Court File and Parties

Court File No.: Kitchener 15183/11; 15180/11 Date: 2012-10-23 Ontario Court of Justice

Between: R — and — Christopher David Burgess and Karen Mary Burgess

Before: Justice of the Peace M A Cuthbertson Heard on: 14 August 2012 Sentencing Decision released on: 23 October 2012

Charges

• Fail to Obtain a Building Permit X 2, s. 36(1)(c) & 8, Building Code Act (BCA)
• Fail to Comply - Order to Obtain a Building Permit X 2, s. 36(1)(b) & 12(2), BCA
• Fail to Comply - Order Prohibiting Use or Occupancy X 2, s. 36(1)(b) & 12(2), BCA
• Build a Deck Within the Side or Flankage Yard X 2, s. 67(1), Planning Act and s. 8.33.2 City of Waterloo By-law #1418
• Fail to Comply with Order to Remove the Deck X 2, s. 36(1)(b) & 12(2), BCA

Counsel

For the Prosecution: Daniel Veinot For the Defendants: Roberto Aburto

Decision

1: THE BACKGROUND

[1] Mr and Mrs Burgess plead guilty to all of the charges on 14 August 2012 during a judicial pre-trial. An Agreed Statement of Facts was presented to the Court. The defendants were convicted of all five charges against each of them. Sentencing submissions were made and the matter was put over for sentencing.

[2] A brief overview is of assistance in considering appropriate sentences. Both defendants were jointly charged after they had contractors build a deck and hot tub on their home in 2010, without having obtained a building permit. The deck extended within the side yard setback contrary to the City of Waterloo by-law.

[3] In late 2010, they were the subject of Orders to obtain a building permit, remove the deck and hot tub and not to occupy or use either. Initially, they did not comply with any of the Orders. However, in June of 2012, an application for a building permit was made and the deck was removed. The hot tub was permitted to stay by the City. Most of the materials from the deck were retained by the defendants.

2: SENTENCING CONSIDERATIONS

[4] Both sides relied on the R v. Cotton Felts decision to emphasize the parameters for appropriate sentences. Having the benefit of that decision and specifically considering the parameters set out in paragraph 19, this Court notes the following:

(a) Christopher and Karen Burgess are husband and wife and jointly own the property. As such, the totality of the sentences must be considered as to the overall impact on the couple as a family unit. This must be balanced against the need to ensure that the sentences do not effectively create a monetary licence for bad behaviour.

(b) Their actions were not based on a profit motive.

(c) The sentences should focus on both general deterrence for the public and specific deterrence for the defendants.

(d) Rehabilitation is not an issue in these circumstances.

(e) The public has the right to expect its laws and by-laws to be respected.

2.1 Aggravating Factors

[5] Despite being ordered to do so, the Burgess' began but did not complete their application for a building permit. Nor did they comply with the various Orders made against them for about 1 ½ years.

2.2 Mitigating Factors

[6] Neither of the defendants has a record for similar offences.

[7] Due to the resolution of this matter by way of a guilty plea, no trial was required.

[8] The defendants bore all of the expenses personally to remove the deck.

[9] There was no direct harm to the public as the deck and hot tub were built in the defendants' own yard.

2.3 Application of Parity Principle

[10] Both sides relied on case law to provide a range of fines to establish parity with the offences before this Court.

[11] Mr Veinot presented R v Black and North Perth (Municipality) v. McTaggart. While the charges were similar to the matter at bar, both cases required trials and the circumstances were quite different to those before this Court. They are therefore, distinguishable. However, a review of the fine ranges in these matters offers some 'food for thought'.

[12] Black involved a dock built in an environmentally sensitive area. In part, due to this factor fines of $2500 on each count were levied.

[13] McTaggart involved changing the use of a building by installing residential quarters on the second floor by a husband and wife. As well, search warrants were required to gain access to that property. The fines levied were $500 on each count for each defendant.

[14] Based on these two cases the prosecution notes a general range of $500 to $2,500 on each count but specifically asks for the following:

(a) Count 1, a fine between $500-$1,000.

(b) Count 2, a fine between $1,000 - $1,500.

(c) Count 3, a fine between $1,000 - $2,000.

(d) Count 4 should be considered under the Kienapple principle. A stay was suggested.

