2019 ONCJ 454, 2019 ONCJ 454

CITATION : Ontario (Electrical Safety Authority) v. Broomfield, 2019 ONCJ 454 DATE : June 26, 2019 IN THE MATTER OF the Electricity Act, 1998, S.O. 1998, c. 15,

Schedule A and the Licensing Of Electrical Contractors And Master Electricians Regulation ( Electricity Act, 1998 ), O. Reg. 570/05 Between Her Majesty the Queen in Right of Ontario (Electrical Safety Authority) prosecutor and Paul Broomfield defendant Ontario Court of Justice Brampton, Ontario Quon J.P. Reasons for Ruling On Pre-Sentencing Application For An Order Compelling Paul Broomfield To Provide Financial Documents To The Prosecutor . Application Argued : January 16, 2019 and

March 21, 2019. Ruling On Application: June 26, 2019. Counsel: I. Johnston and A. Johnston, counsel for the applicant, Electrical Safety Authority. D. North and R. Kaushal, counsel for the respondent, Paul Broomfield. Cases Considered Or Referred To: ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4 , [2006] S.C.J. No. 4 (S.C.C.). Boondocks Marina Inc. v. Ontario (Provincial Police), [2013] O.J. No. 6393 (Ont. S.C.), per Rady J. Bruce (County) v. Kramer, [2007] O.J. No. 308 (Ont. S.C.), per Murray J. Doyle v. R., (SCC), [1976] S.C.J. No. 38 (S.C.C.). Czumak v.

Etobicoke (City), [1994] O.J No. 2247 (Ont. Ct. (Prov. Div.)), per Fairgrieve J. Maves v. Grand Trunk Pacific Ry. Co., [1913] A.J. No. 53 (Alta. C.A.). Nishnawbe Aski Nation v. Eden (Pierre v. McRae), [2011] O.J. No. 988, 2011 ONCA 187, 104 O.R. (3d) 321 (Ont. C.A.), per Weiler,Laskin and Sharpe JJ.A. Ontario (Electrical Safety Authority) v. Broomfield, [2018] O.J. No. 4893 (Ont. C.J.), per Quon J.P. Ontario (Ministry of Labour) v. Sunrise Propane Energy, [2013] O.J. No. 3086 (Ont. C.J.), per Chapin J. Ontario (Ministry of Natural Resources) v. Leckebusch, [2012] O.J. No. 2289 (Ont. C.J.), per Dechert J.P.

Ontario v. Tenny, [2015] O.J. No. 1497 (Ont. S.C.), per Ellies J. Oshawa (City) v. 536813 Ontario Limited, 2016 ONCJ 665 , [2016] O.J. No. 5925 (Ont. C.J.), per Coopersmith J.P.

R. v. 974649 Ontario Inc. c.o.b. as Dunedin Construction (1992) and Bob Hoy, 2001 SCC 81 , [2001] S.C.J. No. 79 (S.C.C.). R. v. 1137749 Ontario Ltd. (operating as Pro-Teck Electric), [2018] O.J. No. 4001 (Ont. C.J.), per O’Donnell J. R. v. Angelillo, 2006 SCC 55 , [2006] S.C.J. No. 55 (S.C.C.). R. v. C. (K.), [2005] O.J. No. 2046 (Ont. C.J.), per Kukurin J. R. v. Cotton Felts Ltd., (ON CA), [1982] O.J. No. 178 (Ont. C.A.), per Martin, Zuber and Blair JJ.A. R. v. Cunningham, 2010 SCC 10 , [2010] S.C.J. No. 10 (S.C.C.). R. v. D’Amour, (ON CA), [2002] O.J. No. 3103 (Ont. C.A.), per Carthy, Doherty and Laskin JJ.A.

R. v. Dineley, 2012 SCC 58 , [2012] S.C.J. No. 58 (S.C.C.). R. v. Fercan Developments Inc., 2016 ONCA 269 , [2016] O.J. No. 1925 (Ont. C.A.), per Laskin, LaForme and Pardu JJ.A. R. v. Gardiner, (SCC), [1982] S.C.J. No. 71 (S.C.C.). R. v. Jones (1994), (SCC), 89 C.C.C. (3d) 353 (S.C.C.). R. v. Kirk (c.o.b. B.A. Holdings), 2006 ONCJ 22 , [2006] O.J. No. 349 (Ont. C.J.), per Kukurin J. R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 (S.C.C.). R. v. M.(I.G.) [R. v. McPherson], (NWT SC),[1997] N.W.T.J. No. 29 (N.W.T.S.C.), per Vertes J. R. v. Rasper, [1978] O.J. No. 334 (Ont.

C.A.), per Martin, Lacourciere and Houlden JJ.A. R. v. Romanowicz, (ON CA), [1999] O.J. No. 3191(Ont. C.A.), per Carthy, Doherty and Laskin JJ.A. R. v. Snider, (1977), (ON CA), 37 C.C.C. (2d) 189, [1977] O.J. No. 996 (Ont. C.A.), per Martin, Lacourciere andWeatherston JJ.A. R. v. Stinchcombe, (SCC), [1991] S.C.J. No. 83 (S.C.C.).

R. v. Topp, 2011 SCC 43 , [2011] S.C.J. No. 43 (S.C.C.). R. v. Ward (1980), (ON CA), 56 C.C.C. (2d) 15 (Ont. C.A.), per Martin, Blair and Goodman JJ.A. R. v. Wells, [2003] O.J. No. 2025 (Ont. C.J.), per Lane J. R. v. Wholesale Travel Group Inc., (SCC), [1991] S.C.J. No. 79 (S.C.C.). R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530 (S.C.C.). R. v. Zuk, [2004] O.J. No. 200 (Ont. C.J.), per Lane J. Real Estate Council of Ontario v. Wang, [2013] O.J. No. 4294 (Ont. C.J.), per Fairgrieve J. Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 (S.C.C.). Scott Jones v. R., (SCC), [1994] S.C.J. No. 42 (S.C.C.).

Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) (1990), (SCC), 54 C.C.C. (3d) 417 (S.C.C.). Statutes, Regulations and Rules Cited: Canadian Charter of Rights and Freedoms,

Part 2 of the Constitution Act, 1982,

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11,R.S.C. 1985, App. II, ss. 7, 8, 11, 11(c), 13. Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 38(2), 70.1(1), 70.1(1)(a), 70.1(1)(e), 95(3), and 146. Criminal Code, R.S.C. 1985, c. C-46, ss. 487, 718, 718.1, 718.2, 723(1), 723(2), 723(3), and 724(1). Electricity Act, 1998, S.O. 1998, c. 15, Sch. A., s. 113.20(1)(d). Evidence Act, R.S.O. 1990, c. E.23, ss. 8, 9(1), and 9(2). Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, 64(1). Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998, S.O. 1998, c. 15, Sch. A.), O. Reg.570/05, s. 3.

Provincial Offences Act , 1979 , S.O. 1979, c. 4, ss. 58(3) and 67(3). Provincial Offences Act , R.S.O. 1990, c. P.33, ss. 2(1) , 2(2) , 46(5) , 47(5) , 56 , 56(1) , 57 , 57(3) , 58 , 59 , 66(2) , 66(3) , 72 , 72(3) (a), and 158 . Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings ( Courts Of Justice Act , R.S.O. 1990, c. C.43 ), R.R.O. 1990, O. Reg. 200. Reference Material Considered or Cited: Drinkwalter, W.D. and Ewart, J.D. Ontario Provincial Offences Procedure (Toronto, Canada: The Carswell Company Limited, 1980). Stewart, S.

