Ontario (Electrical Safety Authority) v. Broomfield

Court File No.: Not specified

Date: June 26, 2019

Ontario Court of Justice

Brampton, Ontario

Before: Quon J.P.

Reasons for Ruling on Pre-Sentencing Application For An Order Compelling Paul Broomfield To Provide Financial Documents To The Prosecutor

Application Argued: January 16, 2019 and March 21, 2019

Ruling On Application: June 26, 2019

Counsel

I. Johnston and A. Johnston, counsel for the applicant, Electrical Safety Authority

D. North and R. Kaushal, counsel for the respondent, Paul Broomfield

1. INTRODUCTION

[1] In order for a sentencing judge to properly arrive at a fit and just sentence for the offender of a regulatory offence, which would reflect the gravity of the offence committed and the offender's moral blameworthiness, the sentencing judge should be provided with all relevant information about the offender, especially where imprisonment is a possibility. And, where fines and restitution are likely sanctions for a regulatory offence, then the sentencing judge before deciding on the appropriate fine or the amount of restitution to be paid, would need to have information about the offender's economic circumstances in respect to their ability to pay.

[2] For the present proceeding involving regulatory offences, which has now entered the sentencing phase, the prosecution contends that the offender's financial documents for himself and his business need to be disclosed or produced to the prosecution, so that the prosecution can fulfill its duty to properly prepare for sentencing submissions and do its job in suggesting or seeking the appropriate fine as a sentence for the offender -- as well as for this Provincial Offences Court to properly do its job in sentencing the offender.

[3] Ergo, in this pre-sentencing application, the prosecution seeks an order compelling the offender, Paul Broomfield ("Broomfield"), who has been convicted of committing two offences of operating an electrical contracting business without holding a valid electrical contractor's licence, contrary to s. 113.20(1)(d) of the Electricity Act, 1998, S.O. 1998, c. 15, Sch. A. (see Ontario (Electrical Safety Authority) v. Broomfield, [2018] O.J. No. 4893 (Ont. C.J.)), to produce or disclose to the prosecution his personal and his company/corporate financial accounts, including, but not limited to, current and prior tax returns, pay slips, bank statements, as well as his asset statements for three years prior to the commission of the offences (i.e., from March 2010 to today's date).

[4] Unfortunately, the Provincial Offences Act, R.S.O. 1990, c. P.33, which is the statute that governs the procedures for the prosecution and trial of regulatory offences in Ontario, does not explicitly contain a provision that legally requires an offender to provide their financial documents to the prosecution or to the sentencing judge for the purposes of sentencing. As such, Broomfield submits that the prosecution's request for an order compelling his personal, as well as his business's financial documents, to be disclosed or produced to the prosecution is premature and not warranted, as the actual sentencing hearing has not commenced, and is in any event, not legally permitted by law. The prosecution however, disagrees, and contends that s. 57(3) of the Provincial Offences Act does explicitly provide this sentencing court with the statutory authority to investigate and make inquiries into Broomfield's economic circumstances in order to determine his ability to pay a fine. In addition, the prosecution contends that the common law also provides the sentencing judge with the legal jurisdiction and power under s. 57(3) to compel the production of Broomfield's financial documents for the purposes of sentencing, through the "doctrine of jurisdiction by necessary implication", so that this sentencing court can properly fulfill its duty of imposing a fit and just sentence.

[5] Accordingly, to dispose of this application it will have to be first decided whether this sentencing court has the jurisdiction and power, either explicitly under s. 57(3) of the Provincial Offences Act or under the common law's implied powers doctrine to compel Broomfield to produce or disclose his personal, as well as, his business's financial documents to either the court or to the prosecution for the purpose of sentencing. Secondly, if this court does have the necessary jurisdiction and power to compel Broomfield to produce the financial documents, then it will have to be decided what are the criteria that should be considered before such an order compelling production should be issued. Thirdly, it then has to be decided whether such an order compelling Broomfield to produce or disclose the financial documents, should indeed be issued in regards to that criteria and the relevant circumstances of the present case.

[6] Now, for the reasons that follow, s. 57(3) of the Provincial Offences Act does explicitly authorize a sentencing court to investigate and make inquiries into an offender's economic circumstances in order to determine an offender's ability to pay a fine, even though the offender is not compelled to answer any inquiries made by the sentencing judge during the actual sentencing hearing. However, since such financial information would be practically necessary for the sentencing judge to fulfill its mandate in determining a fit and just sentence, considering that a fine or restitution cannot be imposed unless an inquiry has been conducted by the sentencing judge into the offender's ability to pay, then by the doctrine of "jurisdiction by necessary implication", the sentencing judge would indeed have the jurisdiction and power to compel the offender to disclose or produce their financial documents to the prosecution for the purposes of sentencing. As well, because of the need to balance fairness to the offender with the need of the sentencing court to have relevant information for determining an appropriate sentence, a sentencing court should only order the offender to produce or disclose his financial documents to the prosecution for the purposes of sentencing on an exceptional circumstances basis. And, where there are concerns about self-incrimination or unnecessary intrusion into the offender's privacy through the disclosure or production of the offender's financial documents to the prosecution, then the sentencing court can take steps to safeguard specific information from being disclosed to the prosecution.

[7] And, for the present application, even though this court has the necessary jurisdiction and power to compel Broomfield to disclose or produce to the prosecution his personal, as well as his business's financial documents, for the purposes of sentencing, the prosecution has not established on a balance of probabilities that there are exceptional circumstances which justify issuing an order compelling Broomfield to disclose or produce his financial documents to the prosecution at this time.

[8] In addition, the prosecution's application had been argued on January 16, 2019 and March 21, 2019. After arguments on the application were heard, the matter was then adjourned to June 26, 2019, for the ruling on the prosecution's application. These, therefore, are the written reasons for the ruling dismissing the prosecution's application:

2. BACKGROUND

[9] The offender, Paul Broomfield, had been convicted by this court on September 19, 2018, of committing two offences under s. 113.20(1)(d) of the Electricity Act, 1998, S.O. 1998, c. 15, Sch. A., as a result of contravening s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation, O. Reg. 570/05, by "operating an electrical contracting business without holding a valid electrical contractor licence".

[10] For the house at 22 Vespahills Crescent in Brampton, Broomfield had been contracted by the homeowner, Jay Jairam, to renovate the basement that included doing electrical work for which Broomfield nor his renovation business, P & B Construction, had been licenced or qualified to do. Jairam had paid Broomfield $6,000 to $7,000 in cash for the electrical portion of the renovation. Broomfield had also been involved in the renovation and electrical work on the house at 22 Vespahills Crescent from April 1, 2014 to July 22, 2014. Moreover, Jairam said that it had cost Jairam a further $10,000 to start over again and redo the renovation and to have Broomfield's electrical work removed and fixed by a qualified and licenced electrical contractor.

[11] And, for the house at 291 Boon Avenue in Toronto, Broomfield had been contracted through a written agreement for the amount of $87,000 by the homeowner, Ahmed Khan, to renovate that house. However, there is no evidence on how much of the $87,000 had been attributed to the electrical portion of the house renovation. Neither Broomfield nor his renovation business had been licenced or qualified to do the electrical work at 291 Boon Avenue. Broomfield had also been involved in the renovation and electrical work on the house at 291 Boon Avenue from December 2, 2013 to April 30, 2014. In addition, Khan said he also paid a further $1695 to a company named Wiztronic Inc. to remove and fix the electrical work done by Broomfield. However, it later turned out that Steve Duff of Wiztronic Inc., who had done this additional electrical work, had also been introduced by Broomfield to Khan, and was also not properly licenced nor qualified to do the electrical work at Khan's house. In addition, the homeowner, Ahmed Khan, then hired a licenced electrical contractor at a cost of $7000 to correct the electrical work done by both Broomfield and Steve Duff.

[12] As a result of those two convictions, then under s. 113.20(1)(d) of the Electricity Act, 1998, Broomfield faces a potential sentence of a maximum fine of $50,000 or to a period of imprisonment of not more than one year, or to both a fine and a period of imprisonment. However, there is no minimum fine that has to be imposed against Broomfield. On the other hand, Broomfield cannot be ordered to pay restitution either as a standalone restitution order or as a condition of a probation order under s. 72(3)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as the Electricity Act, 1998 does not expressly provide for or authorize the sentencing court to order an offender to pay restitution as a penalty or sanction upon conviction: R. v. Kirk (c.o.b. B.A. Holdings), 2006 ONCJ 22, [2006] O.J. No. 349 (Ont. C.J.).

[13] Furthermore, after Broomfield had been found guilty of committing the two Electricity Act, 1998 offences on September 19, 2018, the prosecution had asked this court for assistance and guidance on obtaining Broomfield's personal, as well as his business's financial documents, for the purposes of sentencing. In respect to the prosecution's inquiry about obtaining Broomfield's financial documents, this court had advised the prosecution that obtaining Broomfield's financial documents could be discussed and arranged between the prosecution and Broomfield's counsel before the sentencing hearing scheduled for January 16, 2019.

[14] The prosecution then wrote Broomfield's counsel, David North, on October 11, 2019, requesting that Broomfield produce to the prosecution his personal, as well as his business's financial documents, for the purposes of sentencing and for assessing Broomfield's ability to pay a fine. However, Broomfield's counsel responded on October 19, 2018, to the prosecution's written request for Broomfield's financial documentation, and informed the prosecution that Broomfield would not be producing any of his financial documentation to the prosecution.

[15] As a result, the prosecution then wrote to this court on November 12, 2018, seeking assistance in bringing about the disclosure or production to them of Broomfield's financial documents. On November 13, 2018, this court then informed both the prosecution and Broomfield's counsel that the prosecution would have to bring an application for an order compelling Broomfield to produce his financial documentation to the prosecution, with suggested hearing dates of December 13, 2018 or January 16, 2019. The date for hearing the prosecution's application for an order compelling production of Broomfield's financial documents was then scheduled to be argued on January 16, 2019. However, Broomfield's counsel informed the court on January 16, 2019, that he did not become aware that the prosecution was going to bring the present application for production of Broomfield's financial documents until an email with attachments was received by Broomfield's counsel on December 28, 2019. Broomfield's counsel was also informed at that time that a hard copy of the attachments would be sent to Broomfield's counsel. Unfortunately, Broomfield's counsel did not receive the hard copy of the prosecution's application (factum, transcripts, and caselaw) until January 14, 2019, just two days before the scheduled hearing date of January 16th. Broomfield's counsel then submitted a response to the prosecution's application on January 15, 2019. However, because of the novelty of the application and the short time in which Broomfield's counsel had to properly prepare his response to the prosecution's application, the hearing of the application was then adjourned until March 21, 2019.

[16] On March 21, 2019, the prosecution's application, which sought an order compelling Broomfield to produce to the prosecution his personal, as well as his business's financial documents, was argued. The ruling on the application was then reserved and adjourned to June 26, 2019, for this court to make its ruling.

3. ARGUMENTS IN RESPECT TO THE PROSECUTION'S APPLICATION

[17] The prosecution in the present application requests a court order compelling Broomfield to disclose his personal, as well as his business's financial information, including tax returns, pay slips and bank statements from as far back as 2010, so as to allow the prosecution to fulfill the duties of its job in suggesting an appropriate fine or penalty, since the prosecution contends that this cannot be done without that financial information. Moreover, the prosecution submits that compelling Broomfield to provide this financial information will also allow this court to properly fulfill its mandate in determining Broomfield's true ability to pay a fine, if a fine is appropriate, and imposing a fit and just sentence through an appropriate quantum for the fine. But more importantly, the prosecution contends that a sentencing court cannot impose a particular fine on Broomfield without inquiring into or investigating Broomfield's ability to pay. Therefore, Broomfield's personal, as well as his business's financial documents, would form part of the necessary and relevant information for the sentencing judge's required inquiry or investigation into Broomfield's ability to pay.

[18] Furthermore, the prosecution relies on Lane J.'s holding in R. v. Wells, [2003] O.J. No. 2025 (Ont. C.J.), at paras. 22 and 23, to support its argument that a sentencing judge has a duty to make an order compelling production of the offender's financial documents; otherwise, how would a sentencing judge be able to fulfill their mandate to assess an appropriate fine without having the offender's personal financial information:

The power under s. 57(3), furthermore, is directed particularly to the financial circumstances of the defendant, so that his capacity to pay can be considered in imposing an appropriate sentence. It has been found, for example, that it is an error in principle to impose a fine without an investigation into the defendant's ability to pay, or to impose a fine which he or she lacks the means to pay within a reasonable time: Czumak v. Etobicoke (City), [1994] O.J No. 2247, September 16, 1994, Fairgrieve J., Ont. Prov. Ct.

In this case, the presiding jurist made no inquiries about Mr. Wells, nor about his financial circumstances. At the conclusion of the sentencing hearing, we know nothing about who he is, what his circumstances were since 1992, what he does for a living, nor how much (if anything) he earns. The presiding Justice explicitly imposed a custodial term on his own assumption that Mr. Wells "had obviously refused" to pay any fines for ten years. Mr. Wells repeatedly denied this assertion. Nor was it proven in proper evidence before the court. Mr. Wells said that he was unaware of the outstanding fine, and then that he had thought he had paid all his fines when he was before the court a year ago. Although he said that he had documentation in his pocket to prove it, the court did not ask to see the documents he sought to tender.

[19] In addition, based on paras. 21 and 22 of Kukurin J.'s decision in R. v. C. (K.), [2005] O.J. No. 2046 (Ont. C.J.), the prosecution submits that since the Provincial Offences Act has only rudimentary provisions for sentencing, the sentencing judge for provincial offences matters can pick and choose anything found in the Criminal Code in respect to sentencing and apply that to a provincial offences sentencing:

In contrast, the Provincial Offences Act, in its Part IV, has rather rudimentary provisions for sentencing. It sets out no formal purposes or principles of sentencing. While it devotes Part VI to young persons, the provisions of Part VI are, for the most part, procedural in nature and provide little guidance for sentencing of young persons convicted of provincial offences. A sixteen year old is not distinguishable from an adult so far as the sentencing provisions of the POA are concerned.

What then are the principles that the provincial offences court should apply in sentencing someone like K.C.? The POA does not import into its sentencing scheme any of the provisions of the Criminal Code or of the YCJA. In effect, the area of sentencing under the POA is quite open. It seems to me that there is nothing improper in picking and choosing anything found in the Criminal Code or in the YCJA that can be applied to a POA sentencing.

[20] The prosecution contends, therefore, that the sentencing judge in a provincial offences sentencing has the necessary jurisdiction to compel Broomfield to produce or disclose to the prosecution his personal, as well as his business's financial documents, for the purposes of sentencing, especially in regards to the determination of the quantum of the fine and in respect to Broomfield's ability to pay a fine. Moreover, the prosecution submits that this jurisdiction to obtain information on Broomfield's economic circumstances in order to determine Broomfield's ability to pay a fine is explicitly authorized under s. 57(3) of the Provincial Offences Act; while the power to compel Broomfield to disclose or produce those financial documents to the prosecution for sentencing purposes is implicitly provided for under s. 57(3), through the common law doctrine of "jurisdiction by necessary implication".

[21] Moreover, the prosecution submits that s. 57(3) of the Provincial Offences Act specifically states that "where a defendant is convicted of an offence, the court may make such inquiries, on oath or otherwise, of and concerning the defendant as it considers desirable, including the defendant's economic circumstances, but the defendant shall not be compelled to answer."

[22] As for the common law doctrine of "jurisdiction by necessary implication", the prosecution submits that the Provincial Offences Court has the implied power or jurisdiction under s. 57(3) of the Provincial Offences Act to compel Broomfield to disclose or produce those financial documents to the prosecution for the purposes of sentencing, as three of the five criteria are present for finding that this statutory court has the power or jurisdiction by necessary implication to do so, which criteria had been outlined by Laskin J.A. in Nishnawbe Aski Nation v. Eden (Pierre v. McRae), 2011 ONCA 187, [2011] O.J. No. 988 (Ont. C.A.) and adopted by LaForme J.A. in R. v. Fercan Developments Inc., 2016 ONCA 269, [2016] O.J. No. 1925 (Ont. C.A.). The three criteria that the prosecution contend are present in the case at bar are the following:

(i) When the jurisdiction sought is necessary to accomplish the objects of the legislative scheme and is essential to the statutory body fulfilling its mandate;

(ii) When the enabling act fails to explicitly grant the power to accomplish the legislative objective; and

(iii) When the mandate of the statutory body is sufficiently broad to suggest a legislative intention to implicitly confer jurisdiction.

[23] Furthermore, the prosecution submits that because s. 57(3) of the Provincial Offences Act is a procedural provision rather than a substantive provision, then s. 57(3), which is a procedural provision can be interpreted more liberally than in the case of a substantive provision.

[24] In addition, the prosecution submits that the principle of strict interpretation is also more relaxed where the statute in question relates to regulatory or provincial offences, as opposed to purely criminal statutes.

[25] However, in response to the prosecution's argument that Broomfield should be compelled to produce his personal, as well as his business's financial documents, Broomfield submits that an order compelling him to produce his financial documents to the prosecution is specifically prohibited by section 57(3) of the Provincial Offences Act. In particular, Broomfield submits that the language of s. 57(3) is clear and unambiguous, and as such, there is no need to "look beyond the text" of the section and to "examine the context and the purpose of the legislation", as has been suggested by the prosecution. Broomfield also submits that there no "legislative silence" or a gap in the legislative scheme such that creative interpretation of s. 57(3) is required. Moreover, Broomfield suggests that the purpose of s. 57(3) is clear: that a court "may" make inquiries of an offender's economic circumstances prior to rendering a sentence, "but the defendant shall not be compelled to answer."

[26] In addition, Broomfield acknowledges that if an offender chooses not to respond to the sentencing judge's inquiries in regards to the offender's economic circumstances in the sentencing hearing, then the offender would do so at their peril because the sentencing judge could then reasonably infer that the offender does not lack an inability to pay a fine. As well, Broomfield acknowledges that an offender who seeks a reduced fine at the sentencing hearing, but then presents no or insufficient evidence in support of such a request, also would do so at their peril. Therefore, Broomfield contends that in all circumstances, it is an offender's choice at the sentencing hearing whether or not to disclose evidence of an inability to pay a fine, but that in any event, the offender cannot be compelled to disclose their personal financial records and documentation if they choose not to.

[27] Moreover, Broomfield submits at the moment, no submissions or representations have been made to Broomfield by the prosecution in respect to the quantum of the appropriate fine. However, based on comments made by the prosecutor during the trial, Broomfield submits that he assumes that the prosecution's promise to seek the maximum penalty would remain in effect.

[28] Broomfield also contends that no amount of statutory interpretation can contradict the clear language of section 57(3) of the Provincial Offences Act. In particular, Broomfield submits that under s. 57(3), the sentencing court on its own motion, may ask for particulars of an offender's economic circumstances, with a goal of imposing a fair and appropriate fine, but that the offender cannot be compelled to answer the court's inquiry. Furthermore, Broomfield submits that Lane J. in R. v. Wells, [2003] O.J. No. 2025 (Ont. C.J.), at para. 20, had clearly explained why an offender cannot be so compelled, since it would violate "the fundamental principle that, at all stages in the court process, the defendant has a right to remain silent, and cannot be made a compellable witness against himself, or be required to incriminate himself."

[29] Furthermore, Broomfield submits that the prosecution is seeking to interpret s. 57(3), so as to confer a power upon the sentencing court to order production from an offender of their financial documentation and records. However, Broomfield submits that this is contrary to the plain wording of s. 57(3), which only allows a sentencing court to make inquiries, before sentencing, of an offender's economic circumstances, inquiries which an offender is not compelled to answer. In addition, Broomfield submits that the prosecution has provided no case that is directly on point, in which a sentencing court, on its own motion, has the jurisdiction or power to compel financial documentation from an offender prior to or during a sentencing proceeding.

[30] On the other hand, Broomfield submits there are cases for example, where an offender has voluntarily presented evidence at a sentencing hearing, in an effort to convince the sentencing judge that they are unable to pay a substantial fine. In such circumstances, a sentencing judge may accept some, none, or all of the proffered evidence in making their decision as to the appropriate sentence. Furthermore, for the present application, Broomfield submits that none of the cases provided by the prosecution had disclosed that the sentencing judge had compelled production of financial documents from the offenders; rather that the evidence had been provided voluntarily by the offender.

[31] Furthermore, Broomfield contends that the search warrant provisions in s. 487 of the Criminal Code or s. 158 of the Provincial Offences Act, provide a mechanism based on prior judicial authorization, for obtaining the financial information or evidence sought by the prosecution. However, Broomfield submits that before such warrants can be granted there is a requirement that there be reasonable and probable grounds. As such, Broomfield contends that the prosecution's application requesting that Broomfield be compelled to disclose or produce to the prosecution his personal, as well as his business's financial documents, circumvents the search warrant process, which also bypasses the checks and balances that go hand-in-hand with prior judicial authorization based on reasonable and probable grounds. As such, Broomfield contends that the prosecution's application may be viewed as an attempt to circumvent the search warrant provisions of the Criminal Code and the Provincial Offences Act, and thereby avoids s. 8 Charter scrutiny.

[32] Broomfield also contends that the prosecution's application is premature and that they have gotten the cart before the horse, since the sentencing hearing has not even commenced, and also because Broomfield may in any event agree to the sentence sought by the prosecution. However, at this point, Broomfield submits that he does not even know what the prosecution is seeking for a sentence.

[33] Furthermore, Broomfield submits that s. 57(3) of the Provincial Offences Act in plain language specifically prohibits the order being sought by the applicant and is a complete answer to the prosecution's application, since s. 57(3) expressly allows for a sentencing court to inquire about the economic circumstances of the offender at the sentencing hearing, but it also clearly expresses that the offender is not legally obligated or compelled to answer. In addition, Broomfield acknowledges that if he does rely on an inability to pay a fine, then it would be incumbent on him to call evidence on that inability to pay the proposed fine, and that if he fails to call any evidence on his inability to pay, then Broomfield understands that the trial judge could reasonably infer that Broomfield would indeed have the ability to pay the proposed fine. Furthermore, Broomfield submits that the relief sought by the prosecution is not supported by the relevant legislation or caselaw, and if granted, would violate the respondent's right to remain silent, as held in R v. Wells, [2003] O.J. No. 2025 (Ont. C.J.), at para. 20.

[34] Accordingly, Broomfield argues that the plain meaning reading of s. 57(3) makes it clear that he cannot be compelled to answer questions put to him. Therefore, on those grounds, Broomfield requests an order dismissing the Crown's application for an order compelling production of Broomfield's financial documentation.

