The Ontario Court Of Appeal Limits Relief From Mandatory Minimum Fines In Public Welfare Offences — Where Do We Go From Here?

The Ontario Provincial Offences Act R.S.O. 1990, CHAPTER P.33 (P.O.A.) provides relief from mandatory minimum sentences.

59(2) Although the provision that creates the penalty for an offence prescribes a minimum fine, where in the opinion of the court exceptional circumstances exist so that to impose the minimum fine would be unduly oppressive or otherwise not in the interests of justice, the court may impose a fine that is less than the minimum or suspend the sentence. The issue before the Ontario Court of Appeal in R. v Henry of Pelham, 2018 ONCA 999 was whether an offence under the Ontario Water Resources Act (OWRA) which involved aesthetic discolouration of a neighbouring pond and faint odour for which a first time offender had responded with remedial action and pleaded guilty, entitled the offender to relief from the $25,000 mandatory minimum fine. There was no evidence the offender was unable to pay the fine. The sentencing court and summary appeal court had determined that based on these facts and the Crown's difficulty proving its case, fines initially of $600 and on appeal $5000 were appropriate. The Ontario Court of Appeal on December 7, 2018 allowed the Crown's appeal and imposed the mandatory minimum fine of $25,000 under the OWRA concluding that:

"the discretionary power set out in s. 59(2) must be applied with appropriate restraint, lest it undermine provincial legislative policy governing public welfare offences — a policy that emphasizes deterrence." (at par.3) Position of Henry of Pelham and the Criminal Lawyers Association

The Respondent argued that the phrase: "not in the interests of justice" in ss. 59(2) should be interpreted as meaning "unfair" and that the court's power to extend relief from minimum fines should extend whenever exceptional circumstances exist not just when the offender's ability to pay was at issue. The Criminal Lawyers Association which was granted intervenor status, argued against setting a priori rules limiting the application of s.59(2). The dominant principle of sentencing should be that of proportionality which would involve consideration of not simply the defendant's circumstances, but the nature of the conduct and whether punishing it advances or frustrates the public welfare goal of the statute. The Court of Appeal disagreed:

"Proportionality is a relevant consideration in setting a fine above the prescribed minimum, but the principle cannot be invoked to subvert the Legislature's decision to...