause (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred.
[43] In this case, although I find that the Justice of the Peace’s categorization of these offences as absolute liability offences was a wrong decision on a question of law, I am of the opinion that no substantial wrong or miscarriage of justice occurred as a result of that decision.
[44] Accordingly, the appeal fails on this ground.
APPREHENSION OF BIAS
[45] Counsel for the Appellants argued that the Justice of the Peace exhibited bias against Gary I. Nichols.
[46] I disagree. In fact I find no evidence of bias here. Nor do I find any basis for a reasonable apprehension of bias on the part of Mr. Nichols.
[47] I note that the Supreme Court of Canada and the Ontario Court of Appeal have both stated that there is a strong presumption of impartiality on the part of judicial officers and that an allegation of reasonable apprehension of bias is a serious one.[^13]
[48] Counsel for the Appellants referred to several findings made by the Justice of the Peace, which findings were adverse to the position taken by Mr. Nichols. These are not indicative of bias. They are simply indicative of the fact that the Justice of the Peace and Mr. Nichols disagreed on these points. There is nothing to suggest that the positions taken by the Justice of the Peace were unreasonable.
[49] Counsel for the Appellants also argued that it would have been reasonable for Mr. Nichols in particular to apprehend that the Justice of the Peace was biased against him. That however is not the test to be applied here.
[50] The Supreme Court of Canada made it clear in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 (S.C.C.) that the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information, the test of “what would an informed person, viewing the matter realistically and practically--conclude?”
[51] That does not describe Mr. Nichols. On the contrary, Mr. Nichols is, as the Justice of the Peace described him at pp. 44 and 45 of the Reasons for Judgment, “a man who deeply believes that he has been the victim of an illegal prosecution, and he has adopted a position of unbridled resolve, over a period of years, to do battle with the state.” It is my observation, both from a review of the trial record and a review of the positions advanced on his behalf during this appeal that Mr. Nichols also believes that anyone who has ever disagreed with him during the course of these legal battles is biased against him.
[52] The record here discloses no rational, factual basis for his belief.
[53] The appeal fails on this ground.
EVIDENCE AGAINST GARY I. NICHOLS PERSONALLY
[54] The Justice of the Peace stated in his Reasons for Judgment that Gary I. Nichols was a director of Nichols Gravel Ltd. as well as the president of the company and that “the evidence compellingly reveals that Gary I. Nichols was the operating mind behind the company”.[^14]
[55] I agree.
[56] The appeal fails on this ground.
TRANSCRIPTS
[57] This issue was also dealt with in an earlier unsuccessful application by the Appellants for an order directing the preparation of further transcripts.[^15] At that time I found that counsel had been unable to indicate what if anything might be missing from the existing transcripts. Accordingly, I dismissed the application but noted that I was doing so without prejudice to the Appellants’ right to argue the sufficiency of the transcripts as a ground of appeal.
[58] When arguing this appeal, counsel for the Appellants was still unable to show that anything was missing from the transcripts.
[59] He was however able to show where the Justice of the Peace had directed that a paragraph be inserted into his decision with respect to the initial Charter application challenging the search.
[60] The relevant portion of the transcript reads as follows:
NOTE: The following paragraph is inserted at the request of Justice of the Peace Bonas, and did not form part of the original decision.
This court unequivocally recognizes an accused person’s right to make full answer and defence, the presumption of innocence and the Crown’s burden to prove its case beyond a reasonable doubt. However, at trial, it would be unwise (unhelpful) and contemptuous in the face of the Superior Court (which ruled in a clear and succinct manner that certain issues had already been litigated at least four times) for counsel to attempt to raise issues already decided by the Ontario Superior Court of Justice. Specifically, what need not be re-litigated are items 9 1), 2), 3), 4), 5), 6), 7), 8), 9), and 10 contained at Tab 2 of the defendant’s application record as part of his affidavit.
[61] With the consent of both counsel, I listened to the relevant portion of the tape and can confirm that the above passage was not part of the original oral reasons delivered by the Justice of the Peace.
[62] So what effect does this have on this appeal?
[63] The Ontario Court of Appeal addressed the issue in R. v. Wang, 2010 ONCA 435, [2010] O.J. No. 2490 (Ont. C.A.).
