R. v. Nolis, 2012 ONCJ 664

File No. 4961 11 0339A Citation: R. v. Nolis , 2012 ONCJ 664 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN - v - PAUL NOLIS and CATHY NOLIS * * * * * * * * * S E N T E N C I N G * * * * * * * * * BEFORE HER WORSHIP JUSTICE OF THE PEACE M. COOPERSMITH on Monday, September 10, 2012 at RICHMOND HILL, Ontario * * * * * * * * * *

APPEARANCES B. HAMMOND Provincial Prosecutor * * * * * * * * * * Monday, September 10, 2012 MS. HAMMOND: Your Worship, there are two other matters on your nine o’clock tier to be addressed at this time, Cathy Nolis and Paul Nolis, appearing as lines four and five. THE COURT: And your ... MS. HAMMOND: Your worship .... THE COURT: Your name, please? MR. NOLIS: Paul Nolis. THE COURT: Thank you. MS. HAMMOND: It’s my understanding, Your Worship, that the matters that are before you are before you by way of sentencing. THE COURT: That’s correct.

S E N T E N C I N G COOPERSMITH, JP (Orally): The trial in this matter took place on March 15 th , 2012. Mr. Nolis then requested a date of July 9 th , 2012, for me to render my judgment. This date accommodated his need to be available as a substitute teacher during the school year. On July 9 th , 2012, neither Mr. nor Mrs. Nolis attended. They sent their daughter to court that day to advise they were in Las Vegas, having made their travel plans in May 2012 but failing to advise either the court or the prosecutor of this.

Therefore, I provided my judgment on July 9 th , 2012, finding both defendants guilty of the charge of failing to maintain a minimum distance for an accessory building or structure from the property line, contrary to the Town of Richmond Hill zoning By-Law 128-04, as amended. I then heard oral submissions from the prosecutor regarding penalty and provided the defendant until July 20 th , 2012, to provide written submissions on penalty. I received a facsimile from Mr. and Mrs. Nolis dated July 16 th , 2012. I have given careful consideration to submissions on penalty from both the prosecution and the defendants.

I’m going to start first going over the goals of sentencing in our provincial offences courts. MR. NOLIS: Your Worship, could you speak a little louder, if you don’t mind.

THE COURT: Yes. MR. NOLIS: I’m – I’m having – I don’t hear very well. THE COURT: The goals or objectives of sentencing that apply to all offences include general deterrence, specific deterrence, rehabilitation and protection of the public. Starting with general deterrence, that involves deterring the public generally from committing the offence. It is the most important sentencing goal for most regulatory offences. General deterrence is considered a primary concern in the matter before this court because of the “slippery slope” principle. If Mr. and Mrs.

Nolis believe they can continue to contravene the rear yard setbacks without significant repercussions being imposed, the precedent would be established and the Town of Richmond Hill would soon find its zoning bylaws with very little force and effect. These bylaws are important to ensure there are neighbourhoods where each resident can find reasonable enjoyment of their property without infringement of such enjoyment by their neighbours. As provided in the 1982 Ontario Court of Appeal decision in Regina v.

Cotton Felts Ltd. : “Without being harsh the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere licence fee for illegal activity.” The judgment goes on: “The amount must be one that would be felt by this defendant. It should also serve as a warning to others who might be minded to engage in similar ... activity that it will be costly for them to do so even if they do not succeed in their illegal aims.” Although deterrence may be accomplished without imposing a substantial fine, this is not going to happen in the case before me, as Mr. and Mrs.

Nolis have a history of noncompliance and have taken no steps to immediately rectify the breach. The next goal of sentencing is specific deterrence. It’s also an important goal of sentencing in regulatory offences. It involves deterring the specific offender before the court from committing the offence again. Given the history of this case and the fact that Mr. and Mrs. Nolis have previously been convicted of the same offence, any penalty I impose must be sufficiently high to serve as a warning to these defendants against complacency. The next goal of sentencing is protection of the public.

It is an important consideration for offences where public safety is an issue. I also view it as serving a commendable goal where people have to live peacefully and in harmony with their community and neighbourhood environments. Regulatory offences are not criminal offences. Activity is not prohibited by regulatory offences because it is inherently wrong. The activity is regulated because if left unregulated, it would result in danger to the public or, in the case before this court, disharmony in the community.

