R. v. Goebel (W.), 2003 ABQB 422

• Judge: Slatter, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 09, 2003
• Citations: 2003 ABQB 422;(2003), 338 A.R. 201 (QB)

R. v. Goebel (W.) (2003), 338 A.R. 201 (QB)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. MY.109

Her Majesty the Queen (respondent) v. Wayne Goebel (appellant)

(Action No. 017080243S1; 2003 ABQB 422)

Indexed As: R. v. Goebel (W.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Slatter, J.

May 9, 2003.

Summary:

An accused was convicted of 18 counts under the Public Health Act and the Housing Regulation and sentenced to fines totalling $45,240, or to 240 days in default of payment of a fine. The days in default of payment were made concurrent to each other. The accused appealed the convictions and sentence.

The Alberta Court of Queen's Bench allowed the conviction appeal on six counts and directed a new trial on those counts. The court allowed the sentencing appeal on 15 counts and directed that the trial judge resentence the accused on the convictions that remained. No costs of the appeal were ordered.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - An accused landlord appealed his convictions on 18 counts under the Public Health Act and the Housing Regulation, asserting that the trial judge failed to give adequate reasons - The Alberta Court of Queen's Bench noted that it was established law that a trial judge had to provide reasons that were sufficiently intelligible to permit appellate review of the correctness of the decision - The court stated that "I would add that with regulatory offences there is another reason to have reasons for decision. The purpose of regulatory offences is not so much to punish, as to encourage compliance with the regulatory standards. Here the Appellant testified that he thought he had complied with those standards. If the learned trial judge disagreed, it was important for the Appellant, other owners, and the inspectors to know what the legal standard requires. A simple pronouncement of 'guilty on all 18 counts' provides no guidance as to what a diligent landlord must do." - See paragraph 13.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - An accused appealed his convictions under the Public Health Act and the Housing Regulation, asserting that the trial judge failed to give adequate reasons - The Alberta Court of Queen's Bench stated that the standard of review where inadequate reasons was alleged was as follows: "Having regard to the context of the decision including the live issues in the case and the whole record, do the expressed reasons for the decision sufficiently disclose the reasoning process of the court below to allow meaningful appellate review? If not, can the appellate court by reviewing the record and any reasons that were given nevertheless be satisfied that the decision is a just result, or to put it another way, is the finding otherwise supportable on the evidence or apparent from the circumstances?" - See paragraph 16.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - An accused appealed his convictions on 18 counts under the Public Health Act and the Housing Regulation, asserting that the trial judge failed to give adequate reasons -The Alberta Court of Queen's Bench stated that with respect to the finding on each individual count, the trial judge's reasons were not, on their face, sufficient - However, the trial judge had adopted the submissions for the Capital Health Authority which he was entitled do - The court noted that there were risks in this approach, especially when the successful party argued the case in the alternative - The decision might be vulnerable if some of the alternative arguments were legally invalid or if the winning party misstated or overstated the law - In other situations, the successful party's submissions might be inadequate - With the exception of certain counts, there was sufficient content in the Capital Health Authority's submissions to enable the trial judge to adopt them, thereby creating a record of his reasoning which would enable meaningful appellate review - See paragraphs 12 to 70.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See second and third Courts -Topic 583 ].

Criminal Law - Topic 5629

Punishments (sentence) - Fines, penalties and compensation orders - Considerations on imposing fine - An accused was convicted of 18 counts under the Public Health Act and the Housing Regulation and sentenced to fines totalling $45,240, or to 240 days in default of payment of a fine - In allowing the accused's appeal from sentence, the Alberta Court of Queen's Bench expressed concern that the trial judge appeared to have put the onus on the accused to justify a reduction from fines of $1,500 proposed by counsel for the Capital Health Authority - Further, the trial judge erred in imposing the same fine on each count, regardless of the nature and severity of the breach - When an accused was charged with multiple counts, he was entitled to be found guilty of each count individually and sentenced for each count -The totality principle only came into play at the end of the process - When an appropriate sentence was imposed on all counts, the trial judge should then have reviewed the entire sentence to ensure that it was not too high - See paragraphs 82 to 89.

