Court File and Parties

Court File No.: 12-12229

Ontario Court of Justice

Between:

The Corporation of the City of Stratford (Respondent) P. Hertz

— And —

Gail Schneider (Appellant) B. Kelly

Heard: September 4, 2014

On appeal from the sentence imposed by Justice of the Peace M. Cuthbertson on April 7, 2014.

Decision

McKerlie J.:

Introduction

[1] This is an appeal by Gail Schneider from the sentence imposed by Justice of the Peace Cuthbertson on April 7, 2014, following her conviction of the August 16, 2012 offence of failing to comply with an order under section 15.2(2) of the Building Code Act, 1992, S.O. 1992, c.23, thereby committing an offence under section 36(1)(b) of the Building Code Act.

[2] Ms. Schneider pled guilty to the offence on September 20, 2013. The facts supporting the guilty plea indicated that on June 28, 2012, a Property Standards Order was issued to Gail Schneider respecting her property known municipally as 111 Milton Street, Stratford, which is a detached single family residence. The deadline for compliance set out in the order was August 15, 2012. No appeal was received and the order was deemed confirmed. Ms. Schneider did not comply with the Order.

Property Standards Order Contraventions

[3] The contraventions listed in the Property Standards Order are as follows:

• Portions of rear foundation in disrepair;
• Chimney on west side of roof in disrepair;
• Soffit and fascia throughout dwelling in disrepair;
• Exterior cladding throughout dwelling is either missing or in disrepair;
• No exterior cladding on front and rear additions and side porch;
• Entire roof of dwelling in disrepair;
• Rear porch in disrepair and missing landing and guards;
• Side porch in disrepair and missing guards and stairs;
• Front porch addition in need of floor and appropriate guards;
• Long grass and weeds in front and rear yards;
• Rubbish being stored in side and rear yards;
• Electrical installation throughout dwelling in disrepair.

[4] The general state of disrepair is clearly evident from the photographic exhibits filed at the sentencing hearing.

Statutory Framework

[5] Section 36(3) of the Building Code Act provides that a person who is convicted of an offence is liable to a fine of not more than $50,000.00 for a first offence and to a fine of not more than $100,000.00 for a subsequent offence. The penalties for corporations are double those amounts.

[6] Under section 36(7), the Court may also make an order prohibiting the continuation or repetition of the offence by the person convicted.

Sentencing Submissions

[7] Counsel made sentencing submissions on April 7, 2014. The Municipal Prosecutor sought a fine in the range of $2,000.00 to $4,000.00 together with a six month probation order requiring that Ms. Schneider not commit the same or any related or similar offence. Defence counsel agreed that the six month probation order sought by the prosecutor was appropriate. He submitted that the sentence should be suspended and that a fine was not appropriate in the circumstances.

[8] The learned Justice of the Peace gave oral reasons for sentence on April 7, 2014. He imposed a six month probation order and a fine of $2,000.00.

Grounds for Appeal

[9] The Notice of Appeal sets out the following grounds for appeal:

1. The Justice of the Peace erred in not permitting the viva voce evidence of the Appellant's husband, Andrew Benko, to be called at the sentencing hearing;

2. The Justice of the Peace erred in making the following findings:

   • (a) the Appellant wished to "cut a deal" with the contractors;
   • (b) the reason for the Appellant's delay [in compliance] was that she wished to save money;
   • (c) the Appellant made the requisite repairs as a result of sentence "looming"; and
   • (d) by rejecting that the Appellant was a victim of the machinations of others.

[10] The Appellant seeks an order that she be permitted to call the evidence of her husband, Andrew Benko, in respect of sentencing and that the sentence be varied following the hearing of that evidence.

Standard of Review

[11] Section 122 of the Provincial Offences Act, R.S.O. 1990, c.P.33 provides that:

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 for which the defendant was convicted.