Municipal bylaws are essential to the public interest through ensuring standards of conduct, performance and reliability. The fourth goal of sentencing is rehabilitation. This is generally given less weight with regulatory offences than with criminal offences. Rehabilitation is given greater weight when sentencing young persons rather than older adult offenders. Nonetheless, given the history and circumstances of the matter before this court, rehabilitation to ensure future compliance is a sentencing goal for me to consider.

I’m going to move on briefly to the principles of sentencing. There are no sentencing principles or guidelines in the P rovincial Offences Act . They are enumerated under the Criminal Code , but not in the matter before the court. Nonetheless, proportionality, parity and totality are the most relevant principles for me to consider in the matter before me. Starting with proportionality, the sentence imposed must bear some relationship to the seriousness of the offence. It will depend on the particular circumstances of the offence, the offenders and the community.

Factors relevant to the offence include extent of potential harm; maximum penalty proscribed; nature and purpose of the statute; actual harm; whether the offence is a mens rea offence. This is not a mens rea offence. However, the potential for harm can be significant if the “slippery slope” mentality takes hold in the community. Another factor with respect to proportionality is relevant to the offender and includes the measures the offender took to avoid the wrong and the attitude of the offenders. Here, no measures were taken by Mr. and Mrs.

Nolis to bring the shed into compliance, even after their initial conviction for noncompliance. Furthermore, their submissions on penalty illustrate an attitude of recalcitrance and reluctance to accept the fact that their shed does not comply with the bylaws; and further, they do not seem to understand that such noncompliance cannot be condoned. With respect to proportionality and the community, I look at the nature of the area in which this noncompliance occurred. The shed is significantly close to the neighbour’s property – 18 inches. Mr. and Mrs.

Nolis are far from compliant with the rear yard setback of seven and a half metres, which is set, amongst other reasons, to foster a residential community where everyone can reasonably enjoy their own property without their neighbour’s shed looming just inches from their rear yard. Another principle of sentencing is parity. The principle of parity requires that similar penalties be imposed on similar offenders for similar offences in similar circumstances. It does not require that the penalties given to the people who commit the same offence be the same but does require that the differences be understandable.

The prosecutor is asking that I impose different monetary fines on each of the two defendants - $1,000 for Mrs. Nolis and $2,500 for Mr. Nolis. I am reluctant to impose these differing amounts as I have not been provided with any information which would lead me to find that one of the property owners is any differently situated than the other. They are both on title on the property - joint ownership. Either one of them can effect compliance, yet neither has taken any steps to do so. I cannot and do not find Mr.

Nolis any more or less responsible simply because he is the person representing both of them in these court proceedings. Another principle of sentencing is totality. Both defendants have been charged and convicted of the one offence. The fact that they are both listed on title on the same property gives rise to both of them being charged. Therefore, I must be careful and mindful of this in imposing penalties on each of them to ensure the penalties, taken as a whole, are appropriate and not excessive or duplicitous. Now, there are factors to consider in sentencing.

The penalty to be imposed will be determined by a complex of considerations, including the extent of actual and potential harm, which I’ve already touched upon, the maximum penalty prescribed by statute -

Section 57 of the Planning Act , R.S.O. 1990, c.P.13 as amended provides: “67(1) Every person who contravenes

section 41,

section 46, subsection 49(4) or

section 52 or who contravenes a by-law passed under

section 34 or 38 or an order made under

section 47 and, if the person is a corporation, every director or officer of the corporation who knowingly concurs in the contravention, is guilty of an offence and on conviction is liable, (

a) on a first conviction to a fine of not more than $25,000; and (

b) on a subsequent conviction to a fine of not more than $10,000 for each day or part thereof upon which the contravention has continued after the day on which the person was first convicted.”

This is a subsequent conviction. Subsection 67(2) goes on to deal with corporate defendants. That’s not what we’re dealing with here. Subsection 67(3) states: “Where a conviction is entered under subsection (1), in addition to any other remedy or any penalty provided by law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted.” A bove all, there is a significant need to enforce regulatory standards by deterrence.

As I have stated, I have also looked at the lack of measures Mr. and Mrs. Nolis have taken to rectify the noncompliance, the cost to them of doing so and their attitude towards this matter. Mitigating factors lead to a lower penalty while aggravating factors lead to a higher penalty. Both are facts about the defendants or the circumstances of the offence that, when considered in the light of the goals and objectives of sentencing, necessitate an increased or decreased sentence. Starting with mitigating factors, they justify a lower penalty than would otherwise be imposed, as I have stated.