Stewart on Provincial Offences Procedure in Ontario (3 rd . Ed.) (Toronto, Canada: Earlscourt Legal Press, Inc., 2011). Sullivan, R. Statutory

Interpretation (Toronto, Ontario: Irwin Law Inc., 1997). Table of Contents Para. No. 1. INTRODUCTION 1 2. BACKGROUND 9 3. ARGUMENTS IN RESPECT TO THE PROSECUTION’S APPLICATION 17 4. ANALYSIS 37

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A) Why Are Broomfield’s Personal, As Well As His Business’s Financial Documentation, Necessary And Relevant To The Determination Of A Fit And Just Sentence? 37

(1) A sentencing court for a criminal offence is legally required to investigate an offender’s “ability to pay” before imposing a fine. 40 (

a) A sentencing court for a criminal offence is legally required to conduct a “means inquiry” before imposing a fine. 42 (

i) Before imposing a fine, should the sentencing court for a regulatory offence also make inquiries about the offender’s ability to pay? 45

(2) Who has the burden to prove an offender’s ability to pay a fine? 50 (

a) What is the standard of proof for proving that the offender has the ability to pay a fine? 52 (

b) Does an offender have any evidential or persuasive burden to prove an inability to pay a fine? 53

(3) Can a sentencing court infer that an offender has the ability to pay a fine based on the funds or moneys obtained by the offender during the commission of the offence? 55 (

a) Does an offender have to provide a reasonable explanation of what had happened to any funds or moneys that had been obtained by the offender during the commission of the offence? 56 (

b) Is the prosecution required to locate and trace the funds or moneys that had been obtained by the offender during the commission of the offence? 57 (

c) How should a sentencing court weigh an offender’s explanation on what had happened to funds or moneys that had been obtained by the offender during the commission of the offence? 58

(4) In the circumstances, would Broomfield’s personal, as well as his business’s financial documents, assist the prosecutor and the sentencing court for the purposes of sentencing? 59 (

B) Does A Sentencing Court For A Regulatory Offence In Ontario Have The Jurisdiction Or Power To Compel An Offender To Disclose Or Produce Their Personal, As Well As Their Business’s Financial Documents, To The Prosecution For Sentencing Purposes? 60

(1) The Principles Of Statutory

Interpretation. 62 (

a) The goals of the Provincial Offences Act . 65

(2) General Principles In Respect To Sentencing For Regulatory Or Public Welfare Offences. 66 (

a) Deterrence must be given paramount consideration for public welfare offences in arriving at a fit and just sentence. 66 (

b) The sentence must be proportional. 68 (

c) Imprisonment as a sanction should only be imposed as a last resort. 70 (

d) For disputed facts in a sentencing hearing, evidence must be called in respect to that disputed fact. 71

(3) Does the Provincial Offences Court have the jurisdiction and power to order an offender to disclose their financial documents to the prosecution for sentencing purposes prior to the actual sentencing hearing being held for the offender? 72 (

a) Determining the powers and jurisdiction of statutory courts. 75 (

b) Specific provisions of the Courts Of Justice Act that are applicable to Broomfield’s sentencing hearing. 82

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c) Specific provisions of the Rules of The Ontario Court of Justice in Provincial Offences Proceedings that are applicable to Broomfield’s sentencing hearing. 86 (

d) Specific provisions of the Provincial Offences Act that are applicable to Broomfield’s sentencing hearing. 87 (

i) Probation Order. 88 (ii) Restitution Order. 89 (iii) s. 57(3) of the Provincial Offences Act permits the sentencing court to make inquiries about an offender’s economic circumstances, but the offender is not legally compelled to answer. 91 (

A) The legislative purpose behind not compelling the offender to answer inquires made by the sentencing court under s. 57(3). 92 (

c) The Universal Sentencing Principles Of The Criminal Law Apply To Sentencing Hearings For Regulatory Offences. 97 (

i) Sentencing principles set out in the Criminal Code apply to sentencing for regulatory offences. 97 (ii) The Universal Sentencing Principles Set Out In The Criminal Code . 105 (iii) Does The Criminal Code Permit The Sentencing Judge For A Criminal Offence To Make Inquiries Into An Offender’s Economic Circumstances When Determining An Appropriate Fine? 108 (A) S. 723(3) of the Criminal Code . 108 (iv) The Criminal Code can be used as an aid for the

interpretation of provisions in the Provincial Offences Act . 110

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d) A Defendant Has A Limited Obligation To Disclose Information To The Prosecution. 119 (

i) Broomfield Is Not A Compellable Witness For The Prosecution. 122 (

e) Where A Custodial Sentence Is Available As A Penalty, Then Relevant Information About The Offender’s Background, Character, and Personal Circumstances Is Required For The Sentencing Hearing. 128 (

i) The Provincial Offences Act provides for pre-sentence reports to be prepared by a probation officer, which detail the offender’s background, character, and personal circumstances. 129 (ii) Balancing fairness to the offender with the sentencing court’s requirement for relevant information. 130 (

f) Presumption of innocence no longer applies at the sentencing stage. 133 (

g) Self-incrimination and compelling the production of financial documents for the purposes of sentencing. 134 (

i) Tax documents for the offender and his business are not difficult to obtain by the offender. 140 (

h) Does the Provincial Offences Act Or The Electricity Act, 1998 Provide Explicit Jurisdiction For The Sentencing Judge To Compel An Offender To Disclose Or Produce Personal As Well As Their Business’s Financial Documents To The Prosecution For The Purposes Of Sentencing? 141 (

i) Does the Electricity Act, 1998 Require A Defendant To Produce Financial Documents To The Prosecution For The Purposes Of Sentencing? 143 (ii) Does s. 57(3) of the Provincial Offences Act , which expressly states that an offender does not have to answer any inquiry made by the sentencing judge, prohibit the sentencing court from compelling production of an offender’s personal, as well as their business’s financial documents, to the prosecutor prior to the sentencing hearing? 144

(A) Section 57(3) of the Provincial Offences Act . 147 (iii) Would a pre-hearing order compelling production of the offender’s financial documents fall under the auspice of s. 57(3) of the Provincial Offences Act ? 151 (

C) Does The Sentencing Judge Have An Implied Power To Compel The Offender To Disclose Or Produce Their Personal, As Well As Their Business’s Financial Documents, To The Prosecution For The Purposes Of Sentencing? 154

(1) The “doctrine of jurisdiction by necessary implication”. 155

(2) For determining the powers of a statutory court, what is the test or circumstances for when the “doctrine of jurisdiction by necessary implication” may be applied? 160 (3) S. 57(3) of the Provincial Offences Act is a procedural provision and not a substantive provision. 162

(4) Conclusion on whether a sentencing court has the jurisdiction by necessary implication to compel an offender to produce or disclose their financial documents to the prosecution for the purposes of sentencing? 164 (

a) Permitting applications for an order compelling an offender to produce their financial documents for sentencing purposes may unduly lengthen the proceeding. 169 (

b) What would happen if the offender does not comply with the sentencing court’s order compelling production of the offender’s financial documents? 170 (

c) When should the sentencing court use its jurisdiction to compel production of the offender’s financial documents to the prosecution? 173 (

d) Potential procedure to utilize for the offender to produce their financial documents to the prosecution. 175

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D) For The Present Case, Has The Prosecution Established That There Are Exceptional Circumstances For Granting An Order To Compel Production Of The Offender’s Financial Documents? 180 5. RULING 188 1. INTRODUCTION [ 1 ] In order for a sentencing judge to properly arrive at a fit and just sentence for the offender of a regulatory offence, which would reflect the gravity of the offence committed and the offender’s moral blameworthiness, the sentencing judge should be provided with all relevant information about the offender, especially where imprisonment is a possibility.

And, where fines and restitution are likely sanctions for a regulatory offence, then the sentencing judge before deciding on the appropriate fine or the amount of restitution to be paid, would need to have information about the offender’s economic circumstances in respect to their ability to pay. [ 2 ] For the present proceeding involving regulatory offences, which has now entered the sentencing phase, the prosecution contends that the offender’s financial documents for himself and his business need to be disclosed or produced to the prosecution, so that the prosecution can fulfill its duty to properly prepare for sentencing submissions and do its job in suggesting or seeking the appropriate fine as a sentence for the offender -- as well as for this Provincial Offences Court to properly do its job in sentencing the offender. [ 3 ] Ergo, in this pre-sentencing application, the prosecution seeks an order compelling the offender, Paul Broomfield ( “Broomfield” ), who has been convicted of committing two offences of operating an electrical contracting business without holding a valid electrical contractor’s licence, contrary to s. 113.20(1) (

d) of the Electricity Act, 1998 , S.O. 1998, c. 15, Sch. A . (see Ontario (Electrical Safety Authority) v. Broomfield , [2018] O.J. No. 4893 (Ont. C.J.) ), to produce or disclose to the prosecution his personal and his company/corporate financial accounts, including, but not limited to, current and prior tax returns, pay slips, bank statements, as well as his asset statements for three years prior to the commission of the offences (i.e., from March 2010 to today’s date). [ 4 ] Unfortunately, the Provincial Offences Act , R.S.O. 1990, c.

P.33 , which is the statute that governs the procedures for the prosecution and trial of regulatory offences in Ontario, does not explicitly contain a provision that legally requires an offender to provide their financial documents to the prosecution or to the sentencing judge for the purposes of sentencing.

As such, Broomfield submits that the prosecution’s request for an order compelling his personal, as well as his business’s financial documents, to be disclosed or produced to the prosecution is premature and not warranted, as the actual sentencing hearing has not commenced, and is in any event, not legally permitted by law. The prosecution however, disagrees, and contends that s. 57(3) of the Provincial Offences Act does explicitly provide this sentencing court with the statutory authority to investigate and make inquiries into Broomfield’s economic circumstances in order to determine his ability to pay a fine.

