The Environmental Protection Act and the Ontario Water Resource Act are unique among Ontario’s environmental legislation for containing mandatory minimum fines.[1] A new decision from the Ontario Court of Appeal makes it clear that where minimum fines exist, a trial justice has very narrow discretion to impose a lesser fine. A defendant needs to consider this fact if they are contemplating a guilty plea under either of these environmental statutes.
Ontario (Environment, Conservation and Parks) v. Henry of Pelham Inc.
The decision, Ontario (Environment, Conservation and Parks) v. Henry of Pelham Inc., 2018 ONCA 999, released on December 7, 2018, was an appeal from a sentence imposed on a corporation for breaching section 30(1) of the Ontario Water Resources Act (the “OWRA)”.
Section 30(1) of the OWRA prohibits the discharge of any material into water that may “impair” the “quality” of the water. Impairment is defined very broadly in section 1(3)(c) of the OWRA as a “degradation in the appearance, taste or odour of water”. The OWRA establishes a minimum fine of $25,000 for this offence.
The offence was prosecuted under the Part III of the Provincial Offences Act (the “POA”), which is generally reserved for more serious regulatory offences. Section 59(2) of the POA provides a trial judge with discretion to deviate from legislated minimum fines 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”.
Facts of the Case
In 2014, the Ministry of the Environment and Climate Change investigated a situation in which water in a private pond had turned black and developed a faint organic odour. The cause was determined to be run-off from a mixture of cattle manure and grape pomace that had been spread as a fertilizer on an adjacent vineyard. The vineyard hired an environmental firm to remediate the problem, and there was no information as to any environmental damage from the run-off. Nevertheless, under the definition of “impaired” in the OWRA, which includes any “degradation in the appearance” or “odour” of water, these facts were sufficient to establish a breach of the OWRA.
Decisions Below
At trial, the defendant pled guilty and the judge relied on s. 59(2) of the POA to find that a fine of $600 was more in keeping with the circumstances of the case.
The Crown appealed, and the summary appeal court judge, who described the offence as “a very modest incident”, agreed with the trial judge that imposing the minimum fine of $25,000 would be “patently unfair” and not in the “interest of justice”, but did increase the fine to $5000.
Decision of Court of Appeal
The Court of Appeal disagreed. It found that minimum fines must be imposed unless the defendant satisfies the court that exceptional circumstances exists that justify the exercise of the court’s discretion to reduce the fine, and the facts of the case do not give rise to an exceptional circumstance.
The decision cautioned that trial judges must not “recognize exceptional circumstances to readily” in order to guard against the possibility that “exceptional” becomes “routine”.
Focusing on statutory interpretation, the Court held that s. 59(2) of the POA requires the court to find that the minimum fine is 1) “unduly oppressive” or 2) “not in the interest of justice”, before it has the discretion to reduce the fine.
- Unduly Oppressive
The Court explained that minimum fines will often seem high because they are meant as a deterrent, but to be deemed “unduly oppressive” a fine would have to be a “hardship that rises to an extreme level they [the defendant] cannot be made to bear.”
- Not in the Interest of Justice
With respect to the “interest in justice” requirement, the Court was clear that this means more than simple “fairness”. Rather, a determination of whether a lower fine is in the interest of justice not only requires the consideration of the interest of the defendant, but the interests of the community that is protected by the regulatory scheme.
Implications under s. 12 of the Charter of Rights and Freedoms
In this decision the Court relies heavily on the idea that deterrence is the legislative policy that underlies minimum fines legislation. In doing so, it seemingly rejected the argument made by intervenors in this appeal that proportionality ought to be the dominant principle in sentencing for regulatory offences. This conclusion may well set up a challenge of mandatory minimum fines under s. 12 of the Charter of Rights and Freedoms where grossly disproportionate sentences have been found to be unconstitutional cruel and unusual punishment.
[1] See Environmental Protection Act, R.S.O. 1990, c. E.19 s. 187 (4) and (5); and Ontario Water Resources Act, R.S.O. 1990, c. O.40 s. 109 (2) and (3)