[35] However, the prosecution in response to the argument that Broomfield cannot be compelled to produce his personal, as well as his business's financial documents, contends that the s. 57(3) protection only applies to Broomfield's oral testimony at the sentencing hearing and not to processes that do not involve Broomfield giving testimony at the sentencing hearing.

[36] And, in reply to Broomfield's self-incrimination and search warrant argument opposing an order compelling the production of Broomfield's financial documents to the prosecution, the prosecution submits that Broomfield misunderstands the prosecution's request, as the purpose behind s. 158 of the Provincial Offences Act is to empower a justice to issue a search warrant where there are reasonable grounds to believe that the search will provide evidence of an offence that has not been proven in court. In other words, the prosecution argues that the prosecution's request is not an attempt to circumvent the search warrant provisions under s. 158 of the Provincial Offences Act or s. 487 of the Criminal Code in order to obtain evidence with respect to an offence that has not been proven in court, since Broomfield has already been found guilty of committing two offences under the Electricity Act, 1998, and that the purpose of the prosecution's request is not to obtain incriminating evidence, but rather to acquire financial documents to assist in determining the appropriate penalty. Furthermore, the prosecution submits that courts have recognized that defendants have different rights in a sentencing hearing than they would have before they had been convicted. In addition, the prosecution submits that courts have also held that s. 11(c) of the Charter does not apply during a sentencing hearing, since the offender is no longer "a person charged with an offence" once they have been convicted: R. v. M. (I.G.) [R. v. McPherson], [1997] N.W.T.J. No. 29 (N.W.T.S.C.), at paras. 7 and 8.

4. ANALYSIS

(A) Why Are Broomfield's Personal, As Well As His Business's Financial Documentation, Necessary And Relevant To The Determination Of A Fit And Just Sentence?

[37] The prosecution submits that it cannot fulfill its duty in suggesting an appropriate sentence, nor in the same vein, can the sentencing court fulfil its mandate of determining a fit and appropriate sentence without knowing the financial circumstances of the offender. Ergo, are Broomfield's personal, as well as his business's financial documents, relevant to the proper determination of Broomfield's sentence?

[38] Under 113.20(1)(d) of the Electricity Act, 1998, S.O. 1998, c. 15, Sch. A., Broomfield is subject to a maximum fine of $50,000 or to a period of imprisonment of not more than one year, or to both a fine and a period of imprisonment, respectively for each of Broomfield's two convictions.

[39] Therefore, if Broomfield were to be fined for committing the two offences he had been convicted of, then one of the key factors to consider in determining a fit and appropriate sentence is Broomfield's ability to pay a fine within a reasonable time.

(1) A sentencing court for a criminal offence is legally required to investigate an offender's "ability to pay" before imposing a fine.

[40] The importance and determination of an offender's "ability to pay" a fine for criminal offences had been considered by the Supreme Court of Canada in R. v. Topp, 2011 SCC 43, [2011] S.C.J. No. 43. In that case, the Supreme Court had to be decide whether the trial judge, who had not imposed a fine against the convicted owner of a customs brokerage business that had misappropriated $4.7 million dollars from his business, had erred in law in declining to impose a fine. The Supreme Court had to also determine whether the trial judge had been legally bound to impose a fine, especially when the convicted owner, Topp, had failed to reasonably explain what had happened to that ill-gotten $4.7 million dollars. The trial judge in the Topp case had not imposed a fine, as she had not been persuaded that Topp had the ability to pay a fine sought by the Crown due to the lack of any evidence of Topp's ability to pay a fine, even though Topp had taken and defrauded an amount of $4.7 million dollars. Fish J., writing for the Supreme Court, had held at paras. 9 to 20 in R. v. Topp, that as a matter of law, the court cannot impose a fine unless it is satisfied that the offender is able to pay, which necessarily involves an affirmative finding based on the evidence and information that is properly before the court. In short, Fish J. had held that the sentencer must be satisfied that the offender is able to pay the contemplated fine before the fine could legally be imposed. Moreover, Fish J. had noted that the legislative purpose behind the fine provisions in the Criminal Code had been to prevent offenders from being fined amounts in which they would be truly unable to pay, and to correspondingly reduce the number of offenders who would be incarcerated for defaulting in the payment of fines. In addition, Fish J. had emphasized that the effect of the fine provision in the Criminal Code had been previously described in R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, at para. 47, as the situation where Parliament had rejected in general the notion that a fine should be set without regard to an offender's ability to pay. And, as such, Fish J. noted that a "means inquiry" is now a condition precedent to the imposition of a fine except where otherwise provided by law:

Mr. Topp was the owner and manager of Topp Customs Services Inc., a brokerage business that helped importers determine and satisfy their customs obligations. Between 1999 and 2001, on more than 400 separate occasions, he instead helped himself to a total of more than $4.7 million entrusted to his firm for that purpose. In each instance, Topp Customs collected from its clients the duties and taxes properly payable to the government, but submitted false documents to Canada Customs indicating that the clients owed little or nothing.

Mr. Topp was convicted at trial of 16 counts of fraud and attempted fraud under s. 153 (c) of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). His convictions are not in issue.

The sole issue on this appeal is whether the trial judge, Baltman J., erred in law in declining to impose a fine, pursuant to the Crown's request. More particularly, the decisive question is whether Judge Baltman misapplied s. 734(2) of the Criminal Code. More particularly still, the question is whether Judge Baltman was bound to impose a fine in light of Mr. Topp's failure to explain what had happened to the $4.7 million he was found by the judge to have misappropriated.

Section 734(2) provides:

734....

(2) Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.

Section 736 provides that "[a]n offender who is fined under section 734 may ... discharge the fine in whole or in part by earning credits for work performed during a period not greater than two years in a [provincial] program established for that purpose". Ontario has not established such a program. Accordingly, unless the judge was satisfied that Mr. Topp was able to pay the fine, no fine could legally be imposed.

Judge Baltman declined to impose a fine. After considering counsels' submissions, she explained her conclusion this way:

There is virtually no information about what Mr. Topp did with the stolen funds; the Crown attempted to trace the funds and found that some monies had been transferred to a bank account in Antigua, but there was nothing left to re-cover. Mr. Topp appears to have few tangible assets, and so where the money went remains a mystery.

... As I am not persuaded the accused has the ability to pay a fine, none is imposed. [paras. 6 and 33]

Subject to s. 734(2), the court may impose a fine "in addition to or in lieu of any other sanction" that the court is required or authorized to impose (s. 734(1)(a)).

In this case, the Crown urged the court to impose a fine in addition to a lengthy term of imprisonment. In other cases, the offender seeks the imposition of a fine in lieu of a more severe punishment. Moreover, the court may impose a fine where none is requested by either side. Section 734(2) applies in all three instances: The court can only impose a fine if it is satisfied, on the basis of the record before it, that the offender has the means to pay the contemplated fine (or to discharge it under s. 736).

The legislative purpose behind s. 734(2) is to prevent offenders from being fined amounts that they are truly unable to pay, and to correspondingly reduce the number of offenders who are incarcerated in default of payment. In proposing its adoption in 1994, the then-Minister of Justice explained the rationale behind s. 734(2) this way:

[TRANSLATION] At the present time, nearly a third of the people liable to incarceration in provincial jails are in that situation because they did not pay fines ....

The bill recognizes this situation.

These provisions state that the court must be convinced that the offender can pay the fine contemplated before imposing it.

(House of Commons Debates, vol. 133, 1st Sess., 35th Parl., September 20, 1994, at p. 5872)

And the effect of the provision was thus described by this Court in R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, at para. 47:

... Parliament rejected in general the notion that a fine should be set without regard to an offender's ability to pay. A means inquiry is now a condition precedent to the imposition of a fine except where otherwise provided by law.

An affirmative finding that an offender is able to pay is therefore required before a fine can be imposed. In the absence of evidence capable of supporting that finding, the party seeking a fine cannot succeed.

[41] However, even before the Supreme Court had held that a sentencing court for a criminal matter should only impose a fine where an offender has the ability to pay, Martin J.A. for the Court of Appeal for Ontario in R. v. Snider, (1977), 37 C.C.C. (2d) 189, [1977] O.J. No. 996 (Ont. C.A.), had similarly held, at paras. 6 and 7, that where a fine is an appropriate disposition, the trial judge should only impose a fine that is within the offender's ability to pay, bearing in mind of the possibility that the trial judge may extend the time for payment; otherwise a custodial sentence would result from an inability to pay the fine:

Counsel for the Crown does not dispute that the appellant is unable to pay the fine imposed. Having, decided that a fine is an appropriate disposition, the trial judge should only impose a fine that is within the offender's ability to pay, bearing in mind of course, the possibility that he may extend the time for payment. Otherwise a custodial sentence results from inability to pay the fine.

We have carefully considered whether we ought in this case to substitute a custodial sentence in lieu of the fine imposed by the trial judge on the basis that it was an inappropriate disposition, as was done in Regina v. Hall (1968) 52 Cr. App. R. 736. We think, however, in the particular circumstances of this case, that we should not interfere with the trial judge's discretion in imposing a fine. Since, however, the fine exceeds the appellant's ability to pay we have concluded that we should allow the appeal, reduce the fine to the sum of $2,400, payable over a period of two years, and in default of payment the appellant is to be imprisoned for three months, and, in addition, the appellant will be placed on probation for two years on the statutory conditions. The appeal is allowed to give effect to this variation.

(a) A sentencing court for a criminal offence is legally required to conduct a "means inquiry" before imposing a fine.

[42] Ergo, as held by the Supreme Court in R. v. Topp, 2011 SCC 43, [2011] S.C.J. No. 43, the sentencing court as a matter of law cannot impose a fine for a criminal offence unless it is satisfied that the offender is able to pay. Moreover, the Supreme Court confirmed that a "means inquiry" is now a condition precedent to the imposition of a fine for a criminal offence, except where it is otherwise provided by law. Furthermore, the Supreme Court in Topp recognized that as a matter of practice, that the party seeking the fine has the burden to establish the ability to pay the fine being sought. But more importantly, the Supreme Court held in Topp that in a sentencing hearing, offenders do not have a formal evidential or persuasive burden of proof that they are unable to pay a fine, but nevertheless an offender is entitled to present any evidence or information admissible on sentence that tends to show that the offender is unable to pay. In addition, the offender remains free to argue that the evidence relied on by the proponent of the fine should not satisfy the court that the offender is able to pay. Additionally, the Supreme Court held in Topp that in determining whether the record contains sufficient evidence to satisfy the sentencing court that the offender can afford to pay the contemplated fine, the sentencing judge must be satisfied, on a balance of probabilities, of the offender's ability to pay.

[43] In addition, Martin J.A. for the Court of Appeal for Ontario had held at para. 5 in R. v. Rasper, [1978] O.J. No. 334 (Ont. C.A.), that it is an error in principle if the trial judge imposes a fine for a criminal offence without making any investigation to assure that a fine of a certain magnitude could be paid by the appellant:

In our view, the trial judge erred in principle in imposing a fine of $25,000 without making any investigation to assure himself that a fine of that magnitude could be paid by the appellant.

[44] Furthermore, in R. v. Ward (1980), 56 C.C.C. (2d) 15, the Court of Appeal for Ontario held at para. 10, that where a fine is an appropriate penalty for a criminal offence, a fine should not be imposed without having regard to the means of the offender and without having regard to whether it can be paid within a reasonable time. In addition, the Court of Appeal confirmed that it would be an error in principle to not impose a custodial sentence and instead impose a fine in lieu of a custodial sentence, where a custodial sentence is required to be imposed following a conviction:

We would also observe that, where a fine is an appropriate penalty, a fine of such magnitude should not be imposed, that having regard to the means of the offender, it cannot be paid within a reasonable time. In our view, the imposition of a fine in lieu of a custodial sentence in this case reflects an error in principle. The principle has been clearly expressed by this Court on many occasions, and by other appellate courts in Canada that, save in exceptional circumstances, a custodial sentence is required to be imposed following a conviction for trafficking in the more dangerous drugs, of which Methamphetamine is one. We are of the view that there were, at the time of sentencing, no exceptional circumstances which justified a departure from that principle in the present case, having regard to the nature of the drug, the quantity involved and the obvious commercial nature of the transaction. The fact that the offender had, during the interval between the commission of the offence and his trial, rid himself of his drug dependency, was a mitigating circumstance but not an exceptional circumstance, nor was the fact that he was at the time of sentence gainfully employed an exceptional circumstance although it was a factor which was entitled to due weight.

(i) Before imposing a fine, should the sentencing court for a regulatory offence also make inquiries about the offender's ability to pay?

[45] Even though the Supreme Court had held that a "means inquiry" was legally required before a sentencing court could impose a fine on an offender convicted of a criminal offence, is the same "means inquiry" required to be undertaken by a sentencing court of an offender for a regulatory offence before a fine can also be imposed?

[46] Moreover, while considering an appeal of sentence for a regulatory offence, Justice Lane confirmed in R. v. Wells, [2003] O.J. No. 2025 (Ont. C.J.), at paras. 20 to 23, that it is indeed an error in principle for the sentencer to impose a fine without conducting an investigation into the offender's ability to pay, or to impose a fine which the offender lacks the means to pay within a reasonable time. However, as it pertains to the present application by the prosecution, Justice Lane also emphasized that the sentencing judge has the jurisdiction to ask questions of the offender, but that such power is not unconstrained, as questions about the offence cannot be asked of the offender, since this could lead to the offender volunteering information that could put the offender into greater jeopardy. Moreover, Justice Lane pointed out that at all stages in the court process, the defendant has a right to remain silent, and cannot be made a compellable witness against himself, or be required to incriminate himself. Lane J. also noted that s. 57(3) of the Provincial Offences Act made it quite clear that the defendant could not be compelled to answer questions put to him. In addition, Lane J. confirmed that the power under s. 57(3) is directed particularly to the financial circumstances of the defendant, so that a defendant's capacity to pay can be considered in imposing an appropriate sentence and that it would be an error in principle for the sentencing court to impose a fine without conducting an investigation into the defendant's ability to pay, or to impose a fine which the defendant would lack the means to pay within a reasonable time:

The conduct of the sentencing hearing raises significant concerns. The crown made no submissions as to sentence, and put forth no aggravating facts upon which sentence should be based. As the appellant was unrepresented, the presiding Justice proceeded to ask questions on which to base his sentence. As required by s. 57(1) of the Provincial Offences Act, he asked the defendant if he had anything to say before sentence is passed. Section 57(3) of the P.O.A. also provides that

"the court may make such inquiries, on oath or otherwise, of and concerning the defendant as it considers desirable, including the defendant's financial circumstances, but the defendant shall not be compelled to answer."

Although the Justice clearly has jurisdiction to "make inquiries" as indicated, his power to do so is not unconstrained. Questions can be asked about the defendant, but not about the offence: Drinkwater and Ewart, Ontario Provincial Offences Procedure, Carswell, 1980, p. 218. This is an important distinction. Questions about the offence are inappropriate as they can (as they did in this case) lead to the defendant "volunteering" additional information which can place him or her in greater jeopardy. This violates the fundamental principle that, at all stages in the court process, the defendant has a right to remain silent, and cannot be made a compellable witness against himself, or be required to incriminate himself. The statute itself makes it clear that the defendant cannot be compelled to answer questions put to him.

The power under s. 57(3), furthermore, is directed particularly to the financial circumstances of the defendant, so that his capacity to pay can be considered in imposing an appropriate sentence. It has been found, for example, that it is an error in principle to impose a fine without an investigation into the defendant's ability to pay, or to impose a fine which he or she lacks the means to pay within a reasonable time: Czumak v. Etobicoke (City), [1994] O.J No. 2247, September 16, 1994, Fairgrieve J., Ont. Prov. Ct.

In this case, the presiding jurist made no inquiries about Mr. Wells, nor about his financial circumstances. At the conclusion of the sentencing hearing, we know nothing about who he is, what his circumstances were since 1992, what he does for a living, nor how much (if anything) he earns. …

[47] Moreover, in Real Estate Council Of Ontario v. Wang, [2013] O.J. No. 4294 (Ont. C.J.), Fairgrieve J. held, at para. 22, that the principles from the criminal law for the determination of whether a fine should be imposed would equally apply in the sentencing of an offender for a regulatory offence. Fairgrieve J. also identified the principle that applies when a fine is an appropriate penalty, which is that the sentencing judge should only impose a fine that is within the offender's ability to pay within a reasonable time. Moreover, Fairgrieve J. held that it would be an error in principle for a sentencing judge to impose a fine without inquiring into the offender's financial circumstances, as contemplated by s. 57(3) of the Provincial Offences Act, as well as an error in principle to impose fines that were clearly excessive and well beyond the offender's ability to pay:

There is no confusion about the principles that apply in a criminal case to the imposition of fines. In R. v. Ward (1980), 56 C.C.C. (2d) 15 at p. 18 (Ont. C.A.), Martin J.A. stated that "where a fine is an appropriate penalty, a fine of such magnitude should not be imposed, that having regard to the means of the offender, it cannot be paid within a reasonable time." Similarly, in R. v. Snider (1977), 37 C.C.C. (2d) 189 at p. 190 (Ont. C.A.), Martin J.A. also stated that having decided that a fine is an appropriate disposition, "the trial judge should only impose a fine that is within the offender's ability to pay, bearing in mind, of course, the possibility that he may extend the time for payment." I see no reason why sentences for regulatory offences should involve a different principle. I am satisfied that in the circumstances here, the justice of the peace erred in principle both by failing to inquire into the defendants' financial circumstances, as contemplated by s. 57(3) of the P.O.A., and also by going on to impose fines that were clearly excessive and well beyond their ability to pay. The fines, in my view, were totally disproportionate to the gravity of the offences they had committed and would cause undue financial hardship to both the defendants and their numerous dependents.

[48] Also, in Czumak v. Etobicoke (City), [1994] O.J No. 2247 (Ont. Ct. (Prov. Div.)), at para. 56, Fairgrieve J., in referencing s. 57(3) of the Provincial Offences Act, had held that it is an error in principle to impose a fine without conducting an investigation into the offender's ability to pay it or to impose a fine for which the offender lacks the means to pay within a reasonable time. Fairgrieve J. also explained that s. 57(3) of the Provincial Offences Act provides the sentencing court with the power to make inquiries about the offender's economic circumstances as it considers desirable:

It is an error in principle to impose a fine without an investigation into the defendant's ability to pay it, or to impose a fine which he or she lacks the means to pay within a reasonable time: see R. v. Ward (1980), 56 C.C.C. (2d) 15 (Ont. C.A.), and R. v. Snider (1977), 37 C.C.C. (2d) 189 (Ont. C.A.). As well, s. 57(3) of the Provincial Offences Act provides that the court may make such inquiries concerning the defendant's economic circumstances as it considers desirable. In this case, after the prosecutor's submissions concerning sentence, Mr. Czumak stated simply, "I can't afford those fines". He went on to explain that he and his brother did not have any assets, and that their company was almost insolvent Mr. Czumak stated that they had not been paid for their last three projects. As well, although the prosecutor referred to evidence that the defendants' parents had purchased the house for $220,000 and that it was then listed for sale at $449,000, Mr. explained that with the cost of the property and the construction, there would be Czumak little profit. The purpose of the project had been to demonstrate their workmanship to obtain spin-off work, and because the house had been over-improved for the area, their margin was very slim.

[49] Ergo, before imposing a fine as a penalty, a sentencing court for a regulatory offence is also required in principle to investigate or make inquiries that it considers desirable about the offender's economic circumstances in respect to their ability to pay a fine, especially if there is no evidence in the record about the offender's ability to pay a fine within a reasonable period.

(2) Who has the burden to prove an offender's ability to pay a fine?

[50] Fish J. for the Supreme Court in R. v. Topp, 2011 SCC 43, [2011] S.C.J. No. 43, at paras. 21 and 22, had also considered whether there is a legal or persuasive burden imposed on the prosecution to prove that the offender of a criminal offence has the ability to pay the proposed fine. On that issue, Fish J. held that even though the fine provisions in the Criminal Code did not formally place a legal burden on the proponent seeking a fine, there is nevertheless a burden on the party seeking the fine as a practical matter, since the court cannot impose a fine as a matter of law unless it is satisfied that the offender is able to pay. And, in order to discharge that burden, Fish J. held that the proponent of the fine may rely on all the relevant material before the court on sentencing -- including evidence or information provided by any other party, or otherwise properly elicited by the judge pursuant to the fine provisions in the Criminal Code. In addition, Fish J. held that in determining whether the record contains sufficient evidence to "satisfy" the court that the offender can afford to pay the contemplated fine, the trial judge must be satisfied, on a balance of probabilities, of the offender's ability to pay:

Section 734(2) does not impose a formal burden of proof on the party seeking a fine. As a practical matter, however, it does so to this extent. As a matter of law, the court cannot impose a fine unless it is satisfied that the offender is able to pay. This necessarily involves an affirmative finding based on the evidence and information properly before the court pursuant to ss. 720 to 724 of the Criminal Code. Absent a sufficient basis for that finding, the party seeking the fine cannot legally succeed.

In this sense, s. 734(2) imposes a burden on the party seeking the fine to satisfy the court that the offender is able to pay. To discharge that burden, the proponent of the fine may rely on all the relevant material before the court on sentencing -- including evidence or information provided by any other party, or otherwise properly elicited by the judge pursuant, for example, to s. 723(3) of the Criminal Code.

[51] Accordingly, for offences under the Criminal Code, if the Crown is proposing that a fine be imposed against the offender as an appropriate sentence, then it has to satisfy the sentencing court that the offender is able to pay by relying on all the relevant material before the court on sentencing, including evidence or information provided by any other party, or otherwise properly elicited by the sentencing judge.

(a) What is the standard of proof for proving that the offender has the ability to pay a fine?

[52] In R. v. Topp, 2011 SCC 43, [2011] S.C.J. No. 43 (S.C.C.), at paras. 24 to 26, Fish J. held that in determining whether the record contains sufficient evidence to "satisfy" the court that the offender can afford to pay the contemplated fine for a criminal offence, the trial judge must be satisfied on a "balance of probabilities" of the offender's ability to pay:

In determining whether the record contains sufficient evidence to "satisfy" the court that the offender can afford to pay the contemplated fine, the trial judge must be satisfied, on a balance of probabilities, of the offender's ability to pay. The balance of probabilities standard is appropriate, in the context of s. 734(2), for two reasons.

First, as a logical matter, the word "satisfied" in this context cannot signify anything less than the balance of probabilities standard. It would make little sense for a trial judge to be satisfied that an offender could pay a contemplated fine, but not believe that the offender was, more likely than not, able to pay it.

Second, the balance of probabilities standard accords with s. 724(3)(d) of the Code. Section 724(3)(d) states:

724....

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence ...

