A. The Purpose of the POA Today
Chapter II begins with a discussion of the purpose of the POA as found in section 2 of the Act. We noted that the underlying objectives of the POA were much more than simply “to replace the summary conviction procedure for the prosecution of provincial offences, … with a procedure that reflects the distinction between provincial offences and criminal offences.” Several sources reveal that the true underlying objective of the POA was “to provide a fair and efficient method for the trial of the large number of cases which are handled by the provincial offences court,”[231] and “to establish a speedy, efficient and convenient method of dealing with… for the most part, minor offences.”[232] The objectives of proportionality, efficiency and fairness were real then and they remain real today, and in our view, they ought to be properly reflected in an amended purpose section of the POA.
After 30 years of experience with a separate procedural code for POA matters, there is no doubt that regulatory offences are to be governed by a procedure that is separate from the Criminal Code summary conviction process. Therefore, it is no longer necessary to refer to the creation of a POA procedure distinct from the Criminal Code procedure as the sole purpose of the POA. There may still be valid reasons to distinguish “criminal offences” from “provincial offences” in the purpose section. As recommended in Chapter II, a separate procedural code ought to be maintained for provincial offences given the distinction between most regulatory offences and crimes, and this distinction ought to be retained in a newly expanded purpose section that reflects the legislation’s true underlying objectives. Expressly stating within the purpose section that provincial offences are to be distinguished from criminal offences may be further justified, given the different extent to which Charter protections apply to provincial offences versus criminal ones,[233] and because some offences can be prosecuted as provincial offences or as criminal offences (e.g. cruelty to animals) .[234]
A purpose section provides insight into the legislator’s true intent for the enactment. Not only does it guide the judiciary in the interpretation and application of the statute, but it also directs prosecutors and defendants to govern themselves in a manner consistent with this legislative objective. The drafting of subordinate POA rules, regulations and forms would similarly be guided by the overarching purpose of the statute. To date, it has been left to the judiciary[235] and rules committees to interpret the true underlying objective of the POA.
A POA purpose section that incorporates concepts of proportionality, efficiency, fairness, accessibility and responsiveness to the offence-creating statute’s objectives will, in our view, create a dynamic and flexible procedural code. It will create opportunities for a living and evolving procedure (or procedures) that can best respond to the volume and diverse nature of POA offences today and in the future. It will establish the guiding principles upon which any POA procedure, rule or regulation is to be developed, interpreted and applied.
The flipside of flexibility is certainty. Some may argue that the introduction of these concepts will make for an uncertain procedural code. The judiciary, prosecutors, and defendants alike must know the process that governs a proceeding and we do not advocate abandoning a precise procedural code for POA offences. On the contrary, we recommend the establishment of clear procedures for different types of POA proceedings in the next section. We do believe, however, that the above-noted principles and factors be included in the POA’s purpose section so that they may guide the statute’s interpretation and application. The alternative is to provide no guidance and leave it entirely for judicial determination, but this can result in greater uncertainty and may not achieve the objectives that we believe ought to govern POA proceedings.
The approach we propose is neither unique nor novel. Each procedural code governing civil,[236] family,[237] small claims[238] and criminal cases[239] includes a governing purpose or interpretative provision that capture concepts of proportionality, fairness, or efficiency in the administration of justice. Similar concepts should define the overarching principles that guide the development, interpretation and application of POA procedure. While we defer to the expertise of legislative drafters, we offer the following draft of a revised purpose section:
The purpose of this Act is to:
(a) provide an accessible procedure for the fair and efficient resolution or trial of provincial offences in a manner that is proportionate to the complexity and seriousness of the provincial offence,
(b) promote the objectives of the offence-creating statute, and
(c) provide a procedure that reflects the distinction between provincial offences and criminal offences.
The LCO recommends that:
4. The purpose section of the POA be amended to advance a procedure for the trial or resolution of provincial offence cases that is:
a. proportionate to the complexity and seriousness of the provincial offence;
b. efficient;
c. fair;
d. accessible;
e. responsive to the offence-creating statute’s objective; and
f. reflective of the distinction between provincial offences and criminal offences.
