Court File and Parties

Ontario Court of Justice

Date: 2019-06-06

Court File No.: Regional Municipality of Durham 17 0827

Between:

The Corporation of the City of Oshawa

— And —

Canying Ye

Before: Justice of the Peace M. Coopersmith

Heard on: February 21, 2019 and March 25, 2019

Reasons for Sentencing released on: June 6, 2019

Counsel:

Rhonda Vanderlinde — agent for the prosecution

Jenny X. Chai — agent for the defendant Canying Ye

JUSTICE OF THE PEACE COOPERSMITH:

[1]

On February 21, 2019, I found Canying Ye guilty of having committed twenty-two (22) offences contrary to O. Reg. 213/07: Fire Code ["OFC"], under the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4, as amended ["FPPA"]. The offences occurred on January 26, 2017 at 222 Athol Street East in the City of Oshawa. I heard the prosecution's submissions on sentencing and then adjourned these matters to March 25, 2019. On that date, I heard the defence's sentencing submissions, a reply from the prosecution and further submissions from the defence.

[2]

For the reasons that follow, I am sentencing Ms. Ye to twenty-one (21) days of incarceration and fines totalling $34,000.

I. SENTENCING SOUGHT BY THE PARTIES

[3]

The prosecutor is requesting a period of incarceration of between two weeks and a month, in addition to financial penalties totalling $65,000.

[4]

The defence agent is seeking a suspended sentence on five counts and lesser financial penalties on each of the other charges, for a total of $8,500. The defence agent submits that incarceration should not be imposed.

[5]

The chart below identifies each offence and the fines each party is seeking:

Count	Description of Offence	Location of Offence	OFC Section	$ Penalty sought by Prosecution	$ Penalty sought by Defence
1	Create hazard not allowed for in the original design of a building	Art.2.1.2.2, Div. B, Part 2		$10,000	Suspended sentence
2	Fail to maintain in operating condition 2 interconnected smoke alarms	Main floor, Unit #1, main hallway	Art.6.3.2.6(2), Div. B, Part 6	$3,000	$500
3	Fail to maintain in operating condition an interconnected smoke alarm	Main floor, Unit #1 in the kitchen, outside the sleeping area	Art. 6.3.2.6(2), Div. B, Part 6	$3,000	$500
5	Fail to maintain in operating condition an interconnected smoke alarm	2nd floor, Unit #2, bedroom #1, inside the sleeping area	Art. 6.3.2.6(2), Div. B, Part 6	$3,000	$500
6	Fail to maintain in operating condition an interconnected smoke alarm	2nd floor, Unit #2, bedroom #2, inside the sleeping area	Art. 6.3.2.6(2), Div. B, Part 6	$1,000	$500
7	Fail to maintain in operating condition an interconnected smoke alarm	2nd floor, Unit #2, main hallway	Art. 6.3.2.6(2), Div. B, Part 6	$1,000	$500
8	Fail to maintain a smoke alarm in operating condition	Main floor, Unit #1, bedroom #1	Art. 6.3.3.3(1), Div. B, Part 6	$3,000	$500
9	Fail to maintain a smoke alarm in operating condition	Basement of Unit #1	Art. 6.3.3.3(1), Div. B, Part 6	$1,000	Suspended sentence
10	Fail to maintain a smoke alarm in operating condition	On the 3rd floor	Art. 6.3.3.3(1), Div. B, Part 6	$1,000	$500
11	Fail to maintain a smoke alarm in operating condition	Main floor, Unit #1, bedroom #3	Art. 6.3.3.3(1), Div. B, Part 6	$1,000	$500
17	Fail to maintain fire separations	Under side landing /stairs abutting the common hallway in the basement	Art. 2.2.2.1, Div. B, Part 2	$10,000	Suspended sentence
18	Fail to maintain fire separations	Wall of main floor, Unit #1, bedroom #1	Art. 2.2.2.1, Div. B, Part 2	$2,000	$500
19	Fail to maintain fire separations	Main floor, Unit #1, bedroom #3	Art. 2.2.2.1, Div. B, Part 2	$2,000	$500
20	Fail to maintain fire separations	Main floor, Unit #1	Art. 2.2.2.1, Div. B, Part 2	$2,000	$500
21	Fail to maintain fire separations	Common hallway that abuts staircase of attic	Art. 2.2.2.1, Div. B, Part 2	$4,000	$500
23	Fail to maintain fire separations	Wall of 2nd floor bedroom, Unit #2 which abuts Unit #3 kitchen	Art. 2.2.2.1, Div. B, Part 2	$2,000	Suspended sentence
24	Fail to maintain fire separations	Ceiling of 2nd floor bedroom, Unit #2 which abuts Unit #3 attic	Art. 2.2.2.1, Div. B, Part 2	$2,000	$500
25	Fail to maintain operation of closure	2nd floor, common hallway	Art. 2.2.3.3, Div. B, Part 2	$10,000	$500
26	Fail to maintain the closure	2nd floor, common hallway	Art. 2.2.3.1, Div. B, Part 2	$1,000	$500
27	Fail to maintain the closure	2nd floor, Unit #2	Art. 2.2.3.1, Div. B, Part 2	$1,000	$500
28	Fail to maintain the closure	2nd floor, Unit #3	Art. 2.2.3.1, Div. B, Part 2	$1,000	$500
29	Fail to maintain the closure to ensure that it is operable	2nd floor, common hallway	Art. 2.2.3.2(1), Div. B, Part 2	$1,000	Suspended Sentence

II. SUBMISSIONS ON SENTENCING

(a) Prosecution Submissions

[6]

The prosecutor submits that the defendant owned multiple properties in Oshawa. To date, they have been sold or are up for sale. There is a history of the defendant illegally using her properties as multi-unit rental properties, in contravention of provincial and municipal laws.

