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 oath before a justice. The justice may issue a summons directed at the defendant setting out briefly the offences in respect of which the defendant has been charged and requiring the defendant to appear in court on a specified date and time. Instead of a summons to compel the defendant’s appearance in court, the justice may issue an arrest warrant for the defendant where authorized by statute and where the justice is satisfied on reasonable and probable grounds that it is necessary in the public interest to do so. Service of a “ticket” or offence notice does not commence a Part III proceeding; all Part III proceedings are commenced by swearing of the information before a justice. In these respects, the procedure for commencing a Part III proceeding is more akin to commencing a criminal proceeding.
With respect to sentencing, the $1,000 fine maximum applicable to Part I offences does not apply under Part III, and imprisonment is a sentencing option.
Part IV – Trial and Sentencing
Part IV of the Act covers the conduct of a trial and sentencing in POA proceedings. The sections relating to the conduct of a trial are set out in sections 29 to 55, and those relating to sentencing are found in sections 56 to 75. The trial provisions apply to all trials, regardless of whether the proceeding was commenced under Parts I, II or III. They address such matters as venue, authority of the Attorney General to stay a proceeding, issuance of summons to witnesses or the arrest of a witness who fails to appear, taking of pleas, pre-trial conferences, evidence and when it may be presented by way of a certificate, adjournments, and the authority to convict where a defendant does not appear.
The remainder of Part IV details the powers of the court when sentencing. Certain sentencing powers are limited to Part III proceedings, such as directing the preparation of a pre-sentence report and issuing a probation order. Where the statute that creates the offence authorizes imprisonment as a penalty, the court may consider the time the person convicted already spent in custody, and the imposition of a fine in lieu of imprisonment. There is no general authority within the POA to order imprisonment as a sentence; such authority must exist in the offence-creating statute. Upon conviction, a defendant is liable to pay court costs as prescribed by regulation and a surcharge when a fine is imposed in respect of a Part I or Part III offence. Fines are due and payable within 15 days after they are imposed.
When a fine is in default, it may be enforced as a civil judgment by filing a certificate in either the Small Claims Court or Superior Court of Justice, which shall be deemed to be an order of that court for the purposes of enforcement. Other fine enforcement tools include a suspension of or refusal to renew a permit, licence, registration or privilege where an Act authorizes the suspension or refusal to renew.
The POA states that a justice may issue an arrest warrant when a fine is in default, but only where other methods of collecting the fine have been tried and have failed, or where they would not appear to be likely to result in payment within a reasonable period of time. A justice may also order a term of imprisonment (i.e. warrant of committal) for unpaid fines where incarceration would not be contrary to the public interest. In the case of a person unable to pay a fine, a justice may grant an extension of time, establish a schedule of payments, or in exceptional circumstances, reduce the fine. We note, however, that these more severe fine enforcement provisions (e.g., to issue a warrant or order imprisonment for non payment of a fine) are not truly in force since subsection 165(3) of the POA states that they do not apply where municipalities have entered into POA transfer agreements with the Province. Transfer agreements have been established throughout Ontario, and therefore these enforcement tools are not truly available. There may be a case to remove these enforcement tools from the POA altogether, although there may be offences prosecuted by the province involving offenders who flagrantly refuse to pay fines even though they are able to do so. These situations may offer a policy rationale to retain them.
Finally, a fine options program, authorized by the Act and established by regulation, permits the payment of fines by means of credit for work performed, although no such program is currently in effect.
Below we recommend that different trial procedures be adopted proportionate to the nature and complexity of the offence (i.e., different trial processes for Part I and Part III offences). We also recommend the adoption of sentencing principles and an expanded toolkit of sentencing tools to better promote compliance with regulatory objectives.
Part V – General Provisions
Part V of the POA is entitled “General Provisions” and it applies to all types of proceedings under the Act. It includes provisions respecting limitation periods for the commencement of proceedings, a definition of parties to an offence and those who counsel another person to be party to an offence, common law defences and the authority for a witness, defendant, prosecutor and interpreter to participate in a proceeding electronically by way of video, audio or telephone conference. One of the few offences created by the POA is found in Part V, namely, the offence of contempt of court.
Part VI – Young Persons
Part VI applies to young persons, defined as being between the ages of 12 and 16, who are alleged to have committed provincial offences. It includes special provisions with respect to initiating Part I proceedings (i.e., by way of summons rather than offence notice), additional sentencing options and processes for young persons, and a prohibition against publishing the identity of a young person who has committed or is alleged to have committed an offence. We recommend that this Part of the POA be the subject of a separate review.
Parts VII – Appeals and Review
Part VII contains provisions dealing with appeals and review. Certain provisions in this Part apply to all appeals. However, the remaining provisions are separated between appeals from orders under Parts III, and appeals from orders under Parts I and II. In addition, there are separate rules of procedure that apply to appeals of Part III matters and appeals of Parts I and II matters.
We propose modest amendments to these sections to remedy an apparent anomaly about the power to award costs by an appellate court.
Part VIII – Arrest, Bail and Search Warrants
The arrest provisions in Part VIII describe the authority to arrest a person with or without a warrant and the use of force.
The sections on bail speak to when police officers are to release a person after arrest, and if not released, the authority of the “officer in charge” to release the person. If the defendant is not released by the officer in charge, the person is to be brought before a justice as soon as is practicable but in any event within 24 hours. A justice may order the conditional release of the defendant or that the defendant remain in custody. Other provisions speak to the liability of those released on a recognizance to appear, the liability of a surety, and the consequences of a default of recognizance.
We make recommendations as to the circumstances under which bail may be denied and suggest a review of the conditions upon which bail may be granted. We also propose a review of bail procedures more generally.
The search warrant sections cover the authority of a justice to issue a search warrant and the circumstances under which a search warrant may be issued by telewarrant without an appearance before a justice. Further sections define the duty of a person who carries out a search warrant, orders a justice may make regarding things seized, and the procedure to follow when a document seized is subject to a claim of solicitor-client privilege.
We recommend that the search warrant provisions be redrafted to account for searches of information from electronic sources, and we also propose that the power to issue a production order be considered as an alternative to issuing a search warrant. We further propose a review of paralegal-client privilege in relation to protection of documents that may be seized.
Part IX – Orders under Statutes
Part IX of the POA has only one section. Section 161 states that the POA applies where another Act permits the making of an order but does not provide a procedure.
Part X – Agreements with Municipalities
Finally, Part X of the Act 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. When such an agreement is in force, municipalities have the power to collect all fines under Parts I, II and III and to enforce their payment. Throughout this Report, we recommend that municipalities (or Municipal Partners) be actively involved in POA reform, given the significant role they play in POA prosecutions, courts administration and fine enforcement.
In summary, the POA provides a single procedural code for the prosecution of all provincial offences. There are key differences with respect to how Parts I, II, and III proceedings are commenced (i.e., offence notice or parking infraction notice is used to commence Parts I and II proceedings, respectively, and the swearing of an information before a justice commences a Part III proceeding). Another key difference is with respect to sentencing. There is a maximum fine of $1,000 for Part I offences and imprisonment is not a permitted penalty, but these restrictions do not apply to Part III proceedings. Generally, and unless the statute states otherwise, the procedure on trial, arrest, bail and other processes apply equally to all Parts I, II and III proceedings.
Rules and Regulations Applicable to POA Proceedings
In addition to the Act, there are several rules and regulations that apply to POA proceedings created under the POA or the Courts of Justice Act. Seven regulations created under the POA affect POA proceedings:
|RRO 1990, Reg 945||Costs – Prescribes the court costs that the defendant is liable to pay upon conviction.|
|O.Reg. 497/94||Electronic Documents – Prescribes the standards for the completion, signing and filing of electronic documents.|
|O.Reg. 679/92||Fee for Late Payment of Fines – Prescribes the fee for late payment of fines.|
|RRO 1990, Reg. 948||Fine Option Program – Prescribes the framework of the Fine Option Program and how it is to be administered (although no such programs are currently in effect).|
|RRO 1990, Reg. 949||Parking Infractions – Prescribes the forms, allowances to municipalities, and certain enforcement process for Part II (parking infraction) proceedings.|
|RRO 1990, Reg. 950||Proceedings Commenced by Certificate of Offence – Prescribes the forms and notices for Part I (Certificate of Offence) proceedings.|
|O. Reg. 161/00||Victim Fine Surcharges – Prescribes the victim fine surcharges applicable when a fine is imposed in a Part I or Part III proceeding.|
In addition, the Courts of Justice Act confers on the Criminal Rules Committee, subject to the approval of the Attorney General, the authority to make rules relating to the practice and procedure of POA matters, including forms. There are four different sets of rules established by regulation under the Courts of Justice Act that apply to POA proceedings and appeals, briefly described as follows:
|RRO 1990, Reg. 200||Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings – Prescribes various procedural matters such as the calculation of time, filings, delivery of notices, certificates and other documents, and the prescribed forms to be used.|
|O. Reg. 721/94||Rules of the Court of Appeal in Appeals under the Provincial Offences Act – These rules govern appeals to the Court of Appeal, including inmate appeals.|
|O. Reg. 722/94||Rules of the Ontario Court (Provincial Division) in Appeals under Section 135 of the Provincial Offences Act – These rules govern appeals by a defendant, prosecutor or the Attorney General from an acquittal, conviction or sentence in a Part I or II matter that is appealed to the Ontario Court of Justice.|
|O. Reg. 723/94||Rules of the Ontario Court (General Division) and the Ontario Court (Provincial Division) in appeals under section 116 of the Provincial Offences Act – These rules govern appeals of Part III matters to either the Superior Court of Justice or the Ontario Court of Justice.|
3. Nature and Volume of Provincial Offences in Ontario
To give some context to the nature of POA proceedings, we provide a brief overview of the numerous and diverse regulatory offences that are governed by the POA and review statistics on the volume and most common types of provincial offence charges brought before the Ontario Court of Justice.
Overview of Types of Provincial Offences
Numerous provincial statutes regulate the conduct of individuals and industry. Where breaches of those regulations occur, the governing statute typically creates a corresponding offence to promote compliance with the regulatory standard. Below is a sampling of some of the diverse areas of regulatory law in Ontario.
Motor Vehicle Regulation
The Highway Traffic Act (HTA) regulates the conduct of drivers on Ontario roads. It may be one of the most well known regulatory statutes within the province creating numerous offences including speeding, careless driving, failure to wear a safety belt, failure to follow the instructions on a road sign, and failure to carry one’s license while driving a motor vehicle. In some instances, the penalty for offences under the HTA can be significant. For example, motorists can incur a maximum fine of $10,000 or 6 months imprisonment for stunt driving, and a maximum fine of $50,000 if a wheel detaches from a commercial vehicle.
The Compulsory Automobile Insurance Act also creates an offence for failure to have insurance while operating a motor vehicle and it carries a significant minimum fine of $5,000 on a first conviction, and $10,000 on a subsequent conviction.
Municipal by-laws also prescribe various parking, “no stopping” and certain other motor vehicle related offences that are enforced through the POA.
Occupational Health and Safety Regulation
The Occupational Health and Safety Act (OHSA) imposes duties on both workers and employers with respect to equipment, material and protective devices to ensure that our places of work are safe. The duties imposed by the OHSA on workers include wearing the clothing and equipment specified by their employers, and reporting any defects with such clothing or equipment. Workers are also required to report to their employer any contraventions of the OHSA of which they are aware. The duties imposed on employers include developing and implementing a health and safety program, and formulating a policy regarding workplace violence and harassment.
The OHSA creates offences for a failure to comply with provisions in the Act punishable with maximum penalties of $25,000 or 12 months imprisonment for persons, and a $500,000 maximum fine for corporations.
Some charges can be significant. For example, numerous charges have been laid against an employer who is alleged to have failed to provide proper training and equipment to migrant workers who were killed while performing balcony repairs to a building in Toronto in December of 2009. The 61 charges are reported to carry up to $17 million in fines in total.
Environmental Protection Regulation
A particularly current and important area of provincial regulation is environmental protection. The Environmental Protection Act (EPA), Clean Water Act, 2006 (CWA) and Pesticides Act (PA) are just some examples of provincial legislation that create obligations to protect the environment with offences established for breaches of those statutes.
The EPA regulates the actions of persons in charge of pollutants, creating offences in areas such as spillage. A person in charge of a pollutant must develop a plan to reduce the risk of spillage and to respond to its occurrence. The EPA also prohibits littering, imposing a fine up to $1,000 on a first time offence and up to $2,000 on a second time offence.
The CWA establishes a number of obligations, such as a requirement that a person with authority under the CWA who becomes aware of a water drinking hazard provide notice to the Ministry of the Environment. Under the CWA, it is an offence to continue engaging in an activity that endangers a water supply.
The PA imposes obligations on individuals who have released pesticides into their environment outside of an ordinary course of events, such that injury to the environment, animals or persons is likely to occur.
Regulation of Controlled Substances
Provincial legislation also regulates the use of controlled substances, such as liquor and tobacco. The Liquor Licence Act (LLA) and the Smoke-Free Ontario Act (SFOA) are two examples that affect numerous individuals and businesses in Ontario and they create offences for breaches of their provisions.
The LLA makes it a regulatory offence to be intoxicated in a public place or to carry an opened container of alcohol in a motor vehicle. Individuals must be licensed in order to sell alcohol. Persons who are convicted of a regulatory offence under the LLA can be subject to a maximum fine of $100,000, imprisonment for a year, or both. Corporations convicted under the LLA can be subject to a maximum fine of $250,000.
The SFOA makes it a regulatory offence to sell tobacco to persons under the age of 19, or to display tobacco products in a place where such products are sold. Corporations engaged in the manufacture, sale or distribution of tobacco products can be charged a maximum of $100,000 for contravening provisions under the statute.
Numerous statutes regulate matters of public safety. The Food Safety and Quality Act, 2001 regulates, among other things, the production, processing and manufacturing of food for consumption and it establishes offences for contraventions of the Act. Under this statute, orders can be made to prevent or eliminate any food safety risk. Part VII of the Fire Protection and Prevention Act, 1997 creates several offences, such as violating a provision of a fire code. And the Family Law Act permits a court to make a restraining order against a person’s former spouse where that person has reason to fear for his or her safety.
General Public Order Offences
Several statutes create offences dealing with general public order. The Trespass to Property Act creates an offence where a person enters premises to which entry is prohibited by the Act.
Christopher’s Law (Sex Offender Registry), 2000 imposes certain reporting requirements on a person convicted of a “sex offence” and where a person fails to comply with the Act, he or she is guilty of an offence punishable by a fine or imprisonment. 
The Safe Streets Act, 1999 creates offences for soliciting in certain public locations and disposing of dangerous things in an outdoor public place. A provision under this statute makes it an offence to solicit a person in a vehicle on a roadway.
The Consumer Protection Act, 2002 (CPA) applies to consumer transactions in Ontario. The CPA prohibits representations to consumers that are false or misleading. It lists a number of prohibited representations, such as specifying that a certain repair is necessary when it is not, or that a price advantage exists when it does not. The CPA also governs consumer transactions that take place over the internet. It imposes an obligation on suppliers to provide consumers with a written copy of any agreement they have entered into. The CPA also enables consumers to cancel an agreement made over the internet under prescribed circumstances.
The Consumer Reporting Act, 1990 regulates the gathering of information of a company’s consumer base. It requires a consumer agency to correct information where a consumer has reported to the agency that there is an error in the information kept in his or her file. A director or an officer of a corporation who is convicted of an offence under this statute may be liable to a maximum fine of $35,000, one year of imprisonment, or both. The maximum fine that can be imposed on a corporation is $100,000.
The preceding snapshot of regulatory offences provides a glimpse of the range of offences that could be brought under the POA’s procedure. They differ dramatically not only in subject-matter, but also in gravity and in the potential penalties upon conviction. A provincial offences officer may choose to use the Part III process which would allow for a more severe penalty as authorized under the offence-creating statute, but excluding the manner in which the proceeding is commenced, the POA makes virtually no other distinction as to the manner in which this broad range of offences is determined by the court.
Volume and Most Common Provincial Offence Charges
Judges and justices of the peace of the Ontario Court of Justice have jurisdiction to hear all POA offences, although justices of the peace preside over almost all provincial offence matters that require adjudication.
In 2009, of the 2.1 million Part I and Part III charges received by the court, 1.9 million (or 92%) were Part I offences and 170,000 (or 8%) were Part III offences. Of the Part I proceedings, 1.6 million (or 81%) were offences under the Highway Traffic Act or its regulations. Data from 2007 and 2008 reveal a similar volume and proportion of POA offences each year.
In 2007, 2008 and 2009, the three most common Part I offences disposed of by the court arose from charges under (1) the Highway Traffic Act (approximately 80% each year), (2) the Compulsory Auto Insurance Act (approximately 6% each year), and (3) municipal by-laws (approximately 4% each year). Interestingly, the three most common Part III offences disposed by the court in the same years arose from charges under the same authority: Highway Traffic Act (approximately 58% each year), the Compulsory Auto Insurance Act (approximately 14% each year), and municipal by-laws (approximately 5% each year).
Provincial data on the number of Part II parking infractions issued are not available but we know that in 2009 in Toronto alone, 2.8 million parking tickets were issued and 300,535 (10.75%) defendants requested a trial. Data from select Ontario municipalities reveal a high volume of parking infractions that were issued in 2009: the City of Ottawa issued 343,719 with 5,614 (2%) trial requests, and the City of Brampton issued 89,285 with 4,004 (4%) trial requests.
4. Distinguishing Between Regulatory Offences and True Crimes – The Need for a Provincial Offences Procedural Code
Despite attempts in case law and academic articles to draw a clear line between regulatory offences and true crimes, one has not emerged in practice. The distinction is relevant in at least three respects: (1) for criminal offences, the prosecution must prove the existence of mens rea (mental intent), which onus does not exist for regulatory offences unless the statute prescribes otherwise; (2) the extent of Charter procedural protections may differ depending upon whether the offence is regulatory or a true crime; and (3) the purposes of sentencing (and actual sentences) differ depending upon whether the offence is criminal or regulatory.
We summarize the arguments that distinguish a regulatory offence from a true crime to offer perspective on the objectives of a POA procedural framework, and indeed, the continued need for a POA separate from the former Criminal Code’s summary conviction procedure. An understanding of regulatory offences informs the POA Reform Framework discussed in the next chapter, and our discussion on alternative monetary penalties, sentencing and other POA procedural matters.
In the 1970’s, the Law Reform Commission of Canada (LRCC) examined regulatory law in a series of influential working papers and reports. It viewed regulatory offences as fundamentally different from criminal offences. In a working paper released in 1974, it distinguished between the two as follows:
What we conclude is that in our criminal law there is a broad distinction which can’t be pressed too far but which rests on an underlying reality. On the one hand there exists a small group of really serious crimes like murder, robbery and rape – crimes of great antiquity and just the sort of crimes that we should expect to find in any criminal law. . . . By contrast there exists a much larger group of lesser offences like illegal parking, misleading advertising, selling adulterated foods – offences of much more recent origin. These are offences that were never known to common law and never gained entry into the Criminal Code.
The LRCC argued that criminal offences are prohibited acts that are revolting to the moral sentiments of society whereas regulatory offences are merely prohibited. It set out three further differences:
First, crimes contravene fundamental rules, while offences contravene useful, but not fundamental ones. Murder, for example, contravenes a basic rule essential to the very existence of and continuance of any human society – the rule restricting violence and killing. Illegal parking violates a different kind of rule, one which is by no means essential to society, useful though it may be.
Secondly, crimes are wrongs of greater generality: they are wrongs that any person as a person could commit. Offences are more specialized: they are wrongs that we commit when playing certain special roles or when engaging in certain specialized activities. Murder and stealing, for example, are wrongs done by men simply as men. Illegal parking, unlawful sale of liquor and fishing out of season are wrongs done by men as motorists, as merchants or as fishermen. Such specialized offences we expect to find, not in criminal codes or books on criminal law, but in the specialized statutes and books on these particular topics.
But thirdly, crimes are far more obvious wrongs. Murder and robbery seem plainly wrong: they involve direct, immediate and clearly apparent harm to identifiable victims, and they are done with manifestly wrong intention. Offences are less clearly wrong: the harm involved is less direct, is collective rather than individualized, and is as often done by carelessness as by design. What is more, it is as often as not potential rather than actualized.
The LRCC examines this distinction again in its 1976 report entitled Our Criminal Law. Referring back to its earlier work it states:
There is, however, another distinction to which we drew attention in Working Paper 2, The Meaning of Guilt. This is a distinction between “real” crimes and mere regulatory offences. The difference between the two is well recognized by ordinary citizens, accepted formerly by criminal jurisprudence and based on logic and common sense. It should be recognized by law. We therefore recommend that the Criminal Code be pruned so as to contain only those acts generally considered seriously wrongful and that all other offences be excluded from the Code. [emphasis original]
While arguing that there is a difference between real crimes and mere regulatory offences, the LRCC recognized that this distinction was not always honoured. It set out the scope of what criminal law should be:
Only those crimes thought seriously wrong by our society should count as crimes.
Not all such acts, however, should be crimes. Wrongfulness is a necessary, not a sufficient condition of criminality. Before an act should count as a crime, three further considerations must be fulfilled. First, it must cause harm – to other people, to society or, in special cases, to those needing to be protected from themselves. Second, it must cause harm that is serious both in nature and degree. And third, it must cause harm that is best dealt with through the mechanism of the criminal law. These conditions would confine the criminal law to crimes of violence, dishonesty and other offences. Any other offences, not really wrong but penally prohibited because this is the most convenient way of dealing with them, must stay outside of the Criminal Code and qualify merely as quasi-crimes or violations.
In 1978, in the formative decision of R. v. Sault Ste Marie, the Supreme Court of Canada set out its classic statement that distinguishes true crimes from regulatory offences and the burdens of proof that accompany each:
I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:
1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case.
3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.
Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as “wilfully,” “with intent,” “knowingly,” or “intentionally” are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.
While the court distinguished between offences that are criminal in the true sense and public welfare or regulatory offences, it did not really explain the distinction. This was not done until 1991 in R. v. Wholesale Travel Group Inc., where the Supreme Court relied upon the inherent wrongfulness or moral blameworthiness of the offence to seek to distinguish between regulatory offences and crimes:
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.
It follows that regulatory offences and crimes embody different concepts of fault. Since regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, conviction of a regulatory offence may be thought to import a significantly lesser degree of culpability than conviction of a true crime. The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthiness in the same manner as criminal fault. Conviction for breach of a regulatory offence suggests nothing more than that the defendant has failed to meet a prescribed standard of care.
The court concedes that the application of this distinction is difficult, but maintains that there is a sound basis for it. In fact, the distinction that the Supreme Court sought to create was controversial, as noted by Libman in his text:
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.
