



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Environment, Conservation and Parks) v.
    Henry of Pelham Inc., 2018 ONCA 999

DATE: 20181207

DOCKET: C64852

Watt, Huscroft and Fairburn JJ.A.

BETWEEN

Her
    Majesty the Queen

(Ministry of the Environment,
    Conservation and Parks)

Appellant

and

Henry of Pelham Inc.

Respondent

Jessica Rosenberg and Nicholas Adamson, for the
    appellant

Albert Engel, for the respondent

Megan Savard and James Foy, for the intervener the
    Criminal Lawyers Association

Heard: August 21, 2018

On appeal from the sentence imposed by Justice Joseph
    Nadel of the Ontario Court of Justice on October 24, 2017.

Huscroft J.A.:

OVERVIEW

[1]

The respondent corporation pleaded guilty to discharging or causing or
    permitting the discharge of a material into a watercourse or in any waters or
    on any shore or bank thereof or into or in any place, which said discharge may
    impair the quality of the water or any waters, contrary to s. 30(1) of the
Ontario
    Water Resources Act
,

R.S.O. 1990, c. O.40
(OWRA). The OWRA
    establishes a minimum fine of $25,000 for this offence. However, the trial
    justice fined the respondent a mere $600, invoking s. 59(2) of the
Provincial
    Offences Act,
R.S.O. 1990, c. P.33
(POA), to relieve the respondent from the minimum fine the OWRA required. The
    appeal judge increased the respondents fine to $5,000  a substantial
    increase, yet still a fraction of the minimum fine required by the OWRA.

[2]

The Crown appeals from this decision with leave of this court. A second
    appeal of a sentence is unusual, but this case has implications that extend
    well beyond the OWRA and the respondents offence. This is so because s. 59(2)
    of the POA applies to a wide range of public welfare legislation that prescribes
    minimum fines.

[3]

I have concluded that the appeal judge erred in exercising his
    discretion under s. 59(2) in a manner that undermines the purpose of the OWRA.
    As I will explain, 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.

[4]

I would allow the appeal and vary the sentence imposed by the appeal
    judge by imposing the minimum fine of $25,000 set out in the OWRA.

BACKGROUND

[5]

The parties filed an agreed statement of facts, dated February 24, 2017,
    which I summarize below.

[6]

A St. Catharines resident, Mr. Ed Skala, called the Ministry of the
    Environment and Climate Change Pollution Hotline on November 7, 2014, reporting
    that one of the two ponds on his property had turned black. An aeration system
    he installed several years earlier had not been operational for approximately
    one year. A tributary of Richardson Creek, which connects to the pond, runs
    through a vineyard owned by the respondent winery.

[7]

On November 8, 2014, Ministry officers investigated and observed a black
    pond with a faint organic odour. The incoming water from the creek did not
    appear to have the blackish colour. On November 10, Ministry officers met with
    an officer/director of the respondent corporation, who indicated that the
    respondent had spread a mixture of cattle manure and grape pomace on the land
    for approximately two weeks, and that it had not been incorporated into the
    soil because of wet weather conditions. He speculated that the manure/pomace
    may have entered the creek through a tile drain.

[8]

That same day, the respondent retained AMEC Environmental to assess the
    situation and prepare an action plan at the request of the Ministry. The plan
    was submitted to the Ministry the following day. In addition, the respondent
    purchased a new pump for Mr. Skalas aerators and arranged for vacuum trucks to
    clean black organic matter from the entrance to the pond.

[9]

The observation of odour at the Skala pond on November 8, 2014 met the
    definition of deemed impairment under s. 1(3)(c) of the OWRA, which provides
    as follows:

1(3) For the purposes of this Act, the quality of
    water shall be deemed to be impaired by the discharge of material if the
    material or a derivative of the material enters or may enter the water,
    directly or indirectly, and,



(c) the material or derivative causes or may cause
    a degradation in the appearance, taste or odour of the water.

[10]

This
    supports the charge that, on November 8, 2014, the respondent breached s. 30(1)
    of the OWRA, which provides as follows:

30(1) Every person that discharges or causes or
    permits the discharge of any material of any kind into or in any waters or on
    any shore or bank thereof or into or in any place that may impair the quality
    of the water of any waters is guilty of an offence.

THE LEGISLATION

[11]

There
    are two relevant sentencing provisions for the purposes of this appeal. Section
    109 of the OWRA establishes a minimum and maximum fine for a breach of s. 30(1)
    by a corporation on a first conviction:

109(1) Subsections (2) and (3) apply to the following
    offences:

1. An offence under subsection 30(1).



(2) Every corporation convicted of an offence
    described in subsection (1) is liable, for each day or part of a day on which
    the offence occurs or continues, to a fine of,

(a) not less than $25,000 and not more than
    $6,000,000 on a first conviction.

