Court and Parties

DATE: June 22, 2021 ONTARIO COURT OF JUSTICE (Toronto Region)

The Queen in Right of Ontario, -AND- Marina Nawrocki -AND- Zest For Living Etobicoke Inc.

Before: Justice of the Peace G. J. Fantino

Sentencing Reasons Delivered Orally on: June 15, 2021 Written Reasons Released on: June 22, 2021

Counsel: J. Mathurin, City of Toronto, Prosecution M. Nawrocki, Self-Represented

Justice of the Peace Fantino:

Introduction

[1] On June 15, 2021, I delivered a sentencing decision via a virtual court proceeding facilitated through Zoom video conferencing and informed the parties that I would also provide written reasons. These are my reasons.

[2] For clarity of the record and to ensure that procedural safeguards for both parties were duly observed, I will underscore that these matters were remanded from June 8 in Courtroom W2 at 2700 Eglinton Courthouse where a resolution of the case was attempted or at least initiated at the 3pm tier.

[3] The following observations and summary of what transpired on June 8 was provided as point of reference prior to resuming what can now be formally described as a sentencing hearing which I have carriage over.

[4] The Defendant Ms. Marina Nawrocki is a director and owner of the corporation, Zest for Living Etobicoke Inc. She is a named defendant and her company also stands charged with contravening a Section 7 Order under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 enacted in 2020 with an offence date of December 11, 2020.

[5] Ms. Nawrocki was at all times a self-represented defendant and satisfied every court appearance including March 19, April 23, May 28 and June 8. Ms. Nawrocki participated in one or more non judicial pre-trials with the assigned Prosecutor, Ms. Mathurin in an effort to resolve the charges and also provided certain financial disclosures to the Prosecution which were not tendered for my review and consideration. I will return to this issue later.

[6] On June 8, Ms. Nawrocki advised the Court that she intended to accept responsibility for the offences and plead guilty on a voluntary basis and without reservation. She stated that she made a mistake due to a misunderstanding or confusion concerning the business operating restrictions which were in force at the time due to COVID-19, limiting retail operations for non-essential goods to curbside pick-up only and prohibiting in-store shopping.

[7] Ms. Mathurin informed the Court that a joint submission was being presented for my consideration and at my request, after clarification was received that the charges were being prosecuted under PART III of the Provincial Offences Act, Ms. Mathurin advised the Court that while convictions were being sought on both counts, she was only seeking a monetary fine against the corporation and was recommending a suspended sentence on the Information where Ms. Nawrocki is charged personally.

[8] To be clear, the Prosecutor made no mention whatsoever prior to the guilty plea of the intention to also seek a term of probation against Ms. Nawrocki as part of the resolution. While I am not suggesting that this omission was a deliberate attempt to mislead the Court or Ms. Nawrocki for that matter (I accept that this circumstance was discussed with the defendant prior to the court appearance), this gap or oversight as a minimum, frustrates the resolution because the Court is essentially blindsided - caught off guard and unable to incorporate a full awareness of the consequence inquiry with a self-represented defendant.

[9] Moreover, the Court is also deprived of the opportunity to address the propriety of the joint submission and flag any concerns prior to moving forward with sentencing submissions which I submit would have been highly advisable based on Ms. Nawrocki’s self-represented status.

[10] Following my plea comprehension inquiry which regrettably omitted this important caution concerning the consequences of entering into a court order, Ms. Nawrocki pleaded guilty to both counts and conceded that the underlying facts pertaining to the charge circumstance were substantially accurate and offered an apology for the mistake. I registered convictions against Ms. Nawrocki and Zest for Living Etobicoke Inc. and received the Prosecution’s submissions as to penalty.

[11] At the conclusion of Ms. Mathurin’s sentencing submissions, she requested that I approve a joint submission consisting of the following penalties:

• $5,000 fine against the corporation;
• A suspended sentence (no fine) with regard to the named defendant but that I place Ms. Nawrocki on a term of probation for 6-months subject to three statutory conditions:
  1. Keep the peace and be of good behaviour which is more narrowly defined under the POA to read, “The Defendant shall 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.”
  2. Attend court as and when required.
  3. Notify the court of any change of address.

