ONTARIO COURT OF JUSTICE

CITATION: R. v. McGregor, 2021 ONCJ 500

DATE: 2021-08-19

COURT FILE No.: Owen Sound - Certificate 6261366B

BETWEEN:

His Majesty the King

— AND —

Jacob McGregor

Before: Justice of the Peace M A Cuthbertson

Heard on: 16 June 2021

Reasons for Sentence released on: 19 August 2021

Counsel: S. Coles, for the prosecution The defendant Jacob McGregor, on his own behalf

JUSTICE OF THE PEACE CUTHBERTSON:

BACKGROUND

[1] On 30 January 2021, the defendant was charged with Drive Hand-Held Communication Device contrary s. 78.1(1) of the Highway Traffic Act (HTA). He pled guilty to this charge before me on 16 June 2021.

[2] After I found him guilty of the offence, a joint submission of $300 was requested, despite there being a minimum fine of $500 for a conviction for this offence.

[3] I reserved my decision to consider the submissions, statutes and relevant case law on the issue. Having done so, I find that there is no basis in law for my acceptance of the joint submission.

[4] As a result, there are two choices open to Mr McGregor in this matter. The choices are:

(a) He may request that I cancel the conviction and then proceed to trial.

(b) In the alternative, he may wish for me to continue with sentencing and impose the minimum fine of $500.

[5] My reasons for not accepting the joint submission follow.

THE JOINT SUBMISSION

[6] I asked Ms Coles to remind me of the minimum fine for this offence before she made her submissions on sentence. She fairly acknowledged that the minimum fine is $500. She then proceeded to seek a fine of $300 as a joint submission. Ms Coles stated several reasons in support of her position. I have categorized them under separate titles for discussion purposes. Her stated reasons were:

When a Minimum Fine Applies

(a) The minimum fine would be reflected had the defendant proceeded with trial and the court would have to impose a fine upon a conviction, the minimum fine would be applicable at that time. But on a resolution, looking at the facts that the charge has not been reduced, that reducing the penalty itself works as a resolution for the purpose of having the matter disposed of in an expeditious manner.

Possible Mitigating Factors

(b) It was an early guilty plea. The defendant will not use up any further court time.

(c) No driving record for any similar or related offence was alleged.

(d) The defendant will be suffering the other consequences related to the suspension and demerit points.

(e) Any further such convictions would result in significantly worse outcomes for Mr McGregor.

Application of the Joint Submission

(f) The joint submission would not bring the administration of justice into disrepute or was contrary to the public interest.

(g) Specific and general deterrence is met by the joint submission.

[7] I asked how the joint submission met the Ontario Court of Appeal’s decision in Ontario (Environment, Conservation and Parks) v. Henry of Pelham, 2018 ONCA 999 regarding the application of s. 59(2) of the Provincial Offences Act (POA).

[8] In response, Ms Coles provided R. v. Radilla-Gonzalez, [2019] O.J. No. 6774 and referenced paragraphs 20 and 21 in support of her position.

[9] Mr McGregor had no submissions.

[10] Ms Coles also fairly advised that there were several other matters that were to be put before me for resolution where there would be a joint submission for a fine less than the minimum fine set in legislation. Perhaps not surprisingly, in light of my decision to reserve and prepare a written decision, those matters did not proceed before me and were all put over to another day.

ANALYSIS

[11] I will begin my analysis with the relevant statutes that I must consider.

Statute law

[12] Section 78.1 HTA states:

Hand-held devices prohibited. Wireless Communication Devices

78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. 2009, c. 4, s. 2; 2015, c. 27, Sched. 7, s. 18.

Penalty

(6.1) Every person who contravenes this section is guilty of an offence and on conviction is liable,

(a) for a first offence, to a fine of not less than $500 and not more than $1,000;

(b) for a first subsequent offence, to a fine of not less than $500 and not more than $2,000; and

(c) for a second subsequent or an additional subsequent offence, to a fine of not less than $500 and not more than $3,000. 2017, c. 26, Sched. 4, s. 16.

Same

(6.2) If a person is convicted of an offence under this section, the Registrar shall suspend his or her driver’s licence,

(a) for a first offence, for three days;

(b) for a first subsequent offence, for seven days; and

(c) for a second subsequent or an additional subsequent offence, for 30 days. 2017, c. 26, Sched. 4, s. 16.

[13] It is clear from this section that the legislature intended that no fine for a conviction under s 78.1 HTA, be it a first or subsequent offence, should be less than $500 but the fines for subsequent convictions may increase on a rapidly increasing scale.

