Court Information

Ontario Court of Justice

Date: March 2, 2020

Between:

CITY OF TORONTO

— AND —

JAWAD SABRI, AJAY MATHEW, JAY BHATT, DYLAN LAMBERT, BIRKTI GEBREYESSUS, TAO WANG, LAURA COONEY, MARYAM ASAD-ZADEHDIL-MAGHANI, RUDY CONSTANTINE, MARCOS DE BARROS, JANICE BURTCHER, HAROLD CANCIO, ROSALIE EID, KELLY GALLAGHER-MACKAY

Before: Justice Rondinelli

Heard on: January 27, 2020

Reasons for Judgment released on: March 2, 2020

Counsel:

• A. Queljo, Municipal Prosecutor
• No one appearing for Respondents

Judgment

Rondinelli J.:

Introduction

[1] The City of Toronto brings this joint appeal against fourteen separate respondents. Each respondent was separately sentenced by Justice of the Peace C. Shoniker on February 14, 2019. Eleven of the fourteen respondents were charged with a red light camera offence, contrary to s. 144(18.1) of the Highway Traffic Act ("HTA"). Ten of these eleven respondents pleaded guilty and one respondent was convicted following a trial. The remaining three respondents pleaded guilty to other HTA offences. All of the charges were laid under Part 1 of the Provincial Offences Act ("POA") and each of the charges carry a prescribed minimum fine. The Justice of the Peace however, did not impose the statutory minimum fine in respect of any of the fourteen respondents.

[2] In reducing the fines in the matters before the court, the Justice of the Peace exercised her discretion under s. 59(2) of the POA, which provides that "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."

[3] The City of Toronto appeals, claiming the Justice of the Peace failed to properly apply s. 59(2) in each of the matters before the court.

The Respondents' Circumstances and Fines Imposed by the Justice of the Peace

[4] Jawad Sabri pleaded guilty to a red light camera offence, contrary to s. 144(18.1) of the HTA. Mr. Sabri was a recent graduate from York University who was "working just sort of editing different articles as he can." The Justice of the Peace reduced the minimum fine of $200 to $125, holding:

That the person is of a young adult age, recent graduate of University…The Court will take into account most especially the early guilty plea, the cost and the age and financial circumstances, will reduce the amount of the fine…to $125.

[5] Mr. Sabri was given 90 days to pay.

[6] Ajay Mathew pleaded guilty to a red light camera offence, contrary to s. 144(18.1) of the HTA. The Justice of the Peace reduced the minimum fine of $200 to $50, holding:

Take into account that today's date is a first trial date as well as the first court date, so effectively, it's an early resolution with respect to the matter…Also, I'm going to take into account that you are a relatively young man, at 31 years of age, just recently graduate and just starting a new job.

[7] Mr. Mathew was employed as a Project Manager at a capital market firm and indicated that he was able to pay the reduced fine that same day.

[8] Jay Bhatt pleaded guilty to a red light camera offence, contrary to s. 144(18.1) of the HTA. The Justice of the Peace reduced the minimum $200 fine to $50, stating:

I also would take into account that you're relatively young man at 32 years of age. You're working right now as security type of work, supporting yourself, your wife and your child, but that contract is coming to an end come February 28th and you're going to be unemployed; and look for different other contract or job.

[9] At the time of sentencing, Mr. Bhatt was employed as a security guard and indicated that he was able to pay the reduced fine on that same day.

[10] Dylan Lambert was a 26-year-old construction worker. He was found guilty after a trial for a red light camera offence, contrary to s. 144(18.1) of the HTA. Instead of imposing the minimum $200 fine, the Justice of the Peace suspended the passing of sentence, holding:

Looking to support yourself, basically, your residential situation here, as well as sending money back at home to Newfoundland, where perhaps the money is a little bit – jobs are little bit less there. Supporting yourself as well as your parents back at home in Newfoundland, and all of that at the very young age, only been in Toronto for approximately one year.

[11] Birkti Gebreyessus was 46 years old and had been employed as a hairstylist for the last 15 years. She pleaded guilty to a red light camera offence, contrary to s. 144(18.1) of the HTA. Rather than impose the minimum $200 fine, the Justice of the Peace reduced the fine to $75, stating:

I'm going to take into account that there has been a guilty plea on the first court date as well as the first trial date…The lady before me is a lady who's 46 years of age. She indicates that she's in support of herself. She appears to live fairly modestly. No property type of assets, it's a – in a rental situation on Sherbourne. And, this in operation of a vehicle that's 2005 vehicle, in support of herself.

[12] Ms. Gebreyessus indicated that she was able to pay the reduced fine that same day.

