Her Majesty the Queen v. Stanislaw Lewandowski Judge: The Honorable Judge Jamie S. Campbell Decision: May 3, 2010 Charge: Section 505(1) Municipal Government Act Counsel: Scott Hughes, counsel for the Crown Richard Bureau, counsel for the Defendants 1 ) This case is about the Remission of Penalties Act R.S.N.S. 1989, c. 397 . The Act allows judges to reduce fines, even the minimum fines set by provincial law. It doesn’t provide any guidance though as to what sh, 2010 NSPC 37

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Lewandowski, 2010 NSPC 37 Date : May 3, 2010 Docket: 1882237 Registry: Halifax Between: Her Majesty the Queen v. Stanislaw Lewandowski Judge: The Honorable Judge Jamie S. Campbell Decision: May 3, 2010 Charge: Section 505(1) Municipal Government Act Counsel: Scott Hughes, counsel for the Crown Richard Bureau, counsel for the Defendants 1 ) This case is about the Remission of Penalties Act R.S.N.S. 1989, c. 397 . The Act allows judges to reduce fines, even the minimum fines set by provincial law.

It doesn’t provide any guidance though as to what should be taken into account when that is being considered. 2 ) This case is not going to resolve that. It’s not for me comment generally on how judicial discretion is or should be exercised. I think it is only fair though for me to set out in some detail how I’ve done it, in this case. 3 ) Mr. Lewandowski has pleaded guilty to a by-law infraction pertaining to the operation of a rooming house in south end Halifax. He and his wife bought the property in the 1980's. They operated it as an income property providing housing for students.

Rather than having 6 bedrooms as allowed, the house had 14 bedrooms. 4 ) During the course of a $30,000 renovation in 2005, it was determined that the house was not in compliance with the municipal by-

law. 5 ) Mr. Lewandowski pleaded guilty to an infraction over a period of 185 days. He and his counsel assumed that the maximum fine in the circumstances would be $10,000. They were wrong. The Municipal Government Act : $100 a day or $10,000 a day? 6 ) Subsection 505(2) of the Municipal Government Act S.N.S. 1998. c. 18 provides that the minimum fine for a violation of a municipal by-law is $100, unless otherwise provided in the by-law. The minimum fine here is $100.

The maximum fine is $10,000. 7 ) Subsection 505(3) however, says that every day during which an offence continues is a separate offence. 8 ) The minimum fine in this case, according to the Municipal Government Act , would be $18,500. The plea was entered with respect to 185 days, or 185 separate offences. Each offence would carry the $100 minimum fine. 9 ) The

section is clearly intended to be a disincentive to those who would otherwise flout a municipal by-law because it may be less expensive to pay a fine, even a maximum $10,000 fine, than to comply. It also may have the effect of raising the stakes for anyone who disagrees with the

interpretation of a situation upon being told that they are in breach. When each day is an offence the cost benefit analysis changes considerably. 10 ) If the maximum fine were imposed here the penalty would be $1,850,000. There is a very broad range of discretion between the minimum of $18,500 and the maximum of $1,850,000. 11 ) Counsel for the municipality, Mr. Hughes, says that the minimum fine of $100 per day is appropriate. The total fine of $18,500 should be imposed. The Remission of Penalties Act : Something less than $100? 12 ) Counsel for Mr. Lewandowski, Mr.

Bureau, has asked that the minimum fine be reduced beyond the amount provided for in the Municipal Government Act . That can’t be done under the Municipal Government Act itself. 13 ) He proposes that the Remission of Penalties Act be applied to reduce the fine to what he asserts would be a more reasonable reflection of the circumstances of the offence. 14 )

Section 2 of the Remission of Penalties Act states; Where a pecuniary penalty or forfeiture is imposed by any act of this Province, the court or a judge or justice of the peace having cognizance of the proceedings may, at any time after the commencement thereof, remit in whole or in part, any sum of money by such Act imposed as a penalty or forfeiture on a convicted offender, and may do so whether the money is in whole or in part payable to the Crown, or to some person other than the Crown, and whether the same is recoverable by indictment, information

summary process, action or otherwise. 15 ) That piece of crisp legislative prose is most of the Act. The Remission of Penalties Act contains no provisions to indicate when a judge should remit a fine. It contains no guidance as to what factors a judge ought to consider in determining whether or to what extent a

penalty should be remitted or reduced. The Chancellor’s Foot or Pounding Square Pegs Into Round Holes 16 ) That leads to John Selden’s 17 th century metaphor of the Chancellor’s foot. Courts of equity were established in England to moderate the harshness that arose from the strict application of the law. Judges were given broad discretionary powers. The problem was that no one knew just how any particular judge or chancellor would exercise that discretion. He was guided only by his own conscience.