[7]

On November 17, 2016, Ms. Ye was convicted of using 222 Athol Street East in Oshawa for a use not permitted by Oshawa's zoning by-laws and a Prohibition Order was put in place, prohibiting Ms. Ye from continuing or repeating the same behaviour of having three units in a two-unit building. Notwithstanding that Order, on January 26, 2017, Ms. Ye continued to use this property in a manner not allowed for in the original design of the building, contrary to a provision of the OFC [see Count 1].

[8]

Furthermore, Ms. Ye has a long history of violations against the OFC made under the FPPA, the Ontario Building Code, the Ontario Planning Act, Oshawa Licensing By-law and Oshawa Zoning By-law. [See prior convictions below.] Ms. Ye has a blatant disregard for the law, which puts residents at risk. She rents out units not in compliance with the law and exhibits an unwillingness and lack of co-operation to bring her properties into compliance with the law. In spite of having collected rents from the tenants in her buildings, Ms. Ye is most reluctant to expeditiously pay the fines previously imposed.

[9]

The prosecution is seeking a period of incarceration of between two weeks and a month and monetary penalties totalling $65,000.

(b) Defence Submissions

[10]

Ms. Chai explained the history and background of Ms. Ye's prior convictions, providing reasons and excuses for these findings. She submitted that her client was not provided with the opportunity to rectify situations prior to charges being laid. Furthermore, when renting to tenants, one does not know when they will punch a hole in the wall, run a cable through a wall or wedge a door open.

[11]

Ms. Ye bought the properties in Oshawa with money borrowed from her parents' life savings, so that she could have a better life. She emigrated from China to Canada with a Masters in Computer Engineering. She earns about $2,000 a month as an office administrator and had relied on the rental income from her properties to make a living. Ms. Ye did not intend to commit these offences.

[12]

In 2015, her father was diagnosed with lung cancer and, as an only child, Ms. Ye had to return to China to look after him. Consequently, she missed a deadline to renew a licence. Moreover, she had to sell her property at 1863 Dalhousie Crescent to pay for her father's treatment. After her father passed away in 2015, Ms. Ye brought her mother to Canada to take care of her.

[13]

Ms. Ye's husband is disabled and unable to work. Her three children are ages 18 years, 12 years and 4 years and the sale of a property goes to pay tuition and towards the upkeep of her family. There is no benefit to add more monetary penalties, as this will only harm Ms. Ye's family and children who rely on her. Ms. Chai submits that the only benefit to fines is to make more money for the City of Oshawa. Ms. Ye looks like a repeat offender, but that is not what she is. She has sold the property at 222 Athol Street East and, therefore, she will not re-offend.

[14]

The defence is requesting that incarceration not be imposed and that lower monetary penalties, totalling $8,500, be levied. Furthermore, there should be a suspended sentence for count 1, as the City did not allow Ms. Ye sufficient time to comply with the Prohibition Order. The fines that the prosecution is asking with respect to the fire alarms are too high, as there was no fire and the situation was rectified the same day when the Inspector installed several alarms. Also, given it is a basement that is used for storage, any smoke alarm or fire separation contravention should result in a suspended sentence [see counts 9 and 17]. Finally, counts 23 and 24 are similar, as are counts 25 and 29. Hence, the court also should suspend sentence for counts 23 and 29.

[15]

Ms. Chai submitted documents from the Tenant and Landlord Board relating to Ms. Ye's efforts to evict a tenant from 222 Athol Street East in Oshawa for non-payment of rent. The documents are from January and February 2017 and show how difficult it is and how long it takes to have a tenant removed. I can give these documents no weight, as they relate to non-payment of rent issues, which are irrelevant to these proceedings.

(c) Prosecution Submissions in Reply

[16]

In reply to the defendant's submissions, the prosecution submits that the defence wants the court to think that Ms. Ye is not a repeat offender, when, in fact, she has reoffended on multiple occasions, putting people's lives at risk. For example, on January 23, 2017, the Office of the Fire Marshall closed one of Ms. Ye's properties for an immediate threat to life. Ms. Ye had to remove three bedrooms in order to comply with the law. Ms. Ye also had a conditional licence for four bedrooms in one of her properties, not the nine bedrooms that she had in direct violation of that conditional licence.

[17]

If there are smoke alarms, they need to be maintained – period. Ms. Ye's legal representative said the situation was rectified, but it was the Fire Department inspector, not Ms. Ye, who installed functioning smoke alarms.