[12]

The
    POA contemplates the establishment of minimum penalties in provincial
    legislation such as the OWRA, while s. 59(2) empowers trial judges to provide discretionary
    relief from such penalties in limited circumstances:

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 DECISIONS BELOW

The decision at trial

[13]

The
    Crown asked the trial justice to impose the statutory minimum fine of $25,000,
    set out under s. 109(2)(a) of the OWRA. The respondent sought a reduced fine of
    $300-$2,500, inviting the trial justice to exercise her discretion under s.
    59(2) of the POA.

[14]

The
    trial justice noted the Crowns option to lay charges under either Part I (by
    certificate of offence) or Part III of the POA (by information), and suggested
    that the Crown had laid the charge under Part III because the 30-day time limit
    for proceedings under Part I had been exceeded. Given the agreed facts, the
    absence of any testing of the discharge, the immediate remediation efforts by
    the respondent, and the fact that this was the first time the respondent had
    been charged with an offence by the Ministry of the Environment, the trial
    justice agreed with the defence submission that it would have been appropriate for
    the respondent to have been charged under Part I, which entailed a lower fine.

[15]

The
    trial justice went on to find that there were exceptional circumstances in this
    case, not because of monetary implications or financial burdens on the
    respondent but because of the nature of the offence and the respondents
    immediate actions in light of the offence. As a result, the $25,000 minimum penalty
    requested by the Crown should not automatically [be] accepted as appropriate.
    She stated:

The penalty to be imposed, like the facts, should be distinct
    to each and every case before the Court and take into account individual facts
    and circumstances in addition to the principles of specific and general
    deterrence.

[16]

The
    trial justice then outlined the circumstances of the case, highlighting ostensible
    shortcomings of the Crowns case against the respondent:

·

the Ministry of Environment investigator did not observe black
    water flowing into the creek;

·

the aeration system in the pond had not been operating for about
    one year;

·

after calling the Ministry of the Environment, the owner of the
    pond declined to make any further statements;

·

no samples were taken and no analysis was completed; and

·

there was no information as to any environmental impact of the
    said discharge.

[17]

The
    trial justice noted that as soon as the respondent became aware of the
    situation, it retained an environmental firm to assess the situation and
    prepare an action plan, purchased a new pump for the pond, and arranged for the
    black organic matter in the pond to be cleaned. The cost of remediation was
    $12,000. The trial justice found that these actions, along with the fact that
    this was the first time the respondent had been charged under the OWRA, were
    clearly indicative of both a good neighbour and of a good corporate citizen
    and that the circumstances of the case [fit] into the descriptor of
    exceptional circumstances for purposes of sentencing.

[18]

The
    trial justice concluded that this finding, along with her finding that it would
    have been appropriate for charges to have been laid under Part I rather than
    Part III, warranted a fine lower than the statutory minimum, which she said
    would satisfy both general and specific deterrence and was in the interests of
    justice. She noted that, had the respondent been charged with two counts of
    violating the OWRA pursuant to Part I of the POA, the fine set for each offence
    would have been $300. Given the respondents reaction to the situation, it was
    not unreasonable to believe that it would have accepted responsibility and paid
    these fines. Accordingly, the trial justice imposed a fine of $600 plus costs.

The decision on appeal

[19]

The
    appeal judge accepted that the absence of a prior conviction under the OWRA is
    not a mitigating factor, but stated that it was not irrelevant to whether the
    circumstances in this case were exceptional. In addition, the appeal judge
    concluded that the trial justice erred in second-guessing the Crowns
    prosecutorial discretion in prosecuting under Part III rather than Part I, and
    that this informed her decision to impose a $600 fine. However, the appeal
    judge went on to conclude that there were exceptional circumstances that could
    properly found relief from the minimum fine prescribed by the OWRA.

[20]

The
    appeal judge considered that exceptional circumstances and the interests of
    justice are somewhat tautological concepts, and concluded that a fine is not
    in the interests of justice when it is unfair. Although he identified two
    aggravating factors  the impairment of water quality ­and the concerted action
    the respondent took in risking the release of fertilizer into the water stream
    over a two-week period  the appeal judge concluded that imposing a $25,000
    fine in the circumstances of this case would be seen as patently unfair, and
    in his view was unfair. He described the offence as a very modest incident
    and asserted that it was not obvious that the Crown could have proved the
    charge in any event: In my view, on the facts that I have before me, if push
    came to shove, it is a case that the Crown might not have been able to prove
    but for Henry of Pelhams guilty plea.

