ONTARIO COURT OF JUSTICE DATE: 2021 02 26

BETWEEN:

THE CORPORATION OF THE TOWN OF ERIN Appellant

— AND —

PATRICIA KENTNER Respondent

Before: Justice M.K. WENDL

Heard: February 17, 2021 Reasons for Decision released on: February 26, 2021

Counsel: S. O’Mealia...................... Counsel for the Appellant, Corporation of the Town of Erin J. Damstra...................................................... Counsel the Respondent, Patricia Kentner

WENDL J.:

[1] This is a sentence appeal from a provincial by-law offence by the Town of Erin. The accused at trial, Patricia Kentner, was found guilty of having an illegal dumping/landfill station on her property. Roughly half of this dumping station was on land regulated by the Town of Erin and the other half on land regulated by the Grand River Conservation Authority (GRCA). In relation to the charges emanating from the GRCA a joint position was put forward for an order of remediation, a period of probation and fines. That sentence is not in dispute. It is only the Town of Erin that appeals the sentence imposed on their charges.

[2] As it relates to the Town of Erin charges, the Court imposed a fine of $5,000 but declined to impose an additional discretionary special fine. This special fine is imposed at a rate of $10 per cubic meter of waste in the landfill site. The Town of Erin, based on an estimate of the amount of waste in the landfill, requested a special fine at trial between $673,750 and $1,365,000 [1]. At appeal, the Town of Erin varied that estimate to $96,250 dollars and $1,347,000 [2]. The crux of the issue on appeal is whether the Justice of the Peace erred in declining to impose the special fine on Patricia Kentner.

[3] The sentencing Court declined to impose the special fine for the following reasons:

(1) The Court found that Patricia Kentner, although the property owner and the only person charged by the Town of Erin [3], was not the operating mind behind the project. It found that Frederick Kentner, her son, was the operating mind behind the project which diminished Ms. Kentner’s moral blameworthiness. (2) The Court considered the principle of totality and found that the remediation order on the GRCA charge would likely exceed any profit from the venture. (3) The lack of accurate estimates of the size of the landfill and of the profit received.

[4] I note that the Justice of the Peace found that the “largest hurdle” to imposing a special fine, as requested by the Town of Erin, was the lack of reliable estimates. I find that this comment makes it clear that lack of reliable estimates was the paramount reason for not imposing the special fine.

ISSUES ON APPEAL

[5] The appellant raised the following issues in their initial application:

(1) The basis upon which the Court imposed the penalty on the Town’s charge did not reflect the evidence of the large fill volume that had been presented to the Court; (2) The facts that were proven or admitted to in the trial supported a finding that the Defendant committed the offence for commercial gain; (3) The Court failed to impose a penalty which reflected that commercial gain, and thereby failed to create either a specific or general deterrent against the future commission of such profit-seeking offences; (4) the Ontario Legislature amended the Municipal Act, 2001 in 2006 to provide municipalities with the legal tools to create offences for penalties that would discourage the breaking of by-laws for commercial gain; (5) the Town acted upon the Ontario Legislature’s granting of power by enacting a special fine provision within its Site Alteration By-law; (6) the Court erred in taking into account the penalty that had been imposed on the Defendant in relation to the separate charges brought by the GRCA in respect of a different portion of the Property, and allowed that penalty to detract from the penalty imposed for the completely separate charge brought by the Town; and (7) by not applying the correct facts before the Court and drawing reasonable inferences therefrom, the Court exercised its discretion in error.

[6] Following that, in their reply material, the appellant seems to have realized that their initial characterization of the issues was unwieldy therefore re-characterized them in the following manner:

(1) The sentence imposed in relation to the Town of Erin charges was demonstrably unfit. (2) The Justice of the Peace erred in his application of the principle of totality by taking into account the remediation order imposed on the area of land regulated by the G.R.C.A. and more specifically, the fact that the Justice of the Peace took judicial notice of the cost of remediation without any evidence. (3) That the Justice of the Peace was in error in finding that the lack of a reliable estimate or as the appellant terms it “an absence of numbers” could not allow him to impose a special fine.