What one person’s conscience dictated, in Selden’s view, was no more consistent with another person’s conscience that the length of their feet might be the same. The result you got in court might as well depend on the length of the Chancellor’s foot. Selden called such equity a “roguish thing”. 17 ) The “Chancellor’s foot” phrase has stuck in the legal mind for centuries. It appears whenever there is a discussion of judicial discretion. Discretion can be used to disguise the purely arbitrary exercise of authority.

It can follow ingrained, unacknowledged personal prejudices. 18 ) At the same time there is an appreciation that a strictly rule based system has its shortcomings as well.

There are times when the advantages of certainty and predictability in such an inflexible system do not seem to be worth a manifestly unfair result. “Rules, by their very nature, regard all scenarios as “square” even when the facts scream out to be treated as “round”. (Peter Sankoff “The Search for a Better Understanding of Discretionary Power in Evidence Law” (2007),32 Queen’s L.J. 487 para. 25.) 19 ) When strict rules are strictly applied sometimes round pegs are pounded into square holes.

There are times when even the most careful application of rules can lead to results that offend against a broad, intuitive or common sense view of what is right or fair. Some cases do “scream out” to be treated differently. 20 ) There is a tension that is maintained in the law between the rule of law on the one hand and substantive justice on the other. Each to some extent informs the other. Certainty is rarely as clear cut or certain as it may at first appear. There is often at least some room for “interpretation”. On the other hand, flexibility or discretion are not unconstrained.

Judicial discretion is not judicial whim. Judicial discretion is not used to depart from established legal norms but to bring specific cases within those broader norms. 21 ) As a judge applying judicial discretion to a situation under the Remission of Penalties Act , I believe that I should bear that tension in mind. Whatever other rules or principles come into play, I need to operate in the context of that tension between certainty and flexibility.

Judicial Discretion Guided by Principles 22 ) My colleague, Associate Chief Judge Gibson, commented on the very general discretion granted by the Remission of Penalties Act in R. v. Samaha, [1998] N.S.J. No. 358 . That case involved an argument that the $10,000 fine imposed under the Revenue Act for the distribution of tobacco amounted to cruel and unusual punishment. The potential loss in government tax revenue was only about $1100. A fine of $10,000 imposed on a person who earned about that much in a year as a cook and pizza driver would be unfair.

The court found that the fine was grossly excessive and severed from the Act the

section that exempted the Remission of Penalties Act from application. 23 ) The reported case does not indicate the extent to which the penalty was reduced but Associate Chief Judge Gibson did comment on the lack of guidance in the legislation. “The Remission of Penalties Act does not provide guidance as to how the court should exercise the power to remit a fine. It might be

suggested that absent any guidance in the legislation the power to remit could be exercised arbitrarily. I am of the view that the power to remit a fine must be exercised judicially, guided by well understood principles of sentencing including ability to pay and fairness. It is for this reason that I have specifically referred to ss. 718 , 718.1 and 718.2 of the Criminal Code above, which s. 7 of the

Summary Proceedings Act adopts for purpose of sentencing those who commit offences proscribed by legislation enacted by the Nova Scotia Legislative Assembly.” Para. 29 24 ) That makes a lot of sense to me. Judicial discretion cannot be exercised arbitrarily or capriciously. It should instead be based on the application of principles. 25 ) Those principles cannot simply be plucked from thin air. They should be rationally related or rationally relevant to the matter under consideration, like the sentencing provisions of the Criminal Code .

They should be consistent with the general legal principles or legal norms, found in the Charter, other relevant legislation and in case law.

