2021 QCCA 377, 2021 QCCA 377

Unofficial English Translation of the Judgment of the Court Bédard c. Directeur des poursuites criminelles et pénales 2021 QCCA 377 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003563-181 (200-36-002576-171, 200-61-184013-157) DATE: March 4, 2021 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. MARIE-JOSÉE HOGUE, J.A. SUZANNE GAGNÉ, J.A. RAYNALD BÉDARD APPELLANT – Defendant v.

DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS RESPONDENT – Prosecutor and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY – Impleaded Party JUDGMENT [ 1 ] The appellant, Raynald Bédard, appeals from a judgment rendered on July 19, 2018 by the Superior Court, District of Quebec (the Honourable Mr.

Justice François Huot), [1] which allowed the appeal of the AGQ and the DCPP from a judgment of the Court of Québec [2] which declared the minimum mandatory fine set out in s. 197.1 of the Building Act [3] inoperative with respect to the appellant, because it is contrary to s. 12 of the Canadian Charter of Rights and Freedoms . [4] [ 2 ] For the reasons of Hogue, J.A., with which Thibault and Gagné, JJ.A. agree; THE COURT : [ 3 ] DISMISSES the appeal. FRANCE THIBAULT, J.A. MARIE-JOSÉE HOGUE, J.A. SUZANNE GAGNÉ, J.A. Mtre Martin Villa SERVICES JURIDIQUES DE L’APCHQ INC.

For the appellant Mtre Laura Élisabeth Trempe DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent

Mtre Stéphanie Quirion-Cantin Mtre Anne-Sophie Blanchet-Gravel LAVOIE, ROUSSEAU (JUSTICE-QUÉBEC) For the impleaded party Date of hearing: November 5, 2019 REASONS OF HOGUE, J.A. FACTS [ 4 ] Until his retirement, the appellant was a project manager in the health sector. Since then, together with his spouse, he has operated a project management and interior design firm doing business under the name Solutions Gestion Design (“Solutions”).

Among other things, Solutions evaluates the needs of clients who are contemplating construction work, prepares the drawings and specifications, the budget estimates and the call for tenders documents, hires the professionals and supervises the work. [ 5 ] In the spring of 2013, the services of Solutions were retained by a couple who wished to install a bathroom in their home. [ 6 ] The appellant supervised the work.

Relying on the shop drawings provided by the manufacturer, he told the worker whose services the couple had retained where to install the drain and where the outlet for the faucet pipes should be located. [ 7 ] When the worker was about to install the equipment, however, he noted that the location of the drain differed from that indicated in the shop drawings. [ 8 ] The appellant therefore told him what modifications had to be made.

Since the worker did not have the necessary equipment, the appellant took the initiative to rent a jackhammer and to buy the plumbing equipment allowing for the work to be done. [ 9 ] From this moment on, the relationship between the appellant and the clients soured, leading to the resiliation of the agreement entered into with Solutions. [ 10 ] Shortly thereafter, the appellant received a statement of offence charging him with violating s. 46 of the Act by acting [ translation ] “as a building contractor without holding a current licence for that purpose”. [ 11 ] He was found guilty on February 12, 2016 and was therefore subject to the minimum fine of $10,481 then set out in s. 197.1 of the Act . [ 12 ] He decided, however, to challenge the validity of this provision and, in April 2016, he sent the AGQ a notice of his intention to have the provision declared contrary to s. 12 of the Charter .

He amended that notice a few times, ultimately alleging that the provision violates ss. 7 and 12 of the Charter . [5] [ 13 ] His challenge was heard and maintained on July 4, 2017. The presiding justice of the peace before whom the matter was brought was of the view that the minimum fine was grossly disproportionate and infringed s. 12 of the Charter .

She therefore declared s. 197.1 of the Act inoperative with respect to the appellant and, instead, condemned him to pay a fine of $50 plus costs and a contribution. [ 14 ] The AGQ and the DCPP appealed from that judgment. [ 15 ] On July 19, 2018, the Superior Court, sitting in appeal, allowed their appeal and condemned the appellant to pay the minimum fine of $10,841 provided for in the Act .

