R. v. Choice Atlantic Seafoods Inc.

R. v. Choice Atlantic Seafoods Inc. Court Supreme Court Date 2001-11-15 Citation 2001 NSSC 161 Docket S BW 5260 Judge/Registrar/Adjudicator Stewart, Margaret (Honourable Justice) Document Type Decision Relations Library Sheet - R. v. Choice Atlantic Seafoods Inc. - 2001 NSSC 161 - 2001-11-15 - Library Sheet Decision Content Date: 20011115 Docket: S.BW. 5260 IN THE SUPREME COURT OF NOVA SCOTIA [cite as: R. v. Choice Atlantic Seafoods Inc., 2001 NSSC 161] BETWEEN: CHOICE ATLANTIC SEAFOODS INC., c/o Robert Anderson,72 Queen Street, Canso, Nova Scotia APPELLANT - and - HER MAJESTY THE QUEEN, on the Information of Michael R. Bevis, Building Inspector of the District of Lunenburg RESPONDENT DECISION ON APPEAL HEARD: before the Honourable Justice Margaret Stewart, in Chambers, at Bridgewater, N.S. November 7, 2001. DECISION RELEASED: November 15, 2001 COUNSEL: Alan G. Ferrier, solicitor for the Appellant A. Franceen Romney, solicitor for the Respondent [1] This is a sentence appeal. The appellant was charged between June 29, 1999 and August 4, 1999 with failure to comply with the requirements of an Order pursuant to s. 346(1) of the Municipal Government Act, S.N.S., 1998, c. 18, made by the Municipality of the District of Lunenburg contrary to s. 348(4) of the Municipal Government Act. [2] On June 29, 1999, the appellant was ordered by the administrator under s. 346 of the Municipal Government Act, supra to remedy the unsightly condition of its property at Voglers Cove, Lunenburg County, Nova Scotia by performing certain specified acts such as to fix up and paint old buildings, remove junk, old fish boxes and pallets from the property within thirty days. [3] At the conclusion of the trial, the trial judge made specific findings: 1) that the June 29, 1999 Order by the administrator was valid and there was no necessity for a new complaint; 2) that on inspecting the photographs there was no question in her mind but that the buildings and the lands depicted in the photos came within the definition of dangerous and unsightly; 3) that it was not a defence that someone else broke the law and was not charged i.e., the neighbouring property; 4) that concentrating on compliance with the Order between the dates charged, disclosed the appellant replaced shingles in one small section of a building and mowed the grass, but during that period, did not repair the buildings or remove junk or old fish boxes from the property and that, although some effort was made, it was not enough to qualify as substantial compliance with the Order. [4] The appellant was found guilty. The passing of sentence was set over for a period of two months to see what the appellant could “do to bring the property up to the Municipality’s requirements.” A factor the Judge noted would be relevant on sentence. On September 6th, 2000 the appellant was sentenced to a $2,000 fine. [5] The company appeals contending that the sentence was harsh and excessive in the circumstances of this offender and this offence with undue emphasis on general deterrence over specific; that the learned Trial Judge erred in law by not conducting a proper sentencing hearing on disputed facts raised before her on sentencing and that the learned Trial Judge erred in law by refusing to hear the appellant’s position that the respondent had singled the appellant out for prosecution and not dealt with neighbouring buildings in a similar fashion. [6] Dealing with the second ground of appeal first, at issue is the procedure to be followed by a sentencing judge during oral informal sentencing submissions when confronted with conflicting submissions, material, assertions or facts which do not go to guilt or innocence but which have or could have a critical effect on the length/amount of the sentence. [7] Saskatchewan Court of Appeal in R. v. Poorman (1991), 6 C.R. (4th) 364 (Sask. C.A.) addressed this issue by quoting extensively and adopting the principles in two English cases: R. v. Newton (1982), 77 Cr. App. R. 13 and Williams v. R. (1984), 77 Cr. App. R. 329 (Div. Ct.). Vancise J.A. held: “Where there is a divergence of opinion or conflict of evidence not proven, the trial judge must not accept the Crown’s version of the unproven facts as related at an informal hearing. If there is a substantial conflict he must either: (1) hold a formal sentencing hearing at which time the Crown must prove the facts alleged on the criminal standard of proof, that is, beyond a reasonable doubt; or, (2) “so far as possible,” accept the accused’s version of the facts stated at the informal hearing, at which there is no evidence.” [8] As noted in Williams v. R., supra in not being prepared to proceed on the