B. Restructuring the POA and POA Rules
In Chapter II we summarized the POA structure, and the rules and regulations that govern provincial offence proceedings and appeals. We identified a number of concerns with the structure of the POA and its rules and regulations which we discuss next. In our view, it is time to significantly restructure and simplify the Act consistent with the objectives of the POA Reform Framework.
1. Simplify the POA
The POA regime, with its numerous rules, forms and regulations is very complex. Its complexity is particularly troubling since most offences prosecuted under the POA are minor and involve self-represented defendants. We list components of the POA regime to demonstrate how complex and cumbersome it can be:
The Act contains 10 parts and has 176 sections. It describes how to commence a prosecution, how to respond to a proceeding, powers of arrest, search warrants, sentencing, bail and rules governing trials and appeals. Given the frequent cross-references to other sections within the statute or to regulations or forms, it can be very cumbersome for even the most educated reader. Moreover, it is not written in plain language.
There are seven regulations under the POA that may apply to a given POA proceeding.
There are four different sets of rules established by the Criminal Rules Committee under the Courts of Justice Act that govern POA proceedings and appeals. In some instances the POA Rules appear to duplicate or render superfluous what is already stated in the POA.[240]
The forms required to follow the procedure set out in the POA are contained in a separate regulation or are found in one of the four sets of rules. These forms are not expressly identified within the POA, making it necessary to search through one of the four sets of rules or seven regulations to ascertain the correct form.
There are several exceptions to the general processes prescribed in the POA. For example:
· Several procedures that govern Part I and Part II proceedings only apply in certain parts of Ontario[241] and to determine whether they apply, reference must be had to a separate regulation.[242]
· Various other sections of the Act do not apply in certain municipalities to which certain sections of the Act apply.[243]
To become familiar with the POA statutory procedure, the procedural rules established under the Courts of Justice Act must also be referenced to ensure compliance.
We do not suggest that the procedural requirements set out in the POA are unnecessary or without a sound policy basis. A clearly defined process is essential for any procedural code. Much of the procedure, we suspect, appears to have been placed in the POA based on conventions for drafting quasi-criminal procedure when the POA was first enacted in 1979. We question, however, the necessity and efficacy of including such detail within a statute today.
We also question the wisdom of having to refer to several other sets of rules, regulations and forms to fully understand and adhere to the POA process. The complexity that results can render the procedure unintelligible, and therefore, inaccessible. This is compounded by the fact that the POA contains much “legalese” and it is not readily accessible unless one knows how to access statutory documents. In our view, the POA procedure must be simplified, particularly for Part I and II proceedings, which represent the vast majority of POA proceedings commenced and because they are most likely to involve unrepresented defendants.
As noted previously, 90% of POA prosecutions are Part I offences, and 80% of those relate to Highway Traffic Act offences and it is believed that most of those defendants are unrepresented. To expect an unrepresented person to sort through the POA, its rules and forms to understand the process to which he or she is subjected promotes neither fairness nor accessibility. The amount of detailed procedure is simply disproportionate given the interests at stake. As a point of comparison, we note that another court forum where a majority of litigants are unrepresented, namely the Small Claims Court, has a complete procedural code that contains a total of 21 rules with all associated forms contained within these rules.[244] In addition, plain-language procedural guides prepared by the Ministry of the Attorney General are readily available to assist litigants through the Small Claims Court process.[245]
2. Simplify and Update the POA Rules
There are four different sets of POA rules with associated forms prescribed under each: (1) POA procedure before the Ontario Court of Justice;[246] (2) appeals to the Ontario Court of Justice from Part I and Part II proceedings;[247] (3) appeals of Part III proceedings to the Ontario Court of Justice or Superior Court of Justice;[248] and (4) POA appeals to the Court of Appeal.[249] The Criminal Rules Committee, with the approval of the Attorney General, makes POA rules under the authority of the Courts of Justice Act.[250]
As with the POA, we heard that the rules are also unduly complex. They are written in legal language and to navigate through them without formal training is a challenge. As one person said with respect to the complexity of the rules, “it’s like you need to have your decoder ring from your box of Cheerios with you!” Since they were created, the general POA rules for the Ontario Court of Justice have only received minor amendment. The last time they received any amendment was ten years ago and those amendments were housekeeping in nature.[251] The remaining three sets of rules were established in 1994 and they have not received any amendments since that time. In fact, they still refer to the Ontario Court (Provincial Division), the former name of the Ontario Court of Justice, as do the prescribed forms. The rules are not consolidated or easily found and reference must be had to separate regulations to determine the correct forms, which is a concern given the number of unrepresented defendants.