[21]

In
    particular, the appeal judge referred to the refusal of the pond owner to
    cooperate with the Ministry; the inability to prove the cause of the blackness
    of the pond with any certainty; and the mere supposition that run-off from
    the respondents vineyard entered the pond. He stated: The facts were so
    minimal, that in my view it could be seen to be an exceptional circumstance.
    Although the pond gave off an organic smell, the appeal judge noted that there
    is always faint organic smell in a forest in the fall.

[22]

In
    summary, the appeal judge stated that the Crown was seeking a significant
    sentence for an offence of very modest proportion, an offence that it might
    never have been able to prove on a contest but for the guilty plea of the
    defendant. The appeal judge considered that the guilty plea on the facts
    admitted was a substantially mitigating circumstance, and in all of the
    circumstances concluded that the fine should be increased from $600 to $5,000, rather
    than to the $25,000 minimum prescribed by the OWRA.

THE POSITIONS OF THE PARTIES

The appellant

[23]

The
    Crown argues that s. 59(2) must be read in the context of the statutes to which
    it applies and must be applied in a manner consistent with the objectives of
    those statutes. The overarching objective of public welfare legislation, as the
    Supreme Court of Canada held in
R. v. Wholesale Travel Group Inc.
, [1991]
    3 S.C.R. 154, is the protection of the public. As this court held in
R. v.
    Cotton Felts Ltd.
(1982), 2 C.C.C. (3d) 287 (Ont. C.A.), deterrence is the
    paramount factor in sentencing under public welfare statutes. The Crown argues
    that s. 59(2) must not be interpreted in a manner that undermines this purpose.

[24]

Thus,
    the Crown submits that the requirement of exceptional circumstances
    demonstrates the intention that the discretion in s. 59(2) is intended to be
    exercised sparingly  rarely, in the clearest of cases, and in
    extraordinary contexts. If the court is satisfied that exceptional
    circumstances exist, it must then engage in a balancing exercise, balancing
    any injustice that imposing the minimum fine would cause for the defendant,
    against the Legislatures determination that the societal interests which the
    public welfare statute is designed to protect require the imposition of a
    minimum fine. The court may impose a sentence below the minimum if the balance
    tips in favour of the defendant.

The respondent

[25]

The
    respondent describes s. 59(2) as a safety valve that has prevented minimum
    fines from being challenged under s. 12 of the
Canadian Charter of Rights
    and Freedoms

on the basis that they constitute cruel and unusual
    punishment. The respondent adopts the appeal judges interpretation that not
    in the interests of justice means unfair, an interpretation that it says
    accords with the grammatical and ordinary sense of the words. The respondent argues
    that s. 59(2) should permit relief from minimum fines whenever exceptional
    circumstances exist, not just when the offenders ability to pay is at issue.

[26]

The
    respondent submits, further, that the POA and the OWRA do not have the same
    purposes and should not be considered together. The POA is concerned with the
    efficient prosecution of provincial offences, while the OWRA is concerned with
    the conservation, protection, and management of Ontarios waters. Section 59(2)
    of the POA should be interpreted liberally, so as to broaden rather than narrow
    the range of exceptional circumstances, in accordance with the grammatical and
    ordinary sense of the word otherwise, which expands the interests of justice
    beyond simply avoiding minimum fines that would be unduly oppressive.

The intervener

[27]

The
    intervener argues that s. 59(2) should be interpreted as a flexible safety
    valve that permits trial judges to exercise discretion to reduce a fine in any
    case where imposing the minimum fine would be contrary to the interests of
    justice. The discretion need not be exercised sparingly or rarely: The
only
question under s. 59(2) is whether the minimum fine is contrary to the
    interests of justice. If so, the circumstances will be exceptional (emphasis in
    original).

[28]

The
    intervener highlights the fact-specific nature of the decision that must be
    made and emphasizes the need for flexibility in the exercise of the discretion.
    The trial judge must consider not only the circumstances of the defendant, but
    also the nature of the conduct and whether punishing it advances or frustrates
    the public welfare goal of the particular statute.
A priori
rules
    limiting the application of s. 59(2) cannot safely be created.

[29]

The
    intervener submits that proportionality should be the dominant principle of
    sentencing for regulatory as well as criminal offences. According to the CLA,
    deterrence is simply one goal among many that must be considered in imposing a
    proportionate sentence.

