R v Eau Claire Distillery Ltd., 2023 ABCJ 160

In the Alberta Court of Justice Citation: R v Eau Claire Distillery Ltd., 2023 ABCJ 160 Date: 20230712 Docket: 210207866P1 Registry: Calgary Between: His Majesty the King - and - Eau Claire Distillery Ltd. Sentencing Decision of the Honourable Justice S. Mah [ 1 ] I found Eau Claire Distillery Ltd. (“Eau Claire”) guilty of the offence of contravening s 67(4)(

d) of the Safety Codes Act , RSA 2000, c S-1 (the “ Act ”), by failing to carry out the actions required in an order of a Safety Codes Officer, issued on December 7, 2020 (the “ Safety Codes Order”). The Crown proceeded summarily. This is my decision on sentencing. [ 2 ] There are some relevant dates to keep in mind for the purposes of this sentencing decision.

These dates are: 1) December 20, 2020 – Eau Claire is issued the Safety Codes Order requiring them to perform certain actions by January 31, 2021; 2) February 1, 2021 – the timeframe set out in the Safety Codes Order passes and Eau Claire is not in compliance with the Safety Codes Order; 3) March 1, 2021 – the information is sworn, charging that “on or about the 1 st day of February 2021 … Eau Claire … did unlawfully contravene s 67(4)(

d) of the Safety Codes Act by failing to carry out the actions required in the Order” (the “Information”). A period of 28 days has lapsed between the expiry of the period set out in the Safety Codes Order and the swearing of the Information. 4) October 19, 2022 – the trial commences.

Eau Claire is not in compliance with the Safety Codes Order; 5) February 24, 2023 – Eau Claire is convicted by this Court; 6) April 14, 2023 – Sentencing hearing commences, and the Crown alleges Eau Claire is still not in compliance with the Safety Codes Order; 7) June 8, 2023 – Sentencing hearing continues, and the Crown alleges Eau Claire is still not in compliance with the Safety Codes Order; [ 3 ] The parties agree this is a first offence for Eau Claire under the Act and this case involves a “continuing offence” as described in s 68(1)(a)(

i) of the Act , but there is significant disagreement around how to approach sentencing when a continuing offence is present. The parties adopted markedly different positions for sentencing on April 14, 2023 and June 8, 2023. [ 4 ] The issues in this sentencing decision are: (1) the quantum of fines; (2) what is the proper end date of a continuing offence for the purpose of sentencing; and (3) whether this Court should exercise its discretion to order Eau Claire to comply with the Safety

Codes Order by a particular date. Initial Sentencing Position of the Crown on April 14, 2023 [ 5 ] The Crown’s position was that no appropriate penalty can be determined until Eau Claire complies with the Safety Codes Order as Eau Claire was still not in compliance with the Safety Codes Order on April 14, 2023. The Crown proposed a two-stage sentencing process. As a continuing offence, the Crown was seeking first an order from this Court under s 68(2) of the Act , ordering Eau Claire to comply with the Safety Codes Order by a specific date. Second, the Crown was seeking the following: 1) an initial fine in the amount of $25,000 for the first offence pursuant to s 68(1)(a)(

i) of the Act ; 2) a fine in the amount of $200 per day for 752 days being the number of days between February 2, 2021 to February 24, 2023 (date of conviction) for a sum equal to $150,400; 3) a further fine in the amount of $500 per day from February 25, 2023 through to the date an order from this Court is issued; 4) a fine in the amount of $1,000 per day from the deadline in an order issued by this Court directing compliance until compliance with the order issued from this Court; and 5) mandatory victim surcharge.

Initial Sentencing Position for Eau Claire on April 14, 2023 [ 6 ] Eau Claire’s position was an initial fine in the amount of $5,000 plus a daily fine of $20 multiplied by 549 days, being 18 months, for a total fine in the sum of $15,980.

Eau Claire argued the 18-month, or 549 days, end point of the daily fines should correspond with the Supreme Court of Canada’s indication that provincial court trials ought to be concluded within 18 months of the charges being laid ( R v Jordan , 2016 SCC 27 at para 5 ). [ 7 ] Both initial sentencing positions were novel, so I asked counsel to address the following: (1) the meaning of a “continuing offence” under the Act ; and (2) the relevance and purpose of the date the Information is laid.