They should be applicable beyond the individual case, otherwise they aren’t really principles at all. 26 ) The sentencing provisions of the Criminal Code , adapted to the imposition of fines would include the following: a. fines should contribute to respect for the law, b. they should represent just sanctions, c. they should denounce unlawful conduct, d. they should provide for deterrence, e. they should promote a sense of responsibility, f. the should be proportional to the gravity of the offence and responsibility of the offender, g. they should be similar to other fines for similar offenders, and h. they should be considered in their totality. 27 ) A range of fines allows for the exercise of discretion within the legislation to which the fine relates.

Some cases call for the maximum fine. Some cases call for a minimum fine. The decision as to amount of the fine imposed within that range should be made having regard to those sentencing principles. In each case, some principles will give way to others. Those principles would be applied to determine whether the fine here should be $18,500 or $1,850,000 or somewhere between those two amounts. 28 ) But the issue here is not what fine is appropriate within the range permitted by the statute.

There have to be principles that will determine when a fine outside the minimum amount should be imposed. 29 ) There are situations when even the minimum fine set by the legislation is just not right. A minimum fine that to most people would be an imposition, a deterrence or a just sanction, to another amounts to a harsh and crushing blow. 30 ) Fines are a problem that way. They impact disproportionately on people of limited means. A fine that to one person is a day’s income is to another a week’s income or perhaps the earnings of a month or much more.

Even people who earn the same amount have different financial responsibilities and will feel the impact of a fine according to their circumstances. The Remission of Penalties Act provides a method by which that fundamental unfairness can be addressed, at least to some extent and perhaps only very roughly. 31 ) Legislation sets minimum and maximum fines. There would be no reason to do that if, in every case, the judge could simply set the fine that somehow seemed “right” and just.

32 ) Fairness in individual cases, is to some extent compromised for the certainty and predictability of minimum fine provisions. There is a sense of unease about that. When does that sense of “unease” become too much? Judges decide when that compromise offends other established legal norms, having regard to the principles of sentencing, the principles of the Charter, other relevant legislation and case law and the tension between certainty and fairness.

As a judge I have to decide whether a case “screams out” to be treated differently or when the strict application of the law offends against other, more important principles. Guided Discretion and Informed Intuition 33 ) Mr. Bureau cited the Magna Carta. The principle he invoked, that fines should be proportional to the seriousness of the offence, was entirely appropriate and relevant.

The range of relevant principles runs from Runnymede in 1215 to the purposes of Halifax Regional Municipal zoning by-laws in 2010. 34 ) Deciding based on principles does not mean that I should, or for that matter that I could, create my own checklist of principles or a decision formula and mechanically apply either of them. There is no grand unifying theory of jurisprudence. There is no long list of legal norms found anywhere. But yet, we know that those norms and principles exist. 35 ) I think there is a place for judicial intuition or common sense in identifying situations where results depart from principles.

Common sense has got a bit of a bad name. No wonder. Sometimes, it is deformed into a pretension of simplicity and self evident truth. It can be used as cover for a quickly formed irrational hunch. In this context though, it is an educated, informed, practiced, prudent and perhaps even humble intuition, that tells us that something just isn’t right or doesn’t fit. Some things strike a dissonant chord against those principles. The world does not run entirely on checklists or lists of factors.

It often operates on our ability to synthesize and analyze a fairly complex array of things and pick up on and hear those dissonant chords. 36 ) I should then be able to test that intuitive sense by identifying the principles or legal norms that tell me why something isn’t right. That process is important. The principles might, on reflection, suggest that the intuition was wrong. It is important to separate intuition from preconceived notions, personal preferences and prejudices.

That’s the prudent part. 37 ) Intuition and self certainty are a dangerous pair. 38 ) In my view, I will have made a considered exercise of judicial discretion after reaching something like what the legal philosopher John Rawls called a “reflective equilibrium”.

The intuition and the principles serve as a check against each other, to see whether the intuition might just be based only on some firmly held personal ideas and whether the principles might be ones that shouldn’t apply, that conflict with other more important principles or that are just out of date. 39 ) Educated and informed intuition, has to be scrutinized against principles. Principles and norms have to be checked against that intuitive sense. I have to do that with the full appreciation that whatever I think might just be wrong. Using intuition in this way is far from making a snap judgment.

