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, the system we endorse is constitutional. We further conclude that higher penalties for improperly using disabled parking spaces would be constitutionally permissible under AMPS and therefore we recommend that the AMPS regulation under the Municipal Act, 2001 be appropriately amended to include the improper use of disabled parking spaces in an AMPS regime. (Recommendations 11 to 13)
The vast majority (80%) of Part I offences arise under the Highway Traffic Act and are heard by justices of the peace. We considered whether they should also be subject to an AMPS system. We concluded, however, that the nature of these offences raises more complicated issues than do parking infractions and therefore we recommend that the Ontario government review Part I offences to determine which, if any, would be better addressed through AMPS. (Recommendation 15)
Under Part IV, we briefly discuss the used AMPS for parking enforcement by First Nation communities.
E. Sentencing Reform
The maximum fine for a Part I offence is $1,000. For Part III offences, the maximum fine is $5,000, unless a statute directs otherwise, and imprisonment is possible where authorized by the offence-creating statute. Certain other sentencing tools, such as probation, are available, but only for Part III offences and their use is limited.
The POA lacks a statement of sentencing principles and only a few decisions from appellate courts are available to guide lower courts, including a leading decision now a quarter century old. As a result, there has been marked variation in sentences and a call for consistent sentencing principles. Sentencing principles adopted under the Criminal Code may serve as a model, although these principles have been criticized as failing to give sufficient guidance to the court on their application or interrelationship.
If sentencing is to be legitimate, it should be based on a consistent and principled approach that aligns that part of the regulatory process with the underlying regulatory objectives. We therefore recommend that the POA be amended to provide a statement of sentencing principles for general application within the POA, subject to different or additional principles being prescribed in the offence-creating statute. (Recommendations 16 to 17)
Sentencing would promote the remedying of harm, rehabilitation, deterrence and where there are aggravating factors, a denunciatory or punitive penalty.
For many offences, the sentencing principles may have little or no impact. Fines for certain regulatory offences may well remain the most effective means of promoting compliance with regulatory standards. However, where fines are issued, it will only be after a court has first considered whether remediation and rehabilitation sentencing orders can best achieve regulatory objectives.
The adoption of sentencing principles represents a shift away from the traditional deterrence-fine paradigm and will be most helpful and appropriate for Part III offences. Given the principle of proportionality and the objective of maintaining simple, streamlined processes for Part I offences, the LCO is not persuaded that the new sentencing principles must apply when sentencing Part I offences, but rather where the unusual circumstances of the case warrant it.
The proposed sentencing principles cannot be realized with the penalties currently available. We therefore recommend that the POA be amended to give the court authority to (a) make probation orders for all provincial offences in order to achieve the remedial and rehabilitative sentencing principles, including broad authority to order terms of probation (although for less serious offences only under certain circumstances); (b) make express, freestanding restitution or compensatory orders outside of probationary terms that may be enforced in civil courts; (c) use victim impact statements; and (d) impose an embedded auditor to monitor compliance with regulatory standards. We defer to the Ministry of the Attorney General consideration of whether alternative measure programs should also be available for less serious offences, after further consultation with municipalities. (Recommendations 18 to 23)
When corporations and other business enterprises breach regulatory standards, it can have significant deleterious effects on communities and potentially thousands of consumers. Fines may not be the most effective sentencing tool since they can often be passed on to consumers.
We therefore recommend that the POA adopt a provision similar to that under the Criminal Code expressly giving the court the power to include remedial and rehabilitative terms within a probation order against a corporation or other business enterprise, whether incorporated or not, as well as clear authority for the court to impose a punitive or denunciatory penalty where appropriate. We further recommend that the Ministry of the Attorney General, in consultation with others, develop a non-exhaustive list of aggravating factors that may justify such a penalty for inclusion within the POA sentencing provisions. (Recommendations 24 and 25)
F. Bail Reform
Although very few people are arrested for the commission of provincial offences, and even fewer are held or released on bail, the principles of fundamental justice require that a fair and effective mechanism be in place for pre-trial release from custody.
The presumption under the POA is that a defendant who is arrested be released pending the disposition of the charge, unless the detention is necessary to ensure the defendant’s attendance in court. There does not appear to be authority to deny bail for the protection and safety of the public, leading to the anomaly that a police officer has the authority to detain a defendant to prevent the continuation or repetition of an offence or the commission of another offence, but a justice does not have the authority to deny bail where there is evidence of a real threat to the safety of the public, including a victim or witness.
We therefore recommend the POA bail provisions be amended to add the protection and safety of the public as a ground for denying bail, but only where there is a real and substantial likelihood that the defendant will commit a serious offence that will harm the public. (Recommendation 26)
Generally speaking, the only justification under the POA to impose bail conditions is to ensure the defendant’s appearance in court. There may be other appropriate bail conditions within the limits imposed by the Charter and case law, in addition to the safety of the public. However, given the nature of most provincial offences, we are concerned that bail conditions may be overused or unnecessarily imposed. We therefore recommend that the Ministry of the Attorney General, in consultation with the judiciary, municipal prosecutors, defence bar, paralegals and relevant legal and community organizations review and consider any further bail conditions that ought to be added to the POA. We further recommend the development of judicial guidelines to promote the use of any new bail conditions and review of their use to ensure they are not abused or overused. (Recommendation 27)
Finally, the bail procedure in the POA has not kept up with recent bail procedural amendments in the Criminal Code. We recommend that the POA bail procedure be reviewed to assess whether it would benefit from process improvements after considering the Criminal Code bail amendments and other relevant considerations. (Recommendation 28)
III. OTHER PROCEDURAL REFORMS TO THE POA AND ITS RULES AND REGULATIONS
This Report focuses primarily on structural and major process reforms to the POA, but several discrete procedural issues were raised during our consultations and we make recommendations on several of them.
