Greater Sudbury (City) v. Balli, 2019 ONCJ 364

ONTARIO COURT OF JUSTICE CITATION: Greater Sudbury (City) v. Balli , 2019 ONCJ 364 DATE: 2019 05 24 COURT FILE No.: Certificate 6174020B Certificate 6161042B Certificate 6330426B BETWEEN: CITY OF GREATER SUDBURY — AND — BALJINDER BALLI and DANNY SEDORE and FED JEAN-LOUIS Before Justice of the Peace J.G. McMAHON Heard on February 27, March 22, March 28 and April 16—2019 Ruling released on May 24, 2019 D. Burke....................................................................................................... for the Municipality Y.

Pilon.......................................................................................................... for the Defendants JUSTICE OF THE PEACE J.G. McMAHON: [ 1 ] Speeding contrary to s. 128 of the Highway Traffic Act , R.S.O 1990, c. H.8 (“ HTA ”) is a common offence. In 2018, some 460,420 speeding charges were laid in Ontario and some 4,841 speeding trials conducted: Ontario Court of Justice, Provincial Offences Court Statistics, online: http://www.ontariocourts.ca/ocj/stats-prov/. [ 2 ] As a result, one would think that the law governing the application of s. 128 would now be fully settled. It is not.

Some legal questions are not yet fully resolved and s. 128 continues to generate significant case law, including appellate level case law. For example, the Court of Appeal for Ontario recently confirmed that testing and operating procedures found in radar manuals are subject to first party disclosure obligations: York (Regional Municipality) v. McGuigan , 2018 ONCA 1062 . [ 3 ] The cases of Baljinder Balli, Danny Sedore and Fed Jean-Louis are all separate proceedings. They are, however, united here because they all raise a recurring legal issue with respect to sentencing of speeding offences in this jurisdiction.

Is there judicial authority to impose a speeding fine that exceeds the applicable ‘set fine’ or ‘fixed fine’ where the fine amount has been jointly proposed following an ‘early resolution’ meeting? [ 4 ] In my view, there is no such authority or discretion. In the ‘early resolution’ process, a justice of the peace must either impose the applicable “set fine” or the applicable “fixed fine” after a plea and a finding of guilty for the offence of speeding ( s. 128 HTA ). The only judicial discretion rests with the time that can be granted to the defendant to pay the fine. I.

BACKGROUND [ 5 ] Baljinder Balli, Danny Sedore and Fed Jean-Louis are all represented by Mr. Pilon. They were all issued offence notices. The prosecutions all proceeded under

Part I of the Provincial Offences Act , R.S.O. 1990, c. P.33 (‘POA’). The Defendants all elected to participate in the early resolution process, pursuant to s. 5.1 of the POA. [ 6 ] On the day set for their respective early resolution meetings, the prosecution and defence reached agreements to settle the three cases. The parties implemented their agreements: two certificates of offence were amended to reflect a lower quantum of speed of 15 km/h above the legal limit; on one certificate the charge was substituted for speeding at 10 km/h above the legal limit; Mr.

Pilon entered pleas of guilty to the amended and substituted charges; and the parties jointly proposed fine amounts well in excess of the applicable ‘set fine’ and ‘fixed fine’ amounts. [ 7 ] I expressed concern that I did not have the authority to impose the fine amounts jointly submitted. The matters were adjourned to provide the opportunity for more fulsome submissions. Those submissions were received over a number of subsequent appearances. Some in writing. [ 8 ] In the interest of convenience I have summarized the situation of each accused in the following table.

