In its recent decision Ontario (Environment, Conservation and Parks) v. Henry of Pelham, the Ontario Court of Appeal significantly narrowed the discretion of lower courts to depart from the mandatory minimum fines imposed by a range of environmental and other public welfare legislation. While this case involved the contravention of s. 30(1) of the Ontario Water Resources Act (“OWRA”) for discharging fertilizer into surface water, its implications for sentencing under a variety of environmental offences under this and other legislation are relevant to anyone who may face mandatory minimum fines prescribed by those statutes.
The decision, released on December 7, 2018, was an appeal by the Ministry of the Environment, Conservation and Parks (“MECP”) from a sentence imposed on Henry of Pelham Inc., an Ontario winery. On December 7, 2014, the MECP received a call from a resident of St. Catharines who advised that a pond on his property was discoloured and had a faint organic smell. MECP officials talked to a representative of the nearby Henry of Pelham winery, who indicated that two weeks prior the winery had spread a mixture of cattle manure and residual grape material on its lands. It was possible, the winemaker conceded, that the fertilizer could have seeped through a tile drain and into a creek leading to the neighbour’s pond. Henry of Pelham retained an environmental consultant to prepare an action plan, paid for a new pump for the neighbour’s pond aerator, and undertook to remove the black organic material from the pond. Nevertheless, the MECP decided to proceed under Part III of the Provincial Offences Act (“POA”) (which prescribes harsher penalties than Part I and is generally reserved for more serious regulatory offences) to lay a charge under s. 30(1) of the OWRA. Under the mandatory minimum penalty regime, a corporation is liable, for each day the offence continues, to pay a fine of no less than $25,000.
At trial, Henry of Pelham pleaded guilty to the offence. The presiding justice of the peace granted relief from the $25,000 mandatory minimum fine, invoking her discretion under the POA to impose a lesser fine in “exceptional circumstances” that make the mandatory fine “unduly oppressive or otherwise not in the interests of justice”. The fine was reduced to $600. On appeal, the Ontario Court of Justice increased the fine to $5,000, still considerably less than the mandatory minimum. It found that the justice of the peace had erred in taking into account that the Crown should have brought charges under Part I of the POA, given the less serious nature of the offence. Nonetheless, the Ontario Court of Justice agreed with the justice of the peace that a fine below the mandatory minimum ought to be imposed, observing that the circumstances of the case were “exceptional” because of the “very modest” nature of the offence and the uncertainty surrounding the Crown’s ability to prove its case in the absence of a guilty plea. A $25,000 fine in the circumstances would be “patently unfair” in the view of the appeal judge.
Court of Appeal sets high bar for discretionary relief to promote deterrence
The Ontario Court of Appeal disagreed with both of the lower courts, holding that the circumstances of the case did not rise to the level of “exceptional” justifying the exercise of judicial discretion. The mandatory minimum fines, by establishing generally applicable sentencing floors, were intended by the Legislature to promote deterrence in a variety of public welfare contexts. Considering the proportionality of the sentence is only relevant when the court is contemplating a fine above the prescribed minimum. The Court warned that if trial judges too readily exercised their discretion to depart from the prescribed minimum fines, “exceptional circumstances would become unexceptional, or even routine,” and deterrence would be undermined.
The Court of Appeal stressed that the discretionary authority of trial judges to impose a lower fine is not without limits. A defendant must “satisfy the court that exceptional circumstances exist that justify the exercise of the court’s discretion to provide relief” and that the imposition of the mandatory minimum fine is either “unduly oppressive” or otherwise “not in the interests of justice.” The Court interpreted “unduly oppressive” as meaning unbearable personal hardship, typically arising from the financial inability to maintain a minimally dignified existence and pay the minimum fine because of “unique personal circumstances”. The court held that the addition of the adverb “unduly” signals the Legislature’s intent to set a “very high bar” for obtaining relief from a minimum fine. Mere difficulty in paying the fine is inadequate. Corporations are unlikely to suffer the requisite type of personal hardship, meaning “normally relief will be limited to individuals”.
If a corporation seeks discretionary relief from a minimum fine, it must generally do so under the residual “interests of justice” category. According to the Court of Appeal, the meaning of this rather vague term is informed by the Legislature’s decision to promote deterrence through a mandatory minimum fine regime. In determining whether to exercise their discretion, trial judges should have regard to “not only the interests of an individual offender but also the interests of the community protected by the relevant public welfare legislation.” Fairness is not a stand-alone test. According to the Court of Appeal, the lower court erred in concluding that it could depart from the mandatory minimum fine because a $25,000 fine would be “unfair” to Henry of Pelham. Such bald appeals to fairness, without a more elaborate justification, are insufficient to establish that the interests of justice would be compromised by imposing the prescribed minimum fine, according to the Court.
Implications for defendants facing mandatory minimum fines
While the Court of Appeal’s judgment in this case has been criticized for failing to explicitly illustrate the “unusual” circumstances that may justify a sentencing judge’s exercise of discretion to depart from a mandatory minimum fine, there are several significant points raised by the Court’s decision:
- The broad, permissive approach previously taken by lower courts to exercising their discretion to relieve defendants from the mandatory minimum fines will no longer be permitted. Insofar as sentencing judges generally rely on the concept of “unfairness” in exercising such discretion, the fines they impose will likely be increased on appeal.
- This shift towards a greater focus on deterrence means that sentencing judges will be limited in their ability to depart from prescribed minimum fines, even when the offence is relatively minor in character and environmental impact.
- Corporations found guilty will normally need to justify relief from minimum sentences by showing that the imposition of such high fine amounts would be contrary to “the interests of justice” in terms of the interests of both the corporation and the community at large.
- Finally, where the defendant has entered a guilty plea, the strength of the Crown’s case is irrelevant to whether exceptional circumstances exist that justify relief from a mandatory minimum fine.