A. Provincial Offences and the POA
1. History of the Provincial Offences Act
The POA was first enacted in 1979. It governs much of the process for the prosecution and enforcement of provincial and federal regulatory offences and municipal by-laws. In 1974, the Law Reform Commission of Canada estimated that there were 20,000 regulatory offences in each province plus an additional 20,000 federal offences, and these numbers did not include municipal by-law offences. And we know that approximately 2 million charges were laid in Ontario over each of the past three years under offence-creating statutes to which the POA applies. Those charges are laid in diverse areas such as traffic, regulation of controlled substances, environment, and occupational health and safety.
Prior to the POA’s coming into force, the procedure for enforcing and prosecuting regulatory offences in Ontario was set out in the Summary Convictions Act. It was a short Act containing 23 sections that largely adopted the Criminal Code’s provisions for the prosecution of summary conviction offences. While these procedures were “marginally less strict than the Criminal Code’s indictable offence procedures, they were still entirely out of keeping with the minor, regulatory nature of most provincial offences.” According to a 1973 report of the Ontario Law Reform Commission, the disproportionate process that governed certain provincial offences was having a harmful impact on the administration of justice:
The matters which we have been discussing are, in our view, evidence of a much larger problem. The whole system of administration of provincial offences is collapsing, not only in court but also with respect to the service of summonses, execution of warrants and the vast amount of related paperwork. Police resources are being used to enforce parking tags while subpoenas in serious criminal cases are being sent by ordinary mail. Some police officers do not bother to attend as witnesses. Defendants are acquitted apart from the merits. The latter result may be unobjectionable if some other desirable purpose is served, but if acquittal is simply the consequence of administrative incapacity it only encourages disrespect for the system.
In 1978, The Honourable R. Roy McMurtry, Attorney General for Ontario at the time, discussed the problem that the POA was intended to correct:
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 these assumptions nor the rigid technicalities they have engendered are appropriate for the 90% of the provincial offences which are intended to regulate activities which are not only legal but also useful to society.
There was a clear intention to create an entirely new “custom-built procedural framework” that replaced and was distinct from the summary conviction procedure contained in the Criminal Code. The POA’s purpose, as stated in subsection 2(1) of the Act, made this new approach abundantly clear:
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 (Canada), with a procedure that reflects the distinction between provincial offences and criminal offences.
Under the POA, distinct streams were created – one for minor offences (Part I) and one for more serious offences (Part III) with a third stream for parking infractions (Part II). Flexibility was built within the Act to permit the circumstances in each case to dictate whether the stream for minor offences or the one for more serious offences was most appropriate. The new POA was “designed to provide a fair and efficient method for the trial of the large number of cases which are handled by the provincial offences court.” It “was intended to establish a speedy, efficient and convenient method of dealing with…for the most part, minor offences”.
Today, respect for the administration of justice, speed, efficiency and a convenient or simple process remain laudable goals for a procedure that governs the adjudication of minor offences. These are particularly important objectives where the vast majority of defendants are self-represented. We must also consider more serious provincial offences that come with significant penalties and view them through the lens of a POA regime created in 1979 to assess whether that framework remains appropriate today. Respect for the administration of justice, proportionate process and appropriate procedural protection, given the seriousness and complexity of the issues at stake, are further important objectives of any regime. In the next section, we offer an overview of today’s POA regime to give some perspective on whether it continues to meet these objectives, or whether they have been lost over the last 30 years given the evolving nature of provincial offences.
These factors reveal that the POA regime may have become too complex and technical for the resolution of minor offences, and that it is potentially too generic for the increasingly serious number of provincial offences.
2. Structure and Overview of the Provincial Offences Act
The POA is a procedural code that governs the prosecution of regulatory offences created by provincial law and municipal by-laws. The term “offence” is defined as “an offence under an Act of the Legislature or under a regulation or by-law made under the authority of an Act of the Legislature”. In addition, the POA applies to the prosecution of contraventions defined under the federal Contraventions Act. “Court” under the POA is the Ontario Court of Justice, which may be presided over by a “judge”, defined as a judge of the Ontario Court of Justice, or a “justice” which is defined as a judge or a justice of the peace of the Ontario Court of Justice. Below is a snapshot overview of some of its key parts.
