ONTARIO COURT OF JUSTICE

CITATION: Toronto (City) v. Nawrocki and Zest For Living Etobicoke Inc., 2022 ONCJ 307

DATE: 2022 06 29

BETWEEN:

CITY OF TORONTO (Appellant)

— AND —

MARINA NAWROCKI and ZEST FOR LIVING ETOBICOKE INC. (Respondents)

Before Justice V. Rondinelli

Heard on April 6, 2022

Reasons for Judgment released on June 29, 2022

G. Ruta………………………………………………………………For the Appellant

M. Nawrocki……………………………….…………………….…On her own behalf

Reasons for Judgment

Rondinelli J.:

[1] Zest for Living Etobicoke Inc. is a party retail store in the City of Toronto. Marina Nawrocki is the sole director of the corporation. On December 11, 2020, a by-law enforcement officer attended the store in relation to a complaint of a non-essential business operating contrary to O. Reg. 82/20 of the Reopening Ontario Act (a Flexible Approach to COVID-19), 2020, S.O. 2020, c. 17.

[2] The officer observed the store to be open and operating with signage indicating a limit of 5 customers. The officer observed a total of 4 customers in the store and a transaction occur. On the offence date, O. Reg. 82/20 did not permit in-person shopping at this type of store. As a result of the investigation, the corporation, Zest for Living Etobicoke Inc. and its director, Ms. Nawrocki, were charged accordingly.

[3] On June 8th, 2021, Ms. Nawrocki plead guilty and also entered a guilty plea on behalf of the corporation. A joint position of a suspended sentence and a 6-month probation order was submitted with respect to Ms. Nawrocki. A joint position of a $5,000 fine was submitted with respect to Zest for Living Etobicoke Inc.

[4] On June 15th, 2021, the Justice of the Peace declined to impose the penalties as proposed in the joint position. Instead, a suspended sentence was imposed, without probation, against Ms. Nawrocki and a fine of $3,000 was imposed as against Zest for Living Etobicoke Inc.

[5] The City of Toronto appeals, arguing that the Justice of the Peace erred by rejecting the joint sentencing submission.

[6] The Respondents attended the hearing of the appeal, but took no position on any of the issues raised by the City of Toronto.

[7] The applicable standard of review in sentence appeals was recently summarized by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9 at para. 26:

As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit.

[8] In rejecting the joint submission in this case, the Justice of the Peace generally followed the framework set out by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43 at paras. 50-60. In particular, once he became troubled with the proposed sentence, he sought information from the parties about the circumstances leading to the joint submission, he afforded the parties to make further submissions, and he gave reasons explaining why the proposed sentence was not acceptable. This is not to say the process was perfect. Firstly, while the Justice of the Peace was justified to be cautious in accepting a joint position on sentence involving a self-represented defendant, the various criticisms made of the Prosecutor throughout the sentencing proceedings on her handling of the joint position do not seem warranted upon my review of the record. One example of his rebuke of the Prosecutor can be found in his oral Reasons for Sentence, where he states:

I’m going to use some, I guess strong language. I’m going to be very straightforward and direct. I don’t mean to cause Ms. Mathurin any offence here, but I do need to speak very plainly and in a straightforward manner about the Court’s view and perspective of what’s arisen here. And the prosecutor is an officer of the court and what that means, in my opinion, is that the prosecutor must remain flexible and open to the rights of a defendant, in the sentencing process to make independent submissions, even if there was at least, in the prosecutor’s mind, a conclusion of pre-trial discussions had at a good faith level that were expected to resolve in according with what had been worked out.

I’m not sure how Ms. Mathurin believes that R. v. Anthony-Cook somehow stands for the proposition that a joint submission remains a joint submission when the defence is just not fully on-board with the plea resolution and, there’s no doubt in my mind that a rubber stamp of this supposed agreement between unequal parties would result in a miscarriage of justice.

[9] Although the defendant was self-represented, it is not an uncommon occurrence in the Provincial Offences Act courts for a self-represented defendant to be part of a proposal of a joint submission on sentence to a Justice of the Peace or Judge. It is also not an uncommon occurrence for these joint submissions to be hastily agreed upon between the parties on the day of trial. It is important to keep in mind that this was not a “hallway deal” that was being proposed to the Justice of the Peace. The Prosecutor and Ms. Nawrocki had many pre-trial discussions. Much of it was done in writing and Ms. Nawrocki was consistently allowed the opportunity to consult with a legal advisor before taking any further steps. In addition, due to Ms. Nawrocki’s assistance in providing financial information to the Prosecutor, she was able to persuade the Prosecutor to seek no fine against Mr. Nawrocki personally and a much reduced fine against the corporation.

[10] It is also important to note that Ms. Nawrocki herself did not raise any concern that the Prosecutor exerted any sort of pressure on her to plead guilty and to propose a joint submission on sentence.

[11] A second issue with the process employed by the Justice of the Peace within the Anthony-Cook framework, was that the trial Judge elicited much financial information from Ms. Nawrocki. The problem is that he did not provide the Prosecutor with the opportunity to cross-examine her on such evidence (which was unsworn), leaving an incomplete picture of the corporation’s financial health. For example, while Ms. Nawrocki spoke of government funding and loans, it was not to a specific degree that would give an accurate picture of the financial stability of the corporation.

[12] Moving then to the merits of the appeal.