We were also told that the Criminal Rules Committee, which has jurisdiction under the Courts of Justice Act to make POA Rules, might not be best suited for making POA rules. The Committee is comprised of 28 members including the Chief Justices and Associate Chief Justices of the Court of Appeal, Superior Court of Justice and Ontario Court of Justice, other judges from each level of court, lawyers, representatives of the Attorney General and courts administration. This composition may be appropriate for making criminal rules in the Ontario Court of Justice and Superior Court of Justice, but it does not appear to be ideal for making POA rules. The vast majority of its members have no direct involvement in POA matters with the exception of select Ontario Court of Justice judges. Justices of the peace hear most Part I and Part II proceedings but they are not represented on the Committee. Nor are there representatives from municipalities who perform prosecutions and court administration for the majority of POA offences, or paralegals who often represent defendants in POA proceedings. The Criminal Rules Committee has established and seeks advice and recommendations from a POA Rules Subcommittee, but this rule-making structure may not be the most effective because it is still reliant on the full Committee to approve any amendments proposed. The size of the Criminal Rules Committee and the fact that it does not meet regularly are further obstacles to continuously monitoring the POA rules and tabling necessary improvements.
3. Create Clear and Proportionate POA Trial Processes
There is one single set of trial provisions found in sections 28 to 55 of the POA that apply to all trials under Parts I, II and III. For the most part, they are a scattering of provisions addressing specific eventualities that may arise at a trial; they do not create a roadmap directing how a POA trial is to unfold. They would appear to be most relevant for more complex trials under Part III and may certainly be useful for that purpose. However, for an unrepresented defendant who seeks a basic understanding of how a simple POA trial is to unfold, these sections offer little guidance.
This single set of trial provisions apply equally to all POA trials, without regard to the different types of POA trials or the gravity or seriousness of the offence(s). They apply to a trial involving a $30 parking ticket under Part II and equally to a major environmental offence under Part III with a potential $10 M fine and imprisonment. The POA trial sections do not limit the amount of process that is available for the former type of trial, nor do they offer a specialized rule to assist in the management of the latter types of trials that may be more complex, involve expert witnesses and potentially weeks of trial time.
Benefits may be achieved if specific trial rules were created that were proportionate to the seriousness of the offence. If separate and simple trial rules applied exclusively to trials for less serious offences, and other more comprehensive rules were created for more serious trials, one might expect more efficient use of court and judicial resources and a greater understanding of court processes by those subjected to it. Proportionality, fairness and greater accessibility would be advanced.
4. Allow for POA Process to Be More Easily Amended
The POA procedure is not easily or quickly amended because it is contained in a statute as opposed to a rule or regulation. As with all statutory amendments, committees of the provincial Cabinet must first vet proposed amendments to the POA. If approved, Cabinet must consider the amendments next. Once Cabinet approval is obtained, time must be found on the Legislature’s agenda to introduce the amendments in a Bill. It can be difficult for politicians to find legislative time to table minor or technical amendments in the Legislature, particularly when larger social, economic or justice policy Bills are also vying for legislative time. Most MPPs will have little or no technical understanding of POA procedure to assess whether or not the legislative changes are indeed necessary. Amendments to subordinate authority such as rules or regulations, on the other hand, can typically be done much more quickly and easily. Depending upon the governing statute, approval of the Attorney General or the Lieutenant Governor in Council (i.e., Cabinet) is usually all that is required for such amendments. Specialized bodies with expertise (typically Rules Committees) will understand why procedural amendments are required. This is the process by which civil, family and criminal procedural rule amendments made by the respective rule committees come into force. It is also the process by which POA rule amendments are made, but since most POA procedure is contained in the statute, amendments must be processed through the provincial Legislature.