DISCUSSION

[30]

As
    I noted at the outset, although this appeal arises in the context of a
    prosecution under the OWRA, that Act is only one of many public welfare
    statutes that are subject the enforcement regime established by the POA.
    Accordingly, I briefly will review the POA before addressing the nature of
    public welfare legislation, and the OWRA in particular.

The Provincial Offences Act

[31]

In
    1979, the POA replaced the
Summary Convictions Act
, which had governed
    the prosecution of regulatory offences. It was designed to provide a new
    procedure for the prosecution of regulatory offences  a procedure that, as the
    purpose provision of the POA makes clear, reflects the distinction between
    provincial offences and criminal offences. A more complete history of the POA
    is set out in the final report of the Law Commission of Ontario,
Modernizing
    the Provincial Offences Act: A New Framework and Other Reforms
(2011), at pp.
    22-24.

[32]

The
    POA established a two-pronged approach to prosecuting regulatory offences.
    Minor offences can be prosecuted under Part I by means of a certificate of
    offence  essentially a ticket-based scheme that does not require judicial
    proceedings. The maximum fine for an offence prosecuted under Part I is $1,000.
    More serious offences can be prosecuted by laying an information under Part
    III. That section establishes a presumptive maximum fine of $5,000, but
    specifically contemplates that other legislation may establish a different fine
    regime, as the OWRA does.

The nature of regulatory offences

[33]

As
    the Supreme Court noted in
R. v. Sault Ste. Marie
, [1978] 2 S.C.R.
    1299, at pp. 1302-1303, regulatory offences are in substance of a civil nature
    and might well be regarded as a branch of administrative law to which
    traditional principles of criminal law have but limited application. After
    all, regulatory offences are not true crimes  conduct that is, in itself,
    so abhorrent to the basic values of human society that it ought to be prohibited
    completely:
R. v. Wholesale Travel Group Inc.
,
[1991] 3 S.C.R.
    154, at p. 218. Regulatory offences arise in the context of conduct that is
    otherwise lawful  indeed, conduct that may be encouraged and promoted for the
    good of society, but which nevertheless requires regulation in the public
    interest: see
Wholesale Travel
, at pp. 216-222, per Cory J. As the Supreme
    Court noted more recently, regulatory legislation does not share the same
    purpose as the criminal law, and it would be a mistake to interpret it as
    though it did:
Wilson v. British Columbia (Superintendent of Motor
    Vehicles)
, 2015 SCC 47, [2015] 3 S.C.R. 300, at para. 34.

[34]

It
    is not necessary to prove
mens rea
in order to prove the commission of
    regulatory offences, which involve strict liability. The Crown need prove only
    the commission of the prohibited act beyond a reasonable doubt. Liability
    follows unless the defendant can establish, on the balance of probabilities, a
    due diligence defence  that reasonable care was taken to avoid the commission
    of the prohibited act.

[35]

Public
    welfare statutes regulate everything from driving to fishing, environmental protection
    and workplace health and safety. As noted above, the POA governs the penalties
    for committing regulatory offences unless the relevant statutes establish
    different penalties. This occurs in a variety of contexts. For example, the
Occupational
    Health and Safety Act,
R.S.O. 1990, c.
    O.1,
establishes a maximum fine of $100,000 for individuals (in
    addition to the possibility of imprisonment) and $1.5 million for corporations.
    The
Liquor Licence Act
, R.S.O.
    1990, c. L.19,

establishes a maximum fine of $100,000 for
    individuals and $250,000 for corporations, and doubles these figures for
    offences involving minors. The
Fish and Wildlife Conservation Act, 1997,
S.O. 1997, c. 41,
does not distinguish
    between individuals and corporations, establishing a maximum fine of $25,000
    for any person violating the Act and $100,000 for certain specified offences and
    offences committed for commercial purposes.

[36]

The
    OWRA establishes fines of up to $50,000 for individuals first conviction and
    $100,000 for subsequent convictions; and up to $250,000 for corporations first
    convictions and $500,000 for subsequent convictions. But it also sets out a
    higher range of penalties for more serious offences  from $5,000 to $4 million
    for individuals and from $25,000 to $6 million for corporations, a range that
    increases for second and subsequent convictions.

[37]

The
    offence in this case is one of the more serious offences to which the higher
    range of penalties applies. The respondents guilty plea put the $25,000
    minimum fine in play.

The nature of minimum fines

[38]

In
Cotton Felts
,
this
    court set out an inclusive list of general considerations when it comes to
    sentencing on public welfare offences, but it emphasized that the need to
    enforce regulatory standards through deterrence is paramount. Minimum fines are
    a policy tool that is often used to accomplish this goal.