In addition, I asked the Crown for any legal authority that supports its position that the Safety Codes Officer could not issue another order for non-compliance given its position that Eau Claire continues not to comply with the Safety Codes Order after conviction. I adjourned the sentencing hearing for counsel to provide further submissions. The continuation of the sentencing hearing was heard on June 8, 2023. Crown’s Amended Sentencing Position on June 8, 2023 [ 8 ] In its amended position, the Crown concedes that a daily fine cannot be imposed after the date of conviction.

The Crown’s amended position is that a continuing offence occurred each day from February 1, 2021 to the date of conviction, being February 24, 2023. [ 9 ] The Crown also argues that the Safety Codes Officer in this case could not issue another compliance order as this would result in an amendment and variation to the Safety Codes Order which is not permitted. The Crown did not refer me to any case law or legislative authority for this position.

Eau Claire’s Amended Sentencing Position on June 8, 2023 [ 10 ] Eau Claire also amended its original sentencing position and now argues for an initial fine in the amount of $5,000 and a daily fine of $20 for 28 days spanning from February 2, 2021, being the first day of the offence to March 1, 2021, being the date, the Information is laid.

Eau Claire argues that the offence can only be considered a continuing offence for the period specified in the Information. [ 11 ] Further, it follows that if Eau Claire continues not to comply with the Safety Codes Order after sentencing, another order could be issued against them by the Safety Codes Officer which could ultimately lead to higher fines if subsequently convicted. Analysis of the Crown’s Position Regarding Continuing Offence and the Scope for the Safety Codes Officer to Issue Another Order under the Act [ 12 ] In support of its position, the Crown relies on:

(1) Eau Claire’s admission of a continuing offence; (2) the case of R v Vu , 2012 SCC 40 , and the unreported sentencing decision in R v Byblos Bakery Ltd , dated April 4, 2019, Calgary [171071319P1 and 171386337P1] (ABPC); and (3) the statutory

interpretation of s 67(5) of the Act . Continuing Offence Admitted by Eau Claire [ 13 ] The Crown argues Eau Claire has admitted to continuing not to comply with the Safety Codes Order after the date of conviction, being February 24, 2023. Eau Claire’s counsel made submissions regarding the Eau Claire’s efforts to come into

compliance with the Safety Codes Order, but it is not clear that Eau Claire has made any such admission, particularly in regard to the offence continuing past the laying of the Information, given its amended sentencing position. Notably, I do not have an agreed statement of facts for this sentencing, so I do not find any admission was made by Eau Claire.

Continuing Offence Based on R v Vu and R v Byblos Bakery Limited [ 14 ] The Crown relies on Vu for its definition of a continuing offence and the unreported sentencing decision in Byblos Bakery for its position that an offence continues until the date of conviction. Vu involved a mens rea offence. The issue before that court was whether kidnapping was a continuing offence or whether the ongoing offence became unlawful confinement after the initial kidnapping occurred.

I find Vu to be distinguishable from this case, which involves a strict liability offence where mens rea is not required. [ 15 ] The Crown relies on Byblos Bakery for its argument that Eau Claire can be fined for each day it remained in non-compliance with the Safety Codes Order up to the date of conviction. In that case, Byblos Bakery pled guilty to failing to comply with a Safety Codes order under s 67(4)(

d) of the Act requiring it and an individual to ensure its sprinkler system was free of deficiencies. The initial offence occurred on September 19, 2016, the information was laid on September 15, 2017, compliance with the order occurred sometime in November 2017, and the conviction date was April 4, 2019. I do not have any indication as to the date the order was issued to Byblos Bakery, but Byblos Bakery was shut down by the Safety Codes Officer for some time. Byblos Bakery eventually complied with the Safety Codes order after the date of the information, but before the conviction date.

Sentencing proceeded by joint submission with an agreed statement of facts. It was a first offence for Byblos Bakery. The parties in Byblos Bakery jointly submitted to a fine in the amount of $45,000, which was accepted by the sentencing judge.

There was no consideration or discussion given to a daily fine for the offence. [ 16 ] I find Byblos Bakery case of little assistance in my sentencing decision for the following reasons: 1) The information in Byblos Bakery was laid approximately 12 months after the date of the first occurrence and compliance with the Safety Codes order occurred approximately two months after the date of the information. The non-compliance by Byblos Bakery was approximately one year in total, plus the two months after the laying of the information.