[12] In R. v. Turcotte, [2000] O.J. No. 1316, the Ontario Court of Appeal succinctly summarized "The Limitations on Appellate Courts on Sentence Appeals" as follows:

The limitations on an appellate court in considering an appeal against sentence have been stated and recently restated by the Supreme Court of Canada. The sentencing judge's disposition must be "not fit" or "clearly unreasonable": R. v. Shropshire, [1995] 4 S.C.R. 227, at para 46. It must fall "outside the acceptable range": Shropshire, at para 50. In the absence of "an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit": R. v. M (C.A.), [1996] 1 S.C.R. 500, at para. 90. The sentence must be "in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes": M. (C.A.), at para. 92. The sentence imposed at trial "is entitled to considerable deference from appellate courts": R. v. Proulx, 2000 SCC 5, 140 C.C.C. (3d) 449, at para. 123. "Although an appellate court might entertain a different opinion as to what objectives 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": Proulx, at para. 125.

Analysis

[13] I thank counsel for their well-prepared facta and books of authority and their detailed oral submissions.

Issue of Viva Voce Evidence

[14] First, I will address the issue of defence counsel's request to call the Appellant's husband, Andrew Benko, to give viva voce evidence at the sentencing hearing.

[15] Defence counsel commenced his sentencing submissions by indicating that he would like to call Andrew Benko as a witness to give evidence respecting the background of the efforts to comply. He explained that it was Mr. Benko who primarily dealt with the contractors and city officials.

[16] The Municipal Prosecutor indicated that traditionally such information would be presented by counsel in submissions and there was no necessity for viva voce testimony unless objection was taken to the facts so presented.

[17] The learned Justice of the Peace then stated:

Let's do it this way. Why don't you make your submissions. If either myself or the prosecution require additional information then we'll potentially put your witness on the stand.

[18] During defence counsel's submissions, there was no objection to any of the factual background respecting the efforts to comply and the reasons for the various delays in compliance, which were thoroughly summarized by defence counsel. There were no limitations placed on defence counsel's submissions. The issue of Mr. Benko being called as a witness was not revisited.

[19] Following his submissions, defence counsel did not make any further request to confer with his client or her husband, nor did he make any further request to call Mr. Benko as a witness on the sentencing hearing.

[20] In these circumstances, the learned Justice of the Peace did not deny the request to call Mr. Benko as a witness, but rather suggested another option for providing the information in question. He left open the potential for Mr. Benko to be called as a witness. There was no error in that regard.

[21] When the appeal was scheduled, I invited defence counsel to submit an affidavit from Mr. Benko setting out the evidence he would have given if he had been called as a witness on the sentencing hearing. The affidavit of Mr. Benko was filed as an exhibit on this appeal.

[22] Defence counsel acknowledged that the only topic in the affidavit not addressed in the sentencing submissions was the effect of Lyme disease on Mr. Benko and its impact on his ability to comply with the Property Standards Order.

[23] In his affidavit, Mr. Benko outlined the plan to sell the home to a renovator because Mr. Benko's wood working business "picked up dramatically" and he was "in poor health due to contracting Lyme disease". Ultimately the renovator failed to take on the project and the agreement was terminated in August 2012.

[24] Mr. Benko further stated that as of September 2012:

My Lyme disease coupled with a sustained increase in work load as a self-employed fine wood worker continued to leave me with no time nor stamina to personally renovate 111 Milton Street.

[25] Mr. Benko outlined the further plan to have a neighbour renovate and then purchase the home. He stated that by December 2013, the prospective purchaser had still not complied with the outstanding Property Standards Order and had abandoned the project. Mr. Benko then stated:

Notwithstanding the brutal winter of 2013-2014 and debilitating residual effects of Lyme disease, I personally undertook to finish the outstanding work myself. I completed the porch. I did the front window. I completed the siding on the front porch. I blocked the front door and covered the west wall and south wall with siding fixed to the roof. The pictures filed as exhibits on sentencing demonstrate the dramatic change in the exterior of the home at that time.

[26] Having assessed the content of defence counsel's detailed sentencing submissions and Mr. Benko's affidavit filed on this appeal, I am satisfied that the result on the sentencing hearing would have been no different had Mr. Benko provided the proposed viva voce evidence at the sentencing hearing.