[64] There, Rouleau J.A. stated at paras. 9 to 13 that:
9 In my view, it is inappropriate to modify, change or add to a transcript of oral reasons rendered in court. There may well be circumstances, such as when the original transcription is no longer available, where the improper alteration of the transcript would be sufficient to warrant ordering a new trial. That said, editing the transcript for readability and to assist in catching errors by the transcriber - not the judge - is appropriate. This would normally be limited to matters such as punctuation, grammatical errors and the like. It is not an opportunity to revise, correct or reconsider the words actually spoken and no changes of substance are to be made. It must be recalled that the transcription of oral reasons rendered in court is exactly that, a transcript of what occurred in court. The reporter preparing the transcript is called upon to certify that the transcript is "a true and accurate transcription of my recordings, to the best of my skill and ability." To seek to alter the transcript places the reporter in the invidious position of either refusing to certify the transcription or making a certification that he or she does not feel is true and accurate.
10 The integrity of the trial record and of in court proceedings is fundamental to the judicial system and to the transparency of those proceedings. Counsel who are present when oral reasons are delivered in court should have confidence that the decisions they make with their client based on these oral reasons will not be undermined by alterations that represent something substantially different from what in fact occurred in the courtroom. Nor should counsel, upon receiving a transcript of the oral reasons, be left to wonder whether it in fact reflects what was said in the court, or rather constitutes a version of the reasons as later modified by the judge. It is even a greater concern when the alterations to the transcript of the reasons are made after a notice of appeal has been filed: see R. v. Geesic, 2010 ONCA 365.
11 As stated by Dickson J. in Baxter Travenol Laboratories v. Cutter (Canada), 1983 CanLII 30 (SCC), [1983] 2 S.C.R. 388 at 398: "Reasons for judgment are not meant to be tentative." When parties to a proceeding receive reasons that on their face are final, they ought to be entitled to rely on this apparent finality. The Supreme Court of Canada in R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267 recognized, however, that in some circumstances there may be good reason for announcing a decision prior to delivering the full reasons that led to it. There may be urgency in the outcome being known or, as frequently occurs in the case of rulings in the course of a trial, the judge does not want to delay the progress of the trial so will indicate the result arrived at with or without brief oral reasons. Similarly, a summary conviction appeal judge might choose to announce the decision and outline the reasons for the decision in the presence of the parties. In such cases the judge should give a clear indication that the transcription of the decision (and any brief oral reasons that may have been given) will be supplemented by more comprehensive reasons, written or oral, to follow.
12 If unforeseen circumstances arise such that, after delivery of reasons that were meant to be final, a trial judge wishes to correct or supplement the reasons that were already delivered, various options are available. These include the issuance of an addendum, providing supplementary reasons or, when the original reasons were oral, subsequently issuing a set of amended reasons, written or oral. Candour and transparency are however, essential. Where changes or additions are made to the reasons, counsel as well as any reviewing court should have a clear record of what occurred and be in a position to opine as to the legal effect, if any, of the changes or additions made by the judge.
13 In fairness to the summary conviction appeal judge in the present case, the additions and changes made to the reasons simply elaborated on the reasons delivered orally. In my view, the fact that changes were made to the transcript rather than through the issuance of supplementary reasons has no impact on the outcome of the present appeal. Regardless of which set of reasons this court were to review, the outcome would be the same.
[65] In this case, the Justice of the Peace clearly supplemented the oral reasons that had previously been given in court. There is a clear record of this fact, indicated by the statement in the transcript that “The following paragraph is inserted at the request of Justice of the Peace Bonas and did not form part of the original decision” and also indicated by the box drawn around that paragraph.
[66] Accordingly, as required by the Court of Appeal in Wang[^16], “counsel as well as any reviewing court … have a clear record of what occurred and [are] in a position to opine as to the legal effect, if any, of the changes or additions made by the judge”.
[67] I also find that, like Wang[^17], the additions and changes made to the reasons simply elaborated on the reasons delivered orally. The fact that changes were made to the transcript rather than through the issuance of supplementary reasons has no impact on the outcome of the present appeal. Whether I consider the reasons of the Justice of the Peace with or without the paragraph in question, the outcome would be the same.
[68] I find as well that the addition made here does not show any bias on the part of the Justice of the Peace nor provide any basis for a reasonable apprehension of bias.
[69] Accordingly, the appeal also fails on this ground.
CONCLUSION RE APPEAL AGAINST CONVICTION
[70] For the above reasons the appeal against conviction is dismissed.
THE APPEAL AGAINST SENTENCE
[71] In his factum, counsel for the Appellants raised two issues with respect to the sentences imposed in this case.
[72] He argued that the Justice of the Peace misapprehended the evidence as to the number of days when the Appellants engaged in unlicensed operations. The Justice of the Peace therefore miscalculated the total fines which were determined on the basis of $500.00 per day.