These factors may relate to the offence or the offender. In the matter before this court I can find little if any hints of any mitigating factors. There has been a lack of cooperation by the defendants to work towards compliance. Instead Mr. Nolis seems intent on wanting the Town of Richmond Hill, the prosecution and the courts to come around to seeing things his way. In this vein, my July 9 th , 2012, judgment dealt with the frailties of the defendants’ arguments. Their July 16 th , 2012, penalty submissions illustrate that they still wish to convince me that the court should accept these unfounded arguments.

I’ll move on to aggravating factors, which are factors to justify an increase in the penalty which would otherwise be imposed. Now, aggravating factors include a record of regulatory offences – we have that; a lack of effort to minimize the damage caused by the commission of the offence – we have that; and the potential harm to people or property – I’ve touched on that factor as well. The manner in which the defendant conducted his defence, including giving evidence that is implausible, is not an aggravating factor.

In the interests of the administration of justice, the defendants have the right to make full answer and defence. Nor are the defendants being penalized for pleading not guilty, they are penalized for being found guilty. While remorse is a mitigating factor, lack of remorse is not an aggravating factor. However, given the defendants’ attitude towards continued desire to keep their non-complying shed where it is into the future, to some extent such lack of remorse is an aggravating factor in these circumstances.

Other aggravating factors include the prior conviction for their shed being close to the rear lot line, keeping in mind

Section 15 of the Regulatory Modernization Act ; the duration of the adverse effects upon the neighbouring property and the residents of the area – this matter dates back before 2009; the impact on their neighbours’ normal use and enjoyment of their property; the failure of the defendants to take the initiative with respect to complaints and minimizing these complaints; the extent of the lack of due diligence regarding what the law is and being compliant with it.

My judgment clearly showed that even if the previous act, prior to amendment, indicated a setback of less than seven and a half metres, it certainly was well over 18 inches. The next aggravating factor is the pursuit of an unreasonable alternative in the face of information about the most viable method to reduce or eliminate noncompliance. In other words, upon receiving a second letter of noncompliance, the defendants did nothing, leaving the shed where it was previously found to be non-complying instead of moving, removing or applying for a minor variance for it.

A fine of $50 imposed on each of the defendants last time does not replace a more costly application for minor variance or the higher cost of moving the shed.

Finally, although the prosecution is not asking for a fine to be imposed for each day of noncompliance, the defendants appear recalcitrant and have shown a long-term resistance to remedying the noncompliance over many years, as I have stated. In

summary, having reviewed the goals of sentencing and how they apply to the matter before me, having reviewed and applied the principles of sentencing, and having looked at the factors to consider, including any mitigating factors and aggravating factors, I am imposing a fine in the amount of $2,000 against the defendant Mr. Paul Nolis and a fine in the amount of $2,000 against the defendant Mrs. Cathy Nolis. Although

Section 67 of the Planning Act would allow this court to impose a prohibition order prohibiting the continuation of the offence, enforcement of such an order would then rest with the Town of Richmond Hill. Given the circumstances surrounding the commission of this offence, the history underlying the matter before this court, the belief that the defendants have shown little remorse or taken little responsibility for their conduct, nor shown any indication that they would do things differently in the future, and do not appear to appreciate the seriousness of their noncompliance with municipal bylaws - in all of these circumstances - I find that a probation order under

Section 72 of the Ontario Provincial Offences Act would be more effective than a prohibition order. Therefore, in addition to the monetary penalties, I am imposing a non-reporting probation order against each of the defendants, such order against each of them to be in effect for 12 months from today and to include the statutory terms, which are to notify the court of any change in their address, to appear before the court when required and not to commit other offences.

As well, given that a probation order also serves to assist in the rehabilitation of the offender, to ensure compliance with the laws that are violated I am imposing a term: to bring the shed at issue into compliance with the Town of Richmond Hill zoning bylaws prior to the expiration of this order or prior to the transfer or sale of the property upon which the non-complying shed is located, whichever occurs first. Do you still own the property, Mr. Nolis? MR. NOLIS: I do. THE COURT: And Mrs. Nolis? MR. NOLIS: She does. THE COURT: Then that term is appropriate. So that there .... MR. NOLIS: What is the term?