[12] When I afforded Ms. Nawrocki the opportunity to provide reply submissions and confirm her acceptance and understanding of the resolution, I detected a palpable level of confusion and apprehension with regard to the resolution and in particular, the implications of entering into a probation order.

[13] This development prompted me to intervene, put a halt to the proceedings and assert the Court’s “gate keeping” function. The Court has an obligation to ensure that the appropriate sentencing procedures are being strictly adhered to and in particular, protect the interests of a self-represented defendant at all stages of the proceedings.

[14] I also expressed reservation about the joint submission and informed the Prosecutor that the imposition of a probation order for a first time offender with no prior charges, warnings or violations, who has entered an early guilty plea and demonstrated remorse where no actual harm was caused can be ostensibly construed as unduly oppressive, harsh, excessive and overreaching.

[15] Ms. Mathurin made refence to the Supreme Court of Canada ruling R. v. Anthony-Cook, [2016] SCC 43 which makes it abundantly clear that joint submissions while not binding on the sentencing justice, must be given considerable deference. A joint submission may only be rejected if it is contrary to the public interest and would bring the administration of justice into disrepute. If there is a strong likelihood that a joint submission may be rejected, I am required to give advance warning, ensure that procedural safeguards are observed and ultimately provide detailed reasons in dissent.

[16] The case was adjourned from June 8 to allow the parties and specifically the Prosecutor the opportunity to make further submissions and provide the Court with any additional materials including relevant case law which informs the Court about the imposition of probation orders generally and specifically with regard to the Reopening Ontario (A Flexible Response to COVID-19) Act against an individual with no prior record, no prior warnings or history of violations.

[17] After receiving further submissions from the Prosecutor, Ms. Nawrocki provided a comprehensive overview of her business inclusive of: the scale and scope of operations, revenue and payroll figures for the past three years, number of employees, lease expenses, long term debt obligations, financial assistance received under various federal and provincial COVID-19 relief programs, profit and loss figures; all of which were consistent with the financial disclosures provided to Ms. Mathurin. The disclosures were not tendered as sentencing exhibits because they contain sensitive financial information pertaining to a privately held company.

Analysis

[18] Sentencing is not a rubber-stamping exercise and the Court must make an independent judicial determination that the resolution is appropriate.

[19] In R. v. Anthony-Cook, supra at paras. 1-2, the Supreme Court described the importance of resolutions by joint submission: “Resolution discussions between Crown and defence counsel are not only commonplace in the criminal justice system, they are essential ... They occur every day … and they are vital to the efficient operation of the criminal justice system … Not only do joint submissions help to resolve the vast majority of criminal cases in Canada, but in doing so they contribute to a fair and efficient criminal justice system.”

[20] Those observations apply with stronger effect to the very busy provincial offences courts because the daily dockets contain a high volume of regulatory offences to finalize and resolution without trial is essential to the efficient, effective and equitable operation of the system.

[21] I accept that a joint submission permits both parties to confidently resolve a case without a trial and ensure that the many factors which were considered in arriving at the joint position are respected. Undercutting a joint submission requires a high threshold and the test for doing so is intended to be a stringent one.

[22] Two decisions from the Newfoundland and Labrador Court of Appeal are purposeful in establishing what this threshold of certainty signifies.

[23] In R. v. Druken, 2006 NLCA 67, at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system”. And, as stated by the same court in R. v. B.O.2, 2010 NLCA 19, at para. 56, when assessing a joint submission, trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts”. These powerful statements capture the essence of the public interest test and clearly emphasize that a joint resolution should not be rejected lightly.

[24] While the public interest test ensures that resolution agreements are afforded a high degree of certainty, once this threshold has been crossed however, the judicial officer must intervene. This obligation is amplified when the defendant is self-represented and appears to demonstrate a lack of comprehension with the process and the outcome.

[25] Similarly, the Prosecutor being an officer of the court must remain flexible and not so entrenched in their position that a defendant’s right in the sentencing process to make independent submissions is not respected or properly taken into consideration. I accept that Ms. Mathurin acted in good faith and attempted to bring this matter to a resolution but Anthony-Cook most certainly does not stand for the proposition that a joint submission remains a joint submission when the defence is not fully on-board with the plea resolution. There can be no doubt that a rubber stamp of this supposed agreement between unequal parties (emphasis added) would result in a miscarriage of justice.

