A. Background to the Modernization of the Provincial Offences Act Project
This Final Report in the LCO’s Modernization of the Provincial Offences Act project provides an analytical framework for modernizing and reforming the Provincial Offences Act (POA).[1] In this project, the Law Commission of Ontario (LCO) has not only examined specific issues raised during our research and consultations, but has also made structural improvements and created a mechanism whereby future procedural improvements can be more easily achieved. In this respect, the Report is divided into three parts: (1) Structural reforms to the POA and its rules and regulations on which we make direct recommendations; (2) specific procedural issues that were brought to our attention and for which we raise the prospect of reform but refer most of these matters to others for further review or specific technical detail; and (3) future law reform initiatives which we consider of importance, but which we could not address in this study. We hope this Report and the POA reform framework that we propose will serve as a valuable tool to respond to evolutionary developments on the provincial offences landscape in the years to come.
When the POA came into force 30 years ago it was hailed as “one of the most sweeping legislative reforms of procedures governing the prosecution of offences since the enactment of the Criminal Code in 1892”.[2] Since that time the provincial offences environment in Canada has changed considerably, yet there have only been modest amendments to the POA. Major developments include the adoption of the Canadian Charter of Rights and Freedoms (the Charter),[3] amendments to the Criminal Code,[4] significantly increased maximum penalties for certain provincial offences[5] the increased use of administrative monetary penalties (AMPS),[6] the emergence of licensed paralegals and increased use of technology.
The impact of the POA on the lives of Ontarians is significant, not merely because of the vast number of offences to which the POA applies or the number of proceedings commenced each year, but because of the nature of the regulatory offences governed by its process. Regulatory law dominates many aspects of our daily living. John Swaigen has described the impact of regulatory law, or public welfare law, on the lives of Canadians as follows:
Public welfare laws pervade the lives of ordinary people. Almost every aspect of our activities is regulated from parking the car to fixing the roof. When people think about “the law” they often think of crimes such as theft, sexual assault and murder. But lawyers are well aware that the laws most likely to affect ordinary people, and to be broken by them, are not criminal laws, but the myriad of public welfare laws that are necessary to regulate and reduce the risk we impose on each other through activities as diverse as driving a car, operating a school, spraying a herbicide or constructing a nuclear power plant. These regulatory laws protect consumers, children in day-care centres, the elderly in nursing homes and hospitals, pedestrians and motorists, workers in factories, and the natural environment that sustains human and other life forms.[7]
Consistent with the LCO’s mandate, this Final Report examines the current framework of the POA and considers its efficacy in achieving the legislative objectives of the statutes that create the provincial offence. Clarity of process and accessibility by the average Ontarian are also key considerations given the significant impact provincial offences can have on individual and corporate defendants. Finally, the sheer volume of provincial offences demands that any procedure governing these matters be both fair and efficient. In a sense, our recommendations seek to return the POA to its roots, as legislation that responds to the needs of those it most affects, with additional enhancements reflecting more contemporary thought in regulatory law.
The original proposal to review and revise the POA was received in December 2007 from Kenneth Jull, a lawyer with much expertise in provincial offences and risk management. A number of organizations and individuals involved in POA matters also supported a review at this time. It is against this backdrop that on April 2, 2009 the LCO’s Board of Governors approved the Modernization of the Provincial Offences Act project.
The LCO engaged in an initial review of literature and informal discussions with many organizations and individuals prior to issuing a Consultation Paper on November 16, 2009 that set out a number of issues initially raised with the LCO. It was sent to over 90 individuals and organizations and invited comments on the issues raised, as well as the identification of further issues that had not already been canvassed. The LCO also met or spoke with many people and organizations including academics, paralegal organizations, members of the bench, Aboriginal organizations, members of the defence bar, civil servants (including prosecutors), court administrators, municipal organizations and other municipal representatives.
The LCO also established an Ad Hoc project Advisory Group whose members are listed on page iii. The group met regularly from December 2009 onwards and meetings or telephone calls with individual members were common. The diverse views they brought forward were extremely valuable to the LCO in its efforts to make recommendations that took into account a broad array of perspectives. The Advisory Group also contributed to the project by facilitating discussions between their connections and the LCO.
This Final Report was prepared on the basis of feedback to the Interim Report which was circulated broadly to the judiciary, lawyers, paralegals, government officials and the public for consultation and comment and on additional research subsequently undertaken. It was approved by the LCO’s Board of Governors on August 11, 2011.