[7] For the sake of clarity, I am analyzing this appeal based on the characterizations of the issues raised in the appellant’s reply material. The issues raised in the initial applications can be fit under the broader umbrella of the issues properly characterized in the reply material.

[8] The respondent takes the position that deference is owed to the sentencing Justice and the appeal is effectively an attempt to re-litigate the sentencing hearing.

ANALYSIS

[9] The Town of Erin effectively raises two aspects to the totality issue. First, whether the totality principle was engaged and second whether the Justice of the Peace properly applied the principle.

[10] There can be no doubt that the totality principle is engaged. The trial involved the same accused, the same property, basically the same offence, and Patricia Kentner was sentenced globally on both the GRCA and Town of Erin charges. Essentially, the only difference was the regulatory bodies over the property.

[11] The totality principle is engaged when consecutive sentences are imposed to ensure that the cumulative sentence does not exceed the culpability of the offender. [4] Given the number of charges and the potential of a cumulative fine on those various charges, the Justice of the Peace was correct to consider totality. No authority was provided by the appellant supporting the proposition the number of complainants affects whether the totality principle is engaged.

[12] Nor is it the view of this Court that the Justice of the Peace erred in his application of the totality principle. As the Court of Appeal stated in Jewell, the application of the totality principle requires the following approach:

In my view, the appropriate approach in cases such as the two under appeal is to first, identify the gravamen of the conduct giving rise to all of the criminal offenses. The trial judge should next determine the total sentence to be imposed. Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence and which appropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed. [5]

[13] On a cursory review of his reasons it would seem that the Justice of the Peace erred in his application of the totality principle since he never determined what the total sentence should be in relation to all the charges, both GRCA and the Town of Erin, and as a result he did not determine how the gravamen of the offences should be reflected in each charge. He simply opined that the costs of remediation would be high for the GRCA charges and this was a factor in not imposing the special fine as requested by the Town of Erin.

[14] Ordinarily this should be an error. However, given his finding that the estimate for the landfill was not accurate, which I will discuss below in further detail, the Justice of the Peace could not make an accurate determination of what the cost of the special fine would be, therefore, was not able to make a determination as to whether the total cost of remediation and the special fine was appropriate in the circumstances. Although the special fine is discretionary, the amount is not. It is predetermined by a calculation of $10 per cubic meter of fill. The by-law reads as follows:

49. A special fine may be imposed in addition to a fine imposed under Section 47 or 48 in circumstances where there is economic advantage or gain from the contravention of this by-law and the maximum amount of the special fine may exceed $100,000.00. A special fine shall be calculated on the basis of: a) $10.00 for each cubic metre of fill deposited in excess of the amount allowed in a permit, or deposited beyond the geographic limits of the permit, or deposited without first having obtained the required permit;

[15] Compounding the difficulty in determining the appropriate sentence was the lack of reliable information about the profit made by the fill and the harm done to the surrounding area. Simply put, the Justice of the Peace did not have the information to determine the total fine and, therefore, whether it was appropriate.

[16] Nevertheless, even if this Court is wrong and the Justice of the Peace erred in the application of the totality principle, this does not mean this Court should interfere with the sentence. As stated above, I find that the paramount reason the Justice of the Peace did not impose the special fine was the lack of an accurate estimate for waste in the fill site. The Justice of the Peace also considered the moral blameworthiness of Patricia Kentner in determining sentence.

[17] In R. v. Lacasse, the Supreme Court indicated that not all errors in principle allow an appellate Court to revisit the sentence:

With all due respect for my colleague, I am of the view that his comments on this point need to be qualified. I agree that an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor can justify the intervention of an appellate court and permit that court to inquire into the fitness of the sentence and replace it with the sentence it considers appropriate. However, in my opinion, every such error will not necessarily justify appellate intervention regardless of its impact on the trial judge's reasoning. If the rule were that strict, its application could undermine the discretion conferred on sentencing judges. It is therefore necessary to avoid a situation in which [TRANSLATION] "the term 'error in principle' is trivialized": R. v. Lévesque-Chaput, 2010 QCCA 640, at para. 31 [6]