[13] Tao Wang was charged with a red light camera offence, contrary to s. 144(18.1) of the HTA. The respondent's son, Hao Zhang attended on her behalf. Mr. Zhang entered a guilty plea on behalf of his mother and indicated that he was the one driving the vehicle at the time of the offence. Mr. Zhang was a 23-year-old university student in his fourth year of a Business Management degree. The Justice of the Peace reduced the minimum $200 fine to $50, stating:

You're still in school. You're at age 23. You're not presently working and you're hopefully soon to complete your undergraduate degree and then looking towards a job. In all the circumstances, without present employment, supported effectively by your family, the Court is going to substantially reduce the amount of the fine also taking into account the early resolution, relatively speaking because today is the first court date, as well as the trial date.

[14] Mr. Zhang indicated that he would be able to pay the $50 that same day.

[15] Laura Cooney pleaded guilty to a red light camera offence, contrary to s. 144(18.1) of the HTA. The Justice of the Peace reduced the minimum fine of $200 to $75 dollars, holding:

…So the month after the driving event was hospital – hospitalized for some time and did suffer a hearing loss or some type of impairment such that she's been forced to take an early retirement from her former hours of working as an accountant. She now indicates that she's working only on a part time basis and she still has on-going medical concerns and hearing impairment and or loss. So, the Court is going to give recognition to the reduced financial ability and is going to give recognition to the early guilty plea.

[16] Ms. Cooney indicated that she would be able to pay the $75 immediately.

[17] Maryam Asad-Zadehdil-Maghani pleaded guilty to an amended offence of improper use of signalling device, contrary to s. 142(7) of the HTA. The Respondent attended court with her daughter to assist her with interpreting. The Justice of the Peace reduced the minimum fine of $60 to $30, holding:

Obviously taking this matter extremely seriously, to the point that the time and effort and any expenses of both the mother and her daughter, who has been acting as Interpreter. The Court gives recognition to that effort and a guilty plea, fine is reduced to an amount of $30.

[18] The respondent indicated that she could pay that fine immediately.

[19] Rudy Constantine pleaded guilty to improper use of signalling device, contrary to s. 142(7) of the HTA. The Justice of the Peace reduced the minimum fine of $60 to $40, stating:

So that matter was satisfied through documentation with regards the validation. The court therefore is going to consider this is the sole infraction, is going to reduce the fine in recognition of the early resolution appearance, initiated by the gentleman today, taking responsibility, albeit, to the lesser charge.

[20] Mr. Constantine indicated that he would be able to pay the $40 immediately.

[21] Marcos De Barros pleaded guilty to a red light camera offence, contrary to s. 144(18.1) of the HTA. The Justice of the Peace reduced the minimum $200 to $50, with 50 days to pay. The Justice of the Peace held:

Given some information with the court that at 38 years of age, he's already been working the construction field for good 20 years and then supported himself, his wife, as well his two kids, that's well respected, but a lot financially on his plate for a guy relatively young. The Court is going to take all that into account, apply s. 59(2) of the Provincial Offence legislation, supposed to avoid the undue financial hardship to him and indirectly his family. The Court, in acknowledging the guilty pleas, the Court is going to reduce the fine to the amount of $50.

[22] Janice Burtcher pleaded guilty to a red light camera offence, contrary to s. 144(18.1) of the HTA. The Justice of the Peace reduced the minimum $200 fine to $75, holding:

I'm going to take into account that this is an early resolution. You've initiated that process and you've done that exactly that recognizing the safety concern. You are working as registered nurse. You are looking after yourself. You're single mom. Your kids are of an adult age, somewhat independent but still being as a – financially supporting to some extent.

[23] Ms. Burtcher indicated that she was able to pay the fine that same day.

[24] Harold Cancio pleaded guilty to a red light camera offence, contrary to s. 144(18.1) of the HTA. The Justice of the Peace reduced the minimum $200 fine to $50, holding:

I'm going to take into account that Mr. Cancio resolved this matter…Mr. Cancio is a relatively young guy, at 30 years of age, has just secured a job and that's as an employee in housekeeping type of a situation and basically, it's at the start of his financial work life and just having a career without any sort of background degree of savings or assets.

[25] Mr. Cancio indicated that he was able to pay the $50 that same day.

[26] Rosalie Eid pleaded guilty to a red light camera offence, contrary to s. 144(18.1) of the HTA. The Justice of the Peace reduced the minimum $200 fine to $50, with 50 days to pay. The Justice of the Peace stated:

I am going to take into account that it is an early resolution and that was the process initiated by you and you've done that…You've just recently started things professionally with your career…organizing events and event planning. The Court is going to take into account your younger age as well as your start of your financial career situation…

[27] Kelly Gallagher-Mackay pleaded guilty to a handheld device offence, contrary to s. 78.1 of the HTA. She was a 49-year-old contract professor. The Justice of the Peace reduced the $300 minimum fine to $75, stating:

So, the Court is going to take into account your resolution with respect to this matter. It is an early resolution and it's on your initiative. You've taken responsibility with respect to it. The court recognizes the effort in that and also recognizes that you are financially both responsible for yourself as well as contributing to your husband and your two children.