It is this judgment that the appellant appeals, in turn, after obtaining leave from a judge of this Court. [6] THE JUDGMENTS BELOW Court of Québec judgment [ 16 ] The presiding justice of the peace, Sylvie Marcotte, began her analysis with a historical review of the minimum fines applicable to a contravention of s. 46 of the Act , noting that they were significantly increased in 2011 by the enactment of the Act to prevent, combat and punish certain fraudulent practices in the construction industry and make other amendments to the Building Act , [7] with the fine applicable to individuals being nearly 15 times higher than the previous one. [ 17 ] Relying primarily on the statements made by the Minister of Labour when the bill was being considered by the Committee on Labour and the Economy ( the “ Committee ” ), [8] she attributed the increase to the government’s desire to combat illegal work.

[ 18 ] Citing the relevant judgments, she then described the two steps she was required to follow in order to determine whether the minimum mandatory fine infringes the Charter . [ 19 ] She noted that s. 46, whose contravention gives rise to the minimum mandatory penalty, covers a broad range of conduct, from the most minor to the most serious, and involves a wide variety of persons, from the [ translation ] “bad” contractor to the honest citizen. [ 20 ] She then analyzed the appellant’s situation in particular, concluding from the evidence that he had acted in good faith, did not perform illegal work, paid his taxes and had since regularized his situation by obtaining the required licence. [ 21 ] In light of these findings and the value of the contract in question, which was $241, she was of the view that the $10,841 fine was grossly disproportionate as regards the appellant, that it undermined society’s expectations of fairness in the administration of justice and, therefore, that it infringed the protection against cruel and unusual punishment afforded by s. 12 of the Charter . [ 22 ] She therefore declared s. 197.1 inoperative with respect to the appellant.

Superior Court judgment [ 23 ] From the outset, the Superior Court judge, sitting in appeal, found that the trial judge had applied the proper analytical framework. [ 24 ] He pointed out, however, that only grossly disproportionate sentences that outrage standards of decency may be characterized as cruel and unusual punishments and that courts must show deference to the means used by the legislature to achieve its goals. [ 25 ] He then indicated that monetary sanctions fall at the lower end of the spectrum of punitive measures and that no Canadian court had invalidated a monetary punishment on the ground that it constituted cruel and unusual punishment. [ 26 ] That having been established, he was of the view that the trial judge had made some errors. [ 27 ] First, she erred by taking the appellant’s good faith into account, which suggests that the offender must have a fraudulent intent, thereby adding a constituent element to the offence, which is a strict liability offence and therefore does not require proof of specific intent. [ 28 ] She also erred by misconstruing the primary purpose of ss. 46 and 197.1 of the Act and the reasons having led the legislature to increase the fines, which, according to him, have as their primary purpose to protect the public and ensure the quality of the work performed, not to combat illegal work. [9] [ 29 ] In his view, the fact that offenders can obtain an extension of time to pay the fine or to perform community work in lieu of payment is an important factor, because it tempers the effect of the punishment, [10] especially since the offender’s ability to pay is taken into account when establishing the terms of payment. [ 30 ] He then analyzed the evidence and noted that the effects of the fine on the appellant’s patrimony had not been established, given that there was no indication in the record of the appellant’s annual income or the value of his assets, and that there was nothing to suggest that he would be unable to perform community work to compensate for an actual inability to pay. [11] [ 31 ] For all of these reasons, he concluded that while some might consider such a fine to be [ translation ] “inappropriate” or [ translation ] “excessive”, it could not be viewed by Canadians as [ translation ] “abhorrent or intolerable” or as [ translation ] “an outrage to the standards of decency”.

He therefore allowed the appeal and condemned the appellant to pay the minimum fine set out in the Act . POSITION OF THE PARTIES [ 32 ] The appellant asserts three grounds to challenge the Superior Court judgment: (1) in determining the context within which the fines under s. 197.1 of the Act were increased, the judge substituted his assessment for that of the trial judge with respect to the meaning of the parliamentary proceedings, (2) he departed from the test in R. v.

