



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Today Food Inc., 2017 ONCA 565

DATE: 20170630

DOCKET: C63801

Watt, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Today Food Inc.

Moving Party/Appellant

Liming Qu, in person for the appellant

Amanda Ross, for the respondent

Heard in writing: June 27, 2017

On appeal from the sentence imposed on April 13, 2015 by
    Justice of the Peace G. Fantino and upheld by Justice B. Brown of the Ontario
    Court of Justice on February 17, 2016.

REASONS FOR DECISION

[1]

The appellant was convicted of operating a food
    premises in a manner permitting a public health hazard. A fine of $6,255 was
    imposed by the Justice of the Peace. The appeal relates to sentence only.

[2]

The appellant was a small, family-run grocery store owned and operated
    by a married couple from 2004-2014.

[3]

On August 29, 2012, the store was investigated by a health inspector. A
    closure order was issued and the store was charged with operating food premises
    in manner permitting a health hazard, contrary to s. 11(a)(i) of
Ontario
    Food Premises Regulation 562
, pursuant to the
Health Protection and
    Promotion Act
, R.S.O. 1990, ch. 7, s. 100(4).

[4]

Later that day, the appellants claim they thoroughly cleaned the store
    and addressed the deficiencies identified by the inspector. They allege that
    they were told the inspector would return the next day but he did not return
    until August 31, and they were not granted a conditional pass until after the
    long weekend on September 4, 2012. As a result, they were closed for seven
    days. The appellants sold their store in 2014. They are now virtually
    destitute.

[5]

At trial, the Crown read in past offences to which Today Food Inc. had
    pled guilty in 2011 under Regulation 562. These involved failing to sanitize
    utensils, to wash hands and to maintain food at proper temperatures. The
    justice considered these offences to be aggravating circumstances although no
    evidence was provided as to the basis for the charges. The justice also
    commented that the owners do not learn from their mistakes and were wasting
    court resources. Although there was no evidence the store shop remained in
    violation of the Regulation for a full seven days in his reasons, the justice
    said it was.

[6]

The Crown concedes the sentence was based on a misapprehension of
    evidence as to how long the store remained in a state of violation.

[7]

The parties have jointly requested that this court reduce the sentence to
    $1,500, payable over two years.

[8]

There are several reasons to accept the joint proposal. The justice of
    the peace misapprehended the evidence, ignored the fact that the store had been
    sold so specific deterrence was not an issue, took no notice of the appellants
    ability to pay and had no information about previous convictions that had been considered
    aggravating.

[9]

The appeal as to sentence is allowed and the fine is reduced to
    $1,500, payable over two years.

David
    Watt J.A.

M.L.
    Benotto J.A.

L.B.
    Roberts J.A.