basis that the offender’s version is substantially correct, the Court must hear the evidence before forming its own view on the matter in dispute even if the evidence is very slight and no evidence is called in contradiction. This conclusion finds support in s. 724 (3)(d) of the Criminal Code. [9] The appellant was advised at the conclusion of the trial that compliance with the Municipal Order could effect the sentence. A fine ranging from $100 to $10,000 was possible. [10] When the Trial Judge learned at the sentencing hearing that the appellant had not had an opportunity to review the very recent Crown photographs of the property, upon which the Crown was relying in contending no compliance with the Order since the finding of guilty, she gave the appellant the alternative of setting the matter over to another day or, after speaking to the Crown, proceeding that afternoon to sentence. Mr. Anderson, on the appellant company’s behalf expressed the desire “to settle it this afternoon”. Despite Crown’s contention during oral informal submissions otherwise, the appellant submitted it felt it had complied with the order since the finding, as over a three day period with the help of two hired persons, the property was cleaned up, the grass was cut and four gallons of paint were applied to the buildings and stated it would like to know in what manner it had not complied. After reviewing the pictures and hearing the Crown’s explanation to the Court, although referencing the fact it had eight more gallons of paint, the appellant did not concede its position prior to the Judge proceeding to sentence. It expressed concerns about the content/selection of photographs and wanted the Court to compare the property with photographs of the neighbouring property which was not sufficiently unsightly to be charged. The differences were not resolved by a hearing with evidence. The Trial Judge in imposing the $2,000 fine did not sentence only on the basis of those facts admitted by the appellant. Other than offering the photographs for consideration, it was never suggested by Crown counsel or by the Court that the contradicting versions of events surrounding the improvements should be resolved by a hearing of evidence. [11] If the appellant’s version was to be rejected it should only have been so after a sentencing hearing with findings on a beyond reasonable doubt basis. At the very least, the appellant was entitled to the right to cross examine the author of the photographs submitted by the Crown. [12] In the circumstances, the sentence must be set aside and there is no need to comment on the other grounds. The jurisdiction of the Supreme Court in a summary conviction sentence appeal is found in s. 822(1) of the Criminal Code which in turn references the application of s. 687(1) with such modifications as the circumstances require. Section 687(1) reads as follows: 687.(1) Where an appeal is taken against sentence the court of appeal shall, unless a sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, (a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (b) dismiss the appeal. (2) A judgement of a court of appeal that varies the sentence of an accused who was convicted has the same force and effect as if it were a sentence passed by the trial court. [13] Contrary views are held as to whether in these circumstances the Criminal Code enables the Court of Appeal to remit the matter back to the Trial Judge or any other judge of the Provincial Court to hold a sentencing hearing to determine the proper sentence to be imposed. The Alberta, Quebec, British Columbia and Manitoba Court of Appeal have all concluded that such a power is not conferred upon the Court. [ R. v. G.W.C. [2000] A.J. No. 1585; R. v. Ghislieri, (1980) 56 C.C.C. (2d) 4 (A.C.D.); R. v. Pelletier (1989), 52 C.C.C. (3d) 340 (Que. C.A.); R. V. Driscoll (K.M.) (1995), 55 B.C.A.C. 241; R. v. Horbacio (1989), 56 Man. R. (2d) 179 (C.A.).] The Saskatchewan Court of Appeal in R. v. Poorman, supra in setting aside the sentence made no specific comment as to jurisdiction and remitted the matter to the Trial Judge for the holding of a sentencing hearing to determine the proper sentence to be imposed. I am unaware of any reported cases in Nova Scotia. [14] Although the preferable course would be to remit the matter back to the Trial Judge, I conclude in these circumstances, it is for the Court to determine a fit sentence. The material and submissions submitted on the hearing of this appeal are not sufficient for such a determination and I will hear counsel without limiting the hearing to the matter of compliance. Arrangements for the sentencing hearing should be made through the Prothonotary’s office. Stewart, J.