Paragraph (e) states that aggravating facts must be proved by the Crown beyond a reasonable doubt. The finding that an offender is able to pay a fine is not an aggravating fact.

(b) Does an offender have any evidential or persuasive burden to prove an inability to pay a fine?

[53] In R. v. Topp, 2011 SCC 43, [2011] S.C.J. No. 43 (S.C.C.), at paras. 23 and 36, Fish J. had also considered whether Parliament had explicitly placed an evidentiary burden on the offender to prove an inability to pay a fine as a penalty for a criminal offence, since the offender is in a better position to obtain and adduce relevant evidence about their finances. In resolving that question, Fish J. indicated that even though Parliament had well understood that the offender would be better positioned to produce evidence of their finances than the Crown, Parliament had nonetheless explicitly chosen to require an affirmative finding that the offender is able to pay a fine, rather than requiring the offender who opposes a fine to satisfy the court that they are unable to pay a fine. On the other hand, Fish J. held that the party opposing a fine -- often, but not always, the offender -- is entitled, of course, to present any evidence or information admissible on sentence and tending to show that the offender is unable to pay. However, Fish J. noted that the party, in opposing the fine, does not assume a formal evidential or persuasive burden of proof, but that he or she remains free to argue that the evidence relied on by the proponent of the fine should not satisfy the court that the offender is able to pay:

The party opposing a fine -- often, but not always, the offender -- is entitled, of course, to present any evidence or information admissible on sentence and tending to show that the offender is unable to pay. But that party, in opposing the fine, does not assume a formal burden of proof -- evidential or persuasive. He or she remains free to argue that the evidence relied on by the proponent of the fine should not satisfy the court that the offender is able to pay.

Second, the Crown's argument disregards the text of s. 734(2). It may be desirable from a truth-seeking perspective to place an evidentiary onus on the party that is best positioned to produce evidence. Parliament well understood that the offender is better positioned to produce evidence of his finances than the Crown. But Parliament has nonetheless explicitly chosen to require an affirmative finding that the offender is able to pay a fine, instead of requiring the offender who opposes a fine to satisfy the court that he or she is unable to pay.

[54] Ergo, on the admissible evidence, the sentencing judge must be satisfied on a balance of probabilities that the offender is able to pay a fine before imposing a fine, while the offender has no legal or evidential burden to prove an inability to pay a fine and can simply argue that the evidence on record relied on by the prosecution, who is seeking the fine, should not satisfy the court that the offender is able to pay. However, despite not having a legal or evidential burden to prove an inability to pay, the offender is still entitled to present or adduce any evidence or information admissible in the sentencing hearing that would tend to show that the offender is unable to pay a fine.

(3) Can a sentencing court infer that an offender has the ability to pay a fine based on the funds or moneys obtained by the offender during the commission of the offence?

[55] Fish J. also held in R. v. Topp, at paras. 27 to 29, that in the absence of a reasonable explanation of what had happened to the misappropriated funds or funds obtained by the offender in respect to the offences that he has been convicted of, the sentencing judge could infer that the offender was still in possession of sufficient funds to pay a fine at the time of sentencing. However, Fish J. also held in R. v. Topp that a sentencing judge is not bound or permitted as a matter of law to find that an offender still possesses the fruits of the offence, based simply on the offender's failure to explain what had happened to the funds:

In the absence of a reasonable explanation to the contrary, past receipt of illegally obtained funds will often -- but not always -- support an inference that the offender still possesses sufficient funds to pay a fine at the time of sentencing: R. v. Grimberg (2002), 155 O.A.C. 296, at paras. 17-20; R. v. Desjardins (1996), 182 N.B.R. (2d) 321 (C.A.), at para. 29; R. v. Dow (1976), 1 C.R. (3d) S.-9 (B.C.C.A.), at pp. S.-14 to S.-15; R. v. Noseworthy, 2000 NFCA 45, 192 Nfld. & P.E.I.R. 120, at para. 21; R. v. Guppy (1995), 16 Cr. App. R. (S.) 25 (C.A.). See also R. v. Johnson, 2010 ABCA 392, 493 A.R. 74, at para. 23; R. v. Castro, 2010 ONCA 718, 102 O.R. (3d) 609, at para. 34, which deal with restitution orders, a related but different matter.

As stated earlier, the strength of that inference will depend on the circumstances and vary from case to case. None of the cases mentioned have addressed the issue in the precise circumstances of this case. Nor have they fully canvassed the legal issue before us on this appeal: Is a trial judge not only permitted, but bound as a matter of law, to find that an offender still possesses the fruits of his crime, unless the offender explains what happened to the funds?

I would answer that question in the negative, essentially for two reasons.

(a) Does an offender have to provide a reasonable explanation of what had happened to any funds or moneys that had been obtained by the offender during the commission of the offence?

[56] On the question of whether an offender at a sentencing hearing of a criminal offence has to provide a reasonable explanation of what had happened to the funds or moneys that had been obtained by the offender during the course of committing the offence, Fish J. held in R. v. Topp at paras. 33 to 36, that even though it may be desirable from a truth-seeking perspective to place an evidentiary onus on the party that is best positioned to produce evidence, Parliament had nonetheless explicitly chosen through s. 734(2) of the Criminal Code to require the sentencing court to make an affirmative finding that the offender is able to pay a fine, instead of requiring the offender who opposes a fine to satisfy the court that he or she is unable to pay, despite Parliament having understood that the offender is in a better position to produce evidence of their finances than the Crown:

The Crown submits that the offender bears an onus to explain what happened to the funds because the offender is in a better position to obtain and adduce relevant evidence than the Crown. …

This submission is attractive at first glance but loses its appeal on closer scrutiny.

First, the Crown is not required to identify or locate the specific assets that the offender can use to pay the fine, though direct evidence of this sort, when available to the Crown, is by its nature particularly persuasive. In its absence, the Crown may instead rely on various types of indirect evidence to satisfy the trial judge of the offender's ability to pay -- including evidence that the offender had possession of impugned funds in the relatively recent past, evidence of an ongoing lavish lifestyle, and evidence of the offender's earning potential.

Second, the Crown's argument disregards the text of s. 734(2). It may be desirable from a truth-seeking perspective to place an evidentiary onus on the party that is best positioned to produce evidence. Parliament well understood that the offender is better positioned to produce evidence of his finances than the Crown. But Parliament has nonetheless explicitly chosen to require an affirmative finding that the offender is able to pay a fine, instead of requiring the offender who opposes a fine to satisfy the court that he or she is unable to pay.

(b) Is the prosecution required to locate and trace the funds or moneys that had been obtained by the offender during the commission of the offence?

[57] On the question of whether the Crown is required to locate and trace the funds that had been obtained by the offender, Fish J. had held at para. 35 in R. v. Topp, that the Crown is not required to identify or locate the specific assets that the offender can use to pay the fine, although direct evidence of this sort, when available to the Crown, is by its nature particularly persuasive of the offender's ability to pay. Fish J. also held, that in the absence of any evidence of specific assets that the offender could use to pay the fine, the Crown may instead rely on various types of indirect evidence to satisfy the trial judge of the offender's ability to pay -- including evidence that the offender had possession of the impugned funds in the relatively recent past, through evidence of an ongoing lavish lifestyle, as well as evidence of the offender's earning potential:

… the Crown is not required to identify or locate the specific assets that the offender can use to pay the fine, though direct evidence of this sort, when available to the Crown, is by its nature particularly persuasive. In its absence, the Crown may instead rely on various types of indirect evidence to satisfy the trial judge of the offender's ability to pay -- including evidence that the offender had possession of impugned funds in the relatively recent past, evidence of an ongoing lavish lifestyle, and evidence of the offender's earning potential.

(c) How should a sentencing court weigh an offender's explanation on what had happened to funds or moneys that had been obtained by the offender during the commission of the offence?

[58] Fish J. explained at paras. 28 to 32 in R. v. Topp, that the strength of the inference that the offender has the ability to pay, which is based on funds or moneys obtained by the offender from the commission of the criminal offence, will depend on the circumstances and will vary from case to case. And, in deciding how much weight to reasonably attribute to the past receipt of funds in respect to an offender's ability to pay, Fish J. noted that it would vary with at least two factors: (1) the length of time that has passed between the acquisition of the funds and the imposition of sentence, and (2) the amount of funds acquired. Fish J. further explained that the more time that has passed since the acquisition of the funds, the less likely it is that the offender still possesses the full amount, and that the lower the amount of funds acquired, the less likely it is that the offender still possesses much or all of the funds. In other words, Fish J. held that the proof of past receipt of funds is not always conclusive of a present ability to pay:

As stated earlier, the strength of that inference will depend on the circumstances and vary from case to case. None of the cases mentioned have addressed the issue in the precise circumstances of this case. Nor have they fully canvassed the legal issue before us on this appeal: Is a trial judge not only permitted, but bound as a matter of law, to find that an offender still possesses the fruits of his crime, unless the offender explains what happened to the funds?

I would answer that question in the negative, essentially for two reasons.

First, in my view, the weight reasonably attributable to the past receipt of funds will vary with at least two factors: the length of time that has passed between the acquisition of the funds and the imposition of sentence, and the amount of funds acquired. The more time that has passed since the acquisition of the funds, the less likely it is that the offender still possesses the full amount. And the lower the amount of funds acquired, the less likely it is that the offender still possesses much or all of the funds. A small sum is more likely than a large sum to be gone in its entirety.

Sentencing courts must retain their accepted measure of discretion in determining how much weight they should assign to proof of past possession, bearing in mind the variables I have mentioned and other factors they find relevant in the particular circumstances of the case. For example, where much time has passed and little money was stolen, past possession alone may not satisfy the court -- even in the absence of an explanation by the offender -- that the offender can still pay the fine. On the other hand, recent possession of a large sum will generally suffice, in the absence of a credible explanation, to satisfy the court that the offender still controls a significant chunk of the stash. In both cases, the past acquisition of fraudulently obtained funds will have the same probative effect as past possession of legally acquired assets.

Second, the text of s. 734(2) and the legislative intention to avoid the incarceration of offenders who are truly unable to pay their fines support the conclusion that proof of past receipt is not always conclusive of a present ability to pay. Under s. 734(5), Mr. Topp would receive a substantial prison term if he defaulted on the $4.7 million fine and was unable to show at the time of default that he no longer possessed the fraudulently obtained funds. It seems to me more consistent with the text and purpose of s. 734(2) to permit trial courts to discharge their duty under that remedial provision judicially. And this they cannot do without determining for themselves whether they are satisfied, in light of all the circumstances and the materials placed before them, that the offender is able to pay a fine.

(4) In the circumstances, would Broomfield's personal, as well as his business's financial documents, assist the prosecutor and the sentencing court for the purposes of sentencing?

[59] Undoubtedly, having Broomfield's personal, as well as his business's financial documents, would assist the prosecutor in suggesting an appropriate fine. It would also be necessary and relevant information for this court to consider in determining a fit and just sentence, since it is a principle of sentencing that this court cannot impose a fine unless it has conducted an inquiry of or an investigation into Broomfield's economic circumstances to assess his ability to pay a fine.

(B) Does A Sentencing Court For A Regulatory Offence In Ontario Have The Jurisdiction Or Power To Compel An Offender To Disclose Or Produce Their Personal, As Well As Their Business's Financial Documents, To The Prosecution For Sentencing Purposes?

[60] Even though s. 57(3) of the Provincial Offences Act does not specifically and expressly provide this court with the authority to compel an offender to produce their financial documents to the prosecution for the purpose of sentencing, the prosecution nevertheless contends that since s. 57(3) explicitly permits this court to inquire into Broomfield's economic circumstances to determine his ability to pay a fine, it necessarily follows that s. 57(3) also implicitly provides this court the jurisdiction and power to compel Broomfield to produce or disclose to the prosecution his financial documents for the purposes of sentencing under the "doctrine of jurisdiction by necessary implication".

[61] Ergo, s. 57(3) will have to be properly construed to determine if such an implied power would be available to this court for compelling an offender to produce or disclose to the prosecution their financial documents for the purposes of sentencing, and also whether it would be a necessary power for this court to have in order fulfill its mandate in determining a fit and just sentence.

(1) The Principles Of Statutory Interpretation.

[62] Interpreting a statutory provision for a precise meaning does not simply require looking at the plain or literal meaning of each individual word within the statutory provision in isolation. As the Supreme Court held in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at pp. 40 to 41, courts should use the "modern principled approach" instead of the "plain meaning approach", when they are required to interpret or construe the meaning of a particular statutory provision, which requires that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislators who enacted the statutory provision:

Although much has been written about the interpretation of legislation (see, e.g. Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[63] In addition, in her textbook, Statutory Interpretation (Toronto, Ontario: Irwin Law Inc., 1997), at pp. 54 and 134, Professor Ruth Sullivan emphasized that interpreters of legislative text must identify and take into account the purpose of legislation, as well as analyzing the words to be interpreted in context, and that modern legislation is also written in a form that lends itself to purposive analysis:

The meaning of a legislative text is determined by analysing the words to be interpreted in context. Words are analysed in their immediate context by focusing on the specific provision in which the words appear and attempting to understand the reasons why the legislature has chosen this combination of words, this structure, this punctuation, and so on. Words are also analysed in larger contexts by comparing the wording of the provision to be interpreted with the wording of provisions elsewhere in the same or other Acts and by considering the role of the provision in the scheme to which it belongs.

To achieve a sound interpretation of a legislative text, interpreters must identify and take into account the purpose of legislation. This includes the purpose of the provision to be interpreted as well as larger units - parts, divisions, and the Act as a whole. Once identified, the purpose is relied on to help establish the meaning of the text. It is used as a standard against which proposed interpretations are tested: an interpretation that promotes the purpose is preferred over one that does not, while interpretations that would tend to defeat the purpose are avoided.

[64] Furthermore, as it applies to the present application, the Court of Appeal for Ontario in R. v. Fercan Developments Inc., 2016 ONCA 269, [2016] O.J. No. 1925, at paras. 45 to 48, had explained that in determining if a statutory court is vested with the power to grant a particular remedy that it would depend on an interpretation of its enabling legislation. More importantly, the Court of Appeal held that when ascertaining legislative intent, a court is to keep in mind that such intention is not frozen in time; rather, the court must approach the task so as to promote the purpose of the legislation and render it capable of responding to changing circumstances. Furthermore, the Court of Appeal noted that courts also need to consider the legislative context when interpreting the legislation at issue and that the power being conferred does not have to be absolutely necessary; rather it only needs to be practically necessary for the statutory court:

This court recently considered the "doctrine of jurisdiction by necessary implication" in Pierre v. McRae, 2011 ONCA 187, 104 O.R. (3d) 321. Justice Laskin, at para. 34, noted that a power or authority may be implied: (i) when the jurisdiction sought is necessary to accomplish the objects of the legislative scheme and is essential to the statutory body fulfilling its mandate; (ii) when the enabling act fails to explicitly grant the power to accomplish the legislative objective; (iii) when the mandate of the statutory body is sufficiently broad to suggest a legislative intention to implicitly confer jurisdiction; (iv) when the jurisdiction sought is not one which the statutory body has dealt with through use of expressly granted powers, thereby showing an absence of necessity; or (v) when the legislature did not address its mind to the issue and decide against conferring the power to the statutory body.

Whether a statutory court is vested with the power to grant a particular remedy depends on an interpretation of its enabling legislation: ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 36. When ascertaining legislative intent, a court is to keep in mind that such intention is not frozen in time. Rather, a court must approach the task so as to promote the purpose of the legislation and render it capable of responding to changing circumstances: Dunedin, at para. 38.

Furthermore, as in any other statutory interpretation exercise, courts need to consider the legislative context when interpreting the legislation at issue: ATCO Gas & Pipelines Ltd., at para. 49.

Finally, I note that the power being conferred does not have to be absolutely necessary. It only needs to be practically necessary for the statutory court.

(a) The goals of the Provincial Offences Act.

[65] The object of the Provincial Offences Act is explicitly set out in s. 2(1) of that Act and states that the purpose of the Provincial Offences Act is to replace the summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code of Canada, with a procedure that reflects the distinction between provincial offences and criminal offences:

Purpose of Act

2 (1) The purpose of this Act is to replace the summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code (Canada), with a procedure that reflects the distinction between provincial offences and criminal offences.

(2) General Principles In Respect To Sentencing For Regulatory Or Public Welfare Offences.

(a) Deterrence Must Be Given Paramount Consideration For Public Welfare Offences In Arriving At A Fit And Just Sentence

[66] Cory J. in R. v. Wholesale Travel Group Inc., [1991] S.C.J. No. 79 (S.C.C.), noted, at para. 219, that regulatory schemes can only be effective if they provide for significant penalties in the event of their breach:

Regulatory schemes can only be effective if they provide for significant penalties in the event of their breach. Indeed, although it may be rare that imprisonment is sought, it must be available as a sanction if there is to be effective enforcement of the regulatory measure. Nor is the imposition of imprisonment unreasonable in light of the danger that can accrue to the public from breaches of regulatory statutes. The spectre of tragedy evoked by such names as Thalidomide, Bhopal, Chernobyl and the Exxon Valdez can leave no doubt as to the potential human and environmental devastation which can result from the violation of regulatory measures. Strong sanctions including imprisonment are vital to the prevention of similar catastrophes.

[67] In addition, Blair J.A., for the Court of Appeal for Ontario, in R. v. Cotton Felts Ltd., [1982] O.J. No. 178 (Ont. C.A.), had outlined at paras. 19 to 24 the principal sentencing factor that applies to regulatory or public welfare offences when determining the appropriate sentence is one of deterrence. And, where fines are used as a deterrence, Blair J.A. acknowledged that without being harsh, the fine must be substantial and significant enough to warn others that the offence will not be tolerated and that it must also not appear to be a mere licence fee for illegal activity or a mere slap on the wrist:

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), 49 C.C.C. (2d) 1, per MacKinnon A.C.J.O at p. 26; Nadin-Davis, Sentencing in Canada, p. 368 and cases therein cited.

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), 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), 62 C.C.C. (2d) 1, where my brother Martin said at pp. 160-161:

A careful examination of those reasons satisfies me that he considered 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), 66 C.C.C. (2d) 329. In that case the Court increased a 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 so doing 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. 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.

With reference to these offences, deterrence is not to be taken only In its usual negative connotation of achieving compliance by threat of punishment. Recently my brother Zuber in R. v. Ramdass, a judgment pronounced on November 17, 1982, referred to deterrence in a more positive aspect. There he was dealing with a driving offence and he quoted an earlier unreported decision of this Court in R. v. Roussy, [1977] O.J. No. 1208 (released December 15, 1977), where the Court stated:

But in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the term deterrent in its widest sense. A sentence by emphasizing community disapproval of an act, and branding it as reprehensible has a moral or educative effect, and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.

This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of our society for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare of the public.

(b) The sentence must be proportional.

[68] In R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 40, Lamer C.J., for the Supreme Court of Canada, had emphasized that the fundamental sentencing principle in regards to the quantum of sentence to be imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender:

… It is a well-established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.

[69] Furthermore, in R. v. Angelillo, 2006 SCC 55, [2006] S.C.J. No. 55 (S.C.C.), Charron J., at para. 22, noted that the fundamental principle of proportionality requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender, so that the sentence imposed in such a case would be merely a reflection of the individualized sentencing process:

… The fundamental principle of proportionality requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender; a prior conviction cannot, therefore, justify a disproportionate sentence. This principle, which is set out in s. 718.1 Cr. C., assures repeat offenders the right not to be "punished . . . again", as guaranteed in s. 11 (h) of the Charter. The sentence imposed on a repeat offender may well be more severe, but this is not contrary to the offender's right not to be punished again. From the standpoint of proportionality, the sentence imposed in such a case is merely a reflection of the individualized sentencing process.

(c) Imprisonment As A Sanction Should Only Be Imposed As A Last Resort.

[70] In R. v. Wells, [2003] O.J. No. 2025 (Ont. C.J.), Lane J. held, at paras. 26 and 27, that the use of imprisonment only as a last resort has now been codified in s. 718.2 (d) of the Criminal Code of Canada. Moreover, Lane J. also emphasized that where Parliament or the Legislature has not imposed a statutory minimum sentence, and the liberty of the defendant is at issue, jurists in all courts, including the provincial offences courts, should adhere to the principles of sentencing with respect to criminal matters, which are well-established at common law and now codified in the Criminal Code. To do otherwise, Lane J. explained, would be to impose more stringent penalties for quasi-criminal provincial offenses than those customary in criminal matters:

That a custodial term is permitted under s. 53(1) P.O.A. does not mean that a custodial term should be imposed. Historically, criminal courts have been slow to sentence any first offender to imprisonment. The position has been that the proper sentencing of first offenders requires the sentencing judge to exhaust all other possibilities before concluding that imprisonment is required: R. v. Stein (1974), 15 C.C.C. (2d) 376, at p. 377 (Ont. C.A.); R. v. Biron (1991), 65 C.C.C. (3d) 221 (Que. C.A.).

This use of imprisonment only as a last resort has now been codified in s. 718.2 (d) and (e) of the Criminal Code (Canada) and extended to all defendants in criminal courts: R. v. Gladue (1999), 133 C.C.C. (3d) 385 (S.C.C.). These provisions, enacted by Parliament with respect to criminal matters in 1995, require that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances," and that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders ....." Where Parliament or the Legislature has imposed no statutory minimum sentence, and the liberty of the defendant is at issue, jurists in all courts, including the provincial offences courts, should adhere to the principles of sentencing which are well-established at common law and now codified, with respect to criminal matters, in the Criminal Code (Canada). To do otherwise would be to impose more stringent penalties for quasi-criminal provincial offenses than those customary in criminal matters.

(d) For Disputed Facts In A Sentencing Hearing, Evidence Must Be Called In Respect To That Disputed Fact.

[71] In R. v. Gardiner, [1982] S.C.J. No. 71 (S.C.C.), Dickson J. held that any facts relied upon by the Crown in aggravation must be established by the Crown beyond a reasonable doubt. Moreover, Dickson J. emphasized that where the facts are contested, the issue should be resolved by ordinary legal principles governing criminal proceedings, including resolving relevant doubt in favour of the offender. But, more importantly, Dickson J. held that facts which justify the sanction are no less important than the facts which justify the conviction, so that both should be subject to the same burden of proof. In addition, he confirmed that the sentencing process is merely a phase of the trial process, so that upon conviction the offender is not abruptly deprived of all procedural rights existing at trial:

It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender.

To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked. "It would appear well established that the sentencing process is merely a phase of the trial process" (Olah, supra, at p. 107). Upon conviction the accused is not abruptly deprived of all procedural rights existing at trial: he has a right to counsel, a right to call evidence and cross-examine prosecution witnesses, a right to give evidence himself and to address the court.