Nur , [12] and (3) he should have acknowledged that the trial judge was entitled to conclude that the fine in question infringes s. 12 of the Charter , insofar as the DCPP and the AGQ admitted that an infringement, if any, could not be justified under s. 1 of the Charter . [ 33 ] The DCPP and the AGQ propose to reformulate these three questions as follows: (1) did the Superior Court judge err in law by reversing the trial judge’s decision regarding the application of s. 12 of the Charter to the appellant, (2) did the Superior Court judge err in law by not undertaking the second stage of the application of s. 12 , that is, by not considering reasonably foreseeable cases, and (3) if the fine set out in s. 197.1 of the Act infringes s. 12 of the Charter , is this infringement justified under s. 1 of the Charter ? [ 34 ] In my view, the questions raised can be summarized in a single question: does the minimum fine set out in s. 197.1 of the Act constitute cruel and unusual punishment within the meaning of s. 12 of the Charter and, if so, is it justified under s. 1 of the Charter ?

PRELIMINARY COMMENTS [ 35 ] At the outset, it should be noted that the hearings before the Court of Québec and before the Superior Court sitting in appeal were held, and their judgments rendered, before the Supreme Court rendered its judgment in R. v. Boudreault [13] on December 14, 2018, overturning a judgment of this Court.

[ 36 ] Moreover, the hearing of this appeal was held on November 5, 2019, thus after the Supreme Court ruling, but at a time when the Supreme Court was seized of a new case challenging the constitutionality of the minimum mandatory fine set out in s. 197.1 of the Act , albeit as it applies to legal persons. [ 37 ] Under these circumstances, the Court and the parties agreed that it would be appropriate to wait for the Supreme Court to render judgment before adjudicating this appeal.

The Supreme Court rendered judgment on November 5, 2020. [14] [ 38 ] In essence, it found that s. 12 of the Charter does not protect legal persons against cruel and unusual treatment or punishment.

Consequently, it did not address the issue of whether the minimum mandatory fine established by the legislature in s. 197.1 of the Act infringes s. 12 of the Charter . [ 39 ] It nevertheless reiterated some of the remarks it had made in Boudreault , particularly those to the effect that a punishment is unconstitutional only if it is “so excessive as to outrage standards of decency”, in addition to being “abhorrent or intolerable” to society. [15] [ 40 ] Under these circumstances, our Court considered it appropriate to offer the parties the opportunity to make submissions to it on this recent Supreme Court decision and, if they wished, to supplement those they had already made with respect to Boudreault . [ 41 ] Both parties did so, the most recent submissions, namely, those of the respondent, having been received on December 10, 2020. [ 42 ] The appellant, both before the Court and in his additional submissions, relies heavily on Boudreault to argue that the punishment set out in s. 197.1 of the Act is “cruel and unusual”.

He submits that, given the finding that the victim surcharge is a cruel punishment, if one applies the same analytical framework, then the $10,841 fine, which is applicable whenever a person contravenes s. 46 and regardless of the circumstances, should a fortiori be found to be cruel. [ 43 ] In light of this submission, before addressing the minimum mandatory fine set out in s. 197.1 of the Act , I believe it would be useful to review the broad strokes of Boudreault .

Boudreault [ 44 ] In Boudreault , the Supreme Court invalidated the mandatory victim surcharge which is set out in s. 737 of the Criminal Code [16] and has to be imposed on everyone who is discharged, pleads guilty to, or is found guilty of an offence under the Criminal Code or the Controlled Drugs and Substances Act . [17] The amount of the surcharge is 30% of any fine imposed, or, where no fine is imposed, $100 for every

summary conviction count and $200 for every indictable count. [ 45 ] After noting that a number of persons who offend under the Criminal Code or the Controlled Drugs and Substances Act are indigent, face some combination of addiction, mental illness and disability and are unable to pay such an amount , which was the case for all of the offenders in the appeal before her, Martin, J., writing for the majority, found that the effects of the surcharge were grossly disproportionate to the punishment that would otherwise be fit and fair.

