During the LCO’s initial research and discussions with stakeholders and experts, many issues and concerns with the POA emerged. These issues and concerns emerged, in part, in response to changes in other areas of the law. One very significant change was the enactment of the Canadian Charter of Rights and Freedoms. It is clear that the Charter applies to regulatory offences, though the content of Charter rights in the regulatory context will often differ from the content in the criminal context.
Second, developments in the Criminal Code and provincial legislation have an impact on, or at least raise questions in respect of, the POA. For example, An Act to Amend the Criminal Code (Sentencing) and Other Acts in Consequence Thereof amended the Criminal Code by adding a statement of the principles and purposes of sentencing. An Act to amend the Criminal Code (Criminal Liability of Organizations), made further significant changes to the Criminal Code including sentencing principles that are specifically designed for corporate/organizational offenders.
An example of an important development in provincial legislation is that maximum fines are now far more than the $2000.00 maximum set out in the residual penalty clause of the originally enacted POA.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) in 1978, the highest fine available for most environmental offences was $5000.00. By contrast many environmental laws now provide for maximum fines in the millions of dollars, imprisonment and other serious consequences such as forfeiture of property and business licences.
Third, on April 1, 2002, the Youth Criminal Justice Act took effect. It replaced the Young Offenders Act and made significant changes to the way that youth are dealt with by the criminal justice system. Its key features include a declaration of purpose, the use of extrajudicial measures and a provision setting out sentencing principles and the purpose of sentencing.
A fourth important development in Ontario’s laws has been the increasing use and acceptance of administrative monetary penalties (AMPs), which are thought by some to be more efficient and cheaper than the regulatory offence regime. There are a number of AMPs regimes in Ontario, including the system created under the Municipal Act, 2001 that allows a municipality to establish an AMP system to enforce parking by-laws instead of pursuing a prosecution under Part II of the POA.
Fifth, and this is closely related to the increase in the seriousness of penalties for regulatory offences, a number of people have questioned the distinction between criminal offences and regulatory offences or have commented that the line between the two has blurred. The policy rationale for the POA is explicitly tied to this distinction. Subsection 2(1) of the POA states the purpose of the Act as follows:
The purpose of this Act is to replace the summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code, with a procedure that reflects the distinction between provincial offences and criminal offences.
The distinction between criminal offences and provincial or regulatory offences reflects the view that provincial offences are less serious than “true crimes”. In addition, it was also felt that provincial offences had a different purpose than criminal offences and dealt with acts that were different in nature:
The proposed Provincial Offences Act attacks directly the root of the present procedural problem, which springs from the fact that provincial offences are now being prosecuted under a code of procedure adopted by reference to the Criminal Code of Canada. Although the adopted procedure is the less rigid and formal of the two systems established in the Criminal Code, it is still steeped in centuries of assumptions about crimes and the persons who commit them. Neither of these assumptions nor the rigid technicalities they have engendered are appropriate for the 90% of provincial offences which are intended to regulate activities which are not only legal but also useful to society.
The view that provincial offences are different from criminal offences is also found in many court decisions, including R. v. Wholesale Travel Group Inc.
Acts or actions are criminal when they constitute conduct that is, in itself, so abhorrent to the basic values of human society that it ought to be prohibited completely. Murder, sexual assault, fraud, robbery and theft are all so repugnant to society that they are universally recognized as crimes. At the same time, some conduct is prohibited, not because it is inherently wrongful, but because unregulated activity would result in dangerous conditions being imposed upon members of society, especially those who are particularly vulnerable.
The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers and motorists, to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.
Certainly there are differences between a Criminal Code and POA prosecution that can be significant for an accused person. A POA prosecution can be advantageous to a defendant in some ways. For example, it limits imprisonment for minor offences and reduces the number of court appearances required. There are also examples of disadvantages. Regulatory offences are presumed to be strict liability with the onus on the defendant to prove all reasonable care on a balance of probabilities. Further, the POA provides a defendant with fewer procedural protections than the Criminal Code.
Despite this, people have questioned whether the distinction between true crimes and regulatory offences is a meaningful one. The Honourable Mr. Justice Libman, in his text on regulatory law, writes:
Hence as regulatory offences continue the trend from no longer resembling “minor offences” but “true crimes” (particularly as the sanctions for the former escalate higher than the latter with greater frequency), one wonders whether the lines between these categories of “public welfare offences” will become in time, less and less apparent. Indeed, Dean Hogg describes the Supreme Court’s decisions distinguishing between true crimes and regulatory offences as constituting a “silly distinction”.
Others have also questioned whether there is in fact less stigma attached to a prosecution for a regulatory offence than for a criminal offence.
Sixth, there have been changes to court administration, the prosecution of provincial offences and the regulation of paralegals in Ontario. The addition of 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. The agreements also allow the municipality to conduct prosecutions under Parts I and II of the POA and in proceedings under the Contraventions Act (Canada). 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.
Paralegals regularly represent people on POA matters and before administrative tribunals and are now regulated by the Law Society of Upper Canada. As of March 30, 2009 over 2,300 paralegals have been licensed and insured in Ontario. There are educational requirements for new applicants and all paralegals are required to follow the Paralegal Rules of Conduct. Complaints about paralegals can be made to the Law Society and it can discipline or prosecute the paralegal where such response is appropriate.
Seventh, while the disposition time of POA matters in courts changes over time and varies between municipalities, it is clear that there can be a significant waiting period to resolve a POA matter. 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 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.
Finally, as is the case with all legislation and regulation, many years of experience have led those working with the POA to form judgments about which parts of the POA work well and which could be improved to better implement its purposes.
If these changes have contributed to a desire for reform of the POA, they do not point in an obvious direction for change. As early as 1992, John Swaigen listed four factors that he felt were converging to require a re-evaluation of public welfare offences. After reviewing them he concluded as follows:
Thus the modern public welfare offence is subject to competing pressures. There is pressure to do away with the distinction between crimes and regulatory offences and to re-criminalize public welfare offences. There is also pressure to decriminalize such offences further.
These competing pressures are still there today with the considerations listed above seemingly pulling reform in different directions. Considerations such as overcrowded courts and the acceptance of AMPs are cited to support calls for further decriminalization. On the other hand, the increase in penalties and the blurring of the line between criminal and regulatory matters are raised to argue against making this distinction.
One possible answer to these competing pressures is to provide for more, or at least different, enforcement choices. This is the type of approach taken by Archibald, Jull and Roach who uphold the distinction between criminal and regulatory matters and propose an enforcement-based regulatory pyramid model:
In our view, the idea of responsive regulation supports the maintenance of distinctions between regulatory and criminal liability. The idea is that regulators must calibrate their response to the extent of wrongdoing. This approach suggests that it will be useful in some cases for the State to initiate a regulatory prosecution that invites the accused to prove that it had exercised due diligence in trying to prevent the commission of the prohibited act. In other cases, perhaps especially in repeated violations, it will be more appropriate to lay criminal charges and to attempt to prove beyond a reasonable doubt not only the prohibited act, but also the required fault element.
In reviewing the specific issues that are raised by this Consultation Paper, the LCO urges people to consider the competing pressures that POA reform is subject to and what the purpose of the POA should be. The Ontario Law Reform Commission’s 1973 “Report on the Administration of Courts” observed:
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.
The goals of the court system have not changed and the question remains how to deliver on such fundamental concerns as access to justice, efficiency and natural justice. All of the issues that are considered in Section III of the Paper have the ability to impact on these fundamental concerns and the LCO seeks your input to assist it in developing recommendations.
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