In S. v. Manchester City Recorder, [1969] 3 All E.R. 1230 the suggestion was made that a court might be functus officio in the use of its powers to convict or acquit, as distinct from its powers to sentence. Lord Reid found this proposition to be both novel and erroneous, adding at p. 1233:

In my judgment magistrates have only one officium—to carry the case before them to a conclusion. There is no reason to divide up their functions and hold that at some stage in the proceedings one officium comes to an end and another begins.

In my view, both the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the trial judge in imposing sentence are factors militating in favour of the retention of the criminal standard of proof beyond a reasonable doubt at sentencing.

[B]ecause the sentencing process poses the ultimate jeopardy to an individual enmeshed in the criminal process, it is just and reasonable that he be granted the protection of the reasonable doubt rule at this vital juncture of the process [Olah, supra, at p. 121].

The rationale of the argument of the Crown for the acceptance of a lesser standard of proof is administrative efficiency. In my view, however, the administrative efficiency argument is not sufficient to overcome such a basic tenet suffusing our entire criminal justice system as the standard of proof beyond a reasonable doubt. I am by no means convinced that if the standard of proof were lowered, conservation of judicial resources would be enhanced. In the event of a serious dispute as to facts, it would be in the interests of the accused to plead not guilty in order to benefit at trial from the higher standard of reasonable doubt. This would not only be destructive of judicial economy but at the same time prejudicial to whatever mitigating effect might have come from a guilty plea, as evidence of remorse. There would seem in principle no good reason why the sentencing judge in deciding disputed facts should not observe the same evidentiary standards as we demand of juries. In R. v. Proudlock, [1979] 1 S.C.R. 525 Pigeon J., dealing with an issue involving conviction, observed (at p. 550):

In my view, there are in our criminal law only three standards of evidence:

1. Proof beyond a reasonable doubt which is the standard to be met by the Crown against the accused;

2. Proof on a preponderance of the evidence or a balance of probabilities which is the burden of proof on the accused when he has to meet a presumption requiring him to establish or to prove a fact or an excuse;

3. Evidence raising a reasonable doubt which is what is required to overcome any other presumption of fact or of law.

The civil test only comes into play when the accused has to meet a presumption and it operates in favour of the accused.

I can see no good purpose served by the alternate Crown submission, namely, the adoption of a third standard of proof, "clear and convincing" evidence, in Canadian law. I agree with the remarks of Lord Tucker in Dingwall v. J. Wharton (Shipping), Ltd., [1961] 2 Lloyd's Rep. 213 at p. 216:

…I am quite unable to accede to the proposition that there is some intermediate onus between that which is required in criminal cases and the balance of probability which is sufficient in timeous civil actions.

In conclusion, I see no justification for the introduction of the complexity and confusion which would inevitably follow upon the acceptance of standards of proof varying from trial to sentence.

(3) Does the Provincial Offences Court have the jurisdiction and power to order an offender to disclose their financial documents to the prosecution for sentencing purposes prior to the actual sentencing hearing being held for the offender?

[72] The prosecution contends that prior to the sentencing hearing commencing, this court can compel the offender, Paul Broomfield, to disclose to the prosecution his personal, as well as his business's financial documents, so that the prosecution can make proper submissions on sentence, and also so that this court would have that relevant information to properly carry out its mandate as a court of law to arrive at a fit and just sentence. And, because the Electricity Act, 1998, the governing statute for the offence, and the Provincial Offences Act, the procedural statute governing the investigation, prosecution, and trials of regulatory or provincial offences in Ontario, is silent in respect to the jurisdiction and authority of this court to issue such an order compelling an offender to disclose their financial documents to the prosecution for sentencing purposes prior to the sentencing hearing, then the prosecution contends that in order for this statutory court of law to carry out its mandate in determining a fit and just sentence, then this court would have the necessary jurisdiction to exercise this power compelling production of Broomfield's financial documents through the "doctrine of jurisdiction by necessary implication". Moreover, the prosecution contends that this implied power is contained within s. 57(3) of the Provincial Offences Act, which expressly authorizes a sentencing court to make inquiries about an offender's economic circumstances during a sentencing hearing to obtain relevant information about the offender and the offender's ability to pay a fine.

[73] On the other hand, Broomfield submits that where an offender wishes to convince the sentencing court that they are unable to pay a substantial fine, an offender generally presents evidence of an inability to pay to the sentencer voluntarily, and if they choose not to, then they would do so at their own peril. And, more importantly, suggests Broomfield, is that this voluntary production of evidence by an offender to the sentencing court is what s. 57(3) had envisioned. Furthermore, Broomfield submits that where an offender has voluntarily produced evidence of an inability to pay, the sentencing court may accept some, none, or all of the proffered evidence in determining an appropriate sentence. In addition, Broomfield submits that in the caselaw that has been provided by the prosecution, none of the courts had compelled the offenders to produce their financial documents, but instead, the evidence had been provided voluntarily by the offenders. As a result, Broomfield contends that voluntary production of evidence by an offender is consistent with s. 57(3), which expressly states that even though the sentencing court can make inquiries about the economic circumstances of the offender during the sentencing hearing, the offender cannot be compelled to answer.

[74] As such, it has to be first determined what this sentencing court's jurisdiction and powers are in obtaining relevant evidence that is necessary for the sentencing court to fulfill its mandate in determining a fit and just sentence for the offender of a regulatory or provincial offence in Ontario.

(a) Determining The Powers And Jurisdiction Of Statutory Courts.

[75] The Supreme Court of Canada in R. v. Cunningham, 2010 SCC 10, [2010] S.C.J. No. 10 (S.C.C.), at paras. 18 and 19, has confirmed that statutory courts, such as the Provincial Offences Court in Ontario, have not only the powers expressly conferred and granted by the enabling statute, but also by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime. In addition, the Supreme Court has held that similar to administrative tribunals the "doctrine of jurisdiction by necessary implication" is also applicable for determining the powers of a statutory court. As a consequence, the Supreme Court explained that statutory courts have the authority to control their own process and exercise powers that are necessarily implied in the grant of power to function as a court of law:

Superior courts possess inherent jurisdiction to ensure they can function as courts of law and fulfil their mandate to administer justice (see I. H. Jacob, "The Inherent Jurisdiction of the Court" (1970), 23 Curr. Legal Probs. 23, at pp. 27-28). Inherent jurisdiction includes the authority to control the process of the court, prevent abuses of process, and ensure the machinery of the court functions in an orderly and effective manner. …

Likewise in the case of statutory courts, the authority to control the court's process and oversee the conduct of counsel is necessarily implied in the grant of power to function as a court of law. This Court has affirmed that courts can apply a "doctrine of jurisdiction by necessary implication" when determining the powers of a statutory tribunal:

... the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime ... .

(ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51)

Although Bastarache J. was referring to an administrative tribunal, the same rule of jurisdiction, by necessary implication, would apply to statutory courts.

[76] However, allowing the prosecution to have access to an offender's financial documents could in some situations prejudice the offender, especially where the financial documents may contain information of other potential offences, which could then be used to charge and/or convict the offender for those other offences that are not related to the offences for which the offender had been convicted on. This potential prejudice being derived from an accused's financial documents being provided to the prosecution was also identified by the Supreme Court in R. v. Cunningham, 2010 SCC 10, [2010] S.C.J. No. 10, at paras. 28 to 30, where the Supreme Court had commented that in the context of seizing a lawyer's files in respect to an accused, that allowing the Crown access to the accused's financial documents that are contained in the lawyer's files could cause unfairness to that accused, especially when an intelligent investigator could reconstruct some of the accused's comings and goings and particular activities of the accused from those financials and fee information, which could then be used to charge and/or convict the accused:

In arguing that disclosure of the mere fact that an accused has not paid or will not be paying his or her legal fees is protected by solicitor-client privilege, the Law Societies of British Columbia and Yukon rely on this Court's decisions in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, and Maranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193, where this Court held that, in the context of a law office search, an accused's financial and fee information may be privileged. In Maranda, the Court was concerned that fee information, specifically the amount of fees and disbursements, may appear to be "neutral" when in fact disclosure of the information could be prejudicial to the accused. In particular, LeBel J. stated that fee information

might enable an intelligent investigator to reconstruct some of the client's comings and goings, and to assemble evidence concerning his presence at various locations based on the documentation relating to his meetings with his lawyer. [para. 24]

This information could then be used to charge and/or convict the client. Because of the potentially detrimental effect of disclosure on the client, fee information is considered prima facie privileged for the purposes of the search. If the Crown seeks disclosure, the ultimate decision of whether the fee information is in fact privileged is made by the court, not the police.

Counsel seeking to withdraw for non-payment of legal fees is a decidedly different context from a police search of counsel's accounts and records. The most significant difference is the content of the information being disclosed. The only information revealed by counsel seeking to withdraw is the sliver of information that the accused has not paid or will not be paying fees. It has not been explained how, in this case, this sliver of information could be prejudicial to the accused. Indeed, it is hard to see how this simple fact alone could be used against the accused on the merits of the criminal proceeding: it is unrelated to the information given by the client to the lawyer, and unrelated to the advice given by the lawyer to the client. It would not be possible to infer from the bare fact of non-payment of fees any particular activities of the accused that pertain to the criminal charges against him.

To be sure, this is the case where non-payment of fees is not linked to the merits of the matter and disclosure of non-payment will not cause prejudice to the accused. However, in other legal contexts, payment or non-payment of fees may be relevant to the merits of the case, for example, in a family law dispute where support payments are at issue and a client is alleging inability to pay. Or disclosure of non-payment of fees may cause prejudice to the client, for example, where the opposing party may be prompted to bring a motion for security for costs after finding out that the other party is unable to pay its legal fees. Where payment or non-payment of fees is relevant to the merits of the case, or disclosure of such information may cause prejudice to the client, solicitor-client privilege may attach.

[77] Also, in R. v. Romanowicz, [1999] O.J. No. 3191, at para. 64 to 67, the Court of Appeal for Ontario had interpreted Ritchie J.'s holding in Doyle v. R., [1976] S.C.J. No. 38 (S.C.C.), where Ritchie J. had held that the "powers and functions of a Magistrate" acting under the Criminal Code "are circumscribed by the provisions of that statute and must be found" to have been thereby "conferred either expressly or by necessary implication", to basically mean that all criminal trial courts have the power to control their own processes in ways that are not provided for by statute:

The approach favoured by Hill J. encompasses both the accused's right to a fair trial and the need to preserve the integrity of the process. It is consistent with the approach we take and strikes the balance between the trial judge's obligation to protect the integrity of the proceedings, including the accused's right to a fair trial and the accused's right, within the limits of the law, to choose a representative.

We were referred to two authorities which might be taken to deny the power of the summary proceedings court to control its own proceedings by refusing to permit representation by a particular person. In R. v. Maher, supra, the Newfoundland Court of Appeal, in holding that agents properly appointed by the Attorney General were entitled to appear as prosecutors in summary conviction proceedings, said at p. 478:

Counsel for the respondent contends that Provincial Court judges have the inherent jurisdiction to decide who shall be granted a right of audience as prosecutor in a given case. We do not accept that argument. . . .

In rejecting that argument, the court cited the well-known words of Ritchie J. in Doyle v. R., [1977] 1 S.C.R. 597 at p. 602, 29 C.C.C. (2d) 177 at p. 181, where he said:

. . . the powers and functions of a Magistrate acting under the Criminal Code are circumscribed by the provisions of that statute and must be found to have been thereby conferred either expressly or by necessary implication.

Doyle was not concerned with the powers of a trial judge, but rather with the powers of a magistrate or a justice prior to trial. Furthermore, the broad language used by Ritchie J. in the above-quoted passage has been circumscribed in subsequent cases, which have recognized that all criminal trial courts have the power to control their own processes in ways that are not provided for by statute: R. v. Jewitt, supra; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra.

[78] Likewise, at paras. 44, 45, and 48 in R. v. Fercan Developments Inc., 2016 ONCA 269, [2016] O.J. No. 1925, LaForme J.A. for the Court of Appeal for Ontario, had discussed the application of the "doctrine of jurisdiction by necessary implication" and then confirmed that the test for determining whether a power or authority may be implied had been set out by the Court of Appeal for Ontario in Nishnawbe Aski Nation v. Eden (Pierre v. McRae), [2011] O.J. No. 988, 2011 ONCA 187, 104 O.R. (3d) 321. In addition, LaForme J.A. verified that the Ontario Court of Justice, as a statutory court, does not have any inherent jurisdiction and derives its jurisdiction from statute, and as a statutory court, that it enjoys both the powers that are expressly conferred upon it and, by implication, any powers that are reasonably necessary to accomplish its mandate. But more importantly, LaForme J.A. noted that the power being conferred under the doctrine does not have to be absolutely necessary; it only needs to be practically necessary for the statutory court or tribunal to effectively and efficiently carry out its purpose:

As a statutory court, the Ontario Court of Justice does not have any inherent jurisdiction and derives its jurisdiction from statute. It is well established that a statutory court or tribunal enjoys both the powers that are expressly conferred upon it and, by implication, any powers that are reasonably necessary to accomplish its mandate: Dunedin, at para. 70. The jurisprudence has recognized that statutory courts possess certain implied powers as courts of law: R. v. Romanowicz (1999), 45 O.R. (3d) 506 (C.A.), at paras. 59-60. In addition, powers may be implied in the context of particular statutory schemes as well.

This court recently considered the "doctrine of jurisdiction by necessary implication" in Pierre v. McRae, 2011 ONCA 187, 104 O.R. (3d) 321. Justice Laskin, at para. 34, noted that a power or authority may be implied: (i) when the jurisdiction sought is necessary to accomplish the objects of the legislative scheme and is essential to the statutory body fulfilling its mandate; (li) when the enabling act fails to explicitly grant the power to accomplish the legislative objective; (iii) when the mandate of the statutory body is sufficiently broad to suggest a legislative intention to implicitly confer jurisdiction; (iv) when the jurisdiction sought is not one which the statutory body has dealt with through use of expressly granted powers, thereby showing an absence of necessity; or (v) when the legislature did not address its mind to the issue and decide against conferring the power to the statutory body.

Finally, I note that the power being conferred does not have to be absolutely necessary. It only needs to be practically necessary for the statutory court or tribunal to effectively and efficiently carry out its purpose: Dunedin, at p. 71.

[79] Furthermore, in Boondocks Marina Inc. v. Ontario (Provincial Police), [2013] O.J. No. 6393 (Ont. S.C.), at paras. 70 to 72, Rady J. noted that powers conferred by an enabling statute are construed to include not only those expressly granted, but also by implication, all powers that are practically necessary for the accomplishment of the object intended to be secured by the statutory regime created by the legislature. Furthermore, Rady J. held that in order to impute jurisdiction to a regulatory body, there must be evidence that the exercise of the power in question is a practical necessity for the regulatory body to accomplish the goals prescribed by the Legislature:

In the event that I am incorrect in concluding that there is an explicit power to investigate, the doctrine of jurisdiction by necessary implication applies.

In ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), supra, the Supreme Court of Canada held that "... powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime created by the legislature."

In order to impute jurisdiction to a regulatory body, there must be evidence that the exercise of the power in question is a practical necessity for the regulatory body to accomplish the goals prescribed by the Legislature. See ATCO Gas & Pipelines Ltd. and Advocacy Centre for Tenants Ontario, supra.

[80] Moreover, in R. v. 974649 Ontario Inc. c.o.b. as Dunedin Construction (1992) and Bob Hoy, 2001 SCC 81, [2001] S.C.J. No. 79, the Supreme Court at paras. 70 and 71, confirmed that a statutory court enjoys not only the powers expressly conferred upon it, but also by implication all powers that are reasonably and practically necessary to accomplish its mandate or purpose, or to perform its intended functions. In addition, the Supreme Court noted that while these powers need not be absolutely necessary for the court to realize the objects of its statute, they must be necessary to effectively and efficiently carry out its purpose:

It is well established that a statutory body enjoys not only the powers expressly conferred upon it, but also by implication all powers that are reasonably necessary to accomplish its mandate: Halsbury's Laws of England (4th ed. 1995), vol. 44(1), at para. 1335. In other words, the powers of a statutory court or tribunal extend beyond the express language of its enabling legislation to the powers necessary to perform its intended functions: Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722.

Consequently, the function of a statutory body is of principal importance in assessing whether it is vested with an implied power to grant the remedy sought. Such implied powers are found only where they are required as a matter of practical necessity for the court or tribunal to accomplish its purpose: National Energy Board Act (Can.) (Re), [1986] 3 F.C. 275 (C.A.). While these powers need not be absolutely necessary for the court or tribunal to realize the objects of its statute, they must be necessary to effectively and efficiently carry out its purpose: Interprovincial Pipe Line Ltd. v. National Energy Board, [1978] 1 F.C. 601 (C.A.); Bell Canada, supra; Macaulay and Sprague, supra, vol. 4, at p. 29-2. This emphasis on the function of a court or tribunal, in discerning the powers with which the legislature impliedly endowed it, accords with the functional and structural approach to the Mills test set out above.

[81] Therefore, this court has not only the powers expressly conferred and granted by the Courts of Justice Act, R.S.O. 1990, c. C.43, the Provincial Offences Act, R.S.O. 1990, c. P.33, and the Electricity Act, 1998, S.O. 1998, c. 15, Sch. A., but also by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by these statutory regimes.

(b) Specific provisions of the Courts Of Justice Act that are applicable to Broomfield's sentencing hearing.

[82] The Courts of Justice Act, R.S.O. 1990, c. C.43, specifies in s. 38(2) that the Ontario Court of Justice shall perform any function assigned to it by or under the Provincial Offences Act or any other Act:

Provincial offences and family matters

38(2) The Ontario Court of Justice shall perform any function assigned to it by or under the Provincial Offences Act, the Family Law Act, the Children's Law Reform Act, the Child, Youth and Family Services Act, 2017 or any other Act.

[83] Additionally, s. 70.1(1) of the Ontario Courts of Justice Act, specifies that the Attorney General may make rules in relation to the practice and procedure of the Ontario Court of Justice in proceedings under the Provincial Offences Act, including any rules under s. 70.1(1)(a) regulating any matters relating to the practice and procedure of proceedings under the Provincial Offences Act and under s. 70.1(1)(e) prescribing and regulating the procedures under any Act that confers jurisdiction under the Provincial Offences Act on the Ontario Court of Justice or a judge or justice of the peace sitting in it:

Provincial offences rules

70.1(1) Subject to subsection (2), the Attorney General may make rules in relation to the practice and procedure of the Court of Appeal, the Superior Court of Justice and the Ontario Court of Justice in proceedings under the Provincial Offences Act, including rules,

(a) regulating any matters relating to the practice and procedure of proceedings under the Provincial Offences Act;

(b) prescribing forms;

(c) regulating the duties of the employees of the courts;

(d) regulating the duties of municipal employees and other persons who act under the authority of agreements made under Part X of the Provincial Offences Act;

(e) prescribing and regulating the procedures under any Act that confers jurisdiction under the Provincial Offences Act on the Ontario Court of Justice or a judge or justice of the peace sitting in it;

(f) prescribing any matter relating to proceedings under the Provincial Offences Act that is referred to in an Act as provided for by the rules of court. 2017, c. 2, Sched. 2, s. 14.

[84] Moreover, s. 95(3) of the Ontario Courts of Justice Act, specifies that for provincial offences proceedings, a reference in one of those specified sections to a judge includes a justice of the peace presiding in the Ontario Court of Justice:

Provincial offences proceedings

95(3) Sections 109 (constitutional questions), 125, 126 (language of proceedings), 132 (judge sitting on appeal), 136 (prohibition against photography at court hearings), 144 (arrest and committal warrants enforceable by police) and 146 (where procedures not provided) also apply to proceedings under the Provincial Offences Act and, for the purpose, a reference in one of those sections to a judge includes a justice of the peace presiding in the Ontario Court of Justice.

[85] In addition, s. 146 of the Ontario Courts of Justice Act, specifies that in the absence of express provision for procedures for its exercise in any Act, regulation or rule, jurisdiction conferred on a court, a judge or a justice of the peace shall, be exercised in any manner consistent with the due administration of justice:

Where procedures not provided

146. Jurisdiction conferred on a court, a judge or a justice of the peace shall, in the absence of express provision for procedures for its exercise in any Act, regulation or rule, be exercised in any manner consistent with the due administration of justice.

(c) Specific provisions of the Rules of The Ontario Court of Justice in Provincial Offences Proceedings that are applicable to Broomfield's sentencing hearing.

[86] There is no expressed provision under the Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings (Courts Of Justice Act, R.S.O. 1990, c. C.43), R.R.O. 1990, O. Reg. 200, which refers specifically to sentencing or to the jurisdiction of or the procedure for the Ontario Court of Justice to compel the offender to produce or disclose to the prosecution the offender's financial documents for the purposes of sentencing.

(d) Specific provisions of the Provincial Offences Act that are applicable to Broomfield's sentencing hearing.

[87] Sections 56 to 59 of the Provincial Offences Act contain provisions that are applicable to Broomfield's sentencing hearing. Section 56 provides for the preparation of a pre-sentence report if imprisonment is a possible sanction; s. 57 is in respect to the information relevant to sentence, which includes submissions made by the parties and inquires made by the court about the offender and the proof of previous convictions; and s. 58 is in respect to minimum penalties, imprisonment, consideration of pre-trial custody, and fines in lieu of a custodial sentence:

Pre-sentence report

56 (1) Where a defendant is convicted of an offence in a proceeding commenced by information, the court may direct a probation officer to prepare and file with the court a report in writing relating to the defendant for the purpose of assisting the court in imposing sentence.

Service

(2) Where a report is filed with the court under subsection (1), the clerk of the court shall cause a copy of the report to be provided to the defendant or the defendant's representative and to the prosecutor.

Other information relevant to sentence

Submissions as to sentence

57(1) Where a defendant who appears is convicted of an offence, the court shall give the prosecutor and the defendant's representative an opportunity to make submissions as to sentence and, where the defendant has no representative, the court shall ask the defendant if he or she has anything to say before sentence is passed.

Omission to comply

(2) The omission to comply with subsection (1) does not affect the validity of the proceeding.

Inquiries by court

(3) Where a defendant is convicted of an offence, the court may make such inquiries, on oath or otherwise, of and concerning the defendant as it considers desirable, including the defendant's economic circumstances, but the defendant shall not be compelled to answer.

Proof of previous conviction

(4) A certificate setting out with reasonable particularity the finding of guilt or acquittal or conviction and sentence in Canada of a person signed by,

(a) the person who made the adjudication; or

(b) the clerk of the court where the adjudication was made, is, upon the court being satisfied that the defendant is the person referred to in the certificate, admissible in evidence and is proof, in the absence of evidence to the contrary, of the facts stated therein without proof of the signature or the official character of the person appearing to have signed the certificate.