(e) Count 5, a fine between $2,000 - $3,000.

[15] Therefore, Mr Veinot suggested a range of fines for each of the two defendants between $4,500 and $7,500. In total then, the Burgess' would be facing joint fines of between $9,000 and $15,000. He further noted the maximum potential fine was $50,000 on each count but the legislation did not impose a minimum fine.

[16] When asked by the Court, Mr Veinot indicated that probation had not been considered but it may offer both a general and specific deterrent value. However, the prosecution was of the view that the provisions of the Building Code Act could adequately deal with any violations, should they occur in the future.

[17] Mr Aburto provided the cases of Thunder Bay (City of) v. Rebernik, Ottawa (City of) v. Bentolila (Lisa and Andre) and R v. Bhullar (Jasvir and Inderjit) for consideration as to appropriate sentences. None of the facts in these cases is directly on point to the matter before this Court. As well, all required trials. While the Rebernik matter (fine of $400 per count plus a prohibition order) dealt with convictions under a Thunder Bay by-law and the Ontario Building Code, the Bentolila (fine of $250 per count) sentencing was for convictions under the Fire Protection and Prevention Act, 1997. The Bhullar convictions ($50 per count plus an order to remove all non-permitted construction) were for violations of zoning and construction by-laws in British Columbia.

[18] While all are distinguishable from the matter at bar once again a review of the sentence ranges in these matters offers 'food for thought'.

[19] Mr Aburto submitted that the fines on each of the counts, excluding count 4, should be in the range of $50 to $250 for each defendant. This would provide a range of fines of $200 to $1,000 per defendant or $400 to $2,000 in total for the couple.

[20] Mr Aburto agreed with the submission of Mr Veinot that count 4 should be stayed under the Kienapple principle.

[21] On the possible use of probation, Mr Aburto submitted that while fines alone may suffice, a term of probation would act as a specific deterrence to the Burgess'.

[22] Mr Aburto declined to make submissions on the financial status of the defendants.

3: DECISION

[23] Having reflected upon the above sentencing considerations, aggravating and mitigating factors and the parity principle, I make the following findings on sentencing.

[24] I begin with the simplest of the issues. I accept the joint submission of both sides. Therefore, count 4 is stayed.

[25] It is obvious to this Court that had the Burgess' simply followed proper procedures when commencing the construction of their deck and hot tub by applying for a building permit, they would have saved themselves substantial costs and inconvenience. I am also aware that much of the building materials was retained by the couple after the removal of the deck. Perhaps, at some point, they may wish to begin another deck.

[26] In my view, there is substantial value in ordering both defendants into probation on Count 1 to provide an ongoing deterrent to them from engaging in a future project without first obtaining any required permit. The consequences of violating a probation order are substantial (see s. 75 Provincial Offences Act). Those consequences should give pause to anyone who may contemplate violating such an order. The deterrence value of such a probation order applies equally to the general public.

[27] Therefore, I will suspend the sentence for each defendant on Count 1 and order each of them into probation for one year with the standard terms as set out in s. 72(2) of the POA.

[28] Counts 2, 3, and 5 all set out failures to comply with Orders made against the defendants. While the wording of the three charges was different (fail to comply with an Order - 2) to obtain a building permit, 3) prohibiting use or occupancy and 5) to remove the deck), each essentially dealt with a similar act by the defendants in that they did not follow an Order made by the City. Therefore, each conviction should proportionally bear the same level of sentence.

[29] In my view, fines are appropriate for counts 2, 3 and 5. While I recognize the Burgess' have already borne the costs of removing the deck, the fines must be of sufficient weight to provide both general and specific deterrence. Having considered the range of fines in the cases submitted by both sides, as well as their differences to the matter at bar, I am satisfied that fines of $500 on each of these three counts for each defendant are appropriate. As well, the totality of the fines for them ($3,000) is reasonable when I consider Mr and Mrs Burgess are but one family unit.

[30] In summary then, the combination of a stay, probation and fines create a balanced and reasonable sentencing package that meet the principles set out in Cotton Felts.

[31] Finally, I wish to thank both Mr Veinot and Mr Aburto for their diligence and professionalism in resolving these matters and their thoughtful submissions on sentencing.

Released: 23 October 2012

Signed: Justice of the Peace M A Cuthbertson