In addition, the prosecution contends that the common law also provides the sentencing judge with the legal jurisdiction and power under s. 57(3) to compel the production of Broomfield’s financial documents for the purposes of sentencing, through the “doctrine of jurisdiction by necessary implication”, so that this sentencing court can properly fulfill its duty of imposing a fit and just sentence. [ 5 ] Accordingly, to dispose of this application it will have to be first decided whether this sentencing court has the jurisdiction and power, either explicitly under s. 57(3) of the Provincial Offences Act or under the common law’s implied powers doctrine to compel Broomfield to produce or disclose his personal, as well as, his business’s financial documents to either the court or to the prosecution for the purpose of sentencing.

Secondly, if this court does have the necessary jurisdiction and power to compel Broomfield to produce the financial documents, then it will have to be decided what are the criteria that should be considered before such an order compelling production should be issued.

Thirdly, it then has to be decided whether such an order compelling Broomfield to produce or disclose the financial documents, should indeed be issued in regards to that criteria and the relevant circumstances of the present case. [ 6 ] Now, for the reasons that follow, s. 57(3) of the Provincial Offences Act does explicitly authorize a sentencing court to investigate and make inquiries into an offender’s economic circumstances in order to determine an offender’s ability to pay a fine, even though the offender is not compelled to answer any inquiries made by the sentencing judge during the actual sentencing hearing.

However, since such financial information would be practically necessary for the sentencing judge to fulfill its mandate in determining afit and just sentence, considering that a fine or restitution cannot be imposed unless an inquiry has been conducted by the sentencingjudge into the offender’s ability to pay, then by the doctrine of “jurisdiction by necessary implication”, the sentencing judge wouldindeed have the jurisdiction and power to compel the offender to disclose or produce their financial documents to the prosecution for thepurposes of sentencing.

As well, because of the need to balance fairness to the offender with the need of the sentencing court to haverelevant information for determining an appropriate sentence, a sentencing court should only order the offender to produce or disclosehis financial documents to the prosecution for the purposes of sentencing on an exceptional circumstances basis.

And, where there areconcerns about self-incrimination or unnecessary intrusion into the offender’s privacy through the disclosure or production of theoffender’s financial documents to the prosecution, then the sentencing court can take steps to safeguard specific information from beingdisclosed to the prosecution. [7] And, for the present application, even though this court has the necessary jurisdiction and power to compel Broomfield todisclose or produce to the prosecution his personal, as well as his business’s financial documents, for the purposes of sentencing, theprosecution has not established on a balance of probabilities that there are exceptional circumstances which justify issuing an ordercompelling Broomfield to disclose or produce his financial documents to the prosecution at this time. [8] In addition, the prosecution’s application had been argued on January 16, 2019 and March 21, 2019.

After arguments on theapplication were heard, the matter was then adjourned to June 26, 2019, for the ruling on the prosecution’s application. These, therefore,are the written reasons for the ruling dismissing the prosecution’s application: 2. BACKGROUND [9] The offender, Paul Broomfield, had been convicted by this court on September 19, 2018, of committing two offences under s.113.20(1)(

d) of the Electricity Act, 1998, S.O. 1998, c. 15, Sch. A., as a result of contravening s. 3 of the Licensing Of ElectricalContractors And Master Electricians Regulation, O. Reg. 570/05, by “operating an electrical contracting business without holding avalid electrical contractor licence”. [10] For the house at 22 Vespahills Crescent in Brampton, Broomfield had been contracted by the homeowner, Jay Jairam, to renovatethe basement that included doing electrical work for which Broomfield nor his renovation business, P & B Construction, had beenlicenced or qualified to do.

Jairam had paid Broomfield $6,000 to $7,000 in cash for the electrical portion of the renovation. Broomfieldhad also been involved in the renovation and electrical work on the house at 22 Vespahills Crescent from April 1, 2014 to July 22, 2014.

Moreover, Jairam said that it had cost Jairam a further $10,000 to start over again and redo the renovation and to have Broomfield’selectrical work removed and fixed by a qualified and licenced electrical contractor. [11] And, for the house at 291 Boon Avenue in Toronto, Broomfield had been contracted through a written agreement for the amountof $87,000 by the homeowner, Ahmed Khan, to renovate that house. However, there is no evidence on how much of the $87,000 hadbeen attributed to the electrical portion of the house renovation.

Neither Broomfield nor his renovation business had been licenced orqualified to do the electrical work at 291 Boon Avenue. Broomfield had also been involved in the renovation and electrical work on thehouse at 291 Boon Avenue from December 2, 2013 to April 30, 2014. In addition, Khan said he also paid a further $1695 to a companynamed Wiztronic Inc. to remove and fix the electrical work done by Broomfield.

However, it later turned out that Steve Duff ofWiztronic Inc., who had done this additional electrical work, had also been introduced by Broomfield to Khan, and was also not properlylicenced nor qualified to do the electrical work at Khan’s house. In addition, the homeowner, Ahmed Khan, then hired a licencedelectrical contractor at a cost of $7000 to correct the electrical work done by both Broomfield and Steve Duff. [12] As a result of those two convictions, then under s. 113.20(1)(

d) of the Electricity Act, 1998, Broomfield faces a potential sentenceof a maximum fine of $50,000 or to a period of imprisonment of not more than one year, or to both a fine and a period of imprisonment. However, there is no minimum fine that has to be imposed against Broomfield. On the other hand, Broomfield cannot be ordered to payrestitution either as a standalone restitution order or as a condition of a probation order under s. 72(3)(

a) of the Provincial Offences Act,R.S.O. 1990, c. P.33, as the Electricity Act, 1998 does not expressly provide for or authorize the sentencing court to order an offender topay restitution as a penalty or sanction upon conviction: R. v. Kirk (c.o.b. B.A. Holdings), 2006 ONCJ 22 , [2006] O.J. No. 349(Ont.

C.J.). [13] Furthermore, after Broomfield had been found guilty of committing the two Electricity Act, 1998 offences on September 19,2018, the prosecution had asked this court for assistance and guidance on obtaining Broomfield’s personal, as well as his business’sfinancial documents, for the purposes of sentencing. In respect to the prosecution’s inquiry about obtaining Broomfield’s financialdocuments, this court had advised the prosecution that obtaining Broomfield’s financial documents could be discussed and arranged

between the prosecution and Broomfield’s counsel before the sentencing hearing scheduled for January 16, 2019. [ 14 ] The prosecution then wrote Broomfield’s counsel, David North, on October 11, 2019, requesting that Broomfield produce to the prosecution his personal, as well as his business’s financial documents, for the purposes of sentencing and for assessing Broomfield’s ability to pay a fine.

However, Broomfield’s counsel responded on October 19, 2018, to the prosecution’s written request for Broomfield’s financial documentation, and informed the prosecution that Broomfield would not be producing any of his financial documentation to the prosecution. [ 15 ] As a result, the prosecution then wrote to this court on November 12, 2018, seeking assistance in bringing about the disclosure or production to them of Broomfield’s financial documents.

On November 13, 2018, this court then informed both the prosecution and Broomfield’s counsel that the prosecution would have to bring an application for an order compelling Broomfield to produce his financial documentation to the prosecution, with suggested hearing dates of December 13, 2018 or January 16, 2019. The date for hearing the prosecution’s application for an order compelling production of Broomfield’s financial documents was then scheduled to be argued on January 16, 2019.

However, Broomfield’s counsel informed the court on January 16, 2019, that he did not become aware that the prosecution was going to bring the present application for production of Broomfield’s financial documents until an email with attachments was received by Broomfield’s counsel on December 28, 2019. Broomfield’s counsel was also informed at that time that a hard copy of the attachments would be sent to Broomfield’s counsel.

Unfortunately, Broomfield’s counsel did not receive the hard copy of the prosecution’s application (factum, transcripts, and caselaw) until January 14, 2019, just two days before the scheduled hearing date of January 16th. Broomfield’s counsel then submitted a response to the prosecution’s application on January 15, 2019.

However, because of the novelty of the application and the short time in which Broomfield’s counsel had to properly prepare his response to the prosecution’s application, the hearing of the application was then adjourned until March 21, 2019. [ 16 ] On March 21, 2019, the prosecution’s application, which sought an order compelling Broomfield to produce to the prosecution his personal, as well as his business’s financial documents, was argued. The ruling on the application was then reserved and adjourned to June 26, 2019, for this court to make its ruling. 3.

