2008 BCSC 581 R. v. 0715475 B.C. Ltd.

Before: The Honourable Madam Justice Koenigsberg

Reasons for Judgment

Counsel for the Appellant, City of Vancouver	Ellen Gerber
Appearing on behalf of 0715475 B.C. Ltd. carrying on business as Wings on Granville	Sherman Kong
Appearing on his own behalf	Perry Hall
Date and Place of Hearing:	April 2, 2008
	Vancouver, B.C.

[1] This is an appeal of the fines imposed by a Judicial Justice of the Peace in two cases. At the end of argument, I gave my decision dismissing the appeal in Regina (City of Vancouver) v. Perry Hall and allowing the appeal in Regina (City of Vancouver) v. 0715475 B.C. Ltd. carrying on business as Wings on Granville. The appeal raises an important issue of statutory interpretation, which is addressed in these Reasons.

FACTS

Wing’s Tap and Grill on Granville

[2] The respondent, Wings Tap and Grill on Granville (“Wings”), was sentenced in Provincial Court on October 2, 2007, to a fine lower than the minimum $500 fine specified in Fire By-law 8191 of the City of Vancouver. Wings pled guilty to two counts of obstruction of means of egress, contrary to s. 2.7.1.6(1) of Fire By-law 8191. The premises are a restaurant with a liquor license. A deadbolt had been placed at the top of a fire door into the door frame, and a thumb latch placed at the center of that fire door, activating into the adjacent fire door. At the time of the inspection on April 21, 2007, both were in the locked position obstructing the means of egress (count one). A dolly was left obstructing the means of egress in the east common hallway of the main floor (count two).

[3] In a smoke-filled and panicky fire situation a lock or other object blocking a means of egress will not be seen, people will be trapped and exit will be hindered or prevented.

[4] The general manager, Sherman Kong, appearing on behalf of the respondent Wings, told the Provincial Court that subsequent to the date of the offence the company spent $1,100 to remove the deadbolt and add a panic bar. The dolly was removed and staff were educated to keep the door free and clear, and to remove all clutter. No evidence of the company’s financial circumstances was led. The respondent asked the Court to waive the charges or to go below the minimum fine.

[5] The appellant, the City of Vancouver, requested the imposition of the minimum fine of $500 on each count and submitted that only evidence of financial hardship can be used to justify a reduction of a minimum fine.

[6] The learned Judicial Justice of the Peace imposed a $300 fine on each count, stating this was “a break, pending appeal”, because of the expense to the company and the general application of sentencing principles. The respondent advised the Court it was able to pay the fine “within 48 hours if not 24”.

Perry Hall

[7] The respondent, Perry Hall, was sentenced in Provincial Court on February 11, 2008, to a fine lower than the minimum $100 fine specified in Health By-law 6580 of the City of Vancouver. He pled guilty to one count of urinating in a public place, contrary to s. 4.21 of Health By-law 6580. He was observed urinating in a lane at dusk. The respondent was very intoxicated and has no recollection of the incident.

[8] The appellant, the City of Vancouver, requested the imposition of the minimum fine of $100 and was not opposed to a reasonable time to pay if needed. The respondent said he would just pay the $100.

[9] The respondent is living at home and is supported by his family. He worked in the summer and will be working next summer. He is returning to school to finish high school.

[10] The appellant submitted that s. 88(1) of the Offence Act, R.S.B.C. 1996, c. 338, did not apply to a by-law matter, and that there was no evidence of the means and ability of the respondent to pay a fine necessary in order to justify a reduction of a minimum fine.

[11] The learned Judicial Justice of the Peace imposed a $10 fine because the respondent Hall did not have any previous record, looked remorseful, had promised not to get into trouble again and because “I do not think the purpose of these proceedings is to punish … it is essentially to deter people from re-offending.” He also found it would not be an appropriate use of the respondent’s guardians’ or parents’ money to pay for the penalty and that they were probably paying for his education. The respondent did not have cash with him and just needed until the next day to pay the fine.

ISSUES

[12] The points in issue are:

1. Did the learned Judicial Justice of the Peace err in law by imposing an illegal sentence by applying s. 88(1) of the Offence Act to a City of Vancouver by-law?

2. Did the learned Judicial Justice of the Peace err in law by applying s. 88(1) of the Offence Act in the absence of any evidence of circumstances or facts to justify a mitigated penalty?

3. Did the learned Judicial Justice of the Peace err by imposing an unfit sentence?

LEGAL ANALYSIS

[13] The resolution of this appeal turns on the interpretation of ss. 83 and 88 of the Offence Act as they apply to the City of Vancouver Fire By-law 8191 and Health By-law 6580 which impose minimum penalties of $500 and $100 respectively. Section 83(1) states:

83(1) If an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the justice who convicts a person who commits the offence.