In this case, the information was laid against Eau Claire 28 days after the date of occurrence and compliance with the Safety Codes Order remains to be determined; 2) The penalty in Byblos Bakery was determined by joint submission and agreed statement of facts, neither of which are present in this case; 3) There was no discussion in Byblos Bakery on how the fine of $45,000 was determined; and 4) There was no discussion in Byblos Bakery as to whether the fine of $45,000 included an allocation for a continuing offence, nor whether a per diem fine was applicable to a continuing offence and if so, the start date and end date of the continuing offence. [ 17 ] I find Byblos Bakery distinguishable from the present case for all the reasons outlined in the paragraph above.

Continuing Offence Based on Section 67(5) of the Act [ 18 ] The Crown also argues that s 67(5) of the Act supports its position that a continuing offence means an offence for each day or part of a day on which the offence continues to the date of conviction. The Crown’s view is that a person who is guilty of an offence under the Act is liable on conviction for each day the offence continues. The Crown did not provide any case law to support its

interpretation of s 67(5) of the Act . [ 19 ] Section 67(5) of the Act is found under the heading of Offences and reads as follows: “A person who is guilty of an offence under this Act is liable on conviction for each day or part of a day on which the offence occurs or continues.” [ 20 ] I disagree with the Crown’s

interpretation of s 67(5) of the Act for the following reasons: (1) the case law provided by Eau Claire; (2) general sentencing principles; and (3) other case law reviewed by this Court. [ 21 ] Eau Claire relied on two cases. First, Ontario Ministry of Finance v 1375923 Ontario Inc , 2022 ONCJ 277 (“ 1375 ”) concerned an appeal on multiple tax convictions relating to both a corporation and an individual, many of which attracted daily penalties. Justice Prutschi noted that the defendants remained in non-compliance at the time of his appeal decision (para 76).

According to Justice Prutschi, the fact that the defendants remained in non-compliance at sentencing was irrelevant as they were only facing the charges set out in the information, which included a specific date range during which the offences occurred: “Regardless of whether the offender remained in default or non-compliance, a penalty should not be imposed for behaviour that took place after the laying of the Information.” (para 80) [ 22 ] Second, in R v Goebel , 2003 ABQB 422 , Justice Slatter, then of the Alberta Court of Queen’s Bench, held that the phrase “on or between the 22 nd day of March 2001 and up to and including the present…” in the information, which was dated October 10, 2001, meant up to and including the date of the information was laid, not the date of conviction or sentencing (para 80).

Although Justice Slatter was not directly considering whether the fines against the defendant for non-compliance could continue beyond the date of the information was laid, Eau Claire argues that Justice Slatter’s reasoning supports the argument that Eau Claire should only be subject to fines for failing to comply with the Safety Codes Order during the period between February 1, 2021 to March 1, 2021 as set out in the Information.

[23] The Crown argues the 1375 case is distinguishable because it involved both mens rea and strict liability charges, and theapplicable legislation in the 1375 case had a different penalty provision as compared to the Act. The Crown argues the Goebel case isalso not comparable because the penalty provision under s 73 of the Public Health Act, RSA 2000, c P-37, is different from the penaltyprovision under s 68 of the Act. [24] I agree with Eau Claire’s

interpretation of 1375 and Goebel. The 1375 case did contain strict liability offences and both casesspecifically addressed the end date of a continuing offence for the purpose of sentencing. Although the wording of the penalty provisionsin both cases is not identical to s 68 of the Act, both 1375 and Goebel analyzed the penalties for strict liability offences on each day theoffence continued past the date of the information and Justice Slatter referenced in Goebel that with respect to some counts in theinformation the statutory penalty was to be calculated daily.

Although in both cases the offences continued after the date of theinformation, neither court imposed fines beyond the date of the information. I also find support for Eau Claire’s

interpretation that theend date for a continuing offence is the date of the laying of the Information in general sentencing principles as well as additional caselaw beyond what was provided by either counsel. [25] With respect to general sentencing principles, failing to carry out the direction set out in the order under the Act constitutes aprovincial offence and therefore the Provincial Offences Procedure Act, RSA 200, c P-34 (“POPA”) applies.

Section 3 of POPA sets outthat, subject to any inconsistencies,

summary conviction provisions under the Criminal Code, RSC 1985, c C-46, apply to provincialoffences. Under s 788 of the Criminal Code,

summary convictions are commenced by the laying of an information.

Section 581 of theCriminal Code sets out the requirements for indictments and information, including that an information should establish in detail thespecifics of the offence being charged.