The illusory nature of this distinction is evident from the many offences in the Criminal Code that do not fit the LRCC’s vision or the Supreme Court’s description of a crime. In Our Criminal Law, the LRCC pointed to the offences of pretending to practise witchcraft and having a motor vehicle equipped with a smokescreen as examples of offences that most people would not count as sufficiently important to count as crimes. Furthermore, some regulatory offences prescribe serious penalty provisions, such as hefty fines and periods of incarceration. It has been argued that significant stigma can attach to regulatory offences which have serious penalties. Also, stigma associated with certain offences, such as securities offences, will shift with market volatility – at one extreme people will seek out villains for conduct that was previously thought trivial.
Nonetheless, other reasons are put forward to maintain the distinction. It is not necessary to prove an intention to commit a regulatory offence for most provincial offences, and this has been said to be a key distinction between regulatory offences and crimes since greater stigma will likely attach to offences for which proof of intention to offend is established. In fact, this informed the court’s reasoning in R. v. Transport Robert (1973) Ltée.  In this case, the Ontario Court of Appeal upheld subsection 84.1(1) of the Highway Traffic Act, which made it an offence for a wheel to become detached from a commercial vehicle while it is on a highway. It is an absolute liability offence and it is not a defence to assert due diligence. The offence is punishable by a fine of up to $50,000, but imprisonment is not a possibility. The defendant argued that the absolute liability offence violated its guarantee of security of the person under section 7 of the Charter. The court rejected the defendant’s argument and upheld the legislation. It stated that most regulatory offences focus on the harmful consequences of otherwise lawful activities. The court also stated that because proof of the mental state of the accused (mens rea) is not required for most provincial offences, the stigma associated with regulatory offences is generally less.
A further rationale for distinguishing criminal offences from regulatory offences is that they require different approaches to sentencing. With criminal activity, the activity is not desired and penalties exist to deter the activity from ever occurring in the first place. With regulated activity, the activity is often necessary or beneficial to society and it is only deviations from the regulated standards that are to be avoided. Penalties are imposed to deter deviations from the regulated standard, but once the sentence is imposed (e.g., a fine), the regulated entity typically resumes the regulated activity. Driving a car, processing food, or controlling water supplies are just some examples of necessary or beneficial regulated activities.
Sheri Verhulst proposes that sentencing principles that go beyond simple deterrence are required for regulatory offences, and that those principles ought to be different from those that apply to criminal offences. She argues that sentencing of provincial offences must recognize that a regulatory sentence is part of a regulatory cycle. In the regulatory cycle, sentencing is not the end of the matter and the defendant will likely go back to the activity that led to its conviction:
However, the sentence and any subsequent punishment are not the “end” of the cycle. Short of permanent incapacitation, the offender often continues to engage in the regulated activity after sentencing. Indeed, society may even desire this, as the regulated activity may be socially beneficial, creating employment or needed goods and services. What society does not desire [is] continued engagement in the same behavioural patterns that gave rise to the offence in the first place, so the offending behaviour must be corrected.
It is clear that there has been a marked increase in the maximum fines available and the possible incarceration periods for Part III matters which have blurred the lines between certain provincial offences and criminal matters. The LCO is of the view, however, that this is not sufficient reason to abandon the separate procedural code for regulatory prosecutions and return to the summary conviction procedure of the Criminal Code. Indeed there are strong reasons to maintain a separate and efficient procedural code proportionate to the less serious nature of most provincial offences, which was the underlying intention behind the POA when it was first enacted.
The LCO acknowledges that the line drawn by the Supreme Court in Wholesale Travel can often be breached and it is difficult to implement, but there is enough truth in it that it is useful. Statistics reveal that the overwhelming majority of regulatory offences are minor in nature and less serious than most criminal offences. As noted previously, 1.9 million charges were laid under Part I in 2009 while fewer than 200,000 charges were laid under Part III, or 8% of the total number of charges laid under both Parts I and III. While the LCO could not obtain complete provincial data on parking infractions under Part II, these numbers would result in an even greater number of minor offences that fit the Wholesale Travel description. It would appear to be completely incongruent with the objectives of proportionality and efficiency to revert back to a complex procedural code with its extensive procedural protections for primarily minor, regulatory offences. For the 8% of the more serious cases that require greater procedural protections, separate procedural rules can be enacted, although still through the POA.
Finally, it must be recognized that many regulatory offences, including those initiated under Part III, are committed while engaging in otherwise legitimate and useful conduct. Roughly 74% of the 2.1 million Part I and Part III charges (or 80% of the Part I charges) relate to offences under the Highway Traffic Act or its regulations. Regulated activities, like driving, are not typically morally wrong; rather it is the way in which they are conducted and the resulting consequences that are sought to be avoided. For these reasons, we agree with the view of the LRCC in 1976 that “a quicker, more streamlined, more informal arbitration” procedure is needed for the vast number of regulatory offences that do not contravene basic values.
Accordingly, the LCO concludes that a separate procedural code for regulatory offences is still justified and is a useful tool for regulators who need a responsive and flexible tool kit to best ensure compliance with regulatory standards.
The LCO recommends that:
1. Given the distinctions between regulatory offences and criminal offences, a separate procedural code for the prosecution, enforcement and sentencing of provincial offences should remain in place, separate and apart from the Criminal Code procedure.
B. POA Reform Framework
1. Principles Informing the POA Reform Framework
When it was first enacted in 1979, the POA had as its objective the creation of a procedural code for the prosecution of provincial offences distinct and separate from the procedure that applied to criminal offences. Yet from our discussion on the history of the POA in Section II.A, it is clear that other, more fundamental principles were the basis for the new POA. Proportionality, efficiency and fairness informed the creation of the POA and we believe they should continue to guide future reform. Access to justice and contemporary regulatory law theory based on the concept of responsive and proportionate regulation are further considerations that should inform POA reform. Collectively, we refer to these principles and considerations as the POA Reform Framework.
The principle of fairness was strongly entrenched within the POA based on the premise that “provincial offences are in substance quasi-criminal.” Drinkwalter and Ewart stated in 1980 that even for offences prosecuted in the minor stream (Part I), the right to a trial remained absolute and unqualified. “[T]he principal challenge in the creation of the new code of procedure [was] to strip out the excess procedural baggage while preserving and enhancing the procedural rights of accused persons.”
It is critical that fairness in procedure remain a paramount consideration when reforming the POA. Proportionate and efficient processes for prosecuting provincial offences must always be measured against fairness considerations. However, it is our view that the extent of procedural fairness that ought to be afforded for many minor offences need not be as broad today as may have been envisaged when the POA was first enacted. The purpose of proceedings under the POA, it was perceived, “was clearly to impose punishment” and this perspective informed the view that provincial offences are quasi-criminal in nature. In view of contemporary theories of regulatory law and the objectives of sentencing discussed in the following sections, the LCO questions whether the purpose of modern-day POA proceeding is to punish. Other objectives, such as persuasion and compliance with regulatory standards through non-penal means, or restorative justice may be more effective in achieving the regulatory goals of the offence-creating statutes. In this sense, fairness may dictate something less than the full procedural guarantees afforded in criminal trials. Put differently, applying criminal-trial processes to all regulatory offence hearings may well frustrate the very important public welfare objectives of these statutes and significantly hamper the effective administration of justice.
Courts have held that procedural protections under the Charter of Rights and Freedoms may be less stringent or may not apply to regulatory proceedings. Archibald, Jull and Roach state, “the Supreme Court of Canada has often accepted the principle that reductions in due process in terms of search requirements, the presumption of innocence and rights against self-incrimination, go hand-in-hand with the fulfillment of regulatory objectives.”
For example, in R. v. Transport Robert (1973) Ltée, the Ontario Court of Appeal held that the section 7 right to security of the person and not to be deprived thereof except in accordance with the principles of fundamental justice does not apply to the prosecution of the offence of a wheel coming detached from a commercial vehicle. The court distinguished the offence from a “true crime” and relied instead on the regulatory nature of the offence (i.e., to prevent the harmful consequences of a breach) when it concluded that the stigma of a conviction along with the potential imposition of a $50,000 fine was not sufficient to trigger section 7 protections.
A similar conclusion was reached by the Alberta Court of Appeal in Lavallee v. Alberta (Securities Commission), which held that sections 7 and 11 of the Charter did not apply to proceedings alleging breaches of the provincial Securities Act. Proof of the alleged fraudulent and illegal activity carried sanctions of administrative penalties of up to $1 million for each contravention. The court looked at the penalty, the purpose of the penalty and the purpose of the Securities Act in concluding that the appellants were not charged with an “offence” within the meaning of section 11 of the Charter because the potential consequences for breach were not penal in nature. Instead, the court concluded that the purpose of the fine was to regulate conduct within the securities industry to best achieve the purposes of the statute, including the protection of investors and the public. Accordingly, the section 11(d) right to be presumed innocent of an offence until proven guilty in a fair and public hearing did not apply. With respect to the section 7 right to security of the person, the court found that the imposition of the penalty did not compare to the kind of stigma attached to an overlong and vexatious criminal trial, and therefore, the section 7 Charter right was not engaged.
This, however, can be contrasted to offences which carry imprisonment as a penalty or those that are “penal in nature”. In these cases, procedural protections guaranteed under the Charter are more likely to apply. For example, in R. v. Pontes, the Supreme Court of Canada stated, “generally speaking, an offence of absolute liability is not likely to offend s. 7 of the Charter unless a prison sanction is provided.” And in R. v. Jarvis, the Supreme Court held that where the predominant purpose of an investigation of a regulatory offence is to determine penal liability, all Charter protections that are relevant in the criminal context apply.
Regardless of the penalty or the predominant purpose of an offence, a minimum level of procedural fairness must always be guaranteed. A right to know the offence combined with an opportunity to be heard by an unbiased decision-maker will be essential hallmarks of any reformed provincial offences procedural code. The content of procedural fairness afforded in a given case may vary and its content is to be decided in the specific context of each case. Most importantly, any procedure adopted for the prosecution or enforcement of provincial offences must be perceived to be fair in order to maintain the public’s respect for the rule of law and the administration of justice. People may be more willing to obey the law if they believe that they are being treated fairly.
Access to Justice
A second and important consideration that guides the POA Reform Framework is access to justice. Access to justice, in its broadest sense, has several components and barriers may include:
Procedural barriers that prevent reasonable and effective access to court proceedings. Examples may include complex court rules, or the lack of simple, plain-language information on court processes;
Complexity of substantive law and statutes, the use of “legalese” and challenges to accessing legal resources;
Economic barriers such as the cost of retaining a legal representative, or processes that require multiple and unnecessary court appearances which thereby increase costs;
Physical barriers that prevent physical access to the justice system, such as inaccessible courthouses or court forms that cannot be accessed by people with disabilities;
Cultural and language barriers that may disproportionately impact certain groups’ access to the legal system. Perceptions of non-Canadian legal systems may also impact on some groups’ perception of our justice system; and
Other barriers that preclude certain groups from becoming involved in broader law, economic and social justice reform. These may include a lack of education or lack of awareness as to how to participate in the development and reform of the law.
Access to justice must be considered in any reform of the provincial offences justice system. Regulatory law impacts each of us daily. The provincial offences justice system is the “face of the justice system” for most in Ontario and it must therefore provide for simple, easily understood and accessible procedures for those offences with which typical Ontarians most often are charged. Without a simple and accessible provincial offences system there is a risk that it will be detached from, and lose the respect of, the community that it serves. Most worrisome is that it will not foster respect for the rule of law.
The principle of proportionality remains a primary consideration in the reform of the POA, as it was when the statute was first proclaimed. Drinkwalter and Ewart described in 1980 how the procedures under the former Summary Convictions Act that governed the prosecution of provincial offences “were still entirely out of keeping with the minor, regulatory nature of most provincial offences.” They stated that the Ontario legislature responded with the new POA that created a “custom-built procedural framework” and “[f]rom start to finish the Act represents an attempt to ensure that each individual section is consonant with the nature of the offences it governs… . One of the major procedural changes wrought by the Act lies in the creation of two distinct procedural streams, one for minor offences and the other for more serious ones.”
As stated by the Attorney General for Ontario at the time:
Many persons living in Ontario find the procedure which now governs the prosecution of provincial offences bewildering, expensive, time consuming and altogether disproportionate in gravity to those offences. This situation is redressed by the proposed Provincial Offences Act, which creates a clear, self-contained procedural code to simplify procedures, eliminate technicalities, enhance procedural rights and protections, and remove the obstacle of delay from the assertion of rights and the conclusion of prosecutions.
Undoubtedly, proportionality of process consonant with the gravity or seriousness of the provincial offence was an underlying objective of the POA in 1979. It ought to remain a guiding principle for any future POA reform. Common sense dictates a commensurate relationship between the seriousness or complexity of an offence and the procedure afforded to its resolution. This is not unique to provincial offences reform. Proportionality of process has also been a driver for reform in the civil and family justice systems. Given the vast number of provincial offences, the gamut of possible sanctions ranging from nominal fines to incarceration, and the increased complexity of some cases that may involve experts and thousands of documents, the principle of proportionality remains a relevant principle in POA reform.
Efficiency and the Administration of Justice
Millions of offences each year are handled through the procedure dictated by the POA. For this reason alone, efficiency must be a consideration within the POA Reform Framework. Indeed, it was a key consideration when the POA was enacted. In R. v. Jamieson, former Associate Chief Justice McKinnon stated:
The Provincial Offences Act is not intended as a trap for the unskilled or unwary but rather…an inexpensive and efficient way of dealing with, for the most part, minor offences.
More than just the volume of cases, the nature of some POA cases demands that efficient processes be in place. An effective and efficient Provincial Offences Court was the subject of a 2003 decision of the Ontario Court of Appeal in R. v. Felderhof. The case involved the prosecution of offences under the Securities Act. The decision speaks to the increased complexity of some provincial offence charges, the importance of dealing with these cases efficiently and the need for procedural tools for their effective adjudication:
Until relatively recently a long trial lasted for one week, possibly two. Now, it is not unusual for trials to last for many months, if not years. Early in the trial or in the course of a trial, counsel may make decisions that unduly lengthen the trial or lead to a proceeding that is almost unmanageable.
One of the “evolving social and material realities” is that litigation, even in the Provincial Offences Court, has become more complex and trials longer. Part of this is a result of the greater complexity of society that produces cases such as this one, which are based on complex commercial transactions. The other reality is the impact of the Charter of Rights and Freedoms. It may be that this would have been a lengthy case before 1982. However, the Charter has introduced an additional level of complexity.
Similarly, requiring a provincial offences court to function as if this complex securities regulation case were nothing more than a traffic violation would seriously compromise its effective functioning. As a result of R. v. 974649 Ontario Inc., the Provincial Offences Court has a broad remedial jurisdiction under the Charter. It seems to me that by necessary implication it must have the procedural tools to ensure its process is effective and efficient for the disposing of applications for any of those remedies … The Legislature has given to the provincial offences court jurisdiction to deal with these complex commercial cases, involving hundreds if not thousands of documents, and sometimes, although not always, involving complex Charter applications and remedies. In my view, the trial judge must have the power to control the procedure in his or her court to ensure that the trial is run effectively. 
Efficiency of process, we believe, must be a guiding consideration to deal with not only simple and uncomplicated POA cases, but also the more complex and lengthy ones. A POA procedural code will not further the administration of justice if it is not efficient.
2. Responsive Regulation
A final concept that ought to inform the POA Reform Framework is responsive and proportionate regulation. This concept has been described as taking the form of a “regulatory pyramid” which suggests an incremental response when regulators detect non-compliance with regulatory standards, rather than launching regulatory prosecutions with hefty fines as the first avenue of response.
We recognize that the regulatory pyramid itself does not directly bear on the appropriate procedural code for provincial offence prosecutions; it is more germane to a critical review of how regulators ought best respond to breaches of regulatory standards once detected. As described below, prosecutions are only one potential response within the regulatory pyramid and the POA only deals with the procedure once a decision to prosecute has been made. Nevertheless, the regulatory pyramid can be an instructive and helpful tool for prosecutors when deciding whether to launch a prosecution, and most notably for our purposes, the concepts it reflects can be instructive for justices when considering appropriate sentencing options.
The concept of responsive regulation arose from the unsatisfactory debate over business deregulation. On the one hand, prominent politicians in the 1980s and 1990s sought to replace what was perceived as excessive government control by the “Nanny State” with greater privatization and governance by “the magic of the market.”  The opposing view is that government regulation with strict enforcement via penalties is necessary to protect individuals in a modern society. Private industry, without regulation and enforcement of those regulatory standards, cannot be trusted to protect the public since they are only interested in profit, and not public welfare objectives. Those in favour of strong regulation and enforcement (in both the public and private context) might point to the tragic incidents arising from unsafe drinking water in Walkerton, Ontario in 2000 and the subsequent Inquiry where the Honourable Mr. Justice O’Connor found that the failure of the provincial government to enact legally enforceable regulations contributed to the outbreak of unsafe drinking water and the sickness and death that ensued.
Responsive regulation seeks to transcend the debate about regulation versus deregulation.
The responsive approach (to regulation) proposed by Ayres and Braithwaite involves a process whereby regulators proceed with compliance based strategies and then resort to more punitive “deterrents” when the desired level of compliance is not achieved. In their opinion, this is a more preferable option to the positions supported either by those who believe that “gentle persuasion works in securing business compliance with the law” and those who only consider that corporations would only comply with the law where tough sanctions were applied.
Responsive regulation provides a balance between those who believe deterrence through “tough sanctions” is the best way to achieve compliance with the law, and those who believe that “gentle persuasion works in securing…compliance”. Instead of asking whether to punish or persuade, it asks when to punish, or when to persuade. John Braithwaite concludes from his empirical research on what motivates regulated actors, that punishment as a first response can often inhibit compliance with regulatory standards; it insults the regulated actors and demotivates them. It fosters individual rebellion and the potential for a business subculture of resistance to regulation.
When punishment rather than dialogue is in the foreground of regulatory encounters, it is basic to human psychology that people will find this humiliating, will resent and resist in ways that include abandoning self-regulation.
Ayres and Braithwaite note that people and businesses often comply with regulations not because of a fear of sanctions, but because of other factors that motivate compliance, including a loss of reputation, a desire to do what is right, to be faithful to an identity as a law-abiding citizen and to sustain a self-concept of social responsibility. They argue these motivators ought to be the source of proportionate and custom-tailored responses to regulatory breaches that promote cooperation and compliance, rather than a prosecution with the imposition of a standard fine as the first response. Moreover, prosecutions might ultimately have no impact on altering behaviour or motivating compliance, especially if the fine is passed on to the consumer and not borne by the regulated party.
Resort to punishment, however, should not be abandoned. It must always be in the background as a “big stick” that can be called out to promote compliance with lesser sanctions.
The base of the regulatory pyramid, proposed by Ayres and Braithwaite, is persuasion. As one moves up the pyramid, the more demanding and punitive the tools used by regulators become. Persuasion escalates to a warning letter that in turn escalates to a civil penalty, a prosecution or criminal penalty, a licence suspension and then a licence revocation. The model is intended to be dynamic. It should not be used to specify in advance what level regulators should turn to respond to a violation. There should be a presumption in favour of starting at the base of the pyramid, although circumstances may demand starting elsewhere. Where the regulated person fails to respond to persuasion the regulator can move up the pyramid until there is “reform and repair”.
In Ontario, Archibald, Jull and Roach build on the work of Ayres and Braithwaite. They also place self-regulation and persuasion at the bottom of the pyramid, but in addition, they see an early role for restorative justice for some regulatory breaches. They refer to the definition of restorative justice articulated by Supreme Court of Canada in the criminal context:
In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the need of the victims and the community, as well as the offender. The focus is on the human beings closely affected by the crime.
If persuasion and restorative justice are unsuccessful, Archibald, Jull and Roach propose warning letters. Where there is non-compliance after warning letters have been sent, the next level is the civil or administrative stream which would include civil actions whose purpose would be compensation and cost internalization. Administrative Monetary Penalties (AMPS) (which would be outside the POA) would appear to be included on this level. The next level is regulatory prosecution, which is where the POA would come into play. Deterrence has traditionally been the objective at this level. Defendants are prosecuted, but they may avoid guilt by establishing that they acted with due diligence by implementing safeguards that any reasonable defendant would have taken to avoid the occurrence of the prohibited act. At the apex of their pyramid would be criminal sanctions and temporary or permanent licence suspension.
Braithwaite argues that the pyramid works from the experience of business regulatory agencies all over the world. Empirical evidence shows that sometimes persuasion works and sometimes it does not, but the same is true of punishment. Also, the presumption in favour of persuasion means that you start with the cheaper and more respectful option. Any eventual coercion is more likely to be seen as fair and legitimate by regulated persons or at least by others if persuasion is attempted first. Persuasion can also divert cases out of the traditional prosecutorial response, reducing overall court and prosecutorial costs and the delay associated with prosecutions.
The LCO supports responsive regulation and the notion of a flexible and responsive toolkit for regulators to promote compliance with regulatory standards. The multi-disciplinary field research conducted by Braithwaite and others is compelling and it ushers in creative solutions for promoting compliance with regulatory standards.
As mentioned earlier, the model of the regulatory pyramid itself is more relevant to a general analysis of how best to promote compliance with regulatory standards by regulators than it is to a procedural code for prosecuting offences. However, the model of responsive regulation does have some application to a review of the sentencing tools available to a justice at the regulatory prosecution stage of the pyramid. It questions the general deterrence-fine paradigm as the standard sentencing response for most regulatory prosecutions, and opens up the possibility of more efficacious sentencing tools that can better promote compliance with the regulatory objectives in the future. As discussed in Section II.E on sentencing, the greater use of probation, the ability to make restitution and compensatory orders and the ability to order an embedded auditor to monitor compliance are some sentencing options that are consistent with responsive and proportionate regulation.
C. The Purpose of the POA and a Proposed New Structure
1. The Purpose of the POA Today
Section II.A began with a discussion of the purpose of the POA as found in section 2 of the Act. We noted that the underlying objectives of the POA were much more than simply “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.” Several sources reveal that the true underlying objective of the POA was “to provide a fair and efficient method for the trial of the large number of cases which are handled by the provincial offences court,” and “to establish a speedy, efficient and convenient method of dealing with … for the most part, minor offences.” The objectives of proportionality, efficiency and fairness were real then and they remain real today, and in our view, they ought to be properly reflected in an amended purpose section of the POA.
After 30 years of experience with a separate procedural code for POA matters, there is no doubt that regulatory offences are to be governed by a procedure that is separate from the Criminal Code summary conviction process. Therefore, it is no longer necessary to refer to the creation of a POA procedure distinct from the Criminal Code procedure as the sole purpose of the POA. There may still be valid reasons to distinguish “criminal offences” from “provincial offences” in the purpose section. As recommended in Section II.A, a separate procedural code ought to be maintained for provincial offences given the distinction between most regulatory offences and crimes, and this distinction ought to be retained in a newly expanded purpose section that reflects the legislation’s true underlying objectives. Expressly stating within the purpose section that provincial offences are to be distinguished from criminal offences may be further justified, given the different extent to which Charter protections apply to provincial offences versus criminal ones, and because some offences can be prosecuted as provincial offences or as criminal offences (e.g., cruelty to animals) .