[18]

Of greatest significance is the defendant pleading financial hardship. The prosecutor provided a Parcel Register for a property owned by Ms. Ye in Keswick. It was purchased on July 31, 2017 by the defendant for $1,080,000 without a mortgage [Exhibit 16]. The next Parcel Register provided by the prosecutor illustrates a property in Queensville, which was purchased by Ms. Ye on June 2, 2016 for $1,118,000 without a mortgage [Exhibit 17]. The third Parcel Register shows a Keswick property purchased by the defendant on January 9, 2018 for $700,000, with a $544,000 mortgage [Exhibit 18].

[19]

Ms. Chai says there is no reason to impose more monetary penalties when there are outstanding fines. That is one of the reasons why the prosecution is also seeking a term of incarceration.

[20]

Ms. Ye's first conviction goes back to 2014. It has been followed by violation after violation and enough is enough. A clear message needs to be sent to the defendant, specifically, in this case, for deterrence.

(d) Defence Response to Prosecution's Reply

[21]

At first, I was reluctant to hear an explanation from the defence about these multi-million dollar properties. However, Ms. Chai was insistent. On several occasions, I tried to caution Ms. Chai about the laws in Canada, for example, Canada Revenue Agency issues, requirements of declaring large amounts of money coming into Canada, immigration and visitor visa laws, etc. Nonetheless, Ms. Chai and Ms. Ye continued.

[22]

Ms. Chai explained that the defendant purchased these properties on behalf of relatives in China because they cannot get mortgages here or purchase the properties themselves from abroad. She further submits that the properties are in Ms. Ye's name and, although Canadian culture may think she owns them, that is not how the Chinese family functions.

[23]

The two properties purchased for over $1,000,000 each were bought by Ms. Ye on behalf of her godfather, Shi Chang Cheng, a long-time family friend. One of these properties is a 130-acre farm. Shi Chang Cheng lives in China and has no status in Canada, but wanted to invest in the Canadian farming industry. The Chinese government has strict regulations prohibiting an individual from investing out of the country, and that is why Ms. Ye's godfather chose to invest in this fashion.

[24]

The $700,000 property, with the $540,000 mortgage was purchased by Ms. Ye on behalf of her mother, who has been in Canada since 2016, but is not an immigrant. Ms. Ye's mother is here on a visitor's visa, so she cannot qualify for a mortgage.

[25]

Knowing that it was not legal, Ms. Ye originally did not want to tell Ms. Chai or the courts about these properties. Ms. Chai explained that she does not know exactly how it works, but her client does not own the properties.

III. PRIOR CONVICTIONS

[26]

There are nine (9) single and multi-count informations relating to various properties owned by Ms. Ye in Oshawa. The commission of all of these offences pre-date the occurrence of the offences in the matter before me. However, five (5) of the convictions precede the January 26, 2017 offences at 222 Athol Street East in Oshawa, while four (4) convictions post-date the occurrence of these offences.

[27]

The nine (9) prior informations, for which there are 38 convictions against Ms. Ye for properties she has owned in Oshawa, are as follows:

Exhibit No.	Offence Date	Conviction Date	Location	Offence	Legislation	Fine
1	Feb. 21, 2013	Nov. 20, 2014	222 Athol St. East	Non-compliance with confirmed Property Standards Order	Building Code Act ["BCA"]	$3,000
2	Feb. 22, 2016	Nov. 17, 2016	222 Athol St. East	Using the building for a use not permitted under City of Oshawa Zoning By-law	Planning Act ["PA"]	$3,000 & Prohibition Order
3	Feb. 12, 2015	Jan. 19, 2017	1860 Dalhousie Crescent	Carrying on a business of a regulated trade (rental unit) without a licence	Oshawa Licensing By-law	$20,000
4	Feb. 12, 2015	Jan. 19, 2017	1863 Dalhousie Crescent	Carrying on a business of a regulated trade (rental unit) without a licence	Oshawa Licensing By-law	$20,000
5	Jan. 15, 2015	Jan. 19, 2017	1863 Dalhousie Crescent (4 charges withdrawn)	• Failing to have at least one means of escape • Failing to have fire separations having a 30 minute fire-resistance rating that separate a residential unit from other rooms & areas • Failing to have closures, i.e. a door to separate the main floor residence unit and the basement residential unit	All offences are under OFC, contrary to FPPA	$5,000 $1,200 $1,200
6	Jan. 25, 2017	Oct. 24, 2018	356 Concordia Court	• Using property for a use not permitted in an R1 zone, i.e. a lodging house • Carrying on a business or regulated trade (rental unit) without a license	Oshawa Zoning By-law, contrary to PA Oshawa Licensing By-law	$5,000 $5,000
7	Jan. 19, 2017	Oct. 24, 2018	1860 Dalhousie Crescent (1 charge withdrawn)	• Using property for a use not permitted in an R1 zone, i.e. a lodging house • Using property for use not permitted in an R1 zone, i.e. a single detached dwelling with an accessory apartment	Both offences are under Oshawa Zoning By-law, contrary to PA	$5,000 $5,000
8	Jan. 20, 2017	Oct. 24, 2018	1860 Dalhousie Crescent (2 charges withdrawn)	• Creating a hazard not allowed for original design of a building • Failing to install a carbon monoxide alarm • Failing to maintain portable extinguisher in conformance with NFPA 10 "Portable Fire Extinguishers" • Failing, in 2 different locations, to maintain interconnected smoke alarm in operating condition • Failing to have floor assemblies constructed as fire separation having a fire resistance rating of not less than 30 minutes • Failing, in 7 different locations, to maintain smoke alarms in operating condition • Failing to have separate means of egress • Failing to have exit separated from the remainder of the building or from another exit by fire separation having a fire-resistance rating of not less than 30 minutes • Failing to have closures in fire separations with a minimum 20 minute fire-protection rating • Failing to have closures equipped with self-closing hardware • Failing to have exit signs along a means of egress • Failing to have a portable extinguisher	All offences are under OFC, contrary to FPPA	$2,500 & 1 year reporting probation $500 $1,000 $750 x 2 $1,250 $750 x 7 $2,500 $750 $1,250 $500 $750 $1,000
12	Jan. 25, 2017	Oct. 24, 2018	356 Concordia Court (2 charges withdrawn)	• Creating a hazard not allowed for in the original design of a building • Failing to test and maintain interconnected smoke alarm in operating condition • Failing, in 3 different locations, to install a carbon monoxide alarm • Failing to maintain portable extinguisher in conformance with NFPA 10 "Portable Fire Extinguishers" • Failing to have floor assemblies constructed as fire separation having a fire resistance of not less than 30 minutes • Failing to have separate means of egress • Failing to have exit separated from the remainder of the building or from another exit by a fire separation having a fire-resistance rating of not less than 30 minutes • Failing to have closures in fire separations with minimum 20 minutes fire-protection rating • Failing to have exit signs along a means of egress	All offences are under OFC, contrary to FPPA	$2,500 & 1 year reporting probation $750 $500 x3 $1,000 $1,250 $2,500 $1,250 $1,250 $750