[28] Ms. Gallagher-Mackay indicated that she was able to pay the $75 immediately.

The Governing Principles

[29] It is important to note that at the time of sentencing in these matters, the Justice of the Peace would have been aware of the interpretive guidance for s. 59(2) provided by the Ontario Court of Appeal in Ontario (Environment, Conservation and Parks) v. Henry of Pelham Inc., 2018 ONCA 999 ("Henry of Pelham"), where the Court noted the following at para. 63:

1. 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.

2. 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.

3. 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".

4. 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.

5. 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.

6. 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.

Analysis

[30] The Court in Henry of Pelham warned at para. 53 that "trial judges must not recognize exceptional circumstances too readily, lest exceptional circumstances become unexceptional, or even routine, and the exercise of the discretionary power to provide relief from minimum fines undermine the deterrent effect minimum fines are designed to have." Upon review of the record, I am of the opinion that the Justice of the Peace did not heed this warning. All of these matters were dealt with on the same day. Any reasonable observer of the proceedings on that date would have been left with the impression that the minimum fines were being reduced almost out of routine, and that the test for granting relief from a minimum fine was very low – that is, far from a need to establish "exceptional circumstances."

[31] It has long been understood that driving is a privilege and not a right. Indeed, it is an expensive privilege when one factors in the cost of vehicle registration, insurance, vehicle maintenance, gas and parking. Tickets for minor driving infractions should be expected as part of the price of driving. The minimum fines at play in the matters before the court were not exorbitant. They ranged from $60 to $300. Eleven of the fourteen respondents were employed at the time the fines were imposed. They were variously employed as a project manager, construction worker, hairstylist, bank employee, part-time accountant, registered nurse, contract professor, event planner, and in the housekeeping industry. Ten of the respondents indicated that they would be able to pay the reduced fine immediately. In dealing with the amount of fines at stake, it can hardly be seen that any of the eleven employed respondents were facing "hardship that rises to an extreme level they cannot be made to bear": See Henry of Pelham at para. 57. It is certainly far from a situation like R. v. Scantlebury, 2016 ONCA 453, where the Court granted leave to appeal, having expressed concern that a self-represented applicant of extremely limited financial means was convicted at an ex parte trial, without having had the opportunity to make submissions on a sentence which was almost three times her annual income.

[32] This is not to say that a fine of $60 can never pose as a financial burden. However, granting the offender time to pay can attenuate the burden of a fine. It would have been quite permissible for the Justice of the Peace in the matters under appeal to resort to the extension of time provisions under s. 66(2) of the POA, rather than arbitrarily reducing the minimum fines. For example, granting an offender 12 months to pay a $200 fine would work out to less than $17 per month. And if the offender has difficulty in fully paying the fine during that period, the offender can seek a further extension of time pursuant to s. 66(6) of the POA.

[33] In my view, the Justice of the Peace further erred in considering a guilty plea as a factor in her application of s. 59(2). Thirteen of the fourteen matters were resolved by way of guilty pleas. In each of these thirteen matters, the Justice of the Peace placed weight on the fact that each respondent resolved their respective matters and granted them relief from the minimum fines. As the Court in Henry of Pelham noted at para. 69, "Guilty pleas cannot be considered exceptional circumstances, nor can the interests of justice be invoked to permit guilty pleas to undermine a minimum fine regime." As such, while a guilty plea would have supported a minimum fine being imposed, it was immaterial to the finding of relief from the minimum mandatory fines in these matters.

[34] Another example of an immaterial factor considered by the Justice of the Peace could be found in the case of Ms. Asad-Zadehdil-Maghani. The Justice of the Peace made no inquiries as to the financial circumstances of the respondent. Instead, the Justice of the Peace reduced the fine simply due to the fact that Ms. Asad-Zadehdil-Maghani had brought her daughter along with her that day to assist with interpreting. This fact alone does not speak to how a minimum fine is unduly oppressive or otherwise not in the interests of justice. Despite the availability of accredited interpreters, it is not an uncommon occurrence to see defendants attend provincial offences court with friends or family members to assist with their participation in court by offering to interpret for the defendants.

Conclusion

[35] For all of the above reasons, I have concluded that the Justice of the Peace erred in exercising her discretion under s. 59(2) in a manner that is inconsistent with the guidance set out in Henry of Pelham.

[36] I see nothing exceptional in any of the cases before the court to conclude that imposing the minimum fine prescribed in the HTA would be unduly oppressive or otherwise not in the interests of justice.

[37] Although I would allow the appeal, the fines imposed at trial shall remain the same, since the City of Toronto requested that the fines not be increased should the appeal succeed.

Released: March 2, 2020

Signed: Justice Rondinelli