Subsection 581(3) of the Criminal Code provides that a count shall contain sufficient detail ofthe circumstances of the alleged offence to give the accused reasonable information with respect to the act or omission to be provedagainst him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count. [26] In The Queen v Côté, (SCC), [1978] 1 SCR 8 at 13, Justice Grandpre indicated that the purpose of aninformation or indictment is to inform an accused of the specifics of the offence with which they have been charged so that they have theopportunity to make a full defence: “… the golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility ofa full defence and a fair trial.

When, as in the present case, the information recites all the facts and relates them to a definite offenceidentified by the relevant

section of the Code, it is impossible for the accused to be misled.” [27] This golden rule provides support that Eau Claire can only be sentenced in relation to the offence it was charged with in theInformation. As the Information only states that Eau Claire failed to comply with the Safety Codes Order from February 1, 2021 toMarch 1, 2021, Eau Claire has only been convicted with an offence related to that period of time.

Fining Eau Claire for periods outsidethe time established in the Information would be contrary to Justice Grandpre’s “golden rule” as it would impose a sentence upon EauClaire for an offence for which it has neither been charged nor convicted, even if Eau Claire is not yet in compliance with the SafetyCodes Order. [28] A few other cases are also noteworthy for how they deal with the issue of non-compliance with a Safety Codes order after thedate of the information. For instance, the decision of Justice Fradsham in R v Pacer Signature Homes Inc, 2005 ABPC 332 (“Pacer”) isapplicable to the present case.

In that case, the corporate defendant Pacer did not comply with Safety Codes orders and on November 18,2004, the following information was issued: “Between the 3rd day of August 2004 and the 3rd day of November 2004, … did unlawfully contravene an Order of a Safety Codes Officer dated the 6th day of April 2004….” (at para 1) Pacer was also issued an otherwise identical charge regarding a second home on the same day (para 2).

Pacer came into compliance withthe orders on or around October 3, 2005, which was approximately 18 months after the orders were served, 15 ½ months after thedeadline set in the orders, and 16 days before the scheduled trial (para 13). [29] In determining the sentence, Justice Fradsham noted that the purpose of the offences under s 67(4)(

d) of the Act “is topreserve the integrity of this public safety legislation by providing sanctions against those who fail to obey orders made by Safety CodesOfficers” (para 24).

Given this purpose, the eventual compliance with the orders by Pacer was largely unimportant: “Accordingly, whether the accused eventually complied with the Order is, with two exceptions which I will discuss later in theseReasons, of no significance in sentencing.” (at para 25) [30] The two exceptions mentioned by Justice Fradsham were whether the timeline to comply with the order was reasonable, andthe timeframe taken by the accused to comply with the order (para 27). [31] Justice Fradsham set out that how long it took for Pacer to come in compliance with the orders after the period set out in theinformation could be a relevant sentencing consideration but only as either a mitigating or aggravating factor (para 27). [32] In summarizing his reasons for arriving at the chosen fine, Justice Fradsham limited the offence to the period set out in theinformation, even though Pacer’s failure to comply with the orders extended well beyond the date of the information.

At paragraph 30 ofhis decision, Justice Fradsham said: “Taking into the account all of the matters I have set forth, including: 1. The length of time over which the offence took place (August 3 to November 3, 2004); 2. The fact that Pacer could have complied in a much more timely fashion simply by providing to the City in 2004 that which itprovided in October 2005;

3. The need to maintain the integrity of the Safety Codes Officer Order regime; and 4. That the delict which gives rise to the two charges is really one and the same…” [33] Though the evidence was uncontroverted that Pacer did not comply until well after the time set out in each information, theactual offences for which Pacer was sentenced were confined to what was set out in each information, namely August 3 to November 3,2004.

Evidence of Pacer’s continued non-compliance beyond the period referenced in each information was only considered as anaggravating factor rather than attracting fines daily. [34] The Nova Scotia Provincial Court case of R v Rockwell, 2009 NSPC 23 (“Rockwell”), is another case that dealt withsentencing in a situation where there was continued non-compliance after the date of the information.

The information in Rockwellprovided that: “Between July 25, 2007 and January 25, 2008 … did allow the land to be used in a way not permitted contrary to section 35(3) of theHalifax Peninsula Land Use By Law, pursuant to S 505(1) of the Municipal Government Act …” (at para 1). The offender’s failure to comply continued until at least July 2008 and possibly longer (paras 7-8). The legislation governing the chargeallowed for an initial fine to be imposed and indicated that “[e]very day during which an offence pursuant to subsection (1) continues is aseparate offence” (para 11).

The Crown argued before Judge Sherar that the offence should be considered a continuing one and a finecould be imposed for each of the 185 days set out in the Information (para 13).

