Ontario Court of Justice

Date: September 25, 2024 Court File No.: 2860-999-0384-00

City of Oshawa Respondent

• and -

Harvey Colin Quinlan Appellant

Before: Justice P.K. Burstein

Heard on: August 21, 2024 Reasons for Judgment released on: September 25, 2024

Counsel: M. Mayhew-Hammond, for the Respondent T. Moore, for the Appellant

BURSTEIN J.:

Overview

[1] The City of Oshawa, like most cities, is responsible for ensuring that the construction of buildings within its jurisdiction is done safely and in the public interest. The Building Code Act empowers cities like Oshawa to discharge that responsibility by a system of prior approval for that construction. As part of that approval process, cities like Oshawa also employ inspectors to monitor the construction to ensure that it is being done properly so that public safety is not compromised. Modern history is replete with examples of tragic collapses of buildings which were not constructed properly. The Act is one important measure aimed at preventing such tragedies.

[2] On December 8, 2023, Harvey Quinlan was found guilty after trial of violating s. 8(1) of the Building Code Act. Being the owner of a building, Mr. Quinlan had “caused a building to be constructed or demolished” without a permit first having been issued by the City’s chief building official. He had never before been accused of breaching the Act. Following his trial, pursuant to s. 36(3) of the Act, he was sentenced to pay a fine of $40,000 (plus surcharges) and, pursuant to s. 72(1) of the Provincial Offences Act, a 12-month term of probation. In view of his lack of any prior record and his efforts to mitigate the harm from having commenced construction in advance of the permit, Mr. Quinlan argued that a suspended sentence with 12 months of probation would adequately address the relevant sentencing objectives. The prosecutor had submitted that Mr. Quinlan should receive the maximum fine allowable for a first offender; namely, $50,000.

[3] Mr. Quinlan has now appealed against that sentence pursuant to s. 116 of the Provincial Offences Act.

Summary of the “facts”

[4] Mr. Quinlan was the co-owner of 100 Cromwell Avenue in Oshawa. On November 17, 2022, he applied to the City of Oshawa for a permit to renovate the four-plex on the property. The renovation was in anticipation of at least three of those units being rented at below market prices to elderly low-income tenants. Because Mr. Quinlan had neglected to also include payment for the application, it was not officially received until November 24, 2022.

[5] Although Mr. Quinlan had begun the project in the Spring of 2022, his application for the building permit was delayed. He had nevertheless commenced construction, without having received the permit, sometime in the late Summer of 2022, a “couple of months” prior to the application for the permit being filed.

[6] According to the building inspector who testified at the Appellant’s trial, the standard for processing time for building permits is 10 days, assuming that the applicant has provided all necessary information. In the Appellant’s case, it turned out that his application first required him to obtain a variance. The Appellant eventually obtained that variance in or around March of 2023 and was subsequently granted a building permit by the City in or around April 26, 2023.

[7] On December 4, 2022, the Appellant sent an email to the City’s Chief Building Officer disclosing that the Appellant had commenced the renovation at 100 Cromwell even though he had not yet received a permit. Having been notified of this by the Appellant, the City sent out an inspector to the property on December 5, 2022. Upon confirming that there was construction and no permit, the inspector immediately issued a “stop work” order. Several follow-up inspections in December and January confirmed that the Appellant had ceased construction upon receipt of that stop-work order.

[8] On December 6, 2022, the Appellant sent a further email to the City’s building department, this time to the inspector assigned to the case. In that email, the Appellant explained how he was “mitigating having work performed prior to the issuing of a permit to ensure that the context of the Building Code is strictly maintained”. He began by expressing his belief that he was only days away from the end of the 10-day period for processing a permit and that he had only just learned that he may first require a variance. He went on to explain that in the interim he had hired a professional engineering firm “to inspect the work as it was being completed and to provide certification that all work completed is done in accordance with the Ontario Building Code”. Finally, he explained that the reason he felt compelled to proceed with construction in advance of receiving the permit was not financial but because the proposed tenants of the four-plex were all low-income vulnerable people who would be placed at risk if the construction were delayed.