Defendant Offence Date Offence (original) Offence (amended to) Set Fine Amount Statutory Fine Amount (s. 128(14) Joint Submission Baljinder Balli 2018/11/16 Speeding (s.128) 96 km/h in a 60 km/h zone 75 km/h in a 60 km/h zone $37.50 plus costs and surcharge $45 plus costs and surcharge $500 plus costs and surcharge Danny Sedore 2018/11/10 Careless Driving (s.130) Speeding (s.128) 100 km/h in a 90 km/h zone $25 plus costs and surcharge $30 plus costs and surcharge $400 plus costs and surcharge Fed Jean-Louis 2018/11/13 Speeding (s. 128) 80 km/h in a 60 km/h zone 75 km/h in a 60 km/h zone $37.50 plus costs and surcharge $45 plus costs and surcharge $750 plus costs and surcharge I.

THE LAW [ 9 ] For the purposes of clarity , the following analysis is limited to the speeding fines arising from s.128 of the HTA , notably s. 128 (14). There are different applicable fines for such situations as speeding in a community safety zone or a construction zone where a worker is present. Their discussion is left for another day.

[10] To understand how speeding fines are applied, it is essential to accept that the legislature has decided to strictly limit judicialdiscretion with respect to the imposition of speeding fines and that the Legislature may lawfully do so: York (Regional Municipality) v.Winlow, 2009 ONCA 643, at para. 33. [11] By design, there are only two types of speeding fines that may be imposed by a justice of the peace. The ‘set fine’ is the first. Atits core, a ‘set fine’ is a reduced fine that is available where a matter settles without the scheduling of a trial or if the defendant fails toattend a scheduled

Part I trial (s. 9.1 POA). The fixed fine is the second type. It applies upon conviction after a trial or a guilty plea onthe day set for trial: see Winlow; R. v. Weber, (ON SC), [2003] O.J. No. 1491 (ONCJ); R. v. Powell, [2010] ONCJ302; R. v. Appiah, 2012 ONCJ 754; R. v. Garwal, 2016 ONCJ 217. The set fine [12] Set fines for speeding are established by the Chief Justice of the Ontario Court of Justice: POA, s. 91.1; R.R.O. 1990, Reg. 200,s.6. The ‘set fine’ system does not apply when a speeding charge proceeds by way of Information (i.e.

Part III of the POA). [13] The applicable ‘set fine’ amount is essentially derived by way of a mathematical calculation. The number of kilometres per hourtravelled above the legal limit is simply multiplied by the applicable dollar figure. It should be noted there are no ‘set fines’ amounts forspeeds of 50 or more kilometres per hour above the legal limit. The following table illustrates the applicable ‘set fines’ for speeding (s.128) on May 24, 2019.

Kilometres Set Finea) 1-19 kilometres per hour over the maximum speed limit $2.50 per kilometreb) 20-29 kilometres per hour over the maximum speed limit $3.75 per kilometrec) 30-49 kilometres per hour over the maximum speed limit $6.00 per kilometred) 50 kilometres per hour or more over the maximum speed limit No out of court settlement The fixed fine [14] The method of calculating ‘fixed fines’ for speeding is set out in section 128 (14) of the HTA. It is also essentially amathematical calculation.

The number of kilometres per hour travelled above the legal limit is multiplied by the applicable dollar figure.The provision reads as follows: Every person who contravenes this

section or any by-law or regulation made under this

section is guilty of an offence and on convictionis liable, where the rate of speed at which the motor vehicle was driven, (

a) is less than 20 kilometres per hour over the speed limit, to a fine of $3 for each kilometre per hour that the motor vehicle was drivenover the speed limit; (

b) is 20 kilometres per hour or more but less than 30 kilometres per hour over the speed limit, to a fine of $4.50 for each kilometre perhour that the motor vehicle was driven over the speed limit; (

c) is 30 kilometres per hour or more but less than 50 kilometres per hour over the speed limit, to a fine of $7 for each kilometre per hourthat the motor vehicle was driven over the speed limit; and (

d) is 50 kilometres per hour or more over the speed limit, to a fine of $9.75 for each kilometre per hour that the motor vehicle was drivenover the speed limit.

