A Glimmer of Relief
A decision delivered on March 4, 2019 by the Québec Court of Appeal in 9147-0732 Québec Inc. v. Director of Criminal and Penal Prosecutions (2019) QCCA373 (CANLII) suggests that proportionality may have more sway under the Charter of Rights than under the Ontario Provincial Offences Act (POA) in providing relief from mandatory minimum fines.
The Current Relief under the POA
In the recent Ontario Court of Appeal case of R. v Henry of Pelham 2018 ONCA 999 the Ontario Court of Appeal reversed two lower court decisions granting relief to a corporate entity from a mandatory minimum fine of $25,000 pursuant to ss.59(2) of the Provincial Offences Act R.S.O. 1990, c.p.33. While the lower courts regarded both the lack of a previous record, the early guilty plea, the timely remediation offered and the inconsequential nature of the offence as exceptional circumstances warranting relief from the mandatory minimum fine, the Court of Appeal was concerned that that relief would undermine the public policy in public welfare offences which emphasized deterrence. Proportionality between the sentence and the offender and offence was only relevant in determining what the fine should be above the set minimum.
The Québec Decision
In a split 2-1 decision the Québec Court of Appeal decided that a corporate building contractor, providing its services without a licence contrary to the Québec Building Act RLRQ, c.B-1, could avail itself of the protection under s.12 of the Charter against the mandatory minimum fine of $30,843. The Court sent the case back to another justice of the peace to determine whether the fine did in fact constitute cruel and unusual punishment. In his dissent, Mr. Justice Chamberland ruled that s.12 of the Charter was intended to protect human dignity, a concept which was inconsistent with and therefore inapplicable to a corporation. The majority judges though, disagreed with this analysis. They pointed to numerous provisions in the Charter, notably s.8 (unreasonable search and seizure), s.11a (right to be informed without delay of a charge), s.11b (right to be tried within a reasonable time) and s.11d (the presumption of innocence) which were intended to protect human dignity and had been judicially determined to apply to corporate entities (at par.125). Further, they compared the language in both the English and French versions of sections 8 and 12 of the Charter which extended the constitutional protection to "Everyone" or "Chacun." While the majority would not comment on whether the $30,843 mandatory minimum fine was cruel and unusual punishment, they offered the following:
[133]...it is also possible that a totally disproportionate minimum fine will cause significant problems for a company, leading to the loss of employment for employees with all the consequent consequences. I agree that this case will be exceptional. Imagine, however, a legal person who would be the economic engine of his region, forced to close his doors, dismiss his employees and cause their move, affecting the retirement pension fund, because it was imposed a minimum fine excessively disproportionate. Imagine a family business built after many years of work, ending up with no alternative but bankruptcy. Imagine also a large society, which, to counter the harmful effects of an excessively disproportionate fine.
[134] The public interest is a notion of variable geometry that requires "consideration of the purpose of general deterrence, the seriousness of the offense, its impact on the community, the attitude of the public towards it and confidence of the latter in the judicial system". Although the fine is more in punitive justice, it ultimately aims to encourage the offender to acknowledge his mistakes and to restore the balance between it and the community Hugues Parent and Julie Desrosiers, Treaty of criminal law, 2nd ed., Vol. 3 "The sentence", Montreal, Themis, 2016, p. 248. To quote the author Michel Foucault, punishing should not be used to "erase a crime, but [to] transform a culprit (current or virtual); the punishment must carry with it some corrective technique" Michel Foucault, Monitor and punish: Birth of the prison, Paris, Gallimard, 1975, p.130 cited in Hugues Parent and Julie Desrosiers, Treaty of criminal law, 2nd ed., Vol. 3 "The sentence", Montreal, Themis, 2016, p.40. In these circumstances, how can one claim that an overly disproportionate sanction that would bankrupt or undermine the interests of an entire community would satisfy those objectives?"
What this Means For those Defending Charges with Mandatory Minimum Sentences
The proportionality test available under the Charter could extend protection from mandatory minimum sentences where ss.59(2) of the Ontario Provincial Offences Act, as interpreted by the Ontario Court of Appeal in its recent decision in R. v Henry of Pelham, 2018 ONCA 999 can't.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