[28]

All of these convictions involve behaviour in which Ms. Ye was collecting rents from tenants whose safety, property and lives she put at risk of potentially significant harm.

IV. ANALYSIS AND SENTENCING

[29]

I have given careful consideration to submissions on penalty from both the prosecution and the defence.

(a) Goals of Sentencing

[30]

Goals or objectives of sentencing that apply to all offences include general deterrence and specific deterrence, rehabilitation, and protection of the public.

(i) General Deterrence

[31]

General deterrence involves deterring the public generally from committing the offence. It is the most important sentencing goal for most regulatory offences. General deterrence is considered a primary concern in the matter before this Court, in part because of significant risk of harm and the 'slippery slope' principle. If Ms. Ye believes that she can continue to contravene the Fire Code, the Building Code, the Planning Act and Municipal Zoning By-laws, Municipal Licensing By-laws, etc. without significant repercussions being imposed, the precedence would be established and the City of Oshawa would soon find its laws and by-laws with very little force and effect. These laws are important to ensure people can live safely in their homes, without constant fear of fire as a result of their own actions, as well as those of adjoining neighbours. Oshawa needs neighbourhoods where each resident can find reasonable enjoyment of their property, without infringement of and risk to such enjoyment by their neighbours.

[32]

As provided in the 1982 Ontario Court of Appeal decision in R. v. Cotton Felts Ltd. (1982), 2 C.C.C. (3d) 287:

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.

[33]

The judgment goes on to state:

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.

[34]

Although deterrence may be accomplished without imposing a substantial fine, this is not going to happen in the case now before me, as Ms. Ye has a history of non-compliance over many years and took few steps to eliminate further breaches. Other like-minded people, who put profits above public safety, need to know that their irresponsible conduct will not be tolerated.

(ii) Specific Deterrence

[35]

Specific deterrence is also an important goal of sentencing in regulatory offences. It involves deterring the specific offender before the court from again committing this or similar offences.

[36]

The parties have provided nine single and multi-count informations laid against Ms. Ye. They total 38 convictions against her. This defendant has an egregious and cognate record of regulatory offence convictions. Ms. Ye was convicted of similar offences in other buildings she owned over the years prior to these offences, yet she continued to contravene the law at 222 Athol Street East. Ms. Chai expressed concern that Ms. Ye was not given a letter of compliance prior to these charges being laid. However, in these regulatory offences, notice and an opportunity to comply are not a precondition to enforcement of the law by prosecution [see: R. v. Lutczyk, 2007 ONCA 767 (Ont. C.A.)]. Moreover, the defendant is not being penalized for pleading not guilty; she is penalized for being found guilty.

[37]

Furthermore, Ms. Chai submits that Ms. Ye cannot possibly know when her tenants will punch holes in the walls or run a cable through a wall or wedge open a fire door. This is an inappropriate attempt by the defence to blame tenants for contravening laws for which the defendant bears responsibility. I give little to no weight to the veracity of the defendant's submission – not only does Ms. Ye have a history of owning buildings with holes in the walls, but also there is not merely one isolated hole in one unit in the matter before me. I cannot imagine all of her tenants creating such destruction in all of their units and I do not accept her blaming her tenants for her non-compliance with laws.

[38]

Moreover, I cannot imagine this many tenants interfering with the proper operation of the smoke alarms. When Ms. Chai explained that the alarms were brought into compliance, so the penalties should not be so harsh, she neglected to advise that it was the Fire Inspector, not her client, who took measures to install fully functioning smoke alarms. These devices serve the critical purpose of providing warnings of imminent danger to her tenants. When Ms. Ye visited the property regularly to collect rents, she cared little about the safety of her tenants. At the very least, the penalty I impose must serve as a warning about self-righteousness by this defendant.