ARGUMENTS IN RESPECT TO THE PROSECUTION”S APPLICATION [ 17 ] The prosecution in the present application requests a court order compelling Broomfield to disclose his personal, as well as his business’s financial information, including tax returns, pay slips and bank statements from as far back as 2010, so as to allow the prosecution to fulfill the duties of its job in suggesting an appropriate fine or penalty, since the prosecution contends that this cannot be done without that financial information.

Moreover, the prosecution submits that compelling Broomfield to provide this financial information will also allow this court to properly fulfill its mandate in determining Broomfield’s true ability to pay a fine, if a fine is appropriate, and imposing a fit and just sentence through an appropriate quantum for the fine. But more importantly, the prosecution contends that a sentencing court cannot impose a particular fine on Broomfield without inquiring into or investigating Broomfield’s ability to pay.

Therefore, Broomfield’s personal, as well as his business’s financial documents, would form part of the necessary and relevant information for the sentencing judge’s required inquiry or investigation into Broomfield’s ability to pay. [ 18 ] Furthermore, the prosecution relies on Lane J.’s holding in R. v. Wells , [2003] O.J. No. 2025 (Ont.

C.J.), at paras. 22 and 23 , to support its argument that a sentencing judge has a duty to make an order compelling production of the offender’s financial documents; otherwise, how would a sentencing judge be able to fulfill their mandate to assess an appropriate fine without having the offender’s personal financial information [ emphasis is mine below ]: The power under s. 57(3), furthermore, is directed particularly to the financial circumstances of the defendant, so that his capacity to pay can be considered in imposing an appropriate sentence .

It has been found, for example, that it is an error in principle to impose a fine without an investigation into the defendant's ability to pay, or to impose a fine which he or she lacks the means to pay within a reasonable time : Czumak v. Etobicoke (City), [1994] O.J No. 2247 , September 16, 1994, Fairgrieve J., Ont. Prov. Ct. In this case, the presiding jurist made no inquiries about Mr. Wells, nor about his financial circumstances .

At the conclusion of the sentencing hearing, we know nothing about who he is, what his circumstances were since 1992, what he does for a living, nor how much (if anything) he earns . The presiding Justice explicitly imposed a custodial term on his own assumption that Mr. Wells "had obviously refused" to pay any fines for ten years. Mr. Wells repeatedly denied this assertion. Nor was it proven in proper evidence before the court. Mr. Wells said that he was unaware of the outstanding fine, and then that he had thought he had paid all his fines when he was before the court a year ago.

Although he said that he had documentation in his pocket to prove it, the court did not ask to see the documents he sought to tender.

[19] In addition, based on paras. 21 and 22 of Kukurin J.’s decision in R. v. C. (K.), [2005] O.J. No. 2046 (Ont. C.J.), the prosecutionsubmits that since the Provincial Offences Act has only rudimentary provisions for sentencing, the sentencing judge for provincialoffences matters can pick and choose anything found in the Criminal Code in respect to sentencing and apply that to a provincialoffences sentencing: In contrast, the Provincial Offences Act, in its

Part IV, has rather rudimentary provisions for sentencing. It sets out no formal purposesor principles of sentencing. While it devotes

Part VI to young persons, the provisions of

Part VI are, for the most part, procedural innature and provide little guidance for sentencing of young persons convicted of provincial offences. A sixteen year old is notdistinguishable from an adult so far as the sentencing provisions of the POA are concerned. What then are the principles that the provincial offences court should apply in sentencing someone like K.C.? The POA does not importinto its sentencing scheme any of the provisions of the Criminal Code or of the YCJA. In effect, the area of sentencing under the POA isquite open.

It seems to me that there is nothing improper in picking and choosing anything found in the Criminal Code or in the YCJAthat can be applied to a POA sentencing [20] The prosecution contends, therefore, that the sentencing judge in a provincial offences sentencing has the necessary jurisdiction tocompel Broomfield to produce or disclose to the prosecution his personal, as well as his business’s financial documents, for the purposesof sentencing, especially in regards to the determination of the quantum of the fine and in respect to Broomfield’s ability to pay a fine.

Moreover, the prosecution submits that this jurisdiction to obtain information on Broomfield’s economic circumstances in order todetermine Broomfield’s ability to pay a fine is explicitly authorized under s. 57(3) of the Provincial Offences Act; while the power tocompel Broomfield to disclose or produce those financial documents to the prosecution for sentencing purposes is implicitly providedfor under s. 57(3), through the common law doctrine of “jurisdiction by necessary implication”. [21] Moreover, the prosecution submits that s. 57(3) of the Provincial Offences Act specifically states that “where a defendant isconvicted of an offence, the court may make such inquiries, on oath or otherwise, of and concerning the defendant as it considersdesirable, including the defendant’s economic circumstances, but the defendant shall not be compelled to answer.” [22] As for the common law doctrine of “jurisdiction by necessary implication”, the prosecution submits that the Provincial OffencesCourt has the implied power or jurisdiction under s. 57(3) of the Provincial Offences Act to compel Broomfield to disclose or producethose financial documents to the prosecution for the purposes of sentencing, as three of the five criteria are present for finding that thisstatutory court has the power or jurisdiction by necessary implication to do so, which criteria had been outlined by Laskin J.A. inNishnawbe Aski Nation v.

Eden (Pierre v. McRae), 2011 ONCA 187 , [2011] O.J. No. 988 (Ont. C.A.) and adopted byLaForme J.A. in R. v. Fercan Developments Inc., 2016 ONCA 269 , [2016] O.J. No. 1925 (Ont. C.A.). The three criteria thatthe prosecution contend are present in the case at bar are the following: (

i) When the jurisdiction sought is necessary to accomplish the objects of the legislative scheme and is essential to the statutory bodyfulfilling its mandate; (ii) When the enabling act fails to explicitly grant the power to accomplish the legislative objective; and (iii) When the mandate of the statutory body is sufficiently broad to suggest a legislative intention to implicitly confer jurisdiction. [23] Furthermore, the prosecution submits that because s. 57(3) of the Provincial Offences Act is a procedural provision rather than asubstantive provision, then s. 57(3), which is a procedural provision can be interpreted more liberally than in the case of a substantiveprovision. [24] In addition, the prosecution submits that the principle of strict

interpretation is also more relaxed where the statute in questionrelates to regulatory or provincial offences, as opposed to purely criminal statutes.

[ 25 ] However, in response to the prosecution’s argument that Broomfield should be compelled to produce his personal, as well as his business’s financial documents, Broomfield submits that an order compelling him to produce his financial documents to the prosecution is specifically prohibited by section 57(3) of the Provincial Offences Act . In particular, Broomfield submits that the language of s. 57(3) is clear and unambiguous, and as such, there is no need to "look beyond the text" of the

section and to "examine the context and the purpose of the legislation", as has been suggested by the prosecution. Broomfield also submits that there no "legislative silence" or a gap in the legislative scheme such that creative

interpretation of s. 57(3) is required.

Moreover, Broomfield suggests that the purpose of s. 57(3) is clear: that a court "may" make inquiries of an offender's economic circumstances prior to rendering a sentence, "but the defendant shall not be compelled to answer." [ 26 ] In addition, Broomfield acknowledges that if an offender chooses not to respond to the sentencing judge’s inquiries in regards to the offender’s economic circumstances in the sentencing hearing, then the offender would do so at their peril because the sentencing judge could then reasonably infer that the offender does not lack an inability to pay a fine.

As well, Broomfield acknowledges that an offender who seeks a reduced fine at the sentencing hearing, but then presents no or insufficient evidence in support of such a request, also would do so at their peril.

Therefore, Broomfield contends that in all circumstances, it is an offender’s choice at the sentencing hearing whether or not to disclose evidence of an inability to pay a fine, but that in any event, the offender cannot be compelled to disclose their personal financial records and documentation if they choose not to. [ 27 ] Moreover, Broomfield submits at the moment, no submissions or representations have been made to Broomfield by the prosecution in respect to the quantum of the appropriate fine.

However, based on comments made by the prosecutor during the trial, Broomfield submits that he assumes that the prosecution’s promise to seek the maximum penalty would remain in effect. [ 28 ] Broomfield also contends that no amount of statutory

interpretation can contradict the clear language of section 57(3) of the Provincial Offences Act . In particular, Broomfield submits that under s. 57(3) , the sentencing court on its own motion, may ask for particulars of an offender’s economic circumstances, with a goal of imposing a fair and appropriate fine, but that the offender cannot be compelled to answer the court’s inquiry. Furthermore, Broomfield submits that Lane J. in R. v. Wells , [2003] O.J. No. 2025 (Ont.