As a result, having the bulk of POA procedure rest in a statute unduly prolongs inefficiencies and results in a POA regime that is unresponsive to needed improvements. It creates frustrations by those who prosecute, defend, adjudicate and administer POA offences and who seek procedural amendment. In our view, it could be corrected by transferring the bulk of that procedure to subordinate authority.
Of course, certain foundational, jurisdictional or offence-creating matters must always be within a statute as opposed to rules or regulations. Standing Orders of the legislature dictate what matters must appear in a statute as opposed to a regulation. In addition, certain POA procedures may have a political component because they have a direct impact on the lives of most Ontarians. The use of photo radar, for example, as a tool to commence a Highway Traffic Act proceeding is one example. Legislative Counsel is in the best position to analyze and advise what must remain within a statute, as opposed to subordinate authority. In addition, statutory amendments to the POA or the Courts of Justice Act may be required to expand the authority to enact subordinate rules or regulations. While we defer to the expertise of Legislative Counsel, we suggest that provisions establishing the court’s jurisdiction to hear POA matters, the jurisdiction of judges and justices of the peace, the authority of court staff to perform certain tasks, the authority to arrest and issue search warrants, the creation of offences, and sentencing all remain in the POA. Other matters might also be required to remain within the statute.
After this preliminary analysis is undertaken, the LCO believes that much of the detailed procedure currently found in the POA should be greatly simplified and transferred to subordinate authority. Examples of POA matters that might be moved to rules or regulations include:
· How a defendant may file a notice of intention to appear in response to a Part I or II offence notice, and how the clerk is to give notice of a trial (s. 5, 17);
· How a summons is issued by the Court (s. 39);
· How parties may access pre-trial conferences (s. 45.1);
· How adjournments are granted (s. 49);
· The release of exhibits (s. 48);
· When documents may be filed electronically (s. 76.1);
· When parties or witnesses may appear at a hearing by telephone or video conference (s. 83.1);
· How and when extensions of time may be granted (s. 85); and
· How appeals are commenced (s. 116, 135) and the procedure that governs appeals (see, e.g., s. 118, 119, 136).
In light of the above, we recommend that the POA and its rules be restructured. The POA should be stripped of its detailed procedural code, and what remains would be the necessary foundational, jurisdictional and offence-creating provisions required to permit the POA regime to operate. The POA should continue to prescribe how POA proceedings are to be initiated, and it should continue to establish separate streams so that processes proportionate with those streams can be detailed in the subordinate authority (i.e., Part I for less serious offences, and Part III for more serious offences). Other provisions that, by legislative convention or other authority, are required to remain in a statute and are necessary for an effective POA regime should also remain in the POA.
The detailed procedural code should then be consolidated in subordinate authority. This may be in the form of a single set of rules or a single regulation, with all associated forms. The four sets of POA Rules would be revoked and replaced by the single, new subordinate authority. As with the current POA, we envisage the subordinate authority continuing to set out different streams so that the process prescribed is proportionate to the seriousness of the offence. A hallmark trait of a renewed procedural code should be simplicity for the less serious and most common proceedings. Statistics demonstrate that the overwhelming majority of these proceedings are traffic and parking violations, and to the greatest extent possible, the procedure should be simplified so that the most common types of proceedings are easily understood and accessible.
Within each stream, specialized processes may be developed for the fair, most efficient trial or other resolution of the proceeding. For example, for Part III offences, a system of case management might be prescribed to ensure that judicial and court resources are used effectively, and that these more complex proceedings are dealt with fairly and expeditiously. A distinct rule for appeals might also be created. There are possibilities for the creation of further specialized rules for certain types of offences, provided that they are established to further the objectives stated within the newly updated POA purpose section.