Time spent in custody considered

58. In determining the sentence to be imposed on a person convicted of an offence, the justice may take into account any time spent in custody by the person as a result of the offence.

Provision for minimum penalty

59(1) No penalty prescribed for an offence is a minimum penalty unless it is specifically declared to be a minimum.

Relief against minimum fine

(2) Although the provision that creates the penalty for an offence prescribes a minimum fine, where in the opinion of the court exceptional circumstances exist so that to impose the minimum fine would be unduly oppressive or otherwise not in the interests of justice, the court may impose a fine that is less than the minimum or suspend the sentence.

Idem, re imprisonment

(3) Where a minimum penalty is prescribed for an offence and the minimum penalty includes imprisonment, the court may, despite the prescribed penalty, impose a fine of not more than $5,000 in lieu of imprisonment.

(i) Probation Orders.

[88] Section 72 of the Provincial Offences Act governs probation orders for an offender convicted of a regulatory offence commenced by a Part III information:

Probation order

72(1) Where a defendant is convicted of an offence in a proceeding commenced by information, the court may, having regard to the age, character and background of the defendant, the nature of the offence and the circumstances surrounding its commission,

(a) suspend the passing of sentence and direct that the defendant comply with the conditions prescribed in a probation order;

(b) in addition to fining the defendant or sentencing the defendant to imprisonment, whether in default of payment of a fine or otherwise, direct that the defendant comply with the conditions prescribed in a probation order; or

(c) where it imposes a sentence of imprisonment on the defendant, whether in default of payment of a fine or otherwise, that does not exceed ninety days, order that the sentence be served intermittently at such times as are specified in the order and direct that the defendant, at all times when he or she is not in confinement pursuant to such order, comply with the conditions prescribed in a probation order.

Statutory conditions of order

(2) A probation order shall be deemed to contain the conditions that,

(a) the defendant not commit the same or any related or similar offence, or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment;

(b) the defendant appear before the court as and when required; and

(c) the defendant notify the court of any change in the defendant's address.

Conditions imposed by court

(3) In addition to the conditions set out in subsection (2), the court may prescribe as a condition in a probation order,

(a) that the defendant satisfy any compensation or restitution that is required or authorized by an Act;

(b) with the consent of the defendant and where the conviction is of an offence that is punishable by imprisonment, that the defendant perform a community service as set out in the order;

(c) where the conviction is of an offence punishable by imprisonment, such other conditions relating to the circumstances of the offence and of the defendant that contributed to the commission of the offence as the court considers appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant; or

(d) where considered necessary for the purpose of implementing the conditions of the probation order, that the defendant report to a responsible person designated by the court and, in addition, where the circumstances warrant it, that the defendant be under the supervision of the person to whom he or she is required to report.

(ii) Restitution Orders.

[89] The sentencing court may also order the offender to pay compensation or restitution as a standalone restitution order or as a condition of a Probation Order under s. 72(3)(a) of the Provincial Offences Act, if the governing statute specifically authorizes a sentencing court to make such an order.

[90] For the case at bar, the Electricity Act, 1998, does not expressly authorize or provide for restitution or compensation to be paid by the offender, and as such, an order for restitution or compensation, either as a standalone restitution order or as a condition of a probation order is not an available sanction that can be imposed in a sentence for Broomfield.

(iii) s. 57(3) of the Provincial Offences Act permits the sentencing court to make inquiries about an offender's economic circumstances, but the offender is not legally compelled to answer.

[91] Subsection 57(3) of the Provincial Offences Act authorizes the sentencing court to make such inquiries, on oath or otherwise, of and concerning the defendant as it considers desirable, including the defendant's economic circumstances, but the defendant shall not be compelled to answer:

Inquiries by court

57(3) Where a defendant is convicted of an offence, the court may make such inquiries, on oath or otherwise, of and concerning the defendant as it considers desirable, including the defendant's economic circumstances, but the defendant shall not be compelled to answer.

(A) The legislative purpose behind not compelling the offender to answer inquires made by the sentencing court under s. 57(3).

[92] In Drinkwalter and Ewart's textbook, "Ontario Provincial Offences Procedure" (Toronto, Canada: The Carswell Company Limited, 1980), at p. 218, the authors commented that the purpose of s. 58(3) [now s. 57(3)] of the Provincial Offences Act was to facilitate the obtaining of accurate information about the defendant before a fine would be imposed, considering that one of the major objects of the Provincial Offences Act is to avoid incarceration for non-payment of fines. Furthermore, Drinkwalter and Ewart noted that to accomplish this objective, the court should have information concerning the defendant's means and the defendant's ability to pay. However, Drinkwalter and Ewart emphasized that under this permitted inquiry questions cannot be asked about the offence, but only about the defendant. Furthermore, Drinkwalter and Ewart also indicated that the basic rule, that a defendant is not a compellable witness under the Act [s. 47(5) of the Provincial Offences Act], is preserved in this section. Drinkwalter and Ewart also understood that there will be, however, few instances when it is in the best interests of the defendant to decline to answer. Moreover, Drinkwalter and Ewart emphasized that a refusal to answer may well ground an inference by the justice that the defendant is able to pay whatever fine may be imposed. Hence, Drinkwalter and Ewart concluded that because the fine which is imposed on the average offender can be decreased if the defendant is impecunious, then an offender with means would gain nothing by silence, while an impecunious defendant would lose an opportunity for a lower fine if refuses to answer the sentencing court's inquiries about the offender's economic circumstances. Ergo, Drinkwalter and Ewart's comments on the purpose behind s. 58(3) [now s. 57(3)] of the Provincial Offences Act are persuasive as both Douglas Drinkwalter and Douglas Ewart were members of the committee that had designed and drafted the first Provincial Offences Act (see p. vi of the Preface to Drinkwalter and Ewart's textbook, "Ontario Provincial Offences Procedure"):

58§4. INQUIRES OF THE DEFENDANT BY THE COURT

Subsection (3) is a new provision, intended to facilitate the obtaining of accurate information about the defendant before a fine is imposed. It will be noted that the questions cannot be asked about the offence, but only about the defendant. As indicated above, one of the major objects of the Act is to avoid incarceration for non-payment of fines. If this is to be accomplished, the court should have information concerning the defendant's means. Obviously, the Act would be frustrated if fines were imposed which were clearly beyond the defendant's ability to pay them.

The basic rule, that a defendant is not a compellable witness under the Act [(47(5) of the Provincial Offences Act] is preserved in this section. There will, however, be few instances when it is in the best interests of the defendant to decline to answer. Such a refusal may well ground an inference by the justice that the defendant is able to pay whatever fine may be imposed. Furthermore, the Canadian view appears to be that the fine which is imposed on the average offender can be decreased if the defendant is impecunious, it cannot be increased if he is wealthy [R. v. Wells (1977), 7 C.R. (3d) S-17 (Alta. Dist. Ct.)]. Thus a defendant with means would gain nothing by silence, while an impecunious defendant would lose an opportunity for a lower fine.

[93] Furthermore, the inquiry into an offender's financial situation and their ability to pay the fine is also mentioned in ss. 66(2) and (3) of the Provincial Offences Act. Subsections 66(2) and (3) govern the circumstance when an offender seeks an extension of time to pay the fine. Where the offender requests an extension of the time for payment of the fine, the sentencing court may make such inquiries, on oath or affirmation or otherwise, of and concerning the offender as the court considers desirable, but as had been similarly provided for under s. 57(3) of the Provincial Offences Act, the offender under s. 66(3) is also not compelled to answer:

Extension of time for payment of a fine

66(2) Where the court imposes a fine, the court shall ask the defendant if the defendant wishes an extension of the time for payment of the fine.

Inquiries

66(3) Where the defendant requests an extension of the time for payment of the fine, the court may make such inquiries, on oath or affirmation or otherwise, of and concerning the defendant as the court considers desirable, but the defendant shall not be compelled to answer.

Granting of extension

(4) Unless the court finds that the request for extension of time is not made in good faith or that the extension would likely be used to evade payment, the court shall extend the time for payment by ordering periodic payments or otherwise.

[94] Drinkwalter and Ewart also commented in their textbook, "Ontario Provincial Offences Procedure", at pp. 230-231, about the regulation of the collection of fines under the Provincial Offences Act, as having two objectives: (1) to reduce as much as possible the taint of debtor's prison which accompanies the use of incarceration as a penalty for non-payment of fines and (2) to ensure that the sanction intended to be imposed by the fine is not rendered meaningless by ineffective enforcement mechanisms:

67§2. GENERAL

This section, coupled with s. 70 of the Act, forms one of the key philosophical underpinnings of the legislation. Together these sections regulate the collection of fines, which, as discussed at pp. 212-213, was one of the major problem areas towards which the Act was directed. These sections should be read in light of two correlative objects of the legislation:

1. to reduce as much as possible the taint of debtor's prison which accompanies the use of incarceration as a penalty for non-payment of fines;

2. to ensure that the sanction intended to be imposed by the fine is not rendered meaningless by ineffective enforcement mechanisms.

It should be noted that s. 67 [now s. 66] creates two separate applications for extensions of time. Subsection (2) relates to extensions at the time the sentence is imposed, while subsection (6) creates a separate and independent right to apply at a later date for an extension.

[95] Furthermore, in Drinkwalter and Ewart's textbook, at p. 232, the authors commented that s. 67(3) [now s. 66(3)] of the Provincial Offences Act reflects the same common sense principle as that found in s. 58(3) [now s. 57(3)] of the Provincial Offences Act, that a court in deciding whether to grant an extension of time to pay a fine can make inquiries of the offender as the court considers desirable, but that the offender is not under a statutory compulsion to answer. However, Drinkwalter and Ewart also emphasized that a failure of the offender to provide this information could also reasonably cause a justice to find that the request for an extension of time was not made in good faith:

67§6. INQUIRIES OF THE DEFENDANT

Subsection (3) reflects the same common sense principle as s. 58(3). Reference should be had to the discussion under that section if elaboration is required. It would appear that a failure to provide this information could reasonably cause a justice to find that the request for an extension of time was not made in good faith. This would empower him to deny the request under the power given by subs. (4) It should also be noted that the nature of the inquiries which can be made is quite tightly limited by the terms of the provision. In appropriate circumstances, a defendant can be required to answer under oath, thus minimizing any tendency to mislead the court.

[96] Ergo, the purpose underlying s. 57(3) of the Provincial Offences Act is to facilitate the obtaining of accurate information about the offender before a fine is to be imposed. On the other hand, the purpose in respect to the offender in a sentencing hearing not being compelled to answer the sentencing court's inquiries at their sentencing hearing is that first, the offender is not a compellable witness and second, to prevent the sentencing court from specifically asking the offender questions about the offence, which could cause the offender to provide incriminating information about committing the particular offence that the offender has been convicted of and for which the offender may be intending to appeal the conviction, or in regards to information which could incriminate the offender of having committed other offences for which they have not been charged or convicted. As such, the sentencing court's questions to the offender under s. 57(3) cannot be about the offence, but only about the offender themselves and that if the offender refuses to answer the sentencing court's questions about the offender's economic circumstances, then the sentencing court may ground an inference on the offender's silence that the offender is able to pay whatever fine may be imposed. Accordingly, as long as the inquiry by the sentencing court is about the offender's ability to pay a fine, which does not cause prejudice to the offender, then s. 57(3) does not prohibit the sentencing court from asking for the offender's financial information in respect to the offender's ability to pay. However, the offender is not compellable to provide such information where the information may be proof of the offender committing the offence for which they are convicted on or information in regards to other uncharged or unconvicted offences, even though the offender's silence about their economic circumstances may draw an negative inference about their ability to pay a fine.

(c) The Universal Sentencing Principles Of The Criminal Law Apply To Sentencing Hearings For Regulatory Offences.

(i) Sentencing principles set out in the Criminal Code apply to sentencing for regulatory offences.

[97] In determining the appropriate sentence to impose on an offender, consideration should start with R. v. M.(C.A.) (1996), 105 C.C.C. (3d) 327 (S.C.C.), where Lamer C.J.C., at p. 370, indicated that the principal duty of a sentencing judge is to apply the established principles of sentencing in determining a just and appropriate sentence that reflects the gravity of the offence committed and the moral blameworthiness of the offender:

the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a ''just and appropriate'' sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender.

[98] Moreover, Lamer C.J.C confirmed, at p. 367, in R. v. M.(C.A.), that a majority of the Supreme Court in R. v. Jones (1994), 89 C.C.C. (3d) 353 at p. 397, had recognized as the fundamental purpose of sentencing for criminal matters was to preserve the authority of and promote respect for the law through the imposition of just sanctions, which would likewise be applicable for the sentencing of regulatory matters:

In furtherance of the overall purpose of the criminal law of maintaining a just, peaceful and safe society, the fundamental purpose of sentencing is to preserve the authority of and promote respect for the law through the imposition of just sanctions.

[99] Also, at p. 369 in R. v. M.(C.A.), Lamer C.J.C. held that the objectives of retribution, deterrence, denunciation, rehabilitation and the protection of society are legitimate objectives of sentencing:

Accordingly, the meaning of retribution must be considered in conjunction with the other legitimate objectives of sentencing, which include (but are not limited to) deterrence, denunciation, rehabilitation and the protection of society.

[100] But, unlike the Criminal Code, the Provincial Offences Act does not specifically set out the factors or goals of sentencing for a regulatory or provincial offence in Ontario. However, in the present case the prosecution contends that this sentencing court has the jurisdiction or power to compel Broomfield to produce his financial documents to them, and relies on paras. 21 and 22 in R. v. C. (K.), [2005] O.J. No. 2046 (Ont. C.J.) to support their contention. In those paragraphs of R. v. C. (K.), Kukurin J. had explained that the area of sentencing under the Provincial Offences Act is in effect quite open, and as such, there would be nothing improper in picking and choosing anything found in the Criminal Code or in the Youth Criminal Justice Act to equally apply to a Provincial Offences Act sentencing:

In contrast, the Provincial Offences Act, in its Part IV, has rather rudimentary provisions for sentencing. It sets out no formal purposes or principles of sentencing. While it devotes Part VI to young persons, the provisions of Part VI are, for the most part, procedural in nature and provide little guidance for sentencing of young persons convicted of provincial offences. A sixteen year old is not distinguishable from an adult so far as the sentencing provisions of the POA are concerned.

What then are the principles that the provincial offences court should apply in sentencing someone like K.C.? The POA does not import into its sentencing scheme any of the provisions of the Criminal Code or of the YCJA. In effect, the area of sentencing under the POA is quite open. It seems to me that there is nothing improper in picking and choosing anything found in the Criminal Code or in the YCJA that can be applied to a POA sentencing of a young person so as to come up with a reasonable sentence.

[101] But, more significantly, Kukurin J. in R. v. C. (K.) had also commented in endnote #18 of the judgment about the rudimentary nature of sentencing in the Provincial Offences Act by making specific reference to s. 57 of the Provincial Offences Act. Kukurin J. had noted that by virtue of s. 57(1), the Provincial Offences Court is required to ask the offender if they have anything to say before being sentenced, and under s. 57(3) the sentencing court is also permitted to make inquiries concerning the offender's economic circumstances. However, Kukurin J. noted that, except for those particular provisions, there is not much else by way of guidance contained in the Provincial Offences Act in respect to sentencing:

18. The rudimentary nature of the POA in the area of sentencing can be seen in S. 57 which requires the POA court to ask the defendant if he or she has anything to say before being sentenced [subsection (1)], and permits the court to make such inquiries concerning the defendant, including his/her economic circumstances [subsection (3)]. There is not much else by way of guidance contained in the statute. Fortunately, there is a provision for a mandatory preparation of a pre-sentence report for young persons where custody is contemplated.

[102] Then a few months subsequent to Kukurin J.'s decision in R. v. C. (K.), Kukurin J. in R. v. Kirk (c.o.b. B.A. Holdings), 2005 ONCJ 352, [2005] O.J. No. 3316 (Ont. C.J.), at para. 16, resolved that despite the lack of specific statutory guidance in the Provincial Offences Act, a sentence is not chosen arbitrarily from the pool of sentence options available in any particular case. As such, Kukurin J. surmised that an offence created by provincial statute or a federal statute or one that qualifies as a crime under the Criminal Code is subject to universal principles of sentencing that apply to all offences, such that a sentencing court would be bound to apply those universal sentencing principles that are particularly relevant. Accordingly, Kukurin J. held that the sentencing principles that are set out in s. 718, s. 718.1, and s. 718.2 of the Criminal Code would also apply to regulatory offences, since those sections of the Criminal Code have general applicability to all offences:

The Provincial Offences Act is subdivided into ten parts. Part IV deals with trials and sentencing. There is no provision in the POA that is analogous to section 718, section 718.1 or section 718.2 of the Criminal Code of Canada. ... In other words, there is no specific statutory guideline within the POA that directs the court to general purposes and principles of sentencing. Notwithstanding this lack of specific statutory guidance, it is evident that a sentence cannot just be chosen arbitrarily from the pool of sentence options available in any particular case. Whether an offence is created by a provincial statute, or by federal statute or qualifies as a crime under the Criminal Code, it is subject to universal principles of sentencing that apply to all offences. As a sentencing court, the court imposing the sentence on the defendant Kirk was bound to apply those sentencing principles that were relevant. For purposes of this appeal, I adopt section 718, section 718.1 and section 718.2 of the Criminal Code as provisions that have applicability to the offences in this case for which the defendant was convicted, not because the POA specifically imports these by its own terms, but rather because the provisions of these sections have general applicability whether an offence is a crime or is an offence created by a provincial statute.

[103] Likewise, in her textbook entitled, "Stewart on Provincial Offences Procedure in Ontario (3ed.)", (Toronto, Canada: Earlscourt Legal Press, Inc., 2011), at p. 371, the author also emphasized that the Provincial Offences Act does not contain a complete sentencing code, including sentencing principles, but that the common-law and criminal law jurisprudence on sentencing applies equally to regulatory or provincial offences, so that a sentencing court in determining a fit and just sentence would consider general and specific deterrence, aggravating or mitigating factors (such as a plea of guilty), the protection of the public, denunciation, the gravity and consequences of the offence, any rehabilitation and remorse, proportionality, the offender's record, and an offender's ability to pay a fine:

Unlike the Criminal Code, the Provincial Offences Act does not contain a complete sentencing code, including sentencing principles. Instead, common law and criminal law jurisprudence applies. For example, s. 718.1 of the Criminal Code provides that sentencing must be proportionate to the gravity of the of-fence and the degree of the responsibility of the offender. This principle applies equally to sentencing for a provincial offence.

In addition, to the statutory provisions and sentencing jurisprudence, the court will consider general and specific deterrence, aggravating or mitigating factors (such as a plea of guilty), the protection of the public, denunciation, the gravity and consequences of the offence, any rehabilitation and remorse, proportionality, the defendant's record, and ability to pay a fine. ...

[104] Accordingly, when sentencing an offender in respect of a regulatory or provincial offence in Ontario, the Provincial Offences Court may take into account the objectives of denunciation, specific and general deterrence, separation of the accused from society if necessary, rehabilitation, reparation to victims and to society, and promoting a sense of responsibility in offenders, as well as the other principles of sentencing set out in ss. 718, 718.1, and 718.2 of the Criminal Code. But more importantly, the Provincial Offences Court, as a matter of principle, must investigate or conduct an inquiry into the offender's ability to pay before it can impose a fine.

(ii) The Universal Sentencing Principles Set Out In The Criminal Code.

[105] Section. 718 of the Criminal Code states that the fundamental purpose of sentencing "is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives – denunciation, deterrence, separation of the offender from society where necessary, rehabilitation of the offender, reparations to victims and to the community, promoting a sense of responsibility in the offender":

Purpose

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[106] Furthermore, s. 718.1 of the Criminal Code sets out the fundamental principle of sentencing as, "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender":

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[107] In addition, other sentencing principles are also found in s. 718.2 of the Criminal Code, which state the following:

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the of-fence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v) evidence that the offence was a terrorism offence

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

(iii) Does The Criminal Code Permit The Sentencing Judge For A Criminal Offence To Make Inquiries Into An Offender's Economic Circumstances When Determining An Appropriate Fine?

(A) S. 723(3) of the Criminal Code.

[108] There is a sentencing provision in the Criminal Code that is analogous to s. 57(3) of the Provincial Offences Act and is contained in s. 723(3) of the Criminal Code. Subsection 723(3) of the Criminal Code explicitly provides the sentencing judge over a criminal matter with the jurisdiction to order the production of evidence that would assist it in determining the appropriate sentence, such as the offender's financial documents. However, the sentencing judge can only order such production on its own motion, after it has heard argument from both the Crown and the defence on the production of such evidence:

Production of evidence

723(3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence.

[109] Ergo, the Criminal Code goes further than s. 57(3) of the Provincial Offences Act in regards to the sentencing court being able to obtain financial documents or information about the offender for determining the offender's ability to pay a fine. As such, under s. 723(3) of the Criminal Code after hearing argument from the Crown and the offender on the production of specific evidence, the sentencing judge for a criminal offence, on their own motion, could order the offender to produce their personal financial documents for the purposes of sentencing, which would assist it in determining the appropriate sentence.

(iv) The Criminal Code can be used as an aid for the interpretation of provisions in the Provincial Offences Act.

[110] Subsection 2(2) of the Provincial Offences Act specifically states that as an aid to the interpretation of provisions of the Provincial Offences Act, recourse can be had to the judicial interpretation of and practices under corresponding provisions of the Criminal Code of Canada, but that any variation in wording without change in substance shall not, in itself, be construed to intend a change of meaning:

Interpretation

2(2) Where, as an aid to the interpretation of provisions of this Act, recourse is had to the judicial interpretation of and practices under corresponding provisions of the Criminal Code (Canada), any variation in wording without change in substance shall not, in itself, be construed to intend a change of meaning.

[111] Furthermore, similar to the Provincial Offences Act ss. 723(1) and (2) of the Criminal Code, stipulates that the sentencing court for a criminal offence is required before determining the appropriate sentence to give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed. As well, the sentencing court is also required to hear any relevant evidence presented by the prosecutor or the offender:

Submissions on facts

723(1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed.

Submission of evidence

(2) The court shall hear any relevant evidence presented by the prosecutor or the offender.

