COURT FILE No.: Halton – Burlington Information No. 11-7141
DATE: 2013·03·12
Citation: Ontario (Ministry of Natural Resources) v. 819743 Ontario Inc., 2013 ONCJ 128
ONTARIO COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen in Right of the Ministry of Natural Resources of Ontario
— AND —
819743 Ontario Inc.
Sentencing Proceeding before Justice of the Peace Kenneth W. Dechert
Heard on December 18th, 2012
Reasons for Sentence delivered on March 12th, 2013
Provincial Offences Court – Burlington, Ontario
C. Agatiello ......................................................................................... student-at-law for the Crown
T. Arnold .................................................................. counsel for the defendant 819743 Ontario Inc.
Statutes, Regulations and Rules cited:
Combines Investigation Act, R.S.C. 1970, c. C-23;
Criminal Code, R.S.C. 1985, c. C-46, subsection 718.2(b);
Labour Relations Act, R.S.O. 1980, c. 228;
Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended, section 2, and subsections 24(1), 24(4) and 24(5);
Ontario Regulation 826, made pursuant to the Niagara Escarpment Planning and Development Act, R.R.O. 1990, Regulation 826, as amended;
Ontario Regulation 828, made pursuant to the Niagara Escarpment Planning and Development Act, R.R.O. 1990, Regulation 828, as amended, section 5, paragraph 9;
Occupational Health and Safety Act, S.O. 1978, c.83;
Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, subsection 47(3).
Cases cited:
Ontario (Ministry of Natural Resources) v. Timur Leckebusch and 819743 Ontario Inc., [2012] O.J. No. 2289 (Ont. C.J.);
Reference Re: B.C. Motor Vehicle Act (1985), 1985 CanLII 81 (SCC), 23 C.C.C. (3d) 289 (S.C.C.);
Regina v. Larry Bilkszto, unreported – January 11, 2012, (Ont. C.J. – Welland, Ontario);
Regina v. C.A.M. (1996), 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.);
Regina v. Cotton Felts Limited, 1982 CanLII 3695 (ON CA), [1982] O.J. No. 178 (Ont. C.A.);
Regina v. Ford Motor Company of Canada Limited (1979), 1979 CanLII 2838 (ON CA), 49 C.C.C. (2d) 1 (Ont. C.A.);
Regina v. Gardiner (1982), 68 C.C.C. (3d) 477 (S.C.C.);
Regina v. Donald Gordon, unreported – June 13, 2012 (Ont. C.J. – Barrie, Ontario);
Regina v. Hoffman-LaRoche Limited (No. 2) (1980), 1980 CanLII 1915 (ON SC), 30 O.R. (2d) 461 (Ont. H.C.);
Regina v. Hoffman-LaRoche Limited (Nos. 1 and 2) (1981), 1981 CanLII 1690 (ON CA), 62 C.C.C. (2d) 118 (Ont. C.A.);
Regina v. K-Mart Canada Limited (1982), 1982 CanLII 3811 (ON CA), 66 C.C.C. (2d) 329 (Ont. C.A.);
Regina v. Mardave Construction (1990) Ltd., [1995] O.J. No. 4944 (Ont. C.J.);
Regina v. Frank Mathias, unreported – March 31, 2011 (Ont. C.J. - Welland, Ontario);
Regina v Panarctic Oils Ltd. (1980), 1982 CanLII 4944 (NWT TC), 12 C.E.L.R. 29 and 80 (N.W.T. Terr. Ct.);
Regina v. Servello Carpentry Limited, [2010] O.J. No. 6264 (Ont. C.J.);
Publications cited:
Archibald, The Honourable Mr. Justice Todd; Jull, Professor Kenneth; Roach, Professor Kent, Regulatory and Corporate Liability – From Due Diligence to Risk Management, (2007 ed. – Canada Law Book, a division of The Cartwright Group Ltd.);
Libman, The Honourable Justice Rick, Libman on Regulatory Offences in Canada, (2002, updated to 2012 – Earlscourt Legal Press Inc.);
Nadin-Davis, Sentencing in Canada, as cited in Regina v. Cotton Felts Limited, supra.
K.W. DECHERT, J.P. (orally):
INTRODUCTION
[1] On January 16th, 2012, Mr. Timur Leckebusch stood charged under Information no. 11-7140, that he between the 11th day of August, 2008 and the 10th day of December, 2009, at 9328 Sideroad 15, Town of Halton Hills, in the Regional Municipality of Halton, Ontario did commit the offence of unlawfully, in an area of Development Control, undertake a development, to wit: the construction of a berm, without a permit, contrary to section 24(1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended, hereinafter referred to as “the N.E.P.D.A”. Additionally on the same date and under the same Information, the said defendant stood charged that he between the 10th day of December 2009 and the 24th day of June 2010, at 9328 15th Sideroad, Town of Halton Hills, in the Regional Municipality of Halton did unlawfully, in an area of Development Control, undertake a development, to wit: the construction of a retaining wall, without a permit, contrary to section 24(1) of the N.E.P.D.A.
[2] Furthermore on January 16th, 2012, 819743 Ontario Inc. stood charged under Information no. 11-7141, that it between the 1st day of January 2009 and the 18th day of August 2010, at 9328 15th Sideroad, Town of Halton Hills in the Regional Municipality of Halton did unlawfully, in an area of Development Control, undertake a development, to wit: the construction of an armour stone wall, without a permit, contrary to section 24(1) of the N.E.P.D.A.
[3] The joint trial of the said charges took place before me in the Provincial Offences Court in Burlington, Ontario, on January 16th, 2012. Following the completion of the trial, I reserved judgment and the proceeding was adjourned until May 15th, 2012, for my judgment.
[4] In delivering my judgment on May 15th, 2012, I acquitted the defendant Timur Leckebusch of the charges against him however I convicted the defendant 819743 Ontario Inc. of the charge against it under section 24(1) of the N.E.D.P.A. The reasons for my said judgment are contained in the decision cited as Ontario (Ministry of Natural Resources) v. Timur Leckebusch and 819743 Ontario Inc., [2012] O.J. No. 2289 (Ont. C.J.).
[5] Upon completion of the delivery of my said judgment, the sentencing hearing relative to the conviction registered against 819743 Ontario Inc. before me, was adjourned to October 22nd, 2012, in the Burlington Provincial Offences Court. As the sentencing hearing was not reached on the said date, it was adjourned to December 18th, 2012. The sentencing hearing took place on that date, following which the proceeding was adjourned to March 12th, 2013, for my judgment.