B. A Word on the Scope of the Project
This Final Report does not purport to deal with all of the issues that could possibly be addressed in the modernization and reform of the POA. Entire law reform reports could be drafted on several of the discrete Parts of the Act, and a substantive analysis of each is well beyond the scope of this project. Moreover, a very technical review of many of the current POA sections was recently undertaken in 2009 by the Ministry of the Attorney General’s Provincial Offences Act Streamlining Review. With its Municipal Partners, the Ministry agreed to explore ways to streamline POA proceedings. A Working Group was established to consider proposals to simplify procedures, reduce demand for court resources, enhance fine enforcement and improve service to the public. Input from others on these issues was sought through the distribution of a consultation paper.[8] The Working Group made over 60 specific and detailed recommendations to the Attorney General, and many have already been implemented by the Good Government Act, 2009 which made amendments to the POA and Municipal Act, 2001.[9] Therefore, to avoid a duplication of efforts or the potential for competing recommendations, we were of the view that the LCO project not focus on detailed procedural reforms to the POA.
Instead, the LCO project considered structural improvements, the establishment of an overall framework for an improved provincial offences system, alternative monetary penalties, sentencing and other specific recommendations that were not the subject of the detailed Provincial Offences Act Streamlining Review. Our objective was to establish a new framework for the POA that will bring greater clarity of process to and improved accessibility by the average Ontarian, while promoting a simple, fair and efficient procedure for the adjudication of provincial offences. In Section II.B, we describe a framework for the modernization and reform of the POA (“the POA Reform Framework”) and then in subsequent sections address a handful of specific issues that were brought to the LCO’s attention. A major objective of the POA Reform Framework is to serve as a set of guiding principles to tackle additional reform areas that are not dealt with in this Report. The LCO believes the POA Reform Framework and the issue-specific recommendations significantly contribute to building a roadmap for POA reform that will modernize it today and make it a responsive and functional statutory instrument for the future.
In Part IV of the Report, we identify three issues which were raised with us, but which we have not been able to address in this study: reforming the treatment of young people under the POA; the POA’s application to Aboriginal communities; and the status of First Nations band by-laws in relation to AMPS. We recommend further study of these matters.
C. Key Developments that Support Reform at This Time
In the 30 years since the POA came into force, important changes to the Canadian legal landscape have significantly affected the POA’s operation.[10] These developments strongly support reform of the POA at this time, but one can expect that many will continue to have an ongoing impact on our provincial offences system for years to come. A procedural code that can adapt and respond to these and other developments in the future is a central recommendation of this Report. For this reason, they must be considered not only for their present-day impact, but their potential impact on the administration of provincial offences in the future.
1. The Adoption of the Canadian Charter of Rights and Freedoms
In 1982, two years after the POA came into force, the Canadian Charter of Rights and Freedoms was enacted. Although the Charter applies to POA prosecutions, the Supreme Court of Canada has stated that the regulatory context is relevant in determining the scope and content of Charter rights:
A contextual approach is particularly appropriate in the present case to take account of the regulatory nature of the offence and its place within a larger scheme of public welfare legislation. This approach requires that the rights asserted by the appellant be considered in light of the regulatory context in which the claim is situated, acknowledging that a Charter right may have different scope and implications in a regulatory context than in a truly criminal one.[11]
A number of Charter decisions affect the discussion of issues later in this Report.[12] For example, in a recent decision of the Alberta Court of Appeal, Lavallee v. Alberta (Securities Commission),[13] the court examined whether sections 7 and 11 Charter rights apply to proceedings involving a $1 million administrative monetary penalty for an offence under Alberta’s Securities Act. This case informs our discussion on the use of alternative monetary penalties (AMPS). The Charter will also be referenced with respect to search warrants.
2. Developments in Criminal Law and Other Regulatory Statutes
We recognize the distinction between the Criminal Code and the POA. Nevertheless, some amendments to the Criminal Code, as well as to other provincial regulatory statutes, present an opportunity to consider whether similar amendments might be necessary or helpful in the POA context. Some statutory changes have influenced our recommendations in this Report. The introduction of a statement of sentencing principles in the Criminal Code,[14] along with amendments relating to sentencing principles for corporate or “organization” offenders,[15] are considered to assess whether similar provisions are needed in the POA. Developments in other jurisdictions, such as British Columbia’s Public Health Act,[16] have also been enlightening.The search warrant provisions in the Criminal Code also inspired a consideration of the POA’s equivalent provisions.
3. Increase in Penalties for Some Provincial Offences
The severity of sanctions available for certain provincial offences is another key development. The maximum fine for some offences prosecuted under Part III is far more than the $2,000 maximum set out in the residual penalty clause of the originally enacted POA. When the Supreme Court of Canada decided R. v. Sault Ste. Marie (City)[17] in 1978, the highest fine available for most environmental offences was $5,000. By contrast many environmental laws now have maximum fines in the millions of dollars, imprisonment and other serious consequences such as forfeiture of property and business licences.[18] While the severity of penalty has mounted for many offences, there is little direction to the judiciary on when these powerful sentencing tools are to be used in a principled and consistent manner.