To further promote access to justice for those who are self-represented, and contemporaneous with the release and implementation of a streamlined and simplified POA and associated subordinate authority, it would be helpful if the Ministry of the Attorney General offered a plain-language manual or guide to litigants that is readily accessible so that the POA process is clearly understood. This is not a novel suggestion. The Ministry of the Attorney General already publishes on its website simple and easy to follow guides and brochures for Small Claims Court litigants,[252] litigants involved in civil proceedings before the Superior Court of Justice,[253] and a procedural guide and other information for family litigants.[254] Similar information tools that are in plain language and easy to follow should also be created for POA litigants and be readily accessible.
In summary, we believe these structural changes to the POA will promote clarity of process and enhance access to POA courts. They will also further the objectives of having processes that are proportionate to the seriousness of the offence. They would also be more susceptible to amendment and responsive to new regulatory offences or circumstances that may arise.
The LCO recommends that:
5. The POA be significantly restructured to strip it of its detailed procedural code with only the necessary foundational, jurisdictional and offence-creating provisions remaining and that are necessary to permit the POA regime to operate.
6. The POA continue to prescribe different streams for the commencement of POA proceedings (i.e., Part I for less serious offences and Part III for more serious offences).
7. The four different sets of POA Rules and forms be consolidated into a single set of rules, a single regulation or other appropriate subordinate authority.
8. New subordinate authority prescribe a simplified and complete procedural code for the fair, accessible, most efficient trial, appeal or resolution of a POA proceeding based on the stream in which the proceeding is commenced. In particular, simplified trial rules be established for Parts I offences, and separate more comprehensive trial rules established for Part III offences. Further specialized and proportionate rules may be developed as necessary for the most common types of POA offences or for those offences that are unduly complex or would benefit from specialized rules that further the POA’s objectives.
9. The Ministry of the Attorney General, in consultation with municipalities, develop simple, plain language procedural guides for POA defendants that are accessible on the Ministry of the Attorney General’s website and at all POA court locations.
C. Enactment of New Procedural Code in Subordinate Authority
In this Interim Report, we make no recommendation as to how the subordinate authority with the new POA procedural code should be made or who should develop it. Instead we offer the following options with a preliminary discussion of some relevant considerations:
Option 1: Traditional Rules Committee Model:
This option would see new POA Rules created by a newly established POA Rules Committee, comprised of members of the bench, bar, prosecutors, paralegals and municipal courts administration.
Option 2: Judicial Rules Committee Model:
Under this option, new POA Rules would be created by a newly established POA Rules Committee, comprised exclusively of judicial representatives and we would envisage almost all being members of the Ontario Court of Justice.
Option 3: Regulation Developed under Judicial Lead:
This option sees a new POA procedural code developed within a new single regulation, as recommended by the Chief Justice of the Ontario Court of Justice, who shall consult as necessary and appropriate.
Option 4: Regulation Developed by MAG:
This is a variation of the previous option, that would seek a new POA procedural code developed within a new regulation, but it would be developed and recommended by the Ministry of the Attorney General, which shall consult as necessary and appropriate.
Option 5: Procedural Guidelines or Best Practices Issued by Judiciary.
The final option is to establish a new POA procedural code within a Guideline or Best Practices document, established by the Chief Justice of the Ontario Court of Justice, who shall consult as necessary and appropriate.
In assessing each option, the following considerations are relevant. First, rules of court enacted by bodies authorized by statute are regulations.[255] Therefore, in law, there is no practical difference between whether the new procedural code is found in “POA Rules” or a “regulation”; they would both be regulations and have the same force of law. The practical difference among the options lies in who has the authority to create the “rules” or “regulation”.
The Typical Rules Committee Model (Option 1) may prove to be ineffective if the size of the new POA Rules Committee is too large (e.g. the Criminal Rules Committee has 28 members). This has been a critique of at least one similar Rules Committee.[256] There may also be the potential for internal conflict, as the procedure proposed by the committee may not be supported by Attorney General or Lieutenant General in Council.[257] Moreover, if members of the committee have no direct or regular involvement in POA matters, they may not be best suited to recommend technical rule amendments. (If Option 1 is adopted, we recommend that all members have expertise in POA matters). On the other hand, a Rules Committee with broad representation ensures that the interests of most groups affected are considered. Any newly created POA Rules Committee could be smaller and still be representative of the key stakeholder groups (e.g. 10 members)[258] and it may rely upon informal subcommittees when specialized input is required but that expertise is not held by Rules Committee members.