[112] In addition, under s. 724(1) of the Criminal Code, in determining the appropriate sentence, the sentencing court for a criminal offence may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender:

Information accepted

724(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

[113] And, to reiterate, both Lane J. in R. v. Wells, [2003] O.J. No. 2025 (Ont. C.J.), at para. 22 and Fairgrieve J. in Real Estate Council Of Ontario v. Wang, [2013] O.J. No. 4294 (Ont. C.J.), at para. 22, had recognized that a sentencing court under s. 57(3) of the Provincial Offences Act is authorized to investigate or make inquiries about the economic circumstances of the offender to determine the offender's ability to pay, and that as a matter of principle the sentencing court for a regulatory or provincial offence is required to investigate or make inquiries about the offender's ability to pay before the sentencing court can impose a fine. However, as Lane J. noted at para. 21 in R. v. Wells, an offender is not compelled by virtue of s. 57(3) of the Provincial Offences Act to answer any inquiries by the sentencing court about "the offence", since that could lead to the offender "volunteering" additional information which could place them in greater jeopardy.

[114] Moreover, the Provincial Offences Act had been originally enacted in 1979, to provide for a system of different procedures for provincial offences in Ontario, instead of being governed by the summary conviction procedures of the criminal law, so as to establish a speedy, efficient and convenient method of dealing with such offences. The Provincial Offences Act, however, did not enact a provision similar to s. 723(3) of the Criminal Code. In addition, the formulation of s. 57(3) of the Provincial Offences Act had also proceeded s. 723(3) of the 1985 version of the Criminal Code and the Supreme Court's ruling in R. v. Topp, 2011 SCC 43, [2011] S.C.J. No. 43, which had held that a sentencing court for a criminal offence is legally required to investigate an offender's economic circumstances in respect to their ability to pay before being permitted to impose a fine.

[115] As a consequence, the power of the sentencing judge under s. 723(3) of the Criminal Code to require the production of evidence that would assist the sentencing judge in determining the appropriate sentence is broader in scope than that which is expressly provided to the sentencer of a regulatory offence under s. 57(3) of the Provincial Offences Act. Under the Criminal Code provision, the sentencing judge is able on its own motion, but only after hearing argument from both the Crown and the offender, to order production of any evidence that would assist it in determining the appropriate sentence; while s. 57(3) of the Provincial Offences Act only permits the sentencing court at the sentencing hearing of a regulatory offence to make inquiries of and concerning the offender, including the defendant's economic circumstances, as it considers desirable, but does not mention the sentencing court being able to request the production of particular evidence.

[116] Nevertheless, when it came to enacting provisions in the Provincial Offences Act with respect to relevant information for sentencing and determining fines as a sanction for a regulatory offence, the Ontario Legislature had been aware of the need for a sentencing court to have relevant information about the offender and their economic circumstances for sentencing purposes by allowing the sentencer to make inquiries under s. 57(3) of the offender about their economic circumstances, but the Ontario Legislature at the same time had legislated that the offender could not be a compellable witness and be compelled to answer inquires made by the sentencer, especially in regards to the offence itself. However, as Drinkwalter and Ewart had commented in their textbook, textbook, "Ontario Provincial Offences Procedure" (Toronto, Canada: The Carswell Company Limited, 1980) and as Justice Lane has recognized in R. v. Wells, [2003] O.J. No. 2025 (Ont. C.J.), the inquiry power of the sentencing court under s. 57(3) is limited and directed particularly to the financial circumstances of the defendant because of the concern about an offender volunteering information about the offence itself or about other uncharged or unconvicted offences. Ergo, the legislative concern under s. 57(3) had been about an offender revealing information about offences during the sentencing hearing which could put the offender in jeopardy, but not in respect to information about the offender's economic circumstances in respect to determining the offender's ability to pay a fine.

[117] And, more importantly, as the Court of Appeal for Ontario had reasoned in R. v. Fercan Developments Inc., 2016 ONCA 269, [2016] O.J. No. 1925, at para. 46, that when ascertaining legislative intent of a statutory provision, a court is to keep in mind that such intention is not frozen in time; rather, the court must approach the task so as to promote the purpose of the legislation and render it capable of responding to changing circumstances. Hence, the original wording of the provision for s. 57(3) of the Provincial Offences Act has not changed since its inception in 1979, but because of the Supreme Court's ruling in R. v. Topp, 2011 SCC 43, [2011] S.C.J. No. 43, that legally requires a sentencing court to investigate an offender's ability to pay before being permitted to impose a fine, as well as from the enactment of s. 723(3) of the Criminal Code which would allow the sentencing court to require production of relevant information that was enacted subsequent to the enactment of the Provincial Offences Act, the legislative intent of s. 57(3) could therefore be updated to coincide with those criminal law sentencing principles which would indeed assist the sentencing court for a regulatory offence in determining a fit and just sentence, without sacrificing fairness to the offender.

[118] Hence, because universal sentencing principles and procedures and sentencing principles from the Criminal Code can be relied upon for the purposes of sentencing of a regulatory offence when the Provincial Offences Act is silent, and since there is no provision in the Provincial Offences Act analogous to s. 723(3) of the Criminal Code, this gap in the Provincial Offences Act in respect to a sentencing court being able to request or compel the production of specific information that would be desirable and relevant for sentencing should also be adopted for the sentencing of a regulatory offence. Furthermore, such adoption of the s. 723(3) Criminal Code provision would also provide the necessary safeguards that are already built into s. 723(3) to prevent an offender from being compelled to provide evidence to the prosecution of the offence that the offender is convicted on, in case of an appeal, and to also prevent an offender from being compelled to provide evidence to the prosecution of other offences that the offender has not been charged with or convicted of. Moreover, under s. 723(3) of the Criminal Code, the sentencing court, on its own motion, can only compel the offender to produce their financial documents for the purpose of sentencing, after hearing argument from both the Crown and the offender. And, because of this legal prerequisite that the sentencing court would have to hear argument from both the prosecution and the offender before it can order the offender to produce financial documents to the court for the purposes of sentencing, this is indication that such orders compelling the offender to disclose or produce their financial documents should only be granted when the court is satisfied that there are exceptional circumstances present to justify issuing such an order. This exceptional circumstances requirement would also accord with s. 57(3) of the Provincial Offences Act, which protects an offender from providing evidence in respect to the offence or in respect to other uncharged or unconvicted offences involving the offender.

(d) A Defendant Has A Limited Obligation To Disclose Information To The Prosecution.

[119] In R. v. Stinchcombe, [1991] S.C.J. No. 83, the Supreme Court had held at paras. 12 and 28, that the prosecution's obligation to disclose all relevant information in the possession of the prosecution is an ongoing obligation even after a conviction has been entered against an accused, but that the defence has no reciprocal obligation or duty to disclose, and as such, is entitled to assume a purely adversarial role toward the prosecution:

I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.

With respect to timing, I agree with the recommendation of the Law Reform Commission of Canada in both of its reports that initial disclosure should occur before the accused is called upon to elect the mode of trial or to plead. These are crucial steps which the accused must take which affect his or her rights in a fundamental way. It will be of great assistance to the accused to know what are the strengths and weaknesses of the Crown's case before committing on these issues. As I have pointed out above, the system will also profit from early disclosure as it will foster the resolution of many charges without trial, through increased numbers of withdrawals and pleas of guilty. The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any time after the charge. Provided the request for disclosure has been timely, it should be complied with so as to enable the accused sufficient time before election or plea to consider the information. In the rare cases in which the accused is unrepresented, Crown counsel should advise the accused of the right to disclosure and a plea should not be taken unless the trial judge is satisfied that this has been done. At this stage, the Crown's brief will often not be complete and disclosure will be limited by this fact. Nevertheless, the obligation to disclose is a continuing one and disclosure must be completed when additional information is received.

[120] In addition, there are only limited obligations on the defence to disclose evidence to the prosecution. The prime example is the obligation of an accused person to disclose to the prosecution alibi evidence that would be advanced by the accused. Also, where the defence is calling expert evidence supported by a report, then the report and any other foundation materials must be disclosed to the prosecution before the expert witness is called to testify.

[121] Accordingly, for the present sentencing hearing, Broomfield has no reciprocal or legal obligation to disclose to the prosecution his economic or financial circumstances or documentation to the prosecution for the purposes of sentencing. However, Broomfield may still voluntarily choose to provide his personal financial documents to the prosecution on his own accord to facilitate a joint position on sentence.

(i) Broomfield Is Not A Compellable Witness For The Prosecution.

[122] Subsection 46(5) of the Provincial Offences Act expressly states that a defendant in a regulatory proceeding is not a compellable witness for the prosecution:

Defendant not compellable

46(5) Despite section 8 of the Evidence Act, the defendant is not a compellable witness for the prosecution.

[123] In addition, s. 8 of the Ontario Evidence Act R.S.O. 1990, c. E.23, expressly states that parties to an action and the persons on whose behalf it is brought, instituted, opposed or defended are, except as hereinafter otherwise provided, competent and compellable to give evidence on behalf of themselves or of any of the parties:

Evidence of parties

8(1) The parties to an action and the persons on whose behalf it is brought, instituted, opposed or defended are, except as hereinafter otherwise provided, competent and compellable to give evidence on behalf of themselves or of any of the parties, and the spouses of such parties and persons are, except as hereinafter otherwise provided, competent and compellable to give evidence on behalf of any of the parties.

[124] However, s. 9(1) of the Evidence Act, R.S.O. 1990, c. E.23, also provides that a witness shall not be excused from answering any question upon the ground that the answer may tend to criminate the witness. However, s. 9(2) provides that if a witness is compelled to answer, then the answer so given shall not be used or receivable in evidence against him or her in any civil proceeding or in any proceeding under any Act of the Legislature:

Witness not excused from answering questions tending to criminate

9(1) A witness shall not be excused from answering any question upon the ground that the answer may tend to criminate the witness or may tend to establish his or her liability to a civil proceeding at the instance of the Crown or of any person or to a prosecution under any Act of the Legislature.

Answer not to be used in evidence against witness

(2) If, with respect to a question, a witness objects to answer upon any of the grounds mentioned in subsection (1) and if, but for this section or any Act of the Parliament of Canada, he or she would therefore be excused from answering such question, then, although the witness is by reason of this section or by reason of any Act of the Parliament of Canada compelled to answer, the answer so given shall not be used or receivable in evidence against him or her in any civil proceeding or in any proceeding under any Act of the Legislature.

[125] In addition, s. 13 of the Charter protects a witness who testifies in any proceeding from having any incriminating evidence so given be used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence:

Self-crimination

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

[126] Moreover, Justice Lane held in R. v. Wells, [2003] O.J. No. 2025 (Ont. C.J.), at paras. 20 to 22, that it is fundamental principle that at all stages in the court process, the defendant has a right to remain silent, and cannot be made a compellable witness against themselves, or be required to incriminate themselves. Lane J. also recognized that s. 57(3) of the Provincial Offences Act makes it clear that the defendant cannot be compelled to answer questions put to him:

The conduct of the sentencing hearing raises significant concerns. The crown made no submissions as to sentence, and put forth no aggravating facts upon which sentence should be based. As the appellant was unrepresented, the presiding Justice proceeded to ask questions on which to base his sentence. As required by s. 57(1) of the Provincial Offences Act, he asked the defendant if he had anything to say before sentence is passed. Section 57(3) of the P.O.A. also provides that

"the court may make such inquiries, on oath or otherwise, of and concerning the defendant as it considers desirable, including the defendant's financial circumstances, but the defendant shall not be compelled to answer."

Although the Justice clearly has jurisdiction to "make inquiries" as indicated, his power to do so is not unconstrained. Questions can be asked about the defendant, but not about the offence: Drinkwater and Ewart, Ontario Provincial Offences Procedure, Carswell, 1980, p. 218. This is an important distinction. Questions about the offence are inappropriate as they can (as they did in this case) lead to the defendant "volunteering" additional information which can place him or her in greater jeopardy. This violates the fundamental principle that, at all stages in the court process, the defendant has a right to remain silent, and cannot be made a compellable witness against himself, or be required to incriminate himself. The statute itself makes it clear that the defendant cannot be compelled to answer questions put to him.

The power under s. 57(3), furthermore, is directed particularly to the financial circumstances of the defendant, so that his capacity to pay can be considered in imposing an appropriate sentence. It has been found, for example, that it is an error in principle to impose a fine without an investigation into the defendant's ability to pay, or to impose a fine which he or she lacks the means to pay within a reasonable time: Czumak v. Etobicoke (City), [1994] O.J No. 2247, September 16, 1994, Fairgrieve J., Ont. Prov. Ct.

[127] Consequently, by virtue of s. 46(5) of the Provincial Offences Act, Broomfield is not a compellable witness for the prosecution at all stages of the proceeding, including at the sentencing stage, which is also ingrained in s. 57(3) of the Provincial Offences Act.

(e) Where A Custodial Sentence Is Available As A Penalty, Then Relevant Information About The Offender's Background, Character, and Personal Circumstances Is Required For The Sentencing Hearing.

[128] For the case at bar, Broomfield is subject to a potential custodial sentence. For offenders facing the possibility of a sentence of imprisonment, the sentencing court under s. 56(1) of the Provincial Offences Act can ask for a pre-sentence report to be prepared by a probation officer detailing the offender's background, character, and personal circumstances. As a consequence of a pre-sentence report being prepared, the offender would have to reveal personal and private information to the probation officer, which could include personal financial information. Ergo, the Provincial Offences Act already allows for an offender to provide personal financial information to a probation officer, which could then be provided to the prosecutor and the sentencing court, although the offender would not be legally compelled to provide their personal financial documents to the probation officer.

(i) The Provincial Offences Act provides for pre-sentence reports to be prepared by a probation officer, which detail the offender's background, character, and personal circumstances.

[129] Under. s. 56(1) of the Provincial Offences Act, the sentencing court may direct a probation officer to prepare and file with the court a report in writing relating to the offender's background, character, and personal circumstances for the purpose of assisting the court in imposing sentence, especially if a custodial sentence is a possibility. However, the offender is not compelled to provide their personal financial documents to the probation officer for the purposes of the preparation of the pre-sentence report:

Pre-sentence report

56(1) Where a defendant is convicted of an offence in a proceeding commenced by information, the court may direct a probation officer to prepare and file with the court a report in writing relating to the defendant for the purpose of assisting the court in imposing sentence.

(ii) Balancing fairness to the offender with the sentencing court's requirement for relevant information.

[130] To arrive at a fit and just sentence, a sentencing court should have all relevant information about the offender. However, the sentencing court has to also ensure that the offender is treated fairly and with dignity during the sentencing process.

[131] In R. v. Gardiner, [1982] S.C.J. No. 71 (S.C.C.), Dickson J. had summarized the sentencing process as a fact finding and decision-making process that is one of the hardest tasks of a trial judge. Dickson J. also emphasized that for sentencing the trial judge should not be denied an opportunity to obtain relevant information by the imposition of all the restrictive evidential rules that are common to a trial. But, on the other hand, Dickson J. commented that the obtaining and weighing of such evidence should nevertheless be fair, considering that a substantial liberty interest of the offender is involved, so that the information obtained should be accurate and reliable. Moreover, Dickson J. noted that the strict rules of evidence which govern at trial do not apply at a sentencing hearing and that it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail. Accordingly, Dickson J. held that the trial judge in sentencing has traditionally had wide latitude as to the sources and types of evidence upon which to base their sentence. In other words, Dickson J. emphasized that the sentencing judge must have the fullest possible information concerning the background of the accused if the sentencing judge is to fit the sentence to the offender:

Sentencing is part of a fact finding, decision-making process of the criminal law. Sir James Fitzjames Stephen, writing in 1863 said that "the sentence is the gist of the proceeding. It is to the trial what the bullet is to the powder" (quoted in Olah, "Sentencing: The Last Frontier of the Criminal Law" (1980), 16 C.R. (3d) 97, at p. 98). The statement is equally true today.

One of the hardest tasks confronting a trial judge is sentencing. The stakes are high for society and for the individual. Sentencing is the critical stage of the criminal justice system, and it is manifest that the judge should not be denied an opportunity to obtain relevant information by the imposition of all the restrictive evidential rules common to a trial. Yet the obtaining and weighing of such evidence should be fair. A substantial liberty interest of the offender is involved and the information obtained should be accurate and reliable.

It is a commonplace that the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail. The hearsay rule does not govern the sentencing hearing. Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime.

[132] Furthermore, in R. v. Angelillo, 2006 SCC 55, [2006] S.C.J. No. 55 (S.C.C.), Charron J., at paras. 22 and 24, emphasized that the principles of sentencing are now codified in ss. 718 to 718.2 of the Criminal Code and that these provisions confirm that sentencing is an individualized process in which the court must take into account not only the circumstances of the offence, but also the specific circumstances of the offender. But more importantly, Charron J. noted that the objectives of sentencing cannot be fully achieved unless the information needed to assess the circumstances, character and reputation of the accused is before the court. In addition, Charron J. reasoned that the court must therefore consider facts extrinsic to the offence and that the proof of those facts often requires the admission of additional evidence:

The principles of sentencing are now codified in ss. 718 to 718.2 Cr. C. These provisions confirm that sentencing is an individualized process in which the court must take into account not only the circumstances of the offence, but also the specific circumstances of the offender (see Gladue; Proulx, at para. 82). Thus, the objectives of sentencing cannot be fully achieved unless the information needed to assess the circumstances, character and reputation of the accused is before the court. The court must therefore consider facts extrinsic to the offence, and the proof of those facts often requires the admission of additional evidence.

… The fundamental principle of proportionality requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender; a prior conviction cannot, therefore, justify a disproportionate sentence. This principle, which is set out in s. 718.1 Cr. C., assures repeat offenders the right not to be "punished . . . again", as guaranteed in s. 11 (h) of the Charter. The sentence imposed on a repeat offender may well be more severe, but this is not contrary to the offender's right not to be punished again. From the standpoint of proportionality, the sentence imposed in such a case is merely a reflection of the individualized sentencing process.

(f) Presumption of innocence no longer applies at the sentencing stage.

[133] Charron J., at para. 18, in R. v. Angelillo, 2006 SCC 55, [2006] S.C.J. No. 55 (S.C.C.), had also emphasized that the presumption of innocence is not irrebuttable. In addition, Charron J. noted that at the sentencing stage, the presumption of innocence would obviously be rebutted with respect to the offence of which the accused has been convicted. As a consequence of the presumption of innocence being rebutted, Charron J. indicated that in determining a just and appropriate sentence, the sentencing judge can consider the underlying facts of the offence that has been proved:

Every accused person has the right to be presumed innocent. This fundamental right is not only set out in s. 6 Cr. C., but is also guaranteed by s. 11 (d) of the Canadian Charter of Rights and Freedoms. However, the presumption of innocence is not irrebuttable. At the sentencing stage, it has obviously been rebutted with respect to the offence of which the accused has been convicted. There is therefore no question that, in determining the just and appropriate sentence, the judge can consider the underlying facts of the offence that has been proved. Moreover, sentencing is an individualized process in which the court must take into account not only the circumstances of the offence, but also the specific circumstances of the offender. I would like to note at the outset that the requirements for admissibility and the standard of proof to be applied in establishing all the relevant circumstances for sentencing purposes are issues that have already been considered by this Court, and that they are not in any way new principles.

(g) Self-incrimination and compelling the production of financial documents for the purposes of sentencing.

[134] Another issue that arises is how would Broomfield's personal, as well as his business's financial documents, as evidence, be treated in a sentencing hearing. In R. v. D'Amour, [2002] O.J. No. 3103, Doherty J.A. for the Court of Appeal for Ontario held, at para. 37, that documents which had existed prior to, and independent of, any state compulsion do not, constitute evidence "created" by the person required to produce those documents. The Court of Appeal also confirmed that except with certain narrow exceptions, neither the compelled production of such documents, nor the subsequent use in a criminal proceeding of such documents, attracts the protection of the principle against self-incrimination:

Documents that exist prior to, and independent of, any state compulsion do not, however, constitute evidence "created" by the person required to produce those documents. With certain narrow exceptions, neither the compelled production of such documents, nor the subsequent use in a criminal proceeding of such documents, attracts the protection of the principle against self-incrimination: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) (1990), 54 C.C.C. (3d) 417, per Sopinka J. at pp. 554-56, per L'Heureux-Dubé J. at pp. 538-39; British Columbia Securities Commission v. Branch (1995), 97 C.C.C. (3d) 505 at 524-25 (S.C.C.); R. v. Fitzpatrick, supra, at pp. 154-55; R. v. Jarvis (2000), 2000 ABCA 304, 149 C.C.C. (3d) 498 at 510-13 (Alta. C.A.).

[135] Furthermore, in Scott Jones v. R., [1994] S.C.J. No. 42 (S.C.C.), Gonthier J., writing for the majority of the Supreme Court, had held at paras. 110 to 111, 114, and 123, that an accused is transformed from an accused to an offender at the sentencing proceeding and has already been criminated and found culpable of the offence for which the accused had been charged with. Gonthier J. also confirmed that there is a distinction between sentencing and culpability proceedings and that ss. 7 to 14 Charter protection has a more limited scope when applied to the sentencing process. He also held that once guilt has been established, fundamental principles of justice dictate a focus on the most appropriate sentence for the guilty party. Moreover, Gonthier J. noted that to assume s. 7 post-trial protection should be identical to pre-trial and trial protection ignores a rather critical intervening fact: the accused has been found guilty of a crime:

With the greatest of respect, I cannot agree with the characterization of Lamer C.J.C. that the results of the psychiatric observation are used to "incriminate" the accused at his dangerous offender proceedings. They are not. By the time the accused reaches the dangerous offender proceeding state, he has already been found culpable of the offence for which he was charged. He has, in effect, already been "criminated", transformed from "accused" to "offender". Section 753 proceedings are sentencing provisions and do not constitute a separate charge against the offender. A conclusion that the individual is a dangerous offender does not constitute a separate finding of culpability any more than any particular sentence generates a distinct culpability.

The distinction between sentencing and culpability proceedings was reinforced by this court in R. v. Lyons, supra. In that case, LaForest J., speaking for the majority, held that the dangerous offender provisions contained in ss. 687 to 695 of the Criminal Code did not violate s. 7, 9, 11 or 12 of the Charter.

At no point does Wilson J. suggest that since true penal consequences are faced at the sentencing stage, the sentencing proceedings themselves attract full s. 11 protection. All sentencing proceedings involve true penal consequences. Whether the convicted party is faced with a sentence of ten years or an indeterminate sentence, as in the case of dangerous offender proceedings, his sentencing hearing involves true penal consequences for him. These penal consequences are the result of his having been found guilty of committing a serious crime during a proceeding at which full s. 11 protection was available to him. Lamer C.J.C.'s logic would have us hold that the existence of true penal consequences at the sentencing stage is enough to invoke full Charter protection during those proceedings in spite of the fact that the party has already been found guilty of an offence. With the greatest of respect, I do not believe that this position can be supported by the existing jurisprudence. Lyons remains unchallenged in its contention that a person facing dangerous offender proceedings is not charged with a separate offence any more than any sentencing proceeding constitutes a separate offence.