A purpose section provides insight into the legislator’s true intent for the enactment. Not only does it guide the judiciary in the interpretation and application of the statute, but it also directs prosecutors and defendants to govern themselves in a manner consistent with this legislative objective. The drafting of subordinate POA rules, regulations and forms would similarly be guided by the overarching purpose of the statute. To date, it has been left to the judiciary and rules committees to interpret the true underlying objective of the POA.
A POA purpose section that incorporates concepts of proportionality, efficiency, fairness, accessibility and responsiveness to the offence-creating statute’s objectives will, in our view, create a dynamic and flexible procedural code. It will create opportunities for a living and evolving procedure (or procedures) that can best respond to the volume and diverse nature of POA offences today and in the future. It will establish the guiding principles upon which any POA procedure, rule or regulation is to be developed, interpreted and applied.
The flipside of flexibility is certainty. Some may argue that the introduction of these concepts will make for an uncertain procedural code. The judiciary, prosecutors and defendants alike must know the process that governs a proceeding and we do not advocate abandoning a precise procedural code for POA offences. On the contrary, we recommend the establishment of clear procedures for different types of POA proceedings in the next section. We do believe, however, that the above-noted principles and factors be included in the POA’s purpose section so that they may guide the statute’s interpretation and application. The alternative is to provide no guidance and leave it entirely for judicial determination, but this can result in greater uncertainty and may not achieve the objectives that we believe ought to govern POA proceedings.
The approach we propose is neither unique nor novel. Each procedural code governing civil, family, small claims and criminal cases includes a governing purpose or interpretative provision that captures concepts of proportionality, fairness or efficiency in the administration of justice. Similar concepts should define the overarching principles that guide the development, interpretation and application of POA procedure. While we defer to the expertise of legislative drafters, we offer the following draft of a revised purpose section:
The purpose of this Act is to:
provide an accessible procedure for the fair and efficient resolution or trial of provincial offences in a manner that is proportionate to the complexity and seriousness of the provincial offence,
promote the objectives of the offence-creating statute, and
provide a procedure that reflects the distinction between provincial offences and criminal offences.
The LCO recommends that:
2. The purpose section of the POA be amended to advance a procedure for the trial or resolution of provincial offence cases and to inform the development of any rules, forms or other subordinate authority or practice that is:
c. proportionate to the complexity and seriousness of the provincial offence;
e. responsive to the offence-creating statute’s objective; and
f. reflective of the distinction between provincial offences and criminal offences.
2. Restructuring the POA and POA Rules
In Section II.A we summarized the POA structure, and the rules and regulations that govern provincial offence proceedings and appeals. We identified a number of concerns with the structure of the POA and its rules and regulations which we discuss next. In our view, it is time to significantly restructure and simplify the Act consistent with the objectives of the POA Reform Framework.
Simplify the POA
The POA regime, with its numerous rules, forms and regulations is very complex. Its complexity is particularly troubling since most offences prosecuted under the POA are minor and involve self-represented defendants. We list components of the POA regime to demonstrate how complex and cumbersome it can be:
The Act contains 10 parts and has 176 sections. It describes how to commence a prosecution, how to respond to a proceeding, powers of arrest, search warrants, sentencing, bail and rules governing trials and appeals. Given the frequent cross-references to other sections within the statute or to regulations or forms, it can be very cumbersome for even the most educated reader. Moreover, it is not written in plain language.
There are seven regulations under the POA that may apply to a given POA proceeding.
There are four different sets of rules established by the Criminal Rules Committee under the Courts of Justice Act that govern POA proceedings and appeals. In some instances the POA Rules appear to duplicate or render superfluous what is already stated in the POA.
The forms required to follow the procedure set out in the POA are contained in a separate regulation or are found in one of the four sets of rules. These forms are not expressly identified within the POA, making it necessary to search through one of the four sets of rules or seven regulations to ascertain the correct form.
There are several exceptions to the general processes prescribed in the POA. For example:
– Several procedures that govern Part I and Part II proceedings apply only in certain parts of Ontario and to determine whether they apply, reference must be had to a separate regulation.
– Various other sections of the Act do not apply in certain municipalities to which certain sections of the Act apply.
To become familiar with the POA statutory procedure, the procedural rules established under the Courts of Justice Act must also be referenced to ensure compliance.
We do not suggest that the procedural requirements set out in the POA are unnecessary or without a sound policy basis. A clearly defined process is essential for any procedural code. Much of the procedure, we suspect, appears to have been placed in the POA based on conventions for drafting quasi-criminal procedure when the POA was first enacted in 1979. We question, however, the necessity and efficacy of including such detail within a statute today.
We also question the wisdom of having to refer to several other sets of rules, regulations and forms to fully understand and adhere to the POA process. The complexity that results can render the procedure unintelligible, and therefore, inaccessible. This is compounded by the fact that the POA contains much “legalese” and it is not readily accessible unless one knows how to access statutory documents. In our view, the POA procedure must be simplified, particularly for Part I and II proceedings, which represent the vast majority of POA proceedings commenced and which are most likely to involve unrepresented defendants.
As noted previously, 90% of POA prosecutions are Part I offences, and 80% of those relate to Highway Traffic Act offences and it is believed that most of those defendants are unrepresented. To expect an unrepresented person to sort through the POA, its rules and forms to understand the process to which he or she is subjected promotes neither fairness nor accessibility. The amount of detailed procedure is simply disproportionate given the interests at stake. As a point of comparison, we note that another court forum where a majority of litigants are unrepresented, namely the Small Claims Court, has a complete procedural code that contains a total of 21 rules with all associated forms contained within these rules. In addition, plain-language procedural guides prepared by the Ministry of the Attorney General are readily available to assist litigants through the Small Claims Court process.
Simplify and Update the POA Rules
There are four different sets of POA rules with associated forms prescribed under each: (1) POA procedure before the Ontario Court of Justice; (2) appeals to the Ontario Court of Justice from Part I and Part II proceedings; (3) appeals of Part III proceedings to the Ontario Court of Justice or Superior Court of Justice; and (4) POA appeals to the Court of Appeal. The Criminal Rules Committee, with the approval of the Attorney General, makes POA rules under the authority of the Courts of Justice Act.
As with the POA, we heard that the rules are also unduly complex. They are written in legal language and to navigate through them without formal training is a challenge. As one person said with respect to the complexity of the rules, “it’s like you need to have your decoder ring from your box of Cheerios with you!” Since they were created, the general POA rules for the Ontario Court of Justice have only received minor amendment. The last time they received any amendment was ten years ago and those amendments were housekeeping in nature. The remaining three sets of rules were established in 1994 and they have not received any amendments since that time. In fact, they still refer to the Ontario Court (Provincial Division), the former name of the Ontario Court of Justice, as do the prescribed forms. The rules are not consolidated or easily found and reference must be had to separate regulations to determine the correct forms, which is a concern given the number of unrepresented defendants.
We were also told that the Criminal Rules Committee, which has jurisdiction under the Courts of Justice Act to make POA Rules, might not be best suited for making POA rules. The Committee is comprised of 28 members including the Chief Justices and Associate Chief Justices of the Court of Appeal, Superior Court of Justice and Ontario Court of Justice, other judges from each level of court, lawyers, representatives of the Attorney General and courts administration. This composition may be appropriate for making criminal rules in the Ontario Court of Justice and Superior Court of Justice, but it does not appear to be ideal for making POA rules. The vast majority of its members have no direct involvement in POA matters with the exception of select Ontario Court of Justice judges. Justices of the peace hear most Part I and Part II proceedings but they are not represented on the Committee. Nor are there representatives from municipalities who perform prosecutions and court administration for the majority of POA offences, or paralegals who often represent defendants in POA proceedings. The Criminal Rules Committee has established and seeks advice and recommendations from a POA Rules Subcommittee, but this rule-making structure may not be the most effective because it is still reliant on the full Committee to approve any amendments proposed. The size of the Criminal Rules Committee and the fact that it does not meet regularly are further obstacles to continuously monitoring the POA rules and tabling necessary improvements.
Create Clear and Proportionate POA Trial Processes
There is one single set of trial provisions found in sections 28 to 55 of the POA that apply to all trials under Parts I, II and III. For the most part, they are a scattering of provisions addressing specific eventualities that may arise at a trial; they do not create a roadmap directing how a POA trial is to unfold. They would appear to be most relevant for more complex trials under Part III and may certainly be useful for that purpose. However, for an unrepresented defendant who seeks a basic understanding of how a simple POA trial is to unfold, these sections offer little guidance.
This single set of trial provisions apply equally to all POA trials, without regard to the different types of POA trials or the gravity or seriousness of the offence(s). They apply to a trial involving a $30 parking ticket under Part II and equally to a major environmental offence under Part III with a potential $10 million fine and imprisonment. The POA trial sections do not limit the amount of process that is available for the former type of trial, nor do they offer a specialized rule to assist in the management of the latter types of trials that may be more complex, involve expert witnesses and potentially weeks of trial time.
Benefits may be achieved if specific trial rules were created that were proportionate to the seriousness of the offence. If separate and simple trial rules applied exclusively to trials for less serious offences, and other more comprehensive rules were created for more serious trials, one might expect more efficient use of court and judicial resources and a greater understanding of court processes by those subjected to it. Proportionality, fairness and greater accessibility would be advanced.
Allow for POA Process to Be More Easily Amended
The POA procedure is contained in a statute, but it could be more easily and quickly amended if it were in a rule or regulation. With all statutory amendments, committees of the provincial Cabinet must first vet proposed amendments to the POA. If approved, Cabinet must consider the amendments next. Once Cabinet approval is obtained, time must be found on the Legislature’s agenda to introduce and debate the amendments in a Bill. Careful review and debate of our statutes is fundamental to our democratic processes, and the decision to remove matters from this process should not be taken lightly; nevertheless, there may be certain purely procedural matters for which this process is not necessary. There would be value in delegating the development of a procedural code to an appropriate body with technical expertise.
Amendments to subordinate authority such as rules or regulations, on the other hand, can typically be done much more quickly and easily. Depending upon the governing statute, approval of the Attorney General or the Lieutenant Governor in Council (i.e., Cabinet) is usually all that is required for such amendments. Specialized bodies with expertise (typically Rules Committees) will understand why procedural amendments are needed. This is the process by which civil, family and criminal procedural rule amendments made by the respective rule committees come into force. It is also the process by which POA rule amendments are made, but since most POA procedure is contained in the statute, amendments must be processed through the provincial Legislature.
As a result, having the bulk of POA procedure rest in a statute unduly prolongs inefficiencies and results in a POA regime that is unresponsive to needed improvements. It creates frustrations in those who prosecute, defend, adjudicate and administer POA offences and who seek procedural amendment. In our view, it could be corrected by transferring the bulk of that procedure to a new single set of POA rules or a regulation.
Of course, certain foundational, jurisdictional or offence-creating matters must always be within a statute as opposed to rules or regulations. Fairness and democratic accountability require that certain matters, such as the creation of offences and penalties, conferring decision-making power on justices, and the establishment of provincial courts, be within a statute so that they can be publicly debated and duly considered by elected officials. A regulation, on the other hand, is a directive of a legislative nature that typically deals with technical or procedural matters to give effect to a statute. A regulation is approved by the Executive Branch of government without public debate in the legislature, although the governing statute must authorize the creation of a regulation. In this sense, regulations are made under the authority of the legislature. As noted above, regulations or rules are typically approved by the Attorney General or the Lieutenant Governor in Council (i.e., Cabinet).
Standing Orders of the legislature dictate what matters must appear in a statute as opposed to a regulation. In addition, certain POA procedures may have a political component because they have a direct impact on the lives of most Ontarians, and therefore, ought to appear in a statute as opposed to a regulation to allow for public debate. The use of photo radar as a tool to commence a Highway Traffic Act proceeding is one example. Legislative Counsel is in the best position to analyze and advise what must remain within a statute, as opposed to subordinate authority. In addition, statutory amendments to the POA or the Courts of Justice Act may be required to expand the authority to enact subordinate rules or regulations. While we defer to the expertise of Legislative Counsel, we suggest that provisions establishing the court’s jurisdiction to hear POA matters, the jurisdiction of judges and justices of the peace, the authority of court staff to perform certain functions, the authority to arrest and issue search warrants, the creation of offences and sentencing all remain in the POA. Other matters might also be required to remain within the statute.
After this preliminary analysis is undertaken, the LCO believes that much of the detailed procedure currently found in the POA should be greatly simplified and transferred to rules or a regulation. Examples of POA matters that might be moved to rules or a regulation include:
How a defendant may file a notice of intention to appear in response to a Part I or II offence notice, and how the clerk is to give notice of a trial (ss. 5, 17);
How a summons is issued by the Court (s. 39);
How parties may access pre-trial conferences (s. 45.1);
How adjournments are granted (s. 49);
The release of exhibits (s. 48);
When documents may be filed electronically (s. 76.1);
When parties or witnesses may appear at a hearing by telephone or video conference (s. 83.1);
How and when extensions of time may be granted (s. 85); and
How appeals are commenced (ss. 116, 135) and the procedure that governs appeals (see, e.g., ss. 118, 119, 136).
In light of the above, we recommend that the POA and its rules be restructured. The POA’s detailed procedural code should be removed, and what remains in the POA would be the necessary foundational, jurisdictional and offence-creating provisions required to permit the POA regime to operate. The POA should continue to prescribe how POA proceedings are to be initiated, and it should continue to establish separate streams so that processes proportionate with those streams can be detailed in the subordinate rules or regulation (i.e., the current Part I for less serious offences, and the current Part III for more serious offences. We note, however, that Part III may be “renamed” once the revised POA is drafted and after Part II parking infractions are removed from the POA, as recommended below in our discussion under AMPS). Other provisions that, by legislative convention or other authority, are required to remain in a statute and are necessary for an effective POA regime should also remain in the POA.
The detailed procedural code should then be consolidated in new POA rules or a new POA regulation. We discuss below options as to how the new POA rules or regulation might be enacted. The four sets of POA Rules would be revoked and replaced by a single set of rules or regulation, with all associated forms. As with the current POA, we envisage the rules or regulation continuing to set out different streams so that the process prescribed is proportionate to the seriousness of the offence. Simplicity for the less serious and most common proceedings should be a hallmark trait of a renewed procedural code. Statistics demonstrate that the overwhelming majority of these proceedings are traffic and parking violations, and to the greatest extent possible, the procedure should be simplified so that the most common types of proceedings are easily understood and accessible by individuals not familiar with the legal system.
Within each stream, specialized processes may be developed for the fair, most efficient trial or other resolution of the proceeding. For example, for Part III offences, a system of case management might be prescribed to ensure that judicial and court resources are used effectively, and that these more complex proceedings are dealt with fairly and expeditiously. A distinct rule for appeals might also be created. There are possibilities for the creation of further specialized rules for certain types of offences, provided that they are established to further the objectives stated within the newly updated POA purpose section.
To further promote access to justice for those who are self-represented, and contemporaneous with the release and implementation of a new streamlined and simplified POA rules or regulation, it would be helpful if the Ministry of the Attorney General offered a plain-language manual or guide to litigants that is readily accessible so that the POA process is clearly understood. This is not a novel suggestion. The Ministry of the Attorney General already publishes on its website simple and easy to follow guides and brochures for Small Claims Court litigants, litigants involved in civil proceedings before the Superior Court of Justice and a procedural guide and other information for family litigants. Similar information tools that are in plain language and easy to follow should also be created for POA litigants and be readily accessible. In developing the POA guide for defendants, consultation should be had with municipalities and legal and community organizations, including Community Legal Education Ontario and community-based groups affected.
In summary, we believe these structural changes to the POA will promote clarity of process and enhance access to POA courts. They will also further the objectives of having processes that are proportionate to the seriousness of the offence. They would also be more susceptible to amendment and responsive to new regulatory offences or circumstances that may arise.
The LCO recommends that:
3. The POA be significantly restructured to provide only the necessary foundational, jurisdictional and offence-creating provisions that are necessary to permit the POA regime to operate by removing the detailed procedural provisions to regulations .
4. The POA continue to prescribe different streams for the commencement of POA proceedings (i.e., Part I for less serious offences and Part III for more serious offences, although these parts may be renamed or renumbered in any new POA).
5. The four different sets of POA Rules and forms be consolidated into a single set of POA rules or regulation.
6. New POA rules or regulation prescribe a simplified and complete procedural code for the fair, accessible, most efficient trial, appeal or resolution of a POA proceeding based on the stream in which the proceeding is commenced. In particular, simplified trial rules be established for current Part I offences, and separate more comprehensive trial rules established for current Part III offences. Further specialized and proportionate rules may be developed as necessary for the most common types of POA offences or for those offences that are unduly complex or would benefit from specialized rules that further the POA’s objectives.
7. The Ministry of the Attorney General, in consultation with municipalities and legal and community organizations, develop simple, plain language procedural guides for POA defendants that are accessible on the Ministry of the Attorney General’s website and at all POA court locations.
3. Enactment of New Procedural Code
There are several ways in which a new POA procedural code can be enacted. We offer the following options with a preliminary discussion of some relevant considerations:
Option 1: Traditional Rules Committee Model
This option would see new POA Rules created by a newly established POA Rules Committee, comprised of members of the bench, bar, prosecutors, paralegals and municipal courts administration.
Option 2: Judicial Rules Committee Model
Under this option, new POA Rules would be created by a newly established POA Rules Committee, comprised exclusively of judicial representatives and we would envisage almost all being members of the Ontario Court of Justice.
Option 3: Regulation Developed under Judicial Lead
This option sees a new POA procedural code developed within a new single regulation, as recommended by the Chief Justice of the Ontario Court of Justice, who shall consult as necessary and appropriate.
Option 4: Regulation Developed by MAG
This is a variation of the previous option, that would seek a new POA procedural code developed within a new regulation, but it would be developed and recommended by the Ministry of the Attorney General, which shall consult as necessary and appropriate.
Option 5: Procedural Guidelines or Best Practices Issued by Judiciary
The final option is to establish a new POA procedural code within a Guideline or Best Practices document, established by the Chief Justice of the Ontario Court of Justice, who shall consult as necessary and appropriate. These guidelines could be the exclusive source of POA procedure, or they could be in addition and supplement to, any newly created POA rules or regulation.
In assessing each option, the following considerations are relevant. First, rules of court enacted by bodies authorized by statute are regulations. Therefore, in law, there is no practical difference between whether the new procedural code is found in “POA Rules” or a “regulation”; they would both be regulations and have the same force of law. The practical difference among the options, other than Option 5 which would not have the force of law, lies in who has the authority to create the “rules” or “regulation”.
The Typical Rules Committee Model (Option 1) may prove to be ineffective if the size of the new POA Rules Committee is too large (e.g., the Criminal Rules Committee has 28 members). This has been a critique of at least one similar Rules Committee. There may also be the potential for internal conflict, as the procedure proposed by the committee may not be supported by the Attorney General or Lieutenant General in Council. Moreover, if members of the committee have no direct or regular involvement in POA matters, they may not be best suited to recommend technical rule amendments. (If Option 1 is adopted, we recommend that all members have expertise in POA matters). On the other hand, a Rules Committee with broad representation ensures that the interests of most groups affected are considered. Any newly created POA Rules Committee could be smaller and still be representative of the key stakeholder groups (e.g., 10 members) and it may rely upon informal subcommittees when specialized input is required but Rules Committee members do not possess that expertise.
A Judicial Rules Committee Model comprised primarily of the Ontario Court of Justice judiciary (Option 2) could be expected to operate more efficiently. It would have primary expertise of POA proceedings; however, input from other stakeholder groups would be necessary to ensure that the newly drafted rules are operational (e.g., municipal court administrators). Also, for matters appealed to the Superior Court of Justice or Court of Appeal, it would be helpful to have judges from those courts directly involved in processes that impact those courts.
A regulation developed under the leadership of the Chief Justice of the Ontario Court of Justice (Option 3) would have the same considerations as under Option 2. It would also respond to calls to give the judiciary express authority to make POA court rules, which is analogous to the rule-making authority the Criminal Code vests with the judiciary for criminal matters. Option 3 also avoids the rigidity of process that might come with a formal Rules Committee structure. However, as we have discussed previously, provincial offences are unlike criminal matters; provincial offences impact most people and businesses and the procedure that governs POA matters will typically impact more people, which creates a strong case for broad input when developing POA rules. Municipalities have a strong interest in POA matters, as do several provincial ministries and many regulated industries, and they may not have a voice on the chosen process under this option unless the Chief Justice establishes a formal consultative process to seek their input. A further concern is the appropriateness of the Chief Justice developing a regulation on matters that are potentially political in nature, or proposing procedural amendments that respond to interests of government or prosecutors. Such matters could raise questions about the proper role and independence of the Chief Justice.
Should a Rules Committee model be adopted, the initial start-up work of consolidating and simplifying existing rules and forms will be significant. Time and resources will be required to complete this important work. For this reason, the most practical and effective option may be to rely upon the policy-making expertise of staff at the Ministry of the Attorney General to prepare a regulation after consultation with the appropriate groups (Option 4). This is the normal process for most regulations. However, Ministry staff may not have the day-to-day expertise of those who work in POA courts and because they do not work in the POA justice system daily, they may not be able to: (a) exercise a monitoring function to ensure the rules work effectively; or (b) respond with any further regulatory amendments that may be required over time.
The final option of guidelines or best practices issued by the judiciary would result in a procedural code that does not have the force of law. Since the judiciary would issue them after appropriate consultation, one would expect that the new procedural code would be treated by the judiciary, prosecutors, defendants and court administrators as having the force of law. The risk, however, is that they would not be consistently applied or adhered to because they would not be a regulation or rule. Certainty of procedure, as we have stated, is an important goal since it furthers the principle of fairness and proportionate process. Moreover, serious cases in particular may demand greater formality of process particularly when significant fines and liberty interests are potentially at stake.
Alternatively, any guidelines issued by the judiciary may serve to supplement any rules or regulation that are enacted. They could offer best practices for prosecutors and defendants consistent with the purposes of the POA. They would serve to enhance the day-to-day operational procedures under the new POA procedural code. They may take the form of a Practice Direction. There is the risk, however, that guidelines issued to supplement the new POA rules or regulation may add to the procedural complexity that the single set of rules or regulation sought to remedy.
With each option, there must be a clear forum for input from municipalities. The transfer of POA prosecution and courts administration to municipalities dictate that they have a significant voice in developing any new procedural code.
We do not make a recommendation as to which of the above options ought to be adopted. We observe, however, that the appropriate body would be one with the characteristics of independence, inclusiveness, expertise and efficiency.