[26] I find that the prosecution is mistaken in its belief or claim that this plea agreement somehow falls within the framework and validity of a joint submission. This is a self-serving, convenient and unreasonable interpretation which bears no resemblance in substance or in form with the overarching requirements for a legitimate joint submission which are demonstrably absent in the case at bar.

[27] The word “joint” in the context of a plea agreement implies that both parties agree and consent to the recommendation being endorsed with essentially unfettered discretion or interference because the outcome is presumed to have been established by a combined effort with both parties negotiating from a level playing field (emphasis added).

[28] There is a clear and undeniable power imbalance which exists between the Prosecutor and the defendant who is self-represented which I conclude, in the circumstances does offend the public interest standard as viewed through the lens of a dispassionate, properly informed and reasonable member of the community.

[29] This resolution is not anywhere close to being on the same footing as a joint submission proposal where the certainty of a resolution agreement was achieved between counsel and equal parties which would undoubtedly be deserving of a much higher level of deference.

[30] The presumption of regularity in a joint submission is strongly rebutted by this factor and I conclude that the community’s confidence in the administration of justice would undoubtedly suffer and the administration of justice would fall into disrepute based upon this irregularity alone.

[31] R. v. Anthony-Cook, supra at para. 52 reads in part as follows: “in assessing whether the severity of a joint submission would offend the public interest, trial judges should be mindful of the power imbalance that may exist between the Crown and defence, particularly where the accused is self-represented (emphasis added) or in custody at the time of sentencing.” In R. v. Thompson, 2013 ONCA 202, [2013] O.J. No. 1546 (Ont. C.A.), the Court stated: “The justice system depends on judges rarely departing from sentences jointly recommended by counsel (emphasis added) in order to operate effectively.”

[32] Even if I were to determine by the thinnest of margins that the submission as to sentence qualifies as a joint position and has the consent of the defendant to proceed (a finding which I am not prepared to make for reasons previously stated), the imposition of a probation order while legally permissible under s. 72 of the Provincial Offences Act would also run afoul of the public interest and bring the administration of justice into disrepute for the following reasons.

[33] Sentencing is an individualized but fact driven process which requires adherence to the goals of sentencing inclusive of deterrence both general and specific, denunciation, rehabilitation, protection of the public but also observance of key sentencing principles which for regulatory offences originate in the common law. Unlike the Criminal Code of Canada, there are no sentencing principles or guidelines enunciated in the Provincial Offences Act.

Proportionality

[34] The sentence imposed must be a fit sentence proportionate to the seriousness of the offence, commensurate with the gravity of the offence committed and the moral blameworthiness of the offender.

[35] The defendant has entered a very early guilty plea which relieved the Crown of its obligation to prove the defendant’s guilt beyond a reasonable doubt, saved witnesses from testifying, and saved the public the cost that would have been involved in running a trial. The defendant has taken full responsibility for her actions and demonstrated remorse by offering an apology. These are important mitigating factors.

[36] There are no aggravating circumstances surrounding the commission of the offence. The Prosecution confirms that there were no prior warnings or cautions issued. While I recognize that mens rea is not an essential element of the offence, the defendant made no attempt to deceive or mislead the enforcement officer for instance and there is no evidence to suggest that Ms. Nawrocki acted in a flagrant, willful or deliberate manner. By all accounts she is a law abiding member of society who has operated a small retail business for decades in total compliance with all licensing and standards.

[37] Regulatory behaviour is concerned with the potential or risk of harm. Ms. Mathurin would like the Court to take judicial notice of the pandemic situation in the Province of Ontario, the mounting number of positive cases at the time of the offence in December of 2020, the rising rates of hospitalizations, ICU admissions and number of deaths attributed to COVID-19 as a clear and compelling need to enact control measures and send a strong message of general deterrence to those business owners who would circumvent or disregard the legislation.