[73] Counsel also argued that it was improper for the Justice of the Peace to “double-up on the fines” and fine both Appellants the minimum amount. Counsel suggested that instead of doing this, the Justice of the Peace should have suspended sentence with respect to all charges against Gary I. Nichols.
[74] During oral argument, there seemed to be some question as to whether the Appellants were also arguing that the Justice of the Peace had failed to obtain information as to the means of the Appellants to pay the minimum fines, thereby determining whether the Appellants might be entitled to some relief pursuant to s. 59(2) of the Provincial Offences Act. However, counsel for the Appellants made it clear during his reply submissions that he was not arguing this point.
[75] Also during oral argument, counsel argued that the Justice of the Peace should have considered the decision of Her Worship Justice of the Peace Casey[^18] and the Appellants’ reliance on that decision as a mitigating factor justifying relief pursuant to s. 59(2).
[76] With respect to all of these issues, I note that my authority to allow an appeal against sentence is set out in s. 122 of the Provincial Offences Act which states:
- (1) Where an appeal is taken against sentence, the court shall consider the fitness of the sentence appealed from and may, upon such evidence, if any, as it thinks fit to require or receive, by order,
(a) dismiss the appeal; or
(b) vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted …
[77] This wording is similar to that contained in s. 687 of the Criminal Code of Canada. Decisions based on that legislation may therefore be applied here as well.
[78] In that regard Catzman J.A. of the Ontario Court of Appeal set out a summary of the “Limitations on Appellate Courts on Sentence Appeals” in R. v. Turcotte, 2000 CanLII 14721 (ON CA), [2000] O.J. No. 1316 (Ont. C.A.) at para. 16. I have taken the following principles from that summary.
[79] An appellate court should only intervene to vary a sentence imposed at trial if that sentence is “not fit” or “clearly unreasonable”[^19] or if it falls “outside the acceptable range”[^20] or if there is “an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors”[^21] or if the sentence is “in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”.[^22] The sentence imposed at trial “is entitled to considerable deference from appellate courts”.[^23] “Although an appellate court might entertain a different opinion as to what objective should be pursued and the best way to do so”, appellate courts should not “second-guess sentencing judges unless the sentence imposed is demonstrably unfit”.[^24]
[80] So what would constitute a fit sentence here?
[81] The Ontario Court of Appeal decision in R. v. Cotton Felts Ltd., 1982 CanLII 3695 (ON CA), [1982] O.J. No. 178 (Ont. C.A.), sets out the factors that must be considered in determining the appropriate sentence with respect to regulatory offences in Ontario. At para. 19 the Court of Appeal stated that:
The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute. Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence.
[82] The Court of Appeal made it clear that deterrence is the paramount principle of sentencing in these cases. To accomplish this, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not be a mere licence fee for illegal activity.
[83] The Justice of the Peace referred to the Cotton Felts decision in this case and applied its principles in determining the sentence that was imposed.
[84] He noted that the Appellants continued to operate the illegal operation for almost two years despite repeatedly being told to stop. He described the actions of the Appellants as being “deliberate, flagrant and calculated”[^25] and that they showed no contrition or remorse[^26].
[85] He noted that the gross revenue generated by the illegal operation was greater than $500,000.00. He also noted that expenses would have been incurred in generating that income.
[86] He pointed out that he was “hard-pressed” to find any mitigating factors in the case but did note the decision of Justice of the Peace Casey and the fact that Mr. Nichols did not have a record of similar offences.
[87] He also noted however that the Appellants continued their illegal operations even after the decision of Justice of the Peace Casey had been overturned on appeal.[^27]
[88] I note also the numerous comments made by the Justice of the Peace throughout the proceedings with respect to Mr. Nichols’ attitude towards judicial decisions. I am including two passages that I believe summarize the Justice of the Peace’s findings with respect to that attitude.
[89] The Justice of the Peace stated at pp. 19 and 20 of the Reasons for Sentence that:
The record shows that the defendant Gary Nichols appears not to accept decisions of the Courts or Tribunals in this Province. Understandably, decisions of law Courts and Tribunals are appealable given the hierarchy.
However, the defendant’s actions over a number of years clearly reveal [an] abject disdain or disrespect for Judgments of the Court, or at the very least a feigned ignorance of the most fundamental principles of the law.
[90] He went on to say on p. 20 that:
This Court on the record finds that Mr. Nichols’ attitude towards anyone who disagreed with him was deplorable. While Mr. Nichols was a model of civility in Court, conduct for which he is to be commended, the documentary evidence, as well as in-Court testimony, reveal a propensity bordering on contempt [and] wilful disdain of Court decisions.