A Judicial Rules Committee Model comprised primarily of the Ontario Court of Justice judiciary (Option 2) could be expected to operate more efficiently. It would have primary expertise of POA proceedings, however, input from other stakeholder groups would help ensure that the newly drafted rules are operational (e.g., municipal court administrators). Also, for matters appealed to the Superior Court of Justice or Court of Appeal, it would be helpful to have judges from those courts directly involved in processes that impact those courts.
A regulation developed under the leadership of the Chief Justice of the Ontario Court of Justice (Option 3) would have the same considerations as under Option 2. It would also respond to calls to give the judiciary express authority to make POA court rules, which is analogous to the rule-making authority the Criminal Code vests with the judiciary for criminal matters.[259] Option 3 also avoids the rigidity of process that might come with a formal Rules Committee structure. However, as we have discussed previously, provincial offences are unlike criminal matters; provincial offences impact most people and businesses and the procedure that governs POA matters will typically impact more people, which creates a strong case for broad input when developing POA rules. Municipalities have a strong interest in POA matters, as do several provincial ministries and many regulated industries, and they may not have a voice on the chosen process under this option unless the Chief Justice establishes a formal consultative process to seek their input. A further concern is the appropriateness of the Chief Justice developing a regulation on matters that are potentially political in nature, or proposing procedural amendments that respond to interests of government or prosecutors. Such matters could raise questions about the proper role and independence of the Chief Justice.
Should a Rules Committee model be adopted, the initial start-up work of consolidating and simplifying existing rules and forms will be significant. Time and resources will be required to complete this important work. Barriers that have prevented the Criminal Rules Committee from meeting recently may carry-over to any new POA Rules Committee, particularly if confronted with a major start-up task. For this reason, the most practical and effective option may be to rely upon the policy-making expertise of staff at the Ministry of the Attorney General to prepare a regulation after consultation with the appropriate groups (Option 4). This is the normal process for most regulations. However, Ministry staff may not have the day-to-day expertise of those who work in POA courts and because they do not work in the POA justice system daily, they may not be able to: (a) exercise a monitoring function to ensure the rules work effectively; or (b) respond with any further regulatory amendments that may be required over time.
The final option of guidelines or best practices issued by the judiciary would result in a procedural code that does not have the force of law. Since the judiciary would issue them after appropriate consultation, one would expect that the new procedural code would be treated by the judiciary, prosecutors, defendants, and court administrators as having the force of law. The risk, however, is that they would not be consistently applied or adhered to because they would not be a regulation or rule. Certainty of procedure, as we have stated, is an important goal since it furthers the principle of fairness and proportionate process. Moreover, serious cases in particular may demand greater formality of process particularly when significant fines and liberty interests are potentially at stake.
With each option, there must be a clear forum for input from municipalities. The transfer of POA prosecution and courts administration to municipalities dictate that they have a significant voice in developing any new procedural code.
In our view, the preferable route is for Attorney General and the Chief Justice of the Ontario Court of Justice to jointly agree on how the newly updated POA procedural code should be established and by who, after consultation with the Criminal Rules Committee, the Chief Justices of the other levels of Court, and the municipalities who now have carriage over POA prosecutions and courts administration.
The LCO recommends that:
10. The Attorney General and the Chief Justice of the Ontario Court of Justice jointly agree on how the newly updated POA procedural code should be established and by whom, after consultation with the Criminal Rules Committee, the Chief Justices of the other levels of Court and municipalities who now have carriage over POA prosecutions and courts administration.
11. Amend section 70(2) of the Courts of Justice Act, accordingly, to relieve the Criminal Rules Committee of jurisdiction to make POA rules and identify the new body or entity responsible for developing the newly updated POA procedural code.
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