In our view, the preferable route is for the Attorney General and the Chief Justice of the Ontario Court of Justice to jointly agree on how the newly updated POA procedural code should be established and by whom. This decision should be made after consultation with the Criminal Rules Committee, the Chief Justices of the other levels of Court and municipalities who now have carriage over POA prosecutions and courts administration.
The LCO recommends that:
8. The Attorney General and the Chief Justice of the Ontario Court of Justice jointly agree on how the newly updated POA procedural code should be established and by whom, after consultation with the Criminal Rules Committee, the Chief Justices of the other levels of Court and municipalities who now have carriage over POA prosecutions and courts administration.
9. Amend subsection 70(2) of the Courts of Justice Act accordingly, to relieve the Criminal Rules Committee of jurisdiction to make POA rules and identify the new body or entity responsible for developing the newly updated POA procedural code.
D. Administrative Monetary Penalties as an Alternative to the Court Process
1. Using the Court to Adjudicate Part I and II POA Proceedings
Judges and justices of the peace of the Ontario Court of Justice have jurisdiction to hear all POA offences, although justices of the peace preside over almost all provincial offence matters that require adjudication. Without question, this represents a significant volume of work for the court and the vast majority of it appears to involve minor offences. Given the volume and nature of this work and its associated costs, we examine whether moving the resolution of many of these offences into an AMPS regime would better promote the administration of justice and the efficacious use of judicial resources.
As noted earlier, the court typically receives 2.1 million Part I and Part III charges each year. Of them, roughly 90% (1.9 million) are Part I offences, and about 10% (or 170,000) are Part III offences. Consistently in each of 2007, 2008 and 2009, of the Part I proceedings, approximately 80% are charges under the Highway Traffic Act or its regulations.
While provincial data on the number of Part II parking infractions received by the court are not available, we know that these numbers are significant. In 2009 in Toronto alone, 2.8 million parking tickets were issued. Estimates from other large Ontario municipalities reveal that hundreds of thousands of parking infractions are brought annually.
What is important to our analysis is the significant amount of court time spent disposing of POA matters. Provincial data on courtroom operating hours for 2009 reveal that justices of the peace spent a total of 57,576 hours on POA matters in 2009. Of those hours,
58% (33,358 hours) were spent presiding over Parts I and II trials,
26% (15,088 hours) were spent on Part III trials
16% (9,129 hours) were spent on other POA matters (e.g., motions, fail to respond).
These figures demonstrate that the majority of justice of the peace time on POA matters relates to parking and Part I offences.
We were not able to obtain data on the cost of administering POA courts throughout Ontario but it is believed to be significant. The Ministry of the Attorney General does not have these data and each municipality calculates these costs differently. However, looking at Toronto data again, it is estimated that $50 million is spent each year administering POA courts. The Ministry of the Attorney General’s annual expenditure for justices of the peace is estimated at $45.4 million. Using the number of hours spent by justices of the peace presiding over Part I and II trials as a calculation tool, it is estimated that $9.2 million of justice of the peace expenditures relate to hearing these less serious offences. Additional POA administration costs borne by municipalities would include the cost of courtroom facilities, prosecutors, court staff and related administration (e.g., office equipment). Given these costs, we must ask whether a less expensive but equally fair forum for the adjudication of these offences should be made available, such as an AMPS process. Such a transition could also promote greater respect for the court system leaving appointed judicial officials to preside over more serious matters.
2. Introduction to Administrative Monetary Penalties
Administrative Monetary Penalty(ies) (AMP or AMPS) systems allow for monetary penalties to be imposed by a regulator for a contravention of an Act, regulation or by-law. The regulator issues an AMP upon discovering that an unlawful event occurred, and it is due and payable subject only to any rights of review that may be available under the AMP scheme. A fine may be distinguished from an administrative penalty in that a fine denotes a criminal or quasi-criminal monetary penalty payable only after an admission of guilt or finding of guilt by a court. An AMP, on the other hand, “does not contain a criminal element and is intended to merely reflect the violation of a law or rule that carries with it a monetary sanction.” It is a regulatory penalty imposed to promote compliance with a given regulatory scheme, and it “is not considered to be a criminal punishment, because it is primarily imposed in order to compensate the state for harm done to it, rather than as a means of punishing the wrongful activity.”
Where an AMP is authorized, there is often some form of review available. The type of review will depend upon the AMP scheme. Quite often the regulator’s decision to impose an AMP is subject only to administrative review by a designated person or body, although sometimes there is a right to appeal the penalty to a court. As with all decisions made by administrative bodies, decisions under AMP systems are subject to judicial review before the Superior Court of Justice.
Of particular interest is the AMP system found in the Municipal Act, 2001. Section 102.1 was added to the Municipal Act by the Municipal Statute Law Amendment Act, 2006 on January 1, 2007. This section gives municipalities the broad authority to require a person to pay an administrative penalty where the municipality is satisfied that the person failed to comply with a by-law respecting the parking, standing or stopping of vehicles. It is the municipality’s decision whether to create an AMP system for parking violations; should it choose to do so, the POA regime no longer applies.
The City of Toronto Act, 2006 applies to the City of Toronto rather than the Municipal Act, 2001. A virtually identical section to section 102.1 is found in the City of Toronto Act, 2006, allowing the City to require a person to pay an AMP for a breach of parking, standing or stopping by-laws. Thus it is open to the City of Toronto to choose to adopt an AMP system, and if it does, the POA regime no longer applies. The virtually identical sections in the Municipal Act, 2001 and the City of Toronto Act, 2006 ensure that AMP systems for enforcing parking, standing and stopping by-laws are available in municipalities throughout Ontario at the election of the municipality. In fact, we understand the original request for such legislative provisions arose from the City of Toronto, in recognition of “the significant potential advantages of a system of AMPS for parking violations.” For the purpose of this Report, we will reference only the Municipal Act, 2001 provisions and corresponding AMP regulation since they are virtually identical to the City of Toronto, 2006 section and corresponding AMP regulation.
At the time of writing, only the City of Vaughan and the City of Oshawa have put in place an AMP system for parking, although the City of Oshawa’s system came into effect very recently on March 1, 2011.
Some municipalities have created AMP systems to deal with contraventions of other types of municipal by-laws passed pursuant to the Municipal Act. It is important to note that the authority to adopt an AMP system (as well as the authority for the enforcement of a licensing system established by a municipality under clause 151(1)(g) of the Municipal Act) begins with a phrase, “[w]ithout limiting sections 9, 10 and 11”. Those sections confer broad powers on municipalities. Accordingly, it has been argued that the power to establish a municipal system of administrative penalties is not limited to parking and licensing but could potentially apply in respect of any by-law respecting services and things that a municipality is authorized to provide under the broad Municipal Act powers.
The use of AMP systems for other purposes appears to be steadily increasing in Ontario and elsewhere in Canada. Twenty-one statutes in Ontario establish various different administrative penalties. Other terms are sometimes used to describe AMPS. Section 182.1 of the Environmental Protection Act, for example, provides for “environmental penalties” and it is one of the better known AMPS regimes in Ontario. The Metrolinx Act, 2006 also permits by-laws establishing a system of “administrative fees” for regional transit systems (i.e., GO Transit) where a person contravenes by-laws regarding the payment of passenger fees or the stopping, standing or parking of vehicle on certain land. Regulations to the Act prescribe administrative and procedural requirements for any administrative fee by-law that are similar to the requirements under the Municipal Act regulation (e.g., notice to the person, review by screening officer, followed by review by hearing officer).
In the United States, the enforcement of parking tickets administratively is quite common. The chart at Appendix B suggests that administrative hearing systems are about as common as the use of courts for the enforcement of parking violations throughout the United States. Many of these systems have been in place for quite some time. New York City moved parking enforcement out of the court system to administrative tribunals in the 1970’s. Chicago’s Department of Administrative Hearings came into effect in 1997, but it was in 1990 that the city decriminalized parking matters and its Department of Revenue began holding administrative hearings for a variety of matters including parking. Now, Chicago’s Vehicle Hearings Department hears parking and vehicle equipment matters.
3. AMPS as an Alternative to the POA Regime
Given the volume of minor Part I and II offences heard by the Ontario Court of Justice, the cost of administering POA courts, and the increasing use of AMP systems in Canada and elsewhere, one must ask whether Ontario’s POA regime should rely more heavily on AMPS as an alternative to the court process. Another key consideration is whether respect for our judicial system is promoted when court resources are used to hear very minor offences. We first look at the following general areas before considering whether AMPS should be used to enforce certain matters currently prosecuted under the POA:
The policy arguments for and against AMPS generally;
The AMP system for parking infractions under the Municipal Act and its use in the City of Vaughan;
The application of the Charter to an AMPS system; and
Duty of fairness in an AMPS system.
We conclude with recommendations for reform.
Policy Arguments For and Against AMPS Generally
The focus of our recommendations is on the use of AMPS for parking and other minor offences, but we begin with a summary of the arguments for and against AMPS generally.
Several scholars and practitioners argue that AMPS are the more efficient alternative as compared to the court process. While the many AMP systems provide for significantly different levels of procedural protection, they are generally less protective and more informal than the court process. With POA prosecutions, formal rules of court must be followed, defence and prosecutors must prepare their case and witnesses and detailed disclosure may be required. These are not traits of most AMP systems. The standard of proof required in AMP systems is often lower than in a typical regulatory prosecution, which can eliminate many of the issues typically dealt with at trial. For example, section 182.1 of the Environmental Protection Act states that the requirement to pay an environmental penalty is not subject to the defences of reasonable care and reasonable belief in a mistaken set of facts. Therefore, administrative penalties are generally seen as a quicker and less expensive option than court proceedings.
It has also been argued that an enforcement system that employs AMPS is more effective than a system that relies exclusively on regulatory or criminal prosecutions. The cost, complexity and time demands associated with these prosecutions can deter regulators from enforcing a violation, leading to what Richard Macrory calls a “compliance deficit” – the failure to undertake enforcement action for known non-compliances because of a lack of resources to enforce effectively. Macrory acknowledges that it is hard to assess the general level of compliance with regulatory standards because tangible evidence is lacking. However, 60% of the respondents in his study believed that the then current system in the UK for enforcing regulatory violations was inadequate and 66% supported the greater use of AMPS.
One study by Professor R.M. Brown looked at investigations done by regulators in British Columbia and the United States who use AMPS to enforce occupational health and safety standards. Brown then compared them with investigations done by Ontario’s Ministry of Labour to enforce its Occupational Health and Safety Act through POA prosecutions. The study concluded that there is a greater probability of penalties for violations of standards when AMPS are used as compared to prosecutions. To explain why enforcement through an AMPS scheme is more effective, the study cites the cost of adjudication in court, the work involved in preparing for a prosecution, the difficulty in securing a conviction and the delay involved in judicial determinations. Brown goes on to argue that certainty of punishment has a stronger impact on compliance than the severity of the punishment. For this reason, one might argue that if AMPS are not the exclusive enforcement tool, they should at least be available within the regulator’s toolbox. If available, compliance rates can be expected to be better than in systems that rely solely on prosecutions.
Also, AMP systems often have decision-makers who possess expertise that the court typically does not have and, therefore, administrative decision makers may be better equipped to ensure that regulatory goals are met. A common example is environmental protection matters where members of specialist environmental tribunals possess or develop the technical and scientific expertise needed to realize regulatory goals.
The Law Reform Commission of Saskatchewan (SLRC), however, has identified concerns with features of some AMP models. It expressed unease around regulators investigating breaches and then adjudicating upon any review of the AMP arising from breaches discovered. The duty of fairness requires that the decision maker be unbiased and independent. It also requires that a person have an opportunity to present his or her case and respond to the evidence and arguments that others advance. The SLRC notes that in many administrative contexts the investigative versus adjudicative functions of the decision maker are separated or there is an appeal to an independent adjudicator. However, many of Saskatchewan’s AMP systems have no statutory right of appeal to a court or review by any other independent decision maker. As will be considered in the discussion of AMPS for parking infractions, procedural protections set out in the Municipal Act regulations and municipal by-laws respond to these duty of fairness concerns.
A further apprehension with AMPS is that other enforcement tools may no longer be used. Prosecutions remain a valuable tool in the regulatory pyramid, yet regulators may rely excessively on AMPS and not bother with more cumbersome, costly and complex prosecutions. There is some support for this concern. Brown’s study found that the two regulators studied who have the ability to use AMPS and prosecute relied almost exclusively on AMPS. Brown studied the Occupational Health Safety and Health Administration (OSHA) in the US and found that even for willful violations causing death, the OSHA used AMPS more than criminal prosecutions and their associated sanctions.
Regulatory directives or guidelines could be introduced to respond to this fear. The offence-creating statute or other authority can specify that AMPS are not available for certain categories of serious offences, or enforcement policies can set out when AMPS are appropriate and when prosecution should be pursued. The attractiveness of AMPS also raises concerns that regulators will ignore tools at the lower end of the pyramid, such as warning letters, and go straight to AMPS. While AMPS can be a useful addition to the regulator’s toolbox, they are one tool only and there ought to be guidance on when it is appropriate to use AMPS over other available enforcement tools.
Another contributor to the project asked whether the real reason for AMPS is to get around the ruling in the R. v. Sault Ste. Marie (City) decision that regulatory offences are most appropriately treated as strict liability offences rather than offences of absolute liability. With absolute liability offences, the defence of due diligence is not available and all that is required is proof that the offence occurred. By imposing an AMP upon discovering a breach of a regulatory standard, the matter would be treated very much like an absolute liability offence if there were no possibility of raising a due diligence defence at a subsequent hearing. Indeed, subsection 182.1(6) of the Environmental Protection Act states that the requirement to pay an environmental penalty is not subject to the defences of reasonable care and reasonable belief in a mistaken set of facts. If Sault Ste. Marie represented a solution that is fairer than absolute liability, the contributor asked whether it is good public policy to allow authorities to circumvent this decision merely by calling the offence by a different name, lowering the amount of the penalty, putting the case before a tribunal instead of a court, and perhaps calling the penalty “compensatory” or using other language that suggests the penalty is not really a penalty.
Arguably, this might be a very real concern for offences that carry significant penalties, but less of a concern for very minor offences now dealt with through an AMP system. In fact, one could argue that the creation of AMPS for minor absolute liability offences is a logical and appropriate extension of the reasoning in Sault Ste. Marie which resulted in a different approach to different types of public welfare offences – those that are least like true crimes and which carry modest penalties (i.e., absolute liability offences) are not to be treated like true crimes with full rights of defence. Moreover, since Sault Ste. Marie, the courts have considered AMPS involving very significant penalties. These cases suggest that the court takes little issue with legislative enactments that move some traditional offences into an AMPS regime provided certain safeguards are in place. We discuss the court’s treatment of other AMP regimes below under “Constitutional Considerations for AMPS”.
Finally, responsive and proportionate regulation provides a compelling argument for making a diverse and flexible toolkit available to regulators. A criminal or regulatory prosecution is not always the appropriate response for every violation of a regulatory statute. It would be unfair to prosecute someone criminally for a minor violation when there may be significant stigma attached to a criminal conviction, as well as other serious repercussions that follow such a conviction (e.g., impact on professional licensing or ability to serve as a company director). In these circumstances, an AMP may be a more effective and appropriate enforcement tool.
Our review of AMPS in Canada and abroad and the literature documenting their effectiveness and advantages as one enforcement tool creates a compelling case for a gradual shift towards greater use of AMPS throughout Ontario’s offence-creating statutes. It is far beyond the scope of this Report to assess and catalogue all offences that ought to be enforced through AMPS. Depending upon the nature of the offence and the purpose of the offence-creating statute, AMPS may be the exclusive enforcement tool for certain contraventions, or simply one mechanism available within the regulator’s toolbox when less severe tools (such as warning letters) or more severe tools (such as prosecutions and licence suspensions) are neither effective nor appropriate.
As a starting point for reform, there is a strong prima facie case to move all Part II parking infractions out of court and into an AMPS regime. We discuss moving parking infractions into an AMPS regime next, followed by an assessment of whether other minor traffic offences, including ones under the Highway Traffic Act, should also be subject to an AMPS process.
The Case for AMPS for Parking Infractions in all Ontario Municipalities
Overview of AMPS under the Municipal Act
Section 102.1 of the Municipal Act creates authority for municipalities to impose an administrative penalty where the municipality is satisfied that a person failed to comply with a by-law respecting the parking, standing or stopping of vehicles. If a municipality chooses to set up an AMP system for parking infractions, the POA no longer applies.
Section 3 of O. Reg. 333/07 under the Municipal Act (AMP Regulation) requires a municipality to pass a by-law establishing a system of AMPS if it is to exercise its authority to use AMPS for illegal parking, standing or stopping of vehicles. The by-law must meet the requirements of the AMP Regulation.
The first requirement is a monetary limit. Section 6 of the Regulation fixes a limit of $100 in any by-law establishing an AMP. It states:
6. The amount of an administrative penalty established by a municipality,
(a) shall not be punitive in nature;
(b) shall not exceed the amount reasonably required to promote compliance with a designated by-law; and
(c) shall not exceed $100.
Section 7 creates rules for the administration of an AMP system, which appear intended to prevent political interference in its administration so that decisions made by hearing officers are independent. It reads:
7. A municipality shall develop standards relating to the administration of the system of administrative penalties which shall include,
(a) policies and procedures to prevent political interference in the administration of the system;
(b) guidelines to define what constitutes a conflict of interest in relation to the administration of the system, to prevent such conflicts of interest and to redress such conflicts should they occur;
(c) policies and procedures regarding financial management and reporting; and
(d) procedures for the filing and processing of complaints made by the public with respect to the administration of the system.
Section 8 sets out the procedural requirements of any AMP by-law, addressing procedural fairness matters. It states that a person is entitled to notice of the penalty and to have the penalty reviewed by a screening officer appointed by the municipality. The screening officer may affirm, cancel or vary the penalty. The person may then request a review of the screening officer’s decision before a hearing officer who is also appointed by the municipality. After providing the person with an opportunity to be heard, the hearing officer may similarly affirm, cancel or vary the penalty. Procedures for extensions of time to pay a penalty must be included in any municipal by-law. The Statutory Powers and Procedure Act applies to a hearing officer’s review.
Sections 9 and 10 describe enforcement mechanisms that are similar to those for non-payment of fines ordered by a POA Court. In the event of default of payment of a penalty, a certificate of default may be filed in the appropriate civil court for enforcement purposes. In addition, notice may be given to the Registrar of Motor Vehicles; the Registrar shall not validate or issue a vehicle permit until the penalty is paid. Imprisonment is not a permitted enforcement mechanism for non-payment of an AMP and as noted above, the AMP regulation states that any penalty shall not be punitive in nature.
Experience of the City of Vaughan
At the time of writing, the City of Vaughan and the City of Oshawa are the only municipalities that have passed a by-law creating an AMP system for parking violations, although the system in Oshawa was implemented very recently (March 1, 2011). We, therefore, focus our attention on Vaughan’s experience with its AMP system which came into effect on August 10, 2009. Instead of going to the Ontario Court of Justice, any review of the roughly 40,000 parking tickets issued annually by the City of Vaughan goes to a screening officer and where a subsequent review is requested, to a hearing officer.
The administrative penalty looks much like a ticket and subsection 10.1(4) of the City’s by-law states that it shall contain the particulars of the contravention, the amount of the penalty, information on how to request a review, and a statement that the penalty will constitute a debt to the City unless cancelled or reduced pursuant to the review process. If the person receiving the administrative penalty wants a review by a screening officer, he or she must call the City and an appointment is set up. Most screening officer appointments are scheduled for a date within two weeks of the call. The person then attends at a City of Vaughan office and provides whatever evidence or submissions they wish and the screening officer makes a decision at that time. The screening officer may affirm, cancel or reduce the penalty, or extend the time for payment on grounds set out in the by-law. If the person wishes to have the matter further reviewed by a hearing officer, he or she makes an appointment at that time and is given a time and date for the hearing with the hearing officer. The second proceeding is usually held within five weeks of the date of the screening appointment.
Hearings are held every Tuesday and there are roughly 20 held each day. At the hearing, the person challenging the AMP is in attendance, as well as the hearing officer, a clerk who puts the file together and manages it during the hearing, and the municipal law enforcement officer who wrote the ticket. There is no prosecutor. The City has contracted with two hearing officers, both legally trained and one a retired judge. The person is sworn in, submits any evidence and makes any submissions that they wish. The hearing officer provides a written decision on a pre-printed form, usually with a few lines giving reasons for the decision.
Like the screening officer, the hearing officer may affirm, cancel or reduce the administrative penalty, or extend the time for payment on grounds set out in the by-law. The grounds are limited to the individual who receives the penalty establishing on a balance of probabilities that the vehicle was not parked, standing or stopped as described in the penalty notice. This is extremely hard to prove since Vaughan municipal law enforcement officers photograph the car at the time they hand out the penalty and the photograph is always provided to the decision makers. The second ground is undue hardship. As one writer notes, these narrow grounds effectively remove the defence of due diligence and create an absolute liability offence.
From the perspective of the three employees of the City of Vaughan and the hearing officer to whom the LCO spoke, the AMP parking system has been a great success with the following benefits achieved:
Matters are heard much more quickly. The time to have a matter heard by both a screening officer and hearing officer is typically under two months. This compares with a roughly 10 month wait for parking tickets when they were heard in court.
Less time wasted by the public. A fixed time for a hearing is now provided. The public does not have to book extensive time off from work to wait around the courthouse until their matter is reached on the docket.
Savings in costs. Hearings are scheduled during the municipal law enforcement officers’ regular work shift so that it is not necessary to pay them overtime. When parking matters were heard in court, the City would often have to pay the officer overtime since court scheduling was not tailored to the officer’s regular working hours. In addition to the wage savings of the municipal law enforcement officer, no prosecutor attends the hearing.
Overall reduction in hearings. The percentage of matters going to a hearing officer is roughly 1.5% of tickets issued, which is lower than the roughly 3.5% of tickets that were challenged in court. One might assume that fewer hearings are requested now because people no longer benefit from the delay with the court system, or the potential for dismissal of the ticket because of delay or the absence of the ticketing officer.
Savings of time for POA Court and prosecutor. Parking offences were taking up valuable court time. Time has now been freed up for the regional prosecutor to bring more serious matters to court more quickly.
Public satisfaction. Vaughan employees and the hearing officer believed that those who sought review seemed satisfied with the process. They noted that while the AMP system does not involve the same procedure as POA prosecutions, people are still afforded a fair hearing in front of a legally trained, neutral decision maker on matters involving less than $100 (with most between $25 and $35).
Cost of Hearing Officers is not significant. From a cost perspective, we were told that the additional cost incurred by the City of Vaughan for both hearing officers is not significant. As there is only one day of hearings per week, the annual cost of both hearing officers is approximately $13,000. This additional cost is recovered through revenue from the administrative penalties. Moreover, revenue that was lost from parking tickets that were dismissed or disposed of without a fine payable under the court system no longer occurs. Parking penalty revenue is expected to be the same or greater than under the POA regime.