[14] However, as mentioned earlier, I am aware of section 59(2) of the POA which states:

Relief against minimum fine.

59(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.

[15] At no time, did Mr McGregor make an application under this section.

When a Minimum Fine Applies – Discussion

[16] There are two opportunities for a defendant to plead guilty, if they so choose. First, a person who has received a Part 1 Offence Notice (commonly called a ‘ticket’) from a police officer may pay the Total Payable shown on the face of the ticket which includes the Set Fine and costs. In the case at bar, the Set Fine was $500. The payment of the Total Payable to the court is an admission of guilt. The Set Fine is determined by the Chief Justice of the Ontario Court of Justice. This option is available for those defendants who wish to deal with their matters by pleading guilty, expeditiously. It requires no court appearance.

[17] The second time a person may plead guilty on the same ticket is when they choose to go to trial. This will occur in a courtroom, either virtually or in-person, in front of a justice of the peace. Once the defendant chooses this option s. 78.1(6.1) HTA (see Penalty above) applies. Subsection (a) sets out the fine range for a first offence which is a minimum of $500 and a maximum of $1000. A sentencing justice will determine the outcome but is not bound to only a $500 fine, as seemingly suggested by the Prosecutor, after a trial.

Subsections (b) and (c) set out fine ranges for subsequent offences. All of these fines are set by the Ontario legislature.

[18] The fact that the Set Fine and Minimum Fine are the same indicates the seriousness with which those who determine such fines regard this offence. It appears that Ms Coles is conflating these separate events into one. I disagree with this approach, as it is an ‘apples and oranges’ comparison.

[19] Ms Coles statement ‘that reducing the penalty works as a resolution for the purpose of having the matter disposed of in an expeditious manner’ certainly is factually correct and is a significant advantage to those who choose a trial in Owen Sound then negotiate and/or are offered a fine reduced below the minimum by the prosecution and presented to the court as a joint submission.

[20] However, it is contrary to the penalties set out in s. 78.1 HTA unless there is an application under s. 59(2) POA for a trial justice to consider and rule on. It also sends the unseemly message that it is cheaper to plead guilty and be convicted of a s. 78.1 HTA offence in an Owen Sound trial courtroom than in the rest of the province. This is not what the legislature directed.

[21] In my view, by undermining the will of the legislature, this approach brings the administration of justice into disrepute and is contrary to the public interest. For the same reason, it does not adequately address specific and general deterrence.

Possible Mitigating Factors – Discussion

i) Early Plea

[22] I accept that pleading guilty after requesting a trial constitutes an early plea and will not use up any additional court time. I accept that the POA courts are badly backlogged due to the pandemic. I accept that there may be constitutional issues, if trials are delayed, due to the backlog. But I also accept that it is only the Ontario legislature which has the authority to change or temporarily lower the minimum fines that it previously set in legislation to address the challenges in the POA courts. I note that no such changes have been made.

[23] Therefore, I accept subject to a s 59(2) application and/or case law which I will discuss below, that I do not have the legal authority to go below the minimum fine which would thwart the will of Ontario’s legislature.

ii) Driving Record

[24] In my view, the fact that the defendant does not have a related driving record gives weight to a fine towards the lower range of the legislated limits. Therefore, a minimum fine may be appropriate in these circumstances.

iii) Collateral Consequences

[25] The suggestion that Mr MacGregor deserves consideration as there will be other consequences related to a licence suspension and demerit points is problematic. A plain reading of s. 78.1(6.1) and (6.2) HTA shows that the legislators designed the maximum fines and consequences for subsequent offences to increase. Looked at in another way, the credit that is given for first offenders by the legislature is a lower maximum fine and only a 3 day licence suspension for a first offence. A trial justice can only consider a ‘penalty’ (in this case - a fine) during sentencing after a conviction. Just as with the licence suspension provisions, the demerit points are ‘collateral consequences’ of a conviction which are set automatically and are not determined by the trial justice.

[26] Criminal case law provides helpful guidance as to how collateral consequences should be considered during sentencing. In R. v Suter, 2018 SCC 34 in paras 46 to 50 there is a significant amount of sentencing case law dealing with collateral consequences. In that case, Mr Suter was the victim of vigilante justice and suffered injuries as a result which constituted a collateral consequence and was considered as a mitigating factor during sentencing by the Supreme Court. In para 47, the Court defined collateral consequences very broadly. It held:

In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender.

In para 49, the Court further stated:

Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence.

