Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In Bédard c. Directeur des Poursuites Criminelles et Pénales,  2021 QCCA 377, March 4, 2021, the accused was convicted of the offence of acting as a building contractor without holding a licence, contrary to section 46 of the Building Act.  The minimum mandatory penalty being a fine of $10,481, pursuant to section 197.1 of the Act.  The trial judge found that the minimum penalty infringed section 12 of the Charter. On appeal, this decision was set aside. The accused appealed to the Quebec Court of Appeal.

The appeal was dismissed. The Court of Appeal indicated that “…it is well established that the purpose of the regulatory penal law system differs significantly from that of the criminal law system…This distinction is important and, in my view, must be taken into account in analyzing a provision that prescribes a minimum mandatory fine for the violation of a regulatory requirement. This does not mean that every constitutional challenge of such a fine is doomed to failure, but it is an important factor to be weighed in the balance…Legislatures often use minimum mandatory fines to deter individuals from conducting themselves in a certain manner or engaging in activities without the necessary authorizations” (at paragraphs 49 to 51).

The Court of Appeal concluded as follows (at paragraphs 77 to 79):

In short, given the legislature’s objectives in enacting ss. 46 and 197.1 of the Act, coupled with the existence of a statutory scheme whereby persons who have violated s. 46 of the Act can avail themselves of terms and conditions for the payment of the fine or, if their financial means do not allow for such payment, whereby they can potentially avail themselves of alternative solutions for paying the fine by other means, I find, as the Superior Court judge did, that the $10,481 minimum fine set out in s. 197.1 of the Act is not, in the case at bar, a punishment that is “abhorrent and intolerable” and “outrages standards of decency”, thereby infringing s. 12 of the Charter, whether one considers the appellant’s specific situation or the reasonable hypothetical situations.

My finding, however, does not imply that a minimum fine can never constitute cruel and unusual punishment under s. 12 of the Charter merely because offenders can avail themselves of terms and conditions for paying the fine or alternative solutions for doing so. These elements must certainly be taken into account, but they are not determinative because, all in all, the factors as a whole, including the nature of the prohibited conduct and the amount of the fine, are what determine whether a minimum punishment, in a given context, is abhorrent and intolerable. In light of this finding, it is clearly unnecessary to address s. 1 of the Charter.

I therefore propose that the Court dismiss the appeal.