Endnotes2017-08-30T15:34:54+00:00

[1] R.S.O. 1990, c. P. 33. (For a detailed description of those procedures or for supplementary reading on the POA see Sheilagh Stewart, Stewart on Provincial Offences Procedure in Ontario, 2d ed. (Salt Spring Island, BC: Earlscourt Legal Press Inc., 2005). Be aware that there have been amendments to the POA since the publication of this edition of the book.)

[2] The POA, with the exception of subsections 12(1), 17(5) and 18.6(5), also applies to the prosecution of contraventions under the Contraventions Act, S.C., 1992. c.47. Section 65.1 of the Contraventions Act provides the authority for the Application of Provincial Laws Regulations SOR/96-312, which states that the laws of the province referred to in the schedule apply to the contraventions designated under the Contraventions Regulations. Section 1 of Part 1 of Schedule 1, states the POA and any regulations made under the POA and the rules of court made under the Courts of Justice Act of Ontario apply, with such modification as are necessary, to contraventions alleged to have been committed on or after August 1, 1996 in Ontario or within the territorial jurisdiction of the courts of Ontario.

[3] According to the Ministry of the Attorney General of Ontario Court Services Division, ICON Database (statistics) [unpublished], over 2 million charges were disposed of in each of 2007 and 2008. These numbers do not include tickets issued under Part II of the POA which governs the procedure for parking infractions.

[4] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.

[5] R.S.C. 1985, c. C-46.

[6] Ontario, Working Group for Provincial Offences Act Streamlining Review, Provincial Offences Act Streamlining Review: Consultation Paper (Toronto: Working Group for POA Streamlining, 29 January 2009) online: Law Society of Upper Canada

<www.lsuc.on.ca/media/apr0109_poa_streamlining_consultation.pdf>

[7] Douglas Drinkwalter & Douglas Ewart, Ontario Provincial Offences Procedure (Toronto: The Carswell Company Limited, 1980) at iii.

[8] R.S.O. 1970, c. 450 as rep. by Provincial Offences Act, 1979, S.O. 1979, c. 4.

[9] For a detailed review of the Charter’s application to regulatory offences see Rick Libman, Libman on Regulatory Offences, looseleaf (Salt Spring Island, BC: Earlscourt Legal Press Inc., 2002) at c. 10.

[10] S.C. 1995, c. 22 amending R.S.C. 1985, c. C-46.

[11] S.C. 2003, c. 21 amending R.S.C. 1985, c. C-46.

[12] 1978 CanLII 11, 1978 CarswellOnt 24, (S.C.C) (WLeC).

[13] Libman, note 9 at 1-5 to 1-6.

[14] S.C. 2002, c.1 [YCJA].

[15] R.S.C. 1985, c. Y-1, as rep. by Youth Criminal Justice Act, S.C. 2002, c. 1.

[16] Todd Archibald, Kenneth Jull & Kent Roach, Regulatory and Corporate Liability: From Due Diligence to Risk Management, looseleaf (Aurora, Ont: Canada Law Book, 2008) at 15-1 (The authors note that the administrative system is thought to be less expensive than regulatory trials).

[17] S.O. 2001, c. 25 at s.102.1.

[18] David Potts, “Municipal Systems of Administrative Penalties” in Creating and Enforcing Municipal By-Laws (Toronto: Canadian Institute, 2008). (In his paper, David Potts identifies 21 existing or proposed administrative penalty systems for the enforcement of Ontario statutes).

[19] The terms regulatory, public welfare and provincial offences are used interchangeably in this paper.

[20] John Swaigen, Regulatory Offences in Canada: Liability & Defences (Toronto: Carswell, 1992) at 16-19.

[21] Hon. R. Roy McMurtry Q.C., Attorney General for Ontario, Attorney General’s Statement, published in Provincial Offence Procedure, Ministry of the Attorney General (April, 1978), cited in Drinkwalter, note 7 at 19-20.

[22] 1991 CarswellOnt 117 at para. 24-25 (S.C.C.) (WLeC).

[23] Swaigen, note 20 at 18-19; Libman, note 9 at 3-2.

[24] Libman, note 9 at 1-7.

[25] Archibald, note 16, c. 9.

[26] S.C. 1992, c. 47.

[27] Law Society Act, R.S.O. 1990, c. L.8.

[28] Online: Law Society of Upper Canada <www.lsuc.on.ca/paralegals>.

[29] Ministry of the Attorney General of Ontario Court Services Division, ICON Database (statistics) [unpublished]. (The “date of first hearing request” is the date that the notice of intention to appear in court or the date on the summons is entered into the data base. These numbers exclude prepaid fines and failed-to-respond).

[30] Swaigen, note 20 at 214.

[31] Archibald, note 16 at 14-4.