[18] On a complete reading of the reasons for sentence, irrespective of the totality issue, the Justice of the Peace would not have issued a special fine because there was no accurate estimate as to the size of the landfill. The appellant states, in their third ground of appeal, that the Justice of the Peace erred as he stated in his reasons there was an “absence of numbers” by which he could impose a fine. The appellant states that this is an error in law since he could impose a fine based on the estimates provided by the appellant at trial. This interpretation proffered by the appellant is not a fair reading of the Justice of the Peace’s reasons. When read as a whole, the “absence of numbers” means the absence of an accurate estimate. This was made clear in the following quote from the Justice of the Peace’s sentencing decision: “Respectfully, in the absence of accuracy and on the basis of estimation and approximation, I decline to make an order for a special fine.”

[19] The absence of an accurate estimate is a finding of fact by the Justice of the Peace. It is entitled to deference absent a palpable and overriding error. I find no such error.

[20] In Hydro-Quebec, the Supreme Court described a palpable and overriding error and stated it was “not of a needle in a haystack, but of a beam in the eye”. [7]

[21] To support my conclusion that it is not a palpable and overriding error, I rely on the following. First, the estimate offered by the appellant to this Court differs from the estimate provided to the Justice of the Peace. At trial, the range was $673,750 to $1,365,000, while on appeal the estimate was between $96,250 and $1,347,000. The method by which the appellant attempted to prove this size of the land fill and confirm his estimates to this Court was rather circuitous. For example, to confirm the surface of the landfill on the Town of Erin’s side, the appellant provided the Court with map of the landfill, then, using a ruler, asked the Court to measure it and compare it to the scale in the corner or the map, while ignoring the parts of the surface which were not in a straight line and not amenable to being measured by a straight ruler. As for the depth, the appellant asked the Court to review the transcript and make a finding, based on the testimony of Fred Kentner, that the depth of the landfill would have to be a minimum of 1 meter. Needless to say, this exercise was not one of a “beam in the eye”.

[22] Again, the order for a special fine is discretionary, however it must be based on a calculation of $10 per cubic metre. Since the order is discretionary, it is entitled to deference. I agree with the Justice of the Peace in deciding not to exercise his discretion to impose a fine based on inadequate estimates. The Courts should not and cannot impose fines of potentially upwards of a million dollars based on “eyeballing it” or a “guesstimate”. An expert report could have most certainly been obtained detailing the size of the landfill and, most likely, the profits gleaned from such an undertaking.

[23] Given my reasons above in relation to the Justice of the Peace properly exercising his discretion to not impose a special fine, and the issue of fitness of the sentence relates solely to the issue of the special fine, I find the sentence fit. Issues of denunciation and deterrence as raised in the initial application do not apply given my finding that the Justice of the Peace was correct in not exercising his discretion to impose a special fine.

CONCLUSION

[24] The appeal is dismissed.

Released: February 26, 2021 Signed: Justice M.K. Wendl

[1] Transcripts of Patrice Kentner’s sentencing page 3 line 7, dated June 25th, 2019 [2] Reply Submissions of the Prosecutor page 8, Dated February 16th, 2021 [3] Frederick Kentner was charged as well in relation GRCA charges, and fines were imposed on him by the Court. [4] R v C.A.M., [1996] 1 SCR 500 at 42 [5] R v Jewell; R v Gramlick, [1995] OJ No 2213 [6] R v Lacasse, [2015] 3 SCR 1089 at 43 [7] Hydro-Québec v Matta, [2020] SCJ No 37 at 33. The full quote reads as follows: “Absent a palpable and overriding error, an appellate court must refrain from interfering with findings of fact and findings of mixed fact and law made by the trial judge: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10-37; Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352. An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 55-56 and 69-70; Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 33. As Morissette J.A. so eloquently put it in J.G. v. Nadeau, 2016 QCCA 167, at para. 77, [TRANSLATION] "a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions": quoted in Benhaim, at para. 39. The beam in the eye metaphor not only illustrates the obviousness of a reviewable error, but also connotes a misreading of the case whose impact on the decision is plain to see”.