Indeed, for some, it resulted in deeply disproportionate financial consequences, left them under the threat of imprisonment and collection efforts, and imposed a de facto indefinite criminal sanction, all of which resulted in undue hardship on them. [ 46 ] This disproportionality and the fact that the surcharge disregards the principle of proportionality in sentencing are incompatible with human dignity and are both abhorrent and intolerable, such that the Supreme Court found that the surcharge constitutes cruel and unusual punishment and infringes s. 12 of the Charter .

ANALYSIS [ 47 ] The fine applicable to the appellant is set out in s. 197.1 of the Act , a statute enacted by the Quebec legislature for the purpose of ensuring the quality of construction work [18] of buildings, the safety of the public who have access to a building and the vocational qualifications, integrity and solvency of contractors and owner-builders. [19] [ 48 ] Among other things, the Act establishes the Régie du bâtiment du Québec (the “Board”) and entrusts it with a variety of tasks, including that of adopting a building code that establishes standards for construction work on buildings [20] and issuing building contractor licences to persons who satisfy the conditions prescribed by the Act and its regulations. [21] Thus, like many other statutes, the Act regulates an industry sector, namely the construction of buildings, which includes their renovation, and it does so for the particular purpose, among others, of protecting the public.

It contains a number of provisions, some of which are penal. [ 49 ] This being said, it is well established that the purpose of the regulatory penal law system differs significantly from that of the criminal law system. The Supreme Court expressed this difference as follows: [90] These two systems, the regulatory penal law and criminal law systems, serve societal purposes that are important and complementary, but also different.

In the words of Cory J., whereas “criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care” ( Wholesale Travel , at p. 219).

It is therefore essential not to lose sight of the basic differences between the two systems and, as a result, to weaken the application of one by distorting the application of the other. [22] [ 50 ] This distinction is important and, in my view, must be taken into account in analyzing a provision that prescribes a minimum mandatory fine for the violation of a regulatory requirement.

This does not mean that every constitutional challenge of such a fine is doomed to failure, but it is an important factor to be weighed in the balance. [ 51 ] Legislatures often use minimum mandatory fines to deter individuals from conducting themselves in a certain manner or

engaging in activities without the necessary authorizations. The Ontario Court of Appeal recently pointed out that since such minimum punishments apply regardless of the offender’s circumstances and of the circumstances in which the offence was committed, they necessarily cast a very wide net.

At the same time, however, it added that they reflect the legislature’s assessment that nothing less would suffice to deter the conduct or the prohibited activity: [39] Minimum fines apply without regard to the circumstances of individual offenders or the circumstances surrounding the commission of particular offences, and so necessarily risk overinclusion.

They reflect a legislative judgment that nothing less than the minimum fine is sufficient to achieve deterrence in light of the nature of the offence committed. [23] [ 52 ] While these remarks were made with respect to a scheme that grants the court the power to reduce the amount of the minimum fine when it is of the view that the offender will not be able to pay it, [24] I believe they are entirely accurate and, in my opinion, the distinctions that must be drawn between the criminal system and the statutory penal system are sufficiently large to support the argument that some of the statements in Boudreault should not be applied out of context.

Moreover, in my view, the Criminal Code provisions pertaining to the determination of a fit and appropriate sentence cannot be imported indiscriminately into the penal scheme in order to determine the fine that should be imposed and then compare it to the minimum mandatory fine under that scheme. [ 53 ] In that regard, I take the liberty of completing the remarks of Cory, J., previously cited by the Supreme Court in the excerpt above, with the following paragraph: […] Regulatory offences provide for the protection of the public. The societal interests which they safeguard are of fundamental importance.

It is absolutely essential that governments have the ability to enforce a standard of reasonable care in activities affecting public welfare.

The laudable objectives served by regulatory legislation should not be thwarted by the application of principles developed in another context. [25] [ 54 ] When the legislature chooses to punish a regulatory offence by imposing a minimum mandatory fine, it is likely to establish the amount of the fine on the basis of a number of factors, including the nature of the activity it wants to deter, its frequency, the consequences resulting therefrom and, where applicable, the profit it can generate.