[6] During the sentencing hearing of December 18th, 2012, the Crown was represented by Ms. C. Agatiello, student-at-law with the Ontario Ministry of Agriculture, Food and Rural Affairs and the defendant corporation was represented by its counsel, Mr. T. Arnold.
THE LAW
(i) Relevant Statutory Provisions
[7] 819743 Ontario Inc. has been convicted of an offence contrary to subsection 24(1) of the N.E.P.D.A. That subsection reads as follows:
Despite any other general or special Act, if an area of development control is established by regulation made under section 22, no person shall undertake any development in the area unless such development is exempt under the regulations or unless the development complies with a development permit issued under this Act.
[8] The following subsections of section 24 of the said Act, are relevant to the issue of the determination of the sentence, upon conviction, for violations of subsection 24(1):
ss. 24(4) Every person who contravenes subsection (1) 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.
ss. 24(5) Despite subsection (4), if a corporation is convicted under subsection (1), the maximum penalty that may be imposed is,
(a) on a first conviction a fine of not more than $50,000; and
(b) on a subsequent conviction a fine of not more than $25,000 for each day or part thereof upon which the contravention has continued after the day on which the corporation was first convicted.
[9] Additionally, in my view, the general statement as to the purpose of the N.E.P.D.A. contained in section 2 therein is relevant to the issue of the penalty to be imposed by a Court for contraventions of that Act. That section reads as follows:
The purpose of this Act is to provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a continuous natural environment, and to ensure only such development occurs as is compatible with that natural environment.
(ii) Relevant Common Law
[10] The N.E.P.D.A. is a statute enacted by the Legislature of the Province of Ontario. Accordingly, the procedure codified in the Provincial Offences Act, R.S.O. 1990, c. P.33, hereinafter referred to as “the P.O.A.”, applies to the prosecution of offences under the N.E.P.D.A.
[11] There are no provisions in the P.O.A. which define the principles to be applied relative to the issue of sentencing. Those principles relative to provincial regulatory offences, together with the objectives to be considered in determining an appropriate sentence for such offences, are established by common law.
[12] The leading case in the area of sentencing principles, including the goals of sentencing, applicable to regulatory or “public welfare” offences, is the Ontario Court of Appeal decision in Regina v. Cotton Felts Limited, 1982 CanLII 3695 (ON CA), [1982] O.J. No. 178 (Ont. C.A.). In that decision, the Court dismissed the appeal of the corporate defendant against the fine imposed upon conviction for a breach of the regulations made under the Occupational Health and Safety Act, S.O. 1978, c. 83. The unanimous panel of the Court concluded that that the fine imposed was “in all respects a fit sentence”.
[13] In his decision in the said appeal, Blair J.A. made the following comments relative to the factors to be applied in crafting sentences for regulatory offences, in paragraphs 19, 20, 21 and 22 therein, as follows:
The Occupational Health and Safety Act is part of a large family of statutes creating what are known as public welfare offences. The Act has a proud place in this group of statutes because its progenitors, the Factory Acts, were among the first modern public welfare statutes designed to establish standards of health and safety in the work place. Examples of this type of statute are legion and cover all facets of life ranging from safety and consumer protection to ecological conservation. In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all. To a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations. 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: see R. v. Ford Motor Company of Canada Limited (1979), 1979 CanLII 2838 (ON CA), 49 C.C.C. (2d) 1, per MacKinnon A.C.J.O. at p. 26; Nadin-Davis, Sentencing in Canada, p. 368 and cases cited therein.
The paramount importance of deterrence in this type of case has been recognized by this Court in a number of recent decisions. An example is provided by R.v. Hoffman-LaRoche Limited (No.2) (1980), 1980 CanLII 1915 (ON SC), 30 O.R. (2d) 461. In that case Mr. Justice Linden imposed a fine of $50,000 for an offence under the Combines Investigation Act, R.S.C. 1970, c. C-23, and stated the principles governing the amount of a fine as follows:
In conclusion, I feel that a fine that is more than nominal, but which is not harsh, would be appropriate in this case. The amount must be substantial and significant so that it will not be viewed as merely a licence for illegality, nor as a mere slap on the wrist. 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 criminal activity that it will be costly for them to do so even if they do not succeed in their illegal aims.
The sentence was upheld by this Court, (1981), 1981 CanLII 210 (SCC), 62 C.C.C. (2d) 1 [should be page 118], where my brother Martin said at pp. 160-161:
A careful examination of those reasons satisfies me that general deterrence was the paramount factor to be considered in arriving at an appropriate sentence.
Another example is provided by this Court’s decision in R. v. K-Mart Canada Limited (1982), 1982 CanLII 3811 (ON CA), 66 C.C.C. (2d) 329. In that case the Court increased the fine of $25,000 to $100,000 for a company convicted of conspiring to interfere with the formation and operation of a trade union, contrary to the Labour Relations Act, R.S.O. 1970, c. 232, now R.S.O. 1980, c. 228. In doing so, Chief Justice Howland had this to say at p. 332:
In our opinion, the fine imposed did not adequately reflect the gravity of the offence and was an error in principle. The fine must not be tantamount to a licence fee to commit illegal activity, but must be sufficiently substantial to warn others that such illegal activity will not be tolerated.
The main factors in the computation of a fine expressed in these decisions are the same as those expressed by Judge Dnieper [the sentencing judge in the subject case]. 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.
[14] The foregoing paragraphs clearly establish the view of the Ontario Court of Appeal that deterrence; both in the form of specific deterrence so as to send a direct signal to the specific regulatory offender that continued violations of statutory provisions enacted in the interests of public welfare will not be tolerated, and in the form of general deterrence so as to dissuade other persons who might be disposed to contravene such provisions from engaging in such conduct, is the paramount objective to be considered in sentencing an offender relative to a regulatory offence.
[15] In her decision in Regina v. Mardave Construction (1990) Ltd., [1995] O.J. No. 4944 (Ont. C.J.), Katarynych J. noted that in the context of sentencing an offender for a contravention of the Occupational Health and Safety Act, a Court “must keep in mind the mischiefs that the statute sets out to cure, and to reinforce, not only for the offender at bar but also his peers in the community, the importance of those statutory objectives”.
