In sentencing decisions under the Provincial Offences Act, including charges under the Occupational Health and Safety Act, the financial circumstances of an offender can be critical in determining an appropriate sentence. However, such records are seldom acquired in the course of an investigation, and so are rarely presented by the Crown on sentencing.
A recent decision from the Ontario Court of Justice suggests that extraordinary circumstances are required in order for a defendant to be compelled to produce financial documents to the Crown for the purposes of a sentencing hearing.
In R v Broomfield, the defendant was convicted of two charges under the Electricity Act. The charges alleged that the defendant provided restricted services without being properly licensed.
In advance of the sentencing hearing, the Crown requested that the defendant provide various financial documents. The financial situation of an offender is an important consideration in the sentencing of offenders under the Provincial Offences Act, including charges under the Occupational Health and Safety Act.
However, the defendant refused to provide its financial records. As a result, the Crown brought an application to the Court requesting that the defendant be required to produce them.
The Court had to grapple with two competing interests, namely, the societal interest in ensuring that an appropriate punishment was crafted, as well as the personal interest of the defendant in the privacy of their records.
The Court noted that in some cases, financial records could be used as evidence of further wrongdoing, and their forced disclosure would be tantamount to self-incrimination. Production of such records would be extremely problematic.
Given the concerns about self-incrimination, the Court held that disclosure was only appropriate in exceptional circumstances, such as where it has been established that the offender was trying to shield significant assets from the Court, resulting in the Court being misled as to the circumstances of the offender.
In this particular case, the Court found that the requirement of exceptional circumstances was not met. There was no evidence of significant assets, such as the receipt of money from customers, that had not been disclosed to the Court. As a result, the Court was not convinced that the disclosure was required to properly pass sentence.
The Court also noted that the Crown had not advised the defendant of its position on sentencing. Since the defendant may have not taken issue with that position, it was possible that a joint submission could be reached and that the disclosure of financial documents would not be warranted.
The Court went on to state that, even where special circumstances can be proven, a special process should be used to govern their production, whereby the offender can provide the financial documents to the sentencing judge if the offender has privacy or self-incrimination concerns. The judge can then determine whether the documents should be redacted so as to avoid breaches of the right of privacy and/or self-incrimination.
The Court cautioned, however, that if offenders refuse outright to provide financial documents even under this modified process, the sentencing judge may infer that the financial documents would prove an ability to pay a higher fine and it was for that reason that they were not produced.
Employers should know that, in
exceptional circumstances, the Court may order the production of financial
records to help it determine sentence.
However, this decision confirms that the Court will respect the privacy
of those charged with regulatory offences, as well as their right against
self-incrimination, provided it does not believe that the defendant is trying
to mislead the Court.
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