Court File and Parties

COURT FILE NO.: CV-19-002755-00AP DATE: 2021-03-17 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN, Respondent – and – Alex Goerk and Carling Propane, Appellants

Counsel: Lisa Csele, for the Crown Caroline Kerr, for the Appellants

HEARD: January 23, 2021

Reasons for Decision

EDWARDS RSj.:

Overview

[1] The Appellants were tried in the Ontario Court of Justice on a number of charges laid pursuant to the Transportation of Dangerous Goods Act, 1992 c. 34 (the Act). At trial a plea of guilty was entered on one count, and in the midst of the trial the not guilty plea on Counts 3 and 4 was changed to a guilty plea. The trial lasted 11 days.

[2] The Appellants are in the propane business, which by its very nature involves a dangerous substance. The transportation of propane is governed by the Act.

[3] At the completion of the trial, with convictions entered on Counts 1, 3, and 4, and after hearing extensive submissions on sentence, Giourgas J. imposed a total fine of $17,500 on the Appellants. The Appellants now appeal the sentence imposed by the trial judge.

Standard of Review

[4] It is a well accepted principle that an appellate court must show deference to the sentencing discretion which is vested in a trial judge. An appellate court should only interfere with the discretion of the trial judge where that sentencing judge has committed an error in principle, or where the sentence is outside an acceptable range. An error in principle includes the failure on the part of the sentencing judge to take into account a relevant factor; taking into account an irrelevant factor; and failing to give sufficient weight to relevant factors or conversely, overemphasizing relevant factors or an error in law: see R. v. Rezaie, [1996] O.J. No. 4468.

[5] Most recently, the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, confirmed that appellate courts must generally defer to sentencing judges’ decisions; should only substitute its own decision for a sentencing judges’ for good reason; and should only intervene to vary a sentence where the sentence is demonstrably unfit or the sentencing judge made a error in principle that had an impact on the sentence: see paras. 25 and 26.

The Facts

[6] The Appellant, Carling Propane, is in the propane business. Alex Goerk (Goerk) is the owner of Carling.

[7] Propane and the transportation of propane is inherently dangerous, and as such is heavily regulated given the volatility of propane and the possible risk of harm to the public.

[8] The Act incorporates various safety standards which have been developed by the Canadian Standards Authority (the CSA), which is a not-for-profit agency whose various scientific specialists assist in the development of the safety standards, which by their nature are specialized and technical in nature.

[9] After an eleven-day trial, the Appellants were convicted on Count 1 which relates to the testing of the hose used in the transfer of propane from a highway shipping container to fixed containers. The details of the testing are recorded on metal tags which are permanently affixed to the hose.

[10] In addition to the conviction in relation to Count 1, the Appellants pled guilty to deficiencies in paperwork which is required in connection with the transportation of propane.

[11] At trial, the Crown sought a sentence in what is described in the Crown factum as low range fines of $3,000 per count against Goerk and $15,000 per count against Carling. The Appellants in their sentencing submissions suggested a fine of $500 or less per count ought to have been imposed.

[12] The maximum penalty for a first summary conviction offence is a $50,000 fine: see s. 33(1). For a subsequent conviction, the maximum fine is doubled to $100,000: see s. 33(2) of the Act.

[13] The sentence that was imposed by the trial judge was a fine of $1,000 on each of Counts 3 and 4 and $3,000 on Count 1 as it relates to Goerk, and $2,500 on Count 3 and $7,500 on Count 4 as it relates to Carling. In total, Carling faced a fine of $12,500 while Goerk faced a fine of $5,000. The total global fine between Carling and Goerk was $17,500.

[14] Carling is one of a number of companies controlled by Goerk that are in the propane business. Carling by itself has annual gross sales of approximately $10,000,000. Collectively, the propane company controlled by Goerk has revenues of approximately $30,000,000 on an annual basis. The pre-tax profit on sales is approximately $2,500,000.

The Reasons for Sentence of the Trial Judge

[15] After hearing lengthy oral submissions, Giourgas J. released Reasons for Sentence in which he stated:

I was referred to many cases in support of the Crown’s position. As these are contraventions of a public welfare and safety statute, the overriding sentencing considerations are specific and general deterrence. The penalty should encourage future compliance, both by the parties at bar and throughout the industry generally.