C.J.), at para. 20 , had clearly explained why an offender cannot be so compelled, since it would violate “the fundamental principle that, at all stages in the court process, the defendant has a right to remain silent, and cannot be made a compellable witness against himself, or be required to incriminate himself.” [ 29 ] Furthermore, Broomfield submits that the prosecution is seeking to interpret s. 57(3) , so as to confer a power upon the sentencing court to order production from an offender of their financial documentation and records.

However, Broomfield submits that this is contrary to the plain wording of s. 57(3) , which only allows a sentencing court to make inquiries, before sentencing, of an offender’s economic circumstances, inquiries which an offender is not compelled to answer.

In addition, Broomfield submits that the prosecution has provided no case that is directly on point, in which a sentencing court, on its own motion, has the jurisdiction or power to compel financial documentation from an offender prior to or during a sentencing proceeding. [ 30 ] On the other hand, Broomfield submits there are cases for example, where an offender has voluntarily presented evidence at a sentencing hearing, in an effort to convince the sentencing judge that they are unable to pay a substantial fine.

In such circumstances, a sentencing judge may accept some, none, or all of the proffered evidence in making their decision as to the appropriate sentence.

Furthermore, for the present application, Broomfield submits that none of the cases provided by the prosecution had disclosed that the sentencing judge had compelled production of financial documents from the offenders; rather that the evidence had been provided voluntarily by the offender. [ 31 ] Furthermore, Broomfield contends that the search warrant provisions in s. 487 of the Criminal Code or s. 158 of the Provincial Offences Act , provide a mechanism based on prior judicial authorization, for obtaining the financial information or evidence sought by the prosecution.

However, Broomfield submits that before such warrants can be granted there is a requirement that there be reasonable and probable grounds. As such, Broomfield contends that the prosecution’s application requesting that Broomfield be compelled to disclose or produce to the prosecution his personal, as well as his business’s financial documents, circumvents the search warrant process, which also bypasses the checks and balances that go hand-in-hand with prior judicial authorization based on reasonable and probable grounds.

As such, Broomfield contends that the prosecution’s application may be viewed as an attempt to circumvent the search warrant provisions of the Criminal Code and the Provincial Offences Act , and thereby avoids s. 8 Charter scrutiny. [ 32 ] Broomfield also contends that the prosecution’s application is premature and that they have gotten the cart before the horse, since the sentencing hearing has not even commenced, and also because Broomfield may in any event agree to the sentence sought by the prosecution.

However, at this point, Broomfield submits that he does not even know what the prosecution is seeking for a sentence.

[33] Furthermore, Broomfield submits that s. 57(3) of the Provincial Offences Act in plain language specifically prohibits the orderbeing sought by the applicant and is a complete answer to the prosecution’s application, since s. 57(3) expressly allows for a sentencingcourt to inquire about the economic circumstances of the offender at the sentencing hearing, but it also clearly expresses that the offenderis not legally obligated or compelled to answer.

In addition, Broomfield acknowledges that if he does rely on an inability to pay a fine,then it would be incumbent on him to call evidence on that inability to pay the proposed fine, and that if he fails to call any evidence onhis inability to pay, then Broomfield understands that the trial judge could reasonably infer that Broomfield would indeed have theability to pay the proposed fine. Furthermore, Broomfield submits that the relief sought by the prosecution is not supported by therelevant legislation or caselaw, and if granted, would violate the respondent's right to remain silent, as held in R v.

Wells, [2003] O.J.No. 2025 (Ont. C.J.), at para. 20. [34] Accordingly, Broomfield argues that the plain meaning reading of s. 57(3) makes it clear that he cannot be compelled to answerquestions put to him.

Therefore, on those grounds, Broomfield requests an order dismissing the Crown’s application for an ordercompelling production of Broomfield’s financial documentation. [35] However, the prosecution in response to the argument that Broomfield cannot be compelled to produce his personal, as well ashis business’s financial documents, contends that the s. 57(3) protection only applies to Broomfield’s oral testimony at the sentencinghearing and not to processes that do not involve Broomfield giving testimony at the sentencing hearing. [36] And, in reply to Broomfield’s self-incrimination and search warrant argument opposing an order compelling the production ofBroomfield’s financial documents to the prosecution, the prosecution submits that Broomfield misunderstands the prosecution’s request,as the purpose behind s. 158 of the Provincial Offences Act is to empower a justice to issue a search warrant where there are reasonablegrounds to believe that the search will provide evidence of an offence that has not been proven in court.

In other words, the prosecutionargues that the prosecution’s request is not an attempt to circumvent the search warrant provisions under s. 158 of the ProvincialOffences Act or s. 487 of the Criminal Code in order to obtain evidence with respect to an offence that has not been proven in court,since Broomfield has already been found guilty of committing two offences under the Electricity Act, 1998, and that the purpose of theprosecution’s request is not to obtain incriminating evidence, but rather to acquire financial documents to assist in determining theappropriate penalty.

Furthermore, the prosecution submits that courts have recognized that defendants have different rights in asentencing hearing than they would have before they had been convicted. In addition, the prosecution submits that courts have also heldthat s. 11(

c) of the Charter does not apply during a sentencing hearing, since the offender is no longer “a person charged with an offence”once they have been convicted: R. v. M. (I.G.) [R. v. McPherson], (NWT SC), [1997] N.W.T.J. No. 29 (N.W.T.S.C.),at paras. 7 and 8. 4. ANALYSIS (

A) Why Are Broomfield’s Personal, As Well As His Business’s Financial Documentation, Necessary And Relevant To TheDetermination Of A Fit And Just Sentence? [37] The prosecution submits that it cannot fulfill its duty in suggesting an appropriate sentence, nor in the same vein, can thesentencing court fulfil its mandate of determining a fit and appropriate sentence without knowing the financial circumstances of theoffender. Ergo, are Broomfield’s personal, as well as his business’s financial documents, relevant to the proper determination ofBroomfield’s sentence? [38] Under 113.20(1)(

d) of the Electricity Act, 1998, S.O. 1998, c. 15, Sch. A., Broomfield is subject to a maximum fine of $50,000 orto a period of imprisonment of not more than one year, or to both a fine and a period of imprisonment, respectively for each ofBroomfield’s two convictions. [39] Therefore, if Broomfield were to be fined for committing the two offences he had been convicted of, then one of the key factorsto consider in determining a fit and appropriate sentence is Broomfield’s ability to pay a fine within a reasonable time.

(1) A sentencing court for a criminal offence is legally required to investigate an offender’s “ability to pay” before imposing afine. [40] The importance and determination of an offender’s “ability to pay” a fine for criminal offences had been considered by the

Supreme Court of Canada in R. v. Topp, 2011 SCC 43 , [2011] S.C.J. No. 43. In that case, the Supreme Court had to be decidewhether the trial judge, who had not imposed a fine against the convicted owner of a customs brokerage business that hadmisappropriated $4.7 million dollars from his business, had erred in law in declining to impose a fine. The Supreme Court had to alsodetermine whether the trial judge had been legally bound to impose a fine, especially when the convicted owner, Topp, had failed toreasonably explain what had happened to that ill-gotten $4.7 million dollars.

The trial judge in the Topp case had not imposed a fine, asshe had not been persuaded that Topp had the ability to pay a fine sought by the Crown due to the lack of any evidence of Topp’s abilityto pay a fine, even though Topp had taken and defrauded an amount of $4.7 million dollars. Fish J., writing for the Supreme Court, hadheld at paras. 9 to 20 in R. v. Topp, that as a matter of law, the court cannot impose a fine unless it is satisfied that the offender is able topay, which necessarily involves an affirmative finding based on the evidence and information that is properly before the court.

In short,Fish J. had held that the sentencer must be satisfied that the offender is able to pay the contemplated fine before the fine could legally beimposed. Moreover, Fish J. had noted that the legislative purpose behind the fine provisions in the Criminal Code had been to preventoffenders from being fined amounts in which they would be truly unable to pay, and to correspondingly reduce the number of offenderswho would be incarcerated for defaulting in the payment of fines. In addition, Fish J. had emphasized that the effect of the fineprovision in the Criminal Code had been previously described in R. v.

Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, at para. 47, as thesituation where Parliament had rejected in general the notion that a fine should be set without regard to an offender's ability to pay. And,as such, Fish J. noted that a “means inquiry” is now a condition precedent to the imposition of a fine except where otherwise provided bylaw [emphasis is mine below]: Mr. Topp was the owner and manager of Topp Customs Services Inc., a brokerage business that helped importers determine and satisfytheir customs obligations.