[32] Law Reform Commission of Ontario, Report on the Administration of Courts (Toronto: Law Reform Commission of Ontario, 1973) Part I at 17.

[33] Archibald, note 16 at 15-1.

[34] Archibald, note 16 at 15-1. (The authors note that the administrative system is thought to be less expensive than regulatory trials).

[35] S.O. 2006, c. 32.

[36] Municipal Act, note 17, s. 102.1 reads as follows:

(1) Without limiting sections 9, 10 and 11, a municipality may require a person to pay an administrative penalty if the municipality is satisfied that the person has failed to comply with any by-laws respecting the parking standing or stopping of vehicles.

(2) Despite subsection (1), the municipality does not have the power to provide that a person is liable to pay an administrative penalty in respect of the failure to comply with by-laws respecting parking, standing or stopping of vehicles until a regulation is made under subsection (3).

(3) Upon the recommendation of the Attorney General, the Lieutenant Governor in Council may make regulations providing for any matters which, in the opinion of the Lieutenant Governor in Council, are necessary or desirable for the purposes of this section, including,

(a) granting a municipality powers.

[37] O. Reg. 333/07, s.4.

[38] For example, the Municipal Act, 2001, note 17, s. 151(1) provides municipalities with the authority to establish an AMP system to deal with systems of licenses and Oshawa has implemented AMPs for licensing.

[39] Exceeding the speed limit by less than 16 kilometers does not attract demerit points. Of course, the threshold for demerit points could be changed (to 20 for example) to facilitate a broader AMP regime if such a change was good policy in light of relevant considerations. Sixteen kilometers is put forward by the LCO as an example of what might be meant by a minor speeding offence.

[40] Archibald, note 16 at 15-71.

[41] R.S.O. 1990, ch. E.19.

[42] Sault Ste. Marie, note 12 at para. 60.

[43] Sault Ste. Marie, note 12 at para. 60.

[44] Sault Ste. Marie, note 12 at para 61.

[45] 2007 ONCJ 345, [2007] 224 C.C.C. (3d) 97 (Ont. C.J.) cited in Archibald, note 16 at xx; see also City of Lévis v. Tétreault, 2006 SCC 12, 266 D.L.R. (4th) 165.

[46] 2008 ONCA 22, 2008 CarswellOnt 79 (Ont. C.A.) (WLeC).

[47] R.S.O. 1990, c. H.8.

[48] See also Alberta Institute of Law Research and Reform, Defences to Provincial Charges (Report No. 39) (Edmonton: Alberta Institute of Law Research and Reform, 1984) at 50, 84 & 88-89.

[49] S.B.C. 2008, c. 28.

[50] Sherie Verhulst, “Legislating a Principled Approach to Sentencing in Relation to Regulatory Offences” (2008) 12 Can. Crim. L. Rev. 281 at 281 (WLeC).

[51] Libman, note 9 at 11-18 to 11-19.

[52] Verhulst, note 50 at 281.

[53] Verhulst, note 50 at 281-295; Archibald, note 16 at c. 12 & 13.

[54] Verhulst, note 50 at 283.

[55] Verhulst, note 50 at 284.

[56] Verhulst, note 50 at 284; See also Julie Black, Martyn Hopper and Christa Band, “Making Success of Principles-based Regulation” online: LSE Department of Law

<http://www.lse.ac.uk/collections/law/projects/lfm/lfmr_13_blacketal_191to206.pdf>.

[57] Verhulst, note 50 at 284.

[58] Verhulst, note 50 at 284-286.

[59] Verhulst, note 50 at 286.

[60] Archibald, note 16 at 12-2, 12-33 to 12-35.

[61] Archibald, note 16 at 13-13.

[62] Archibald, note 16 at 12-7.

[63] R. v. Proulx, [2000] 1 S.C.R. 61 cited in Libman, note 9 at 11-61.

[64] R.S.C. 1985, c. F-14, s.79.2.

[65] S.C. 2002, c.29 s. 103.

[66] (Subsection 1(1) of the POA defines a justice as “a provincial court judge or a justice of a peace”. Subsection 39(2) of the CJA states that a justice of the peace may preside over the Ontario Court of Justice in a proceeding under the POA).

[67] R.S.O. 1990, c. C.43.

[68] R.S.O. 1990, c. J.4.

[69] Currie v. Ontario (Niagara Escarpment Commission) 1984 CarswellOnt 1173 (Ont. C.A.) (WLeC).

[70] Eton Construction Co. v. R., 1996 CarswellOnt 941(Ont. C.A.) (WLeC).

[71] See e.g. Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 68(2).

[72] R. v. DDM Plastics Inc., 1994 CarswellOnt 353 (Ont. C.J.), aff’d 1997 CarwellOnt 168 (Ont. C.A.) (WLeC) [DDM Plastics].