The slightly wider point to be drawn from Hebert is that s. 7 protection must extend to the pre-trial period in order to ensure that the ensuing trial is fair. On this point, McLachlin J. held, at p. 174:

From a practical point of view, the relationship between the privilege against self-incrimination and the right to silence at the investigatorial phase is equally clear. The protection conferred by a legal system which grants the accused immunity from incriminating himself at trial but offers no protection with respect to pre-trial statements would be illusory.

Full s. 7 protection in the pre-trial phase is essential to ensuring that an accused is not found culpable as a result of non-voluntary statements made against himself. That logic cannot easily be transferred to the post-trial phase. Given that guilt has conclusively been determined by that time, I do not believe that the logic of Hebert applies. As this court held in Lyons, ss. 7 to 14 protection has a more limited scope when applied to the sentencing process. Once guilt has been established, our fundamental principles of justice dictate a focus on the most appropriate sentence for the guilty party. To assume that s. 7 post-trial protection should be identical to pre-trial and trial protection ignores a rather critical intervening fact: the accused has been found guilty of a crime. Having so found, the court places greater emphasis on the interests of society in developing a sentence that is appropriate to the guilty party. Evidence introduced at trial may be used in this assessment. I would argue that evidence emerging from the psychiatric evaluation should be similarly treated.

[136] In R. v. M.(I.G.) [R. v. McPherson], [1997] N.W.T.J. No. 29 (N.W.T.S.C.), at paras. 7 and 8, Vertes J. held that s.11 of the Charter does not apply to sentencing proceedings, since the guilt of the offender on the offence with which he was charged has already been determined and that the rights protected by s. 11 of the Charter only apply to persons "charged with an offence":

First, the offender submitted that s. 756 violates his fight against self-incrimination, as protected by s.11(c) of the Charter of Rights and Freedoms. In my opinion this submission has been definitively answered by the Supreme Court of Canada in their decisions in R. v. L. (T.P.) (1987), 37 C.C.C. (3d) 1 (S.C.C.), and R. v. Jones (1994), 89 C.C.C. (3d) 353 (S.C.C.).

In those cases, a majority of the Court held that proceedings under Part XXIV are part of a sentencing process. It is not the adjudication of a new offence. Hence, since the rights protected by s. 11 of the Charter apply to persons "charged with an offence", and since the guilt of the offender on the offence with which he was charged has already been determined, s.11 does not apply to these proceedings.

[137] In addition, the prosecution had also submitted that Broomfield's financial documents are not being sought as evidence for the purposes of proving an offence, but for the purposes of sentencing where Broomfield has already been convicted of committing an offence, and as such, s. 8 of the Charter would not apply.

[138] However, the financial documents being sought by the prosecution may contain information or evidence about the offences Broomfield had been convicted of or of other uncharged or unconvicted offences in respect to Broomfield, for which Broomfield cannot be compelled to produce if such documents would incriminate him.

[139] Nevertheless, based on R. v. D'Amour, [2002] O.J. No. 3103 (Ont. C.A.), financial documents, such as banking documents and tax documents related to Broomfield's business is not testimonial evidence and is not protected by the right against self-incrimination. However, the sentencing court before compelling Broomfield to produce these financial documents is required to ensure that Broomfield is not providing evidence of the offence that he has been convicted of, in case of an appeal, nor that he is providing evidence of other offences that he has not been charged with or had been convicted on.

(i) Tax documents for the offender and his business are not difficult to obtain by the offender.

[140] In Ontario (Ministry of Labour) v. Sunrise Propane Energy, at para. 39, Chapin J. took judicial notice that copies of both corporate and personal tax documents that have been filed with the Federal Government are not difficult to obtain as proof of the offender's lack of an ability to pay the fine:

I can certainly take judicial notice of the fact that the Federal Government keeps copies of both corporate and personal tax documents filed and it would not be difficult for the defendants to obtain copies of this information regardless of the destruction of paperwork at the Sunrise Propane facility at 54 Murray Road. There is simply no reliable information before me that would allow me to conclude that there is a lack of ability to pay and the defendants have failed to establish this mitigating factor. I am cognizant of the fact that there are numerous civil law suits, but again, in my view I do not have sufficient information to allow me to consider this as tending to show an inability to pay a substantial fine.

(h) Does the Provincial Offences Act Or The Electricity Act, 1998 Provide Explicit Jurisdiction For The Sentencing Judge To Compel An Offender To Disclose Or Produce Personal As Well As Their Business's Financial Documents To The Prosecution For The Purposes Of Sentencing?

[141] There is no specific provision in the Provincial Offences Act that expressly provides jurisdiction to the sentencing court to compel an offender to produce their financial documents to the prosecution for the purposes of sentencing. Subsection 57(3) of the Provincial Offences Act only explicitly provides the jurisdiction for the sentencing court to make inquiries of the offender about their economic circumstances during the sentencing hearing. However, s. 57(3) also expressly states that an offender is not compelled to answer any inquiries made by the sentencing court. But then again, Lane J. had also clarified the purpose of s. 57(3) in R. v. Wells, [2003] O.J. No. 2025 (Ont. C.J.), in which Lane J. had explained that the power of the sentencing court under s. 57(3) to make inquiries of the offender during the sentencing hearing is directed particularly to the financial circumstances of the defendant, so that his capacity to pay can be considered in imposing an appropriate sentence. Moreover, Lane J. also recognized that s. 57(3) ensures that the offender is not compelled to answer the court's inquiries which are related to questions about the offence, in order that the offender would not volunteer information that could put the offender into greater jeopardy. Lane J. had also made these conclusions about the role of s. 57(3) during the sentencing hearing by relying on p. 218 of Drinkwalter and Ewart's textbook, "Ontario Provincial Offences Procedure" (Toronto, Canada: The Carswell Company Limited, 1980), where Drinkwalter and Ewart had also emphasized that the purpose behind s. 57(3) was to facilitate the obtaining of accurate information about the offender before a fine is imposed, but that the sentencing court is also not permitted to ask the offender questions about the offence, but only about the defendant and their economic circumstances.

[142] Moreover, if s. 57(3) were to be narrowly interpreted so as to prevent a sentencing court from being able to obtain relevant information about the offender for sentencing purposes, or for that matter to investigate or make inquiries of the offender about the offender's economic circumstances to determine the offender's ability to pay a fine, it would be in conflict with the principle established by the Supreme Court of Canada in R. v. Topp, 2011 SCC 43, [2011] S.C.J. No. 43, that a sentencing court is required to investigate or inquire about an offender's ability to pay a fine within a reasonable period before it is permitted to impose a fine.

(i) Does The Electricity Act, 1998 Require A Defendant To Produce Financial Documents To The Prosecution For The Purposes Of Sentencing?

[143] Correspondingly, there is also no provision in the Electricity Act, 1998, S.O. 1998, c. 15, Sch. A., that compels a defendant to produce their financial documents to the prosecution for the purposes of sentencing.

(ii) Does s. 57(3) of the Provincial Offences Act , which expressly states that an offender does not have to answer any inquiry made by the sentencing judge, prohibit the sentencing court from compelling production of an offender's personal, as well as their business's financial documents, to the prosecution, prior to the sentencing hearing?

[144] Broomfield submits that s. 57(3) of the Provincial Offences Act is a complete answer to the prosecution's application. In other words, Broomfield submits that even though the sentencing court may make inquiries of the offender about the offender's economic circumstances, the offender is not required to answer. Ergo, Broomfield contends that by virtue of s. 57(3), he does not have to provide any financial documents to the prosecution, as he cannot be compelled in any event during the sentencing hearing to answer any inquiry made of him, including questions about his economic circumstances.

[145] However, in contending that the sentencing judge does indeed have both the power and jurisdiction, explicitly and implicitly, to compel Broomfield to produce his personal financial documents or his company's financial documents to the prosecution, the prosecution submits that the provision in s. 57(3) of the Provincial Offences Act, which states that the offender does not have to answer any of the sentencing court's inquiries during the sentencing hearing, only applies to an offender's oral testimony or to an offender's oral responses that are not given under oath or affirmation, which would be given in the actual sentencing hearing, but does not apply to the post-conviction and pre-sentencing part of the trial.

[146] Then again, unlike like the Criminal Code, the Provincial Offences Act does not specifically set out the factors or goals of sentencing. Therefore, because the Provincial Offences Act does not set out the factors or goals of sentencing, the prosecution in contending that this sentencing court has the jurisdiction or power to compel Broomfield to produce his financial documents, relies on paras. 21 and 22 in R. v. C. (K.), [2005] O.J. No. 2046 (Ont. C.J.), in which Kukurin J. explained that the area of sentencing under the Provincial Offences Act in effect is quite open, and as such, there would be nothing improper in picking and choosing anything found in the Criminal Code or in the YCJA and apply it to a Provincial Offences Act sentencing.

(A) Section 57(3) of the Provincial Offences Act.

[147] Subsection s. 57(3) of the Provincial Offences Act, does indeed provide the sentencing justice the jurisdiction and the power to make inquiries, on oath or otherwise, of and concerning the offender as it considers desirable, including the offender's economic circumstances:

Inquiries by court

57(3) Where a defendant is convicted of an offence, the court may make such inquiries, on oath or otherwise, of and concerning the defendant as it considers desirable, including the defendant's economic circumstances, but the defendant shall not be compelled to answer.

[148] However, even though a sentencing court is permitted to make inquiries of the offender about the offender's economic circumstances for the purposes of sentencing, s. 57(3) also clearly states that the offender is not compelled to answer any of the sentencing court's inquiries.

[149] On the other hand, s. 57(3) is within the section that specifically refers to "other information relevant to sentence", and therefore, information pertaining to an offender's ability to pay would be relevant information for the sentencing court to have in determining a fit and just sentence. And, as it is a principle of sentencing that a court cannot impose a fine unless it has investigated or inquired into the offender's ability to pay, then it follows that there would be times when the offender's financial documents may be necessary to be provided to the sentencing court in order for it to truly determine the offender's ability to pay a fine and/or for an offender to make restitution, either through voluntary production by the offender or through court compulsion. Accordingly, the power for a sentencing court to compel an offender to produce or disclose to the prosecution their financial documents for the purposes of sentencing is a necessary and practical power for the court to have in order to obtain relevant financial information about the offender in determining an offender's ability to pay. However, such power to compel production of an offender's financial documents should only be used by the sentencing court when there are exceptional circumstances.

[150] Of course, before compelling production of an offender's financial documents, the sentencing court will have to balance fairness to the defendant with the court's need for relevant information in the sentencing process, by ensuring that the financial documents are only to be used for sentencing purposes and not as evidence of the offence for which the offender had been convicted on or as evidence of other offences for which they have not been charged or convicted.

(iii) Would a pre-hearing order compelling production of the offender's financial documents fall under the auspice of s. 57(3) of the Provincial Offences Act?

[151] The prosecution also contends that there is a distinction between the pre-sentencing phase and the sentencing phase, in that Broomfield cannot be compelled to answer any inquiry, including an inquiry made by the sentencing justice about Broomfield's economic circumstances during the sentencing hearing, but that there is no prohibition in the Provincial Offences Act to prevent the sentencing justice from compelling the offender to disclose or provide to the prosecution their financial documents for the purposes of sentencing prior to the actual sentencing hearing being held, since the s. 57(3) protection only applies if Broomfield's testifies in the actual sentencing hearing or is otherwise questioned by the sentencing court during the sentencing hearing.

[152] Furthermore, where a fine or restitution is an appropriate sanction, then an offender's economic circumstances in respect to the offender's ability to pay is critical and relevant evidence that a sentencing is required to have before it can impose a fine. And, since the Supreme Court in R. v. Topp, 2011 SCC 43, [2011] S.C.J. No. 43, has held that a fine cannot be imposed unless the sentencing court has investigated the offender's ability to pay, then a sentencing court cannot fulfill its mandate to determine and impose a fit and just sentence without having knowledge of the offender's economic circumstances in respect to the determination of the offender's ability to pay.

[153] Accordingly, after considering the prosecution's and Broomfield's arguments and the relevant principles and relevant caselaw in regards to s. 57(3) of the Provincial Offences Act, the non-compulsion of the offender to answer only refers to inquires made to the offender during the actual sentencing hearing which treads on the offence the offender has been convicted on or on other offences which could involve the offender. On the other hand, inquiries of the offender which only relate to the offender or to the offender's ability to pay a fine may be made by the sentencing court to the offender before the actual sentencing hearing or during the actual sentencing hearing, to facilitate the sentencing court being able to fulfill its mandate in determining a fit and just sentence. Therefore, s. 57(3) sets out explicit jurisdiction for this court to investigate Broomfield's economic circumstances for sentencing purposes, especially in respect to Broomfield's ability to pay a fine. However, this investigation into Broomfield's economic circumstances cannot be for the purpose of obtaining evidence about the offence that Broomfield had been convicted on or for obtaining evidence about other uncharged or unconvicted offences.

(C) Does The Sentencing Judge Have An Implied Power To Compel The Offender To Disclose Or Produce Their Personal, As Well As Their Business's Financial Documents, To The Prosecution For The Purposes Of Sentencing?

[154] The prosecution also contends that this court has the implicit jurisdiction and power under the common law, through the "doctrine of jurisdiction by necessary implication", to compel Broomfield to disclose or produce to the prosecution his personal, as well and his business's financial documents, for the purposes of sentencing.

(1) The "doctrine of jurisdiction by necessary implication".

[155] In R. v. Cunningham, 2010 SCC 10, [2010] S.C.J. No. 10, at paras. 18 and 19, Rothstein J. writing for the Supreme Court, had recognized that when determining the powers of a statutory body, tribunal, or court, the "doctrine of jurisdiction by necessary implication" would apply for all courts. Rothstein J. also concluded that even though Bastarache J. had only referred to the use of the doctrine for an administrative tribunal in ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] S.C.J. No. 4, the same doctrine or rule of jurisdiction nevertheless applies equally to statutory courts when determining the powers of that statutory court. More importantly, Rothstein J. also emphasized that statutory courts can exercise all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime. As such, Rothstein J. confirmed that statutory courts have the authority to control their own process and exercise powers that are necessarily implied in the grant of power to function as a court of law:

Superior courts possess inherent jurisdiction to ensure they can function as courts of law and fulfil their mandate to administer justice (see I. H. Jacob, "The Inherent Jurisdiction of the Court" (1970), 23 Curr. Legal Probs. 23, at pp. 27-28). Inherent jurisdiction includes the authority to control the process of the court, prevent abuses of process, and ensure the machinery of the court functions in an orderly and effective manner. …

Likewise in the case of statutory courts, the authority to control the court's process and oversee the conduct of counsel is necessarily implied in the grant of power to function as a court of law. This Court has affirmed that courts can apply a "doctrine of jurisdiction by necessary implication" when determining the powers of a statutory tribunal:

. . . the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime . . . .

(ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51)

Although Bastarache J. was referring to an administrative tribunal, the same rule of jurisdiction, by necessary implication, would apply to statutory courts.

[156] Furthermore, in Doyle v. R., [1976] S.C.J. No. 38, Ritchie J., for the Supreme Court of Canada, held that the powers and functions of a magistrate acting under the Criminal Code are circumscribed by the provisions of that statute and must be found to have been thereby conferred either expressly or by necessary implication:

Whatever inherent powers may be possessed by a superior court judge in controlling the process of his own Court, it is my opinion that the powers and functions of a magistrate acting under the Criminal Code are circumscribed by the provisions of that statute and must be found to have been thereby conferred either expressly or by necessary implication.

I am not unaware of the fact that Mr. Justice Kelly of the Court of Appeal for Ontario in R. v. Keating, expressed the opinion that the Criminal Code

…does not restrict the inherent jurisdiction the Court possesses to control its own process and proceedings in any manner not contrary to the provisions of the Criminal Code or any other statute;…

I am, however, unable to subscribe to this opinion as I take the view that the careful and detailed procedural directions contained in the Code are of necessity exhaustive, and as I have indicated, I regard the powers of a magistrate or justice acting under the Criminal Code as entirely statutory.

[157] Moreover, the Supreme Court of Canada had held in ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] S.C.J. No. 4, at paras. 35 to 38 and 49 to 51, that statutory bodies such as tribunals and boards obtain their jurisdiction over matters from two sources: (1) express grants of jurisdiction under various statutes (explicit powers); and (2) the common law, by application of the doctrine of jurisdiction by necessary implication (implicit powers). In addition, the Supreme Court noted that the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime created by the legislature. The Supreme Court also noted that a statutory body's implied powers is determined by the application of the "doctrine of jurisdiction by necessary implication":

Administrative tribunals or agencies are statutory creations: they cannot exceed the powers that were granted to them by their enabling statute; they must "adhere to the confines of their statutory authority or 'jurisdiction'[; and t]hey cannot trespass in areas where the legislature has not assigned them authority": Mullan, at pp. 9-10 (see also S. Blake, Administrative Law in Canada, (3rd ed. 2001), at pp. 183-184).

In order to determine whether the Board's decision that it had the jurisdiction to allocate proceeds from the sale of a utility's asset was correct, I am required to interpret the legislative framework by which the Board derives its powers and actions.

2.3.1 General Principles of Statutory Interpretation

For a number of years now, the Court has adopted E. A. Driedger's modern approach as the method to follow for statutory interpretation (Construction of Statutes (2nd ed. 1983), at p. 87):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

(See, e.g., see Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, at paras. 186-87; Marche v. Halifax Insurance Co., [2005] 1 S.C.R. 47, 2005 SCC 6, at para. 54; Barrie Public Utilities, at paras. 20 and 86; Contino v. Leonelli-Contino, 2005 SCC 63, at para. 19.)

But more specifically in the area of administrative law, tribunals and boards obtain their jurisdiction over matters from two sources: 1) express grants of jurisdiction under various statutes (explicit powers); and 2) the common law, by application of the doctrine of jurisdiction by necessary implication (implicit powers) (see also D. M. Brown, Energy Regulation in Ontario (loose-leaf ed.), at p. 2-15).

2.3.3 Implicit Powers: Entire Context

The provisions at issue are found in statutes which are themselves components of a larger statutory scheme which cannot be ignored:

As the product of a rational and logical legislature, the statute is considered to form a system. Every component contributes to the meaning as a whole, and the whole gives meaning to its parts: "each legal provision should be considered in relation to other provisions, as parts of a whole" ...

(P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 308)

As in any statutory interpretation exercise, when determining the powers of an administrative body, courts need to examine the context that colours the words and the legislative scheme. The ultimate goal is to discover the clear intent of the legislature and the true purpose of the statute while preserving the harmony, coherence and consistency of the legislative scheme (Bell ExpressVu, at para. 27; see also Interpretation Act, R.S.A. 2000, c. I-8, s. 10 (in Appendix)). "[S]tatutory interpretation is the art of finding the legislative spirit embodied in enactments": Bristol-Myers Squibb Co., at para. 102.

Consequently, a grant of authority to exercise a discretion as found in s. 15(3) of the AEUBA and s. 37 of the PUBA does not confer unlimited discretion to the Board. As submitted by ATCO, the Board's discretion is to be exercised within the confines of the statutory regime and principles generally applicable to regulatory matters, for which the legislature is assumed to have had regard in passing that legislation (see Sullivan, at pp. 154-55). In the same vein, it is useful to refer to the following passage from Bell Canada v. Canada (Canadian Radio-Television and Tele-communications Commission), [1989] 1 S.C.R. 1722, at p. 1756:

The powers of any administrative tribunal must of course be stated in its enabling statute but they may also exist by necessary implication from the wording of the act, its structure and its purpose. Although courts must refrain from unduly broadening the powers of such regulatory authorities through judicial law-making, they must also avoid sterilizing these powers through overly technical interpretations of enabling statutes.

The mandate of this Court is to determine and apply the intention of the legislature (Bell ExpressVu, at para. 62) without crossing the line between judicial interpretation and legislative drafting (see R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 26; Bristol-Myers Squibb Co., at para. 174). That being said, this rule allows for the application of the "doctrine of jurisdiction by necessary implication"; the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime created by the legislature (see Brown, at p. 2-16.2; Bell Canada, at p. 1756). Canadian courts have in the past applied the doctrine to ensure that administrative bodies have the necessary jurisdiction to accomplish their statutory mandate:

When legislation attempts to create a comprehensive regulatory framework, the tribunal must have the powers which by practical necessity and necessary implication flow from the regulatory authority explicitly conferred upon it.

Re Dow Chemical Canada Inc. and Union Gas Ltd. (1982), 141 D.L.R. (3d) 641 (Ont. H.C.J.), aff'd (1983), 42 O.R. (2d) 731 (C.A.) (see also Interprovincial Pipe Line Ltd. v. National Energy Board, [1978] 1 F.C. 601 (C.A.); Canadian Broadcasting League v. Canadian Radio-television and Telecommunications Commission, [1983] 1 F.C. 182 (C.A.), aff'd., [1985] 1 S.C.R. 174).

[158] Moreover, in R. v. 974649 Ontario Inc. c.o.b. as Dunedin Construction (1992) and Bob Hoy, 2001 SCC 81, [2001] S.C.J. No. 79 (S.C.C.), at para. 70, McLachlin C.J. for the Supreme Court of Canada, confirmed that the powers of a statutory court or tribunal extend beyond the express language of its enabling legislation to the powers necessary to perform its intended functions. In addition, McLachlin C.J. emphasized that a statutory body enjoys not only the powers expressly conferred upon it, but also by implication all powers that are reasonably necessary to accomplish its mandate. Moreover, McLachlin C.J. explained that the function of a statutory body is of principal importance in assessing whether it is vested with an implied power and that such implied powers are found only where they are required as a matter of practical necessity for the court or tribunal to accomplish its purpose:

It is well established that a statutory body enjoys not only the powers expressly conferred upon it, but also by implication all powers that are reasonably necessary to accomplish its mandate: Halsbury's Laws of England (4th ed. 1995), vol. 44(1), at para. 1335. In other words, the powers of a statutory court or tribunal extend beyond the express language of its enabling legislation to the powers necessary to perform its intended functions: Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722.

Consequently, the function of a statutory body is of principal importance in assessing whether it is vested with an implied power to grant the remedy sought. Such implied powers are found only where they are required as a matter of practical necessity for the court or tribunal to accomplish its purpose: National Energy Board Act (Can.) (Re), [1986] 3 F.C. 275 (C.A.). While these powers need not be absolutely necessary for the court or tribunal to realize the objects of its statute, they must be necessary to effectively and efficiently carry out its purpose: Interprovincial Pipe Line Ltd. v. National Energy Board, [1978] 1 F.C. 601 (C.A.); Bell Canada, supra; Macaulay and Sprague, supra, vol. 4, at p. 29-2. This emphasis on the function of a court or tribunal, in discerning the powers with which the legislature impliedly endowed it, accords with the functional and structural approach to the Mills test set out above.