Between 1999 and 2001, on more than 400 separate occasions, he instead helped himself to a total of morethan $4.7 million entrusted to his firm for that purpose. In each instance, Topp Customs collected from its clients the duties and taxesproperly payable to the government, but submitted false documents to Canada Customs indicating that the clients owed little or nothing. Mr. Topp was convicted at trial of 16 counts of fraud and attempted fraud under s. 153(

c) of the Customs Act, R.S.C. 1985, c. 1 (2ndSupp.). His convictions are not in issue. The sole issue on this appeal is whether the trial judge, Baltman J., erred in law in declining to impose a fine, pursuant to the Crown'srequest. More particularly, the decisive question is whether Judge Baltman misapplied s. 734(2) of the Criminal Code. More particularlystill, the question is whether Judge Baltman was bound to impose a fine in light of Mr. Topp's failure to explain what had happened tothe $4.7 million he was found by the judge to have misappropriated. Section 734(2) provides: 734... .

(2) Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court mayfine an offender under this

section only if the court is satisfied that the offender is able to pay the fine or discharge it under

section

Section 736 provides that "[a]n offender who is fined under

section 734 may ... discharge the fine in whole or in part by earning creditsfor work performed during a period not greater than two years in a [provincial] program established for that purpose". Ontario has notestablished such a program. Accordingly, unless the judge was satisfied that Mr. Topp was able to pay the fine, no fine could legally beimposed. Judge Baltman declined to impose a fine. After considering counsels' submissions, she explained her conclusion this way: There is virtually no information about what Mr.

Topp did with the stolen funds; the Crown attempted to trace the funds and found thatsome monies had been transferred to a bank account in Antigua, but there was nothing left to re-cover. Mr. Topp appears to have fewtangible assets, and so where the money went remains a mystery. ... ... As I am not persuaded the accused has the ability to pay a fine, none is imposed. [paras. 6 and 33] …

Subject to s. 734(2), the court may impose a fine "in addition to or in lieu of any other sanction" that the court is required or authorizedto impose (s. 734(1)(a)). In this case, the Crown urged the court to impose a fine in addition to a lengthy term of imprisonment. In other cases, the offender seeksthe imposition of a fine in lieu of a more severe punishment. Moreover, the court may impose a fine where none is requested by eitherside.

Section 734(2) applies in all three instances: The court can only impose a fine if it is satisfied, on the basis of the record before it,that the offender has the means to pay the contemplated fine (or to discharge it under s. 736). The legislative purpose behind s. 734(2) is to prevent offenders from being fined amounts that they are truly unable to pay, and tocorrespondingly reduce the number of offenders who are incarcerated in default of payment.

In proposing its adoption in 1994, the then-Minister of Justice explained the rationale behind s. 734(2) this way: [TRANSLATION] At the present time, nearly a third of the people liable to incarceration in provincial jails are in that situation becausethey did not pay fines... . The bill recognizes this situation. These provisions state that the court must be convinced that the offender can pay the fine contemplated before imposing it. (House of Commons Debates, vol. 133, 1st Sess., 35th Parl., September 20, 1994, at p. 5872) And the effect of the provision was thus described by this Court in R. v.

Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, at para. 47: ... Parliament rejected in general the notion that a fine should be set without regard to an offender's ability to pay. A means inquiry isnow a condition precedent to the imposition of a fine except where otherwise provided by law. An affirmative finding that an offender is able to pay is therefore required before a fine can be imposed.

In the absence of evidencecapable of supporting that finding, the party seeking a fine cannot succeed. [41] However, even before the Supreme Court had held that a sentencing court for a criminal matter should only impose a fine wherean offender has the ability to pay, Martin J.A. for the Court of Appeal for Ontario in R. v. Snider, (1977), (ON CA),37 C.C.C. (2d) 189, [1977] O.J. No. 996 (Ont.

C.A.), had similarly held, at paras. 6 and 7, that where a fine is an appropriate disposition,the trial judge should only impose a fine that is within the offender's ability to pay, bearing in mind of the possibility that the trial judgemay extend the time for payment; otherwise a custodial sentence would result from an inability to pay the fine: Counsel for the Crown does not dispute that the appellant is unable to pay the fine imposed.

Having, decided that a fine is anappropriate disposition, the trial judge should only impose a fine that is within the offender's ability to pay, bearing in mind of course,the possibility that he may extend the time for payment. Otherwise a custodial sentence results from inability to pay the fine. We have carefully considered whether we ought in this case to substitute a custodial sentence in lieu of the fine imposed by the trialjudge on the basis that it was an inappropriate disposition, as was done in Regina v. Hall (1968) 52 Cr. App. R. 736.

We think, however,in the particular circumstances of this case, that we should not interfere with the trial judge's discretion in imposing a fine. Since,however, the fine exceeds the appellant's ability to pay we have concluded that we should allow the appeal, reduce the fine to the sum of$2,400, payable over a period of two years, and in default of payment the appellant is to be imprisoned for three months, and, inaddition, the appellant will be placed on probation for two years on the statutory conditions. The appeal is allowed to give effect to thisvariation.

(

a) A sentencing court for a criminal offence is legally required to conduct a “means inquiry” before imposing a fine. [42] Ergo, as held by the Supreme Court in R. v. Topp, 2011 SCC 43 , [2011] S.C.J. No. 43, the sentencing court as a matterof law cannot impose a fine for a criminal offence unless it is satisfied that the offender is able to pay. Moreover, the Supreme Courtconfirmed that a “means inquiry” is now a condition precedent to the imposition of a fine for a criminal offence, except where it isotherwise provided by law.

Furthermore, the Supreme Court in Topp recognized that as a matter of practice, that the party seeking thefine has the burden to establish the ability to pay the fine being sought. But more importantly, the Supreme Court held in Topp that in asentencing hearing, offenders do not have a formal evidential or persuasive burden of proof that they are unable to pay a fine, butnevertheless an offender is entitled to present any evidence or information admissible on sentence that tends to show that the offender isunable to pay.

In addition, the offender remains free to argue that the evidence relied on by the proponent of the fine should not satisfythe court that the offender is able to pay. Additionally, the Supreme Court held in Topp that in determining whether the record containssufficient evidence to satisfy the sentencing court that the offender can afford to pay the contemplated fine, the sentencing judge must besatisfied, on a balance of probabilities, of the offender's ability to pay. [43] In addition, Martin J.A. for the Court of Appeal for Ontario had held at para. 5 in R. v. Rasper, [1978] O.J. No. 334 (Ont.

C.A.),that it is an error in principle if the trial judge imposes a fine for a criminal offence without making any investigation to assure that a fineof a certain magnitude could be paid by the appellant: In our view, the trial judge erred in principle in imposing a fine of $25,000 without making any investigation to assure himself that a fineof that magnitude could be paid by the appellant. [44] Furthermore, in R. v.

Ward (1980), (ON CA), 56 C.C.C. (2d) 15, the Court of Appeal for Ontario held at para.10, that where a fine is an appropriate penalty for a criminal offence, a fine should not be imposed without having regard to the means ofthe offender and without having regard to whether it can be paid within a reasonable time.

In addition, the Court of Appeal confirmedthat it would be an error in principle to not impose a custodial sentence and instead impose a fine in lieu of a custodial sentence, where acustodial sentence is required to be imposed following a conviction [emphasis is mine below]: We would also observe that, where a fine is an appropriate penalty, a fine of such magnitude should not be imposed, that having regardto the means of the offender, it cannot be paid within a reasonable time. In our view, the imposition of a fine in lieu of a custodialsentence in this case reflects an error in principle.

The principle has been clearly expressed by this Court on many occasions, and byother appellate courts in Canada that, save in exceptional circumstances, a custodial sentence is required to be imposed following aconviction for trafficking in the more dangerous drugs, of which Methamphetamine is one. We are of the view that there were, at the timeof sentencing, no exceptional circumstances which justified a departure from that principle in the present case, having regard to thenature of the drug, the quantity involved and the obvious commercial nature of the transaction.

The fact that the offender had, during theinterval between the commission of the offence and his trial, rid himself of his drug dependency, was a mitigating circumstance but notan exceptional circumstance, nor was the fact that he was at the time of sentence gainfully employed an exceptional circumstancealthough it was a factor which was entitled to due weight. (

i) Before imposing a fine, should the sentencing court for a regulatory offence also make inquiries about the offender’s abilityto pay? [45] Even though the Supreme Court had held that a “means inquiry” was legally required before a sentencing court could impose afine on an offender convicted of a criminal offence, is the same “means inquiry” required to be undertaken by a sentencing court of anoffender for a regulatory offence before a fine can also be imposed? [46] Moreover, while considering an appeal of sentence for a regulatory offence, Justice Lane confirmed in R. v. Wells, [2003] O.J.No. 2025 (Ont.