AMPS for Parking Infractions in all Ontario Municipalities
The very positive experience of Vaughan, albeit for only one year, creates a strong case for the use of AMPS for parking infractions in all Ontario municipalities. Some municipalities are in the process of implementing an AMPS system for parking, but legal and operational concerns create reluctance for other cities to adopt an AMPS model at this time.
The first argument against an AMPS parking regime is that it results in no practical difference to the POA system that is currently in place. Under both systems, a parking ticket recipient can pay the penalty (or set fine), or request a review hearing (or trial). Provincial data are not available on the number of people who voluntarily pay fines versus asking for a trial, but if Toronto data are representative of trial requests in other cities, it would appear that only 10% or less of ticket recipients request a trial. Therefore, the only real change, which is the nature of the hearing, would impact only a small proportion of cases. Also, some municipalities have given staff guidelines to cancel a parking ticket under limited specified grounds (e.g., irregularities on the ticket; presenting a parking permit demonstrating that the parking was legal). This is the same function that a screening officer would perform in the AMPS model. Furthermore, some municipalities said that they do not experience long delays in having parking matters heard in POA courts. For these reasons, an AMPS system would offer little practical benefit except that the hearing officer would be a less expensive adjudicator than a justice of the peace.
We do not find this argument convincing. What is important is the actual number of cases that do end up in court, the cost of running courts for this purpose, and the perception it leaves on the public when a judicial officer determines such matters and is thereby unavailable to hear more serious matters that are pending on the court’s dockets. While only 10% or less of all parking tickets may end up on trial lists, in raw numbers, this can represent a significant number of cases that draw upon limited resources. In Toronto in 2009, 129,932 parking trials were heard by justices of the peace, taking up costly court, judicial and prosecutorial resources. Costs include court staff, a prosecutor, overtime costs for enforcement officers to attend, courtroom security and the annual salary of a justice of the peace. Cost savings could be achieved under an AMPS model where hearing officers are paid less than justices of the peace, where prosecutors are not required to attend hearings, and where hearings are scheduled so that enforcement staff can attend without being paid overtime.
Even if a compelling cost argument cannot be established, there is something strikingly disproportionate with having trials of parking infractions heard by an appointed judicial officer in a courtroom. Non-judicial adjudicators in Ontario determine matters of fundamental importance to us, such as violations of our human rights, our rights as tenants to housing, 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 of the peace to adjudicate upon a disputed $30 parking ticket. There are more serious matters with greater public safety implications (e.g. criminal bail, environmental and occupational health and safety offences) that should take precedence over parking violations. In our view, 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.
A second argument against an AMPS regime is that AMPS cannot apply to parking tickets issued pursuant to a by-law establishing a system for disabled parking. The result is that certain parking infractions must always be prosecuted in POA courts and that it does not make sense to have an AMPS and POA system for parking infractions – instead, a single system should be adopted. We agree that a single system for all parking infractions is preferred, and therefore recommend the inclusion of these infractions within an AMPS scheme. Again, if Toronto’s experience is representative of the province, only 0.32% of all parking tickets issued in 2009 relate to disabled parking. More importantly, we do not understand the policy rationale for excluding disabled parking tickets from an AMPS regime. If an AMPS system offers a fair, quick, and more accessible forum for resolving disputed parking tickets, we see no reason why it should not be made equally accessible to those who seek a review of a disabled parking penalty. This is particularly true if the ticketed person lives with a disability and properly displayed a valid disabled parking permit, but the ticketing officer failed to see it.
Fines for parking in a disabled parking spot may exceed the $100 limit for AMPS, and part of the rationale for excluding them may be that the fine is seen as “punitive in nature”. Constitutional arguments may be made that the court must hear those offences or that Charter protections apply. As discussed in our constitutional analysis below, AMPS of up to $1 million have been upheld as not contravening the Charter. Accordingly, we believe the limit should be increased or exceptions should be drafted so that all tickets relating to by-laws for the parking, standing or stopping of vehicles are dealt with within an AMPS regime.
A third reason against an AMPS by-law like the one in Vaughan is that unique and different considerations may apply to other municipalities given their nature and size. In Toronto, for example, we were told that a significant volume of its 2.4 million parking tickets are issued to courier trucks and other commercial vehicles that need to make regular stops on Toronto streets. Toronto City Council is currently seeking a report on this issue so that it can properly respond to the competing pressures of facilitating traffic flow and permitting deliveries on some of its busiest streets. This is likely an issue for other urban centres in Ontario, as well. While it is a real issue, we do not see how it affects a decision to adopt an AMPS system. One might expect this issue to be resolved through amendments to the parking, stopping and standing by-laws, but not to a by-law establishing how the former by-laws are to be enforced.
Another unique consideration applicable to larger urban centres is the volume of parking tickets issued, and the resulting cost of administering an AMPS regime. The costs in the City of Toronto would be much larger than the costs in the City of Vaughan. There are also administration costs with setting up and maintaining an AMPS system. However, municipalities are currently responsible for the costs of administering POA courts under municipal transfer agreements, and it would seem that those costs would not necessarily increase and in fact, could well decrease under an AMPS regime.
On the other hand, smaller municipalities said they do not have the volume of parking violations to warrant a separate system. Section 20 of the Municipal Act, however, permits a municipality to enter into an agreement with one or more municipalities “to jointly provide, for their joint benefit, any matter which all of them have the power to provide within their own boundaries.” Indeed, municipal partnerships have already been made to administer POA courts under Part X of the POA, and these Municipal Partners could similarly share in the cost of an AMPS regime. Thus it is possible for several smaller municipalities to jointly create an AMPS system for their shared use. The benefits that Vaughan achieved ought to be seriously considered by all municipalities. There may well be other unique considerations, and we recommend that each municipality carefully assess and seek to resolve them with a view to adopting an AMPS regime for all parking infractions.
Time should be permitted for the transition to AMPS. While any date is arbitrary, we believe the transition should occur within three years; however, we recognize that the exact date will have to be decided upon after extensive consultations with the municipalities and after sufficient time is provided to develop information technology systems to report defaulted AMPs to the Ministry of Transportation. During our consultations on this issue, we were advised of very real implementation issues, most notably the time needed to establish an IT infrastructure to allow municipalities to report defaulted AMPs to the Registrar of Motor Vehicles. The authority in the Registrar to not validate or issue a vehicle permit until the penalty is paid is an important and effective enforcement tool. We were told by the City of Oshawa, from its experience, that considerable work is involved to set up an appropriate IT infrastructure that would allow direct reporting of the non-payment of an AMP to the Ministry of Transportation (MTO). Traditionally, the Ministry of the Attorney General (MAG) maintains the IT infrastructure that would allow direct reporting to the Registrar of Motor Vehicles. The MTO does not yet have the IT structure in place to allow municipalities to directly report non-payment of AMPS. Municipalities must work through MAG, who in turn, deals with the MTO.
Without question, this is a real implementation issue, but we are hopeful that three years is a reasonable and sufficient time to develop and have in place a direct reporting IT infrastructure between municipalities and MTO, especially given the work and consideration of this issue that has been done to date. A three year transition period will allow municipalities to put in place their systems carefully and to have the advantage of observing the Vaughan experience (and other municipalities such as the City of Oshawa which recently implemented an AMPS system). Minor operational challenges need not be used to unduly prolong the implementation of an AMPS system; instead solutions to those difficulties can be sought out and implemented so that court and judicial resources can be redirected to more serious matters.
A final concern raised by some municipalities is the constitutionality of using AMPS for parking infractions. If parking infractions are offences to which Charter protections apply, then an AMPS regime that imposes a penalty without a trial or finding of guilt may offend the Charter. We discuss this issue next and conclude that there are strong arguments supporting the constitutionality of an AMPS model like that used in Vaughan.
Constitutional Considerations for AMPS
Charter Principles Applicable to All AMP Systems
A critical question is whether the Charter applies to AMPS. The purpose of the offence-creating statute, the nature and purpose of the sanction, and the nature of the proceeding will inform whether the proceeding is one to which the Charter applies. If Charter rights do apply, then an AMP system may be found to be unconstitutional or it may require the addition of further procedural safeguards that could render the benefits of an AMP system negligible. The Charter rights which are most relevant are sections 7 and 11.
Section 7 of the Charter states:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
In R. v. Pontes, the Supreme Court held that absolute liability offences that could potentially result in imprisonment infringe section 7 of the Charter. Therefore, any AMP system that has imprisonment as a potential penalty is most likely to offend section 7. The majority of the court, however, left open for another day the issue of the constitutionality of an absolute liability offence punishable by fine with the possibility of imprisonment should payment of the fine go into default and where the legislation has a means test for the imposition and collection of fines.
If the penalty is only a fine, case law suggests that this alone will not engage section 7 rights. In R. v. Transport Robert (1973) Ltée, the Ontario Court of Appeal considered the constitutionality of section 84.1 of the Highway Traffic Act. As discussed previously, this case involved a defendant who was charged with operating a commercial motor vehicle on a highway when a wheel became detached. It was an absolute liability offence since subsection 84.1(5) provides that due diligence is not a defence to this charge. It carries a maximum penalty of a $50,000 fine; however, the offence did not entail the penalty of imprisonment. The defendants argued that the combination of the risk of a significant fine being imposed and the stigma attached to a conviction offended the section 7 Charter right to security of the person.
The court considered the Supreme Court of Canada’s decision in R. v. Blencoe which canvassed the scope of the section 7 right to security of the person:
…In Blencoe v. British Columbia (Human Rights Commission)…, Bastarache J. speaking for the majority held that, “[N]ot all state interference with an individual’s psychological integrity will engage s. 7. Where the psychological integrity of a person is at issue, security of the person is restricted to ‘serious state-imposed psychological stress’”. Thus, “[n]ot all forms of psychological prejudice caused by government will lead to automatic s. 7 violations.” Further, there is no “generalized right to dignity, or more specifically, a right to be free from stigma” … and, “[d]ignity and reputation are not self-standing rights. Neither is freedom from stigma”.  [citations omitted]
The court went on to hold that despite the high fine, section 84.1 of the Highway Traffic Act did not engage the security of the person guarantees in the Charter:
However, we are not convinced that a prosecution for the s. 84.1 offence engages the kind of exceptional state-induced psychological stress, even for an individual, that would trigger the security of the person guarantee in s. 7. The offence does not create a true crime, and like most regulatory offences, it focuses on the harmful consequences of otherwise lawful conduct rather than any moral turpitude. . . . The s. 84.1 offence focuses on the unintended but harmful consequences of the commercial trucking industry. We reject the proposition that a defendant charged with this offence is stigmatized as a person operating in a wanton manner, heedless of the extreme dangers to life and limb posed by his or her operation. Conviction for the offence at most implies negligence and like the misleading advertising offence considered in Wholesale Travel, any stigma is very considerably diminished.
The diminished stigma attached to the s. 84.1 offence is not sufficient to trigger the security interest in s. 7 even when coupled with the possibility of a significant fine. This is simply not the kind of serious state-imposed psychological stress that is intended to be covered by security of the person. It is qualitatively different than the kinds of stresses that have been recognized in the cases.
In a recent decision of the Alberta Court of Appeal, Lavallee v. Alberta (Securities Commission), the court considered an AMP system under the Securities Act that could result in penalties of up to $1 million per contravention. The appellants argued that clauses 29(e) and (f) of the Securities Act were contrary to sections 7 and 11 of the Charter because their effect was to require the Securities Commission to admit all evidence marginally relevant to the matter, regardless of that evidence’s probative value, prejudicial effect or reliability. The court disagreed with the above interpretation of clauses 29(e) and (f), but stated that if it had reached a different interpretation of the two clauses, sections 7 and 11 of the Charter are not applicable to administrative proceedings and did not protect economic rights. In dealing with section 7, the court found that consequences of the large penalties were not sufficient to trigger s. 7:
As Bastarche J. stated at para. 83 of Blencoe, the s. 7 security of the person interest is triggered only in exceptional cases where the state interferes in profoundly intimate and personal choices; such choices “would not easily include the type of stress, anxiety and stigma that result from administrative or civil proceedings”.
I agree with the chambers judge that the effect of the potential consequences faced by the appellants does not compare to the kind of stigma attached to an overlong and vexatious criminal trial or proceedings initiated to remove a child from parental care. The appellants’ s. 7 rights are not engaged here.
It is noteworthy that the application for leave to appeal this decision to the Supreme Court of Canada was dismissed.
In summary, it would appear that AMP regimes that provide for purely monetary penalties and for which there is no possibility of incarceration are unlikely to engage section 7 of the Charter. The more interesting question is whether section 11 of the Charter would apply to AMPS imposed for breaches of regulated activity.
The parts of section 11 relevant to this analysis are:
11. Any person charged with an offence has the right …
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;…
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;…
The Supreme Court of Canada’s decision in R. v. Wigglesworth is the starting point to the analysis of section 11. Justice Wilson restricts the application of section 11 to criminal or penal matters and then formulates a test to determine if a particular proceeding is a criminal or penal proceeding. As Archibald, Jull and Roach note, the Wigglesworth case seems to create “two separate levels of analysis to make that determination: (1) the “by nature” test, and (2) the “true penal consequence” test.”
With regards to the “by nature” test, Justice Wilson states:
There are many examples of offences which are criminal in nature but which carry minor consequences following conviction. Proceedings in respect of these offences would nevertheless be subject to the protections of s. 11 of the Charter. It cannot be seriously contended that just because a minor traffic offence leads to a very slight consequence, perhaps only a small fine, that offence does not fall within s. 11. It is a criminal or quasi-criminal proceeding. It is the sort of offence which by its very nature must fall within s. 11.
The court then sets out the “by nature” test and describes matters that fall within section 11:
In my view, if a particular matter is of a public nature, intended to promote public order and welfare within a public sphere of activity, then that matter is the kind of matter which falls within s. 11.
Proceedings to which section 11 would not apply, because of their nature, are then described:
This is to be distinguished from private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited private sphere. . . . Proceedings of an administrative nature instituted for the protection of the public in accordance with the policy of a statute are also not the sort of “offence” proceeding to which s. 11 is applicable.
Justice Wilson went on to state that even where a proceeding passed the “by nature test” it would still be subject to section 11 if it provided for a true penal consequence. A true penal consequence that would attract the application of section 11 was imprisonment or a fine, the magnitude of which “would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity.”Many AMP systems could be classified as being of an administrative nature instituted for the protection of the public in accordance with the policy of a statute. The “by nature” analysis was elaborated upon by the Supreme Court of Canada in the decision of Martineau v. M.N.R. In this case, a customs officer ordered Mr. Martineau to pay $315,458 under section 124 of the Customs Act. This process is widely known as “ascertained forfeiture”. The amount of the demand was the deemed value of the goods that he had allegedly tried to export by making false statements. Mr. Martineau requested that the Minister of National Revenue review the custom officer’s decision, but the Minister upheld the order for payment. Mr. Martineau then appealed the Minister’s decision by way of an action, which led to the Minister filing a motion to examine Mr. Martineau for discovery.
Mr. Martineau argued that discovery would violate his right against self-incrimination guaranteed under section 11(c) of the Charter and this was the issue before the Supreme Court. To answer this question, the court had to determine whether Mr. Martineau had been charged with an offence. After examining its decision in Wigglesworth, the Court stated that a distinction must be drawn between penal proceedings on the one hand and administrative proceedings on the other, with only the former attracting the application of section 11. The court set out three criteria to determine if a proceeding is penal or administrative in nature.
The first criterion is the objective of the Act and the section in question. The Customs Act’s objectives are to “regulate, oversee and control cross-border movements of people and goods.” To do this, reporting requirements under the Act must be enforceable, which is the purpose of section 124 of the Customs Act under which the customs officer made his order. The court is clear that the focus of this inquiry is on the nature of the proceedings, not the nature of the act that gives rise to the proceeding. Therefore, it was irrelevant to the court’s determination that the violation of the Customs Act could have been enforced by prosecution rather than demand by written notice, as was the case in Martineau.
The second criterion is the purpose of sanction. The court held that the purpose of ascertained forfeiture is not to punish the defendant to create a deterrence effect. Instead, the purpose is to ensure compliance with the Customs Act by giving customs officers a timely and effective method of enforcement. It is not designed to punish the offender, though the court concedes that it may have that effect in some cases. It is true that ascertained forfeiture can deter; however, actions in civil liability and disciplinary hearings that also aim to deter are not thereby criminal proceedings. Finally, the court said there was nothing to indicate that the ascertained forfeiture was to redress a wrong to society. It notes that section 124 does not take into account principles of sentencing or criminal liability in reaching this conclusion.
The final criterion examines the ascertained forfeiture process. Section 124 requires a customs officer to have reasonable and probable grounds that there has been a violation of a Customs Act provision. If this is the case and it has been established that it would be difficult to seize the actual goods, the amount of money equal to the value of the goods may be demanded. The person who receives the notice of demand can ask the Minister of National Revenue to review the decision. The Minister then serves a notice of reasons in support of the sanctions and the person has 30 days to make submissions and submit evidence in writing to the Minister. The Minister then makes a decision on the review request. This decision is not subject to review except that the person may appeal it by way of action to the Federal Court.
The court found that this process is not at all like a penal process. No one is charged, no one is arrested, no one is summoned to appear before a court of criminal jurisdiction and no criminal record follows from the proceedings. The worst thing that can happen is that a person may be subject to a civil action if the person exhausts all avenues of appeal and still refuses to pay.
The Supreme Court concluded that the notice of ascertained forfeiture was administrative in nature, but recalling its judgment in Wigglesworth, it said that in cases where the “by nature” test conflicts with the “true penal consequences” test, the latter trumps the former. Therefore, the court considered whether the notice of ascertained forfeiture was a true penal consequence. It noted that there is no chance of imprisonment and then considered whether the money demanded under section 124 “constitutes a fine that, by its magnitude, is imposed for the purpose of redressing a wrong done to society at large, as opposed to the purpose of maintaining the effectiveness of customs requirements.”
The court said that while the amount of $315,458 is greater than the maximum fine that could be imposed on a person upon summary conviction for the same act, if it had proceeded by way of indictment the fine could have been as large as $500,000. Further, a fine on summary conviction or indictment must take into account the factors and principles governing sentencing and is clearly penal in nature. Ascertained forfeiture, on the other hand, is civil in nature, purely economic and arrived at by a simple mathematical formula. The court also stated that the demand does not stigmatize anyone. There is no criminal record, the purpose is not to punish and principles and factors of sentencing do not apply. The court concludes that a notice of forfeiture does not lead to true penal consequences for Mr. Martineau.
We return to the Lavallee case of the Alberta Court of Appeal because it is noteworthy given the amount of the penalty in that case. The court applied the Wigglesworth decision to determine if section 11 of the Charter applied to the AMPS system created by the Securities Act. It found that administrative hearings before the Securities Commission generally fall into the category of “administrative proceedings instituted for the protection of the public in accordance with the policy of a statute.” It then went on to consider whether, despite the nature of the proceeding, the Security Commission proceedings resulted in true penal consequences. The appellants argued that a fine of up to $1,000,000 per contravention is a true penal consequence. The Court of Appeal rejected this argument and stated that the purpose of the sanction and the Securities Act must be considered along with the magnitude of the penalty. The purposes of the Securities Act include the “protection of investors and the public, the efficiency of the capital markets, and ensuring public confidence in the system.” In this light, the magnitude reflects the legislature’s intent that the penalties are not considered just another cost of doing business and that no true penal consequences arise. Finally, the Court of Appeal held that general deterrence is a relevant factor when the Commission imposes a sanction that is intended to be “protective and preventative.”
Applying the Charter to the AMP System for Parking Infractions
In our view, an AMP system for parking infractions similar to the model adopted by the City of Vaughan and authorized under the Municipal Act and its regulations would not attract the protections of sections 7 and 11 of the Charter. We offer the following analysis in support of our recommendation that all municipalities implement an AMPS system for parking infractions and that their prosecution be taken out of the POA.
First, for section 7 rights to be engaged there must be a life, liberty or security of the person interest at stake. None appears to be at stake given the nature of the penalty authorized under the Municipal Act regulations. First, imprisonment is not a permitted penalty. Second, the monetary penalty cannot be punitive in nature, shall not exceed the amount reasonably necessary to promote compliance, and in no case can it exceed $100. One need only compare the fine of $50,000 in Transport Robert, or the $1,000,000 penalty in Lavallee, and the court’s finding in each case that these amounts do not attract the level of stigma necessary to engage section 7 rights, to find further support for our view that a $100 penalty for a parking infraction is unlikely to engage section 7 rights. Over time, one might expect modest and incremental increases to the $100 maximum. The decisions in Transport Robert and Lavallee coupled with the objective of promoting compliance with parking by-laws would suggest that reasonable increases to the $100 maximum would also survive a section 7 challenge.
The Supreme Court in R. v. Pontes left open whether the possibility of imprisonment for unpaid fines could give rise to a section 7 right, and therefore, we consider whether incarceration is a possibility should a person refuse to pay an AMP. In R. v. Bowman, the Ontario Court of Justice held that the possibility of being imprisoned for an unpaid parking ticket under the current POA regime was too remote to trigger section 7 rights. The court noted that imprisonment is not a direct penalty arising from a parking infraction conviction; it is only possible after a further hearing before a judicial officer and even once that occurs, it remains a remote possibility since there must be a showing that the person is able to pay the fine but refuses to do so and that imprisonment is not contrary to the public interest. As noted previously, imprisonment for unpaid fines is not truly available in Ontario today since subsection 165(3) of the POA precludes this enforcement option once municipalities have entered into transfer agreements with the Province. Agreements are now in place throughout Ontario, and therefore, imprisonment is unavailable as an enforcement tool to municipalities for unpaid fines. In fact, no one was imprisoned for non-payment of a fine in recent years, based on data from the Ministry of the Attorney General for 2007 and 2008.
Similarly, if imprisonment can occur under the AMPS parking regime, it would appear to be a very remote possibility that is not directly related to the penalty. Section 9 of the regulation allows municipalities to file a certificate of default with the Small Claims Court or Superior Court of Justice where a fine is not paid, and the certificate is deemed to be an order of the court and can be enforced as such. Arguably, if someone were to refuse to abide by enforcement proceedings in these courts (e.g., fail to attend a judgment-debtor examination or answer a relevant question), he or she could be incarcerated for contempt of court after a further contempt hearing before a judge. But such incarceration would arise from a failure to abide by orders of those courts and not because of a failure to pay the penalty. Indeed, this would be true in any civil enforcement proceeding.