[39]

Ms. Chai submitted that the only benefit to imposing more monetary penalties is to make more money for the City of Oshawa. I disagree. Ms. Ye lives off the money she takes from tenants whose safety and lives she puts at risk. As stated in Cotton Felts, supra, the quantum of the fines "must not appear to be a mere licence fee for illegal activity".

[40]

Any penalty I impose, therefore, is not a punishment, but serves rather as specific deterrence against Ms. Ye. As a result, it is hoped that protection of the public and respect for and compliance with laws will follow.

(iii) Protection of the Public

[41]

Protection of the public is an important consideration for offences where public safety is an issue. Regulatory offences protect the public from potentially harmful conduct. I also view it as serving a commendable goal where people have to live peacefully and in harmony in their multi-unit buildings and community environments. Regulatory offences are not criminal offences. Activity is not prohibited by regulatory offences because it is inherently wrong. The activity is regulated because, if left unregulated, it would result in danger to the public and disharmony in the community.

[42]

I can give no weight to Ms. Chai's claim that her client did not intend to contravene the OFC, as these are not mens rea offences. Additionally, I can find little or no measures taken to prevent such breaches. Furthermore, the sentencing I impose will focus more on Ms. Ye's behaviour in committing these offences, than on the outcome of such breaches. In order for this court to consider significant penalties in these matters, there does not have to be a fire in which life and limb are jeopardized. Landlords need to comply with the law and tenants need to know that their residences are protected from potentially harmful risk, to the extent possible and as mandated in law.

[43]

OFC laws are essential to the public interest through ensuring standards in homes to mitigate against fire and its potentially devastating outcomes. In a multi-residential building, compliance with the provisions of the OFC is of utmost importance, as non-compliance with the laws in one residential unit can result in harm to other tenants who have little or no control over such outcomes. The provisions of the FPPA and the OFC made under it serve as critical laws in the prevention of devastating effects of fires. Disregard for such laws only too often can result in the loss or near loss of lives. Ms. Ye cannot profit from savings through non-compliance with these laws, nor can she profit from the rental incomes she collects in these circumstances. It is unconscionable for anyone to live off earnings gained by putting property and life at significant risk of harm.

(iv) Rehabilitation

[44]

Rehabilitation of the offender is generally given less weight with regulatory offences than criminal offences. Rehabilitation is given greater weight when sentencing young persons than adult offenders. Nonetheless, given the defendant's history of non-compliance and circumstances of the matter before this Court, rehabilitation, to ensure future compliance, is a sentencing goal for me to consider in Ms. Ye's sentencing.

(b) Principles of Sentencing

[45]

The principles of sentencing for regulatory offences all originate in the common law. Unlike the Criminal Code, there are no sentencing principles or guidelines in the Provincial Offences Act. In these matters before me, proportionality, parity and totality are the most relevant principles.

(i) Proportionality

[46]

As stated by the Supreme Court of Canada in R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paragraph 22:

The trial judge's decision will continue to be dictated by the fundamental principle that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (s.718.1 Cr. C.).

[47]

For proportionality to be effective, the sentence I impose must bear some relationship to the seriousness of the offences. It will depend on the particular circumstances of the offence, the offender and the community.

[48]

Factors relevant to the offences include the extent of potential harm, which, as I have stated, is significant in the circumstances before me. As stated, these are not mens rea offences. Nonetheless, the potential for harm is significant. I have also considered the nature and purpose of the legislation. An objective of the OFC "is to limit the probability that, as a result of specific circumstances relating to a building or facility, a person in or adjacent to the building or facility will be exposed to an unacceptable risk of injury." [See OFC Article 2.2.1.1.] Additionally, the functional statements found in Article 3.2.1.1. of the OFC include, but are not limited to the following:

• To limit the severity and effects of a fire or explosion;
• To retard the effects of fire on areas beyond its point of origin;
• To facilitate the timely movement of persons to a safe place in an emergency;
• To notify persons in a timely manner, of the need to take action in an emergency;
• To minimize the risk of malfunction, interference, damage, tampering, lack of use or misuse [e.g. fire and smoke alarms, fire separations and fire door closures];
• To minimize the risk of inadequate performance due to improper maintenance or lack of maintenance [e.g. fire and smoke alarms, fire separations and fire door closures].

[49]

Moreover, I have considered the maximum penalty proscribed. The fact that the maximum monetary penalty for contravention of the fire code is one and a half times higher than the maximum penalties imposed for the commission of other offences under the FPPA is not lost on me. The relevant parts of section 28 of the FPPA reads:

Offences

28 (1) Every person is guilty of an offence if he or she,

(c) subject to subsection (2) contravenes any provisions of this Act or the regulations;

Penalty

(3) An individual convicted of an offence under subsection (1) is liable to,

(a) in the case of an offence other than one described in clause (b), a fine of not more than $20,000 or imprisonment for a term of not more than one year, or both; and

(b) in the case of an offence for contravention of the fire code, a fine of not more than $50,000 or imprisonment for a term of not more than one year, or both.