[27] The additional information respecting Lyme disease would not have had an impact on the need for a probation order or a deterrent fine. The affidavit makes it clear that Ms. Schneider and Mr. Benko made a series of choices as to the manner in which they prioritized or rather failed to prioritize the work required to comply with the June 28, 2012 Property Standards Order.

[28] In his affidavit, Mr. Benko indicated that he started work on the Milton Street property when he did not have much work at his wood working shop. When work at his shop picked up, he "stopped construction leaving everything unfinished". He referred to his "dramatically increasing work load" as a reason he could no longer work on the Milton Street property. These were choices made by Ms. Schneider and Mr. Benko. They do not justify or excuse non-compliance with the Property Standards Order.

[29] If Mr. Benko had provided his proposed evidence at the sentencing hearing, it would have further underscored the need for specific as well as general deterrence. The proposed evidence was less compelling than the actual sentencing submissions made by defence counsel.

[30] Notwithstanding my finding that the learned Justice of the Peace did not deny the defence request to call Mr. Benko as a witness, counsel have urged me to specifically address the issue of viva voce evidence in order to provide future guidance in this area.

[31] The Municipal Prosecutor takes the position that there is no statutory right to call viva voce evidence on a sentencing hearing conducted under the Provincial Offences Act (the "POA") and no provision in the Act requiring the Court to receive such evidence. The Appellant takes the position that there is nothing to restrict the calling of viva voce evidence on a sentencing hearing under the POA.

[32] It is not necessary or appropriate to address those issues within the scope of this appeal. In reaching that conclusion, I am guided by the clear direction recently given by the Ontario Court of Appeal in R. v. Ul-Rashid, 2014 ONCA 896. In concluding that it was unnecessary to consider certain issues respecting disclosure and unrepresented litigants in POA trials, the Court held:

[9] … Having regard to the factors enumerated in Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342, we do not believe that it is appropriate to deal with these moot issues. We are not satisfied that, having regard to our adjudicative role and the lack of a lis, we should offer any guidance on these issues or, that if we did, it would have any jurisprudential value.

Disputed Findings

[33] I next turn to the findings disputed by the Appellant. The findings in question are well supported by the factual background provided by defence counsel during his detailed sentencing submissions. I note that the findings in question are also consistent with the information contained in the Affidavit of Mr. Benko.

[34] It was not in dispute that by the date of sentencing, a substantial amount of work had been performed to address the significant state of disrepair outlined in the Property Standards Order. However, it was clear from the submissions of both counsel that as of the sentencing hearing on April 7, 2014, the Appellant had still not fully complied with the Property Standards Order issued on June 28, 2012.

Fitness of Sentence

[35] This is not a case where a suspended sentence would be a fit or proportionate sentence. A deterrent fine is required together with a period of probation.

[36] As held by the Ontario Court of Appeal in R. v. Cotton Felts Ltd., [1982] O.J. No. 178:

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.

[37] The maximum fine for this offence is $50,000.00. The $2,000.00 fine imposed strikes the appropriate balance between the need for both specific and general deterrence and the mitigating factors emphasized by defence counsel, including the Appellant's status as a first time offender, who is a productive member of the community. I find that the learned Justice of the Peace did not over-emphasize deterrence as a sentencing principle and did not disregard the relevant mitigating factors.

[38] In his reasons for sentence, the learned Justice of the Peace appropriately addressed the circumstances of the offence, the circumstances of the offender, the relevant mitigating and aggravating factors and relevant jurisprudence. He imposed a sentence well within the acceptable range of sentence for this offence committed in these circumstances.

[39] The $2,000.00 fine takes into account the modest nature of the property in question and the significant state of disrepair, which is clearly evident from the photographic exhibits filed.

Conclusion

[40] In conclusion, I find that the learned Justice of the Peace imposed a sentence that was fit and proportionate in all the circumstances. Accordingly, the appeal from sentence is dismissed.

Released: February 20, 2015

Signed: "Justice K. L. McKerlie"