[15] In Winlow, the Court of Appeal for Ontario confirmed that: s. 128 (14) establishes ‘fixed fines’ for speeding; courts must imposethe fines as specified in the provision; and that courts have no discretion to reduce the fines. The Court of Appeal concluded that thelegislature decided to constrain judicial discretion in the sentencing of speeding. In my view, the ‘fixed fine’ regime in s. 128(14) alsonecessarily means that there is no judicial discretion to increase a fine above what the provision stipulates.

Costs and surcharges [16] For the purposes of completeness, a ‘set fine’ or a ‘fixed fine’ for speeding is not the total amount payable by a defendant. Costsare added pursuant to s. 60 of the POA and R.R.O. 1990, Reg. 945, s.1. A victim fine surcharge is also added pursuant to s. 60.1 of thePOA and O. Reg. 161/00, s.1. The total payable is the fine amount plus the cost amount and the victim surcharge. The early resolution process [17] The process of ‘early resolution’ is set out in s. 5.1 of the POA. It is an option available to persons charged with offencesprosecuted as

Part I proceedings in this jurisdiction. It is not an option available in all regions of the province. As noted above, all threedefendants exercised this option. [18] Sentencing options within the ‘early resolution’ process are set out in s. 5.1 (9) of the POA. The provision reads as follows:

(9) Upon receiving the plea and submissions under subsection (8), the justice may, (

a) require the prosecutor to appear and speak to the submissions, if the submissions were submitted under clause (8) (b); and (

b) enter a conviction and impose the set fine or such other fine as is permitted by law in respect of the offence for which the plea wasentered. [Emphasis added] [19] This provision imposes important limitations on sentencing. With respect to the offence of speeding, the presiding judicial officerhas only two sentencing options. First, he or she may impose the applicable ‘set fine’. Second, he or she may impose the applicable‘fixed fine’ in s. 128 (14).

There is simply no other fine “as is permitted by law” with respect to the offence of speeding. [20] It is common for the HTA to provide a range of fines for an offence. For example, the fine for disobeying a red light can rangefrom “not less than $200 and not more than $1,000”: s. 31.2.1 HTA. The Legislature has provided for no such discretion with respect tospeeding even within the context of the ‘early resolution’ process. Does the presence of a joint submission impact the analysis? [21] Every sentence—even one jointly submitted—must be permitted at law.

In the context of the ‘early resolution’ process, the onlylawful speeding fine is either the applicable ‘set fine’ or the applicable ‘fixed fine’. [22] The prosecution and defence cannot on consent or by joint submission create a statutory penalty, grant judicial discretion orconfer statutory jurisdiction where it does not exist. For greater certainty, In Winlow, the Court of Appeal, at para. 33, stated: Justices of the peace and provincial court judges belong to tribunals created by statute. Therefore, their jurisdiction to impose a penalty islimited by their authorizing legislation.

Neither has any inherent power. The governing principle, now well established, is that justices ofthe peace and provincial court judges have only the powers expressly or impliedly granted to them by the legislature: see R. v. 974649Ontario Inc., 2001 SCC 81 , [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79, at p. 589 S.C.R. See, also, s. 17(1) of the Justices of thePeace Act, R.S.O. 1990 c. J.4. A corollary of [page346] this principle is that although sentencing judges ordinarily have a discretion toexercise, the legislature can limit that discretion or eliminate it altogether: see R. v.

Wu, 2003 SCC 73 , [2003] 3 S.C.R. 530,[2003] S.C.J. No. 78.

[ 23 ] In R. v. Anthony-Cook , 2016 SCC 43 , the Supreme Court confirmed that a judicial officer may only reject a joint submission where the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. [ 24 ] In the present cases, the jointly submitted sentences are not legal. Giving effect to the joint submissions would necessarily bring the administration of justice into disrepute and be contrary to the public interest.