[16] In the case at bar, the defendant corporation has been convicted of an offence contrary to a statute enacted for the purpose of protecting “the Niagara Escarpment and lands in its vicinity as a continuous natural environment”. The objectives of the legislation clearly relate to the notion of environmental and ecological preservation.
[17] Accordingly, in my view, the following comments made by authors, The Honourable Mr. Justice Todd Archibald and Professors Kenneth Jull and Kent Roach, at pages 12-16.2 and 12-17 of their textbook, Regulatory and Corporate Liability – From Due Diligence to Risk Management, (2007 ed., Canada Law Book, a division of The Cartwright Group Ltd.) are relevant to the factors that I must address in passing sentence against the corporate defendant in this proceeding:
Restorative justice principles are, perhaps surprisingly, found throughout regulatory sentencing, as much of this law owes its heritage to environmental protection – the concept of restoring the environment to its state prior to the violation took hold. As noted earlier, there are various environmental statutes that authorize courts to make orders to restore the natural environment within a period of time specified. In the environmental context, for example, the nature of the environment affected and the extent of the damage inflicted are factors that the court will review on sentencing. The ‘polluter-pays’ principle has been endorsed in Principle 16 of the Rio Declaration on Environment and Development [United Nations Conference on Environment and Development (Rio de Janeiro, June 3-14, 1992)], which provides:
National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.
Conversely, the mere absence of environmental damage will not be a mitigating factor. The violation of permit requirements, even if not resulting in environmental damage, has been held to be important to the integrity of the legal system itself and punishable as such. Given the pro-active nature of much of regulatory law, arguments about de minimis effects ought to be viewed with skepticism.
In assessing damage to the environment, prosecutors may rely on the analogy of “death by a thousand cuts”, to illustrate the cumulative nature of environmental damage. This phrase has its origins in the case of R. v Panarctic Oils Ltd. [(1980), 1982 CanLII 4944 (NWT TC), 12 C.E.L.R. 29 and 80 (N.W.T. Terr. Ct.), per Bourassa J. who said in imposing sentence:
In my view, the destruction of any ecosystem or environment is a gradual process, effected by cumulative acts – a death by a thousand cuts, as it were. Each offender is as responsible for the total harm as the last one, who visibly triggers the end. The first offender can’t be allowed to escape with only nominal consequences because his input is not as readily apparent. I have to concur with the Crown that damage to the environment here is not a factor that should be taken into consideration other than if there was concrete evidence before me of serious harm to the environment. Then, in my view, that would be an aggravating circumstance.
Sentencing judges should not second guess legislative risk assessments.
[18] The preponderance of jurisprudence appears to identify the concepts of proportionality, parity and totality as appropriate principles of sentencing relative to regulatory offences. In the case at bar, I am charged with the responsibility of determining the appropriate sentence to be pronounced upon a corporate defendant, which has been convicted of one count of unlawfully undertaking a development on property located within an area of development control, without a development permit. Accordingly, I am of the view that the sentencing principle of totality is not relevant to the subject sentencing proceeding.
[19] In its decision in Reference Re: B.C. Motor Vehicle Act (1985), 1985 CanLII 81 (SCC), 23 C.C.C. (3d) 289 (S.C.C.), the Supreme Court of Canada generally described the principle of proportionality by noting that a sentence should “bear some relationship to the offence; it must be a ‘fit’ sentence proportionate to the seriousness of the offence”. Furthermore, in its decision in Regina v. C.A.M. (1996), 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.), the Supreme Court of Canada noted that in imposing a sentence which conforms to the principle of proportionality “the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender”.
[20] Common law requires Courts sentencing offenders for breach of regulatory standards to balance the principle of proportionality of sentence with the principle of parity of sentence in crafting a fit and just sentence. The principle of parity is a principle which has been generally defined in common law as one which mandates that similar sentences be imposed on similar offenders and similar offences, in the context of like, comparable circumstances. In his textbook titled Libman on Regulatory Offences in Canada, (2002, updated to 2012 - Earlscourt Legal Press Inc.), The Honourable Justice Rick Libman made, in part, the following comments on the principle of parity, at pages 11-23 and 11-24:
The purpose of all sanctions in criminal and quasi-criminal matters is to ‘reduce the incidents of the offence in our society’. This is done through a consideration both to specific deterrence and general deterrence. However, the harshest sentence ought to be reserved for the worst possible factual situation. The fact that the maximum penalty ‘is intended for the worst offence and the worst offender is not to be interpreted as meaning ‘the very worst offence or very worst offender that could be notionally conceived by an unfettered imagination’.
To put it another way, there is a requirement of consistency. There should be ‘similar sentences for similar offences for similar offenders’. That is, ‘like offences for like offenders should attract similar sentences’.
One of the ‘best tests’, then, in assessing fitness of sentence is to compare it to other sentences imposed for similar offences. There has to be ‘some uniformity of sentence’, within reason, so as to ‘preserve the appearance of fairness in the courts in dealing with the public.’ A sentence which is ‘disparate’ is offensive to the notion of ‘equal justice’ before the courts. But s. 718.2 (b) of the Criminal Code, which states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, does not mean that merely because a person is charged with a particular offence ‘this necessarily mandates a specific or particular sentence that is in line’ with other sentences imposed for similar offences on other offenders. The Court must also consider the circumstances in which the offence was committed. Disparate sentences will be warranted for differences in areas such as degree of involvement in the offence and the offender’s background.
[21] In her P.O.A. appellate decision in Regina v. Servello Carpentry Limited, [2010] O.J. No. 6264 (Ont. C.J.), Hourigan J. considered the issue of the applicability of the principle of parity when the range of sentences for which a defendant is liable, as prescribed by statute differs, based on whether the defendant is an individual or a corporation. In finding that the concept of parity of sentence between individual and corporate defendants is irrelevant in such circumstances, the jurist stated as follows:
The Appellant submits that the learned Justice of the Peace erred in principle by considering in the imposition of sentence, the concept of parity, which it submits, is a (sic.) irrelevant in a prosecution under the O.H.S.A [Occupational Health and Safety Act]. The Appellant points to the Reasons on Sentence where the learned Justice of the Peace indicated that he took into account the constructor’s fine of $7,500.00.
Individuals and corporations under the Act are treated differently the Appellant argues in that, the maximum fine for an individual is $25,000.00 per count while the maximum fine for a corporation is $500,000.00 per count. As a result, the Appellant submits that individuals and corporations are not defendants in like circumstances, and therefore it is irrelevant and incorrect to address the issue of parity on sentence.
