Ontario Court of Justice

Date: 2015-08-28

In the Matter of: An appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

THE REGIONAL MUNICIPALITY OF YORK Appellant

— AND —

SAMIRBHAI DAVE Respondent

Provincial Offences Act Appeal

Before: Justice Joseph F. Kenkel

Heard on: August 28, 2015

Reasons for Judgment released on: August 28, 2015

Counsel:

• Mr. Hans Saamen, counsel for the Appellant
• Mr. Samirbhai Dave, not represented and did not appear to respond to appeal

KENKEL J.:

Introduction

[1] Mr. Dave pled guilty to failing to stop at a red light contrary to s. 144(18.1) of the Highway Traffic Act. The court waived the statutory minimum $200 fine and imposed a reduced $100 fine.

[2] The appellant submits that the learned Justice of the Peace committed the following errors in reducing the fine:

• Declaring she would never impose the statutory minimum fine
• Ruling on an issue before the prosecution was given the opportunity to make submissions
• Refusing to permit the prosecution to refer to caselaw in submissions
• Applying the wrong test for relief from a minimum fine under s. 59(2) of the Provincial Offences Act
• Imposing a reduced fine where there was no evidence of exceptional circumstances or undue hardship

[3] For the reasons that follow I find that the Justice of the Peace erred in not imposing the minimum fine in this case.

Statutory Minimum Penalties

[4] When the prosecution asked for the minimum penalty of $200, the Justice of the Peace said to the prosecutor, "I should advise you. I will never impose that amount, honestly and truly, so just – you are warned."

[5] This warning by the court came before anything was heard about the personal circumstances of the respondent. The court put the prosecution on notice that she would never impose the statutory minimum fine. This position is a serious error which does not reflect the proper role of a justice in sentencing proceedings.

[6] A minimum sentence is an expression of governmental policy. A justice's sentencing discretion does not entitle her to disregard a clear statement of legislative intent. R. v. Nasogaluak, [2010] SCJ at para. 45. In this case the Justice of the Peace was required to impose the minimum sentence provided by statute unless the respondent showed exceptional circumstances that justified relief under s. 59(2) of the Provincial Offences Act, RSO 1990, c. P-33.

Bias

[7] The warning to the prosecution by the court reasonably gives rise to an apprehension of bias.

[8] Later when the prosecution attempted to cite a case relevant to the sentencing discussion, the court said, "You're not going to take advantage of somebody who is here without counsel". The court's comments were unfair in context. Nothing in the record suggests that the prosecutor was attempting to gain an advantage by citing a case or principle from a case. Indeed they have a responsibility to do so. If the defendant needs to see a copy of the case or time to consider the prosecutor's position that can be accommodated by the presiding justice.

[9] The court's comments in relation to the prosecution submissions unfortunately added to a reasonable apprehension of bias. Had the court considered the case referred to by the prosecution, (R. v. Benatar, [2014] OJ No. 3697 (CJ) which provides instruction as to the court's role in relation to statutory minimum sentences) the justice may well have avoided the errors in this case.

s. 59(2) POA – Relief From Minimum Fine

[10] Section 59(2) permits a justice to impose a fine that is less than the minimum or suspend sentence where:

• Exceptional circumstances exist so that to impose the fine would be unduly oppressive, or
• Where the minimum fine would be otherwise not in the interests of justice

[11] It's not improper for a justice to make inquiries of an unrepresented person to ensure that the circumstances in s. 59(2) do not apply in relation to a minimum fine. It's a different thing to announce an intention not to comply with the statute then conduct an inquiry "so that would allow me to reduce the fine".

[12] Despite the errors discussed above, if the respondent's circumstances were exceptional or the minimum fine would otherwise not be in the interests of justice the sentence appeal would fail. In this case the respondent had numerous expenses with two children in medical school and paying for one of them to study in the United States. Although the family had taken on debt to make those investments, the respondent stated that he was employed, that he had a good job and that his wife was also employed. The prosecution was correct that there was no evidence of undue financial hardship in relation to a $200 fine. I note that when the respondent was asked how much time he needed to pay the reduced $100 fine he said, "I'll pay that today".

Conclusion

[13] The sentence appeal is allowed and the sentence is varied to the statutory minimum $200 plus costs.

Released: 28 August 2015

Justice Joseph F. Kenkel