[91] In light of these attitudes, it would be patently absurd to even suggest that the decision of Justice of the Peace Casey motivated Gary I. Nichols or Nichols Gravel Ltd. to commit these offences. On the contrary, Mr. Nichols himself chose to act as he did and just as he was not about to let an adverse court ruling deter him from doing so, so too he did not need a favourable ruling to encourage him to continue offending.
[92] The Justice of the Peace noted that Mr. Nichols and the corporation were separate and distinct individuals[^28].
[93] He suspended the sentence with respect to Count 3 against Nichols Gravel Ltd.
[94] He considered s. 59(2) of the Provincial Offences Act[^29] which reads as follows:
- (2) Although the provision that creates the penalty for an offence prescribes a minimum fine, where in the opinion of the court exceptional circumstances exist so that to impose the minimum fine would be unduly oppressive or otherwise not in the interests of justice, the court may impose a fine that is less than the minimum or suspend the sentence.
[95] He concluded at p. 37 of his Reasons for Sentence that:
There has been no evidence in this case that Mr. Nichols or Mr. Nichols’ circumstances amount to exceptional. As I indicated there has been no evidence that Nichols Gravel Ltd. is in financial distress, nor has there been any evidence that Mr. Nichols himself as a person is in any financial difficulty.
Indeed, as I said, there has been some evidence that the property has been offered for sale at millions of dollars, and notwithstanding the information that the asking price has been reduced, that that property certainly is worth a considerable amount of money.
[96] He had previously noted that evidence as to the financial position of the business was “scant” and stated at p. 33 of his Reasons for Sentence that:
The Crown in this case has led some evidence of corporate assets. I note that evidence as to the wealth of the corporation is somewhat scant, likewise is the evidence as to the ability or inability of Mr. Nichols, the defendant, to pay the fines imposed.
Mr. Nichols himself is in the best position to offer evidence of his own wealth or lack thereof. He is the one who has access to his confidential information. It certainly would be a simple matter today to adduce evidence by means of financial statements about the financial health of the corporation, or of Mr. Nichols himself. Despite being given an opportunity to do so, he has not done so today.
[97] In that regard I note that when the Justice of the Peace had pressed Mr. Nichols for submissions regarding sentence earlier in the proceedings, Mr. Nichols did not provide any information as to the financial circumstances of either Appellant. Instead he simply replied:
Well the fact that we still take the position that we are not guilty of these illegally enforced offences, our submission is that we are not guilty and should not be liable for the severe penalties that they are requesting. That is about our position here.[^30]
[98] In light of all of the circumstances of this case, I am satisfied that the imposition of fines totalling $402,000.00 was both fit and reasonable.
[99] This is a case where the Appellants deliberately engaged in illegal operations for substantial financial gain for almost two years despite repeatedly being told to stop.
[100] They showed no remorse for their actions. On the contrary, even during the sentencing proceedings, they continued to proclaim that they were entitled to act as they did and to castigate the Ministry officials who were involved in this prosecution.
[101] There was no evidence of financial difficulty on the part of either Appellant. There was no evidence of other exceptional circumstances.
[102] Quite frankly, I would dismiss the appeal against sentence outright but for the position taken by the Respondent.
[103] That position is that the Justice of the Peace did miscalculate the total number of days when the Appellants conducted their illegal operations. The Respondent disagrees with the Appellants as to the extent of that miscalculation. However, the Respondent joins the Appellants in asking me to reduce the fines to the extent of the miscalculations that they do agree occurred.
[104] But for the position taken by the Respondent, I was not satisfied that the Appellants had demonstrated that the Justice of the Peace had erred in his calculations.
[105] Neither was I satisfied that the Appellants would be deserving of reduced fines in any event.
[106] Despite the position taken by counsel for the Respondent during the sentencing hearing, neither Appellant was automatically entitled to a fine calculated at the minimum rate of $500.00 per day of operation.
[107] As noted by the Justice of the Peace[^31] s. 58(1) of the Aggregate Resources Act provides that
- (1) Every person who commits an offence under section 57 is liable on conviction to a fine of not less than $500 and not more than $30,000 for each day on which the offence occurs or continues.
[108] There was, therefore, statutory authority for the Justice of the Peace to impose the fines that he did, or even greater ones, whether the offence had occurred on 363 days[^32] or 390 days[^33] or 409 days[^34].
[109] In my view, there was not only statutory authority for the Justice of the Peace to have imposed the fines that he did, in light of the circumstances of this case it would have been quite reasonable for him to have imposed those fines or even greater ones.