The respondent submits that there is nothing in the Act which prohibits a sentencing court from considering the issue of parity. Individuals under the Act are also liable to a maximum of 12 months in jail, the Respondent argues, which tends to increase the severity of the maximum penalty they would receive.
I find that the learned Justice of the Peace had clearly took (sic.) into account the issue of parity as evident in his reasons when he imposed sentence.
On this issue I am in agreement with the Appellant’s position. Upon my reading of the Act it is apparent that individuals and corporations are intended to be treated differently in terms of sentence.
Parity is a concept to be considered on sentence, when like defendants are before the court. Because the intention of the legislature with this Act, I find, is to treat these two categories of defendants differently. The concept of parity is an irrelevant consideration on sentence.
Accordingly, I find that the learned Justice of the Peace committed an error in principle in considering this as a factor on sentence.
[22] Finally, the common law recognizes the concept that in passing sentence, the Court may consider any mitigating factors which have been established by the evidence adduced at the trial or during the sentencing hearing, on a balance of probabilities. The existence of mitigating circumstances will bolster a decision to impose a reduced penalty than would otherwise be justifiable.
[23] On the other hand, in its decision in Regina v. Gardiner (1982), 1982 CanLII 30 (SCC), 68 C.C.C. (2d) 477 (S.C.C.), the Supreme Court of Canada ruled that if the prosecution wishes to rely on aggravating factors to support the imposition of an increased penalty than would likely be imposed through the application of the relevant principles and goals of sentencing, it must establish the purported factors to the standard of proof beyond a reasonable doubt. If the prosecution is able to prove the existence of such aggravating factors, by means of properly admissible evidence to the requisite standard, then it is open to the Court to weigh those factors in determining whether the increased penalty sought by the prosecution, would be fit and just in the circumstances.
THE JUDGMENT OF MAY 15th, 2012
[24] In finding 819743 Ontario Inc. guilty of the subject offence contrary to subsection 24(1) of the N.E.P.D.A. on May 15th, 2012, I determined that it, as owner of the eastern one-half of the property municipally known as 9328 15th Sideroad, Halton Hills, Ontario, sometime between the 24th day of June, 2010 and the 18th day of August, 2010, undertook a development on the said property by constructing thereon an armour stone wall, without a development permit. I found that at all material times, the subject property was located within an area of development control as designated by the regulations made pursuant to the N.E.P.D.A., thereby requiring the issuance of a permit to authorize the undertaking of any development thereon, and that a permit for the construction of the said wall had not been issued by the Niagara Escarpment Commission as of August 18th, 2010.
[25] Moreover, in my said judgment I determined that the subject armour stone wall was between 1.5 and 2 metres in height and that it was situated adjacent to a horse riding ring located entirely on the subject property. It should be noted that the foregoing findings of fact, relative to the elements of the actus reus of the subject offence were established by the totality of the evidence in this proceeding, beyond a reasonable doubt.
[26] The prosecution succeeded in proving the actus reus of the subject strict-liability offence against the defendant corporation, beyond a reasonable doubt. The defendant failed to establish on a balance of probabilities that the exemption to liability for the offence, codified in section 5, paragraph 9 of Ontario Regulation 828 made pursuant to the N.E.P.D.A., operated in its favour in accordance with subsection 47(3) of the P.O.A. In this regard, I found that it had not been proven on a balance of probabilities, that the armour stone wall constituted a structure accessory to general agricultural development, so as to exempt the defendant from the requirement of obtaining a development permit prior to constructing the wall.
[27] In concluding that the defendant corporation had failed to meet its burden of proof under subsection 47(3) of the P.O.A., in respect of the operability of the regulatory exemption, I made the following statements at paragraph 78 of my said judgment:
The burden of proof rests on the defendant corporation to establish on a balance of probabilities that the exemption to the development permit requirement contained in section 5, paragraph 9 of the Regulation, operates in its favour. I must remind myself that I cannot engage in an exercise of speculation as to the crucial issue of whether the armour stone wall constitutes a structure accessory to general agricultural development relative to the 819743 Ontario Inc. property. While I understand that I have a duty to consider the circumstantial evidence before me and therefore determine whether I am able to draw any reasonable inferences from the evidence as to the use of the armour stone wall, I find that the only reasonable inference that I am able to draw from the totality of the evidence before me, relative to the subject structure, is that it is a wall which was constructed near the area of a riding ring on the property, for aesthetic purposes only.
[28] I concluded my judgment pertaining to the charge against the defendant corporation by stating that the defendant had not shown that the armour stone wall fell within the class of development which was exempt from the requirement of obtaining a development permit from the Niagara Escarpment Commission and that accordingly it was not justified in undertaking a development on the subject property, by constructing the said armour stone wall sometime between June 24th, 2010 and August 18th, 2010.
RELEVANT EVIDENCE TO BE CONSIDERED IN PASSING SENTENCE
[29] The following pieces of evidence, contained in a document titled “Agreed Statement of Facts” and filed as exhibit #1 to the joint trial proceeding of the charges against both Timur Leckebusch and 819743 Ontario Inc. before me, are relevant to the issue of the appropriate sentence to be imposed on 819743 Ontario Inc.:
Timur Leckebusch is the owner of the western half of Part lot 15 (hereinafter ‘the Leckebusch Property’).
819743 Ontario Inc. is the owner of the eastern half of Part lot 15 (hereinafter ‘the 819743 Property’).
The municipal address for both the Leckebusch Property and the 819743 Property is 9328 15th Sideroad, Halton Hills, Regional Municipality of Halton, Ontario.
Timur Leckebusch is the sole officer and director of 819743 Ontario Inc..
Timur Leckebusch operates an equestrian farm and horse show facility from the Leckebusch Property and the 819743 Property through a corporation, Halton Place Horse and Country Limited, in which Timur Leckebusch is the sole officer and director.
The Leckebusch Property and the 819743 Property are within the Development Control Area, as described by Ontario Regulation 826 of the Niagara Escarpment Planning and Development Act, since the Regulation’s inception on June 10, 1975. The lands are designated both Escarpment Rural Area and Escarpment Natural Area under the Niagara Escarpment Plan.
Past development permits issued for the property are listed in Appendix A;
An earthen berm was constructed adjacent to a riding ring for horses (the International Grand Prix Ring) at some time after April 1, 2009 but prior to December 10, 2009.
