Court File and Parties
File Numbers: 13-7558, 13-7559
Ontario Court of Justice
Steven Beaulieu and Oak Ridge Horticulture Appellant
and
Town of Milton Respondent
Reasons for Judgment
Before the Honourable Justice D.A. Harris
On September 9, 2015, at Milton, Ontario
Appearances
T. Arnold – Counsel for the Appellant
J. Watson – Counsel for the Respondent
Judgment
HARRIS, J. (Orally)
Steven Matthew Beaulieu and Oakridge Horticultural Farm and Nursery Limited both pled guilty to the following:
Charges
1. Between June 26, 2013, and July 24, 2013, in the Town of Milton, did commit the offence of contravene a bylaw passed under Section 34 of the Planning Act by using land in rural A-1 zone for a use not permitted, to wit; operating retail sales, contrary to Section 10(1) of the Town of Milton zoning bylaw number 144-2003 as amended, and thereby did commit an offence contrary to Section 67(1) of the Planning Act.
2. Between June 26 and July 24, 2013, did contravene a bylaw passed under Section 34 of the Planning Act by using land in a rural A-1 zone for a use not permitted, to wit; outdoor storage of landscaping materials to include decorative walks, decorative wood, gravel, mulch, and soil, contrary to Section 10(1) of the Town of Milton zoning bylaw number 144-2003 as amended, and thereby did commit an offence contrary to Section 67(1) of the Planning Act.
3. Between April 28, 2008 and February 5, 2009, did contravene a bylaw passed under Section 34 of the Planning Act by using land in a rural A-1 zone for use not permitted, to wit; the parking of oversized motor vehicles, contrary to Section 5.11(1) of the Town of Milton zoning bylaw number 144-2003 as amended, and did thereby commit an offence, contrary to Section 67(1) of the Planning Act.
Sentencing
The presiding Justice of the Peace, ultimately, sentenced each of the defendants to fines of $12,500 for each of counts 1 and 2, and to fines of $1,500 for count 3.
Both appellants have appealed those sentences.
Grounds of Appeal
The grounds of appeal are that:
Comments made by the presiding Justice of the Peace raised a reasonable, if not real, apprehension of bias; and
The total fines imposed were excessive and or unreasonable in the circumstances.
I disagree with both submissions.
Analysis
Issue 1: Reasonable Apprehension of Bias
With respect to the issue of a reasonable apprehension of bias, counsel for the appellant relies on the following comments made by the presiding Justice of the Peace in his reasons for sentence:
What's the sense of having elected officials running a municipality and allowing people to do what they want to do without regard for the rules, without regard for the official plans. And some people hold the OMB in high esteem some people don't. Imagine what side I'm on. The best decisions for a community are made in the community.
I note that counsel also relies on the context of the presiding Justice of the Peace having been a former member of Burlington City Council, a fact well known to virtually everyone here in Halton. One might make the argument that these comments, taken alone and out of context, might raise a reasonable apprehension of bias. I was certainly not pleased to see them in the reasons for sentence, however, I am not satisfied that they raise a reasonable apprehension of bias when viewed in context, that is, in light of all that was said in this case.
Prior to the pleas being entered counsel for the appellants stated to the court:
We've agreed to set penalty submissions before Your Honour on an available date, July 17th. The purpose for delaying that is that there is an Ontario Municipal Board hearing regarding this matter scheduled for late March and I had requested time for that decision to be rendered.
The presiding Justice of the Peace responded saying:
And having spent time on municipal councils, the OMB is a slam dunk, isn't it? All right.
Counsel knew at that time that he would be arguing that the appeal to the Ontario Municipal Board was relevant to determining the appropriate sentences in this case and that, in fact, he would be arguing that the application was, in fact, a mitigating factor to be considered by the court. Yet, he did not object to that disparaging comment about the Ontario Municipal Board nor did he take up the suggestion made later by the presiding Justice of the Peace that sentencing could take place in front of another Justice of the Peace.
I note also that on that same date the Justice of the Peace questioned the logic of making it illegal to store a dump truck on agricultural property while allowing other oversized vehicles, like a combine, to be stored there. That analysis would, of course, have worked to the appellants' advantage. My point here is that while the presiding Justice of the Peace might make comments that he better ought not make they do not necessarily raise a reasonable apprehension of bias.
My final reason for rejecting the apprehension of bias argument is that the sentences imposed here were, in fact, reasonable ones.