Indeed, to be dissuasive, a fine intended to punish commercial or professional activities carried on illegally must exceed the profit conceivably resulting therefrom. [ 55 ] In the present case, the parliamentary proceedings before the Committee indicate that the legislature decided to increase and set the amount of the fines under the Act on the basis of certain observations and information stemming, in part, from the Board. [26] [ 56 ] In my view, it is important to take this factor into account and to emphasize, at this stage, that only a fine that is “abhorrent and intolerable” and “outrages standards of decency” is a cruel and unusual punishment under s. 12 of the Charter . [27] [ 57 ] The offence punished under s. 197.1 has existed since 1985. [28] As the Superior Court judge rightly pointed out, it is a regulatory offence that falls within the class of strict liability offences, [29] such that proof of mens rea is not required.

For this reason, I acknowledge that, insofar as the fine can potentially be imposed on offenders having acted in good faith, it may appear extremely harsh. [ 58 ] That said, unlike in Boudreault , where the surcharge applied to all offences, from the most minor to the most serious, the fine set out in s. 197.1 of the Act punishes a specific offence, one that only those persons who intentionally decide to engage in the regulated activity are liable to commit. [ 59 ] The minimum fine for the offence was originally $500 for an individual and $1,000 for a legal person. [30] It was increased, reaching $710 for a natural person, but then stayed the same for nearly 20 years.

In 2011, in light of certain recurring problems in the construction industry and the large number of violations of s. 46, the legislature decided to take a tougher approach. [31] It therefore increased the fine to $10,000 for individuals and $30,000 for legal persons. [32] With inflation, at the time the appellant committed the offence, the fine stood at $10,481 for an individual.

It is now $11,682. [33] [ 60 ] In 2018, the legislature amended s. 197.1 again, but solely in order to expand its scope so as to include any contractor who does business with another contractor who does not hold the appropriate licence. [34] The amounts of the fines, however, were not increased. [ 61 ] The substantial increase of the fine in 2011 was intended to make it economically unrewarding to violate the obligation to hold a licence in order to engage in construction work, given that the previous fine had not succeeded in stopping the prohibited conduct.

The Minister of Labour explained the situation as follows: [ translation ] The second component: increasing the fines, which is not something to be overlooked, Mr. President. In some cases, the fines have been increased tenfold. For example, where a licence is leased or contractors build without the required permits, so, clearly, you see that this is intended to fight undeclared work. The fines will be steep. The purpose is simple, deterrence.

The penalty for a prohibited activity will be greater than the profits an individual or company in the building sector can obtain from that activity. [35] [ 62 ] Contrary to the appellant’s contention, a violation of s. 46 is not a minor offence. [ 63 ] The obligation to hold a licence in order to operate as a contractor is a crucial part of the scheme. The licence is the equivalent of a permit to practise a profession and guarantees to the public that those who hold a licence have the required qualifications to operate as contractors and are honest and solvent.

Indeed, the Board must not issue a licence unless it has ascertained the applicant’s competence and integrity and has obtained assurances that the applicant has the financial resources to assume its responsibilities. [36] [ 64 ] Thus, the licensing requirement is one of the principal means the legislature uses in order to “police” the construction industry and protect the public, because, in order to obtain a licence, the applicant must show to the Board that it satisfies the numerous conditions imposed by the Act and the regulations.

[ 65 ] For example, a natural person applying for a contractor’s licence must show that he has the knowledge or relevant experience in managing a building undertaking and in carrying out construction work for meriting the public’s trust, [37] he must establish his solvency, [38] he must hold liability insurance in accordance with the requirements, [39] he must furnish the required security, where applicable, [40] he must have joined a guaranty plan, where applicable, [41] and he must not, in the five years preceding the application, have been convicted of an offence under a fiscal law, an indictable offence related to the activities he intends to carry on or a number of other named offences. [42] [ 66 ] The Board may also, at all times and in certain circumstances, suspend or cancel a licence. [43] [ 67 ] The licensing requirement, therefore, is what allows the Board to control the “quality” of those who offer contractor’s services to the public.

It exercises that control initially when issuing the licence and, subsequently, by monitoring licence holders to ensure that they respect their undertakings and perform all of their obligations.