[14] Section 88(1) states:

88(1) Despite any other section of this Act or any other Act, in determining the fine to be imposed on conviction, the justice must consider the means and ability of the defendant to pay the fine, and, if the justice is of the opinion that the defendant is unable to pay the amount of the fine that the justice would otherwise impose, the justice may impose a fine in a lesser amount that the justice considers appropriate.

[15] The appellant submits that s. 88 of the Offence Act does not apply to by-laws because the non obstante clause in s. 88 is limited to “Acts” only. By-laws are not Acts; they are “enactments”, which term is utilized in other sections of the Offence Act, including s. 83. The appellant submits the Offence Act does not provide authority to impose less than the minimum fine set out in the by-laws.

[16] The appellant relies on the statutory interpretation maxim confirmed in R. v. Firman, [1982] 6 W.W.R. 431, [1982] B.C.J. No. 834 (Co. Ct.) [cited to W.W.R.]. That maxim is described succinctly at p. 437 by quoting from the earlier judgment in Re Sasges, [1975] 3 W.W.R. 610, 17 R.F.L. 64, 22 C.C.C. (2d) 207, 56 D.L.R. (3d) 309 (B.C.S.C.):

While it is a fundamental principle that the Court should attempt to interpret apparently conflicting legislation in a manner which permits effect to be given to both pieces of legislation, the Court cannot give an interpretation which does violence to what appears to be the plain meaning of the words in the paramount legislation. I regard the amending s. 57 as paramount legislation because it specifically says that it shall govern notwithstanding the provisions of any other act except the Small Claims Act …

[17] Counsel for the appellant overlooked another well described principle in R. v. Firman which is applicable in this case. That is found at pp. 439-40 of that decision.

I think, respectfully, however, that the rule of construction … does not apply where the question of paramountcy involves a local by-law, limited in respect of geographical area and as regards the individuals it can affect, on the one side, and a general act applicable to the whole province, on the other. I would first hold that on a question as to which of the two enactments is decisive, the by-law cannot be classified as a special act of the legislature, because every bylaw is repugnant if it expressly or by necessary implication professes to alter the general law of the land: see Gentel v. Rapps, [1902] 1 K.B. 160 at p. 65-66 (Div. Ct.), per Channell J. A by-law, by its very nature, is subordinate legislation. It springs from provincial legislation.

…

The relation of municipal by-laws to provincial legislation has been canvassed by Lett C.J.S.C. in R. v. Nendick (1958), 121 C.C.C. 64, 14 D.L.R. (2d) 39 (B.C.S.C.). Citing a passage from 14 C.E.D. (Ont. 2^nd), Municipal Corporations, p. 389, in which a number of authorities are given, Lett C.J.S.C. said, at p. 72:

It is a cardinal rule of municipal law that all by-laws are subject to the general law of the realm and are subordinate to it and any by-laws which are repugnant to or inconsistent with general provincial law are void and of no effect.

[18] Here, there is no doubt that the Offence Act is the paramount legislation, however, that does not necessarily resolve the matter. I read s. 88(1) “despite any other section of this Act” [emphasis added] to include s. 83(1). Section 83(1) incorporates the minimum fine in any by-law by the words “subject to the limitations prescribed in the enactment”.

[19] Thus, I read s. 88(1) as excepting minimum punishments in enactments, from limiting the discretion of the Justice to use the prescribed discretion set out in s. 88(1).

[20] Section 88(1) of the Offence Act applies to by-laws and a minimum punishment in a by-law does not limit the discretion of the Justice to apply s. 88(1).

[21] I now consider whether the application of the Judicial Justice of the Peace’s discretion was properly exercised in each of the cases at issue: R. v. Wings and R. v. Perry Hall.

[22] The appellant submits that the learned Judicial Justice of the Peace failed to consider the means and ability to pay the fine as is required by s. 88 of the Offence Act.

R. v. Perry Hall

[23] In R. v. Perry Hall one consideration, not the most important consideration by any means, is what bylaw was breached – along with the circumstances of the accused. I set out the evidence before the Provincial Court.

MS. GERBER: Information 28484.

THE COURT: And you are Mr. Perry Hall?

THE ACCUSED: Yes.

THE COURT: And good afternoon. Would you like the charge to be read to you, or you understand the charge?

THE ACCUSED: I understand the charge.

THE COURT: What is the charge?

THE ACCUSED: Peeing in public.