Judge Sherar held that the continuing nature of theoffence, and daily fines, only applied during the period set out in the information laid against the offender (paras 65-68). [35] Further, Justice Slatter in Goebel discussed the meaning of the phrase “each day or part of a day on which an offencecontinues”, which is essentially shared by s 67(5) of the Act and s 4(2) of POPA, as constituting a separate offence in paragraph 34 of hisdecision: “When an order is made, it would rarely be possible to charge the owner of the property with a breach the very next day, as there wouldbe very few breaches that could, even with due diligence, be remedied over night.

However, at some point the time would come when abreach would occur, and from that day forward s 4(2) of The Provincial Offences Procedure Act states that each day that passesconstitutes a new offence.” [36] In my view the purpose of s 67(5) of the Act is to legislatively permit new offences, daily if necessary, so there can bemultiple offences against the same entity if there is a failure to comply. The Crown’s

interpretation of s 67(5) would mean one offencecontinues until the date of conviction which would deny the accused the ability to raise any future due diligence defence after the layingof the information. [37] As discussed, the Crown argued the Public Health Act, as considered by Justice Slatter, did not contain a provision equivalentto s 67(5) of the Act and, therefore, the Goebel case should be distinguished. However, the Crown failed to acknowledge that section67(5) of the Act and section 4(2) of POPA, which applies to offences under the Act and the Public Health Act have the same purpose.

Itis my view that s 67(5) of the Act is to be interpreted such that each day the offence occurs or continues constitutes a new offence whichis consistent with s 4(2) of POPA. [38] Accordingly, following Eau Claire’s referenced cases, general sentencing principles and the additional cases I have referred toabove, in this case the offence occurred on February 1, 2021, and that same offence continued to March 1, 2021, being the date theinformation was laid. The continuing offence was for a period of 28 days.

Any continued non-compliance with the Safety Codes orderby Eau Claire after this date is only relevant as a potentially aggravating factor in determining the quantum of a fine to be issued againstEau Claire. Court Order Directing Eau Claire to comply with the Safety Codes Order by a Particular Date [39] Section 68(2) of the Act provides that if a person is guilty of an offence, the court may, in addition to any other penaltyimposed or order made, order the person to comply with the Act or any order as the case requires. As indicated by use of the permissive“may,” the issuance of a Court Order under this

section is discretionary. [40] The Crown argues a court order is necessary as Eau Claire has not complied with the Safety Codes Order. The Crown alsoargues that it would be improper for the Safety Codes Officer to issue a new order under the Act to address the same concern that isbefore this Court before this case has been concluded. Doing so, it is argued, would be a violation of the principle in R v Kienapple, (SCC), [1975] 1 SCR 729, excessive on a totality analysis, and possibly a breach of the Charter.

In addition, the Crownsuggests that a new order could be considered a revocation, variation, or extension of the previous Safety Codes Order, and an inefficientuse of both enforcement and court resources. [41] The Crown did not provide any cases to support the issuance of a court order, or to demonstrate under what type ofcircumstances the issuance of such a court order would be appropriate. [42] It is my view that any accused is entitled to a full defence and due process.

Concerns regarding inefficient use of enforcementand court resources should not override the accused’s rights to full defence including a due diligence defence. I dismiss this submissionmade by the Crown to justify the issuance of a court order because of inefficiency. [43] The issuance of a court order would be an escalation of the enforcement of the Safety Codes Order.

I decline to exercise mydiscretion to issue a court order, at this time, for three reasons: (1) this is a first offence for Eau Claire under the Act; (2) the Act itselfprovides another process for escalation of enforcement; and (3) the Crown did not identify any reasons which would justify the issuanceof a court order before other statutory processes were applied for a first offender.

[44] First, I have convicted Eau Claire on charges laid on March 1, 2021, for an offence that occurred on February 1, 2021 andcontinued to March 1, 2021. This is a first offence under the Act for Eau Claire as acknowledged by both parties. [45] Second, I have determined that the relevant end date of a continuing offence is the date the information is laid and not theconviction date. Before escalating the enforcement of the Safety Codes Order to a court order for a first offender, it is available to theCrown to charge Eau Claire for an offence on or after March 2, 2021, should they so choose.

As I have already explained, s 67(5) of theAct permits each day the offence occurs or continues to constitute a new offence. This allows for a statutory process to address asubsequent failure to comply with the Act that significantly escalates the amount of the fines facing a repeat offender. Section 68(1)(b)of the Act contemplates a significantly higher penalty for a second or subsequent offence.