Scope of appellate review of sentences

[9] Despite the 1982 pronouncement of the Ontario Court of Appeal in R. v. Cotton Felts Ltd., more recent appellate decisions have made clear that subsequent developments in the scope of appellate review for Criminal Code sentences must apply equally to narrow the scope of appellate review of Provincial Offences Act sentences. Accordingly, pursuant to s. 116 of the Provincial Offences Act, an appellate court should only interfere with the sentence imposed at first instances when it is satisfied either that the justice at trial committed an error in principle (including a failure to consider relevant factors or an overemphasis of certain factors) or imposed a sentence which was demonstrably unfit. A judge sitting on appeal against a sentence imposed at trial must not simply substitute their decision on what the appropriate sentence should be: see R. v. Cotton Felts Ltd., [1982] O.J. No. 178 (C.A.); R. v. Turcotte, [2000] O.J. No. 1316 (C.A.), R. v. M.(C.A.), 1996 SCC 230 at para. 90, and R v Fabgemi, 2000 CarswellOnt 2411(C.J.).

Analysis and findings

[10] Accepting the narrow scope of appellate review of a sentence, I am nevertheless compelled to conclude that the presiding justice in this case erred in principle by imposing the sentence they did. In short, not only is the sentence well outside the jurisprudential range appropriate for this offence and this offender, but the presiding justice’s reasons also fail to either identify the appropriate range or to explain why this offence and this offender required the substantial sentence which was imposed.

[11] While a justice at trial need not demonstrate that “they know the law”, in cases where “the law” is unsettled, it is important to the parties, to the public and to a reviewing court, that the justice express what and why they viewed the law in a certain way. At the hearing before me, counsel for the Respondent fairly conceded that there was no reported decision – appellate or trial – which purported to identify the range of appropriate sentences for first offenders convicted under s. 8 of the Building Code Act. In those circumstances, it was both necessary and appropriate for the justice in this case to explain how and why he arrived at a determination that the fit sentence was a fine just shy of the maximum and one year of probation. For example, did the justice believe that the range was markedly lower but that there were enough seriously aggravating features of this case to drive the appropriate fine well above the range or did the justice believe that the range of appropriate fines extended to include a fine of $40,000 and that the circumstances of this offence and this offender warranted a sentence at the top end of that range? In this regard, it is noteworthy that neither the prosecutor nor counsel for the Appellant at trial seemed to have provided any caselaw purporting to outline the range of appropriate sentences for the offence at issue in this case (as opposed to cases setting out some broad principles developed in entirely different contexts). The parties, the public and a reviewing court could only assess whether the sentence imposed by the justice in this case reflected an error in principle if they could see how and why the appropriate sentence was determined.

[12] Having reviewed the authorities provided by the parties on the appeal concerning the sentences imposed on first offenders convicted of a single offence contrary to s. 8(1) of the Act, I am satisfied that the appropriate “range” is somewhere between a fine of $500 to a fine of $5000: City of Mississauga v Khalid, 2014 ONCJ 125, City of Pickering v. Vallance, 2011 ONCJ 771 at para. 22, Oshawa v. 635967 Ontario Ltd, [2002] O.J. No. 2051 at para. 42 (C.J.), R. v. McTaggart, 2009 ONCJ 710, South Huron v. Ducharme, 2007 ONCJ 726, R. v. Black, [2002] O.J. No. 3049 (C.J.). I accept that there have been some cases where the total amount of the fines have greatly exceeded $5000 but those were cases involving a multitude of violations where the aggregate amount was in the tens of thousands of dollars. Equally, there have been cases involving such minor transgressions of s. 8(1) of the Act that the offender received a suspended sentence or some other nominal sentence. Those extreme examples do not help define the appropriate range but rather demonstrate that, in some cases, the circumstances of the offence or of the offender may appropriately require a sentence outside the “range”. There was, however, nothing in the evidence nor in the Reasons for Sentence to explain how or why this would fairly be considered to be such a case.