The POA allows for search warrants to be executed on particular “things”, but it fails to appreciate searches of electronic data on computerized systems or devices. While we believe that it would be appropriate to amend the POA accordingly, we recognize the highly intrusive nature of searches of personal computers and other electronic sources of information. Also, section 160 of the POA, which seeks to protect searches that uncover documents subject to solicitor-client privilege, may not be lawful because it does not require that the client – the privilege holder – to be advised that the document has been seized.
We therefore recommend that the Ministry of the Attorney General or body responsible for developing the new POA procedural code consider these search warrant issues, so that appropriate amendments may be made. (Recommendations 29 and 30)
With the licensing of paralegals in Ontario, more paralegals appear on POA matters, raising the appropriateness of paralegal-client privilege. We recommend that the Ministry of the Attorney General further consider this in consultation with the Law Society of Upper Canada, paralegals and others. (Recommendation 31)
At least one Ontario regulator relies on the POA’s search warrant provisions to obtain bank records in order to investigate and prosecute certain offences, although it is not clear that banks have the authority to disclose bank records in response to a search warrant without first giving notice to the account holder. It appears that what is truly sought is a production order from a non-party (e.g., a bank), rather than a search warrant. At this time, we do not recommend that production orders be authorized under the POA because there are outstanding policy and operational issues that must first be considered. We therefore recommend that the Ministry of the Attorney General or body responsible for developing the new POA procedural code consider this issue further. (Recommendation 32)
The POA states that common law defences are applicable in POA proceedings. It was proposed that common law defences be codified within the POA; however, we do not recommend the implementation of this proposal given the difficulty of codifying common law defences and the risk of freezing them under the POA while the common law would develop in the criminal context. However, we do recommend that the Ministry of the Attorney General include a summary of common defences in its guides on POA proceedings. (Recommendations 33 and 34)
Section 109 of the Courts of Justice Act, requiring that Notice of Constitutional Question (NCQ) be served on the federal and provincial Attorneys General under certain circumstances, was drafted prior to municipalities taking over the prosecution and courts administration of POA offences. We therefore recommend that the Court of Justice Act be amended to:
require that prosecutors in all POA matters be served with NCQ; and
require that that a NCQ be served on a municipal prosecutor when relief is sought arising from an act or omission of a municipality (Recommendation 35)
The POA allows for convictions of Parts I and II offences to be “reopened” if a defendant has been convicted without a hearing and seeks to have the case reopened within 15 days of becoming aware of the conviction. There have been concerns that this rule has been abused and it has been proposed that limits on its use be introduced. We therefore recommend that the Ministry of the Attorney General or body responsible for developing the new POA procedural code consider this issue further. (Recommendation 36)
Section 124 of the POA references when an appeal of a Part III matter should not be allowed, but it refers to a “certificate” which suggests a proceeding commenced under Parts I or II. We recommend that the Ministry of the Attorney General or body responsible for developing the new POA procedural code consider this issue further. (Recommendation 37)
Media reports suggest that there are over $1 billion in unpaid fines in Ontario, although this may not be completely accurate. New enforcement tools have recently been introduced, but they may be of limited assistance. Other provinces have agreements with the Canada Revenue Agency whereby unpaid fines are deducted from income tax refunds and GST rebates. However, for some low-income Ontarians, tax refunds and GST rebates may represent a significant source of income needed for basic necessities. We recommend that the Government of Ontario, in consultation with municipalities and others, assess whether this tax diversion is an effective and fair fine enforcement tool, with due policy consideration given to its potential impact on low-income Ontarians. (Recommendation 38)
The POA contains various provisions to allow for certain hearings to be heard by telephone or videoconference, although some have not yet been proclaimed. We recommend that the Ministry of the Attorney General or body responsible for developing the new POA procedural code consider the effectiveness of these provisions (once proclaimed) and recommend any improvements it may deem appropriate. (Recommendation 39)
The POA permits the Superior Court of Justice to review POA decisions, but the Superior Court does not have the authority to review cost decisions which must be appealed, leading to unnecessarily fractured proceedings. We therefore recommend that the POA be amended to provide jurisdiction to the Superior Court of Justice to review a cost award when a review to that court has been brought. (Recommendation 40)
The ability to identify the French language needs of Francophones is not reflected in current POA procedures. We recommend the development of proactive procedures for early identification of French Language needs. (Recommendation 41)
The fair and equitable treatment of persons with disabilities requires that their needs be given particular attention when developing any court process, including the newly updated POA procedural code. We recommend that these needs be identified so that the newly updated POA procedural code can respond to them early and effectively. (Recommendation 42)
We were also told of concerns with having to physically attend a courthouse to file a notice of intention to appear in response to a Part I certificate of offence or Part II parking infraction notice. This can be particularly burdensome where a defendant (or defendant’s representative) does not reside near the courthouse where the offence is filed. We recommend that options be developed to reduce the cost and burden of attending courthouses to file notices of intention to appear. (Recommendation 43)
The Ministry of the Attorney General’s POA Streamlining Review of 2006 developed a list of proposals for POA reform, but only some of them have been implemented. We recommend that body responsible for developing the newly updated POA procedural code review the recommendations of the POA Streamlining Review Working Group to assess whether any recommended amendments not yet implemented should be adopted by way of rule, regulation or statutory amendment. (Recommendation 44)
IV. FUTURE LAW REFORM INITIATIVES
We also identify three issues that were brought to our attention but which we are unable to address in this report: the treatment of young persons charged with provincial offences; the application of the POA to Aboriginal people; and the possible application of AMPS to First Nation communities. In each case, we recommend that the Ontario government review these matters, in consultation with affected groups. (Recommendations 45 to 47)
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