[27] Therefore, the automatic licence suspension and demerit points which flow from a conviction under s. 78.1(1) of the HTA are collateral consequences.

[28] However, further analysis is required in the context of s. 78.1 (1) of the HTA, which is a regulatory not a criminal offence, as to what weight collateral consequences can be considered as mitigating factors in sentencing. In R v Pham, 2013 SCC 15, the Supreme Court held:

12 However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Professor Manson explains this as follows:

As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. ...

The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender’s ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence.

[Emphasis added.]

(The Law of Sentencing (2001), at pp. 136-37)

13 Therefore, collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case.

[29] While concerning, I do not consider that a s. 78.1(1) offence is at the higher levels of serious offences under the Highway Traffic Act. I did not hear anything that suggests the circumstances of the defendant’s case were exceptional in any way.

[30] Nothing was presented to me that suggests Mr McGregor will suffer the types of ‘burden and hardships’ referenced in para 12 of Pham. The collateral consequences that he will experience following a conviction under s. 78.1(1) HTA are, in my view, inconveniences not potentially life-altering events such as the vigilante attacks on Mr Suter or the immigration consequences for Mr Pham.

[31] Therefore, the overriding principles which need to be addressed in Mr McGregor’s case are general and specific deterrence, as well as denunciation. In my opinion, those principles can best be met by giving no weight to the collateral consequences of a conviction, in this matter. Simply put, collateral consequences cannot serve to displace the legislative direction for a minimum sentence, in these circumstances.

iv) Outcomes of Future Convictions

[32] I am troubled by the suggestion that I should consider if Mr McGregor has further convictions under s. 78.1 HTA that it will result in significantly worse outcomes for him. That is a problematic perspective. It suggests that Mr McGregor won’t learn his lesson from this conviction and he therefore deserves a break on the penalty now. This view is decidedly misguided and I reject it. The obvious flaw is that if Mr McGregor is sentenced to the minimum fine of $500 the message that he must not contravene s. 78.1 HTA again is louder and clearer. If he needs further incentives to follow the law, he may wish to review the increased penalties and collateral consequences for further offences which are set out above.

Application of the Joint Submission – Discussion

[33] Ms Coles suggested the joint submission would not bring the administration of justice into disrepute nor would it be contrary to the public interest. I have already determined above that the joint submission does exactly that but I now wish to expand on the topic by applying the relevant case law.

[34] Ms Coles did not mention what case law to which she was referring but it appears that she was relying on R. v. Anthony-Cook, 2016 SCC 43. In that decision the Supreme Court of Canada (SCC) made it clear that joint submissions must be treated with considerable deference at sentencing hearings. However, that deference is not without limitations. In para 52, the SCC stated:

First, trial judges should approach the joint submission on an “as-is” basis. That is to say, the public interest test applies whether the judge is considering varying the proposed sentence or adding something to it that the parties have not mentioned, for example, a probation order. If the parties have not asked for a particular order, the trial judge should assume that it was considered and excluded from the joint submission. However, if counsel have neglected to include a mandatory order, the judge should not hesitate to inform counsel. The need for certainty in joint submissions cannot justify failing to impose a mandatory order. (emphasis added)

[35] This is consistent with the SCC’s ruling, on Criminal Code minimum sentences, in para 45 of R. v. Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206 which states, in part:

The discretion of a sentencing judge is also constrained by statute, not only through the general sentencing principles and objectives enshrined in ss. 718 to 718.2 articulated above but also through the restricted availability of certain sanctions in the Code. For instance, s. 732 prohibits a court from ordering that a sentence of imprisonment exceeding 90 days be served intermittently. Similar restrictions exist for sanctions such as discharges (s. 730), fines (s. 734), conditional sentences (s. 742.1) and probationary terms (s. 731). Parliament has also seen fit to reduce the scope of available sanctions for certain offences through the enactment of mandatory minimum sentences. A relatively new phenomenon in Canadian law, the minimum sentence is a forceful expression of governmental policy in the area of criminal law. Certain minimum sentences have been successfully challenged under s. 12 of the Charter on the basis that they constituted grossly disproportionate punishment in the circumstances of the case (R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Bill (1998), 13 C.R. (5th) 125 (B.C.S.C.)), while others have been upheld (R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90). Absent a declaration of unconstitutionality, minimum sentences must be ordered where so provided in the Code. A judge’s discretion does not extend so far as to override this clear statement of legislative intent. (emphasis added)

[36] Clearly then, the SCC in both Anthony-Cook and Nasogaluak recognized that mandatory orders and mandatory sentences provided for in statutes must be respected by the trial courts. A minimum fine is of the same nature as a mandatory order or sentence since it is based in legislation. In my view, a minimum fine is a mandatory order or sentence by another name. As a result, a legislated minimum fine cannot be outweighed solely by way of a joint submission without some other legislated relief being sought and granted by a sentencing justice.