[50]

Factors relevant to the offender include the measures the offender took to avoid the wrong, the attitude of the offender and her blameworthiness. As stated by the Ontario Court of Appeal in Ontario (Ministry of Labour) v. New Mex Canada Inc., 2019 ONCA 30, [2019] O.J. No. 227, at paras. 66 and 67:

In my view, the relevance of moral blameworthiness in sentencing for regulatory offences follows necessarily from the application in regulatory offences of the fundamental sentencing principle of proportionality.

Simply put, the principle of proportionality requires that there be "just proportion" between the offence and the sentence: R. v. Wilmott, [1967] 1 C.C.C. 171 (Ont. C.A.), at p.179. More precisely, it holds that a "sentence must be 'proportionate to both the gravity of the offence and the degree of responsibility of the offender": R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para.21.

[51]

Here, no measures were taken by Ms. Ye to bring her rental property into compliance, even after prior cognate convictions for non-compliance. Moreover, her submissions on penalty illustrate an attitude of recalcitrance and reluctance to accept the fact that she needs to comply with the law and, further, she does not seem to understand that such non-compliance cannot be condoned. It is Ms. Ye's responsibility, not that of her tenants or Oshawa Fire Services, to provide a home that is safe for its residents. Instead, Ms. Ye puts profits over satisfying her obligations under the FPPA.

[52]

This blatant disregard for the law extends beyond the matters before me, into million dollar properties legally registered in her name, which she claims do not belong to her and were purchased with monies from abroad. Ms. Ye claims that, in Canada, we may think she owns these properties, but the Chinese family does not function that way. With all due respect, I reject her submissions. In Canada, Canadian laws apply and Ms. Ye owns millions of dollars in property. The fact that Ms. Ye is from a Chinese family is irrelevant and does not exempt her from the laws in this country – she is bound by laws in Canada. It is very likely that she will continue to hold this attitude and continue to profit from non-compliance of the law, putting people's lives at risk. The penalty I impose must serve to reverse her mind-set of non-compliance with federal, provincial and municipal laws.

[53]

Factors relevant to the community include the nature of the area in which this non-compliance occurred. Many of Ms. Ye's properties are rented out as rooming houses or low rental units - to people from vulnerable sectors of our society. On many occasions in the past, as now, she has enhanced her monetary profits by renting out more units in a building than allowed in law. Her efforts to maximize her income at the expense of her tenants, in no way, should deprive them of living in a safe residential setting, without fear of adequate fire protection and alerts so that they receive timely notice of an emergency.

(ii) Parity

[54]

The principle of parity requires that similar penalties be imposed on similar offenders for similar offences in similar circumstances. It does not require that the penalties given to persons who commit the same offence be the same, but does require that the differences be understandable. Here, we have a repeat offender, who illustrates blatant disregard for the law. The penalties I impose must denounce this complacency.

(iii) Totality

[55]

Ms. Ye has been convicted of committing twenty-two (22) offences at her property at 222 Athol Street East in Oshawa. Several of the offences are of the same nature, but in more than one location in the building. I must be mindful and careful in imposing penalties which, taken as a whole, are appropriate and not excessive or inappropriately duplicative.

(c) Factors in Sentencing

[56]

The penalties to be imposed will be determined by a complex of considerations. They include mitigating factors and aggravating factors. Mitigating factors justify a lower penalty, while aggravating factors lead to a higher penalty. Both are facts about the defendant or the circumstances of the offence that, when considered in light of the goals and objectives of sentencing, necessitate an increased or decreased sentence.

(i) Mitigating Factors

[57]

In the matter before this Court, I can find little, if any, hints of any mitigating factors that would lead me to lower the penalties imposed. There has been a lack of co-operation by the defendants to work towards compliance, as she puts her own profits above the safety of others. As a repeat offender and as a result of her submissions on how she came to be named on title to multi-million dollar properties, I sense that Ms. Ye believes that laws do not apply to her or, at the very least, if she does not get caught, she can do as she pleases.

[58]

Post-offence compliance with a regulatory scheme is not a mitigating factor on sentencing. This would undermine the FPPA's most important goal of fire safety and prevention, as well as its most important sentencing goal of deterrence. At paragraph 30 of Ontario (Labour) v. Flex-N-Gate Canada Co., 2014 ONCA 53, [2014] O.J. No. 261 (Ont. C.A.):

If, after having contravened a safety standard, an employer then acts to correct the problem, it is not "doing the right thing"; it is doing what the statute requires it to do. It ought not to be "rewarded" for its compliance.

[59]

Hence, Ms. Ye's compliance, after charges were laid against her, cannot serve to mitigate the penalties imposed upon her.

(ii) Aggravating Factors

[60]

Aggravating factors are factors which justify an increase in the penalty which would otherwise be imposed. Aggravating factors include a record of regulatory offences, a lack of effort to minimize the damage caused by the commission of the offence and the potential harm to people or property.

[61]

All of Ms. Ye's previous offences occurred prior to the offences that are before me. Convictions were entered on five of the informations prior to the occurrence of these offences. Consequently, I am guided by section 15, Sentencing Considerations, of the Regulatory Modernization Act, 2007, S.O. 2007, c.4, as amended, which provides:

Previous conviction

15. (1) This section applies when a person who is convicted of an offence has previously been convicted of an offence under the same or another Act.

