Court File and Parties
Ontario Court of Justice
Date: 2019-11-18
Court File No.: Newmarket 4960 999 18 07050000-00 and Newmarket 4960 999 19 15510000-00
First Appeal
In the Matter of an appeal under Section 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended
Between: Her Majesty the Queen Appellant
— and —
Paul East Respondent
Second Appeal
In the Matter of an appeal under Section 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended
Between: Her Majesty the Queen Appellant
— and —
Kainnon Jennrich Respondent
Before: Justice David S. Rose
Heard on: November 1, 2019
Reasons for Judgment released on: November 18, 2019
Counsel:
- Mr. T. Hamilton, counsel for the prosecution
- No appearance by or on behalf of Paul East or Kainnon Jennrich, even though each was notified of time and place
On appeal from: a sentence imposed by Justice of the Peace A. Romagnoli on June 26, 2019
Reasons for Judgment
ROSE J.:
Introduction
[1] The Crown brings two appeals against sentence. Both appeals raise similar issues. At the conclusion of oral argument I allowed both appeals with reasons to follow. These are the reasons.
Paul East
[2] Mr. East pleaded guilty to the charges of, while being the owner, operate a motor vehicle without insurance under section 2(1)(a) of the Compulsory Automobile Insurance Act R.S.O. 1990 c. C.25 (hereafter CAIA). The date of the offence was February 8, 2018. Her Worship found him guilty. The Crown alleged a record which was acknowledged. It showed Mr. East to have a prior conviction for driving without insurance in 2016. Because of that the Crown sought the minimum fine of $10,000, per s. 2(3) of the CAIA. The defence sought relief from the mandatory minimum under s. 59(2) of the Provincial Offences Act R.S.O. 1990 c. P.33 (hereafter POA).
[3] In submissions for relief from the minimum mandatory fine defence counsel made several points: the minimum fine would be emotionally and financially stressful; there was a minor accident involved in the case but his client was on his way to get insurance; he was driving a 2006 BMW which had been financed and he was still responsible for paying for the car, even though he has lost possession of the car. The Respondent is a drywaller by trade supporting himself by Ontario Works, making $800 per month. He has one 14-year-old son.
[4] Her Worship imposed a $5,000 fine. In imposing that sentence she said:
This Court takes into consideration that he's not putting the court through the trial process. This Court also takes into consideration his record. It's not a – it's an unenviable record. The Crown's asking for $10,000. Giving a – given his financial position and the fact that he's on ODSP and has been so for some time, there doesn't appear to be any likelihood that he'll be able to pay such a fine any time soon or within the – or in the next few – little while – next few years maybe even. He's not working. I understand he's probably suffering some, some – from health issues? Is that fair? Anxiety?
MR. HEATH: Psychological. If you see some of the text messages you'll understand.
THE COURT: I'm taking into consideration that a victim fine surcharge gets added to any penalty that the Court imposes. That's done administratively. And once again, higher courts have held that victim fine surcharge in and of itself is a separate penalty, an additional penalty, and it's been struck down for the Criminal Code charges. Section 737 of the Criminal Code has been found to be unconstitutional. So it's not available for Criminal Code charges. And that's been done by the Supreme Court of Canada, the highest court in the land. And, however it's still alive and well for the Provincial Offences charges. I'm being mindful that that's the case. However, the Court has to send the proper message that this type of situation, driving without insurance, certainly can't be tolerated. Has to send the proper message to the general public that you simply can't drive a motor vehicle knowing that you don't have insurance and ending up in an accident. It's not fair to the other drivers on the road. Driving is a privilege. You might want to extend that to him. Penalty imposed is a fine of $5,000.
Kainnon Jennrich
[5] The Respondent Kainnon Jennrich pleaded guilty to the charges of drive without insurance and drive under suspension. After the convictions were made the Crown introduced the Respondent's Ministry of Transportation driving record. It showed that Mr. Jennrich had two prior convictions for driving under suspension. The Crown therefore sought the minimum fine on the driving under suspension which was $2,000 in light of the prior convictions for the same offence, see Highway Traffic Act, R.S.O. 1990 c. H.8 (hereafter HTA) s. 53(1)(b). That was the minimum mandatory fine under that section. The Crown sought the minimum mandatory fine for drive without insurance, which was $5,000.
[6] In support of relief from the mandatory minimum the agent for the Respondent made a number of submissions. The Respondent, it turned out, had some $11,000 in fines prior to his retainer but had since paid off that entire amount. New fines had come to light but he paid off a large amount of those from savings. He has another fine of $5,000 outstanding for driving without insurance that was imposed recently. The Respondent works as a drywaller and painter earning $58,000 per year. His net income is $44,000 per year. He has no children but partially supports his mother. After living expenses he has an ability to pay a fine, just not a large one. Agent for the Respondent submitted that he wasn't driving any more.
[7] In imposing a fine of $1,500 for driving under suspension and $3,500 for drive no insurance Her Worship relied on the fact that the Respondent had pleaded guilty, his driving record including his two prior entries for driving under suspension, and his financial position. She then said:
I am taking into consideration his financial position as well as the – as well as the fact that the administration imposes a victim fine surcharge to any fine that the court imposes. So that's done administratively, and that's substantial for a $5,000 fine. I believe it's 25 percent. This Court does take into consideration that the higher courts have actually held that a victim fine surcharge is a separate penalty in and of itself, and as we're probably all aware by now that the Supreme Court of Canada struck down the legislation for the Criminal Code charges as under Section 737 that the victim fine surcharge is unconstitutional and struck down that legislation. However, it's still alive and well for the provincial offences charges. I'm taking that into consideration. So having said that – and I take it that the – aside from the submissions that are making – and that being given his financial position that he's aware of driving – that there'll be another suspension added to his licence.