The Board’s control is crucial for the proper functioning of the legislative scheme which, it bears repeating, is essentially intended to protect the public. [ 68 ] A person who operates as a contractor without holding a licence completely eludes the Board’s control and therefore represents a risk to the public. [ 69 ] In light of all these circumstances, I am of the view that the effects of the minimum fine set out in s. 197.1 are not so grossly disproportionate as to be considered “incompatible with human dignity” and “both abhorrent and intolerable”. [ 70 ] Let me explain. [ 71 ] First, it bears reminding that a violation of s. 46 presupposes that the offender has intentionally decided to engage in activities reserved for building contractors and, moreover, that the fine set out in s. 197.1 is, subject to any costs the offender may have to pay, the only punishment imposed for having acted as an unlicensed contractor. [ 72 ] I also note that the legislature has established measures for attenuating the effects of this fine (and several others), because penal proceedings initiated for contraventions of the Act are governed by the Code of Penal Procedure [44] (“ C.P.P. ”).

Under the C.P.P. , the legislature has conferred the power to collect fines on a collector ( art. 322 C.P.P. ), to whom it has also given several other powers that can be used to reduce the impact of the fines.

Thus, the collector can grant the offender an extension of time for the payment of the sum due ( art. 327 C.P.P. ), enter into an agreement with the offender for instalment payments ( art. 328 C.P.P. ), offer the offender the option to perform compensatory work if the collector is of the view that the offender is unable to pay the fine and allow him to replace all or part of such compensatory work with alternative measures ( art. 333 C.P.P. ). [ 73 ] Some would certainly have preferred that the legislature follow the example of British Columbia and Ontario, [45] by granting the court of competent jurisdiction the discretion not to impose the fine if the offender is not and will not be in a position to pay it. [46] This decision, however, belongs to the legislature and that is not the option it chose.

Instead, it chose to establish a scheme which obviates, at least in part, the unacceptable financial consequences the fine could otherwise have on certain persons, by allowing them, instead, to perform compensatory work or participate in alternative measures. [ 74 ] Admittedly, while in Boudreault , Martin, J. stated that a fine option program is not a realistic option for all offenders, it is important to note that the evidence presented in that case had shown the precarious circumstances of the offenders, such that they were generally not able to participate in these types of programs. [ 75 ] In the present matter, no such evidence was presented, whether with respect to the appellant or with respect to offenders who could find themselves in the reasonable hypothetical situations put forth.

Under these circumstances, I believe it is not for this Court to speculate on its own, nor is it appropriate or useful to comment on the scheme as a whole. [ 76 ] There is, therefore, nothing that leads to the conclusion that the appellant or the hypothetical offenders would not be in a position to perform compensatory work if they were unable to pay the fine. [ 77 ] In short, given the legislature’s objectives in enacting ss. 46 and 197.1 of the Act , coupled with the existence of a statutory scheme whereby persons who have violated s. 46 of the Act can avail themselves of terms and conditions for the payment of the fine or, if their financial means do not allow for such payment, whereby they can potentially avail themselves of alternative solutions for paying the fine by other means, I find, as the Superior Court judge did, that the $10,481 minimum fine set out in s. 197.1 of the Act is not, in the case at bar, a punishment that is “abhorrent and intolerable” and “outrages standards of decency”, thereby infringing s. 12 of the Charter , whether one considers the appellant’s specific situation or the reasonable hypothetical situations. [ 78 ] My finding, however, does not imply that a minimum fine can never constitute cruel and unusual punishment under s. 12 of the Charter merely because offenders can avail themselves of terms and conditions for paying the fine or alternative solutions for doing so.

These elements must certainly be taken into account, but they are not determinative because, all in all, the factors as a whole, including the nature of the prohibited conduct and the amount of the fine, are what determine whether a minimum punishment, in a given context, is abhorrent and intolerable . In light of this finding, it is clearly unnecessary to address s. 1 of the Charter . [ 79 ] I therefore propose that the Court dismiss the appeal. MARIE-JOSÉE HOGUE, J.A.