[39]

Minimum
    fines apply without regard to the circumstances of individual offenders or the
    circumstances surrounding the commission of particular offences, and so
    necessarily risk overinclusion. They reflect a legislative judgment that
    nothing less than the minimum fine is sufficient to achieve deterrence in light
    of the nature of the offence committed.

[40]

The
    Legislature established that all corporations that breach s. 30(1) of the OWRA
    are liable to a minimum fine of $25,000. Whether, or to what extent, the
    minimum fine succeeds in promoting deterrence is of no moment for the purposes
    of sentencing. It is the approach chosen by the Legislature and the courts
    responsibility is to apply that approach. The trial judges sentencing discretion
    is limited to determining whether a fine above the minimum (and below the
    maximum) is warranted.

[41]

The
    strictures of a minimum fine regime are to some extent mitigated by the
    exercise of prosecutorial discretion. Just as in the criminal law context a
    prosecutor may choose between pursuing a charge by summary conviction or
    indictment, in the regulatory context a prosecutor may choose between pursing a
    charge by means of the ticketing procedure under Part I or by laying an
    information under Part III of the POA, which gives rise to the possibility of
    larger and in some cases minimum fines. However, once the decision is made to
    prosecute under Part III, the applicable minimum fine must be imposed on
    conviction unless relief is warranted under s. 59(2).

How should s. 59(2) be interpreted?

[42]

I
    set out s. 59(2) of the POA again for convenience:

(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.

[43]

This
    court has exercised the discretion under s. 59(2) to reduce minimum fines in
    two cases, both of which arose in the context of the
Compulsory Automobile
    Insurance Act,
R.S.O. 1990, c. C.25
.
    In
R. v. Ade-Ajayi
, 2011 ONCA 192, 97 C.C.L.I. (4th) 183, the Crown
    agreed to a reduced fine in the particularly unusual circumstances of the
    case, which involved an appellant who was unemployed, seeking disability
    support and living off student loans. In brief reasons, this court described
    the reduced fine as being in the interests of justice without considering
    whether the minimum fine was unduly oppressive in the circumstances. In
R.
    v. A.E.
, 2016 ONCA 243, 348 O.A.C. 68, another case involving driving
    without compulsory insurance, this court reduced the minimum fine because of
    the appellants mental illness and its effect on his ability to earn money to
    pay the fines. Again, this court described its decision to reduce the fines as
    being in the interests of justice. In neither case did this court provide
    interpretive guidance for s. 59(2).

[44]

In
    my view, it is important to distinguish the authority to provide relief from a
    minimum fine from the duty to impose the minimum fine itself. Contrary to the
    interveners assertion, minimum fines are not mere guidelines; they are statutory
    requirements that establish sentencing floors. The starting point is that trial
    judges are required to impose minimum fines established by the relevant
    legislation. Their authority to provide discretionary relief under s. 59(2) of
    the POA  to impose a lesser fine or even suspend a sentence  does not have
    the effect of rendering minimum fines conditional in their application. On the
    contrary, minimum fines must be imposed unless the defendant satisfies the
    court that exceptional circumstances exist that justify the exercise of the
    courts discretion to provide relief.

[45]

It
    is important to emphasize that the courts discretion is not unfettered. If it
    were  if trial judges could refuse to impose a minimum fine whenever they
    considered it suboptimal to do so  minimum fines would be reduced in status
    from rules to mere suggestions.

[46]

Section
    59(2) addresses this concern by limiting the circumstances in which relief may
    be granted. The discretionary power not to apply a minimum fine arises only if,
    in the opinion of the court, the specified criteria are satisfied.

[47]

The
    difficulty is that the criteria are worded vaguely. Section 59(2) requires
    trial judges to determine whether circumstances are exceptional; whether a
    minimum fine would be unduly oppressive; and whether a minimum fine would not
    be in the interests of justice. These are evaluative and comparative concepts
    that have no settled core meaning, and they appear to leave considerable room
    for interpretation and application.

[48]

However,
    vague terms are not to be understood as radically indeterminate, such that they
    permit virtually any outcome. Vague terms must be interpreted in context, as
    the modern approach to statutory interpretation makes clear. Today there is
    only one principle or approach, namely, the words of an Act are to be read in
    their entire context and in their grammatical and ordinary sense harmoniously
    with the scheme of the Act, the object of the Act, and the intention of
    Parliament: Elmer A. Driedger,
Construction of Statutes
, 2nd ed.
    (Toronto: Butterworths, 1983) at p. 87, adopted by the Supreme Court in
Rizzo
    & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21, and in
Bell
    ExpressVu Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at
    para. 26.