Discussion
[8] The POA provides for relief from mandatory minimum fines.
59(2) Relief against minimum fine 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.
[9] The most authoritative guidance on relief from minimum mandatory fines under the POA is Ontario (Environment, Conservation and Parks) v. Henry of Pelham 2018 ONCA 999. In that case the Respondent pleaded guilty to a provincial offence which carried a minimum mandatory fine of $25,000. The trial justice imposed a fine of $600.00. The Court of Appeal allowed the appeal and increased the fine to $5,000.00. In doing so the Court gave clear guidance about the test to be applied with the offender sought relief from a mandatory minimum fine under s. 59(2) of the POA. Huscroft JA summarized the principles (at para. 63) as being:
Minimum fines establish sentencing floors that apply regardless of ordinary sentencing principles. The imposition of fines above the minimum threshold is governed by ordinary sentencing principles, as well as any principles set out in the relevant legislation.
Section 59(2) of the POA vests a discretionary authority in trial judges to provide relief from minimum fines in exceptional circumstances. The burden is on those seeking the grant of relief to establish that relief is warranted based on the relevant considerations.
Section 59(2) applies exceptionally. It will be an unusual case in which the imposition of a minimum fine may be considered "unduly oppressive" or "otherwise not in the interests of justice."
Whether a minimum fine is unduly oppressive usually will depend on consideration of personal hardship. The bar for relief is set very high. Mere difficulty in paying a minimum fine is inadequate to justify discretionary relief.
Whether a minimum fine is otherwise not in the interests of justice involves consideration of not only the interests of an individual offender but also the interests of the community protected by the relevant public welfare legislation.
The discretion under s. 59(2) cannot be exercised arbitrarily. Trial judges must explain their reasons for invoking s. 59(2), and in particular must demonstrate both that the circumstances are exceptional and that it would be unduly oppressive or otherwise not in the interests of justice to apply the minimum fine.
The fact of a guilty plea is immaterial to the finding of relief from a minimum mandatory fine. Guilty pleas are not considered exceptional circumstances, nor do they address the interests of justice under s. 59(2) of the POA (Henry of Pelham supra at para. 69).
[10] The Court of Appeal in Henry of Pelham also made clear that minimum mandatory fines speak to deterrence, which is why they are so high. If the bar for engaging relief from minimum fines is not high then the Courts would be improperly undermining Legislature's intent, instead of implementing it.
Findings
[11] Cast against this framework I make the following findings about these appeals.
Paul East
[12] In the case of Paul East, Her Worship properly took into account the fact that Mr. East was supporting himself from public assistance and had a 14-year-old son. She also properly took into account that he had psychological health concerns.
[13] Beyond that, her analysis strayed into irrelevant areas, such as the unconstitutionality of the Criminal Code victim fine surcharge. Her Worship appears to have taken the position that the POA victim fine surcharge was constitutionally suspect and should mitigate the quantum of the fine. Taking the victim fine surcharge into account when considering the applicability of s. 59(2) of the POA was an error of principle, and vacates any deference an appeal court would normally have to a sentencing Justice's decision. Her Worship made much the same comments in one of the companion appeals argued at the same time as this case. In R. v. Farhad Javdani-Golparvar, 2019 ONCJ 810, Her Worship compared the POA and Criminal Code victim fine surcharges to undercut a joint submission. I repeat here what I said in that case. This approach reflects three errors: the victim fine surcharge was not raised by the parties; it had nothing to do with the case; and gave the impression that a mandatory piece of legislation was suspect or of dubious value. Such comments tend to undermine the rule of law. The result is that the sentence appeal of Paul East is allowed. The sentence is vacated.
[14] Considering Mr. East's impecuniosity and mental health problems I am struck by the fact that Mr. East is supporting himself by public assistance. On the record before me he is completely impecunious without a job. It is unduly oppressive to impose a $10,000 fine on a destitute offender. Balancing that and the fact that the public needs deter Mr. East from driving without insurance, bearing in mind that Mr. East is not a first-time offender when it comes to driving without insurance, I would impose a $7,500 fine.
Kainnon Jennrich
[15] In the case of Kainnon Jennrich, it was an error for Her Worship to consider the victim fine surcharge as a reason to go below the minimum fine, for the same reasons as above in the Paul East appeal. I need not repeat those reasons. The Kainnon Jennrich appeal is therefore allowed.
[16] The case for relief from the mandatory minimum fines in Mr. Jennrich's case simply wasn't made out. He earns a very good living, taking home something just less than $4,000 per month. He helps his mother but has no children. Strikingly, he had just paid off $11,000 in fines which furnishes clear proof that he has an ability to pay substantial fines. Given his history of driving with a suspended licence I can find no reason why he should get relief from minimum fines. As the Court said in Henry of Pelham (supra at para. 56), the mandatory minimum fine under the CAIA is "…a high fine for most people and is especially so for people of modest means. But the cost of insurance is also high for most people and also especially high for people of modest means. The Legislature chose to require drivers to have insurance regardless of the cost, and chose to enforce this requirement with a mandatory minimum penalty." Put another way, the mandatory minimum fine is intended to have a sting.
[17] Mr. Jennrich's fines are varied to the mandatory minimum of $2,000 for drive suspended and $5,000 for driving without insurance.
Released: November 18, 2019
Signed: Justice D.S. Rose