[110] This was most definitely not a case where the Justice of the Peace “doubled-up” the fines. Rather, the fines totalling $402,000.00 were quite reasonable, whether they were imposed against Gary I. Nichols or against Nichols Gravel Ltd. or against both.
[111] Having said that however I will accede to the Respondent’s request and allow the appeal against sentence to the following extent.
[112] With respect to the Appellant Gary I. Nichols, the fine with respect to Count 1 is reduced from $27,000.00 to $23,500.00.
[113] The fine with respect to Count 2 is reduced from $96,500.00 to $91,500.00.
[114] The appeal against sentence with respect to Count 3, being a fine in the amount of $7,000.00 is dismissed.
[115] The fine with respect to Count 4 is reduced from $74,000.00 to $73,000.00.
[116] With respect to the Appellant Nichols Gravel Ltd., the fine with respect to Count 1 is reduced from $27,000.00 to $23,500.00.
[117] The fine with respect to Count 2 is reduced from $96,500.00 to $91,500.00.
[118] The appeal against sentence with respect to Count 3, being a suspended sentence is dismissed.
[119] The fine with respect to Count 4 is reduced from $74,000.00 to $73,000.00.
COSTS
[120] Counsel for the Respondent raised the issue of costs at various stages of these proceedings. Counsel may address that issue, if they see fit, in court, by appointment.
Released: January 11, 2012 Signed: “Justice D.A. Harris” _____________________
Justice D.A. Harris
[^1]: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.J. No. 51 (S.C.C.); R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] S.C.J. No. 56 (S.C.C.); R. v. Biniaris, 2000 SCC 15, [2000] S.C.J. No. 16 (S.C.C.). [^2]: In fact, they were both represented by the counsel who later argued this appeal. [^3]: In the reasons given on March 30, 2009 dismissing the application to quash the search warrant. [^4]: In his Reasons for Judgment delivered on December 9, 2009 at p. 18. [^5]: In his Reasons for Judgment delivered on December 9, 2009 at p. 34. [^6]: See the comments of the Justice of the Peace in his Reasons for Judgment delivered on December 9, 2009 at pp. 43 and 44. [^7]: The test for the admission of fresh evidence is set out in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 (S.C.C.). [^8]: The Appellants never formally applied to admit fresh evidence. Counsel argued however that such an application should have been apparent to the court in the application to amend the Notice of Appeal and I allowed him to argue the point as if an application to introduce fresh evidence had in fact been made. [^9]: Similar statements can be found at paras. 39 and 40 of R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8 (S.C.C.), and at para. 42 in R. v. Campbell, 2010 ONCA 588, [2010] O.J. No. 3767 (Ont. C.A.). [^10]: See also Campbell, supra at para. 45. [^11]: Sault Ste. Marie, supra at pp. 1325 and 1326. [^12]: As they did with respect to the issues dealt with earlier in paras. 19 through 21 of my Reasons. [^13]: R. v. R.D.S., [1977] S.C.J. No. 84 (S.C.C.) at para 113; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] S.C.J. No. 50 at para. 59; Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, [2010] O.J. No. 212 (Ont. C.A.) at para. 243. [^14]: In his Reasons for Judgment delivered on December 9, 2009 at p. 22. He goes on at pp. 38 through 45 to summarize some of the evidence that so compellingly revealed that Mr. Nichols was the operating mind behind the company. [^15]: See R. v. Nichols, [2011] O.J. No. 4463 (Ont. C.J.). [^16]: Ibid, para. 12. [^17]: Ibid, para. 13. [^18]: Which decision was overturned on appeal some 300 days later. [^19]: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227 (S.C.C.) at para. 46. [^20]: Ibid, para. 50. [^21]: R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 (S.C.C.) at para. 90. [^22]: Ibid, para. 92. [^23]: R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6 (S.C.C.) at para. 123; Shropshire, supra at paras. 46-50; M.(C.A.), supra at paras. 89-94. [^24]: Proulx, supra at para. 125. [^25]: Reasons for Sentence, January 27, 2010, at p. 28. [^26]: Ibid, at p. 34. [^27]: Ibid, at p. 29. [^28]: Ibid, at p. 32. [^29]: Ibid, at p. 34. [^30]: Transcript of proceedings of January 27, 2010, p. 15. [^31]: Reasons for Sentence, January 27, 2010, at p. 15. [^32]: As calculated by counsel for the Appellants during the Appeal. [^33]: As calculated by counsel for the Respondent during the Appeal. [^34]: As determined by the Justice of the Peace at the time of sentencing.