Court Information
File No.: 4961 11 0339A
Court: Ontario Court of Justice
Location: Richmond Hill, Ontario
Date: Monday, September 10, 2012
Parties
Her Majesty the Queen
- v - Paul Nolis and Cathy Nolis
Appearances
Prosecutor: B. Hammond, Provincial Prosecutor
Defendants: Paul Nolis and Cathy Nolis (Self-represented)
Before: Her Worship Justice of the Peace M. Coopersmith
Heard: In Writing
Sentencing Decision
Background
The trial in this matter took place on March 15, 2012. Mr. Nolis requested a date of July 9, 2012, for the court to render judgment, which accommodated his need to be available as a substitute teacher during the school year. On July 9, 2012, neither Mr. nor Mrs. Nolis attended court. They sent their daughter to advise that they were in Las Vegas, having made their travel plans in May 2012 but failing to notify either the court or the prosecutor.
On July 9, 2012, judgment was rendered finding both defendants guilty of the charge of failing to maintain a minimum distance for an accessory building or structure from the property line, contrary to the Town of Richmond Hill Zoning By-Law 128-04, as amended.
Oral submissions on penalty were heard from the prosecutor, and the defendants were provided until July 20, 2012, to submit written penalty submissions. A facsimile from Mr. and Mrs. Nolis was received on July 16, 2012.
Sentencing Principles and Goals
Goals of Sentencing
The court identified four primary goals of sentencing applicable to provincial offences:
1. General Deterrence
General deterrence involves deterring the public generally from committing the offence and is the most important sentencing goal for most regulatory offences. The court emphasized the "slippery slope" principle: if the defendants believed they could continue to contravene rear yard setbacks without significant repercussions, a precedent would be established and the Town of Richmond Hill's zoning bylaws would lose their force and effect.
The court cited the 1982 Ontario Court of Appeal decision in Regina v. Cotton Felts Ltd.:
"Without being harsh the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere licence fee for illegal activity."
"The amount must be one that would be felt by this defendant. It should also serve as a warning to others who might be minded to engage in similar activity that it will be costly for them to do so even if they do not succeed in their illegal aims."
The court noted that although deterrence may be accomplished without imposing a substantial fine, this would not occur in the present case given the defendants' history of noncompliance and their failure to take steps to rectify the breach.
2. Specific Deterrence
Specific deterrence involves deterring the specific offender before the court from committing the offence again. Given the defendants' prior conviction for the same offence, any penalty imposed must be sufficiently high to serve as a warning against complacency.
3. Protection of the Public
Protection of the public is an important consideration for offences where public safety is an issue. The court viewed this as serving a commendable goal where people must live peacefully and in harmony with their community and neighbourhood environments.
The court noted that regulatory offences are not criminal offences. Activity is not prohibited by regulatory offences because it is inherently wrong; rather, the activity is regulated because if left unregulated, it would result in danger to the public or, in this case, disharmony in the community. Municipal bylaws are essential to the public interest through ensuring standards of conduct, performance and reliability.
4. Rehabilitation
Rehabilitation is generally given less weight with regulatory offences than with criminal offences and is given greater weight when sentencing young persons rather than older adult offenders. Nonetheless, given the history and circumstances of the matter, rehabilitation to ensure future compliance was considered a sentencing goal.
Sentencing Principles
The court identified three relevant sentencing principles:
Proportionality
The sentence imposed must bear some relationship to the seriousness of the offence and depends on the particular circumstances of the offence, the offenders, and the community.
Factors relevant to the offence include:
- Extent of potential harm
- Maximum penalty prescribed
- Nature and purpose of the statute
- Actual harm
- Whether the offence is a mens rea offence (this was not)
The potential for harm could be significant if the "slippery slope" mentality took hold in the community.
Factors relevant to the offender include the measures taken to avoid the wrong and the attitude of the offenders. The defendants took no measures to bring the shed into compliance even after their initial conviction. Their penalty submissions illustrated an attitude of recalcitrance and reluctance to accept that their shed did not comply with the bylaws.
With respect to proportionality and the community, the court considered the nature of the area. The shed was significantly close to the neighbour's property—only 18 inches—far from the required 7.5-metre rear yard setback, which was established to foster a residential community where everyone could reasonably enjoy their property without a neighbour's shed looming just inches from their rear yard.
Parity
The principle of parity requires that similar penalties be imposed on similar offenders for similar offences in similar circumstances. It does not require identical penalties but does require that differences be understandable.
The prosecutor requested different monetary fines: $1,000 for Mrs. Nolis and $2,500 for Mr. Nolis. The court was reluctant to impose differing amounts, as no information was provided showing that one property owner was differently situated than the other. Both were on title to the property (joint ownership), either could effect compliance, and neither had taken steps to do so. The court could not find Mr. Nolis any more or less responsible simply because he represented both defendants in court proceedings.