[49]

Thus,
    the discretion in s. 59(2) must be understood in the context of the
    Legislatures commitment to imposing minimum fines in a variety of public
    welfare contexts in order to promote the goal of deterrence. The OWRA does not
    establish a minimum fine that applies on a discretionary basis. The OWRA
    establishes a minimum fine that applies automatically on conviction for the
    relevant offence, subject only to the limited discretion of trial judges to
    grant relief under s. 59(2) of the POA.

[50]

The
    interveners submission that the interpretation of s. 59(2) should reflect the
    primacy of proportionality as a sentencing principle must be rejected.  Where
    minimum fines are prescribed in public welfare legislation, or in the POA
    itself, they establish a floor  a starting point for consideration of the
    appropriate fine  that applies regardless of any concerns about proportionality.
    Proportionality is a relevant consideration in setting a fine
above the prescribed minimum, but the principle
    cannot be invoked to subvert the Legislatures decision to establish a minimum
    fine.
Obiter remarks in
R. v. Scantlebury
, 2016 ONCA 453, 350
    O.A.C. 174, at para. 30, a decision granting leave to appeal a decision under
    the POA,
are not to be read as authority to the contrary.

[51]

Given
    the variety of legislation that establishes minimum fines and the myriad
    circumstances that may present themselves to the trial judge at sentencing
    time, it is not possible to be prescriptive about the operation of s. 59(2).
    Nevertheless, it is possible to provide general guidance.

Exceptional circumstances

[52]

The
    power to provide relief from a minimum fine arises only in exceptional
    circumstances. Rosenberg J.A. reviewed the meaning of exceptional in the
    criminal law context in
R v. W. (R.E.)
(2006)
, 79 O.R. (3d) 1 (C.A.), and stated as follows, at
    para. 31:

The theme that runs through use of the term exceptional in
    both criminal case law and legislation, is that it is intended to describe the
    clearest of cases. Such cases include those where applying the normal rules
    would undermine the purpose of the legislation, where the exercise of the
    unusual power is necessary or required, and where the exercise of the unusual
    jurisdiction is capable of explanation.

[53]

I
    do not think it is helpful to canvass the sorts of circumstances that might be
    considered exceptional in the context of public welfare offences, or to
    speculate as to how often such circumstances may arise. Nor is it helpful to
    substitute for the term exceptional terms such as rarely, in the clearest
    of cases, and in extraordinary contexts  all of which are equally vague.
    Suffice it to say that trial judges must not recognize exceptional
    circumstances too readily, lest exceptional circumstances become unexceptional,
    or even routine, and the exercise of the discretionary power to provide relief
    from minimum fines undermine the deterrent effect minimum fines are designed to
    have.

[54]

Key
    to the exercise of the discretionary power to provide relief from a minimum
    fine is not the exceptionality of the circumstances of a case, in general, but
    the requirement that a minimum fine be either 1) unduly oppressive; or 2) otherwise
    not in the interests of justice. These requirements are disjunctive and must be
    understood as addressing different circumstances. As I will explain, unduly
    oppressive normally will be limited to addressing situations of personal
    hardship  typically financial  while the interests of justice allows
    consideration of broader residual concerns.

Unduly oppressive

[55]

Oppressive
    suggests a moral judgment that something is harsh and wrongful on that account.
    At the same time, however, s. 59(2) makes clear that it is not sufficient that
    a minimum fine is considered oppressive; it must be
unduly
oppressive before relief can
    be provided. The language chosen must be taken to signal the Legislatures
    intention to establish a very high bar for granting relief from a minimum fine.

[56]

There
    is nothing surprising about this, given the Legislatures purpose. Minimum
    fines are designed to deter and, as I have said, they are necessarily
    overinclusive to a greater or lesser extent. To take an example, the
Compulsory
    Automobile Insurance Act
establishes a minimum fine of $5,000 for driving
    without insurance. That is a high fine for most people and is especially so for
    people of modest means. But the cost of insurance is also high for most people
    and is also especially high for people of modest means. The Legislature chose
    to require drivers to have insurance regardless of the cost, and chose to
    enforce this requirement with a mandatory minimum penalty. The Legislature
    chose, in other words, to make it more financially onerous to offend the
    legislation than to bear the required cost of insurance premiums:
Ade-Ajayi,
at para. 13. That choice was open to the Legislature, and it should not be
    undermined by a decision to refuse to impose a minimum fine simply because it
    seems high in particular circumstances. Minimum fines will often seem high; that
    is the point of deterrence in public welfare offences. Something more is
    required in order to establish that imposing a minimum fine would be unduly
    oppressive in particular circumstances, lest the courts exercise of
    discretion have the effect of undermining the Legislatures purpose in
    establishing a minimum fine.

