Court File and Parties

Ontario Court of Justice Date: 2024-10-17 Court File No.: 21-21300141 et al.

Between: City of Toronto, Applicant — And — Adamson Barbecue Ltd., Adamson BBQ Ltd., and William Adamson Skelly, Respondents

Before: Justice of the Peace K. Lee

Counsel: R. Asselstine, for the prosecution A. Skelly, representative for the defendants

Heard: Sentencing Hearing September 6, 2024 Reasons for Sentence released on: October 17, 2024

Reasons for Sentence

JUSTICE OF THE PEACE LEE:

[1] The defendant, William Adamson Skelly was convicted on September 6, 2024 of 11 counts of “Carry on the business, trade or occupation of an owner of a place of refreshments without having the necessary licence to do so” contrary to the City of Toronto Municipal Code Ch 545 section 2A(33); and, 6 counts of “Engage in business of being and owner of a refreshment vehicle and operating such vehicle within the Toronto area without having taken out a motorized refreshment vehicle licence” contrary to the City of Toronto Municipal Code Ch 545 section 2A(34).

[2] No one identifying as the defendant William Adamson Skelly appeared, and no one appeared as representative of the defendant corporations during the trial. However, a Mr. Adam Skelly, who identified himself as a representative for the defendants appeared for the delivery of Judgment and to make submissions on sentencing. Mr. Skelly was adamant in noting that he was not the defendant, however, he did appear with the authorization of the Defendant and the corporations.

[3] The court proceeded to hear submissions from both the prosecution and Mr. Skelly on behalf of the defendant.

[4] Give the number of charges involved, I will continue to use the count numbers of used in the Reasons for Judgment. A list of each conviction as well as the sentence imposed is found in Appendix A herein.

Summary of Offence and Penalty Provisions

[5] The defendant, William Adamson Skelly, was convicted on multiple counts of two particular offences. Both offences are contrary to the City of Toronto Municipal Code Chapter 545 at sections 2A(33) and (34), which states:

§ 545-2. Licence requirement

A. There shall be taken out by the following persons a licence from the Municipal Licensing and Standards Division authorizing them respectively to carry on their several trades, businesses, and occupations in the City of Toronto for which licence the person obtaining the same shall pay to the Municipal Licensing and Standards Division at the time of taking out such licence the fee fixed by this chapter, and no person shall, within the City of Toronto, carry on or engage in any of the said trades, businesses or occupations until he or she has procured such licence so to do:

(33) Every person who owns or keeps any place for the reception, refreshment or entertainment of the public.

(34) Every person who owns or operates and every person, other than the driver of a coffee truck, who drives a vehicle from which refreshments are sold for consumption by the public.

[6] The penalty provision for these offences are found in section 8.5A of the Code which states:

§ 545-8.5 Offences

A. Every person who contravenes any of the provisions of this chapter is guilty of an offence and on conviction is liable to a fine not exceeding $25,000.

[7] The prosecution submits for a fine of $1,500 per conviction. The defendant requested a reduced penalty without suggesting any specific amount. No cases were presented to assist the court in determining the typical penalty guidelines for these particular offences.

Goals of Sentencing

[8] It is well established that the primary sentencing goal in public welfare and regulatory offences is general and specific deterrence. General deterrence involves a penalty which is substantial enough to warn others that the offence will not be tolerated. See R. v. Cotton Felts Ltd. (1982), 2 C.C.C. (3d) 287 (Ont. C.A.).

[9] The offences for which the defendant was convicted involve the requirement that certain business in the City of Toronto obtain the proper licences to operate. The requirement for licencing serves to address many community concerns around the operation of business within the City’s jurisdiction ensuring (among others) that businesses:

a. are insured; b. are opened in the appropriate areas; c. have proper facilities for the type of business; d. follow health and safety regulations; e. business owners are of good character; and, f. staff are properly accredited and certified.

[10] Inherent to the goal of any licencing regime, is the authority of the city to deny a licence to any potential business which does not meet its standards. These requirements are in place to protect the public from the potential harms of unregulated businesses. Blair J.A. states in Cotton Felts at para 19:

In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all.

And continues at para 23:

This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of our society for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare of the public.

[11] A fit an appropriate sentence for these offences should send a message to the general public that failure to follow the required licensing scheme puts the public at risk and will not be tolerated.

[12] Specific deterrence is also an important sentencing goal, which involves deterring the specific offender from committing the offence again. Factors involve looking at the circumstances off the offender to ensure that they are adequately deterred.

[13] In this case, Mr. Skelly for the defendant stated that the defendant no longer resides in the Province of Ontario and that all the defendant’s businesses are now closed. While these submissions carry some weight regarding specific deterrence, it does not directly address the question of whether the defendant will again open and operate a business without the appropriate licence.

