Regulatory law dictates how we drive our vehicles, the safety of our places of work, the food and beverages we consume and how we treat our pets, among many other areas that affect Ontarians on a daily basis. The Provincial Offences Act mandates the process to deal with the millions of charges that are brought under regulatory statutes each year. The vast majority involve “less serious” offences for which defendants are most likely to be unrepresented. It is important that the process governing these offences is fair, efficient, accessible and proportionate to the interests at stake.
The POA was enacted more than 30 years ago, establishing a procedure for the prosecution of offences under Ontario statutes, regulations and municipal by-laws. A comprehensive review of the POA has not been undertaken since then to assess whether it continues to meet its original objectives and whether those objectives remain current today. Nor has there been a review to consider the impact of significant developments such as the enactment of the Charter of Rights and Freedoms, the transfer of prosecution and court administration of POA matters from the Province to municipalities, significantly increased penalties for many offences, and the increased use of administrative monetary penalties to enforce regulatory standards.
The Board of Governors of the Law Commission of Ontario (LCO) therefore approved a project on Modernization of the Provincial Offences Act on April 2, 2009. We have examined specific procedural issues, and have proposed structural improvements and a mechanism whereby procedural improvements in the future can be more easily achieved. This Final Report provides an analytical framework for modernizing and reforming the Provincial Offences Act (POA).
II. STRUCTURAL REFORMS TO THE POA
A. Provincial Offences and the POA
Prior to the POA’s coming into force, the Summary Convictions Act governed the procedure for enforcing and prosecuting provincial offences. It largely adopted the federal Criminal Code’s provisions for the prosecution of summary conviction offences. The new POA was intended to establish a speedy, efficient, simple and appropriate method of dealing with, for the most part, minor offences by the provincial offences court. This objective remains current today.
The POA sets out three distinct streams for commencing prosecutions of provincial offences before a judge or justice of the peace (justice) in the Ontario Court of Justice. It contains ten parts described in detail in the Report. Parts I, II and III address the three different ways a POA proceeding may be commenced; Part IV provides for the trial process for all offences; Part V addresses general matters; Part VI describes procedures for young persons; Part VII deals with appeals and reviews; Part VIII is concerned with arrest, bail and search warrants; Part IX concerns the application of the POA to statutes that provide for orders but does not provide for a procedure; and Part X provides for agreements between the Attorney General and municipalities.
Seven regulations apply to POA proceedings, governing such matters as costs, fees for late payment of fines, forms and notices for various types of proceedings and fine surcharges. In addition, four different sets of procedural rules dictate the practice and procedure for POA proceedings and appeals.
To give some context to the type of provincial offences that would be governed by the POA, we describe key areas of regulatory law in Ontario. They include motor vehicle regulation, occupational health and safety laws, environmental protection, the regulation of controlled substances such as liquor and tobacco, safety regulation such as fire protection and restraining orders, general public order and safety regulation such as soliciting in certain public locations and consumer protection regulation.
A separate statute addressing procedural matters reflects the view that there is a clear distinction between regulatory offences and true crimes. Criminal conduct under the federal Criminal Code is said to constitute conduct that is inherently contrary to basic human values and is therefore prohibited completely through criminal enactments. There is usually stigma associated with a conviction of a crime. Regulatory offences, on the other hand, most often involve conduct that is prohibited not because it is inherently wrongful but because dangerous conditions and risks to society at large would result if that conduct was not regulated. There is little or no stigma associated with most provincial offence convictions. Unlike criminal activity, there is usually an expectation that people will continue to engage in the regulated activity after a prosecution, but that they will do so lawfully. It is not always easy to make the distinction, particularly for provincial offences that have significant penalties and the possibility of imprisonment. Nevertheless, the vast majority of POA charges relate to matters that are clearly regulatory and are minor in nature and warrant distinctive treatment, including sentencing.
We therefore recommend maintaining a distinct procedural code in relation to provincial offences. (Recommendation 1)
B. POA Reform Framework
Certain principles ought to guide the reform of POA procedure now and in the future.
Fairness. Fairness must remain a paramount consideration when reforming the POA, although not necessarily as broad in scope as in the criminal context.
Access to Justice. Given the volume of minor provincial offences, the POA system is the “face of the justice system” for most Ontarians. Most defendants are believed to be unrepresented. The POA must therefore provide for simple, easily understood and accessible procedures for the most common offences.
Proportionality. The procedure governing the prosecution of an offence must be proportionate to the interests at stake.