The case of London (City) v. Polewsky is also instructive. In that case, the Ontario Court of Appeal considered whether the potential risk of imprisonment arising from default proceedings under section 69 of the POA could give rise to section 7 Charter rights in the original POA proceeding. After noting that section 69 provides for separate default proceedings from the original trial of the provincial offence and that it also requires an assessment of the person’s ability to pay the fine, it held that the risk of imprisonment in default was sufficiently remote so as not to engage a liberty interest under section 7. Similarly, under the AMPS regime authorized by the Municipal Act regulation, the enforcement of a certificate of default would be made in a different proceeding in a civil court. Moreover, section 8 of the regulation requires municipalities to establish procedures to permit persons to be excused from paying all or part of an AMP where requiring payment would cause undue hardship. This also reduces the prospect of a penalty being enforced against a person who is unable to pay it. For these reasons, we believe that the possibility of imprisonment under the AMPS regime is sufficiently remote as not to engage a liberty interest under section 7 as it would only arise from a separate proceeding for contempt of court.
We now consider whether section 11 rights would be engaged. Section 11 applies only to penal proceedings, not administrative proceedings. To determine whether the AMP regime for parking infractions is a criminal (penal) or administrative proceeding, we turn to the three criteria set out in Martineau.
The first is the objective of the statute and regulation. Subsection 3(2) of the AMPS Regulation describes the purpose of a system of administrative penalties:
The purpose of the system of administrative penalties established by the municipality shall be to assist the municipality in regulating the flow of traffic and use of land, including highways, by promoting compliance with its by-laws respecting parking, standing or stopping of motor vehicles.
This purpose of this system is regulatory rather than criminal. The AMP scheme seeks to promote compliance with parking by-laws, which are there to regulate the flow of traffic and use of land. The emphasis is on compliance and the prevention of harmful consequences rather than punishment of past conduct. One can infer that the AMP system is intended to deter illegal parking but this does not mean that its purpose is criminal. In Martineau, Justice Fish held that actions in civil liability and disciplinary hearings that are also “aimed at deterring potential offenders, nevertheless do not constitute criminal proceedings.”
The second criterion is the purpose of the sanction itself. Similar to the analysis in Martineau, the purpose of the administrative penalty is to ensure compliance with parking by-laws by providing the municipal law enforcement officers with a cost effective and timely method of enforcement. AMPS are not designed to punish a person who violates the by-law; in fact, the regulation demands that any penalty imposed not be punitive in nature. The monetary limit of the penalty of $100 is low and a much steeper penalty, one would argue, would be necessary to achieve a penal purpose. Finally, the regulation does not require a consideration of the principles of criminal liability and sentencing before the AMP is issued; the City fixes the amount of the penalty before the infraction occurs, and the amount does not vary based on repeated infractions or other factors of those who contravene the by-laws.
The final criterion is the AMPS proceeding. Under the regulation, an AMP may be issued if a vehicle has been left parked, standing or stopped in contravention of a designated by-law. The owner must be given notice of the penalty and be advised of the right to request a review by a screening officer and hearing officer. Only the hearing officer is required to hold a hearing and the Statutory Powers and Procedures Act (SPPA) applies. The SPPA applies to tribunals, not courts. The rules of evidence relating to tribunals in the SPPA are different from those that apply in court proceedings. For example, a hearing officer can admit oral evidence even when it is not under oath or affirmation and can accept all relevant evidence unless the testimony or documentation is inadmissible due to a privilege under the law of evidence or a provision in a statute. The decision of the hearing officer is final and not subject to an appeal.
Like the process in Martineau, this process is much closer to an administrative hearing than a judicial criminal hearing. No one is charged, no information is laid, no one is arrested and no one is summoned to appear before a court of criminal jurisdiction. No criminal record follows from an administrative penalty and if the person refuses to pay, the worst that might happen is that civil enforcement proceedings are initiated and the Registrar of Motor Vehicles may refuse to validate or issue a new vehicle permit to that person.
Based on the three criteria set out in Martineau, there is a strong argument that an AMPS system like the one used in Vaughan is administrative in nature rather than criminal or penal. This analysis can be trumped by the true penal consequences analysis. The maximum fine that can be imposed under the regulation is $100 and the regulation is clear that the amount under this cap cannot be punitive and cannot exceed the amount reasonably required to promote compliance. Given these limits, it seems much more like a penalty that promotes compliance with parking, standing and stopping of motor vehicle by-laws, than one that is imposed to redress a wrong done to society at large. Indeed, one might argue that the limit of $100 could be increased to at least $500 (and potentially higher over time) so that it may cover penalties that promote compliance with by-laws respecting disabled parking. We say this given the willingness of the Court to find much larger AMPS not subject to Charter protections as was done in Lavallee. We are also of the view that steeper penalties may indeed be necessary to promote compliance with disabled parking by-laws, given the strong social interest of accommodating persons with disabilities with appropriate parking.
To conclude, in our view, the AMP regime prescribed under the Municipal Act and its regulations for enforcing municipal parking by-laws does not appear to offend sections 7 or 11 of the Charter. We are supported in this conclusion by the fact that AMPS are already in place throughout Ontario in several other contexts and by some municipalities, that they have been duly considered and analyzed for their constitutionality by government prior to implementation and that they have subsequently been upheld by various courts. As the above analysis demonstrates, we are hard pressed to identify any constitutional concerns with the model AMP parking by-law permitted under the Municipal Act. In our view, constitutional concerns should not be tabled as a reason to delay implementation of a province-wide AMPS parking regime.
Duty of fairness concerns in an AMPS system
Independently of any consideration under the Charter, the duty of procedural fairness applies to an administrative decision that affects “the rights, privileges or interests of an individual”. Therefore, where a regulator imposes an administrative penalty, a level of procedural fairness must be afforded to those who are subject to the penalty. The Superior Court of Justice has jurisdiction to judicially review the procedure used by any administrative body and it may make various orders to ensure the appropriate level of procedure is afforded.
Generally speaking, the duty of procedural fairness includes some measure of the following procedural rights: (a) notice that an individual’s rights, privileges or interests may be affected with sufficient information so that the person may respond; (b) an opportunity to be heard orally or in writing and to make representations to the decision-maker before a decision is made; (c) an impartial decision maker with decisions that are made free from a reasonable apprehension of bias; and (d) a right to know the decision, and in some cases, the reasons for the decision.
The concept of procedural fairness is variable and dependent upon the context of each case. In Baker v. Canada, the Supreme Court held that the content of the duty of fairness depends on the type of right and the circumstances of the case. The Court listed five factors that affect the content of this duty. Underlying these factors
…is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
We discuss each factor briefly in relation to the AMPS regime for parking infractions under the Municipal Act, AMPS Regulation, and the City of Vaughan by-law.
(i) Nature of the decision being made and process followed in making it
This factor examines how close the administrative process is to a judicial process. The closer the process is to a judicial process the more likely it is that procedural protections used in trials will be required.
The AMPS procedure is very different from the procedure in a POA court: the hearing officers are not judicial officials; the first stage of review by a screening officer is more in the nature of a meeting than a hearing; the process is not adversarial as there is no prosecutor; there is an opportunity for the ticket recipient to be heard at a meeting with the screening officer and then before the hearing officer, but the strict rules of evidence used in court do not apply before a hearing officer; the issue at the hearing is not whether a “fine” should be imposed, but whether the “penalty” should be varied or cancelled, or whether an extension of time for payment should be granted. Taken together, the AMPS hearing process appears to be much closer to an administrative than a judicial hearing.
(ii) Nature of the Statutory Scheme
Subsection 3(2) of the AMPS regulation states that the purpose of the administrative penalty system is to help municipalities regulate “the flow of traffic and use of land, including highways by promoting compliance” with its parking by-laws. The purpose is not to punish, which would suggest greater procedural protections. Furthermore, there are two levels of review of the initial decision to impose a penalty – first by a screening officer and then by a hearing officer – which provides further procedural protection.
(iii) Importance of the Decision to the Individual
The importance of the decision to the individual affected is a significant factor in considering the content of procedural fairness. Compared to other interests that are the subject of administrative or judicial hearings, a maximum penalty of $100 cannot be said to be a significantly important interest that demands a full trial process. Moreover, review procedures are built in to assess if the penalty would cause undue hardship and extensions of time to permit payment may be granted. Where the person refuses to pay a penalty, the Registrar of Motor Vehicles can refuse to validate or issue a new permit to the person until it is paid. Still, these are fairly minor and easily remedied consequences and do not compare to the significant interests that are typically affected in civil, family or criminal court proceedings.
(iv) Legitimate Expectations of the Person Challenging the Decision
In some cases the legitimate expectations of the person challenging the decision can inform the content of the duty of procedural fairness. For example, where a person has a legitimate expectation that they will be able to make oral arguments before an unbiased decision maker, this may inform the type of hearing provided. A legitimate expectation, however, can only give rise to a procedural right, not a substantive right. We are not aware of any assertions by the City of Vaughan that would create expectations of a procedure that is beyond what is set out in its AMPS by-law, and which may give rise to additional procedural protections based on legitimate expectations.
An argument may be made that those confronted with a parking AMP will equate it with a parking ticket based on their past experience with tickets. They may come to expect certain processes to continue to be in effect, such as the Parking Ticket Cancellation Guidelines issued to staff in the City of Toronto directing when parking tickets may be cancelled without appearing before a justice. These guidelines list numerous situations in which a parking ticket may be cancelled administratively, such as where there is incorrect or missing information on a ticket, or where a person presents a permit evidencing their authority to park. While this argument may be made, a more rational approach would be to continue to adopt these cancellation guidelines as the grounds upon which a screening officer may cancel a parking AMP.
(v) The Choice of Procedure Made by the Agency
A fifth factor in assessing the content of the duty of fairness is deference to the choice of procedure adopted by the agency itself. The AMPS Regulation prescribes the most important procedural components of any municipal AMPS by-law for parking infractions, and there is little room remaining to deviate from the procedure prescribed. One would expect some deference to the few additional procedural details provided for in a municipality’s AMPS by-law
In light of the above analysis, we are of the view that the content of the duty of procedural fairness in an AMPS parking regime would be much less than one might expect at a full trial involving more significant rights or interests. The Vaughan AMPS regime, which is based largely on the requirements of the AMPS Regulation, contains significant procedural protections that, in our view, are sufficient given the interests at stake and the nature and purpose of the AMPS regime for parking violations. These protections include:
Notice of the penalty with particulars of the contravention and information on how to exercise a right of review;
A right to have the penalty reviewed by a screening officer at a meeting;
A further right of review before a hearing officer at a hearing;
An opportunity to make oral representations to the hearing officer; and
All the procedural protections set out in the SPPA.
With respect to the independence of the decision-maker and protecting against a reasonable apprehension of bias, the City of Vaughan By-Law 157-2009 prohibits interference with decisions made by the screening or hearings officers. It states:
6. No person shall attempt, directly or indirectly, to communicate for the purpose of influencing a Screening Officer or a Hearings Officer respecting the determination of an issue respecting a Delegated Power of Decision in a proceeding that is or will be pending before the Screening Officer or Hearings Officer except a person who is entitled to be heard in the proceeding or the person’s lawyer or licensed paralegal and only by that person or the person’s lawyer or licensed paralegal during the hearing of the proceeding in which the issue arises. Failure to comply with this section constitutes an offence.
Finally, the AMPS Regulation requires that the appointment of a hearing officer be consistent with conflict of interest guidelines. Vaughan’s by-law states that City Council members and relatives are ineligible for appointment as a screening or hearing officer. It would appear that the Vaughan by-law puts in place sufficient protections to ensure independent decision-making by the screening and hearing officer.
Use of AMPS for Minor Offences under Current Part I
80% of Part I charges relate to offences under the Highway Traffic Act and its regulations, representing approximately 1.6 million charges each year that take up approximately 30,000 hours of time by justices of the peace. Many offences would be considered minor. They take up enormous court and judicial resources that could well be directed to more serious offences. While we highlight minor Highway Traffic Act offences, there are other provincial statutes for which AMPS may be appropriate. For example, the Building Code Act, 1992 is municipally enforced. It provides a system of administrative orders with corresponding rights of review and appeal. A system of administrative penalties is a natural extension of these existing systems to encourage compliance in advance or possibly in lieu of a POA prosecution. The current use of judicial officials to dispose of these minor offences may not promote respect for the administration of justice. For these and other reasons, Archibald, Jull and Roach argue that minor speeding offences should be transferred out of POA courts and into an AMPS regime:
Resource considerations suggest that for minor provincial offences, we ought not to use our courts at all. Minor speeding offences are a perfect subject for administrative monetary penalties. In our view, the present practice of utilizing courts, presided over by Justices of the Peace, to adjudicate minor speeding offences, does not make great practical sense. Moreover, the practice is inconsistent with the move towards administrative monetary penalties in other sectors such as the environment.
The legal, policy and constitutional arguments relating to parking AMPS would be relevant to an analysis of whether minor Part I offences should also move to an AMPS regime. Having said that, careful consideration of a variety of additional legal, policy and operational issues should be undertaken before moving minor offences, including minor Highway Traffic Act offences, into an AMPS regime. They include:
Which offences? There are hundreds of Highway Traffic Offences and many other minor offences under other statutes that could potentially be subject to an AMP. An assessment of which should qualify for an AMP will have to be made, and for consistency, that decision should be based on a rationale and consistently applied threshold test.
When to impose an AMP or commence a prosecution? Some offences may be considered minor in some circumstances (e.g., driving without a licence because the driver forgot his licence at home) but more serious in others (e.g., driving without a licence because it was previously cancelled by the Registrar of Motor Vehicles because of prior convictions). Would the enforcement officer have jurisdiction to issue an AMP or elect a POA prosecution?
Nature of offence – absolute vs. strict liability. Another issue is whether offences that are now strict liability offences would effectively become absolute liability offences if enforced through an AMPS regime. Would a defence of due diligence be available for some offences before a hearings officer under an AMPS regime, or would they expressly be excluded by statute as is done for environmental penalties under the Environmental Protection Act? If due diligence defences were to be maintained, might it be possible to outline those defences in guidelines to be used by a hearing officer which could also be made available to the public?
The penalty and constitutional considerations. Whether the proposed penalty contemplates imprisonment or another punitive penalty. The quantum of any penalty should not be punitive; if so, it might invoke Charter rights.
Other legal and policy issues. For example, how might an AMPS hearings officer deal with an unlawful arrest or search that arose during the commission or investigation of a Part I offence, and under what authority would a hearing officer exercise any remedial powers? Also, would people still be prepared to comply with important regulatory standards if they know that the only consequence was a monetary penalty, versus a potentially more severe penalty that could be issued only by a justice of the Ontario Court of Justice (e.g., probation, licence revocation)?
Implementation issues. The volume of cases would be significant, and municipalities would have to develop and implement appropriate structures and staffing to accommodate the expected case volume. Appropriate IT infrastructures would also have to be in place to allow for appropriate reporting to government agencies/ministries for enforcement purposes (e.g., Registrar of Motor Vehicles).
Loss of Victims’ Justice Fund Revenue. Section 60.1 of the POA authorizes a victim fine surcharge to be levied on fines imposed in Part I or Part III offences. The Ministry of the Attorney General advises that, in 2010, this surcharge generated $43.5 M in revenue dedicated to support programs and community agencies that assist victims. Transitioning some Part I offences to an AMPs system would reduce revenue to this fund.
Creating two discrete systems. If an AMPS regime for certain minor offences is created, but the current POA system is to be maintained for other offences, there would be two discrete systems. There may be economies of scale achieved by keeping a single system for all Part I and III offences, rather than creating a new and separate system for only certain minor offences.
The sheer volume of Part I offences and the time devoted to their disposition require that this issue be further investigated. We believe that the system could benefit from the Ontario government undertaking an analysis of which minor provincial offences, and most notably, minor Highway Traffic Act offences, are candidates to transition to an AMPS system after due consideration of all legal, policy, social and operational issues.
Use of AMPS for Parking Enforcement by First Nation Communities
A further potential reform option was presented to the LCO near to the completion of the Interim Report in the project, the use of AMPS for parking enforcement by First Nation communities. We discuss it briefly under Part IV as an issue worthy of further review and consideration.
4. Conclusions and Recommendations
The use of AMPS as an alternative to prosecuting minor Part I provincial offences is a subject worthy of its own report. However, we have sought input and conducted research and analysis to recommend discrete yet major reforms that will see greater use of AMPS as the exclusive enforcement mechanism for parking infractions.
As a starting point, there is a strong prima facie case that significant cost and time savings can be achieved if all Part II parking infractions were moved out of the POA system and into an AMPS regime in each municipality. Even if a compelling cost-savings argument cannot be established or is not accepted, there remains something strikingly disproportionate with using justices of the peace and limited court resources for these very minor matters. We believe that the use of AMPS, based on the model adopted in the City of Vaughan, provides a fair and balanced mechanism to review administrative penalties and that this system would not offend the Charter. The AMPS regime is also more accessible and it should be made available for the enforcement of by-laws relating to systems of disabled parking. Most importantly, we believe that greater respect for the rule of law and the administration of justice would be achieved if court and judicial resources were reserved for the prosecution of more serious provincial offences.
The City of Toronto, in a submission to the LCO, supports the use of AMPS for parking offences but cautions against making AMPS mandatory without first obtaining an opinion from the Court of Appeal on this issue. If the proposed AMPS scheme were struck down by the courts as unconstitutional, it could have a deleterious impact on the City. According to the City Solicitor,
If a court struck down the [AMP] system in place for resolving parking tickets the financial impact on the City would be approximately $6.5 million per month or $215,000 per day until the problem was corrected. An even more significant problem would be the traffic and pedestrian safety issues that would result from the resulting lack of enforcement.
Accordingly, the City of Toronto has proposed that the constitutionality of the AMPS scheme be considered by the Court of Appeal by way of reference from the Attorney General pursuant to section 8 of the Courts of Justice Act. We do not believe a reference is required. In the preceding section, we have gone to some length to consider the constitutionality of the proposed AMPS regime, have commissioned a paper to consider this very issue, and one would expect that the Ministry of the Attorney General’s Constitutional Law Branch would have duly considered this issue before the AMPS process was incorporated into the Municipal Act, 2001 (and the City of Toronto Act, 2006). In sum, we do not believe constitutional concerns exist with the proposed AMPS regime, although it is, of course, open to the Attorney General to direct a reference to the Court of Appeal on this issue out of an abundance of caution.
We believe that a transition to an AMPS regime for all Part II parking infractions in all Ontario municipalities should be completed within three years; however, the exact date will have to be determined after further consultation with municipalities and relevant government ministries.
With respect to having AMPS apply to other minor offences currently prosecuted under Part I, including minor Highway Traffic Act offences, we believe there is a strong prima facie case to do so, subject to an examination of several outstanding legal, policy and operational considerations. The Law Society of Upper Canada, in its comments on the Interim Report for this project, opposes the inclusion of Part I offences within an AMP system. It noted that while many offences prosecuted under Part I might be considered minor, they may have serious public safety implications, particularly in the context of the Highway Traffic Act, where serious injury or death can arise from the commission of seemingly minor offences. It also noted that a judicial process will still be required for resolving other provincial offences, and that from an access to justice perspective, efficiency may not be achieved by having two separate procedures.
We agree that these are valid considerations. In fact, we have noted some of them above. These factors ought to be considered by the Ministry of the Attorney General when assessing whether certain minor offences that are typically prosecuted under Part I ought to transition to an AMPS regime. In our view, there nevertheless remains merit in conducting a comprehensive policy analysis of this issue given the potential benefits of an AMPS regime; the review should take into account all appropriate factors, including those raised by the Law Society.
Given these conclusions, we make the following recommendations:
The LCO recommends that:
10. Within three years, after the Ministry of the Attorney General has consulted with municipalities and an appropriate IT infrastructure has been developed to report defaulted AMPs, the POA be amended to remove the prosecution of Part II parking infractions in the Ontario Court of Justice.
11. Within three years, each municipality (or jointly with other municipalities or Municipal Partners) adopt and implement a by-law for administrative penalties to enforce by-laws relating to the parking, standing or stopping of vehicles, including by-laws relating to disabled parking.
12. Amend O. Reg. 333/07 under the Municipal Act (and O. Reg. 611/06 under the City of Toronto Act, 2006) to permit administrative penalties for the enforcement of by-laws establishing systems of disabled parking.
13. Increase the monetary limit for administrative penalties in section 6 of O. Reg 333/07 (and section 6 of O. Reg. 611/06) from $100 to $500, or such other amount as is necessary to permit enforcement of disabled parking by-laws through AMPS.
14. Each municipality and relevant government Ministries, including the Ministry of Transportation, immediately assess operational challenges to the successful implementation of an AMPS regime for parking enforcement (such as any required IT infrastructure), and put in place a plan to resolve those challenges within three years. Consultation with municipalities who have already implemented an AMP system may assist in overcoming any operational challenges.
15. The Ontario government conduct a review of minor provincial offences most typically commenced as Part I proceedings, and in particular, minor Highway Traffic Act offences currently prosecuted under Part I, to assess which offences may be better enforced under an AMPS regime. This review should consider, among other legal, policy and operational considerations:
a. the most common offences currently prosecuted under Part I, their volume, and associated court and judicial resources required to dispose of these offences as compared to an AMPS regime;
b. the effectiveness of AMP regimes for other minor offences;
c. the nature of the offence (i.e., whether it is a strict or absolute liability offence), and whether due diligence defences could or should be maintained in an AMPS regime through appropriate guidelines to the administrative hearing officer;
d. the proposed penalty under an AMPS regime and whether it would be punitive or give rise to the potential of imprisonment;
e. whether the potential circumstances giving rise to the offence could potentially lead to allegations of infringements of Charter or other rights, and if so, how might those allegations be dealt with under an AMPS regime;
f. operational issues that would hamper the ability to transition the offence into an AMPS regime;
g. the impact on the Victims’ Justice Fund; and
h. the merits of maintaining two separate and distinct systems for the resolution of the same provincial offences currently prosecuted under Part I (e.g., an AMPS and a POA court-based system).
E. Sentencing Reform
1. Sentencing Provisions Under the POA
Two areas of sentencing reform were proposed during our consultations: first, whether a statement of sentencing purposes and principles should be adopted in the POA, and second, whether the range of sentencing options available to the court should be expanded. We begin with a snapshot summary of the current sentencing provisions in Part IV of the POA and then an analysis of these two issues with reference to responsive regulation discussed in Section II.B.
Under the POA, a maximum fine of $1,000 may be imposed where a person is convicted of an offence commenced under Part I. For Part III offences, the maximum fine is $5,000 unless a statute directs otherwise. Certain sentencing powers are limited to Part III proceedings, such as directing the preparation of a pre-sentence report and issuing a probation order. There is no general authority within the POA to order imprisonment as a sentence; such authority must exist in the offence-creating statute, although the POA creates several procedural offences where a term of imprisonment may be ordered (e.g., contempt of court can result in a fine of up to $1,000 or 30 days imprisonment). Where a statute authorizes imprisonment, the court may consider the time the person convicted already spent in custody and the imposition of a fine in lieu of imprisonment.
Upon conviction, a defendant is liable to pay court costs as prescribed by regulation, and a surcharge when a fine is imposed in respect of a Part I or Part III offence.