The berm is located on the Leckebusch property.
On December 10, 2009, NEC Officer Matthew Williamson and NEC Planner David Johnston conducted an inspection and advised that the position of the NEC [Niagara Escarpment Commission] was that a development permit was required for the construction of the berm.
On February 12, 2010, a Development Permit Application for the berm was submitted to the NEC by Mr. Leckebusch and 819743 Inc..
On July 9th, 2010 a Development Permit for the berm was issued (Permit 9732H/F/2009-2010/286) to Mr. Leckebusch and 819743 Inc. to authorize, after the fact, the construction of the berm as a noise attenuation/ spectator viewing feature. A copy of the Development Permit is attached as Appendix B.
On August 18, 2010, an employee of the Town of Halton Hills attended the property in response to a complaint. During his visit, he observed and photographed an armour stone wall. The wall had been constructed adjacent to the Grand Prix Sand Ring, which is entirely located on the 819743 Property;
The armour stone wall is between 1.5 and 2 metres in height. It had been built between June 24, 2010 and August 18, 2010. There was no development permit issued for this wall. A photograph of the armour stone wall, taken August 18, 2010, is attached as Appendix D.
The armour stone wall is located at least 90 metres from the centre line of an abutting open public road.
[30] Appendix “A” to exhibit #1, contains a description of each of the seventeen development permits applications, which had been made to the Niagara Escarpment Commission relative to the property municipally known as 9328 15th Sideroad, in the Town of Halton Hills and Regional Municipality of Halton, between 1990 and 2010. It is noted that of the seventeen applications, the Niagara Escarpment Commission issued fourteen development permits and refused one application, and the other two applications were withdrawn. It should be noted that the last development permit application listed in Appendix “A” pertains to the permit issued to both Timur Leckebusch and 819743 Ontario Inc. for the construction of a berm on the Leckebusch Property, “along the east side of the main driveway (west of the riding ring) for noise attenuation/spectator viewing purposes”.
EVIDENCE TENDERED DURING THE SENTENCING HEARING OF DECEMBER 18th, 2012
[31] During the course of his submissions as to sentence on December 18th, 2012, the counsel for the defendant corporation tendered three documents each titled “Media Release” from the Niagara Escarpment Commission. These documents were entered into evidence as exhibits on the sentencing hearing as exhibits #1, #2 and #3, respectively.
[32] Exhibit #1 reads, in part, as follows:
A Niagara-On-The Lake resident has been fined $3,000.00 for allowing fill to be deposited on his property without a permit from the Niagara Escarpment Commission.
Frank Mathias pleaded guilty to a charge under the Niagara Escarpment Planning and Development Act. Mathias had been convicted for the same offence on a previous occasion.
The court heard that Mathias accepted fill on his property for a period of about one year, starting in July 2009. Mathias stopped adding fill to the property after consultation with the Niagara Escarpment Commission and the Ministry of Natural Resources
Justice of the Peace Richard Bisson heard the case in the Ontario Court of Justice, Welland, on March 31, 2011.
[33] Exhibit #2 reads, in part, as follows:
A Lincoln resident has been fined $4,000.00 for a pond excavation within a provincially significant wetland.
Larry Bilkszto was charged for the excavation of a pond without a Niagara Escarpment Development Permit. The charge resulted from a joint investigation by the Niagara Escarpment Commission and the Ministry of Natural Resources under the Niagara Escarpment Planning and Development Act.
The court heard that Bilkszto had excavated a sizeable pond within a provincially significant wetland immediately adjacent to 20 Mile Creek. The property is located within the Niagara Escarpment Commission’s development control area. The excavation took place between October 2007 and October 2008.
Justice of the Peace Donna Cowan heard the case in the Ontario Court of Justice, in Welland, on January 11, 2012.
[34] Exhibit #3 reads, in part as follows:
A Creemore man has been fined $5,000.00 for undertaking a development on the Niagara Escarpment without a Niagara Escarpment Development Permit.
Donald Gordon was convicted under the Niagara Escarpment Planning and Development Act (NEPDA) for constructing a structural building addition without first obtaining a Niagara Escarpment Development Permit. The investigation and charge resulted from a joint investigation by the Niagara Escarpment Commission (NEC) and the Ministry of Natural Resources.
Justice of the Peace Malcolm Rogers heard the case in the Ontario Court of Justice, Barrie, on June 13, 2012. The Court heard that between 2008 and 2010, Mr. Gordon directed the construction of a structural addition to a building at 7775 County Road 9 in the village of Creemore in Clearview Township. Prior to the construction he had received correspondence from the Niagara Escarpment Commission indicating that the property was in the NEC’s Development Control area and that permits for development were legally required before any development take place.
THE ISSUES
[35] In this proceeding I must determine a fit and just sentence for the defendant corporation on the charge for which it was convicted on May 15th, 2012. In doing so, I must apply the principles and objectives of sentencing as established by common law and in particular as enunciated in Regina v. Cotton Felts Limited, supra, together with the sentencing provisions set out in subsection 24(5) of the N.E.P.D.A.
[36] In addition, I must take the positions of the parties into consideration, especially the submissions of counsel relative to the various factors which may be considered as either mitigating, so as to justify a monetary penalty below the penalty that would otherwise be imposed or aggravating, so as to support a penalty in excess of what otherwise might be imposed.
THE POSITION OF THE PARTIES
[37] The position of the prosecution as expressed by Ms. Agatiello, is that the Court should impose a fine of $4,000.00 against the defendant 819743 Ontario Inc., relative to the conviction registered against it for the subject charge, contrary to subsection 24(1) of the N.E.P.D.A., on May 15th, 2012.
[38] In making her submissions, the representative for the Crown considered the four factors identified in Cotton Felts Limited, supra, relative to the determination of the quantum of a fine to be imposed upon a corporation following a conviction against it for an offence under a public welfare statute. She also argued that the paramount objectives of sentencing in the realm of regulatory offences were specific deterrence and general deterrence.
[39] In addressing the issue of the size of the defendant corporation, the prosecution submits that based upon the photographic evidence of the armour stone wall which the defendant corporation constructed upon its property, the Court may reasonably infer that the corporation is financially viable. Ms. Agatiello noted that 819743 Ontario Inc. had apparently maintained a close business relationship with Halton Place Horse and Country Limited, which had occupied the defendant’s property (the eastern half of 9328 15th Sideroad, Halton Hills, Ontario) and Timur Leckebusch’s property (the western half of the said municipal address) for a significant period of time for purposes of the operation of an equestrian farm and horse show facility at the said municipal address. She contended that based on all of the evidence in this proceeding, the defendant corporation appeared to be a “very large company”.