[13] Dealing first with Ms. Nawrocki. In imposing a suspended sentence without probation, the Justice of the Peace erred by imposing an illegal sentence. In R. v. Ursel, (1997), 1997 CanLII 12512 (BC CA), 117 C.C.C. (3d) 289 (B.C.C.A.) at p. 314, Justice Finch explained suspended sentences as follows:

Where a suspended sentence is granted, in conjunction with a probation order, the court does not pronounce any sentence. The form of penalty to be imposed remains unknown, and if the offender complies with the conditions of the probation order, may never be imposed. If a condition of a probation order is breached, the offender may be charged with breach of the probation order, which is a separate offence. Proof of that offence must be made to the usual criminal standard, that is, beyond a reasonable doubt. The court may, as well, on proof of the breach, revoke the earlier order suspending sentence and impose the penalty it would have imposed for the original offence had the sentence not been suspended.

[14] While this was stated in a criminal case, s.2(2) of the Provincial Offences Act grants this court the power to have recourse to corresponding provisions of the Criminal Code as an aid to the interpretation of the Provincial Offences Act.

[15] In this regard, s. 731(1)(a) of the Criminal Code states:

731 (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,

(a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order

[16] Section 72(1)(a) of the Provincial Offences Act states:

72 (1) Where a defendant is convicted of an offence in a proceeding commenced by information, the court may, having regard to the age, character and background of the defendant, the nature of the offence and the circumstances surrounding its commission,

(a) suspend the passing of sentence and direct that the defendant comply with the conditions prescribed in a probation order

[17] As can be seen, the conjunctive language is clear and unambiguous in both the Criminal Code and the Provincial Offences Act. That is, both Acts grant the power to courts to suspend the passing of sentence and direct that the person convicted of the offence comply with conditions prescribed in a probation order. Since the provisions are clear and unambiguous, the court must give effect to the expressed legislative intent that requires a probation order be attached to a suspended sentence: See R. v. Rodgers, 2006 SCC 15 at para. 20. Although it was not the central issue in R. v. Martin, 1985 CanLII 3618 (ON CA), the Ontario Court of Appeal did note that a suspended sentence without probation was illegal since probation was required with the suspended passing of sentence under s. 663(1)(a) of the Criminal Code (now s. 731(1)(a)).

[18] As such, the Justice of the Peace erred in imposing a suspended sentence without ordering probation. The Prosecution sought a short probation period of 6 months with the statutory terms as its only conditions. In my view, this is an appropriate and fit sentence considering Ms. Nawrocki was a first-time offender; that immediately upon learning of the violation, she closed the store; that she pleaded guilty; and that she expressed remorse.

[19] Turning next to the corporate offender, Zest for Living Etobicoke Inc. An example of a case where the sentencing judge’s rejection of a joint submission was considered on appeal may be instructive to the analysis at hand. In finding that the trial judge erred in rejecting a joint submission in R. v. Manca, 2019 BCCA 280, the British Columbia Court of Appeal held at paras. 37-38:

[37] I agree with the sentencing judge that nine months’ imprisonment is a lenient sentence for this assault, given the nature of the underlying conduct and, importantly, the appellant’s criminal history. His attitude towards the victim, as displayed at the sentencing hearing, is also troubling. He continued to blame her for what transpired.

[38] However, notwithstanding these features, a one-month difference between the perceived “bottom end” of the available range, and the joint recommendation, cannot reasonably be said to have rendered the proposed sentence "so unhinged from the circumstances of the offence and the offender that its acceptance would leave reasonable and informed persons … to believe that the proper functioning of the justice system had broken down": Anthony-Cook at para. 34.

[20] Just as the imposition of a sentence only one month longer than that proposed by the joint submission in Manca was found to be “little more than tinkering,” the same can be said of the Justice of the Peace in this case imposing a $3,000 fine instead of $5,000 as was initially jointly proposed. As mentioned above, there was limited financial information placed before the Justice of the Peace that went untested by the Prosecutor. The maximum fine for this offence is $10,000,000. The Prosecutor proposed a fine of $5,000, taking into consideration that the corporation had no prior violations, pleaded guilty and was a small retail establishment – while at the same time balancing the deterrent effect such a fine would have on other similarly situated corporations. Although Ms. Nawrocki had expressed that she was not happy with the amount, $5,000 was presented as a joint position. This came after much discussion with the Prosecutor; understanding that she had no viable defence to the charge; and that the Prosecutor’s initial position was to seek a much higher fine but upon reflection of the financial information provided by the corporation, the Prosecutor sought a joint position of $5,000.

[21] In all of these circumstances, it is hard to see how the proposed fine of $5,000 (i.e. 0.0005 percent of the maximum fine) is “so unhinged from the circumstances of the offence and the offender that its acceptance would leave reasonable and informed persons … to believe that the proper functioning of the justice system had broken down,” (Anthony-Cook at para. 34) especially when an extension of time to pay the fine would go a long way in attenuating the burden of the fine. The Justice of the Peace should not have “tinkered” with the proposed amount in this case: See Anthony-Cook at para. 63.

[22] Although I would allow the appeals, the fine imposed at trial against Zest for Living Etobicoke shall remain the same, since the City of Toronto requested that the fine not be increased should the appeal succeed.

[23] Furthermore, the City of Toronto requested the charge be stayed against Ms. Nawrocki should the appeal be allowed. Consequently, the charge against her is stayed.

Released: June 29, 2022

Signed: Justice V. Rondinelli