Fines are due and payable within 15 days after they are imposed. When a fine is in default, it may be enforced as a civil judgment by filing a certificate in either the Small Claims Court or Superior Court of Justice, which shall be deemed to be an order of that court for the purposes of enforcement. Other fine enforcement tools include a suspension of or refusal to renew a permit, licence, registration or privilege where an Act authorizes the suspension or refusal to renew. The POA prescribes other enforcement tools, but as noted previously, they are not truly in force since by virtue of subsection 165(3) of the POA, they are not available to municipalities who have entered into transfer agreements with the Attorney General. They include the authority of a justice to issue an arrest warrant when a fine is in default and where other methods of fine collection have failed, and the authority of a justice to order a term of imprisonment for unpaid fines where incarceration would not be contrary to the public interest. We further note a Supreme Court of Canada decision that said genuine inability to pay a fine is not a proper basis for imprisonment. Where a person is unable to pay a fine, a justice may grant an extension of time, establish a schedule of payments, or in exceptional circumstances, reduce the fine.
A fine options program, authorized by the Act and established by regulation, permits the payment of fines by means of credit for work performed, although no such program is currently in effect.
2. Sentencing Purpose & Principles
Challenges Faced Without Prescribed Sentencing Purpose or Principles
The POA does not contain a statement of the purpose or principles of sentencing. The court has had to fill in the gap through case law. This approach has been criticized since the judiciary has had to make policy decisions on sentencing, arguably a task better left to the legislature. Also, several cases with similar facts have had vastly different sentencing outcomes that are difficult to rationalize. Several commentators have called for clear sentencing guidelines to promote consistency in sentencing and to assist the court in advancing the offence-creating statutes’ objectives. This is in contrast to the Criminal Code which expressly states the purpose and principles of sentencing applicable to criminal matters, and British Columbia’s Public Health Act which also contains sentencing principles for offences committed under that Act. Ontario’s Environmental Protection Act does set out aggravating factors to consider when sentencing environmental offenders, but it also lacks an overriding statement of sentencing purposes and principles. Thus Archibald, Jull and Roach conclude that sentencing provisions for Ontario’s regulatory offences “are a patchwork quilt that are in need of reform.”
Over the years, the court has established lengthy lists of sentencing principles for regulatory offences. It has considered and relied upon as many as 23 factors including the nature of the offence, the size, wealth, and nature of operations of the defendant, and the social utility of the defendant’s actions or business. This “shopping list” does offer guidance to the court, but it has not been wholly satisfying. For instance, it is not clear how the factors interrelate, if they should be considered aggravating or mitigating and what priority should be given among them. Furthermore, while the shopping list approach has been developed in trial courts of first instance, the Ontario Court of Appeal has rendered few decisions to guide lower courts during sentencing. One reason given for this lack of sentencing jurisprudence is the onerous threshold that must be met in order to appeal a sentence to the Court of Appeal.
The leading Court of Appeal decision on sentencing in regulatory matters is R. v. Cotton Felts Ltd. An employee was cleaning a moving machine when his arm was sucked into a machine’s rollers and crushed. His arm had to be amputated below the elbow. A regulation under the Occupational Health and Safety Act provides that a machine shall be cleaned only when motion that may endanger a worker has stopped. The defendant was convicted and given a $12,000 fine that was appealed. The Court of Appeal held that fines are typically used to enforce regulatory matters and that the primary determinant of the amount is deterrence:
To a very large extent the enforcement of such [regulatory] statutes is achieved by fines imposed on offending corporations. The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute. Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence. [emphasis added]
The court further stated that while the fine should not be harsh, it should “not appear to be a mere licence fee for illegal activity.” The Court of Appeal has not issued a sentencing decision of general application like Cotton Felts in the more than 25 intervening years.
A number of writers take issue with Cotton Felts’ reliance on fines as the predominant sanction, and deterrence as the paramount sentencing principle for regulatory matters. They argue that other principles, such as remediation and rehabilitation, have an equal or even more important role in regulatory sentencing. They also call for additional tools beyond fines to implement this broader array of sentencing principles. Below we discuss principles of sentencing and other sentencing options that ought to be considered to enable courts to help promote regulatory goals.
Inconsistency in Sentencing Outcomes
Libman argues that Cotton Felts gives very little guidance and as a result there is a wide range of sentencing outcomes that are difficult to explain. He also questions the use of fines and the lack of other sanctions aimed at repairing the harm or rehabilitating the offender to promote future compliance with the regulatory statute. To illustrate his point, Libman examines several cases from Ontario and other Canadian jurisdictions.
Examining workplace safety cases first, Libman references the R. v. Ellis-Don decision where the Ontario District Court reduced a fine imposed by a lower court under the Occupational Health and Safety Act from $20,000 to $10,000. A worker died after falling down an elevator shaft. On appeal, the majority of the Court of Appeal did not deal with the sentence because it ordered a new trial after addressing a constitutional issue, but the dissenting judge would have upheld the $10,000 fine. This would have resulted in a fine that was less than the fine in Cotton Felts, even though Ellis-Don involved a fatality and the defendant in that case was a major corporation. In another case, an employee received minor burns and others felt the impact after the boom of an excavator came into contact with live wires. The Court of Appeal approved fines against a small family-run business that totaled $35,000, far exceeding the fines awarded in Cotton Felts or Ellis-Don and where the injuries were much less significant than in these other two cases.
Even in cases with the same facts, different levels of court have difficulty determining the proper amount of a fine. In R. v. Inco Ltd., the defendant was a large mining company ultimately convicted of failing to maintain equipment in good condition and failing to leave a guard to protect workers from a moving part of equipment. This resulted in the death of an employee. The trial judge fined the company $250,000 per count on three counts. The Superior Court of Justice overturned one of the convictions and reduced the sentence on the remaining counts to $125,000 per count after revisiting the trial judge’s assessment of two factors applicable to sentencing. The Court of Appeal then restored the fine of $250,000 on the remaining two counts. Libman notes similar disparities in fine amounts from decisions in Alberta, Saskatchewan, New Brunswick and Newfoundland.
Sentences rendered in consumer protection cases can be equally difficult to explain. Libman cites R. v. Browning Arms Co. of Canada where the trial judge imposed a fine of $15,000 per count on four counts of ”resale price maintenance” for a total of $60,000. The court noted that a large total fine was required so that it did not amount to “a mere licence to carry on.” The Court of the Appeal disagreed and imposed a fine of $2,500 per count for a total of $10,000. The result was that the total fine for all four counts was $5,000 less than what the trial judge would have ordered for each count individually. The case of R. v. Epson (Canada) Ltd. offers a further example. The trial judge imposed a fine of $200,000 for an attempt to influence upwards the price by which distributors advertised the defendant’s products, but the Court of Appeal found the fine to be disproportionately high and reduced it to $100,000. And in R. v. Total Ford Sales Ltd., the Ontario District Court overturned fines ordered by a provincial court judge totalling $66,000 and replaced them with fines totalling $19,600 on the basis that the trial judge had not correctly applied certain sentencing factors. Again, the variance in the fines with the same facts supports the argument that greater guidance is needed in sentencing.
The third area examined by Libman is environmental offences. Although sentencing tools other than fines are more likely to be used for environmental offences, there is still considerable variation in the sentences handed down. In the case of R. v. Bata Industries Ltd., the Provincial Court imposed a total penalty of $120,000 for the unlawful discharge of toxic waste and a two year probation order.  Half of the penalty was a fine and the remaining $60,000 was to fund the start-up costs of a local program designed to clean up domestic toxic waste, which was a term of the probation order. On top of Bata’s fines, two directors of the company were fined $12,000 each. The District Court on appeal reduced the total penalty to $90,000, resulting in $60,000 paid as a fine to the government’s Consolidated Revenue Fund and only $30,000 paid towards the local toxic clean up program. In addition, the fines for the individual directors were reduced to $6,000 each.
Clearly, the unique circumstances of a given case will result in different sentences being rendered, and therefore some disparity must always be expected. However, if sentencing is to be legitimate, it has been argued that “it should be based on a consistent and principled approach that aligns that part of the regulatory process with the underlying regulatory goals.” More defensible and principled sentences might be expected if the purposes of sentencing and sentencing principles are firmly established and not left entirely to judicial discretion. Moreover, it appropriately falls to the legislature to provide courts with the necessary tools to achieve the regulatory goals. As Libman notes:
…while the state of sentencing for regulatory offences in Canada may not be in “chaos”, it certainly appears that there is in the courts a lack of uniformity, and marked inconsistency in applying sentencing purposes and principles to such offences. Indeed, how could it be otherwise, one might wonder, given the absence of any legislative rationale or guiding principle in sentencing provisions for most regulatory offences.
Others writers have similarly argued that greater consistency in sentencing is needed and that legislation can play a role by providing a principled and consistent approach. Of key importance, legislation should ensure that sentencing aligns itself with regulatory goals. As stated by one writer:
Certainly, some disparity is to be expected. Fairness demands that courts tailor sentences to the circumstances of each offender and offence. If sentencing is to be legitimate though, it should be based on a consistent and principled approach that aligns that part of the regulatory process with the underlying regulatory goals. These may be categorized generally as the prevention or mitigation of harm, the enhancement of administrative efficiency or the achievement of a particular goal in the public interest.
Development of Sentencing Purposes and Principles Elsewhere
Sentencing purposes and principles adopted in other contexts offer a basis to consider whether similar reforms should be made to the POA. Various studies by the Law Reform Commission of Canada, Parliamentary Standing Committees, the Canadian Sentencing Commission and the Government of Canada each recognized the need to express sentencing principles in the Criminal Code. The Standing Committee on Justice and the Solicitor General conducted a review of sentencing and conditional releases and its 1988 Report made the following comments on sentencing disparity in the criminal context:
Research on sentencing disparity demonstrates that the most frequently alleged cause for unwarranted variation is confusion about the purposes of sentencing. No sentencing goals are now set out in legislation. Conflicts and inconsistencies in case law appear to arise from the fact that it is often impossible to blend the elements of public protection, punishment, denunciation and deterrence; frequently, they are contradictory and inconsistent. It is important, therefore, to achieve consensus on a sentencing rationale for the guidance of the judiciary and the enlightenment of the general public.
This reform movement eventually led to the introduction of Bill C-41 which provided for “comprehensive sentencing reform”. As a result, the Criminal Code now contains express sentencing purposes and principles:
718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or
(v) evidence that the offence was a terrorism offence
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
The Criminal Code provisions do not create a hierarchy of objectives or principles, nor do they provide guidance to the judiciary on how they are to be applied. In fact, this has been a source of considerable criticism. Despite these challenges, others have argued that the Criminal Code provisions are better than an absence of purposes and principles and that it brings some order to sentencing.
The Public Health Act in British Columbia is another example of legislation that sets out purposes and principles of sentencing. Unlike the Criminal Code, it prioritizes sentencing principles and requires sentences that are first, remedial in cases where there has been harm; second, intended to rehabilitate where it is expected that the offender will continue to engage in the regulated activity; third, will serve as a general deterrent where the sentence under the previous priorities is insufficient and a further penalty can be justified to deter others; and fourth, to punish if the offence was deliberate or other aggravating circumstances justify punishment. The relevant sections are discussed in greater detail below.
Introducing Sentencing Purposes and Principles to the POA
Similar to the results of the research on sentencing disparity under the Criminal Code, there appears to be unwarranted variation in sentencing in POA matters. The patchwork of legislative provisions and the limited case law from the Court of Appeal have not filled in the legislative gaps. Sentencing should have a principled basis to best promote regulatory objectives and a statement of principles in the POA can achieve this.
Rather than simply adopt the Criminal Code sentencing principles, special attention must be given to the distinction between criminal and regulatory offences, and most notably, the “regulatory cycle” discussed previously. Simply put, it is the cycle by which a regulated party will engage in a regulated activity, a breach of a regulatory standard will be detected and resolved (e.g., warning letter, AMP or prosecution with fine), and then the regulated party will typically resume in the regulated activity. They will continue to haul waste, drive their car, run a manufacturing plant or spread biosolids on a farm. Indeed, it is in the interest of society that the convicted person continues to carry on the regulated activity, but that they do so lawfully, rather than being prohibited from doing it altogether.
When a provincial offence has been committed, appropriate and consistent sentencing requires recognition of the regulatory cycle. Thus the court need look “not only backwards at the conduct which gave rise to the non-compliance, but forward as well, since the defendant will often continue to participate in the regulated activity following the imposition of punishment.” Therefore, when sentencing, the court ought to consider what response would best promote compliance in the future, “which is very different than the context in which criminal defendants are punished for engaging in anti-social or moral blameworthy behaviour.” This is the key distinction between sentencing in criminal matters versus regulatory ones, and it must be considered when developing sentencing principles for regulatory offences as well as how those principles interrelate.
To fully understand the regulatory cycle and its implications for sentencing, trends in regulatory enforcement must be considered. Regulatory standards are moving away from being design-based. Design-based regulations identify how an act is to be carried out and they are clear and direct (e.g., an operator must install a number 2 scrubber on each smoke stack). But design-based regulations have been criticized as being slow to adapt to changing technology and expertise, which may lead to impaired efficiency and innovation. A regulation that is too narrow or inflexible can unduly hamper effective operations. One report looking at the financial sector argues that such prescriptive standards fail to respond quickly enough to changes in the market, burden industry and have failed to prevent misconduct.
Design-based standards are being replaced with newer strategies including outcome-based, performance-based and principles-based regulation. These types of regulations have been distinguished as follows:
“Outcome-based” regulations provide for a measurable result to be achieved (e.g., an operator must ensure that emissions from a stack contain less than x parts per million of nitrous oxide);
“Performance-based” regulations provide for a non-measurable result to be achieved (e.g., an operator must ensure that emissions do not contain nitrous oxide in amounts that cause an adverse effect on the environment); and
“Principles-based” regulations establish standards of conduct (e.g., the operator must dispose of a dead farm animal in a manner that is environmentally sound).
While these newer strategies provide regulated persons with more operational flexibility, the latter two can create uncertainty around the regulated person’s precise obligations. The obligation to install a specified scrubber is a much more exact obligation than ensuring that an operation is run in an environmentally sound manner. When an uncertain regulatory standard is the subject of a prosecution, the sentencing court must consider the lack of certainty of the standard, whether the sentence can be used to assist the offender in determining what the regulatory standard requires and how the sentence will help the offender to achieve that standard.
This shift in regulation strategies has led to less of an adversarial approach to enforcement, and a greater reliance on enforcement tools at the bottom end of the regulatory pyramid discussed in Section II.B of this Report. Warning letters, education and attempts to persuade by the regulator ought to be used before approaches at the top of the pyramid such as investigation, prosecution and licence suspension are invoked. When the court is sentencing it should consider any past attempts at compliance and the defendant’s response to those attempts. The court should also consider the effect of the sentence on the future relationship between the regulator and the regulated person. In all likelihood the regulator and the regulated party are likely to continue dealing with each and the court must consider whether the sentence might actually be used to enhance cooperative enforcement in the future. Libman sums it up as follows:
To put the matter another way, taking into account the past relationship between the regulated party and the regulatory authority, how will the sentence imposed by the court impact on the parties’ ability to move forward and resume a non-adversarial, cooperative working relationship.
After considering the new regulatory strategies, Sherie Verhulst argues that courts should adopt a five step inquiry when sentencing a matter under British Columbia’s Offence Act, which is that province’s equivalent of the POA. She proposes that the court:
Encourage joint submissions on aggravating and mitigating factors as well as the sentence to be imposed (“joint submissions”);
Impose a sanction that remedies the violation, to the extent that such a sanction is possible and reasonable (e.g., compensation, probation, community orders) (“remedial”);
If the offender is likely to continue to engage in the regulated activity after sentencing, but the offender’s behaviour must change to prevent future breaches, impose a sanction that promotes the changes necessary to prevent future violations (e.g., probation, community service) (“rehabilitation”);
Impose a sanction that promotes change in the behaviour of other persons, but only if the court believes that it could serve a regulatory objective and where the remedial and rehabilitative sanctions are insufficient given the circumstances of the matter (e.g., community service, fines) (“general deterrence”);
Impose a sanction that denounces and punishes the offender’s behaviour if aggravating circumstances make such a sanction appropriate (e.g., punitive publicity orders, order to cease certain activities temporarily or permanently) (“denunciation”).
Verhulst’s approach envisages a hierarchy of principles for the court to consider when sentencing. Such a hierarchy has been said to be an improvement to the approach under the Criminal Code, which provides no priority and little guidance on how to apply its sentencing principles and purposes.
Libman notes that each individual step in the hierarchy is well grounded in regulatory jurisprudence. Deterrence and denunciation are retained as traditional sentencing principles consistent with the Cotton Felts case, but now the principles of remediation and rehabilitation are expressly noted and they have a higher priority than deterrence. This is consistent with a contemporary view of regulatory law which envisages persuasion as a stronger motivator than punishment, and an enforcement regime that is flexible and responsive to newer regulatory strategies.
Verhulst and Libman offer justifications for each step. The first is the encouragement of joint submissions from the prosecutor and the defence setting out aggravating and mitigating factors, as well as the sanction that they agree the court should impose. For complex matters that involve performance-based or principle-based regulation, this first step can be immensely helpful. The regulator and the regulated persons, each with expertise that the court may not possess, can propose a sentence that will further the regulatory objectives and that is also informed by the ability of the regulated person to comply with the sentence terms. One can expect more creative sentences that will advance greater compliance in the future. In addition, agreed-upon sentences promote a greater understanding of each of the parties’ positions that encourages improved cooperation between the two in the future. Joint submissions over purely court imposed punishment can also help promote future compliance. As noted by Ayres and Braithwaite,
When punishment rather than dialogue is in the foreground of regulatory encounters, it is basic to human psychology that people will find this humiliating, will resent and resist in ways that include abandoning self-regulation.
While joint submissions on aggravating or mitigating factors and the sentence to be imposed can be very helpful, it may not be practical in all POA cases. First, many parties who appear before the court, particularly on minor POA offences, will not be legally trained or will represent themselves, and for such parties, knowing what factors are aggravating or mitigating or the range of appropriate sentencing outcomes may not be possible. Second, even when a plea is entered, the parties will often not be able to agree on aggravating or mitigating factors and the court will have to determine whether such factors exist. For these reasons, we do not believe that agreement on aggravating or mitigating factors or a recommended sentencing outcome should be a requirement in all cases. Instead, we believe the court should merely be open to hearing any agreement on these issues that has been reached by the parties. Where a consensus on such factors is present, it will ensure that all of the relevant considerations on sentencing are before the court, and obviate the necessity for resolving factual disputes as to their application. Where the parties are unable to agree, the court will be required to resolve these factual issues in order to arrive at the correct basis for its sentencing decision.
In many cases, remediation may be an appropriate first consideration when sentencing. The court will consider orders that remedy the harm done. Where a person voluntarily enters into a regulated area and creates harm as a result of unlawful conduct, common sense and fairness dictate that the harm ought to be remedied by the person who created it. Regulated persons should take responsibility for their actions through sanctions that are logically connected to the offence. Remediation is important because it attempts to restore victims to the position they were in prior to the violation and is consistent with restorative justice principles.
Tools such as compensation, probation orders and community service may be much more effective sentencing tools than fines when seeking to remedy harm, and the circumstances of the case may dictate that they be preferred over fines. Determining appropriate fines is often difficult and sometimes fines do not directly change the behaviour of the offender or satisfy regulatory goals. Fines can easily become a mere “cost of doing business”, and once collected in general government coffers, they may not be earmarked to remedy the harm that was created.
Remediation may be more difficult where there was no actual harm and instead, the achievement of a particular public interest goal has been undermined. Nonetheless, the court may be able to fashion a sentence that addresses remediation in these circumstances. For example, if an offender were responsible for a spill in a lake but there were no known immediate adverse effects, the court could require a long-term study of the toxic effects of the spilled materials by an independent researcher to be paid for by the offender. Similarly, if there were no injuries arising from toxic chemicals discovered in a nursing home, the court could order improved staff training on the use of toxic chemicals. These sentences would create a further benefit of requiring the offender to take a direct interest in furthering the regulatory goals.
After remediation, rehabilitation of the offender may be particularly appropriate where it is likely that the defendant will engage in the regulated activity after sentencing. The court’s objective is to craft a sentence that encourages and assists the defendant in meeting regulatory standards in the future. Society’s interest will often lie in the person continuing to carry out this activity lawfully rather than the person not carrying it out at all, and therefore rehabilitative orders are preferred over licence suspensions or crippling fines. It is better that a nursing home’s doors are kept open in a manner that is safe for those who need assisted living, rather than its being shut down completely.
Research suggests that organizations go through three stages in complying with regulatory obligations. The particular stage that an organization finds itself should be taken into account by courts when fashioning rehabilitative remedies. The first stage is a commitment to comply. Second, the organization must learn how to comply. Third, it must institutionalize compliance through such means as standard operating procedures, performance appraisals and the organization’s culture. Thus if the organization were in the second stage of compliance the court might, as a term of probation, order that certain employees take training to learn how to comply with regulatory standards. If it were in the third stage, the court might require the company to hire an expert to help it develop standard operating procedures that meet regulatory standards.
Probation is to be preferred over fines to achieve the goal of rehabilitation. Empirical evidence suggests that while fines deter certain types of behaviour, they do not change attitudes or long-term behaviour. We discuss below the need for broader authority in the POA for courts to impose probation since it can play a key role in implementing the sentencing principle of rehabilitation. Other tools such as an “embedded auditor” also have the potential to further rehabilitation goals.
Probation orders should be targeted at behaviours that help promote compliance. In Section II.B., we cited research that suggests regulated parties are often motivated to comply with regulatory standards, not because of a fear of a fine, but because of other factors. They include maintenance of a good reputation, a desire to do what is right, fidelity to an identity as a law-abiding citizen and realization of a self-concept of social responsibility. These motivators ought to be the source of proportionate and custom-tailored probationary orders for regulatory breaches that promote compliance, rather than the imposition of a standard fine as the first response.
Fourth, the court should address general deterrence. Noting that general deterrence has been the primary focus of regulatory sentencing in the past, Verhulst argues that the pre-eminent status of this objective should now give way to other pressing sentencing principles for the following reasons:
(a) given the need to consider the effect of the totality of the sentence on an offender, an emphasis on deterrence leaves less room for remedial and rehabilitative measures, and, if regulatory objectives are to be achieved, those should have greater priority;
(b) research in both the criminal and regulatory law contexts strongly suggests that general deterrence, and, in particular, high penalties for this purpose, is not actually successful in changing long-term behaviour;
(c) it is unfair to punish one person for the sake of the anticipated sins of others; and
(d) the success of performance-based and principles-based regulation, and less adversarial enforcement strategies, relies on an assumption that most regulated persons largely act with goodwill rather than responding only to threats of formal sanction – imposing a sanction for the purposes of general deterrence conflicts with this assumption.