Criminal Law - Topic 5629

Punishments (sentence) - Fines, penalties and compensation orders - Considerations on imposing fine (incl. ability to pay) - The Alberta Court of Queen's Bench stated that it was not to be assumed that days in default of payment of a fine should always be imposed - Section 13(1) of the Provincial Offences Procedure Act provided for the collection of fines by civil process where days of imprisonment in lieu of payment was imposed - This should be the primary means of recovering fines, especially in cases where the statute does not provide for incarceration as a primary form of penalty - Also, under normal sentencing principles, fines are not to be imposed unless it seems likely that the accused can pay the fine - As such, the civil process should be the primary form of collection of fines, with "days in lieu" as the option reserved for those who have failed to cooperate with the prosecution or have a history of non-payment of fines - See paragraphs 77 and 78.

Criminal Law - Topic 5631

Punishments (sentence) - Fines, penalties and compensation orders - Fine - Default -Imprisonment - [See second Criminal Law - Topic 5629 ].

Criminal Law - Topic 5631

Punishments (sentence) - Fines, penalties and compensation orders - Fine - Default -Imprisonment - An accused was convicted of 18 offences under the Public Health Act and the Housing Regulation and sentenced to fines totalling $45,240, or to 240 days in default of payment of a fine - The days in default of payment were made concurrent to each other - The Alberta Court of Queen's Bench stated that it was anomalous to have days in default calculated on a concurrent basis - Fines, by their nature, were a consecutive type of punishment - The days in default was an alternative to a fine and to maintain symmetry should usually be consecutive - See paragraph 73.

Criminal Law - Topic 5631

Punishments (sentence) - Fines, penalties and compensation orders - Fine - Default -Imprisonment - An accused was convicted of 18 offences under the Public Health Act and the Housing Regulation and sentenced to fines totalling $45,240, or to 240 days in default of payment of a fine - The days in default were made concurrent to each other - The Alberta Court of Queen's Bench held that the sentences of 240 days in default were unlawful - The maximum sentence permitted in default of payment was six months, which was approximately 182 days - With respect to the days in default on the other fines, the proper approach was to first determine if days in lieu should be imposed, or if civil enforcement of the fine was sufficient - If days in default were appropriate, they were to be set separately with respect to each fine, so that the accused achieved some benefit if he was able to pay at least part of the monetary penalty - When there were multiple counts, the totality principle had to be engaged to ensure that the total potential time in custody was not excessive - See paragraph 79.

Criminal Law - Topic 5634

Punishments (sentence) - Fines, penalties and compensation orders - Fine - Civil enforcement - [See second Criminal Law - Topic 5629 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See first Criminal Law - Topic 5629 and third Criminal Law - Topic 5631 ].

Health - Topic 1233

Public health legislation - Health inspectors - Duties - An accused appealed his convictions on 18 counts under the Public Health Act and the Housing Regulation, alleging "officially induced error" - The accused asserted that the inspectors did not advise of the exact work that was required and the priority in which the work should be done - The Alberta Court of Queen's Bench rejected the defence where (1) there was no duty on the inspector to tell an owner how to correct defects or comply with an order or with what priority - The obligation to maintain a building was always on the owner and if the building fell below standard the obligation to fix it was also on the owner; (2) the defence was predicated on the false assumption that there was a lesser obligation to fix some defects - Each violation considered separately had to be corrected with a reasonable time for that violation; and (3) just because the inspectors missed a defect on an initial inspection did not relieve the owner from responsibility for it - See paragraphs 22 to 28.

Health - Topic 1245

Public health legislation - Offences - Punishments - Fines - [See both Criminal Law - Topic 5629 and second and third Criminal Law - Topic 5631 ].