Judicial Notice

[38] In R. v. J.M. (March 11), 2021 ONCA 150, the Court provides clear practice direction concerning the legal test to follow in the acceptance of facts through judicial notice:

(i) judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court; (ii) judicial notice involves the acceptance of a fact or state of affairs without proof; (iii) facts judicially noticed are not proved by evidence under oath; nor are they tested by cross-examination; (iv) since judicial notice dispenses with the need for proof of facts, the threshold for judicial notice is strict; and (v) judicial notice applies to two kinds of facts: (a) those that are so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons; and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy — procedural fairness demands judicial restraint and transparency in the application of judicial notice.

[39] Judicial notice is not dispositive of any of the contentious issues which the court is required to evaluate and it is a slippery slope, tantamount to forbidden reasoning to place excessive weight on facts which are the subject of dispute among experts let alone reasonable persons. Judicial notice pertaining to the myriad of facts which can be accepted as truth about COVID-19 cuts both ways and is therefore not a particularly helpful or constructive legal principle to adjudicate this important sentencing decision. While I don’t intend to wade into the murky waters of politics and science and stray too far from the narrow focus of arriving at a fit and just sentence in the case before me, I would be remiss in my responsibilities as a judicial officer if I failed to highlight just a few glaring examples which are the inverse reality or opposite side of the coin metaphorically speaking of the necessary control measures, lockdowns and restrictions which the Prosecution suggests I should take judicial notice of.

[40] By no means an exhaustive list, consider for a moment the fact that science experts, medical experts, doctors, epidemiologists, public health officials, and government leaders alike have all disagreed about a wide range of factors during this crisis.

[41] What about the double standard and inequality in approach readily observable during most of these lockdown periods when for instance, leading “big box retailers” were permitted to sell non-essential goods while small business owners were shuttered?

[42] Judicial decision making is not undertaken in a vacuum and when the sentencing justice is asked by the Prosecution to accept through judicial notice a state of affairs which singularly supports a one-dimensional perspective to the exclusion of other notorious facts which also have a bearing on sentencing, public confidence in the administration of justice can also be undermined.

Parity

[43] Similar sentences should be imposed on similar offenders for similar offences in similar circumstances. This standard of consistency does not suggest that the sentences given to persons who commit the same offence be the same but requires that the differences be understandable. The Reopening Ontario Act is a newly created statute with cases just beginning to make their way through the system. It is understandable that the Prosecution was unable to find any current examples of a similar charge circumstance being resolved with a probation order imposed against a first time offender following an early guilty plea. From a Toronto centric perspective at least, it would appear that this resolution, if accepted, would be precedent setting for a prosecution under the new legislation.

[44] The parity principle it should be noted is in direct conflict with the proportionality principle, which focuses on the specific circumstances of the individual offence and offender. The task of the sentencing justice is to balance these two principles in determining an appropriate sentence for a specific offender.

Totality

[45] This principle directs the sentencing judge to consider whether the total of all the sentences imposed exceeds the moral blameworthiness of the offender.

POA Sentencing Philosophy Generally

[46] As Justice Libman observes in The Regulatory Cycle and its Role in Shaping Purposes and Principles of Sentencing for Regulatory Offences (2012), 59 C.L.Q. 126 at pp. 126-27:

It is up to each court, in each case, to assess the circumstances of the offence, and the offender, and to impose a sentence that best reflects the mélange of principles of traditional sentencing theory, including denunciation, deterrence, protection of the public, rehabilitation, reparations, and promoting a sense of responsibility in offenders along with an acknowledgement of the harm done to victims and the community, all in juxtaposition to public welfare or regulatory offences.

[47] Not every regulatory offence is of the same seriousness or poses the same threat to the welfare of the public. POA Courts encounter on a far too frequent basis motorists who operate motor vehicles with no insurance coverage or drive while their driving privileges have been suspended. We adjudicate cases involving aggressive, careless, and distracted drivers who blatantly put their own lives at grave personal risk as well as the safety of other drivers, cyclist and pedestrians; employers who unknowingly or inadvertently send their employees into harms way through complacency and a failure to adhere to workplace safety standards or comply with their obligations under the Employment Standards Act to remit wages; landlords who are negligent complying with the life safety requirements codified under fire protection and prevention legislation; the list goes on.

[48] The risk of loss or level of harm in many of these examples is substantial because the activities by their very nature are inherently dangerous. Oftentimes there is actual harm caused with tragic consequences including serious bodily injury with life altering consequences and sadly, the loss of life.