Totality
Both defendants were charged and convicted of one offence. The fact that both were listed on title to the same property resulted in both being charged. The court had to be careful and mindful of this in imposing penalties to ensure they were appropriate and not excessive or duplicitous when considered together.
Sentencing Factors
Extent of Actual and Potential Harm
The maximum penalty prescribed by statute is found in Section 67 of the Planning Act, R.S.O. 1990, c. P.13, which provides:
"67(1) Every person who contravenes section 41, section 46, subsection 49(4) or section 52 or who contravenes a by-law passed under section 34 or 38 or an order made under section 47 and, if the person is a corporation, every director or officer of the corporation who knowingly concurs in the contravention, is guilty of an offence and on conviction is liable,
(a) on a first conviction to a fine of not more than $25,000; and
(b) on a subsequent conviction to a fine of not more than $10,000 for each day or part thereof upon which the contravention has continued after the day on which the person was first convicted."
This was a subsequent conviction. Section 67(3) of the Planning Act provides that the court may make an order prohibiting the continuation or repetition of the offence.
Mitigating and Aggravating Factors
Mitigating Factors
The court found little if any mitigating factors. There had been a lack of cooperation by the defendants to work towards compliance. Instead, Mr. Nolis seemed intent on wanting the Town of Richmond Hill, the prosecution, and the courts to accept his perspective. The July 9, 2012 judgment addressed the frailties of the defendants' arguments, yet their July 16, 2012 penalty submissions illustrated that they still wished to convince the court to accept these unfounded arguments.
Aggravating Factors
Aggravating factors justifying an increase in penalty included:
Record of regulatory offences – The defendants had a prior conviction for the same offence.
Lack of effort to minimize damage – The defendants had not taken steps to minimize the adverse effects of their noncompliance.
Potential harm to people or property – The proximity of the shed to the neighbour's property created ongoing interference with the neighbour's use and enjoyment of their property.
Lack of remorse – While lack of remorse is not technically an aggravating factor, the defendants' attitude towards their continued desire to keep the non-complying shed in place was aggravating in these circumstances.
Prior conviction – The defendants had previously been convicted for the shed being close to the rear lot line, keeping in mind Section 15 of the Regulatory Modernization Act.
Duration of adverse effects – The matter dated back before 2009, representing years of impact on neighbouring property and residents.
Impact on neighbours – The noncompliance significantly impacted the neighbours' normal use and enjoyment of their property.
Failure to take initiative – The defendants failed to take the initiative with respect to complaints and minimizing these complaints.
Lack of due diligence – The defendants showed an extent of lack of due diligence regarding what the law required and being compliant with it. The court's judgment clearly showed that even if the previous bylaw (prior to amendment) indicated a setback of less than 7.5 metres, it certainly was well over 18 inches.
Pursuit of unreasonable alternatives – Upon receiving a second letter of noncompliance, the defendants did nothing, leaving the shed where it was previously found to be non-complying instead of moving, removing, or applying for a minor variance.
Inadequate prior penalty – A fine of $50 imposed on each defendant previously did not replace the more costly application for a minor variance or the higher cost of moving the shed.
Long-term recalcitrance – The defendants appeared recalcitrant and had shown long-term resistance to remedying the noncompliance over many years.
Sentencing Decision
Fines
Having reviewed the goals of sentencing, the principles of sentencing, and the factors to consider (including mitigating and aggravating factors), the court imposed:
- Fine of $2,000 against Paul Nolis
- Fine of $2,000 against Cathy Nolis
Probation Order
Although Section 67 of the Planning Act would have allowed the court to impose a prohibition order prohibiting the continuation of the offence, the court determined that a probation order under Section 72 of the Ontario Provincial Offences Act would be more effective.
The court found that the defendants had shown little remorse, taken little responsibility for their conduct, and shown no indication that they would do things differently in the future. They did not appear to appreciate the seriousness of their noncompliance with municipal bylaws.
Therefore, in addition to the monetary penalties, the court imposed a non-reporting probation order against each defendant, effective for 12 months from the date of sentencing, including:
Statutory Terms:
- Notify the court of any change in address
- Appear before the court when required
- Not commit other offences
Specific Condition:
- Bring the shed at issue into compliance with the Town of Richmond Hill zoning bylaws prior to the expiration of this order or prior to the transfer or sale of the property upon which the non-complying shed is located, whichever occurs first.
The defendants were advised that the consequences of breaching the probation order include:
- Imposition of a further fine of up to $1,000, or
- A jail sentence of not more than 30 days, or both
- The probation order, with the same or additional conditions and for an additional period of up to a further year, may be imposed
The court also advised that a jail sentence for breach of probation may be imposed even if the original offence does not carry a potential jail sentence.
Payment Terms
The defendants were given one year from the date of sentencing to pay the fines of $2,000 each.
Certification
This is a true and accurate transcription from the digital recording in the Ontario Court of Justice, held at 50 High Tech Road, Richmond Hill, recording number R3-4961-20120910, certified in Form 1 and prepared by Sandra Arrizza, Court Reporter.