[73] DDM Plastics, note 72 (Ont. C.J.).

[74] R. v. Aurora Quarrying Ltd., 2003 CarswellOnt 1309 (Ont. C.A.) aff’d 2002 CarswellOnt 5108 (Ont. Sup. Ct. Jus.) (WLeC), leave to appeal to S.C.C. refused, [2003] 195 O.A.C. 192.

[75] Sault Ste. Marie, note 12 at para. 60.

[76] Swaigen, note 20 at 75.

[77] R. v. Commander Business Furniture Inc., 1992 CarswellOnt 222 (Ont. Ct. (Prov. Div.)) (WLeC); and R. v. Woolworth, 2000 CarswellOnt 175 (Ont. C.J.) (WLeC).

[78] Archibald, note 16 at 4-32.

[79] Archibald, note 16 at 4-31.

[80] Archibald, note 16 at 4-62.7.

[81] Archibald, note 16 at c.4 (The authors argue that the matrix will deal with other potential problems that they identify in chapter 4 of their book including hindsight bias and the risk that courts will focus on risk assessment instead of risk management).

[82] Archibald, note 16 at 4-62.8. For examples of the matrix see p. 4-62.8 & 4-62.10 to 4-62.11.

[83] Archibald, note 16 at 4-62.7 to 4-65.

[84] Archibald, note 16 at 4-62.10 & 4-62.11.

[85] 2002 SCC 61, 2002 CarswellAlta 1818 (WLeC), [Lavallee] .

[86] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.

[87] Libman, note 9 at 10-56.

[88] Lavallee, note 85 at para. 36.

[89] Chancey v. Dharmadi 2007 CarswellOnt 4664 at para. 34 (Ont. S.C.J. – Master Dash) (WLeC).

[90] Nicholas Bala, “Youth Criminal Justice Law” (Toronto: Irwin Law, 2003) at 63.

[91] The Department of Justice began a formal review of the YCJA in 2008. A report is expected and might help determine whether concepts such as extrajudicial measures and modified sentencing principles are an effective way to adjust to the particular challenges presented by young persons.

[92] See for example: Youth Justice Act, S.B.C. 2003, c. 85; Youth Justice Act, R.S.A. 2000, c. Y-1; Summary Offences Procedure Act, 1990, S.S. 1990-91, c. S-63.1; Provincial Offences Procedure for Young Persons Act, S.N.B. 1989, c. P-22.2; Youth Justice Act, R.S.N.S. 2001, c. 38; Youth Justice Act, S.N.W.T. 2003, c. 31; Young Offenders Act (Nunavut), R.S.N.W.T. 1988, c. Y-1.

[93] See: Youth Justice Act, R.S.N.S. 2001, c. 38, s.13A(1). However, subsection 13A(2) does provide that the Governor in Council may, by regulation, require that certain provisions of the Youth Justice Act apply to young persons described in subsection 13A(1).

[94] Uniform Law Conference of Canada, Quebec City August 10-14, 2008 Criminal Section Minutes, online: The Uniform Law Conference of Canada <http://www.ulcc.ca/en/poam2/2008%20ULCC%20Criminal%20Section%20minutes%20%20EN%20FINAL.pdf>.

[95] S.O. 2008, c. 17, s. 19.

[96] R. v. Webster, (1981), 15 M.P.L.R. 60 (Ont. Dist. Ct.).

[97] R. v. Mardave Construction (1990) Ltd., 1995 CarswellOnt 4174 (Ont. C.J.) (WLeC).

[98] R. v. Cancoil Thermal Corp., (1988), C.O.H.S.C. 169 (Ont. Prov. Ct.).

[99] Law Reform Commission of Canada, Report on Recodifying Criminal Law, (Ottawa: Law Reform Commission of Canada, 1987) Report 31 at 28. (Defences of a procedural nature were left to be dealt with in a proposed Code of Criminal Procedure).

[100] S.O. 1996, c. 19.

[101] S.O. 2002, c. 30, Schedule D.

[102] 2008 ONCA 429, London (City) v. Young, 2008 CarswellOnt 3091 (Ont. C.A.) (WLeC).

[103] R. v. Alves, 1994 CarswellOnt 5630 (Ont. Ct. (Prov. Div.)) (WLeC).

[104] 2009 ONCJ 65, R. v. Hargan, 2009 CarswellOnt 1002 (Ont. C.J.) (WLeC).

[105] 2009 ONCJ 150, R. v. Vellone, 2009 CarswellOnt 1969 (Ont. C.J.) (WLeC).

[106] R. v. Vellone, 2009 CarswellOnt 3118 (Ont. C.A.) (WLeC).

[107] R. v. Veri, 2002 CarswellOnt 2494 (Ont.C.J.) (WLeC).

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