Periods of incarceration can be significant under Ontario regulatory laws with a possibility of imprisonment of five years less a day under certain statutes such as the Securities Act[19] and the Environmental Protection Act.[20] It has been argued that the POA is not suited for such serious offences and the unavailability of conditional sentences or other sentencing tools is cited in support of this argument.[21]
4. Increased Use of Administrative Monetary Penalties
A fourth important development has been the increased use and acceptance of administrative monetary penalties (AMPS) in Ontario statutes, which are thought by some to be more efficient and less expensive than a regulatory offence regime.[22] There are a number of AMPS regimes in Ontario, including the system created under the Municipal Act, 2001[23] that allows a municipality to establish an AMPS system to enforce parking by-laws instead of pursuing a prosecution under Part II of the POA.[24] At present, only the City of Vaughan and the City of Oshawa have chosen to implement an AMPS system for parking infractions,[25] although other municipalities have them to enforce other by-laws or are considering implementing a parking AMPS system like Vaughan. This issue is the focus of Section II.D of this Report.
5. Transfer of POA Prosecution and Administration to Municipalities (Municipal Partners)
Part X of the POA allows the Attorney General and a municipality to enter into an agreement with respect to a specific area that authorizes the municipality to perform courts administration and court support functions. When such an agreement is in force, municipalities have the power to conduct most prosecutions, collect fines in POA proceedings and enforce their payment.[26]
Municipalities in some Court Service Areas (CSAs) identified one municipality to deliver POA court services on behalf of all municipalities in the CSA, although in some larger CSAs, there is only one municipality (e.g., Ottawa and Toronto). A Municipal Partner is a municipality that has entered into an agreement with the Attorney General as per Part X of the POA on behalf of more than one municipality. Where there are multiple municipalities in a CSA, the Municipal Partner is required to enter into an inter-municipal revenue and cost-sharing agreement with all other “serviced municipalities” in the CSA. For the purposes of this Report, we refer only to “municipalities” recognizing that some will be included within a Municipal Partner transfer agreement. Since 1999 the Attorney General has entered into 52 POA Transfer Agreements with municipalities and the transfer of these responsibilities to the municipalities is now complete.
This is an important consideration when modernizing the POA. Different regions of the province may face unique operational pressures and new procedures may have a different impact on each municipality.
6. The Licensing of Paralegals to Provide Legal Services
Paralegals are now regulated by the Law Society of Upper Canada[27] and may represent people on POA matters in the Ontario Court of Justice[28] and before administrative tribunals. As of March 30, 2009 over 2,300 paralegals had been licensed and insured in Ontario. Paralegals are required to follow the Paralegal Rules of Conduct and complaints about paralegals can be made to the Law Society of Upper Canada, which may result in discipline where appropriate.[29] The increased use of paralegals in POA matters is a new development that did not exist when the POA was enacted 30 years ago. It goes some way to affording greater access to justice for those unable to afford a lawyer. It also raises questions about the appropriateness of extending traditional solicitor-client privilege to paralegal-client relationships.
7. Changes in Technology
There have been enormous technological advances since 1980 and many could improve the investigation and enforcement of POA matters, court administration and how POA proceedings are conducted. The use of technology has been incorporated into certain POA sections. For example, on June 15, 2010, subsections 83.1(1), (2) and (3) of the POA came into effect, allowing a witness, defendant, prosecutor and interpreter to participate in a POA proceeding by electronic method. An electronic method means video conference, audio conference, telephone conference or other method determined by the regulations. While section 83.1 does contain some caveats and limitations on this authority, it is a significant development that can improve access and service.
However, there are gaps in the use of technology in the POA. For example, the POA search warrant provisions, in contrast to the Criminal Code provisions, do not deal with the seizure of intangibles such as electronic data on a computer. Amending the POA to address advances in technology is one solution, but one might question the efficacy of legislating procedural matters involving technology when Rules of Practice, a regulation or practice guideline may offer a more adaptable and flexible alternative, particularly given the rapidly changing nature of technology.
8. Lengthy Waiting Periods to Resolve POA Matters
In its 1973 Report on the Administration of the Courts, the Ontario Law Reform Commission wrote as follows:
The primary goal of the court system is to serve the public; this involves adjudicative decisions which are not only fair, but made without delay and at reasonable cost and convenience.[30]
While the disposition time of POA matters in courts changes over time and varies between municipalities, it is clear that there is presently a significant waiting period to resolve a POA matter. In Ontario as a whole in 2007, the average number of days from the date of the first hearing request to disposition of a Part I matter in the Ontario Court of Justice was 198.7 days and for a Part III matter it was 291.9. In 2008, it was 207.1 days for Part I matters and 276.8 days for Part III matters.[31] Figures for Part II parking tickets are not available, but the City of Toronto has indicated that it can take up to 14 months to get a trial date for a parking matter. (There is a range of anywhere from 8 to 14 months, depending on a number of variables.)[32]
9. Lessons from Experience
Finally, as is the case with all legislation and regulation, many years of experience have led those working with the POA to develop views about which parts of the POA work well and which could be improved to better implement its purposes. The LCO’s discussion on bail in POA proceedings, for example, was driven more by the problems that stakeholders had experienced rather than by a simple statutory comparison with the Criminal Code bail provisions.
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