[14] The evidence heard in the trial was that these were continuing offences committed by the defendant over a period of 10 months. The defendant was well aware of the infractions and was time and time again served with offence notices. Despite this, the defendant continued to operate the business without obtaining a licence.

[15] While punishment is not typically a sentencing goal for regulatory offences, the sentence must nonetheless be adequate to remind the offender of the penalties for failure to abide by public welfare regulations.

Principles of Sentencing Proportionality

[16] Any sentence imposed by the court must ensure that it bears some relationship to the offence and must be proportionate to the seriousness of the offence. The proportionality of the sentence will depend on the gravity of the offence and the degree of responsibility of the offender.

[17] In relation to the gravity of the offence, it is important to note the particular context of these charges, which were laid in the midst of the COVID-19 pandemic. While the offences were committed as the business was operating during the lockdowns, these are not pandemic related charges. The offence here is one of owning and operating a business without a licence. The mere fact that these charges were laid during the lockdowns should not be used as a factor to describe a graver offence and thus an elevated penalty.

[18] In this case, while there was no evidence of any actual harm, the potential harm to the public from an unlicenced food service business is significant. Notwithstanding the potential food safety issues, the risk mitigating protections affording by a licencing regime are sidestepped when a person operates a business outside the law.

[19] The maximum penalty for each of these offences is $25,000. While the maximum penalties are reserved for the worst of the worst offenders, this substantial amount illustrates the seriousness intended within the bylaw to ensure that business owners obtain the appropriate licences. While there may be substantial costs involved in ensuring regulatory compliance, the penalty imposed by the court should not be so minimal as to create a financial incentive to break the law.

[20] The circumstances of the offender relate to the degree of responsibility that should be apportioned to the defendant. Here, the defendant kept this business in operation over the span of close to a year, despite being aware that he was being charged multiples time of these offences. This is a clear demonstration of the attitude that the defendant had towards the licencing requirements. There was no evidence of any effort or intention by the defendant to come into compliance by obtaining a licence, despite being aware of his responsibility to do so.

[21] The prosecution also presented, in evidence, prior convictions for the same offence as against the defendant. There is no question here that the defendant knew their responsibility in obtaining a licence. This is a significant aggravating factor which militates towards an elevated penalty.

Totality

[22] The principle of totality applies where a defendant is convicted of multiple offences. In these circumstances, proportionality is also expressed through the totality principle where the total of all sentences should not exceed the seriousness of the offence and the responsibility of the offender. See R. v. C.A.M. (1996), 105 C.C.C. (3d) 327 (S.C.C.).

[23] Here, the defendant is convicted of a total of 17 offences under the City of Toronto Municipal Code. In applying the totality principle, the total sum of all penalties should not exceed the overall gravity of the offence, and may require the sentence for each offence, when taken individually, to be less than proportional to its gravity and the offender’s degree of responsibility. See R. v. Parry, 2012 ONCA 171.

[24] Should I impose the fines as suggested by the prosecutor it would result in a total liability of $25,500. This would go beyond the maximum fine had the defendant been convicted of a single offence.

[25] The conduct of the enforcement agency in this case is also a factor to consider with regards to totality. The evidence at trial was that by-law enforcement officers attended almost every single day over the span of 10 months, and laid charges for each appearance. The charges laid include charges against the individual defendant, William Adamson Skelly, but also against two corporations. The individual defendant was also charged with aiding and abetting both corporations. This investigation led to a total of 95 charges to be adjudicated at trial.

[26] The defendant argues that they were unfairly targeted for escalating enforcement due to their defiance of the COVID-19 lockdown rules. I have no direct evidence that there was any deliberate effort by the City to target the defendant’s business or any misconduct on the part of any by-law enforcement officers. What is before me is the very unusual circumstance of the total of all charges laid.

[27] The defendant was charged day after day from November 24 to December 2, 2020 with the same set of offences. The defendant was convicted of 8 counts of the same offence over a period of 8 days. In count 53, over a span of 15 days, the defendant was charged and convicted only once. I find that the passing of sentence for the charges from November 25, 2020 to December 2, 2020 to be unaligned with the principles of proportionality and totality. The court will therefore suspend the sentence for those counts.

[28] On all the remaining counts, I find that fine suggested by the prosecutor to be a fit an appropriate sentence. A fine of $1,500.00 would meet both goals of general and specific deterrence and are aligned with the principles of sentencing as I have laid out above.

Conclusion

[29] I therefore impose a fine of $1,500.00 on the remaining counts numbered 3, 53, 58, 63, 68, 73, 78, 83, 88, and 93.