[49] Despite the underlying importance of preventing the transmission of COVID-19 which goes to the root of the newly enacted Reopening Ontario Act and is a clear statement of legislative intent, no actual harm was incurred from this infraction. Further, the potential for harm arising from what would ordinarily be a perfectly legitimate activity, the fact that the number of individuals who were physically present in the store was negligible and who made the decision to enter the premises of their own volition - free from any compulsion, translates into a diminished risk factor at the low end of the severity spectrum.

[50] Curbside pick up it must be noted was also permissible during this time period with employees physically present in the store itself which supports the conclusion that the level of risk was determined by the government to be tolerable subject to the limitations as specified in the Order.

[51] I find that the sentence that I am being asked to impose based on the forgoing analysis and interpretation of the law is unreasonable and translates into a marked departure from a standard of fairness, proportionality and parity which clearly offends the core principles of sentencing.

The Probation Order

[52] Before imposing a probation order, the sentencing justice must consider the age, character and background of the defendant, the nature of the offence and circumstances surrounding its commission. Probation is most often utilized as a viable sentence to address rehabilitation and reformation driven objectives. Conversely, its relevance and suitability to address sentencing goals of punishment, general deterrence and denunciation is significantly diminished and must be used sparingly in the clearest of cases when highly aggravating features are present; it should be an exception and not the norm.

[53] The imposition of a sanction such as probation order is not rationally connected to the unique circumstances of this case involving a first time offender following an early admission of guilt and there are no additional conditions proposed or warranted which relate to circumstances of the offence and the defendant that contribute to the commission of the offence as the court considers appropriate to prevent similar lawful conduct or to contribute to the rehabilitation of the defendant.

[54] I find that the imposition of a probation order is more symbolic than impactful and represents an arbitrary approach to sentencing which would bring the administration of justice into disrepute.

The Fine

[55] The amount of financial penalty to be imposed does in many ways resemble an apportionment of blame by numbers approach but is not pre-determined by any mathematical formula.

[56] The fine is determined by a complex list of factors, 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.” R. v. Cotton Felts Ltd. (1982), 1 C.C.C. (3d) 287 (Ont. C.A.) and R. v. Inco Ltd. (2000), 143 C.C.C. (3d) 304 (Ont. C.A.)

[57] The controlling case law further dictates that fines must be large enough to punish and deter unlawful behavior and to be “more than a mere licence fee for illegal activity or a cost of doing business.” R. v. Cotton Felts Ltd., supra.

[58] Any facts about the circumstances of the offence or the offender that impact on a principle of sentencing may be considered. These include the purpose and nature of the statute, the extent of the measures the company took to avoid the wrong, the cost to avoid the wrong, and the attitude of the offender.

[59] Deterrence may be accomplished without imposing a substantial fine when there is history of compliance. Ms. Nawrocki and her business have no history of violations under any statute and there is no record alleged. The breach was immediately rectified and bears a low risk of harm.

[60] General deterrence does not require that large fines be imposed in every case and can be achieved through a fine which bears on the economic viability of a business. Zest for Living Etobicoke Inc. is a small business which operates from a 2,500 square foot leased premised located at 4242 Dundas St. West, Unit #3 in The City of Toronto and employs approximately 10 employees on a part-time basis when in peak season. In 2020, there was a material decline in sales due to COVID-19 and the first business quarter of 2021 from January to the end of March reflects a continuing period of financial distress and volatility.

Sentencing Disposition

[61] Chief Justice Lamer as he then was speaking for the Supreme Court of Canada succinctly described the sentencing process and the sentencing judge’s role in that process in R v M(CA), [1996] 1 SCR 500, at para. 91:

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly.

[62] I have fully considered the circumstances of the offence and the offender before imposing sentence and conclude that a $3,000 fine supplemented by the mandatory 25% Victim Fine Surcharge against the corporation, Zest for Living Etobicoke Inc. and a suspended sentence with no probation order against Ms. Nawrocki does not trivialize the offence but rather puts the circumstances of this offence and this offender in its proper perspective.

G.J. Fantino JP. Written Reasons Released: June 22, 2021