Health - Topic 1245

Public health legislation - Offences - Punishments - Fines - The Public Health Act provided that fines for breaches of an order under the Act could be calculated on a per diem basis - A trial judge calculated a fine based on 202 days of breach and $60 per day for each day of breach - The accused asserted that the six month limitation period in the Provincial Offences Procedure Act precluded a conviction with respect to those days more than six months before the information was sworn - The Alberta Court of Queen's Bench rejected the assertion - Section 4(2) of the Provincial Offences Procedure Act provided that where the offence was of an ongoing nature, the proceedings need only be commenced within six months of the last occurrence - An allegation of a breach of an order under the Public Health Act was of a "continuing nature" - See paragraphs 80 and 81.

Health - Topic 1255

Public health legislation - Offences - Defences - Due diligence - An accused appealed his convictions on 18 counts under the Public Health Act and the Housing Regulation, alleging due diligence - The Alberta Court of Queen's Bench stated that the nature of the defence would differ depending on the nature of the offence charged - For a breach of a compliance order, the accused had to show that all reasonable steps were taken to comply with the order - Where an order covered many items, the accused had to show due diligence with respect to all items to avoid conviction - Adequate time had to be provided for compliance - Where the offence related to allowing the premises to be in a condition that violated the Act, the accused had to show that all reasonable steps were taken to prevent the premises from getting in that condition - It would not always be a defence to show that the condition was remedied diligently once the inspector brought it to the accused's attention - The accused would often have to show a diligent system of inspection or maintenance -In setting the standard of care, regard could be had to (1) the gravity of the potential harm, (2) the likelihood of harm, (3) the available alternatives, (4) the skill required and (5) the extent that the accused could control the causal elements of the offence - See paragraphs 32 to 35.

Statutes - Topic 6260

Operation and effect - Effect on earlier statues - Contrariety or conflict between statutes - Conflict between regulations under different statutes - An accused appealed his convictions on 18 counts under the Public Health Act and the Housing Regulation, asserting that with respect to one count he had met the standards of the Building Code - The Alberta Court of Queen's Bench held that it was true that there was some conflict between the Housing Regulation and the Building Code, but it was not the sort of conflict where compliance with one would result in a breach of the other - Where a building was subject to several legal minimum standards the owner had to comply with all of them - Since each Code served different purposes, it was no answer to say that one had been complied with - See paragraphs 29 to 31.

Trials - Topic 1107

Summary convictions - Defences - Officially induced error of law - [See Health -Topic 1233 ].

Trials - Topic 1172

Summary convictions - Strict liability offences - Defence of due diligence or error of fact - [See Health - Topic 1255 ].

Trials - Topic 3550

Punishments - Sentencing - Fines - General - [See both Criminal Law - Topic 5629 , second and third Criminal Law - Topic 5631 and second Health - Topic 1245 ].

Trials - Topic 4304

Costs - When available - An accused was convicted of 18 counts under the Public Health Act and the Housing Regulation and sentenced to fines totalling $45,240, or to 240 days in default of payment of a fine - The days in default of payment were made concurrent to each other - The accused appealed the convictions and sentence - The Alberta Court of Queen's Bench allowed the conviction appeal on six counts and the sentencing appeal on 15 counts - The court refused the request of the Capital Health Authority for costs of the appeal - The accused was at least partly successful on the appeal - Further, the appeal was motivated in large part by the sense of frustration the accused must have felt after conviction by not having adequate reasons to determine why he was convicted and why his defences were rejected - See paragraphs 90 to 92.

Cases Noticed:

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577 (S.C.C.), refd to. [para. 11].

R. v. General Scrap Iron & Metals Ltd. (2003), 327 A.R. 84; 296 W.A.C. 84 (C.A.), refd to. [para. 11].

R. v. Ewanchuk (2002), 299 A.R. 267; 266 W.A.C. 267; 164 C.C.C.(3d) 193; 5 Alta. L.R.(4th) 73; 6 C.R.(6th) 88 (C.A.), refd to. [para. 11].