Efficiency and the Administration of Justice. Any procedural system must be efficient to handle the millions of minor charges as well as the less common, but increasingly complex, cases under Part III.
We have also applied the concept of responsive regulation to POA reform. Responsive regulation is most applicable when deciding how best to enforce regulatory standards, but it also has relevance to sentencing of regulatory offences. In this regard we briefly discuss “the regulatory pyramid”, under which regulators proceed with modest strategies to encourage parties to comply with regulatory standards, and if unsuccessful, resort to successively more punitive mechanisms, as an alternative to regulatory prosecutions and fines as a first response. We discuss alternative sentencing tools in Part III of this Final Report.
C. The Purpose of the POA and a Proposed New Structure
Section 2 of the POA states that the statute’s purpose is “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.” The POA’s underlying objectives were to establish a fair and efficient method of resolving provincial offences proportionate to the complexity or seriousness of the offence, but different from the process governing criminal cases. Given the numbers of unrepresented litigants today, accessibility is an increasingly important objective. It is also important that the POA, as a procedural code, further the objectives of the offence-creating statute to which it applies.
We therefore recommend that the purpose section be amended to incorporate these concepts in order to guide parties and the court when interpreting the POA, and to inform the development of any rules, forms or other subordinate authority. (Recommendation 2)
We believe the POA and its four sets of rules and seven regulations must be simplified. The POA contains 10 parts and 176 sections, with internal exceptions and frequent cross-references to other sections, regulations or forms. The trial provisions apply to the most serious and less serious offences without distinction.
We therefore recommend that the POA be restructured to remove the detailed procedural code to regulation, leaving only those matters that are properly left within a statute. While it should continue to prescribe different streams for less serious and more serious matters, the bulk of the procedural code should appear in a single rule, regulation or other subordinate authority, with streamlined procedures for less serious offences, and more detailed procedures for more complex cases, consistent with the principle of proportionality. Simple, plain language guides for defendants would make the POA more readily accessible. We further recommend that the Attorney General and the Chief Justice (Ontario Court of Justice), in consultation with others, jointly determine the most appropriate body to develop the new procedural code. (Recommendations 3 to 9)
D. Administrative Monetary Penalties – An Alternative to the Court Process
Justices of the peace preside over virtually all provincial offence trials, with nearly 60% of their time spent presiding over Part I and Part II trials. Given the relatively minor nature of many of these offences, we assess whether the relevant POA provisions be replaced by an administrative monetary penalty system that is less expensive and more efficient.
An administrative monetary penalty (AMP or AMPS) is a penalty imposed that is due once an infraction has been detected, unlike a fine, which is imposed only once a party has pleaded guilty to an offence or the court has convicted the defendant. AMP systems are already in place in Ontario for certain regulatory breaches. They are said to be an effective and efficient tool to enforce compliance with regulatory standards, while respecting principles of fairness since they typically provide an opportunity to dispute the AMP before an independent, administrative decision-maker (rather than the court).
The Municipal Act, 2001 (which does not apply to the City of Toronto) authorizes municipalities to establish systems of administrative penalties for parking infractions which are then no longer subject to the POA, but so far, only the City of Vaughan and the City of Oshawa have done so (the City of Oshawa approved the adoption of an AMPS parking regime on January 31, 2011 which came into effect on March 1, 2011). The experience of the City of Vaughan has been that matters are heard much more quickly; defendants are given a firm hearing date; less time is wasted by the public; there are cost savings by using administrative hearing officers; hearings are streamlined without the need for a prosecutor; and it frees up time on the court’s dockets to hear more serious matters.
While cost arguments support a move to an AMPS regime, they are not determinative. Proportionality is a major consideration. Non-judicial adjudicators in Ontario deal with matters of fundamental importance to us, such as our human rights, our rights as tenants, our entitlement to social assistance and our ability to work and be licensed in a chosen profession. Yet, under our current POA regime, it is possible to get a trial before a justice to adjudicate upon a disputed $30 parking ticket. We believe greater respect for the rule of law and the administration of justice would be achieved if court and judicial resources were reserved for more serious matters.
In light of the challenges arising for each municipality, we recommend a three year delay before any provincial legislation providing for mandatory AMPS systems for parking infractions comes into force. (Recommendations 10 and 14)
We provide a constitutional analysis under sections 7 and 11 of the Canadian Charter of Rights and Freedoms in relation to the AMPS system under the Municipal Act, 2001, based on Supreme Court of Canada jurisprudence and cases examining AMPS in other contexts. We conclude that given the maximum permissible penalty and that penalties cannot be punitive, t