Application 40 ) In this case, I have to exercise my discretion considering the provisions of the Municipal Government Act , the circumstances of

the offence and Mr. Lewandowski’s own circumstances. 41 ) The minimum penalty cannot simply be ignored or treated as a helpful suggestion. The penalties are generally applicable. Judicial discretion has to be exercised bearing in mind that penalties are already set to address individual circumstances within the range set by the legislation, in the knowledge that minimum penalties may not be perfectly appropriate in some cases. The exercise of discretion must bear in mind the cost to predictability. Discretion should be exercised only when the minimum fine offends legal norms such as fairness and proportionality.

I should not exercise my discretion to remit a fine simply because I prefer another result or because I just don’t like the amount of the fine. Does the case “scream out” to be treated differently? 42 ) There may be situations, for example, where a merely technical breach of a provincial statute or municipal by-law would scream out for a reduced penalty. There may be no requirement for specific or general deterrence. Even a minimum fine may be seen as doing anything but promoting the respect for justice. In those cases, it may be reasonable to remit the penalty.

There may also be offences where the conduct is so serious that a remission of penalty would be wrong, and the principles of deterrence and denunciation have to trump the consideration of personal circumstances of the person. 43 ) The circumstances of the person who is called upon the pay the fine should be considered. That may involve his or her own financial situation and it may involve his or her actions. A minimum penalty may affect a person in a way that is grossly disproportionate having regard to that person’s income. Fines of course impact every person differently.

There are cases where that different impact is so pronounced that it is manifestly unfair, even when consideration is given to fine options programs and an extended period of time is allowed for payment. A fine is not proportional to the seriousness of the offence if the person will feel the impact of the fine in a way that is grossly disproportionate to others. In that situation a case may “scream out” for different treatment. 44 ) Some courts may also consider the actions of the person seeking the remission. For example, the principle of totality in law may not amount to a bulk discount on penalties.

It is difficult to see how, barring extraordinary circumstances, running up thousands of dollars in municipal fines should allow a person to assert that they are then unable to make such a large payment. A municipality is certainly free to reach an accommodation with a person who is willing to make partial payment. That does not mean that courts would automatically grant applications from people who have, for no justifiable reason, allowed the amount of their outstanding fines to grow. 45 ) In this case, the minimum fine is set at $100 each day. The result is a fine of $18,500.

The minimum fine is not discretionary. It is what it is. The Act is clear. If you plead guilty to an offence over 185 days, the minimum fine is going to be $18,500. Predictability counts for something. 46 ) Mr. Lewandowski was in breach of the by-law. This was not a “mere” technicality. It was not a matter of a few inches in measurement, a few days in filing or good faith efforts that failed to quite make out a defence. No one could say he was almost in compliance but for one small issue or that he “missed it by that much”.

The house was simply not in compliance with the by-law because it had too many bedrooms. 47 ) There is nothing in the circumstances of the infraction that has been identified as taking it outside the norm. But the issue again, is not what I believe to be the right fine. The issue is whether this situation is one where the statutory minimum should give way to other principles. 48 ) The remission is being sought here not because of any financial hardship on the part of Mr. Lewandowski. He was the owner of a valuable income property which he operated in the city’s south end for many years.

In the sale of that property he incurred an additional cost, being the fines imposed for the by-law breaches. There is no question that the fine is substantial. It is supposed to be. It must be seen in the context of the value of the property and the substantial income it generated over the course of a number of years. The rent from the home was estimated to be $5000 each month. The fine is actually only somewhat more than one half the amount of rental income earned over the period of the breach. The fine is not outside the range of fines that people are called upon to pay in these kinds of situations.

49 ) Mr. Lewandowski is retired but is not of very limited means. There is no suggestion that the fine here will have a grossly disproportionate impact on him. 50 ) The application has been made because there was a misunderstanding as to the practical implication of the guilty plea. He wrongly assumed that the maximum fine would be $10,000. That is unfortunate. The principle, if it can be called a principle, that this offends, would be the principle that one’s expectations should not be defeated.

That is not a principle upon which setting aside the minimum penalty established by the legislation could be justified. To do so, would be to exercise discretion in a way that did not apply principles that were rationally connected to the legislation. 51 ) Mr. Lewandowski has made laudable contributions to his community. He and his wife are by all accounts very good citizens and have been for many years. The Remission of Penalties Act does not give me the arbitrary power to remit fines for people to whom I’d just like to give break. 52 ) In this case, Mr. Lewandowski must pay the full amount of the fine, $18,500.