Does the Regulatory Modernization Act authorize speeding fines in excess of the ‘set fines’ and ‘fixed fines’? [ 25 ] The prosecution submits that s. 15 of the Regulatory Modernization Act, 2007 , S.O. 2007, C. 4 provides the authority to impose a speeding fine in excess of the applicable ‘set fine’ and ‘fixed fine’. I disagree. [ 26 ] The provision reads as follows: 15.

(1) This

section applies when a person who is convicted of an offence has previously been convicted of an offence under the same or another Act. 2007, c. 4, s. 15 (1) .

(2) The previous conviction may have occurred at any time, including before the day this Act came into force. 2007, c. 4, s. 15 (2) .

(3) Where the prosecutor is of the opinion that the previous conviction is relevant to the determination of the appropriate penalty for the current conviction, he or she may request that the court consider the previous conviction to be an aggravating factor. 2007, c. 4, s. 15 (3) .

(4) Where a court receives a request under subsection (3), the court shall, on imposing the penalty, (

a) indicate whether it is imposing a more severe penalty having regard to the previous conviction; and (

b) if the court decides that the previous conviction does not justify a more severe penalty, give reasons for that decision. 2007, c. 4, s. 15 (4) .

(5) Nothing in this

section shall be interpreted as limiting any factor, submission or inquiry as to penalty the court is otherwise permitted or required to take into account or make, as the case may be. [ 27 ] The provision does not mandate a more severe penalty where there is a previous conviction or convictions. A sentencing court must, however, consider imposing a more severe penalty if the prosecutor raises a previous conviction as an aggravating factor. In its sentencing decision, the court must state whether the previous conviction contributed to the imposition of a more severe penalty.

If it did not, the court must provide reasons for its decision. [ 28 ] It is important to highlight that the application of s. 15 depends on the legislature providing sentencing options or a sentencing range for an offence. A sentencing court cannot impose a more severe penalty if there are no sentencing options or a range. As noted above, Winlow confirmed (at para. 33 ) that the legislature can limit judicial discretion at sentencing or eliminate it.

At the sentencing for a speeding offence, within the early resolution process, the legislator has limited judicial discretion to the following options—the imposition of the applicable ‘set fine’ or the applicable ‘fixed fine’. Given that the ‘set fine’ is a reduced fine amount, the most severe available penalty is the ‘fixed fine’ pursuant to s. 128 (14) . [ 29 ] In my view, s. 15 of the Regulatory Modernization Act does not create or stipulate new penalties for the offence of speeding or any other regulatory offence. It does not grant judicial discretion to create new penalties.

It does not authorize a court created by statute and without inherent jurisdiction to override or disregard the statutory penalty provisions related to speeding or any other regulatory

offence. Clear, express and unambiguous statutory language would be required to do so. The provision does not provide judicial discretion to impose fines in excess of the applicable ‘set fine’ or the applicable ‘fixed fine’. The language of s.15 is simply insufficient to permit such a sweeping

interpretation. [ 30 ] In Weber , the Court pointed out that the structure of the penalty regime for speeding had the following effect. A defendant with no previous conviction would receive a similar fine as that imposed on a defendant with a record of multiple speeding convictions. The Court stated, at para. 37: It may be inferred, therefore, that the set fine provides a discount for an early plea which is a similar approach taken in criminal matters.

On the other hand, since there is no discretion to increase or lower the fine, a defendant who continues to be convicted for speeding time and again, will be fined on the same basis as a first-time offender -- which is unlike the situation in the criminal court. [ 31 ] Those words continue to carry meaning even in the light of the Regulatory Modernization Act . Within the ‘early resolution’ process, the legislature has limited the sentencing option to the ‘set fine’ or the more elevated ‘fixed fine’, including where there is a previous conviction.

Conclusion [ 32 ] For the reasons stated herein, I cannot give effect to the joint submissions proposed by the prosecution and defence. I will permit the parties to make final submissions on sentencing in light of this ruling and the fact that the prosecution, in submissions, raised the issue of previous convictions. Released: May 24, 2019 Signed: Justice of the Peace J.G. McMahon