Is your client facing a significant mandatory minimum fine under the Compulsory Automobile Insurance Act? What about under the Highway Traffic Act? There are several provincial statutes that require an individual or corporation convicted of an offence to pay a mandatory minimum fine. When faced with a mandatory minimum fine in Provincial Offences Court that would impose undue hardship on your client, section 59(2) gives counsel a powerful sentencing tool.
Minimum Fines and Section 59(2): What They Are and Where They Come From
The tool is found in section 59(2) of the Provincial Offences Act, R.S.O. 1990, c. P.33, which permits the court discretion to impose a lesser fine or suspend the sentence provided “exceptional circumstances exist” such that the imposition of the minimum fine would be unduly oppressive or otherwise contrary to the interests of justice. It applies only where the offence provision explicitly declares a minimum penalty. Set fines do not constitute minimum fines. For instance, the amount of fines for speeding under s.128(14) of the Highway Traffic Act are fixed. The courts have no discretion to reduce these fines.
A prosecutor does not have the authority to reduce a mandatory minimum fine; only the presiding justice has the discretion to grant relief under section 59(2). However, that said, counsel can inquire with the prosecutor to determine whether submissions for relief will be on consent or opposed. This will assist counsel to plan more effectively for sentencing, including estimating how much court time will be needed and determining the scope of supporting documents or evidence that should be prepared.
Before Court: Identifying Whether Your Client May Qualify for Section 59(2) Relief
Before preparing a section 59(2) submission, counsel should ask a practical question: would payment of the mandatory minimum fine be merely inconvenient for this client or would it be genuinely unduly oppressive in light of this client’s particular circumstances? Only the latter can justify a reduction in the minimum penalty.
Counsel can begin answering this question by carefully exploring the client’s personal and financial circumstances to determine whether payment of the minimum fine would create hardship. Relevant considerations may include recent or prolonged unemployment, housing insecurity, martial or family status, the presence of dependents, monthly income and expenses, disability, reliance on social assistance, or any other circumstances affecting the client’s ability to pay.
Counsel should also be prepared to support these submissions with documentary evidence where available, such as pay stubs, benefit statements, employment termination letters, medical documents, loan statements, arrears or eviction notices, or consider having the client attend court to give evidence confirming their circumstances.
A brief note should be made regarding corporate defendants. While relief from a minimum fine on the basis of “unduly oppressive” hardship is not categorically unavailable to corporations, it will generally be rare. That ground is typically reserved for individuals who can demonstrate extreme personal hardship arising from their unique circumstances. Corporations seeking relief will more commonly need to rely on the broader “interests of justice” branch of section 59(2).
The “Interests of Justice” Ground
The “interests of justice” branch of section 59(2) is broad in language but not unlimited in scope. It does not give the court an open-ended discretion to avoid imposing a minimum fine simply because it appears harsh or undesirable in a given case. Rather, its meaning is shaped and constrained by the statutory context in which it appears.
Counsel should be mindful of the constraints sentencing justices are under in a section 59(2) analysis. Justices are required to exercise their discretion in a contextual and principled way keeping in mind the purpose of the legislation and the provision itself.
Counsel should have a good understanding of the purpose of the legislation creating the minimum fine and the broader public interests in instituting the fine.
A bald appeal to “fairness” alone is not enough. The court is not permitted to decline to apply a minimum fine simply because it seems unfair in the circumstances. Any decision to grant relief under the “interests of justice” branch must be grounded in articulated, principled reasons that explain why the discretion is being exercised in accordance with section 59(2). In the provincial offence context, this means the court must keep in mind the Legislature’s decision to promote deterrence through mandatory minimum fines. The analysis must therefore balance the individual circumstances of the defendant with the broader public interest protected by the regulatory scheme.
For example, the Compulsory Automobile Insurance Act sets a minimum fine of $5,000 for any owner who operates their vehicle without insurance or permits another individual to operate their vehicle without insurance. This is a significant penalty, especially for people of modest means, but the Legislature requires all drivers to carry insurance and enforces that obligation through a mandatory minimum fine aimed at general and specific deterrence. Insurance protects the public by ensuring that an individual can receive assistance if harmed in a collision and would be left significantly vulnerable if injured by an uninsured driver. Therefore, the aim of the legislation is to make the penalty of not having insurance more burdensome than having purchased a contract of insurance. A Justice will be looking for counsel to establish that the fine is “unduly oppressive” rather than simply showing that the fine is difficult to pay.
The Ontario Court of Appeal Clarifies Limits on Reducing Minimum Fines
In Ontario (Environment, Conservation and Parks) v. Henry of Pelham Inc., the Ontario Court of Appeal dealt with an environmental offence involving Henry of Pelham Inc., a winery that plead guilty to discharging material into a creek contrary to Ontario’s environmental laws. Under the Ontario Water Resources Act, the offence carried a mandatory minimum fine of $25,000. However, the trial judge imposed a much lower fine after considering factors such as the company’s cooperation, guilty plea, lack of prior offences, the immediate remediation efforts made by the company, and weakness in the Crown’s case. The Crown appealed.
The Court of Appeal clarified how section 59(2) should be interpreted. The court noted that section 59(2) allows justices to impose a fine lower than the statutory minimum only in “exceptional circumstances” where applying the minimum would be unduly harsh or contrary to the interests of justice. The court emphasized that minimum fines are not optional guidelines but mandatory penalties created by the legislature to promote deterrence and compliance, particularly where public welfare is a factor.
The court acknowledged that terms like “exceptional circumstances” and “interests of justice” are broad and somewhat vague but held that they must be interpreted with the legislative purpose behind minimum fines.
The decision rejected the argument that proportionality alone can justify lowering a statutory minimum fine, stating:
where minimum fines are prescribed in public welfare legislation, or in the POA itself, they establish a floor – a starting point for consideration of the appropriate fine – that applies regardless of any concerns about proportionality. Proportionality is a relevant consideration in setting a fine above the prescribed minimum, but the principle cannot be invoked to subvert the Legislature’s decision to establish a minimum fine [para 50].
Attending Court: When and How to Raise a Section 59(2) Submission
Section 59(2) submission arises at the sentencing stage, in other words, after the client has been found guilty and convicted. It is therefore important to have a discussion with the client about any applicable mandatory minimum fine and the circumstances in which the court may depart from it ahead of this time.
Counsel may trigger section 59(2) by simply making an oral request asking the court for permission to argue that the mandatory minimum fine should be reduced.
Victim Fine Surcharges and Court Costs Under s. 59(2)
Counsel should be aware that there are victim fine surcharges and court costs that are mandatory and are added on top of the fine imposed by the court. This is the case even where the fine itself is reduced under s. 59(2) of the Provincial Offences Act.
For instance, fines over $1,000 are subject to an additional 25% for victim fine surcharge and court cost, which can substantially increase the total amount owing.
The court has made it clear that a section 59(2) analysis should not consider these added costs (R v. East, 2019 ONCJ 825).
Edited By: Elizabeth Fawcett (Paralegal / Municipal Prosecutor City of Kingston)
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