[57]

Although
    relief to corporate defendants on the basis that a minimum fine would be unduly
    oppressive cannot be ruled out, normally relief will be limited to individuals who
    can establish personal hardship based on consideration of their unique personal
    circumstances  hardship that rises to an extreme level they cannot be made to
    bear. Corporations seeking relief from a minimum fine normally will do so under
    the residual interests of justice category.

Interests of justice

[58]

The
    interests of justice is a term that is used in a variety of contexts. The
    term is vague, but as I have said, it does not confer an unbounded discretion
    on trial judges to relieve against a minimum fine on that account. The meaning
    of the term must be informed and limited by consideration of the context in
    which the interests of justice are asserted.

[59]

There
    are many examples of trial judges determining whether imposition of a minimum
    fine would not be in the interests of justice, but I do not think it helpful
    to review the case law here. Nor will I attempt to enumerate the factors that
    are properly considered in determining the interests of justice. As Doherty
    J.A. explained in another context, the relevant factors cannot be catalogued:
Ontario
    (Attorney General) v. 8477 Darlington Crescent
, 2011 ONCA 363, 333 D.L.R.
    (4th) 326, at para. 97.

[60]

Nevertheless,
    some general principles are clear. First and foremost, as with any
    discretionary authority, the discretion to relieve against a minimum fine on
    the basis that it would not be in the interests of justice to impose the fine
    cannot be exercised arbitrarily. Discretionary powers must be exercised having
    regard to the purpose of the relevant legislation and the purpose of the
    discretion in particular:
Roncarelli v. Duplessis
, [1959] S.C.R. 121.

[61]

In
    particular, the discretionary power authorized by the POA must be exercised
    against the backdrop of the Legislatures decision to emphasize deterrence by
    means of a system of minimum fines. Trial judges must consider not only the
    interests of an individual offender but also the interests of the community
    protected by the relevant public welfare legislation.

[62]

The
    exercise of discretionary power to provide relief from a minimum fine can be
    understood as promoting fairness in sentencing, but fairness is not a
    freestanding test for determining the application of s. 59(2). Trial judges are
    not authorized to refuse to apply minimum fines simply on the basis that they
    consider that it would be unfair to apply them. Trial judges must provide
    reasons that explain and justify their exercise of discretion in accordance with
    s. 59(2). A bald appeal to fairness will not suffice.

SUMMARY

[63]

I
    would summarize the above discussion as follows:

1)

Minimum
    fines establish sentencing floors that apply regardless of ordinary sentencing
    principles. The imposition of fines
above
the minimum threshold is
    governed by ordinary sentencing principles, as well as any principles set out
    in the relevant legislation.

2)

Section
    59(2) of the POA vests a discretionary authority in trial judges to provide
    relief from minimum fines in exceptional circumstances. The burden is on those
    seeking the grant of relief to establish that relief is warranted based on the
    relevant considerations.

3)

Section
    59(2) applies exceptionally. It will be an unusual case in which the imposition
    of a minimum fine may be considered unduly oppressive or otherwise not in
    the interests of justice.

4)

Whether
    a minimum fine is unduly oppressive usually will depend on consideration of
    personal hardship. The bar for relief is set very high. Mere difficulty in
    paying a minimum fine is inadequate to justify discretionary relief.

5)

Whether
    a minimum fine is otherwise not in the interests of justice involves
    consideration of not only the interests of an individual offender but also the
    interests of the community protected by the relevant public welfare
    legislation.

6)

The
    discretion under s. 59(2) cannot be exercised arbitrarily. Trial judges must
    explain their reasons for invoking s. 59(2), and in particular must demonstrate
    both that the circumstances are exceptional and that it would be unduly
    oppressive or otherwise not in the interests of justice to apply the minimum
    fine.

THE APPEAL JUDGE ERRED IN PROVIDING RELIEF UNDER S. 59(2)

[64]

The
    appeal judge properly concluded that the trial justice erred in second-guessing
    the Crowns decision to prosecute under Part III rather than Part I. That was a
    decision the Crown was entitled to make in the exercise of its prosecutorial
    discretion, and the exercise of prosecutorial discretion is not a relevant
    consideration under s. 59(2). The appeal judge also properly concluded that the
    trial justice erred in treating the absence of any prior conviction as a
    mitigating factor. As the appeal judge noted, the absence of an aggravating
    factor does not count as a mitigating factor. Moreover, in ss. 109(2) and
    110.1(1), the OWRA specifically addresses the relevance of prior convictions in
    setting minimum penalties.