Given: October 17, 2024 Signed: Justice of the Peace K. Lee

Appendix A to Sentencing Reasons

Charge	Information	Defendant	Offence Date	Offence	Statute/Section	Decision
3	21- 21300141	SKELLY, WILLIAM ADAMSON	24-Nov- 20	Carry on the business, trade or occupation of an owner of a place of refreshments without having the necessary licence to do so.	TMC Ch 545 s 2A(33)	$1,500.00 Fine
8	21- 21300135	SKELLY, WILLIAM ADAMSON	25-Nov- 20	Carry on the business, trade or occupation of an owner of a place of refreshments without having the necessary licence to do so.	TMC Ch 545 s 2A(33)	Suspended Sentence
13	21- 21300124	SKELLY, WILLIAM ADAMSON	26-Nov- 20	Carry on the business, trade or occupation of an owner of a place of refreshments without having the necessary licence to do so.	TMC Ch 545 s 2A(33)	Suspended Sentence
18	21- 21300131	SKELLY, WILLIAM ADAMSON	27-Nov- 20	Carry on the business, trade or occupation of an owner of a place of refreshments without having the necessary licence to do so.	TMC Ch 545 s 2A(33)	Suspended Sentence
23	21- 21300157	SKELLY, WILLIAM ADAMSON	28-Nov- 20	Carry on the business, trade or occupation of an owner of a place of refreshments without having the necessary licence to do so.	TMC Ch 545 s 2A(33)	Suspended Sentence
28	21- 21300159	SKELLY, WILLIAM ADAMSON	29-Nov- 20	Carry on the business, trade or occupation of an owner of a place of refreshments without having the necessary licence to do so.	TMC Ch 545 s 2A(33)	Suspended Sentence
33	21- 21300136	SKELLY, WILLIAM ADAMSON	01-Dec- 20	Carry on the business, trade or occupation of an owner of a place of refreshments without having the necessary licence to do so.	TMC Ch 545 s 2A(33)	Suspended Sentence
38	21- 21300139	SKELLY, WILLIAM ADAMSON	02-Dec- 20	Carry on the business, trade or occupation of an owner of a place of refreshments without having the necessary licence to do so.	TMC Ch 545 s 2A(33)	Suspended Sentence
53	21- 21300172	SKELLY, WILLIAM ADAMSON	2 Dec 20 to 19 Dec 20	Carry on the business, trade or occupation of an owner of a place of refreshments without having the necessary licence to do so.	TMC Ch 545 s 2A(33)	$1,500.00 Fine
58	21- 21300143	SKELLY, WILLIAM ADAMSON	21 Dec 20 to 17 Jan 21	Carry on the business, trade or occupation of an owner of a place of refreshments without having the necessary licence to do so.	TMC Ch 545 s 2A(33)	$1,500.00 Fine
63	21- 21300256	SKELLY, WILLIAM ADAMSON	18 Jan 21 to 3 Feb 21	Carry on the business, trade or occupation of an owner of a place of refreshments without having the necessary licence to do so.	TMC Ch 545 s 2A(33)	$1,500.00 Fine
68	21- 21300275	SKELLY, WILLIAM ADAMSON	4 Mar 21 to 29 Mar 21	Engage in business of operating a refreshment vehicle and operating such vehicle within the Toronto area without having taken out a motorized refreshment vehicle licence.	TMC Ch 545 s 2A(34)	$1,500.00 Fine
73	21- 21300394	SKELLY, WILLIAM ADAMSON	8 Apr 21 to 3 May 21	Engage in business of being and owner of a refreshment vehicle and operating such vehicle within the Toronto area without having taken out a motorized refreshment vehicle licence.	TMC Ch 545 s 2A(34)	$1,500.00 Fine
78	21- 21300395	SKELLY, WILLIAM ADAMSON	6 May 21 to 7 Jun 21	Engage in business of being and owner of a refreshment vehicle and operating such vehicle within the Toronto area without having taken out a motorized refreshment vehicle licence.	TMC Ch 545 s 2A(34)	$1,500.00 Fine
83	21- 21300502	SKELLY, WILLIAM ADAMSON	24 Jun 21 to 26 Jul 21	Engage in business of being and owner of a refreshment vehicle and operating such vehicle within the Toronto area without having taken out a motorized refreshment vehicle licence.	TMC Ch 545 s 2A(34)	$1,500.00 Fine
88	21- 21300536	SKELLY, WILLIAM ADAMSON	29 Jul 21 to 30 Aug 21	Engage in business of being and owner of a refreshment vehicle and operating such vehicle within the Toronto area without having taken out a motorized refreshment vehicle licence.	TMC Ch 545 s 2A(34)	$1,500.00 Fine
93	21- 21300585	SKELLY, WILLIAM ADAMSON	2 Sep 21 to 6 Sep 21	Engage in business of being and owner of a refreshment vehicle and operating such vehicle within the Toronto area without having taken out a motorized refreshment vehicle licence.	TMC Ch 545 s 2A(34)	$1,500.00 Fine