



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Collingwood Prime Realty
    Holdings Corp. 2021 ONCA 665

DATE: 20210929

DOCKET:
C69445

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her
    Majesty the Queen

Appellant

and

Collingwood Prime Realty Holdings
    Corp. & Issa El-Hinn

Respondent

Rick Visca, Holly Akin and Erryl
    Taggart, for the appellant

Melanie Webb
,
    for the respondent

Heard: September 21, 2021 by video conference

On
    appeal from the judgment of Justice David E. Harris of the Superior Court of
    Justice, dated May 12, 2020 with reasons reported at 2020 ONSC 2953, allowing
    the appeal from the sentences imposed on August 21, 2018 and September 12, 2018
    by His Worship Justice of the Peace Mangesh S. Duggal.

REASONS FOR DECISION

[1]

The Crown appeals the decision of the summary conviction appeal judge
    which reduced the sentence imposed at first instance on a conviction under the
Canadian Environmental Protection Act
.

[2]

A brief overview of the facts is necessary.

Facts

[3]

The respondent Collingwood Property Holdings Corp (the
    corporation) was the owner of property in Collingwood. The respondent Issa
    El-Hinn (El-Hinn) was the sole director and operating mind of the
    corporation. The respondents were given a written warning by Environmental and
    Climate Change Canada (ECCC) to remove transformers containing hazardous
    toxins. Ten months later the transformers were still there. The ECCC officers
    issued a Notice of Intent to issue an Environmental Compliance Order (NOI),
    to which the corporation did not respond. The ECCC officers then issued an
    Environmental Protection Compliance Order (EPCO) pursuant to s. 235(1) of the
Canadian Environmental Protection Act
(
CEPA
), requiring the removal of the equipment and an
    electronic report. The equipment was not removed nor was the report filed by
    their respective deadlines. Over a year later, the ECCC officers executed a
    search warrant on the property and found one of the transformers was still in
    use. The equipment was eventually removed, four years after the initial
    inspection. El-Hinn and the corporation were jointly charged in an 11-count
    information and plead guilty.

The sentence

[4]

The sentencing judge imposed separate fines amounting to $220,000
    and a custodial term of 45 intermittent days on El-Hinn pursuant to s.
    275(2)(b)(i) of
CEPA
. He also fined the
    corporation $40,000 for count 1, $10,000 for count 2, $1,250 each for counts
    3-10 amounting to $10,000 for those counts, and $140,000 for count 11 ($200,000
    in total).

[5]

The sentencing judge considered mitigating and aggravating
    factors. Mitigating factors were that the El-Hinn was a first offender, the
    transformers were eventually removed, El-Hinn was of otherwise good character,
    and the guilty pleas merited some leniency. Aggravating factors included the
    quantity and hazardous nature of the toxins, the large passage of time in
    regulatory compliance despite having financial capacity and having been issued
    an order to comply, cost avoidance, and great potential harm of the toxins. The
    sentencing judge noted the purposes of sentencing under the
CEPA
are to preserve the environment, to deter
    violations of the
Act
, to denounce damage or
    risk of damage to the environment and human health, and to reinforce the
    polluter pays principle for environmental restoration. The lack of actual
    injury was not found to be a mitigating factor, as under
CEPA
potential for harm is the relevant factor to consider in sentencing. The
    sentencing justice relied on
R. v. Sinclair
(2009), 45 C.E.L.R. (3d)
    222 (Ont. C.J.) finding that though in
Sinclair
actual harm to the environment was deliberately inflicted, El-Hinns moral
    culpability is similar despite no actual environmental damage. This is due to
    El-Hinns sustained non-compliance with warnings and orders.

Summary Conviction Appeal Court

[6]

The appellate judge allowed El-Hinn and the corporations appeal
    against both the fines and term of incarceration. He eliminated the term of
    incarceration and reduced the fines. He did so on the basis that there was an
    error in principle by the sentencing judge in finding parity with
Sinclair
. The appellate judge found that the moral
    responsibility of each Sinclair and El-Hinn were not similar. The sentencing
    judges finding was therefore found to amount to an error in principle, and
    deference was lost. The appellate judge reasoned that Sinclair had a much more
    blameworthy state of mind than did El-Hinn, as Sinclair was knowingly and
    intentionally polluting the environment. The harm in
Sinclair
was not caused by delay or negligence, but rather was caused by
    deliberate and calculated acts of pollution. El-Hinn and the company had a
    lower degree of culpability, as they were passively negligent. Further, unlike
    Sinclair, El-Hinn and the company also were not attempting to profit at the expense
    of the environment, which demonstrates a lower degree of moral culpability. Finally,
    the appellate judge found that
Sinclair
also
    should have been distinguished because there was actual harm to the
    environment, whereas in the case at hand there was not.

[7]

The appellate judge found that a jail sentence should only be imposed if
    it is necessary to achieve sentencing principles (s. 287.1(1) of
CEPA
incorporates the restraint principle under s. 718.2
    of the
Criminal Code)
.
[1]
The appellate judge determined that while the proper test is the potential harm
    to the environment, s. 718.2(a)(iii.1) of the
Criminal
    Code
requires a court to take into account harm to the victim in
    sentencing. Actual harm to the environment is not present in this case. The
    appellate judge found that these factors, plus the COVID-19 crisis weakening
    the public interest in jail sentence, militates against custody for El-Hinn. He
    found that fines are enough to fulfil sentencing objectives, especially as El-Hinns
    culpability was lower than that determined by the sentencing judge.

[8]

The appellate judge reduced the fines to $150,000 for the corporation
    and $170,000 for El-Hinn. In doing so, he determined that counts 1 through 10
    should be dealt with as the same charge.

Crown appeal

[9]

The Crown appeals arguing that the original sentence should be
    restored as there was no error in principle.

Analysis

[10]

We allow the appeal in part.

[11]

We agree with the appellate judge that there was an error in
    principle in comparing the case to
Sinclair
where there were
deliberate
    actions to harm the environment which are not analogous to the situation here.
    Having found otherwise, the sentencing judge erred in principle and the
    appellate judge did not owe the decision deference. We agree that the
    incarceration of El-Hinn is not proportional and should be eliminated.

[12]

We
    do not agree with the appellate judges reduction of the fines. It was not an
    error for the sentencing judge to impose separate fines for each count.
    Concurrent sentences apply only to incarceration. In this regard we restore the
    sentencing judges determination.

[13]

The appeal is allowed with respect to the fines but dismissed
    with respect to the incarceration.

David
    Watt J.A.

M.L.
    Benotto J.A.

Gary
    Trotter J.A.





[1]
See also:
Ontario (Labour) v. New Mex Canada Inc.
2019
    ONCA 30, 144 O.R. (3d) 673 released after the sentencing decision at first
    instance.