Issue 2: Fitness of Sentence
I will first address the law relating to sentence appeals and to the sentencing principals that should be applied with respect to regulatory offences.
Section 122(1) of the Provincial Offences Act, sets out an appellate court's jurisdiction on an appeal from sentence. Essentially, I am called upon to consider the fitness of the sentence appealed from and to either dismiss the appeal or vary the sentence within the limits prescribed by law. The sentence imposed by the Justice of the Peace, however, must be treated with deference on review unless he made an error in principal or the sentence was manifestly unfit.
The Supreme Court of Canada has set out strict parameters for review of sentences imposed by trial courts. In Regina v. Shropshire (1995), 102 C.C.C., (3d)193, (S.C.C.); at pages 209 to 210 the Supreme Court of Canada stated that:
An appellate court should not be given free rein to modify a sentencing order simply because it feels that a different order ought to have been made. A variation in the sentence should only be made if the appeal court is convinced that it is not fit, that is to say, that it has found the sentence to be clearly unreasonable.
The Court of Appeal for Ontario recognized five principal factors for sentencing a defendant who has violated a regulatory offence in Ontario in the decision of R. v. Cottonfelts Ltd., [1982], O.J. No. 178. At paragraph 19, the Court of Appeal set out that the primary factor is general deterrence. The other factors are 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.
Common sense tells me that prior convictions are also a factor.
As I stated above, the Court of Appeal identified deterrence as the paramount factor to be considered when sentencing a defendant and concluded that, 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 license fee for illegal activity.
This principal is doubly important when one is dealing with a defendant in cases where previous fines have failed to deter that defendant.
I note that the presiding Justice of the Peace did not refer to Regina v. Cottenfelts specifically in his reasons. He did, however, articulate reasons that took into account the principals enunciated by the Court of Appeal saying:
There have been two previous convictions. The business has continued to operate in spite of those convictions. There has to be a very strong message sent to the business community that you play by the rules or you're going to get hammered. I think the judicial system has bent over backwards by virtue of the miniscule fines in the previous two convictions that was less than the cost of license to do business in both cases. Unless this court sends forward a message that gets repeated, gets put out among the business community that you follow the rules in Halton region. If you don't follow the rules you'll suffer consequences that are going to be severe.
He went on to state:
We do want business in Halton but we want businesses that operate legally and properly.
Counsel argues that a fine ten times greater than that imposed on the previous occasion was excessive and unreasonable. The presiding Justice of the Peace clearly understood that there was such a jump in sentences but he viewed the previous ones as being the aberrant sentences. I find that he was justified in reaching that conclusion.
Similarly, I agree with his finding that the appellants having applied for a variance of the bylaw and then appealing the rejection of that application to the Ontario Municipal Board did not constitute a mitigating factor here. To treat this as a mitigating factor would send a message that businesses can ignore local bylaws with impunity as long they go through the process of applying for a variance and eventually obtaining a ruling that permits them to use the property, albeit to a lesser degree than they had been using it here.
In closing, I go back to the Court of Appeal decision in Regina v. Cottenfelts which stated that deterrence, both general and specific, is the primary principal of sentencing in these regulatory cases. In other words, the sentence should send a message both to the specific defendants and to others in the community that such behaviour will not be tolerated.
In this case, the presiding Justice of the Peace was clearly trying to make it obvious that repeated breaches of the law, in particular, are not acceptable and will be punished severely. This fact is underscored by the fact that he imposed much lower fines with respect to count 3 where there were no such prior convictions.
The total sentences imposed by the presiding Justice of the Peace were, to my mind certainly, at the high end of the range. They may even have been higher than I might have imposed myself having regard to the position taken by counsel for the Town of Milton at the sentencing hearing. They were, however, within the range of what I consider to be reasonable in all of the circumstances.
Decision
Accordingly, the appeals are dismissed. I wish to thank both counsel for their materials and their submissions.
MR. ARNOLD: Thank you, Your Honour.
MR. WATSON: Thank you, Your Honour.
...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED.
Certificate of Transcript
FORM 2
I, EVA ANDERSON, certify that this document is a true and accurate transcription of the recording of BEAULIEU v. TOWN OF MILTON in the Ontario Court of Justice held at 491 Steeles Avenue East, Milton, Ontario taken from Recording No. 1211-16-20150909-091612-6-HARRISDAV.dcr which has been certified in Form 1.
January 6, 2016
Transcript Ordered: September 9, 2015
Transcript Completed: January 6, 2016
Ordering Party Notified: January 6, 2016