R. v. Sheppard (C.) (2002), 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 162 C.C.C.(3d) 298; 210 D.L.R.(4th) 608; 50 C.R.(5th) 68 (S.C.C.), refd to. [para. 12].

English v. Emery Reimbold & Strick Ltd., [2002] 1 W.L.R. 2409; [2002] 3 All E.R. 385 (C.A.), refd to. [para. 12].

R. v. Barrett (D.), [1995] 1 S.C.R. 752; 179 N.R. 68; 80 O.A.C. 1; 96 C.C.C.(3d) 319, refd to. [para. 14].

Nova, An Alberta Corp. v. Guelph Engineering Co. et al. and Daniel Valve Co. et al. (1989), 100 A.R. 241; 70 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 15].

R. v. General Scrap Iron & Metals Ltd., [2002] 11 W.W.R. 81; 322 A.R. 32; 5 Alta. L.R.(4th) 327 (Q.B.), leave to appeal refused (2003), 327 A.R. 84; 296 W.A.C. 84 (C.A.), refd to. [para. 25].

R. v. Salerno Dairy Products Ltd. (1995), 173 A.R. 153; 33 Alta. L.R.(3d) 124 (Prov. Ct.), refd to. [para. 25].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193; 8 C.R.(4th) 145; 84 D.L.R.(4th) 161; 38 C.P.R.(3d) 451; 7 C.R.R.(2d) 36, refd to. [para. 26].

R. v. Kraus (H.) (1997), 203 A.R. 132 (Q.B.), refd to. [para. 26].

R. v. Onevathana (S.) et al. (2002), 306 A.R. 345 (Q.B.), refd to. [para. 26].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 40 C.C.C.(2d) 353; 3 C.R.(3d) 30; 7 C.E.L.R. 53; 2 W.C.B. 321, refd to. [para. 32].

R. v. China BBQ Specialty, 1999 ABPC 166 (Prov. Ct.), refd to. [para. 35].

Ontario (Minister of the Environment) v. Exolon Co. of Canada Ltd. (1981), 36 O.R.(2d) 530 (Prov. Ct.), refd to. [para. 35].

R. v. Stubel (1990), 109 A.R. 1; 25 M.V.R.(2d) 118 (C.A.), refd to. [para. 73].

R. v. Ward (1980), 56 C.C.C.(2d) 15 (Ont. C.A.), refd to. [para. 73].

R. v. Genge (G.) (1987), 64 Nfld. & P.E.I.R. 243; 197 A.P.R. 243 (Nfld. C.A.), refd to. [para. 73].

R. v. Yamelst, [1975] 3 W.W.R. 546; 22 C.C.C.(2d) 502 (B.C.S.C.), refd to. [para. 77].

R. v. Johnas et al. (1982), 41 A.R. 183; 2 C.C.C.(3d) 490; 32 C.R.(3d) 1 (C.A.), refd to. [para. 79].

R. v. J.M.F. (1982), 37 A.R. 273; 20 Alta. L.R.(2d) 90; 68 C.C.C.(2d) 367 (C.A.), refd to. [para. 86].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327; 46 C.R.(4th) 269, refd to. [para. 86].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 734(5) [para. 75].

Provincial Offences Procedure Act, R.S.A. 2000, c. P-34, sect. 7(2) [para. 74]; sect. 13(1) [para. 77].

Authors and Works Noticed:

Libman, Regulatory Offences in Canada (2002), paras. 7.3 [para. 35]; 8.11 [para. 22].

Counsel:

J. Holder, for the appellant;

R.T. O'Neill, for the respondent.

This appeal was heard before Slatter, J., of the Alberta Court of Queen's Bench, who delivered the following judgment on May 9, 2003.