C.J.), at paras. 20 to 23, that it is indeed an error in principle for the sentencer to impose a fine without conducting aninvestigation into the offender’s ability to pay, or to impose a fine which the offender lacks the means to pay within a reasonable time.

However, as it pertains to the present application by the prosecution, Justice Lane also emphasized that the sentencing judge has thejurisdiction to ask questions of the offender, but that such power is not unconstrained, as questions about the offence cannot be asked ofthe offender, since this could lead to the offender volunteering information that could put the offender into greater jeopardy. Moreover,Justice Lane pointed out that at all stages in the court process, the defendant has a right to remain silent, and cannot be made acompellable witness against himself, or be required to incriminate himself.

Lane J. also noted that s. 57(3) of the Provincial OffencesAct made it quite clear that the defendant could not be compelled to answer questions put to him.

In addition, Lane J. confirmed that thepower under s. 57(3) is directed particularly to the financial circumstances of the defendant, so that a defendant’s capacity to pay can beconsidered in imposing an appropriate sentence and that it would be an error in principle for the sentencing court to impose a finewithout conducting an investigation into the defendant's ability to pay, or to impose a fine which the defendant would lack the means topay within a reasonable time [emphasis is mine below]:

The conduct of the sentencing hearing raises significant concerns. The crown made no submissions as to sentence, and put forth noaggravating facts upon which sentence should be based. As the appellant was unrepresented, the presiding Justice proceeded to askquestions on which to base his sentence. As required by s. 57(1) of the Provincial Offences Act, he asked the defendant if he had anythingto say before sentence is passed.

Section 57(3) of the P.O.A. also provides that "the court may make such inquiries, on oath or otherwise, of and concerning the defendant as it considers desirable, including thedefendant's financial circumstances, but the defendant shall not be compelled to answer." Although the Justice clearly has jurisdiction to "make inquiries" as indicated, his power to do so is not unconstrained. Questions can beasked about the defendant, but not about the offence: Drinkwater and Ewart, Ontario Provincial Offences Procedure, Carswell, 1980, p.218. This is an important distinction.

Questions about the offence are inappropriate as they can (as they did in this case) lead to thedefendant "volunteering" additional information which can place him or her in greater jeopardy. This violates the fundamental principlethat, at all stages in the court process, the defendant has a right to remain silent, and cannot be made a compellable witness againsthimself, or be required to incriminate himself. The statute itself makes it clear that the defendant cannot be compelled to answerquestions put to him.

The power under s. 57(3), furthermore, is directed particularly to the financial circumstances of the defendant, so that his capacity to paycan be considered in imposing an appropriate sentence. It has been found, for example, that it is an error in principle to impose a finewithout an investigation into the defendant's ability to pay, or to impose a fine which he or she lacks the means to pay within areasonable time: Czumak v. Etobicoke (City), [1994] O.J No. 2247, September 16, 1994, Fairgrieve J., Ont. Prov. Ct. In this case, the presiding jurist made no inquiries about Mr.

Wells, nor about his financial circumstances. At the conclusion of thesentencing hearing, we know nothing about who he is, what his circumstances were since 1992, what he does for a living, nor how much(if anything) he earns. … [47] Moreover, in Real Estate Council Of Ontario v. Wang, [2013] O.J. No. 4294 (Ont. C.J.), Fairgrieve J. held, at para. 22, that theprinciples from the criminal law for the determination of whether a fine should be imposed would equally apply in the sentencing of anoffender for a regulatory offence.

Fairgrieve J. also identified the principle that applies when a fine is an appropriate penalty, which isthat the sentencing judge should only impose a fine that is within the offender’s ability to pay within a reasonable time.

Moreover,Fairgrieve J. held that it would be an error in principle for a sentencing judge to impose a fine without inquiring into the offender‘sfinancial circumstances, as contemplated by s. 57(3) of the Provincial Offences Act, as well as an error in principle to impose fines thatwere clearly excessive and well beyond the offender’s ability to pay [emphasis is mine below]: There is no confusion about the principles that apply in a criminal case to the imposition of fines. In R. v. Ward (1980), (ON CA), 56 C.C.C. (2d) 15 at p. 18 (Ont.

C.A.), Martin J.A. stated that "where a fine is an appropriate penalty, a fine of suchmagnitude should not be imposed, that having regard to the means of the offender, it cannot be paid within a reasonable time."Similarly, in R. v. Snider (1977), (ON CA), 37 C.C.C. (2d) 189 at p. 190 (Ont.

C.A.), Martin J.A. also stated thathaving decided that a fine is an appropriate disposition, "the trial judge should only impose a fine that is within the offender's ability topay, bearing in mind, of course, the possibility that he may extend the time for payment." I see no reason why sentences for regulatoryoffences should involve a different principle.

I am satisfied that in the circumstances here, the justice of the peace erred in principle bothby failing to inquire into the defendants' financial circumstances, as contemplated by s. 57(3) of the P.O.A., and also by going on toimpose fines that were clearly excessive and well beyond their ability to pay. The fines, in my view, were totally disproportionate to thegravity of the offences they had committed and would cause undue financial hardship to both the defendants and their numerousdependents. [48] Also, in Czumak v. Etobicoke (City), [1994] O.J No. 2247 (Ont. Ct. (Prov.

Div.)), at para. 56, Fairgrieve J., in referencing s.57(3) of the Provincial Offences Act, had held that it is an error in principle to impose a fine without conducting an investigation into theoffender's ability to pay it or to impose a fine for which the offender lacks the means to pay within a reasonable time.

Fairgrieve J. alsoexplained that s. 57(3) of the Provincial Offences Act provides the sentencing court with the power to make inquiries about theoffender's economic circumstances as it considers desirable [emphasis is mine below]: It is an error in principle to impose a fine without an investigation into the defendant's ability to pay it, or to impose a fine which he or

she lacks the means to pay within a reasonable time: see R. v. Ward (1980), (ON CA), 56 C.C.C. (2d) 15 (Ont. C.A.),and R. v. Snider (1977), (ON CA), 37 C.C.C. (2d) 189 (Ont. C.A.). As well, s. 57(3) of the Provincial Offences Actprovides that the court may make such inquiries concerning the defendant's economic circumstances as it considers desirable. In thiscase, after the prosecutor's submissions concerning sentence, Mr. Czumak stated simply, "I can't afford those fines". He went on toexplain that he and his brother did not have any assets, and that their company was almost insolvent Mr.

Czumak stated that they hadnot been paid for their last three projects. As well, although the prosecutor referred to evidence that the defendants' parents hadpurchased the house for $220,000 and that it was then listed for sale at $449,000, Mr. explained that with the cost of the property andthe construction, there would be Czumak little profit.

The purpose of the project had been to demonstrate their workmanship to obtainspin-off work, and because the house had been over-improved for the area, their margin was very slim. [49] Ergo, before imposing a fine as a penalty, a sentencing court for a regulatory offence is also required in principle to investigate ormake inquiries that it considers desirable about the offender’s economic circumstances in respect to their ability to pay a fine, especiallyif there is no evidence in the record about the offender’s ability to pay a fine within a reasonable period.

(2) Who has the burden to prove an offender’s ability to pay a fine? [50] Fish J. for the Supreme Court in R. v. Topp, 2011 SCC 43 , [2011] S.C.J. No. 43, at paras. 21 and 22, had alsoconsidered whether there is a legal or persuasive burden imposed on the prosecution to prove that the offender of a criminal offence hasthe ability to pay the proposed fine.

On that issue, Fish J. held that even though the fine provisions in the Criminal Code did notformally place a legal burden on the proponent seeking a fine, there is nevertheless a burden on the party seeking the fine as a practicalmatter, since the court cannot impose a fine as a matter of law unless it is satisfied that the offender is able to pay.

And, in order todischarge that burden, Fish J. held that the proponent of the fine may rely on all the relevant material before the court on sentencing --including evidence or information provided by any other party, or otherwise properly elicited by the judge pursuant to the fine provisionsin the Criminal Code.

In addition, Fish J. held that in determining whether the record contains sufficient evidence to "satisfy" the courtthat the offender can afford to pay the contemplated fine, the trial judge must be satisfied, on a balance of probabilities, of the offender'sability to pay [emphasis is mine below]: Section 734(2) does not impose a formal burden of proof on the party seeking a fine. As a practical matter, however, it does so to thisextent. As a matter of law, the court cannot impose a fine unless it is satisfied that the offender is able to pay.

This necessarily involvesan affirmative finding based on the evidence and information properly before the court pursuant to ss. 720 to 724 of the Criminal Code.Absent a sufficient basis for that finding, the party seeking the fine cannot legally succeed. In this sense, s. 734(2) imposes a burden on the party seeking the fine to satisfy the court that the offender is able to pay.