[40] In considering the scope of the economic activity involved, the prosecutor argued that while the economic activity relative to the development undertaken by the corporate defendant was “rather limited in scope”, as it related only to the construction of an armour stone wall, the wall is nonetheless “quite sizeable”, noting that it is between 1.5 and 2 metres in height.
[41] In commenting upon the third factor set out in Cotton Felts Limited, supra, being the extent of actual and potential harm to the public resulting from the contravention of the regulatory regime, the prosecutor submitted that the undertaking of any type of development within a development control area under the N.E.P.DA., without the permission of the Niagara Escarpment Commission, would potentially have a significant negative effect on the preservation of the natural environment in the vicinity of the Niagara Escarpment. Ms. Agatiello noted that while the illegal development in the form of the subject armour stone wall considered in isolation might appear to be insignificant, the potential harm to the maintenance of the Niagara Escarpment as a continuous natural environment, caused by cumulative, unauthorized development, might well result in a substantial degradation of the Escarpment area over time. In making this argument the prosecutor submitted that any development, no matter what the size, which is undertaken without the approval of the Niagara Escarpment Commission, contributes to the potential destruction of the ecologically unique environment that is the Niagara Escarpment. She described this type of harm to the environment as “death by a thousand cuts”.
[42] In concluding her comments relative to this factor, Ms. Agatiello argued that a significant monetary penalty is necessary to send a message to land owners within the area of development control that any unauthorized development on their land may have significant long-term ramifications to the environment. She maintained that while there does not appear to be any obvious actual harm to the environment caused by the construction of the subject wall beside the horse riding ring, the potential harm to the environment caused by undertaking this development without regulatory approval is, in the long term, significant and real. She submits that a fine must be imposed that sends not only a message to the defendant corporation but also to other like-minded land owners, that they must be diligent and responsible with the use of which they make of the land within the area of Niagara Escarpment development control. The fine must substantial enough to be considered more than a mere licence fee for activity undertaken in contravention of regulatory legislation such as the N.E.P.D.A.
[43] Finally, in considering the maximum penalty prescribed by statute, the prosecutor submitted that the maximum penalty to be imposed on corporations under subsection 24(5) of the N.E.P.D.A. is $50,000.00. She pointed out that the maximum fine which could be imposed on individuals is $25,000.00, one-half of that amount. She stated that this factor should be given significant consideration, given the obvious intention of the Legislature to treat contraventions of the N.E.P.D.A. by corporations in a more severe fashion than similar conduct committed by individuals.
[44] In making her submission that a fine of $4,000.00 would be appropriate in the subject circumstances, the prosecutor placed some reliance upon the case of Regina v. Donald Gordon cited above, whereby the Court imposed a fine of $5,000.00 upon an individual for undertaking a structural addition to his house, located in an area of development control, without first obtaining a development permit.
[45] Ms. Agatiello submitted that the facts of this case were somewhat similar to the case at bar, noting that a substantial fine was levied even though the defendant was an individual. The prosecutor submitted that fines for corporate defendants in similar circumstances should be elevated so as to be consistent with the legislative policy that sentences for corporate defendants are distinct from that for individual defendants.
[46] In completing her submissions, Ms. Agatiello argues that the aggravating circumstance in the case at bar is that 819743 Ontario Inc. appeared to ignore the advice given to its directing mind, Timur Leckebusch, by representatives of the Niagara Escarpment Commission relative to the need for a development permit, before undertaking development on the property municipally known as 9328 15th Sideroad, in the Town of Halton Hills.
[47] In this regard, the prosecutor notes that in December 2009, officials from the Niagara Escarpment Commission attended the property of Timur Leckebusch used as an equestrian farm and horse show facility, to inspect an earthen berm which Mr. Leckebusch had built on his property without a development permit. At that point in time, the officials of the Commission advised Mr. Leckebusch that a development permit was required for this development. Accordingly, Mr. Leckebusch and 819743 Ontario Inc. retro-actively applied for a permit for the berm on February 12th, 2010. This permit was eventually issued, approving the development of the earthen berm.
[48] The prosecutor went on to note that even though the officials of the Niagara Escarpment Commission warned Timur Leckebusch of the need for a development permit relative to the earthen berm and even though 819743 Ontario Inc. jointly applied for this permit with Timur Leckebusch, the said corporate defendant undertook the armour stone wall development on the eastern one-half portion of the subject property (9328 15th Sideroad, in the Town of Halton Hills) between June 24th, 2010 and August 18th, 2010, without first applying for a development permit.
[49] The prosecutor submits that the defendant corporation’s actions in commencing construction of the wall without first obtaining a development permit, when its sole officer and director had been advised as to the need of a permit for the earthen berm and after the defendant corporation had joined in with Mr. Leckebusch in applying for a permit for the berm, was irresponsible and cavalier. Ms. Agatiello submits that the actions of Timur Leckebusch in directing the defendant corporation to undertake the subject development on its land in the face of the advice which he had been given by the Niagara Escarpment Commission relative to the berm, must be considered an aggravating factor justifying a higher level of fine against the defendant corporation.
[50] Ms. Agatiello argues that I may infer, from the totality of the evidence in this proceeding, that the defendant corporation did not even consult with officials of the Niagara escarpment Commission prior to commencing the construction of the armour stone wall, despite the advice given to Mr. Leckebusch by the Commission relative to the need for the development permit for the earthen berm. She maintains that the responsible and prudent step which should have been taken by the defendant corporation would have been to either apply for a development permit for the armour stone wall project prior to June 24th, 2010 or at least enter into discussions with Niagara Escarpment Commission officials about the need of a permit for the development of the armour stone wall. The prosecutor states that the defendant corporation’s actions in commencing construction of the armour stone wall without a permit, after its sole officer and director had been warned of the need for a development permit relative to the earthen berm, was an aggravating factor which should justify the imposition of a higher fine for the subject regulatory infraction, as a measure of specific deterrence.
[51] In his final submissions, defence counsel Mr. Arnold states that the objectives of sentencing for the subject regulatory offence would be met by the imposition of a relatively nominal fine. He argues that the appropriate fine for the subject infraction should be no more than $150.00.