[13] This was a case which should have fallen within the range of appropriate sentences, subject to appropriate consideration of the mitigating and aggravating factors. In other words, there was nothing exceptionally mitigating or aggravating about the facts of this case. Unlike many of the cases where fines at the higher end of the range were imposed, there was no accompanying conviction for having failed to comply with a stop-work order once the pre-permit construction was discovered nor were their allegations of multiple violations of the Building Code Act.

[14] The only potentially aggravating factor in this case was the evidence that the Appellant was aware that he was committing an offence under the Act for commencing construction prior to receipt of the permit. In support of its submissions that the Appellant was deserving of the maximum fine, the prosecutor noted that the Appellant had told the building inspector that he believed it would be cheaper to pay a fine than to halt or delay construction. From that utterance, the prosecutor then asserted that, because the Appellant had “researched these fines prior to commencing construction and he was well aware that he faced up to $50,000 in penalties and determined that it was still cheaper to pay those fines than to delay construction” (a claim repeated by the Respondent on appeal: see para. 46 of Respondent’s Factum). Accordingly, argued the prosecutor, the maximum $50,000 could not be considered harsh or excessive to the Appellant and was certainly necessary to achieve deterrence.

[15] The problem with the prosecutor’s submission about this alleged aggravating factor is that there was no such evidence adduced at trial (or at the sentencing hearing). The evidence showed only that the Appellant had believed that the fine he would receive was less than the added costs of delayed construction, not that he had “researched” the law and learned that the maximum fine was $50,000. Had the Appellant truly “researched” the range of fines he was likely to receive, he would inevitably have discovered what I, or any informed legal advisor would have, learned upon researching the issue; namely, that the appropriate range of fines for a first offender convicted of a similar violation of s. 8(1) of the Act is somewhere between $500 and $5000. That, of course, is not to say that there may not be cases involving first offenders where a much larger fine, or no fine, is appropriate given the aggravating or mitigating facts of those cases. The point is simply that to suggest that it was necessary to sentence the Appellant to a fine in the range of $50,000 because that’s what he had contemplated before deciding to still commit the offence was not borne out by the evidence. In the circumstances of this case, especially the very limited explanation given in the Reasons for Sentence for the significant fine, it was also an error for the presiding justice to have not expressly rejected this submission as having been unsupported by the evidence.

[16] By contrast, there were a number of important mitigating factors which the presiding justice seemed to ignore without having provided any reasons for doing so. Despite the general principle that post-offence compliance should not mitigate a sentence, in the circumstances of this case, the Appellant’s significant post-offence efforts to mitigate the risk of harm occasioned by building without a permit was much more than just post-offence compliance. The fact that the Appellant voluntarily assumed the extra costs of hiring an engineer to conduct the ongoing inspections of the construction went a long way to refute the claim that the Appellant was simply willing to treat the fine as a cost of doing business.

[17] Second, the very evidence relied upon by the prosecution at trial to show that the Appellant admitted to violating s. 8 of the Act, equally demonstrated that the Appellant fully accepted responsibility for his misconduct and was trying to mitigate the risk of harm he had created. The Respondent’s claim, expressed at paragraphs 24 and 25 of its Factum, that the Crown’s introduction of these statements from the Appellant for one purpose somehow limited their admissible use at trial is unfounded. It is trite law that once the Crown chooses to admit an accused’s utterance to a person in authority the contents of that utterance become admissible evidence both for and against the accused. As the Appellant’s emails to the City showed, the Appellant had taken significant steps to mitigate his offending behaviour. The Appellant’s efforts in that regard ought to have been considered at sentencing in light of the evidence that he was eventually granted the required building permit only a few months later: see City of Mississauga v. Khalid, 2014 ONCJ 125 at para. 28. While the subsequent issuance of the permit did not absolve him of legal liability for having commenced construction in advance, in light of the Appellant’s efforts to mitigate the risk of harm, the ultimate issuance of a permit showed that even the City had accepted that completion of the construction was appropriate and, hence, that the Appellant had not created an undue risk of harm by his pre-permit construction. The risk of harm created by unsupervised construction is the principal focus of the permit requirement of the Act and so should have been a prime consideration in the presiding justice’s determination of an appropriate sentence in the Appellant’s case.