THE COURT: Eloquently put. And how are you pleading?

THE ACCUSED: Guilty.

THE COURT: Well, Madam Gerber?

SUBMISSIONS BY CROWN

MS. GERBER: Yes, it’s a standard case of its time. The officer was in a marked vehicle and in uniform. He was driving in the neighbourhood. It was about 9:40 in the evening of August the 2^nd, 2006, so it was dusk out. The officer drove into the lane and he observed the accused urinating in the lane.

The fine, as Your Honour is aware, the minimum is $100, the maximum is $2,000, and I am not opposed to the minimum fine being imposed. If Mr. Hall needs time to pay, I’m not opposed to a reasonable period of time for that.

THE COURT: Thank you. Mr. Hall, where do you live?

THE ACCUSED: I live near UBC, Crown Street, near 41^st and Crown.

THE COURT: And so you live in Vancouver?

THE ACCUSED: Yeah.

THE COURT: This is your own city?

THE ACCUSED: Right.

THE COURT: Why would you be doing something like that in your own city?

THE ACCUSED: I’m – for the record, I have no recollection of the matter. I just don’t want this to continue. I have – I’m starting school, I have a more serious court case. I just want to get this dealt with, so I’ll just pay the $100 and leave it at that.

THE COURT: Well, I don’t know if the fine is going to be $100 unless I am convinced that you will not get in trouble again.

THE ACCUSED: Oh, I was very intoxicated that evening. This was two years ago.

THE COURT: Okay.

THE ACCUSED: I’ve come a long way since then.

THE COURT: All right.

THE ACCUSED: I’ve been through a lot of other stuff, and – yeah.

THE COURT: So I will not see you here again?

THE ACCUSED: No.

THE COURT: And that’s a promise?

THE ACCUSED: Promise.

THE COURT: And how are you doing financially?

THE ACCUSED: Hardly.

THE COURT: Are you working, or are you –

THE ACCUSED: I’m attending school. I registered today actually. I had – I start tomorrow, so I’m not working.

THE COURT: You’re not – how are you supporting yourself?

THE ACCUSED: I’m still living at home.

THE COURT: Your parents support you?

THE ACCUSED: Yeah. My parents are still –

THE COURT: And do you work in summertime or something?

THE ACCUSED: Yes, in the summer and so –

THE COURT: In summer you are going to be working?

THE ACCUSED: Yes.

THE COURT: This is first time you got in trouble?

THE ACCUSED: For this matter, yes. I had another incident, being intoxicated, and just cut out the booze and I’m good.

THE COURT: So you’re not drinking anymore?

THE ACCUSED: No.

THE COURT: You have finished your school, or you are going –

THE ACCUSED: I’m – I’m just starting to get back on track. I’m going back to complete high school.

[24] The most relevant part of the Court’s decision on sentencing is set out at para. 10 of those Reasons:

This is a unique case. Mr. Hall is living at home, and I do not think it will be appropriate use of his guardians or parents’ money to pay for this particular penalty. They are probably paying for his education, and now that he has smartened up, has learned a lesson, in my respectful view the most appropriate fine in this case is $10. Mr. Hall, you may ask me for some time to pay. How long do you need?

[25] The appellant points out that Mr. Hall told the Court he had the $100 to pay the fine and was willing to pay it. However, it was open to the Judicial Justice of the Peace on the evidence before him to conclude, as he did, that in fact, of his own means, the accused probably did not have the ability to pay, that is, his necessities of life were being provided by his parents at the time.

[26] In relation to Mr. Hall, I find the Court did not impose an illegal sentence and the imposition of the token fine imposed was a valid exercise of discretion in that case.

R. v. 0715475 B.C. Ltd. carrying on business as Wings on Granville

[27] This matter involved a fire by-law infraction which breach involved potentially serious safety issues.

[28] The Court considered that the company had acted responsibly by promptly fixing the problem upon consultation with the fire department. The Court then imposed a fine well below the minimum because of the expense involved in fixing the exit door.

[29] There was no evidence from which the Court could infer the company could not pay the minimum fine and there was direct evidence that it could pay this amount. The discretion conferred on the Justice by s. 88 must be judicially exercised and s. 88 itself defines the ambit of that discretion. Thus, the Court in this instance could not be said to have properly exercised its discretion to impose a lesser fine.

[30] The appeal from the order below in R. v. Perry Hall is dismissed.

[31] The appeal from the order below in R. v. 0715475 B.C. Ltd. carrying on business as Wings on Granville is allowed and a fine of $500 on each of two counts is imposed.

“The Honourable Madam Justice Koenigsberg”