For a second offence the penalty is a fine ofnot more than $500,000 and in the case of a continuing offence, to a further fine of not more than $2,000 for each day or part of a dayduring which the offence continues after the first day. A second offence after March 2, 2021, would not be considered the same matteras the current Information because there would be a new information for setting out a different period of time during which an offenceallegedly occurred.

Charging Eau Claire after they have been convicted for further lack of compliance, provided it was outside the timeperiod of the first information, remains in the discretion of the Crown and the Safety Codes officer. [46] Third, I note that a Safety Codes officer has been working with Eau Claire for at least seven years to inform Eau Claire andinspect the facility in relation to the Safety Code requirements.

The Safety Codes Officer testified at trial she did not consider it necessaryto issue an order to shut down the distillery even when Eau Claire installed a second still which doubled their production capacity despiteEau Claire not being in compliance with the requirements of the Act. As there were no submissions made regarding any immediateissues that urgently require compliance, I do not see any justification for direct intervention via a court order. [47] I will next address the Crown’s argument that a new Safety Codes order could be a revocation, variation or extension of theprevious Safety Codes order.

The Crown did not refer me to any legal authority that would explain how failing to comply with anotherorder issued by a Safety Codes officer could subsequently be a revocation, variation or extension of a previous order, especially after aconviction has already been made regarding the first order.

I dismiss this argument made by the Crown as the Act specifically permitsdaily convictions and fines, which implies that multiple, or even daily, Safety Code orders can be issued. [48] I will next address the Crown’s argument that a new Safety Codes order, and subsequent information, would offend theKienapple principle, the principle of totality, and possibly the Charter. Kienapple concerns the rule against multiple convictions foressentially the same offence. In my view the Kienapple principle would not be applicable as ss 67(5) and 68 of the Act, and

section 4 ofthe POPA, specifically set out that continuing offences can attract new daily convictions and penalties. My view is supported by thedecision in R v Côté, (SCC), [1975] 1 SCR 303. At page 318 Justice Pigeon referred to a passage in R v Siggins (ON CA), [1960] OR 284, with approval: Justice MacKay wrote at page 287 of Siggins that: “It would be clearly wrong to charge a man who had possession of stolen goods for a continuous period of one month with separatecharges for each day of that period.

It is only where the statute creating the offence provides that it shall be a separate offence or thatseparate penalties may be imposed for successive periods that a continuing offence can be treated as multiple offences.” [49] Justice Pigeon went on to say at page 319, that: “This must obviously be read in the context of the case: only one charge, based on an offence committed prior to the first conviction, wasinvolved. At a later date the situation is different, because a conviction certainly does not relate to the future.

An accused does notbecome entitled to continue breaking the law because he has been convicted once. Thus, there is no doubt that a person convicted ofkeeping a common bawdy-house may be convicted a second time if he continues to do so: this is implicit in subs. 4 of s. 193.

The rulethat charges must not be multiplied applies to that offence as to any other; but there is no undue multiplication of charges when anotherinformation is laid after the first conviction, if the violation continues.” [50] Sections 67(5) and 68 of the Act specifically contemplate that continuing offences can attract daily convictions and penalties,and

section 68.1 of the Act even identifies a three-year limitation period. Charging Eau Claire for further lack of compliance, provided itwas outside of the time period set out in the first Information, would be exactly the type of situation Justice Pigeon was referring to inCôté.

With respect to the Crown’s argument regarding a potential second charge offending the totality principle and possibly breachingthe Charter, I again have considered these arguments in the context of legislation that specifically authorizes daily convictions andpenalties, as well the Crown’s failure to find legal authority to support these arguments. I therefore dismiss these arguments by theCrown given the specific provisions of the Act that specifically permit the very thing they are arguing against.

The Appropriate Sentence for Eau Claire [51] I now turn to sentencing Eau Claire. [52] Various decisions have discussed general regulatory sentencing considerations. In R v French, 2019 ABPC 149 at paras 41-42, Justice LeGrandeur summarized these considerations: “The Alberta Court of Appeal in the case R v Terroco Industries Ltd, 2005 ABCA l41 (Terroco) sets out a number of factors that should be considered in regulatory offence sentencing. The Terroco case was an environmental protection case as opposed to a wildlife case but the sentencing factors referenced in the case speak to public welfare

offences generally and are not restricted to environmental protection offences. Accordingly, the case offers guidelines for sentencing purposes with respect to the public welfare offences before this Court.