[37] I find to accept a joint submission without legal relief being sought and granted would bring the administration of justice into disrepute and is contrary to the public interest.

[38] I also find that a fine less than the prescribed minimum fine does not adequately address specific and general deterrence nor the need for denunciation. It is not lost on me that minimum fines and the related collateral consequences are the legislature’s determination of what constitutes specific and general deterrence, as well as denunciation.

Application of s. 59(2) POA

[39] What can be considered which may provide relief from a minimum fine is an application under s.59(2) of the POA, as I noted above. No application under this section was made. No reference to this section was mentioned in submissions.

[40] Ms Coles relied on R. v. Radilla-Gonzalez, [2019] O.J. No. 6774 as authority for me to accept the joint submission in the case at bar. That case involved a Crown appeal on a point of law. Unlike in the matter at bar, there was an application under s. 59(2) POA (see paras 16-19 and 22). The Court considered it. On the facts then, Radilla-Gonzalez is distinguishable from the matter before me.

[41] While I cannot consider an application that is not before me, I think it may be helpful to reproduce here, the Summary which sets out the governing principles for s. 59(2) applications, in the Henry of Pelham decision. This is the law in Ontario and is worth reviewing by interested parties. The Ontario Court of Appeal stated:

SUMMARY

[63] I would summarize the above discussion as follows:

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.

[42] I note again that Ms Coles had advised that there were additional matters on the docket which involved joint submissions below minimum fines. All were adjourned. I state again that I cannot consider matters which were not before me but I offer for review by interested parties, the findings of the appellate court in Toronto (City) v. Sabri, 2020 ONCJ 118. In that case which consisted of 14 separate Part 1 charges where a minimum fine was set out in the legislation, a justice of the peace exercised her discretion under s. 59(2) POA and reduced the fines below the minimums. The appellate court found that Her Worship did so without applying the appropriate governing principles as set out in para 63 of Henry of Pelham, above. In para 30, the Court held:

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.”(emphasis added)

[43] Also noteworthy, in para 33 of Sabri, Justice Rondinelli held that guilty pleas are not a factor under s. 59(2) applications but a guilty plea would have supported a minimum fine being imposed. The Court stated:

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. (emphasis added)

[44] I make no findings but it is interesting to note the possible similarities in what occurred in Sabri and the additional other matters where it was contemplated that joint submissions for fines below the appropriate minimums were originally to be presented to me on 16 June 2021 but then adjourned.

NEXT STEPS

[45] So what happens when a joint submission is rejected? This issue was addressed in Anthony-Cook in para 59. The Supreme Court of Canada held at para 59:

Fifth, if the trial judge’s concerns about the joint submission are not alleviated, the judge may allow the accused to apply to withdraw his or her guilty plea. The circumstances in which a plea may be withdrawn need not be settled here. However, by way of example, withdrawal may be permitted where counsel have made a fundamental error about the legality of the proposed joint submission, for example, where a conditional sentence has been proposed but is unavailable. (emphasis added)

[46] In Mr McGregor’s matter, a fundamental error about the legality of the proposed joint submission has occurred.

[47] I am concerned, as an unrepresented individual, Mr McGregor may not have understood the limitations of a joint submission which may have mislead him. He may not have understood that he has the right to make an application under s. 59(2) POA. As per Anthony-Cook, one option is for him to ask me to strike his plea and start anew. He may wish to seek legal advice before he proceeds to trial either with or without representation. His other option is to continue with his plea and sentencing but with the knowledge that the minimum fine of $500 will be imposed. Of course, he maintains the right to make a s. 59(2) application, as well.

CONCLUSION

[48] I reject the joint submission for a fine less than the minimum fine set out in legislation.

[49] Out of an abundance of fairness, I will grant Mr McGregor his preference of the two options (see Next Steps above) on how he may proceed.

[50] I am releasing this decision early so he can consider how he wishes to proceed. When he is next before me, I will look to Mr McGregor for his preference.

[51] If he wishes to retain an agent or lawyer to assist him, he is to have that accomplished by that appearance. I understand that date to be 29 September 2021.

Released: 19 August 2021

Signed: “Justice of the Peace M A Cuthbertson”