Same

(2) The previous conviction may have occurred at any time, including before the day this Act came into force.

Severity of penalty

(3) Where the prosecutor is of the opinion that the previous conviction is relevant to the determination of the appropriate penalty for the current conviction, he or she may request that the court consider the previous conviction to be an aggravating factor.

Response of court

(4) Where a court receives a request under subsection (3), the court shall, on imposing the penalty,

(a) indicate whether it is imposing a more severe penalty having regard to the previous conviction; and

(b) if the court decides that the previous conviction does not justify a more severe penalty, give reasons for that decision.

Other factors still relevant

(5) Nothing in this section shall be interpreted as limiting any factor, submission or inquiry as to penalty the court is otherwise permitted or required to take into account or make, as the case may be.

[62]

A more severe penalty is in order in the matters before me. Given the history of this case, and the fact that Ms. Ye has previously and repeatedly been convicted of similar offences, any penalty I impose must be sufficiently high to serve as a warning to this defendant against complacency.

[63]

While remorse is a mitigating factor, lack of remorse may be considered an aggravating factor only in very unusual circumstances. In light of the defendant's attempt to blame her tenants for punching holes in the wall or disarming smoke alarms or wedging open fire doors, to some extent, such lack of remorse may be considered an aggravating factor in the matters before me. Moreover, in the face of multiple prior convictions, I fail to understand how the defendant does not perceive herself to be a repeat offender.

[64]

Other aggravating factors include Ms. Ye's reluctance to pay outstanding monetary penalties, the impact of her non-compliance with the FPPA on the tenants' use and enjoyment of their residences and the extent of Ms. Ye's lack of due diligence regarding the law and being compliant with it. This was not a case of a single fire separation being breached or only one smoke alarm not functioning or one door closure not properly used; the breaches were systemic throughout the entire building.

V. SENTENCING

[65]

I have carefully reviewed the submissions of the parties and I have considered the goals, principles and factors of sentencing and how they apply in the matters before me.

[66]

The maximum penalty for an individual who has contravened the OFC is "a fine of not more than $50,000 or imprisonment for a term of not more than one year, or both" [s.28(3)(b) of FPPA]. As indicated by the Supreme Court of Canada in R. v. L.M., supra, starting at paragraph 20:

In R. v. Cheddesingh, [2004] 1 S.C.R. 433, 2004 SCC 16, the Court acknowledged the exceptional nature of the maximum sentence, but firmly rejected the argument that it must be reserved for the worst crimes committed in the worst circumstances. Instead, all the relevant factors provided for in the Criminal Code must be considered on a case-by-case basis, and if the circumstances warrant imposing the maximum sentence, the judge must impose it and must, in so doing, avoid drawing comparisons with hypothetical cases.

... terms such as "stark horror", "worst offence" and "worst offender" add nothing to the analysis and should be avoided. All relevant factors under the Criminal Code ... must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely ... and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case-by-case basis.

Even where a maximum sentence is imposed, therefore, regard must be had to the trial judge's discretion, the individualized nature of sentencing and the normative principles set out by Parliament in ss. 718, 718.1 and 718.2 Cr. C. There is still a place in criminal law for maximum sentences in appropriate circumstances.

Thus, the maximum sentence cannot be reserved for the abstract case of the worst crime committed in the worst circumstances.

[67]

In New Mex Canada Inc., supra, at para. 70, Paciocco J.A. writes that "…incarceration is more appropriate where an offender has acted wilfully or is a repeat offender." And at para. 73, he continues, "The point is that where the moral blameworthiness of a particular offender increases, so too can the penalty imposed." Ms. Ye clearly is a repeat offender.

[68]

I am satisfied that the offences committed by Ms. Ye under the OFC made under the FPPA fit into the category of strict liability offences. Ms. Ye exercised little, if any, due diligence to prevent these offences from occurring. That did not appear to be her priority when she visited this property on a regular basis to collect rental money. Paciocco J.A. states at para. 64:

For its part, the criminal law recognizes a loose continuum of moral blameworthiness according to these categories that can affect the sentencing imposed. The underlying notion is that those with guiltier minds tend to deserve or require greater punishment. This same principle applies to regulatory offences.

[69]

In applying the principle of restraint, I accept that incarceration is "more appropriate for defendants with prior convictions for whom fines have not had a deterrent effect." [New Mex Canada Inc., supra, at para. 76]. Continuing at para. 81, Paciocco J.A. writes:

There is a related, more general principle of restraint that also has to be considered. It is aptly described by Derrick J. in Nova Scotia Power, at para. 56:

The principle of restraint requires the sentencing court to apply a measured response in determining the sentence that best satisfies the purpose and principles of sentencing. In an occupational health and safety case this means that the fine imposed must be no greater than is required to meet the objectives of sentencing.

[70]

There is a significant history illustrating Ms. Ye's disregard for the law. She has thirty-eight (38) previous convictions, the majority of which are cognate to the twenty-two (22) offences before me. The defendant's behaviour reflects a repeated and blatant disregard for her obligations under the law and for the safety of her individual tenants and the public. As stated above, "incarceration is more appropriate where an offender has acted willfully or is a repeat offender." [New Mex Canada Inc., supra, at para. 70.] Fines, alone, have not deterred this defendant. At para. 73 of New Mex Canada Inc., "… incarceration is 'more appropriate for defendants with prior convictions for whom fines have not had a deterrent effect.'"