[18] Third, in that same email introduced and relied upon by the prosecutor, the Appellant made clear that his motive for disobeying the requirements of the Act was to provide timely low-cost housing to vulnerable seniors. While that was not a defence to the s. 8 charge, the Appellant’s motive should have served to lower his moral blameworthiness for the offence, especially when compared to offenders in other cases involving the same offence.

[19] Last, but not least, the fact that the Appellant had initiated the City’s investigation by volunteering that he was committing the offence should have been considered as a significant mitigating factor. In my opinion, this type of self-reporting to law enforcement authorities must rest on an even higher mitigation plane than a guilty plea to a charge arising independently from an investigation. In other words, in the circumstances of this case, it was an error in principle to deny the Appellant the mitigative benefit of an early acceptance of responsibility simply because he elected to have a trial. We do not punish people more harshly for exercising their right to have a trial. Rather, in most cases, having a trial tends to undermine any unsubstantiated post-conviction claim that an offender accepts responsibility for their offence. Not so in the Appellant’s case.

[20] In his Reasons for Sentence, the presiding justice briefly adverted to “some mitigating circumstances … brought up by defence” but then concluded that “the only one that holds water” is the fact that the COVID-19 pandemic may have created some unforeseen bureaucratic hurdles for the Appellant when applying for the permit. The presiding justice said nothing to explain why any of the other above-noted mitigating factors should influence the appropriate sentence in this case. Instead, the presiding justice simply said:

The prosecution is asking for a $50,000 fine for a first offence. I do look at the various case laws and, keeping in mind both moral blameworthiness, keeping in mind the principles of both general and specific deterrent [sic], I think a fine of $40,000 is suitable in this particular situation but, along with that, a one-year probation.

[21] In the end, I am satisfied that the sentence imposed on the Appellant was both “demonstrably unfit” and was the product of one or more errors in principle. I am also satisfied that the range of appropriate sentences for a first offender committing a s. 8 Building Code Act offence in similar circumstances to this case is in the range of $500 to $5000. Having regard to the significant mitigating circumstances in this case, I am satisfied that the Appellant’s offence was properly situated at the lower end of that range. Although I accept that he was motivated, at least in part, by a desire to provide low-cost housing to vulnerable people, the fact remains that the Appellant’s violation was committed for commercial and not personal reasons. While that does not aggravate the offence, it does place a limit on how much the mitigating factors should properly impact the fine imposed. I am satisfied that a fine of $2000 would, in view of the circumstances in this case, adequately address the need to send a message to other potential offenders that the Act must be obeyed while not also sending a message that it is best to try and hide any violations from the authorities. Given his efforts to mitigate the risk of harm created by his offence, imposing a heavy fine on the Appellant would send a message to other potential offenders that there is no benefit to self-reporting any pre-permit construction, spending money to mitigate any resulting risk of harm and then ceasing further construction until a permit is actually issued. In other words, imposing a heavy fine on the Appellant would send a message discouraging pro-social self-driven mediation of harm caused by pre-permit construction and encouraging avoidance of responsibility. Instead, by moderating the fine because of the mitigating factors present in the Appellant’s case, the objectives of the Act are enhanced as it will promote a city like Oshawa becoming aware of more unknown unpermitted construction projects through offenders’ willingness to self-report. By imposing fines approaching the $50,000 maximum for first offenders who self-report and then try to mitigate the risk of harm, the court would be fostering an increase in the risk of harm created by unpermitted construction projects remaining unknown to the City. The latter approach is antithetical to the objectives of the Building Code Act.

[22] The appeal against sentence is allowed. The fine is reduced to $2000. The time to pay will be 3 months. The 12-month term of probation remains appropriate in the circumstances of this offence and this offender.

Released: September 25, 2024 Signed: Justice P.K. Burstein