[52] Mr. Arnold argues that the quantum of the fine need not be designed so as to specifically deter his client, 819743 Ontario Inc., from further similar conduct in the future, given the significant development permit history that both the corporate defendant and Timur Leckebusch (in both in his personal capacity and that as the sole officer and director of the corporate defendant) have had with the Niagara Escarpment Commission. In this regard, the counsel points to the evidence contained in Appendix “A” to the Agreed Statement of Facts, which sets out the development permit history relative to the property municipally known as 9328 15th Sideroad, Halton Hills, Ontario, since 1990. In that regard, the counsel points out that both the corporate defendant and Timur Leckebusch have been compliant with the development permit requirements relative to their respective one-half portions of the subject address. He notes that over the span of approximately nineteen years, between March 1, 1990 and April 16, 2009, sixteen applications for development permits have been submitted relative to development activity on the subject property.
[53] In this regard, the defendant’s counsel made the following statements in support of the argument that the development permit history for both Timur Leckebusch and 819743 Ontario Inc., be considered as a significant mitigating factor supporting the possible imposition of a low monetary penalty:
The Agreed Statement of Facts included a lengthy history of the various development permits that were applied for and obtained by Mr. Leckebusch and 819743 Ontario Inc. dating back to 1989, 16 development permits in total. In my submission this demonstrates that the company and Mr. Leckebusch have a long history of compliance and playing by the rules. I think that this is an appropriate mitigating factor.
[54] During his final submissions, Mr. Arnold disputed the proposition that a higher fine should be imposed simply because the defendant is a corporation. In this regard, he submitted that there are no circumstances in this case to suggest that the company would treat a fine as a cost of doing business. In this regard, the counsel went onto state as follows:
…This is a first offence. There is a history of compliance. This is not a company that needs to be directed to pay a significant fine higher than a personal level on the principle that corporate misconduct requires a higher fine. There’s no facts to support that in this case.
[55] Finally, the defendant’s counsel submits that the prosecution has failed to prove beyond a reasonable doubt, the purported aggravating factor that in the spring and summer of 2010 the defendant corporation did not take any steps to consult with officials of the Niagara Escarpment Commission, after Mr. Leckebusch had been advised that development permit was required relative to the construction of the earthen berm on the westerly portion of the subject property. The counsel submits that there is no evidence before me that consultation did not take place between the defendant corporation and the Niagara Escarpment Commission relative to the construction of the subject wall on the easterly portion of the property. Mr. Arnold argues that the purported aggravating factor has not been sufficiently established by the evidence, beyond a reasonable doubt, to permit me to apply that factor to justify the imposition of a markedly increased fine, as a method of deterring the corporate defendant from undertaking developments on the subject property in the future, without first obtaining a development permit.
ANALYSIS
[56] In passing sentence in this proceeding, I must remind myself to focus upon the actions of 819743 Ontario Inc. in undertaking a development to wit: the construction of an armour stone wall without a development permit, on the eastern one-half portion of the property municipally known as 9328 15th Sideroad, Halton Hills, Ontario.
[57] The N.E.P.D.A. is a public welfare statute. Its purpose as set out in the statute is “to provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a continuous natural environment, and to ensure only such development occurs as is compatible with that natural environment”. Accordingly, as stated in Regina v. Cotton Felts Limited, supra, deterrence, both specific and general are the paramount goals for sentencing, for violations of the regulatory standards set out in the N.E.P.D.A.
[58] The N.E.P.D.A. provides that if a corporation is convicted of an offence contrary to subsection 24(1) thereof, the maximum penalty that may be imposed on a first conviction, is a fine of not more than $50,000.00. The statute clearly makes a significant distinction between the maximum penalty prescribed for individual offenders of the subject section and that which could be imposed for corporate offenders. I must keep that distinction in mind when I pass sentence in this proceeding.
[59] In applying the factors identified in Cotton Felts Limited, relative to the determination of the amount of a monetary penalty to be assessed against a corporate offender for a contravention of a public welfare statute, to the subject case, I am of the view that 819743 Ontario Inc. may be fairly described as a small company. It would appear to be a holding company. While I do not have any evidence before me as to the size of the corporation in terms of its financial worth, I am able to take judicial notice of the fact that it is the registered owner of the eastern one-half of the property municipally known as 9328 15th Sideroad, upon which Halton Place Horse sand Country Limited operates an equestrian farm. I am able to reasonably infer, therefore, that the corporate defendant owns assets equivalent to at least 25% of the fair market value of the easterly one-half portion of the said parcel of real property (that being the minimum equity which a mortgagor must have in a parcel of land to secure a conventional mortgage on the property).
[60] While it is clear that the scope of the economic activity involved in the development of the subject armour stone wall is relatively insignificant, upon viewing the photograph of the project one might reasonably infer that the corporation invested a significant amount of its assets in the process of constructing the wall.
[61] The factor of the actual and potential harm to the public is the factor which has the most relevance to the issue of sentencing in this proceeding. In this case the defendant corporation directed the construction of a structure on its property without first obtaining a development permit. The breach of the regulatory regime deprived the environmental planners of the opportunity to ensure that the wall was built in a manner consistent with the provisions of the Niagara Escarpment Plan, and that it was compatible with the continuous natural environment of the Niagara Escarpment.
[62] While there is no evidence before me that the subject armour stone wall development specifically impacted the objective of maintaining “the Niagara Escarpment and land in its vicinity as a continuous natural environment” in a negative way, the impact of the unauthorized development must be considered in the context of the cumulative effect of other instances of unauthorized development on the Niagara Escarpment and its fragile ecology. In that respect the construction of the armour stone wall without proper approval contributes to the degradation of the natural environment sought to be preserved.
[63] It is because of the extent of the potential harm to the environment caused by the actions of land-owners who negligently, recklessly or possibly purposely undertake development on their property within the development control area, without first applying for a development permit, which causes me to be of the view that the principle of general deterrence is the paramount goal of sentencing for violations of subsection 24(1) of the N.E.P.D.A. An appropriate sentence must be crafted to enhance the effective enforcement of the N.E.P.D.A. with the view to preserving the pristine environment unique to the Niagara Escarpment, for the enjoyment of generations to come. The amount of the fine for violators of subsection 24(1) must therefore be more than a licence fee for illegal activity. In the case at bar, the fine must not only be substantial enough to serve as a constant reminder to the corporate defendant and its sole director that the only prudent course of action before engaging in any form of development on its property would be to apply for a development permit, but be equally substantial to deter other like-minded corporations or individuals from engaging in similar conduct by failing to respect the regulatory process relative to the enforcement of the Niagara Escarpment Plan.