[16] The sentencing judge then went on to state:

In the circumstances, taking into account the aggravating features, which include, at least in Count 1, the potential for harm, and the fact that there are three separate counts upon which the Defendants had been found guilty, and the mitigating features, which include the guilty pleas on two of the counts, industry-wide perception with respect to Count 1 and the fact that compliance was affected in short order and also taking into account the size of the company and Mr. Goerk’s personal circumstances the fines imposed are as follows…

The Position of the Appellants

[17] The Appellants argue that the trial judge’s reasons for determining the quantum of fines cannot be ascertained from his Reasons. It is also argued that the trial judge erred in finding that general deterrence was a consideration in sentencing the Appellants. It is also argued that the trial judge did not consider collateral consequences in assessing the quantum of the fine and that the sentences were demonstrably unfit.

[18] At the core of the Appellants’ argument, is the suggestion that general deterrence should not be a consideration on the facts of this case as it was a “test case”. It is suggested that this was a test case because of what is described as so-called industry-wide confusion as to which governing body had jurisdiction over the hoses. In essence, it was argued that the propane industry at large believed that the rules of the Technical Standards and Safety Authority (TSSA) and not Transport Canada governed the hoses attached to the storage tanks.

[19] As it relates to the issue raised regarding the appellants perceived failure of the trial judge to consider collateral facts, it is argued that the trial judge did not consider the financial consequences borne by the Appellants, specifically the fact that the Carling plant was closed for a short period of time and the fact that the Appellants bore the costs on an 11 day trial.

The Position of the Crown

[20] Dealing with the suggestion that the reasons of the trial judge were not sufficient for appellate review, Crown counsel referred the court to the decision of the Supreme Court of Canada in R. v. Sheppard, 2002 SCC 26, in support of the Crown’s position that while brief, the reasons of the trial judge make clear the basis upon which he imposed the sentence that he did.

[21] As it relates to the suggestion that the fine imposed did not reflect the fact that this case was a “test case”, Crown counsel argues that the trial was not a test case for two reasons. The first reason relates to the fact that at no time did trial counsel ever explicitly or implicitly suggest that the trial was a test case. The second reason relates to the fact that the Crown had a real interest in the outcome of the case, and there was no suggestion that the case was being brought by the Crown so that a question of law could be clarified.

[22] In terms of the sentence imposed, Crown counsel argues that in determining an appropriate sentence involving a corporate offender who has committed a public welfare offence, the sentencing court must address a number of considerations including the size of the company, the scope of the economic activity in question, the extent of the actual and potential harm to the public, and the maximum penalty prescribed by statute. All of these factors were appropriate considerations in the sentence imposed.

[23] As for the general principles of sentencing, Crown counsel argues that general deterrence is the paramount sentencing consideration under public welfare statutes, and that strict penalties are required to ensure regulatory compliance to protect the public.

Analysis

[24] The law is clear that an appellate court should generally defer to the decision of the sentencing judge. An appellate court should only substitute its own decision for the decision of the sentencing judge for good reason. An appellate court should only intervene to vary a sentence where the sentence is demonstrably unfit and/or the sentencing judge made an error in principle that had an impact on the sentence. See R. v. Friesen, 2020 SCC 9, at paras. 25 and 26.

[25] While the reasons of the trial judge were extremely brief, and this is particularly so given the length of the trial and the length of the sentencing submissions, I am satisfied that despite their brevity this court is able to conduct a meaningful review. At page 3 of his reasons it is clear that the sentencing judge, having been referred to many cases submitted to him by the Crown, concluded the convictions were “contraventions of a public welfare and safety statute”, and that the overriding sentencing consideration was specific and general deterrence.

[26] It is also clear that the sentencing judge considered the defence submission, that a modest fine was appropriate because of the suggestion that the Act had uncertainty requiring judicial consideration.

[27] The sentencing judge also correctly considered as a sentencing consideration the potential harm that might flow from non-compliance. After considering the financial circumstances of the appellants he imposed a fine that was greater than the minimal fines sought by the appellants, but nonetheless reflected the gravity of the offences. I see no error in the approach adopted by the sentencing judge. I might observe that given the potential for harm that might flow from non-compliance with the provisions of the Act that a more significant sentence might be appropriate for future offenders depending on their circumstances.

Regional Senior Justice M.L. Edwards Released: March 17, 2021