[159] Also, in Bruce (County) v. Kramer, [2007] O.J. No. 308 (Ont. S.C.), at para. 55, Murray J. confirmed that a statutory court or tribunal's powers extend beyond the express language of its enabling legislation to the powers necessary to perform its intended functions:

… A statutory body enjoys not only the powers expressly conferred upon it, but also by implication all powers that are reasonably necessary to accomplish its mandate. In other words, the power of a statutory court or tribunal extends beyond the express language of its enabling legislation to the powers necessary to performance intended functions: See Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722.

(2) For determining the powers of a statutory court, what is the test or circumstances for when the "doctrine of jurisdiction by necessary implication" may be applied?

[160] The Supreme Court of Canada in ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] S.C.J. No. 4, at paras. 73 to 74, set out the test or circumstances for when the doctrine of "jurisdiction by necessary implication" may be applied for determining the powers of a statutory court:

The City seems to assume that the doctrine of jurisdiction by necessary implication applies to "broadly drawn powers" as it does for "narrowly drawn powers"; this cannot be. The Ontario Energy Board in its decision in Re Consumers' Gas Co. (1987), E.B.R.O. 410-II/411-II/412-II, at para. 4.73, enumerated the circumstances when the doctrine of jurisdiction by necessary implication may be applied:

1. when the jurisdiction sought is necessary to accomplish the objects of the legislative scheme and is essential to the Board fulfilling its mandate;

2. when the enabling act fails to explicitly grant the power to accomplish the legislative objective;

3. when the mandate of the Board is sufficiently broad to suggest a legislative intention to implicitly confer jurisdiction;

4. when the jurisdiction sought is not one which the Board has dealt with through use of expressly granted powers, thereby showing an absence of necessity; and

5. when the legislature did not address its mind to the issue and decide against conferring the power to the Board. (See also Brown, at p. 2-16.3.)

In light of the above, it is clear that the doctrine of jurisdiction by necessary implication will be of less help in the case of broadly drawn powers than for narrowly drawn ones. Broadly drawn powers will necessarily be limited to only what is rationally related to the purpose of the regulatory framework. This is explained by Professor Sullivan, at p. 228:

In practice, however, purposive analysis makes the powers conferred on administrative bodies almost infinitely elastic. Narrowly drawn powers can be understood to include "by necessary implication" all that is needed to enable the official or agency to achieve the purpose for which the power was granted. Conversely, broadly drawn powers are understood to include only what is rationally related to the purpose of the power. In this way the scope of the power expands or contracts as needed, in keeping with the purpose. [Emphasis added.]

[161] Consequently, it has to be next decided if the jurisdiction to compel Broomfield to disclose or produce to the prosecution his financial documents is implicitly provided to a Provincial Offences Court under s. 57(3) of the Provincial Offences Act using the criteria adopted by the Supreme Court at para. 73 in ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] S.C.J. No. 4. If it there is such jurisdiction, then should it be exercised in the present case? Moreover, if this jurisdiction does exit, then in deciding whether to exercise such jurisdiction to compel production of Broomfield's financial documents or information, what criteria and for what circumstances would be applicable to decide when such jurisdiction should be exercised?

(3) S. 57(3) of the Provincial Offences Act is a procedural provision and not a substantive provision.

[162] The prosecution also relies on Ontario v. Tenny, [2015] O.J. No. 1497 (Ont. S.C.), for the proposition that a procedural provision is to be interpreted liberally and broadly as opposed to a substantive provision. In Ontario v. Tenny, Elies J. held, at paras. 19 to 25, that courts have been willing to apply a more liberal construction for procedural provisions:

I do not need to cite authority for the well-established principle that penal statutes must ordinarily be interpreted strictly and, where there is any uncertainty or ambiguity in the legislation, it must be interpreted in favour of the accused. However, the principle of strict interpretation may be relaxed in favour of a more liberal interpretation in at least two situations, both of which obtain here, namely:

(1) where the statutory provision in question relates to a procedural issue, as opposed to creating a substantive offence; and

(2) where the statute in question relates to regulatory, as opposed to purely criminal, proceedings.

Procedural v. Substantive Statutory Provisions

There is a distinction made in the jurisprudence between statutory provisions purporting to create an offence by proscribing certain conduct and those pertaining to purely procedural aspects of penal proceedings. As Dickson J. wrote in Marcotte v. Canada (Deputy A.G.), [1976] 1 S.C.R. 108, at p. 115, with respect to the former:

If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, but implication.

Courts have been willing to apply a more liberal construction, however, to procedural aspects of penal legislation. For example, in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, the Supreme Court of Canada was called upon to determine whether the provisions of s. 487(1) of the Criminal Code, which permitted a search warrant to be issued to search for "evidence with respect to the commission of an offence", also permitted a warrant to be issued to search for evidence of a possible defence. In holding that it did, the Supreme Court rejected the submission that the provision should be given a restrictive meaning. Major J. found, at para. 18, that s. 487(1) of the Criminal Code was not the type of penal provision to which the rule of strict construction should apply.

In this case, we are not dealing with a section that purports to create an offence, for example, with the section of the EPA under which Mr. Tenny has been charged. We are, instead, dealing with a purely procedural provision. Mr. Tenny's liberty is at stake only to the extent that the substantive charge is made out, not because he is compelled to answer to the charge by some method other than personal service.

Regulatory v. Purely Criminal Proceedings

The rule of strict construction is also not applied with the same vigour to regulatory statutes as it is to purely criminal statutes. As Ruth Sullivan writes in Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at s.15.24:

Penal legislation is legislation that creates offences punishable by fine, imprisonment or forfeiture of a right or privilege. This includes all offences found in the Criminal Code. Whether it includes regulatory offences is more doubtful. In Merk v. Local 771, [2005 SCC 70, [2005] 3 S.C.R. 425, at para. 33], responding to the argument that the provision to be interpreted should receive a strict construction, Binnie J. wrote:

In my view, with respect, this approach is of limited value when interpreting a regulatory statute such as The Labour Standards Act. If it is concluded in all the relevant circumstances that the legislature intended a broad approach, that is the approach that will be adopted.

As Sullivan also points out, at s.15.20, all Canadian jurisdictions have enacted legislation similar to that contained in s. 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, which reads:

64. (1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

Sullivan writes, in the same paragraph:

In the clearest possible language, this statutory directive abolishes the distinction between strict and liberal construction and requires all legislation, penal legislation included, to be interpreted in a purposeful manner, regardless of the impact on private rights or freedom.

[163] Consequently, because of s. 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, which requires that public welfare legislation in Ontario be interpreted as being remedial and be given such fair, large and liberal interpretation as best ensures the attainment of its objects, and because s. 57(3) of the Provincial Offences Act is a statutory provision in a procedural statute, then s. 57(3) is to be interpreted in large and liberal and purposeful manner as best ensures the attainment of the objects of the Provincial Offences Act.

(4) Conclusion on whether a sentencing court has the jurisdiction by necessary implication to compel an offender to produce or disclose their financial documents to the prosecution for the purposes of sentencing?

[164] In R. v. Fercan Developments Inc., 2016 ONCA 269, [2016] O.J. No. 1925, at paras. 49 to 55, the Court of Appeal for Ontario considered the "doctrine of jurisdiction by necessary implication" to determine if the application judge for a CDSA forfeiture application had an implied power to award costs in appropriate circumstances. The Court of Appeal had held that the provincial court hearing the forfeiture application did have the implied power to award costs and that this implied power had been reasonably necessary for it to discharge its mandate in a fair and efficient manner. Moreover, the Court of Appeal held that this implied power is derived from the authority possessed by every court of law (including a statutory court) to control its own process, and that a statutory court's ability to control its own process is largely parallel to a superior court's ability to control its own process:

I conclude that a provincial court hearing a CDSA forfeiture application has an implied power to award costs in appropriate circumstances. I come to that conclusion for three reasons.

First, that power is derived from the authority, possessed by every court of law, to control its own process. The Crown accepts, correctly in my view, that a superior court has the ability to award costs pursuant to its power to control its own process. That power is part of a superior court's inherent jurisdiction: Canada (Attorney General) v. Pacific International Securities Inc., 2006 BCCA 303, 209 C.C.C. (3d) 390, at para. 28. This court in R. v. Chapman (2006), 78 O.R. (3d) 778, at para. 16, recognized that, pursuant to the power to control its own process, a superior court can order parties to pay costs for frivolous or abusive proceedings or in cases involving misconduct.

A statutory court also has the power to control its own process. That power is necessarily implied in a legislative grant of power to function as a court of law: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19.

The Supreme Court of Canada has discussed the power of statutory courts to control their process in Cunningham and in Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3. Other than noting that this power cannot contravene explicit statutory provisions or constitutional principles like the separation of power, the court did not discuss the outer limits of a statutory court's ability to control its own process in either decision. However, in both cases, the court treated a statutory court's ability to control its own process as largely parallel to a superior court's ability to control its own process.

Therefore, even though a provincial court does not have any inherent jurisdiction, it does have the authority to control its own process. Though that power comes through an implied grant of power rather than inherent jurisdiction, I see no reason why a provincial court's authority to control its own process should not provide the same power to award costs.

Second, the breadth of a provincial court's mandate under the CDSA suggests that it has an implied power to award costs. Under the CDSA, a forfeiture application may be heard in either the Superior Court or the Court of Justice. As noted, in certain specific circumstances the CDSA draws distinctions between provincial and superior courts. However, it draws no distinction of any kind in respect of their role when hearing a forfeiture application under s. 16. The two courts' function is equal in all ways. Therefore, it follows that Parliament intended that the power of the two courts should also be equal.

Third, given the statutory context in which a provincial court hears forfeiture applications, this implied power is reasonably necessary for it to discharge its mandate in a fair and efficient manner. …

[165] Furthermore, Laskin J.A. for the Court of Appeal in Nishnawbe Aski Nation v. Eden (Pierre v. McRae), [2011] O.J. No. 988, 2011 ONCA 187, 104 O.R. (3d) 321 (Ont. C.A.), at para. 34, had adopted the five criteria for determining whether a statutory court or body has the jurisdiction or power that is being sought, as had been enumerated by the Supreme Court in ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] S.C.J. No. 4, at para. 73. Hence, the criteria to use to determine if this statutory court has the jurisdiction or power being sought by necessary implication are the following:

(1) When the jurisdiction sought is necessary to accomplish the objects of the legislative scheme and is essential to the statutory body fulfilling its mandate;

(2) When the enabling Act fails to explicitly grant the power to accomplish the legislative objective;

(3) When the mandate of the statutory body is sufficiently broad to suggest a legislative intention to implicitly confer jurisdiction;

(4) When the jurisdiction sought is not one which the statutory body has dealt with through use of expressly granted powers, thereby showing an absence of necessity; and

(5) When the legislature did not address its mind to the issue and decide against conferring the power to the statutory body.

[166] Hence, in applying the criteria adopted by the Supreme Court of Canada in ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] S.C.J. No. 4, to determine the powers of a statutory court through the doctrine of jurisdiction by necessary implication, the Provincial Offences Court would have the jurisdiction to compel an offender to disclose or produce to the prosecution their financial documents for the purpose of sentencing, since all of the enumerated criteria have been met. In other words, this implicit power under s. 57(3) of the Provincial Offences Act to compel the offender to disclose or produce to the prosecution their financial documents is practically necessary for the Provincial Offences Court to fulfill its mandate in determining fit and just sentences and is also based on the following criteria:

(1) that it is necessary to accomplish the objects of the Provincial Offences Act and is essential to the Provincial Offences Court to fulfil its mandate in determining a fit and just sentence and in determining the ability of the offender to pay a fine;

(2) that the Provincial Offences Act fails to explicitly grant the power to accomplish the legislative objective in obtaining relevant information about the offender in order to determine the offender's ability to pay a fine;

(3) that the mandate of the Provincial Offences Court is sufficiently broad in respect to the sentencing of an offender to suggest a legislative intention to implicitly confer jurisdiction and power on the sentencing court which justify ordering an offender to disclose or produce to the prosecution their financial documents for the purposes of sentencing, when there are exceptional circumstances;

(4) that the jurisdiction sought is not one which the Provincial Offences Act has dealt with through the use of expressly granted powers for the Provincial Offences Court to compel the offender to produce their financial documents for the purposes of sentencing; and

(5) that the Ontario Legislature did not address its mind to the issue and decide against conferring on the Provincial Offences Court the power to compel the offender to produce their financial documents for the purposes of sentencing.

[167] Ergo, even though a sentencing court for a regulatory offence has the implied power and jurisdiction under s. 57(3) to issue an order compelling an offender to produce or disclose to the prosecution their financial documents for the purposes of sentencing and for determining the offender's ability to pay a fine or to pay restitution, such an order should be only granted on exceptional circumstances. For example, such exceptional circumstances could be where the offender may be intentionally misleading or misrepresenting their economic circumstances or their ability to pay when significant amounts of funds or moneys had been obtained by the offender during the commission of the offence and there is no reasonable explanation of what had happened to those funds are moneys, or that the offender has moved assets around to other entities in order to prevent those assets from being detected, seized, or recovered, like it had occurred with the defendants in R. v. 1137749 Ontario Ltd. (operating as Pro-Teck Electric), [2018] O.J. No. 4001 (Ont. C.J.).

[168] Of course, before compelling production of an offender's financial documents, the sentencing court would have to balance fairness to the defendant with the court's need for relevant information in the sentencing process, by ensuring that the financial documents are only to be used for sentencing purposes and not as evidence of the offence for which the offender had been convicted on or as evidence of other offences for which they have not been charged or convicted.

(a) Permitting applications for an order compelling an offender to produce their financial documents for sentencing purposes may unduly lengthen the proceeding.

[169] Applications by the prosecution for an order compelling an offender to produce or disclose to the prosecution their financial documents will undoubtedly lengthen the proceeding. It follows that this type of application should only be used for exceptional cases and not for all sentencing matters for regulatory offences. The exceptionality of the case will depend on the circumstances of each case. Likely cases will include ones where there is evidence that the offender has obtained a significant amount of moneys or funds from consumers and is attempting to hide or move those assets or funds around to other entities to prevent those moneys or funds from being detected, seized or recovered.

(b) What would happen if the offender does not comply with the sentencing court's order compelling production of the offender's financial documents?

[170] During argument on the present application, the court had raised the issue of what remedy would be available if the offender did not comply with the sentencing court's order to produce or disclose the financial documents. The prosecution had responded that the sentencing court could either hold the offender in contempt or that the offender could be charged with disobeying a court order.

[171] Moreover, there are various remedies that the sentencing court could invoke if the court is satisfied that the offender had deliberately not complied with the order to produce financial documents, including holding the offender in contempt, granting an adjournment and allowing time for the prosecution to attempt to get a court order for banks, financial institutions or the Canada Revenue Agency to produce financial documents to the prosecution in respect to the offender. In addition, there is also the possibility that if the offender does not produce or disclose their financial documents after being ordered to do so, then the sentencing court could also reasonably infer that the offender does indeed have the ability to pay.

[172] However, until such an issue arises that discussion will have to be left to another day.

(c) When should the sentencing court use its jurisdiction to compel production of the offender's financial documents to the prosecution?

[173] Similar to the procedure in s. 723(3) of the Criminal Code, before a sentencing court for a regulatory offence, on its motion or by application by the prosecution, compel an offender to disclose or produce to the prosecution their financial documents, the sentencing court should hear argument from both the prosecution and the offender before determining whether the offender should be ordered to produce their financial documents to the prosecution for the purposes of sentencing.

[174] Therefore, because of the time involved in hearing the argument and the potential of the offender providing evidence of the offence they had been convicted on or evidence of potentially uncharged and unconvicted offences committed by the offender, then the sentencing court should only issue such an order for production of the offender's financial documents when there are exceptional circumstances, such as where it has been established on a balance of probabilities that the offender has obtained a significant amount of moneys or funds from consumers and is attempting to hide or move those assets or funds around to prevent its detection, seizure, or recovery.

(d) Potential procedure to utilize for the offender to produce their financial documents to the prosecution.

[175] Considering that there is no legislative guidance or guidance of the courts in respect to the procedure to undertake for the actual production or disclosure to the prosecution of an offender's financial documents for the purposes of sentencing, then where there may be self-incrimination or privacy concerns, after an offender had been ordered to produce their financial documents to the prosecutor, a protocol is required to ensure that the offender does not incriminate himself with respect to undisclosed offences or in respect to intrusion of the offender's personal habits or activities.

[176] Ergo, if there are such self-incrimination or privacy concerns, then the offender can submit his financial documents to the sentencing judge to have particular entries or items in the financial documents redacted by the sentencing judge, if such request by the offender is warranted. Otherwise, if there are no self-incrimination or privacy concerns, then copies of the offender's financial documents can be directly provided to the prosecution.

[177] Moreover, to balance fairness to the offender with the requirement of the sentencing court to have relevant information, and to ensure that the offender does not provide evidence, through disclosure or production to the prosecution of their financial documents, of the offence the offender has been convicted on or of other uncharged or unconvicted offences that the offender may have committed, the offender can elect to provide the financial documents to the sentencing court for review and redaction before they are forwarded to the prosecution.

[178] In addition, time limits for the offender to comply with the order to produce their financial documents to the prosecution or to the sentencing court may be set by the sentencing judge prior to the sentencing hearing to avoid delays and unnecessary adjournments.

[179] On the other hand, if the offender refuses to comply with the order, then the prosecution can apply to the court for a remedy, or the sentencing judge may instead infer that the offender would have the ability to pay a fine.

(D) For The Present Case, Has The Prosecution Established That There Are Exceptional Circumstances For Granting An Order To Compel Production Of The Offender's Financial Documents?

[180] On a case by case determination of whether the prosecution has established that there are exceptional circumstances which would justify an order being issued, compelling production or disclosure to the prosecution of Broomfield's financial documents, the prosecution submits there are grounds for ordering Broomfield to produce or disclose his personal and his company's financial documents. The principal ground to support the order being granted is that Broomfield had provided conflicting statements in his testimony at trial concerning his financial status. The prosecution has outlined the following as evidence of Broomfield's inconsistent financial status:

a. During his evidence Broomfield had testified that his business addresses were at 32 Pebblestone Circle, Mississauga and at 1329 Martingrove Road, Mississauga.

• Applicant's Application Record; Transcript of February 1, 2017, p. 74 [Tab 4]

b. Broomfield had testified about having a partner in his business at one time.

• Applicant's Application Record; Transcript of January 26, 2017, pp. 8, 12 [Tab 3]

c. Broomfield had testified that his business went through restructuring and that after the investigation by the Electrical Safety Authority, he had allegedly stopped doing business and purportedly collected no further revenue.

• Applicant's Application Record; Transcript of February 4, 2017, pp. 72, 75, 88 [Tab 5]

d. Broomfield had indicated that he had refinanced his home in order to retain counsel.

• Applicant's Application Record; Transcript of February 1, 2017, pp. 112 & 118 [Tab 4]

e. Broomfield had claimed that he would obtain contracts with a value of "one million two" ($1,200,000) occasionally.

• Applicant's Application Record; Transcript of January 26, 2017, p. 19 [Tab 3]

f. Broomfield had indicated that he considered providing a loan of $20,000 to Mr. Paublo Medina and had provided Mr. Farquharson with financial assistance.

• Applicant's Application Record; Transcript of February 1, 2017, p.58 [Tab 4]

g. Broomfield had claimed that he never collected revenues under his personal name despite what the business records had reflected.

• Applicant's Application Record; Transcript of February 4, 2017, p. 88 [Tab 5]

h. It is clear from the evidence at trial that there were occasions when payment for work done by PB Construction had been paid to Broomfield personally. On other occasions, the payment for work was made to PB Construction, which was Broomfield's business.

• Applicant's Application Record; Transcript of February 4, 2017, pp. 88-89, 91, 95 [Tab 5]

[181] In response to the prosecution's grounds for an order compelling production of Broomfield's financial documents, Broomfield submits that because he has no idea what the prosecution is seeking as a penalty, then he does not know whether he will be able to agree or not agree to the penalty being sought by the prosecution.

[182] Furthermore, in the present case, there is no evidence which suggests that Broomfield has received a relatively large amount of funds or assets, which Broomfield is trying to hide or move to another entity to avoid the funds or assets from being discovered, seized, or recovered. In addition, Broomfield has not yet explicitly indicated whether he is able or unable to pay any fine, as the sentencing hearing has not actually commenced.

[183] On the other hand, it would be key to the determination of whether to compel production or disclosure of Broomfield's financial documents, if there were evidence of a significant amount of funds or moneys that had been obtained by Broomfield from his offences; that Broomfield at the same time is contending that he is impecunious; and that Broomfield has been moving assets and funds to other entities to avoid detection, seizure, or recovery like the defendant had done in R. v. 1137749 Ontario Ltd. (operating as Pro-Teck Electric), [2018] O.J. No. 4001 (Ont. C.J.). Hence, if during the sentencing hearing or in the trial, evidence had been adduced that a significant amount of funds had been obtained by Broomfield when the offences had been committed by Broomfield and that he had also been hiding or moving his assets around to avoid detection, seizure, recovery, and that there is no reasonable explanation of what happened to those funds, as well as a contention that Broomfield is now impecunious, then this evidence may be a sufficient evidential basis to find there are exceptional circumstances to justify ordering Broomfield to produce or disclose to the prosecution his personal, as well as his business's financial documents.

[184] Furthermore, Broomfield had been involved in the electrical work for 22 Vespahills Crescent in Brampton from April 1, 2014 to July 22, 2014, and from December 2, 2013 to April 30, 2014, he had been involved in the electrical work at 291 Boon Avenue in Toronto. So it has been approximately 5 years to the commencement of the sentencing hearing since Broomfield had obtained the moneys or funds from the two homeowners of 22 Vespahills Crescent and 291 Boon Avenue in Toronto respectively to do the electrical work at the two houses in which he had been convicted for. For the purposes of the present application, the amount of moneys or funds that Broomfield had obtained from the two homeowners for the renovation work is not a large or a significant amount of funds. The homeowner of 22 Vespahills Crescent paid Broomfield $6,000 to $7,000 in cash for the electrical portion of the renovation of the basement; while the homeowner of 291 Boon Avenue had contracted with Broomfield to renovate his house for $87,000, which also included doing electrical work, in which various amounts were paid over time by the homeowner to Broomfield. Moreover, it had cost the homeowner of 291 Boon Avenue another $7000 for a lic