[64] As stated above, I am of the view that general deterrence is the paramount principle of sentencing relative to convictions for violations of subsection 24(1) of the N.E.P.D.A. I nevertheless remain persuaded of the secondary importance of the objective of specific deterrence in the determination of a fit and just sentence in the context of regulatory offences.
[65] In the case at bar, the counsel for the defendant argues that the number of development permit applications made by both Timur Leckebusch and 819743 Ontario Inc. over the past nineteen years, relative to the subject property, is testimony to the fact that the corporate defendant has a track record of compliance with the regulatory scheme under the N.E.P.D.A., as administered by the Niagara Escarpment Commission. He maintains that this mitigating circumstance should allay any concerns that the Court may have that the defendant corporation will undertake any future development on the subject property, without first applying for a development permit. He submits that in light of this specific mitigating circumstance, any monetary penalty imposed need not be elevated to address any residual concern that the corporate defendant needs to be deterred from future breaches of the regulations pertaining to development on its property.
[66] On the other hand, the prosecutor argues that the defendant corporation appeared to be indifferent to the advice of the officials of the Niagara Escarpment Commission of December 10, 2009, requiring a development permit for the earthen berm located on the westerly portion of the subject property, when it proceeded to undertake the development of the armour stone wall between June 24th, 2010 and August 18th, 2010, without first applying for a development permit. The prosecutor submits that the defendant corporation should have been alert to the position of the Niagara Escarpment Commission that developments in the nature of walls or berms, constructed close to a horse riding ring, would not be exempt from the requirement of a development permit, as buildings, structures or facilities accessory to general agricultural development. The advice given to Mr. Leckebusch both in his capacity as the sole officer and director of 819743 Ontario Inc. and in his personal capacity on December 10, 2009, should have been a sufficient warning to the corporate defendant to obtain a development permit before undertaking the construction of the armour stone wall.
[67] The corporate defendant, nevertheless, proceeded with the development in the nature of the armour stone wall without a permit, in spite of the warning of December 10, 2009, relative to the need for a development permit for the earthen berm on the abutting property. The prosecutor argues that the actions of the corporate defendant in this regard is an aggravating factor which outweighs the mitigating effect of the defendant’s nineteen-year period of compliance with the development permit provisions of the N.E.P.D.A. Ms. Agatiello argues that the aggravating circumstance of ignoring the warning signs and proceeding with the construction of the armour stone wall without a permit reinstates the need for the imposition of a fine significant enough to have a specific deterrent effect on the corporate defendant.
[68] In balancing these various mitigating and aggravating circumstances, I am of the view that the mitigating circumstance of the defendant corporation’s nineteen-year period of compliance with the statutory and regulatory requirements respecting development permits outweighs the said aggravating circumstance to a moderate degree. I believe that the corporate defendant has learned a lesson that it should not attempt to interpret the regulations under the N.E.P.D.A. on its own, without the appropriate input from the Niagara Escarpment Commission. On the other hand, the quantum of the fine should be significant enough to dissuade the corporate defendant from ignoring advice from the Niagara Escarpment Commission, relative to the interpretation of the N.E.P.D.A. and its regulations.
[69] In conclusion, between the period of June 24th, 2010 and August 18th, 2010, the defendant corporation appeared to be indifferent to the communications which it had with officials of the Niagara Escarpment Commission relative to the necessity of obtaining a development permit for the earthen berm. The defendant ignored these communications in boldly and negligently undertaking the construction of the armour stone wall without a development permit.
[70] In determining the proper quantum of the fine in this proceeding, I must ensure that the quantum of the penalty sends a message to other land owners within the Niagara Escarpment development area that they must be diligent in reminding themselves of the regulatory requirements pertaining to the protection of the Niagara Escarpment as a natural environment, and that they must not take unorthodox steps to avoid compliance with the development permit regulations, based upon their own subjective interpretation of the statute and regulations.
[71] According to the summaries of the three recent cases under the N.E.P.D.A., filed as exhibit nos. 1, 2 and 3 to the sentencing hearing, it would appear that the range of sentencing for convictions under subsection 24(1) of the N.E.P.D.A against individuals, is between $3,000.00 and $5,000.00. I am of the view that a penalty in the said range would be appropriate for first offenders under the Act. The range is not so high as to be crushing on the land owner, yet not so low as to constitute a licence fee for those who might wish to avoid using their property in a manner consistent with the maintenance of the escarpment as a continuous natural environment.
[72] The development itself was in the nature of a wall made of boulders, which appeared to be constructed for aesthetic purposes only. In that regard the development has already had the effect of interrupting the continuous natural environment found in the Escarpment Rural Area and Escarpment Natural Area under the Niagara Escarpment Plan. The mitigating effect of the corporate defendant’s history of compliance with the development permit regime under the N.E.P.D.A. leads me to conclude that a fine no higher than $3,000.00 would be necessary to deter the defendant from further contraventions of subsection 24(1) of the Act.
[73] Similarly, I am of the view that a fine of $3,000.00 would be substantial enough to act as a general deterrent for other corporate land-owners in the Niagara Escarpment area of development control, to be diligent and cautious when considering undertaking a new development on the property, so as to enhance enforcement of the development permit regime under the N.E.P.D.A. That level of fine meets the principles of both proportionality and parity, the statutory parameters of sentencing contained in subsection 24(5) of the N.E.P.D.A., as well as those principles specifically relevant to public welfare offences as set out on Regina v. Cotton Felts Limited, supra.
THE DECISION
[74] The defendant 819743 Ontario Inc. is hereby sentenced to a fine of $3,000.00, plus $5.00 costs, plus victim-fine surcharge, relative to its conviction of May 15th, 2012, on a charge that it between the 1st day of January, 2009 and the 18th day of August, 2010, at 9328 15th Sideroad, Town of Halton Hills, Regional Municipality of Halton, did unlawfully, in an area of Development Control, undertake a development to wit: the construction of an armour stone wall, without a permit, contrary to subsection 24(1) of the N.E.P.D.A.
Released: March 12th, 2013
Signed: “Justice of the Peace Kenneth W. Dechert”