[71]

Ms. Ye was charged on February 22, 2016 with using her property at 222 Athol Street East in Oshawa for a use not permitted under the City of Oshawa zoning by-law, i.e. turning a two-unit dwelling into an "Apartment Building". She was convicted on November 17, 2016 and fined $3,000. As well, a Prohibition Order was imposed, requiring her to return the building from an "Apartment Building", back to a two-unit dwelling. Yet on January 26, 2017, almost a year after she was charged under Oshawa's zoning by-law, she continued to use 222 Athol Street East in contravention of the laws by having three rental units in a two-unit dwelling, and was charged under the OFC for the offence of "create hazard not allowed for in the original design of a building" (see count 1). As well, with respect to Ms. Ye's other Oshawa properties, she has been charged with and convicted of three counts contrary to Oshawa's licencing by-law of "carrying on a business of a regulated trade (rental unit) without a licence", three counts contrary to Oshawa's zoning by-law of "using property for a use not permitted in an R1 zone" (i.e. a lodging house or a single detached dwelling with an accessory apartment) and two counts contrary to the OFC of "creating a hazard not allowed for in the original design of a building". These offences occurred over a span of time, with convictions registered against Ms. Ye starting in February 22, 2016 to these twenty-two most recent February 21, 2019 convictions. This illustrates a significant history of Ms. Ye splitting her buildings into more units than is legal, putting people's lives a risk, so that she can make more money for herself. Things were so out of control that, on January 23, 2017, the Fire Marshall shut down one of her properties for an immediate threat to life.

[72]

In considering all of the factors, for count 1, "creating a hazard not allowed for in the original design of a building", I find that a sentence of twenty-one (21) days of incarceration is a measured response in determining a sentence that best satisfies the goals and principles of sentencing in these circumstances.

[73]

In addition, an added measure of deterrence is necessary to send a clear, unequivocal message to Ms. Ye that her efforts to make a living must be in full compliance with the laws that apply to all of us. Given that there are twenty-two convictions, I have been mindful that, in addition to other goals, principles and factors, the principle of totality applies.

[74]

I have considered the defendant's submissions that I should suspend sentence on count 1, "create hazard not allowed for in the original design of a building", as the City did not allow Ms. Ye sufficient time to comply with the previously imposed Prohibition Order. I give no weight to this argument, as the Order was imposed on November 17, 2016, for an offence that occurred almost a year prior to the offence before me. As well, I give little weight to Ms. Chai's submissions that the basement is used for storage, so that any laws that apply should result in a suspended sentence (see counts 9 and 17). Finally, count 23 and 24 may be similar, but I am able to distinguish one from the other. The same applies to counts 23 and 29. Hence, there will be a monetary penalty on each of these six counts.

[75]

I have taken Ms. Ye's personal circumstances into consideration. Ms. Chai originally painted a picture of Ms. Ye earning just $2,000 per month, with children to support, tuition to pay for her children, a disabled husband who is unable to work and a mother who has been with her for three years on a visitor's visa. The prosecutor debunked that picture when she provided proof that Ms. Ye owns two properties purchased without a mortgage in 2016 and 2017 for over $1,000,000 each, and a third property bought in 2018 for $700,000 with a $544,000 mortgage. Ms. Ye would have me believe she does not own these properties. However, no evidence, such as a trust agreement directing the ownership of these properties to someone else, has been provided. The properties are in Ms. Ye's name and, hence, she owns them.

[76]

In accordance with the 'Coke principle', the general rule is that before a more severe penalty can be imposed for a subsequent offence, the subsequent offence must have been committed after the previous conviction and the subsequent conviction must have been made after the previous conviction. [See e.g. R. v. Skolnick, [1982] 2 S.C.R. 47, at pp. 58–59.]

[77]

In applying the Coke principle and taking Ms. Ye's financial situation into consideration, I am imposing the following fines:

Count No.	Previous conviction for same or similar offence?	Previous offences pre-date this offence?	Previous convictions pre-date this offence?	Monetary Penalty
1	8	8	3	$7,500
2	3	3	0	$750
3	3	3	0	$750
5	3	3	0	$750
6	3	3	0	$750
7	3	3	0	$750
8	7	7	0	$750
9	7	7	0	$750
10	7	7	0	$750
11	7	7	0	$750
17	5	5	1	$1,750
18	5	5	1	$1,750
19	5	5	1	$1,750
20	5	5	1	$1,750
21	5	5	1	$1,750
23	5	5	1	$1,750
24	5	5	1	$1,750
25	4	4	1	$1,500
26	4	4	1	$1,500
27	4	4	1	$1,500
28	4	4	1	$1,500
29	4	4	1	$1,500

[78]

In summary, general deterrence, specific deterrence, public safety, rehabilitation, proportionality, parity, totality, restraint, aggravating factors and mitigating factors all come into play in arriving at the appropriate penalties in these matters. I am sentencing Ms. Ye to a total of twenty-one (21) days incarceration and fines totalling $34,000.

Released: June 6, 2019

Signed: Justice of the Peace M. Coopersmith