Sentencing considerations referenced therein that may be applicable in this case are as follows: - failure to take simple and inexpensive steps to avoid the unwanted consequences prior to the act is an aggravating factor. (Para 36) - was this offence a near-miss in terms of due diligence or did it demonstrate carelessness at a higher level such as exhibiting wilful blindness, recklessness or intent? (Paras 36-37) - is there any prior record of regulatory offences? (Para 38) - is post-offence conduct evidence of remorse in the circumstances of the case before the court? (Para 41) - was actual harm established? (Para 45) - absence of harm is a neutral factor only. (Para 47) - is specific and general deterrence a key component of sentencing for the offences before the court? (Para 53) - is the offender a small corporation of limited means? - the starting point for sentencing a corporate offender must be such that the fine imposed appears more than the licensing fee for illegal activity, the penalty must be more than a slap on the wrist but less than a fatal blow (Para 60) - the penalty imposed should have a deterrent effect on others. - did the offender persist after being warned?

The extent to which any of these factors play a role in forming the sentencing decision in any case is of course dependent upon the circumstances of the case and the individual before the court. Ultimately the sentence must fit the offence and the offender recognizing the nature of the offence in the context in which it occurred and the actions of the offender.” [ 53 ] Justice Watson in R v General Scrap Iron and Metals Inc , 2003 ABQB 22 , urged courts to be careful about striking a fair balance when imposing a fine on a corporation.

The quantum of a fine should be factually connected to the corporation’s culpability, should foster a co-operative regulatory atmosphere, and should be proportional. In particular, at paras 44-45 Justice Watson said: “When the law speaks to corporations through sanctions, it should do so in a manner which is logically coherent with the factual level of culpability of the corporation; To approach the matter otherwise might encourage a corporate perspective or belief that efforts to avoid negative consequences through safety efforts will have little effect in sanction calculation.

It might also encourage a corporate perspective that co-operation with the authorities in the safety-oriented supervision process - notably through self-reporting as contemplated by cases like Fitzpatrick – will also get no credit in the event of regulatory violation. Creation of an adversarial atmosphere as compared to a co-operative regulatory atmosphere, arguably, would not necessarily advance denunciation and deterrence….”

[54] In terms of a decision specific to the Act, Justice Fradsham’s decision in Pacer is applicable. Paragraphs 18-22 and 27 fromthat decision provides useful guidance. At paras 18-22 he wrote: "Safety Codes Officers are given extensive powers under the legislation.

Section 49 provides that a Safety Codes Officer may issue: “an order if the safety codes officer believes, on reasonable and probable grounds, that (

a) the Act is contravened, or (

b) the design, construction, manufacture, operation, maintenance, use or relocation of a thing or the condition of a thing, process or activity to which this Act applies is such that there is danger of serious injury or damage to a person or property.” In my view, those orders are an integral part of achieving the objects of the legislation. The subject matter of the Safety Codes Act, supra, is such that those on the “front lines” must be able to give immediate and enforceable directions to those who are creating a safety concern.

The mechanism for making such orders must, of necessity, be capable of being invoked rapidly and by those who discover the hazard. Of course, due process is preserved because a person to whom an order is issued may appeal the order to the Safety Codes Council, and from there appeal to the Court of Queen’s Bench. The importance of the power granted to Safety Codes Officers to issue orders is highlighted by section 67(4) which states: “A person who...(

c) contravenes an order, or (

d) fails to carry out any action required in an order to be taken within the time specified init, is guilty of an offence.” The Safety Codes Act, supra, is, in the words of Blair, J. A., in R. v. Cotton Felts Ltd. (1982) (ON CA), 2 C.C.C. (3d) 287 (Ont. C.A.), at p. 294: “part of a large family of statutes creating what are known as public welfare offences.... Examples of this type of statute are legion and cover all facets of life ranging from safety and consumer protection to ecological conservation.

In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all. To a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations. The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute.

Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence...” I agree that the predominant sentencing objective in this case is deterrence, both general and specific. Having said that, it is important to understand what one is trying to deter.”

[ 55 ] He continued at para 27: “I suggest that the following non-exhaustive list of factors be considered when sentencing offences under sections 67(4)(

c) and (d): l. The length of time stipulated within the Order for compliance. Was a reasonable amount of time given for completion of the actions required by the Order? In determining that, one must consider what was required by the Order, the time it would take to complete the tasks, and the cost involved. Further, in considering the reasonableness of the time allotted for complying with the Order, one must consider what, if any, warnings were given to the offender before the Order was issued.