[65]

However,
    the appeal judge erred in concluding that the circumstances of this case were
    exceptional and that it would not be in the interests of justice to impose the
    minimum fine under the OWRA. His error flowed from his conclusion that the interests
    of justice means no more than fairness.

[66]

As
    I have explained, unfairness is not the test under s. 59(2). The Legislature
    has decided what is fair in establishing minimum fines. Trial judges are
    required to apply those fines unless they conclude, in accordance with the
    requirements set out in s. 59(2), that relief from a minimum fine is warranted.

[67]

The
    appeal judges decision that imposing the minimum fine would be unfair  and
    thus not in the interests of justice  was based on his view that the breach
    of the OWRA was a very modest incident and that the Crown might not have been
    able to prove the charge. In my view, he stated, on the facts that I have
    before me, if push came to shove, it is a case that the Crown might not have
    been able to prove but for Henry of Pelhams guilty plea.

[68]

Essentially,
    the appeal judge engaged in a counterfactual exercise, considering several
    factors that in his view would have rendered prosecution difficult, had it
    occurred. The facts in this case were so minimal, he concluded, that they
    created exceptional circumstances for the purposes of s. 59(2). No one knew
    what had really happened to the water in the pond, nor, he added, was the faint
    organic smell conclusive: We all know that as we walk through a forest, there
    is always a faint organic smell in the fall. In these circumstances, the appeal
    judge found that the respondents plea of guilt was a substantially mitigating
    circumstance.

[69]

With
    respect, the appeal judges counterfactual analysis involved speculation on
    matters that he was not entitled to consider. His reliance on the idea of
    fairness led him to characterize the respondents offence as minor and relatively
    insignificant  a characterization that was not open to him in light of the
    Legislatures determination that a minimum fine of $25,000 should be imposed
    for first-time corporate offenders. The appeal judge erred, further, in
    concluding that the respondents guilty plea mitigated the minimum fine. Where
    the Legislature has established a minimum fine, mitigation is relevant only in the
    determination of whether a fine above the minimum should be imposed. As the
    Crown points out in its submissions, the vast majority of provincial offences
    are resolved by guilty plea. Guilty pleas cannot be considered exceptional
    circumstances, nor can the interests of justice be invoked to permit guilty
    pleas to undermine a minimum fine regime.

The strength of the Crowns case was irrelevant given the
    plea of guilt

[70]

As
    for the strength of the Crowns case, the respondent cannot at once plead
    guilty to having committed an offence and maintain that the case against it was
    weak and might not have been proven. Those charged with having committed
    regulatory offences are free to contest the charges and so require that the
    Crown prove the commission of the offences beyond a reasonable doubt. If they
    choose not to do so, a guilty plea is just that: it is an admission that the
    offence has been committed, regardless of how easy or difficult it might have
    been for the Crown to prove the charge.

The minimum fine ought to have been imposed

[71]

At
    the end of the day, the appeal judge varied the fine to an amount below the
    minimum because he considered that what had occurred was relatively minor in
    nature  in essence, no great harm had occurred and the respondent had acted
    responsibly in all the circumstances.

[72]

I
    agree that, on the agreed facts, the respondent acted responsibly following commission
    of the offence. But just as acting responsibly to correct a problem following a
    regulatory breach is not a mitigating factor on sentence (
Ontario (Labour)
    v. Flex-N-Gate Canada Company
, 2014 ONCA 53,
    119 O.R. (3d) 1, at para. 23), it is not a relevant consideration for the purpose
    of applying the discretion in s. 59(2) to provide relief from a minimum fine.
Regardless of its post-offence conduct, the fact remains that the respondent
    pleaded guilty to impairing the quality of water  an aggravating factor under
    the OWRA  and doing so over a two-week period. I see nothing exceptional in
    this and no basis for concluding that the interests of justice justify granting
    relief from the minimum fine prescribed in the OWRA in these circumstances.

CONCLUSION

[73]

I
    would allow the appeal and vary the sentence by imposing the minimum fine of
    $25,000.

Released:
    December 7, 2018 DW

Grant
    Huscroft J.A.

I
    argee.  David Watt J.A.

I
    agree.  Fairburn J.A.


