Supreme Court

994552 N.W.T. Ltd. v. HMTQ, 2005 NWTSC 26
Date: 20050302
Docket: S-1-CR-2004000140

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


994552 N.W.T. LTD.
     Appellant


- and -


HER MAJESTY THE QUEEN
     Respondent


Transcript of Decision on Appeal by the Honourable Justice V.A. Schuler, sitting at Yellowknife, in the Northwest Territories, on February 10th, A.D. 2005


APPEARANCES:

Mr. L.M. Walsh:  Counsel for the Appellant

Ms. L.M. Bouwmeester:  Counsel for the Respondent


(Charge under s. 4.1.1 Building By-Law No. 3815)


THE COURT:   Well, I appreciate that counsel have put slightly different interpretations on the evidence that was before the Justice of the Peace. It may be that to some extent the evidence wasn't fleshed out as much as it could have been before the Justice of the Peace, but I have to deal with what is in the transcript and the questions that were asked and the answers that were given.

It seems clear that the development permit was, as Mr. Walsh says, basically ready to go when an appeal was filed at the 11th hour and, therefore, under the legislation the permit did not go into effect; did not, in fact, issue. It is clear from the transcript that the company knew that and that they were warned by way of a sort of informal field order that they should not be working, but continued to work in any event.

So I suppose that maybe from the company's point of view they figured they were going to get the permit anyways, but certainly based on those facts there was a flagrant disregard of the fact that they did not, in fact, have the permit once the appeal had been filed.

This, of course, is a sentence appeal. It is not a conviction appeal. So I think that is all I need to say about the facts.


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The test on a sentence appeal is that unless there has been an error in principle or the sentence is demonstrably unfit, the sentence should not be interfered with. Certainly, many courts have said that a great deal of deference is owed to the sentencing judge at the first instance.

But, in my view, there are two areas of concern. One is that the Justice of the Peace imposed the maximum fine, $10,000, in circumstances where there was no prior record put before the court and in circumstances where there do not appear to have been factors that one might call aggravating beyond the simple fact that the lack of a permit was simply disregarded by this company. In other words, there were not other surrounding factors that aggravated that in particular.

As the City's counsel has quite fairly acknowledged, there were no safety concerns in this case. The concern is really that a builder obey the law and abide by the regulations that are in place so that the public can have confidence in those regulations.

So when I look at the transcript, it is difficult, in my view, to know why the Justice of the Peace felt that the maximum fine that was

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available was appropriate in this case. I note that on page 21 of the transcript the only thing that is said about that is simply that it is an ongoing offence; therefore $10,000.

Now, certainly there was evidence that the company did continue to work. In other words, this was not a momentary picking up some work and finishing it. It continued to work despite the absence of the permit. That is a factor that can be taken into account, but it certainly is not a case where there was a charge for more than one occasion. I don't know whether the Justice of the Peace was thinking of that because of some of the discussion that was had earlier with the prosecutor about whether there would be a certain amount per day for a continuing offence.

So it seems to me that, in my respectful view, that is the first point on which there is an error in principle, to impose the maximum fine in a case where there is certainly no evidence that this is the worst offence or the worst offender, which is generally the circumstance for which the maximum penalty is reserved.

The other point I take into account is that the submission by the City at the time was that a $2,000 fine would be appropriate. That is what the City was seeking. I want to be as precise as

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possible. What the Constable who appeared for the City said was: “In point of that fact,” referring to the fact that the company did not appear in court:

we would be seeking an increased penalty, at your discretion, of course, in the range of $2,000.

So they were asking for a penalty in the range of $2,000, which is, obviously, significantly different from the fine that was actually imposed.

Despite the valient efforts of Ms. Bouwmeester, I don't see that the $2,000 range that was suggested was in any way inadequate or inappropriate in the circumstances of this case. The other cases that have been referred to involve different types of violations, different punishment schemes, different maximums, and it is difficult to compare precisely when the facts are not the same and, in fact, it is not the same legislation that is being considered in a case.

So, in my view, the Justice of the Peace ought to have bad regard to what was being submitted by the City and, as I say, absent an indication that that submission was really inadequate, demonstrably inadequate in some way, ought to have imposed a fine in that range.

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As far as, then, concluding that there was an error in principle that does entitle this court to intervene, in my view the considerations that are the most important are that the company did continue despite the warning, if I can put it that way, that was given to it that it was not to continue because of the appeal and, therefore, the fact that the development permit had not been issued. The significance, in other words, the scale of the project is a consideration. I am not sure that it is to be given much more weight than any other considerations.

I think to take into account as an aggravating factor that the company did not appear at the trial is problematic, because certainly the general rule is that an accused is not to be punished more severely because he or she exercised their right to a trial. Now, in this case it is a little bit different because the company simply didn't appear, didn't make the voluntary payment, and the trial proceeded ex parte. But, in effect, that amounts to a not guilty plea, and, even though the company didn't participate in the trial, amounts to, I suppose, exercising the right to have the allegations proved in court. There is nothing that would prevent an appeal in those circumstances. So I

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think it would be an error for me to consider that as an aggravating factor.

As far as it being a high profile development in a relatively small community, I am not sure that I have that evidence before me; in other words, the extent to which the development was one that had a high profile or attracted a lot of community concern, and I don't want to speculate about that. Certainly it wasn't a small development. I have already said that. Being an apartment building, it can't be described that way. But I want to be careful about taking into account facts that really are not before me.

In any event, in my view, considering that it was a first offence, there was no record before the court, considering the circumstances and the position that was taken by the City at the trial, the appropriate fine would be one in the amount of $2,000, and that is what I am going to substitute, then, for the fine that was imposed.

I don't know whether anything has been done about payment, Mr. Walsh.

MR. WALSH:   I don't think so, Your Honour.

THE COURT:   Because there was 30 days given to pay. Now, that was back in November, so

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I don't know.

MS. BOUWMEESTER: I can inform the Court that I checked that prior to attending this morning and the ticket was held back in abeyance pending the outcome of the appeal. So no monies have yet been paid.

THE COURT:   So the --

MS. BOUWMEESTER: No monies have yet been paid.

THE COURT:   No monies have yet been paid. All right. So if I say 30 days to pay, then, from this date, is that --

MR. WALSH:   That would be fine, Your Honour.

THE COURT:   -- sufficient?

MS. BOUWMEESTER: Certainly.

THE COURT:   All right. The appeal, then, is allowed as indicated and that sentence substituted.

MR. WALSH:   Thank you, Your Honour.

MS. BOUWMEESTER: Thank you, Your Honour.

THE COURT:   Thank you very much for your materials, counsel. They were very interesting. I probably learned a little bit more about building permits than I ever have before. Thank you.

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Certified to be a true and accurate transcript pursuant to Rules 723 and 724 of the Supreme Court Rules.

Jill MacDonald, CSR(A), RPR
Court Reporter

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