The Act contains three distinct parts that govern the commencement of proceedings.
Part I – Proceeding Commenced by Certificate of Offence
Part I prescribes proceedings commenced by way of a certificate of offence. It is often referred to as a “ticketing” process, and it is used for less serious offences, such as a failure to carry a driver’s licence while driving or the consumption of alcohol in a public place. While we describe Part I offences as “less serious”, a more accurate description is that the provincial offences officer has elected to proceed by way of a less formal ticketing process, rather than compel the person’s attendance in court through the Part III mechanism. The maximum fine is $1,000 and imprisonment is not a permitted penalty. Where an enforcement officer serves a person with an offence notice (e.g., a speeding ticket is an offence notice), the officer will file a certificate of offence with the court to commence a proceeding. The offence notice may indicate a set fine for the offence. Set fines are fixed by the Chief Justice of the Ontario Court of Justice.
A defendant who receives an offence notice may do one of the following:
If the defendant does not wish to dispute the charge, pay the set fine including any applicable charge or surcharge fixed by regulation. Payment of the fine constitutes a plea of guilty, a conviction of the defendant and imposition of a fine in the amount of a set fine.
If the defendant does not wish to dispute the charge but wants to make “representations” as to penalty, including a reduced fine, or seek an extension of time to pay, the defendant may appear before a justice at a time and date specified in the offence notice.
If the defendant wishes to enter a plea and have a trial of the matter, the defendant must give notice of intention to appear in court.
If the defendant takes none of the above steps within 15 days of service of the offence notice, the defendant will be deemed not to dispute the charge, and if the certificate of offence is complete and regular on its face, the justice will enter a conviction in the defendant’s absence. Where a defendant wishes to enter a plea and have a trial, the clerk of the court will send notice of the date and time of trial, and the process governing trials and sentencing found in Part IV of the Act applies.
We recommend that the Ministry of the Attorney General consider moving the prosecution of minor Part I offences out of the POA, and suggest that some might be more effectively enforced through a system of administrative monetary penalties.
Part II – Proceeding Commenced by Parking Infraction Notice
Part II sets out the procedure for commencing a parking infraction proceeding. It is very similar to the Part I process, except that Part II applies exclusively to parking offences which are primarily created by municipal by-laws. An enforcement officer will serve a parking infraction notice either personally or by affixing it to a conspicuous place on the vehicle. Set fines for the parking infraction will be indicated on the parking infraction notice and the defendant must, within 15 days, choose to pay the fine or request a trial. The amount of a set fine for a by-law parking infraction may be established by the Chief Justice of the Ontario Court of Justice.
Where a defendant requests a trial, a proceeding may be commenced by filing the certificate of parking infraction with the court along with proof of ownership of the vehicle by the defendant. A defendant who does not pay the set fine or request a trial may be convicted in default, although provision is made to “re-open” a conviction in circumstances where a defendant establishes that he did not receive the parking infraction notice. Where a municipality has entered into an agreement with the Attorney General, the municipality will collect and retain fines under Part II.
We recommend that the ability to prosecute parking offences in court be removed from the POA. Instead each municipality (or Municipal Partner) would establish a system of administrative monetary penalties to enforce parking by-laws.
Part III – Proceeding Commenced by Information
The procedure in Part III is for offences that must be brought before a justice for resolution; they cannot be resolved through the payment of a set fine. The decision whether to prosecute under Part I or Part III often rests with the police officer or provincial offences officer. That decision will depend upon the nature of the offence and the public interest that may demand higher penalties. For example, offences under the Environmental Protection Act that carry potential fines of up to $50,000 on a first conviction and $100,000 on subsequent convictions would be brought under Part III.
The decision to charge under Part III may also depend on the circumstances or consequences of the commission of the offence. For example, an employer may be charged under the Occupational Health and Safety Act for failure to provide its employees with appropriate protective devices and served with a Part I offence notice. However, if the failure to provide such protective devices resulted in serious injury or death to an employee, the employer may be charged under the Part III procedure.
For Part III proceedings, a provincial offences officer (which is defined as including a police officer) may serve a summons on a defendant and then subsequently attend before a justice to swear an information; or the information may be sworn before the justice with service of the summons occurring afterwards. In addition to a provincial offences officer, any person may lay an information that alleges the offence under o