To dischargethat burden, the proponent of the fine may rely on all the relevant material before the court on sentencing -- including evidence orinformation provided by any other party, or otherwise properly elicited by the judge pursuant, for example, to s. 723(3) of the CriminalCode. [51] Accordingly, for offences under the Criminal Code, if the Crown is proposing that a fine be imposed against the offender as anappropriate sentence, then it has to satisfy the sentencing court that the offender is able to pay by relying on all the relevant materialbefore the court on sentencing, including evidence or information provided by any other party, or otherwise properly elicited by thesentencing judge. (

a) What is the standard of proof for proving that the offender has the ability to pay a fine? [52] In R. v. Topp, 2011 SCC 43 , [2011] S.C.J.

No. 43 (S.C.C.), at paras. 24 to 26, Fish J. held that in determining whetherthe record contains sufficient evidence to "satisfy" the court that the offender can afford to pay the contemplated fine for a criminaloffence, the trial judge must be satisfied on a “balance of probabilities” of the offender's ability to pay [emphasis is mine below]: In determining whether the record contains sufficient evidence to "satisfy" the court that the offender can afford to pay the contemplatedfine, the trial judge must be satisfied, on a balance of probabilities, of the offender's ability to pay.

The balance of probabilities standardis appropriate, in the context of s. 734(2), for two reasons. First, as a logical matter, the word "satisfied" in this context cannot signify anything less than the balance of probabilities standard. It

would make little sense for a trial judge to be satisfied that an offender could pay a contemplated fine, but not believe that the offenderwas, more likely than not, able to pay it. Second, the balance of probabilities standard accords with s. 724(3)(

d) of the Code. Section 724(3)(

d) states: 724 ... .

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, ... (

d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relyingon it in determining the sentence ... Paragraph (

e) states that aggravating facts must be proved by the Crown beyond a reasonable doubt. The finding that an offender is ableto pay a fine is not an aggravating fact. (

b) Does an offender have any evidential or persuasive burden to prove an inability to pay a fine? [53] In R. v. Topp, 2011 SCC 43 , [2011] S.C.J. No. 43 (S.C.C.), at paras. 23 and 36, Fish J. had also considered whetherParliament had explicitly placed an evidentiary burden on the offender to prove an inability to pay a fine as a penalty for a criminaloffence, since the offender is in a better position to obtain and adduce relevant evidence about their finances.

In resolving that question,Fish J. indicated that even though Parliament had well understood that the offender would be better positioned to produce evidence oftheir finances than the Crown, Parliament had nonetheless explicitly chosen to require an affirmative finding that the offender is able topay a fine, rather than requiring the offender who opposes a fine to satisfy the court that they are unable to pay a fine.

On the otherhand, Fish J. held that the party opposing a fine -- often, but not always, the offender -- is entitled, of course, to present any evidence orinformation admissible on sentence and tending to show that the offender is unable to pay.

However, Fish J. noted that the party, inopposing the fine, does not assume a formal evidential or persuasive burden of proof, but that he or she remains free to argue that theevidence relied on by the proponent of the fine should not satisfy the court that the offender is able to pay [emphasis is mine below]: The party opposing a fine -- often, but not always, the offender -- is entitled, of course, to present any evidence or information admissibleon sentence and tending to show that the offender is unable to pay.

But that party, in opposing the fine, does not assume a formal burdenof proof -- evidential or persuasive. He or she remains free to argue that the evidence relied on by the proponent of the fine should notsatisfy the court that the offender is able to pay. … Second, the Crown's argument disregards the text of s. 734(2). It may be desirable from a truth-seeking perspective to place anevidentiary onus on the party that is best positioned to produce evidence. Parliament well understood that the offender is betterpositioned to produce evidence of his finances than the Crown.

But Parliament has nonetheless explicitly chosen to require anaffirmative finding that the offender is able to pay a fine, instead of requiring the offender who opposes a fine to satisfy the court that heor she is unable to pay. [54] Ergo, on the admissible evidence, the sentencing judge must be satisfied on a balance of probabilities that the offender is able topay a fine before imposing a fine, while the offender has no legal or evidential burden to prove an inability to pay a fine and can simplyargue that the evidence on record relied on by the prosecution, who is seeking the fine, should not satisfy the court that the offender isable to pay.

However, despite not having a legal or evidential burden to prove an inability to pay, the offender is still entitled to presentor adduce any evidence or information admissible in the sentencing hearing that would tend to show that the offender is unable to pay afine.

(3) Can a sentencing court infer that an offender has the ability to pay a fine based on the funds or moneys obtained by the

offender during the commission of the offence? [55] Fish J. also held in R. v. Topp, at paras. 27 to 29, that in the absence of a reasonable explanation of what had happened to themisappropriated funds or funds obtained by the offender in respect to the offences that he has been convicted of, the sentencing judgecould infer that the offender was still in possession of sufficient funds to pay a fine at the time of sentencing. However, Fish J. also heldin R. v.

Topp that a sentencing judge is not bound or permitted as a matter of law to find that an offender still possesses the fruits of theoffence, based simply on the offender’s failure to explain what had happened to the funds [emphasis is mine below]: In the absence of a reasonable explanation to the contrary, past receipt of illegally obtained funds will often -- but not always -- supportan inference that the offender still possesses sufficient funds to pay a fine at the time of sentencing: R. v. Grimberg (2002), (ON CA), 155 O.A.C. 296, at paras. 17-20; R. v.

Desjardins (1996), (NB CA), 182 N.B.R. (2d) 321 (C.A.), atpara. 29; R. v. Dow (1976), 1 C.R. (3d) S.-9 (B.C.C.A.), at pp. S.-14 to S.-15; R. v. Noseworthy, 2000 NFCA 45, 192 Nfld. & P.E.I.R.120, at para. 21; R. v. Guppy (1995), 16 Cr. App. R. (S.) 25 (C.A.). See also R. v. Johnson, 2010 ABCA 392, 493 A.R. 74, at para. 23; R.v. Castro, 2010 ONCA 718, 102 O.R. (3d) 609, at para. 34, which deal with restitution orders, a related but different matter. As stated earlier, the strength of that inference will depend on the circumstances and vary from case to case.

None of the casesmentioned have addressed the issue in the precise circumstances of this case. Nor have they fully canvassed the legal issue before us onthis appeal: Is a trial judge not only permitted, but bound as a matter of law, to find that an offender still possesses the fruits of hiscrime, unless the offender explains what happened to the funds? I would answer that question in the negative, essentially for two reasons. (

a) Does an offender have to provide a reasonable explanation of what had happened to any funds or moneys that had beenobtained by the offender during the commission of the offence? [56] On the question of whether an offender at a sentencing hearing of a criminal offence has to provide a reasonable explanation ofwhat had happened to the funds or moneys that had been obtained by the offender during the course of committing the offence, Fish J.held in R. v.

Topp at paras. 33 to 36, that even though it may be desirable from a truth-seeking perspective to place an evidentiary onuson the party that is best positioned to produce evidence, Parliament had nonetheless explicitly chosen through s. 734(2) of the CriminalCode to require the sentencing court to make an affirmative finding that the offender is able to pay a fine, instead of requiring theoffender who opposes a fine to satisfy the court that he or she is unable to pay, despite Parliament having understood that the offender isin a better position to produce evidence of their finances than the Crown [emphasis is mine below]: The Crown submits that the offender bears an onus to explain what happened to the funds because the offender is in a better position toobtain and adduce relevant evidence than the Crown. … This submission is attractive at first glance but loses its appeal on closer scrutiny.

First, the Crown is not required to identify or locate the specific assets that the offender can use to pay the fine, though direct evidence ofthis sort, when available to the Crown, is by its nature particularly persuasive. In its absence, the Crown may instead rely on varioustypes of indirect evidence to satisfy the trial judge of the offender's ability to pay -- including evidence that the offender had possession ofimpugned funds in the relatively recent past, evidence of an ongoing lavish lifestyle, and evidence of the offender's earning potential.

Second, the Crown's argument disregards the text of s. 734(2). It may be desirable from a truth-seeking perspective to place anevidentiary onus on the party that is best positioned to produce evidence. Parliament well understood that the offender is betterpositioned to produce evidence of his finances than the Crown. But Parliament has nonetheless explicitly chosen to require anaffirmative finding that the offender is able to pay a fine, instead of requiring the offender who opposes a fine to satisfy the court that heor she is unable to pay.

(

b) Is the prosecution required to locate and trace the funds or moneys that ha

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