For example, had the offender been given early warning of the problem, but, for inadequate reasons, chosen to take no remedial steps until the Order was issued? 2. Is there a history of non-compliance with previous Orders? 3. Was there eventual compliance with the Order? If compliance occurred shortly after the deadline set by the Order, that may be a mitigating factor if the remedial actions had been commenced in a timely fashion and simply took longer than had been reasonably expected (though in such a case, I should think it is likely that the Crown would exercise its discretion not to prosecute).

Unwarranted delay in compliance, or continued non-compliance, will be an aggravating factor. 4. What harm was being addressed by the Order? It will be an aggravating factor if the Order not obeyed was aimed at averting serious harm, or even less serious harm if that harm was likely to occur.

However, an absence of potential serious harm, or an absence of a significant likelihood of less serious harm, will not be a mitigating factor because it is the act itself of disobeying the Order which strikes at the efficacy of the legislation.” [ 56 ] I am guided by these sentencing cases and principles in making my decision regarding the quantum of the fine to be issued to Eau Claire. I have considered as a mitigating factor that this is a first offence for Eau Claire under the Act . I have considered the following aggravating factors: 1) The Act requires all owners to meet the requirements of the Act .

The language is mandatory and requires an owner, on its own, without inspection, to meet the requirements of the Act ; 2) Eau Claire has had at least seven years to understand the relevant portions of the National Fire Code – 2019 Alberta Edition , (“ Fire Code ”) and the Fire Department has tried to work with Eau Claire despite non-compliance during this period of time. Eau Claire was aware that it was not in compliance with the requirements of the Fire Code for at least seven years and given warnings before an order was issued; 3) This is a significant public safety matter.

Eau Claire is in the business of distilling alcohol, a combustible or flammable liquid. Distilleries are classified as high hazard industrial occupancy which means an industrial occupancy containing sufficient quantities of highly combustible and flammable or explosive materials which because of their inherent characteristics, constitutes a special fire hazard.

This is one of the highest categories for safety under the Fire Code ; 4) Eau Claire’s distillery business is located on one of the main streets in Diamond Valley; 5) Eau Claire could have complied with the Safety Codes Order at any time through the electrical engineers they have engaged; 6) The failure to provide the hazardous zoning report required by the Safety Codes Order undermined the Safety Codes Officer by denying the officer the information necessary to assess the risk.

Absent the hazardous zoning report, the Safety Codes Officer was prevented from fulfilling the officer’s obligations under the Fire Code ; 7) There was a collateral attack by Eau Claire to the Safety Codes Order despite Eau Claire not exercising its right to appeal the issuance of the Safety Codes Order under the mechanism; 8) Eau Claire has made no acknowledgement of wrong doing and expressed no remorse; and 9) Eau Claire remained non-compliant after the laying of the Informtion and at the date the trial commenced. [ 57 ] The absence of actual harm is a neutral factor.

Further, I have been provided with no information on the size of Eau Claire, the scope of its economic activity, or the financial standing of Eau Claire. I also note that Eau Claire did not make any argument that there was an unreasonable period of time to comply with the Safety Codes Order. [ 58 ] Deterrence, both general and specific, is of primary importance in public welfare offences. In addition, the purpose of the offences under s 67(4)(

d) of the Act is to preserve the integrity of public safety legislation by providing sanctions against those who fail to obey orders made by Safety Codes Officers. In R v Khalaf , 2017 ABPC 240 at para 21 , Justice MacDonald noted that fines against corporations must deter non-compliance and not merely amount to a licensing fee. I find Eau Claire’s position of a $5,000 fine plus a penalty of $20 per day for 28 days is exceedingly low and would be equivalent to a licensing fee in the current factual circumstances. [ 59 ] After considering all these factors, both mitigating and aggravating, I conclude that a fit sentence is:

1) An initial fine in the amount of $25,000 and a daily fine in the amount of $500 for 28 days, being $14,000, for a total fine in the sum of $39,000; 2) The mandatory victim fine surcharges; 3) Payment to be made to the Town of Diamond Valley; and 4) Default Judgment if Eau Claire fails to pay. Dated at the City of Calgary, Alberta this 12 th day of July, 2023. S. Mah A Justice of the Alberta Court of Justice Appearances: P. Frank H. Overli, KC for the Crown C. Alcock S. Black for the Accused