I’m sorry, I didn’t .... THE COURT: It will be on the order. I’ll repeat it: to bring the shed at issue into compliance with the Town of Richmond Hill zoning bylaws prior to the expiration of this order or prior to the transfer or sale of the property upon which the non-complying shed is located, whichever occurs first. MR. NOLIS: And what’s the expiration again? THE COURT: Twelve months from today. This .... MR. NOLIS: So I’m interpreting that meaning that within 12 months I move the shed. THE COURT: You may move it, you may remove it, you may apply and see if you can get a minor variance. Your choice, sir.

I’m not advising you how to bring it into compliance. MR. NOLIS: I’m not asking for advice. THE COURT: So that there is no misunderstanding, consequences of breaching this probation order are outlined on the order itself – you’ll see them – and include the imposition of a further fine of up to $1,000 or a jail sentence of not more than 30 days, or both; and the probation order, with the same or additional conditions, and for an additional period of up to a further year may be imposed.

Also be advised that a jail sentence for breach of probation may be imposed even if the original offence that caused the offender to be placed on probation does not carry a potential jail sentence. That is my sentencing.

MS. HAMMOND: Thank you, Your Worship. As for the $2,000 penalty, Your Worship, time to pay the $2,000 fine? MR. NOLIS: The matter has gone to appeal. I spoke with .... THE COURT: That’s fine, sir. You have to apply to have the fine held in abeyance. So how much time do you need to pay the fine? MR. NOLIS: In all due respect, I was advised by the appeal court that this matter – this fine not be paid until the appeal has been heard. July – I have the paperwork that on July the 25 th the appeal court did accept the – the appeal.

I questioned whether or not – and at the same time - I was unaware at the time of whatever the sentence may be. I was advised that I proceed with the sentencing; that I not pay until the appeal matter has been heard. THE COURT: Well, sir, unless you have that in writing – do you need more than 15 days to pay? If not you can go back to the people where you filed your appeal and ask them to hold it in abeyance if that is not – has not already been done. MR. NOLIS: I’m not sure - what do you mean by going “back to people.” The appeal court? THE COURT: Where you filed your appeal.

You can file a request to hold the fine in abeyance until your appeal is heard. If you have not taken that step, and I have no evidence before me that you have done so, then the fine is due within 15 days, unless you request further time. If you would like a year to pay the fine, I can give you a year. If you would ike six months, I can give you those six months. But advise me now how long you wish .... MR. NOLIS: We were unaware of the sentence, Your Worship, so therefore we couldn’t ask for the court to put it in abeyance. We were totally unaware of it at the time ... THE COURT: I agree, sir.

Now you’re aware ... MR. NOLIS: ... so as a result .... THE COURT: ... so now you can go request it. So do you want six months, three months, nine months, 12 months? MR. NOLIS: Three years would be good. This is a lot of money. THE COURT: How – how much? MR. NOLIS: Three years. THE COURT: Three – no, no, I won’t give you .... MR. NOLIS: Well, it took ... THE COURT: You know what I’ll do ... MR. NOLIS: ... three years to ... THE COURT: ... I’ll give you .... MR. NOLIS: ... get it to court, Your Worship ... THE COURT: I’ll give you ... MR. NOLIS: ... so I would think three years ....

THE COURT: ... a year, sir, to get this paid. MR. NOLIS: How many? THE COURT: One year. Thank you. MS. HAMMOND: Thank you very much, Your Worship. That concludes all my matters at this time. MR. NOLIS: Do I get something in writing? THE COURT: Okay. Mr. Nolis, if you’ll just wait outside these doors you’ll be served the probation order today, if you’ll just wait .... MR. NOLIS: I don’t understand what is a probation order. I don’t understand what this is. Can you explain it to me? THE COURT: Sir, I can’t give you ....

MR. NOLIS: Probation about what? This is a shed. I don’t understand ... THE COURT: Okay. MR. NOLIS: ... what you mean by probation. THE COURT: Officer, perhaps you can assist Mr. Nolis to find the door, and if he has legal questions he can get some legal advice.​ MR. NOLIS: Thank you very much, Your Worship. That .... THE COURT: You could wait just outside these doors. MR.

NOLIS: Thank you. * * * * * * * * * * THIS IS TO CERTIFY THAT the foregoing is a true and accurate transcription from the digital recording in the Ontario Court of Justice, held at 50 High Tech Road, Richmond Hill, which is recording number R3-4961-20120910, which has been certified in Form 1 and was prepared to the best of my skill and ability. .................................... Sandra Arrizza Court Reporter Transcript ordered..................... Transcript completed................... Transcript approved for release........ THIS IS NOT A CERTIFIED COPY UNLESS ORIGINALLY SIGNED