A penalty based on general deterrence should only be imposed if two conditions are both met:
First, if the court has reason to believe that the sanction would serve a purpose that is consistent with the regulatory objective; second, if the totality of the sentence would not be disproportionate, given any sanctions already imposed for the purposes of remediation and rehabilitation.
This approach is consistent with the model of the regulatory pyramid. Where penalties at the lower end of the pyramid have been tried unsuccessfully, or where a lesser sanction would be vastly inadequate given the aggravating circumstances of a particular offender, a more severe penalty may well be appropriate. A sanction based on general deterrence might be justified, for example, where there is a systemic problem in the regulated industry.
In terms of the severity of the sanction, it must signal to the community that non-compliance will not be tolerated. We would broaden the explanation of general deterrence given in Cotton Felts Ltd. to include other types of sanctions beyond fines, but as was said in that case, the sanction imposed must warn others that the offence will not be tolerated without being harsh. On the other hand, the sanction must not appear to be a mere licence fee. Consideration should be given to whether a fine is in fact the most appropriate penalty since it may suggest “that the offender is simply buying their way out of trouble.” Probation orders or publicity orders advertising the offender’s offence and sanction may well be stronger motivators that promote compliance.
Finally, the court should only resort to denunciation if there are sufficient aggravating factors. A unanimous Supreme Court of Canada describes the objective of denunciation:
The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.
In determining whether there are aggravating factors that warrant a denunciatory penalty, the court should focus more on the conduct of the offender rather than on the offence itself. Factors to consider would be deliberate or reckless conduct such as ignoring regulatory officials, repeated failures to act with due diligence, whether compliance with the regulation could have been achieved cheaply or easily or if the risk of harm was high.
Denunciation may also be appropriate for an offence that has resulted in death or widespread and long-term impacts. However, actual harm, while relevant, should not be a prerequisite to the use of the denunciation penalty. For example, someone who deliberately endangers public health despite repeated warnings from regulatory officials may well merit a denunciatory sanction.
Verhulst also argues that denunciation should be used with restraint so there is more room for remedial and rehabilitative sanctions. Widespread use of denunciation would undermine non-adversarial approaches to enforcement. This is because severe responses from the courts, such as incarceration and the revocation of licences will make regulators less likely to use prosecution, which will ultimately undermine non-adversarial approaches that rely on a credible threat of more serious sanctions. This is in keeping with the research of Ayres and Braithwaite who found that regulated parties are more inclined to work cooperatively with regulators at the bottom of the pyramid, but where compliance is not achieved, denunciation through the use of a “big stick” must always be available in the background.
B.C.’s Public Health Act adopts the approach proposed by Verhulst. Sections 105 and 106 are reproduced below:
105 (1) Before imposing a sentence, a sentencing judge may request a joint submission from the offender and the prosecutor setting out any agreement on
(a) the circumstances that should be considered by the sentencing judge as either mitigating or aggravating the offence, and
(b) the penalty to be imposed.
(2) In determining the appropriate sentence, the sentencing judge must consider, in accordance with the regulations, circumstances that aggravate or mitigate the offence.
(3) In determining the appropriate sentence, a sentencing judge must
(a) consider the purposes of sentencing set out in section 106 [purposes of sentencing], and
(b) to give effect to those purposes,
(i) first, consider as a penalty one or more of the orders that may be made under section 107 [alternative penalties], and
(ii) second, consider whether a fine or incarceration under section 108 [fines and incarceration] is also necessary.
Purposes of sentencing
106 (1) In imposing a sentence, a sentencing judge may impose one or more penalties that, in order, achieve the following:
(i) if harm was caused, remedy the harm or compensate a person who remedied or suffered the harm, including the government, or
(ii) if no harm was caused, acknowledge the potential harm or further the regulatory objective underlying the provision that was contravened;
(b) second, if the offence was committed in relation to a regulated activity or other activity that the offender is reasonably likely to continue to engage in, rehabilitate the offender.
(2) In addition to a penalty imposed under subsection (1), a sentencing judge may impose one or more penalties under subsection (3) or (4), or both, unless it would be disproportionate to the offence, given the offender, the nature of the offence and the total of the penalties imposed under this section.
(3) A sentencing judge may impose a penalty for the purpose of achieving general deterrence if the sentencing judge reasonably believes that the additional penalty would have a deterrent effect, including because
(a) the penalty imposed under subsection (1) is inadequate to address the circumstances related to the offence, or
(b) the nature of the penalty may
(i) assist others similarly situated to the offender to avoid committing a similar offence, or
(ii) educate others similarly situated to the offender respecting the seriousness of the offence.
(4) A sentencing judge may impose a penalty for the purpose of punishing the offender if
(a) the offender committed the offence knowingly or deliberately, or was reckless as to the commission of the offence, or
(b) sufficient aggravating circumstances exist that the offender should be punished for the offence.
We are persuaded that a new approach to sentencing is needed that would have general application to all POA offences, unless the offence-creating statute directs that different or additional principles are to apply. We recognize that an offence-creating statute may prescribe a different set of sentencing principles that are specific to further the regulatory objectives, and these must always take precedence over general sentencing principles prescribed in the POA.
We recommend that the general sentencing principles proposed by Verhulst and Libman serve as a model for regulatory offences governed by the POA. However, we do not believe that these principles should be applied in a hierarchical sequence in the manner exemplified by BC’s Public Health Act. Given the range of offences governed by the POA, our concern is that a rigid and systemic application of these principles in every POA case may result in an unnecessary level of complexity and may unduly prolong sentencing hearings. Instead, the judiciary ought to be directed to these sentencing principles and have flexibility in their application so as to best respond to the needs of an individual case and the objectives of the offence-creating statute. We note the criticism of the Criminal Code sentencing principles, which are not set out in a hierarchical manner. However, the newly proposed purpose section in the POA mandates that the POA be applied in a manner that promotes compliance with the offence-creating statute, among other things. Therefore, one can expect this overarching purpose section to result in a reduced reliance on fines as the primary sentencing response, and a greater reliance on principles such as remediation and rehabilitation.
As compared to the current “deterrence and fine” paradigm that has been a hallmark of POA sentencing for at least the past 25 years, the proposed new model is responsive, flexible and is better suited to promote compliance with new regulatory strategies. It would be of general application and most helpful for those offences which offer no sentencing principles, but it would be subject to specific and potentially different sentencing principles where they are expressly stated in the offence-creating statute. The proposed sentencing principles offer guidance to the judiciary so that sentences can be tailored to the different types of offences and offenders, and allows sentences to be more easily rationalized by appellate courts and among cases with similar fact situations.
Some contributors to our consultations expressed concerns about moving away from fines and deterrence as the primary sentencing principle. POA prosecutors advised that, from their experience, fines are the “bottom-line” in controlling conduct of regulated parties. They would disagree with the studies that suggest factors other than fines motivate compliance. They told us that corporations feel the pinch of a substantial fine and watch closely to see how competitors are sentenced at POA prosecutions.
The use of fines as a sentencing tool will still be available and ought to continue to be used for deterrent purposes when the circumstances of a given case justify it. Hefty fines authorized by the offence-creating statute would still be available and should continue to be ordered if they would be most effective in promoting compliance. The only difference with the introduction of sentencing principles is that a justice would now be able to consider other sentencing principles. The result may be costly remediation or rehabilitation orders, which might well impact the offending corporation’s “bottom-line” and competitiveness as much as a fine. Examples include costly environmental clean-ups, or orders to update or improve equipment to higher safety and environmental standards. In addition, the offending corporation may be ordered to pay a fine in addition to these remedial and rehabilitative orders. The new sentencing principles will give the court greater direction and flexibility in crafting an appropriate sentence that will further the legislative objectives and promote compliance.
We do not propose that parties be required to make a joint submission on aggravating or mitigating factors or a recommended sentence. Many unrepresented litigants will not be able to come to agreement on aggravating or mitigating factors, or on an agreed sentence. Instead, we recommend that parties be encouraged to do so when appropriate and that the court consider any such joint submission if made. The practical reality, we suspect, is that joint submissions may never occur in the most routine offences, although there may be cases where it might be valuable and helpful and we do not want to preclude this possibility. Indeed, joint submissions can be immensely helpful when sentencing the more serious offences that involve serious harm to individuals or might otherwise justify a denunciatory sentence. Therefore, we do not see the application of this recommendation as being onerous in comparison to its potential benefits.
It is important to appreciate that introducing sentencing principles is not intended to complicate sentencing or to delay the process arbitrarily. Nor should it be a pro forma exercise that is applied to every offence that is not subject to principles established by an offence-creating statute. The purpose is to make sentencing more consistent and proportionate to the offence and circumstances of the offender and thus make it more effective. We are not proposing that the POA include a hierarchy of remedies that judges feel compelled to follow in order, but rather we are proposing that the POA contain principles that will govern a wider range of remedial options.
Offences under the current Part I of the POA are subject to the principles and remedies, but in most cases it will not be necessary and would be inefficient to consider the application of all the principles or the suitability of the various remedies. Since 80% of Part I offences are Highway Traffic Act offences that are effectively dealt with through fines (and the demerit point system), there is no need to complicate proceedings by considering other options. Nevertheless, there may be some instances where it would be helpful for a judge to have access to more creative dispositions as, for example, for a driver who has accumulated the requisite number of demerit points to lose his or her licence, but requires his or her vehicle for work in order to support his or her family. There are also some offences charged under Part I (for example, under the Occupational Health and Safety Act) that could also be charged under Part III; in these cases, it might be more effective in the long-term to impose a remedial or rehabilitative order that could prevent more serious harm in the future. Therefore, we are recommending that the principles and increased range of remedies apply to all offences, but anticipate that a proper use of the principles and remedies will result in a limited application to Part I offences and more significant application to Part III offences.
The LCO recommends that:
16. The POA be amended to provide a statement of sentencing principles of general application that shall be used by the court as guidelines when sentencing all provincial offences, subject to other or different sentencing principles or provisions prescribed in the offence-creating statute.
17. The statement of sentencing principles should include the following four principles:
(i) Impose a sanction that remedies the violation, to the extent that such a sanction is possible and reasonable (“remediation”);
(ii) If the offender is likely to continue to engage in the regulated activity after sentencing, but the offender’s behaviour must change to prevent future breaches, impose a sanction that promotes the changes necessary to prevent future violations (“rehabilitation”).
(iii) Impose a sanction that promotes change in the behaviour of other persons (e.g., dissuade others from committing the same or similar offence), but only if the court believes that that it could serve a regulatory objective and where the remedial and rehabilitative sanctions are insufficient given the circumstances of the case (“general deterrence”);
(iv) Impose a sanction that denounces and punishes the offender’s behaviour if aggravating circumstances make such a sanction appropriate (“denunciation”).
18. At sentencing hearings, particularly in Part III offences, parties should be encouraged to submit joint submissions on aggravating and mitigating factors as well as the sentence to be imposed.
3. Sentencing Tools
The POA’s current sentencing provisions are too limited to allow courts to properly implement the sentencing principles and purposes recommended in the previous section. Too much of an emphasis is placed on fines, without regard to other sentencing options which inhibit sentences that best promote regulatory objectives. In order for courts “to craft the most appropriate sentence”, it is essential that there be “a wide variety of sentencing options.”, since “courts will not be able to play an effective role in the regulatory cycle unless they are given the sentencing tools with which this may be done.” Most notably, if the court is to implement the sentencing principles recommended in the previous section, it must have the necessary sentencing tools to give effect to them.
It is beyond the scope of this project to canvass all potential sentencing options that might be appropriate for every provincial offence. Instead, our discussion focuses on additional tools that ought to be introduced in the POA that may have application across all regulatory statutes.
The POA allows the court to make a probation order in a proceeding commenced by information, provided the offence is not one of absolute liability. Subsection 72(2) of the POA deems probation orders to contain certain standard conditions and subsection 72(3) allows the court to prescribe four additional types of conditions but only in narrowly prescribed circumstances. These circumstances, in our view, are too restrictive to permit the courts to implement the sentencing principles of remediation and rehabilitation.
First, under clause 72(3)(a), compensation or restitution may be ordered only as a condition in a probation order where it is authorized by an Act. This means that compensation and restitution can be ordered for some regulatory acts in Ontario, but not others. Given the introduction of remediation as a sentencing principle, a sentencing mechanism must be available to give effect to this principle. We note that there are many offences from which no harm results (e.g., many offences brought under Part I); however, this should not preclude the general availability of a remedial sentence for those offences in which harm has occurred. Ontario appears to be lagging in this regard, as general procedural Acts in other provinces provide broad powers to make restitution or remediation orders.
Second, clause 72(3)(b) allows the court to prescribe community service, but only for an offence that is punishable by imprisonment and only where the defendant consents to the order. The rationale for this limitation appears to originate from a view that community service is an intrusion into the liberty interests of the offender, and therefore should only be available as an alternative where imprisonment is a permitted penalty. However, legislation in other provinces permits the imposition of community service and its availability is not subject to the defendant’s consent or the offence being punishable by imprisonment. Also the view that community service is an appropriate alternative only to imprisonment is no longer true. It may be an effective alternative to a fine where an offender would be unable to pay a fine, and where it can “further the offender’s rehabilitation through taking responsibility for the wrongful act, or to acknowledge the offender’s impact on a victim.” While community service requires time that arguably intrudes on the offender’s liberty interests, other probationary terms can similarly create mandatory time obligations (e.g., reporting to a probation officer or educating staff on workplace safety). Moreover, it is less of an intrusion on liberty interests as compared to total incarceration where imprisonment is a permitted penalty under the offence-creating statute. In order to limit the impact on an offender’s liberty interest, we recommend the hours and duration of community service be limited in the POA as is done in other jurisdictions.
And finally, clause 72(3)(c) of the POA permits probation conditions to be imposed relating to the circumstances of the offence and defendant that contributed to the commission of offence in order “to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant”, but only where the conviction is of an offence punishable by imprisonment. Rehabilitation, as a sentencing principle, can apply to all offences. The restriction on offences punishable by imprisonment unduly hampers the court’s ability to promote compliance with regulatory statutes where imprisonment is not a permitted penalty. If we are to allow courts to craft appropriate rehabilitative sentences for all offences, this restriction can no longer be justified and we believe it must be eliminated.
We wish to stress that the availability of probation for all POA offences does not mean that probation ought to become the standard sentencing response for all offences. As noted earlier, fines may well continue to be the most effective, fair and efficient means of promoting compliance for many, if not most, minor offences. However, where the circumstances of a particular case warrant probation with conditions as an effective tool to promote compliance with regulatory objectives relating to a minor offence, it ought to be available to a justice.
Several regulatory statutes provide courts with a wide variety of sentencing powers that permit the court to impose a sanction that is beyond the typical penalty of a fine, probation or imprisonment. Known by many names such as “alternative penalties” and “creative sentencing measures”, a number of them could prove to be immensely helpful in the POA context to help achieve regulatory objectives across a broad spectrum of regulatory regimes.
One example is found in British Columbia’s Public Health Act. Section 107 provides for a large number of orders including the power to order community service for up to three years and to pay compensation for the cost of a preventative or remedial action. It also allows the court to order a corporate defendant to designate a senior official within the corporation as the person responsible for monitoring compliance with the Act or its regulations, or the terms or conditions of any licence or permit held by the corporation under the Act. Another power allows the court to order the defendant to post a bond in an amount the court considers appropriate for ensuring compliance with a prohibition, direction or requirement issued under the alternate penalties section. These orders can be used to further remediation and rehabilitation goals.
A different source of “creative sentence” orders is found in the Fisheries Act. Section 79.2 states that the court can, taking into account the nature of the offence and the circumstances surrounding its commission, make an order containing one or more listed prohibitions, directions or requirements. The directions include compensating the Minister for remedial and preventative actions taken and the posting of a bond to ensure compliance with an order under this section. Further, it permits the court to direct the person to submit to the Minister information respecting the activities of the person that the court considers appropriate.
The Criminal Code allows the court to order restitution and compensation as part of a free standing order or as an optional condition in a probation order to compensate victims of crime. Neither option is currently available under the POA. Provincial offences legislation in other jurisdictions authorize compensation as a sentencing remedy for persons aggrieved due to loss or damage to property caused by the defendant, which may be enforced in civil courts in the event of non-payment. An advantage of a free standing restitution order is that it may be enforced as a civil judgment, whereas restitution as a term of a probation order is enforceable only during the currency of the probation order and after that, only if breach proceedings are initiated. Restitution or compensatory orders are intended to repair harm done to victims or the community and to promote a sense of responsibility in offenders and to have them acknowledge the harm to their victims and the community. They would appear to be a helpful enforcement tool consistent with the recommended sentencing principles. They are also consistent with the principle of efficiency in that they eliminate the necessity of having to bring a separate civil proceeding for restitution on the same set of facts.
Authority to order an embedded auditor would be another useful sentencing tool in the POA. A court would order a government auditor, or a private auditor approved by the court, to be placed within a corporation to monitor compliance for a certain period of time. The corporation would be required to fully cooperate with the auditor, and it would pay his or her salary or fees during the compliance period. The scope of the auditor’s work could be limited to monitoring and reporting on the corporation’s compliance at intervals determined by the court, or the auditor could take on a proactive role in assisting the corporation to develop and implement improved compliance measures. We note, however, that government hiring and procurement practices may present some challenges to the effectiveness of this option, but we nonetheless recommend that it be an available tool.
In our view, many of the above-mentioned alternative sentencing penalties could be used to further the recommended sentencing principles and prove effective in achieving regulatory goals.
Victim Impact Statements
The POA, unlike the Criminal Code, does not codify the right of a victim of an offence to file a victim impact statement. The Criminal Code contains provisions allowing the victim of a crime to file a detailed statement, in a prescribed form, of the harm or loss suffered by the victim as a result of the commission of the offence. The victim also has the right to read the statement into the court. Although certain courts have used victim impact statements in POA proceedings, no clear right to do so exists. Instead there is uncertainty surrounding the authority to permit such statements and who should be able to submit such evidence and in what form (e.g., oral or written submissions).
A victim impact statement can be a valuable tool in POA proceedings. In addition to giving victims a voice in the proceeding, such statements would provide the court with necessary information to permit it to fashion appropriate compensatory or rehabilitative sentences. We were told, anecdotally, that some Aboriginal victims have had difficulty being able to make victim impact statements. While there may be other reasons for this, expressly codifying the authority to use victim impact statements would help promote their use in appropriate cases, regardless of the nature or race of the victim.
We see this tool as being used primarily for more serious provincial offences, as the less serious offences tend not to involve “victims”. However, we do not wish to limit access to victim impact statements only to the more serious proceedings. There may well be instances where the court could benefit from hearing from victims in order to fashion appropriate remedial or rehabilitative sentences. One example may be a neighbourhood plagued by litter or noise arising from a local business. While the littering offence or noise by-law that has been infringed may be seen as a minor offence, the community may have a strong interest in providing the court with its views on the impact that repeated violations have had so that an appropriate sentence may be fashioned. In practice, the presiding justice should retain authority to decide whether or not victim impact statements may be considered by the court after giving due consideration to the circumstances surrounding the offence and any harm caused.
Alternative measures refer to a form of post-charge diversion whereby the Crown withdraws a charge or the court dismisses a charge if the defendant has completed an agreed program of alternative measures. They are distinct from the “alternative penalties” discussed above, which only arise following a conviction and which serve as alternatives to a fine, probation or imprisonment. With alternative measures, there is no conviction. For example, a prosecutor may agree to drop a charge for speeding upon receipt of satisfactory evidence that the defendant has enrolled in and completed a driver safety course. When such programs are used properly, they can support efforts to rehabilitate a defendant while avoiding the time and expense of a trial.
Alternative measures are available under section 712 of the Criminal Code, but they can only be used where they are consistent with the protection of society and if a number of other conditions are met. The section also sets out circumstances where alternate measures are not permitted, restrictions on the use of admissions made by the defendant and rules around subsequent charges.
There is no statutory basis for alternative measures in Ontario, although as of December 2009, we were told that some municipalities are offering such programs. If adopted in the POA context, amendments to the Act may provide for some oversight over these programs to ensure that they are effective and that they are appropriately used. Section 712 of the Criminal Code will provide a great deal of guidance in this regard. Part X of the Canadian Environmental Protection Act might also help in the development of POA provisions. The LCO believes that before existing or new alternative measure programs are implemented, it would be desirable for the provincial government to consult with municipalities to ensure that appropriate administrative structures are in place to support diverting provincial offences to any such programs. Relevant legal and community organizations should also be consulted to ensure any alternative measures are effective in reducing the risk of the defendant committing the offence in the future.
The LCO recommends that:
19. The POA be amended to confer broad authority on the court to make probation orders for all provincial offences in order to give effect to the remedial and rehabilitative sentencing principles. Permissible probationary terms that may be ordered by the court ought to include restitution and such other conditions that the court considers necessary and appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant, regardless of whether or not the offence is punishable by imprisonment. While available for all offences, probation orders should be made for less serious offences only where the circumstances of the case render probation a particularly appropriate sentencing option.
20. The POA be amended to include community service as a possible term of probation where it would achieve remediation for any harm caused, contribute to the rehabilitation of the offender, or serve as an alternative to the payment of a fine where a defendant is unable to pay a fine.
21. The POA be amended to permit alternative penalties to be issued by the court. In particular, authority for free-standing restitution or compensatory orders that may be enforced in civil courts be expressly created, as well as authority to order an embedded auditor to promote compliance with regulatory standards.
22. The POA be amended to expressly permit the use of victim impact statements for offences in which harm has been caused, subject to a residual discretion in the court to decide whether or not to admit them after considering the seriousness of the offence and any harm caused.
23. After consultation with municipalities and legal and community organizations, the Ministry of the Attorney General consider the adoption of alternative measure programs for less serious provincial offences.
4. Sentencing a Corporate (Business) Offender
So far, we have not made a distinction between individuals and corporations when sentencing. In fact, many of our examples have assumed a corporate defendant and that the sentencing purposes and principles would apply equally to individuals and corporations. We believe that this is the correct result even though it may challenge some of the traditional concepts we have about sentencing. Rehabilitation, for example, has traditionally been associated with restoring the morality of an individual, but how do you “cure” a corporation that is not a real person? Since fines and remedial compensation orders are directly related to the “bottom line” and profit-making ability of a corporation and indeed its raison d’être, how can non-monetary sanctions like probation orders be effective? The scope of regulatory activity in which corporations are involved demonstrates the imperative of effective regulatory sanctions, and we revisit research that shows what motivates corporations to comply with regulatory standards. We then examine whether corporation-specific sentencing provisions should be adopted in the POA.
Corporations and other business enterprises have a broad impact in our society. They are “the primary means of conducting business, employing the vast majority of workers, producing most of the economy’s goods and services, and purchasing many goods and services.” We want corporations to engage in these activities, but they may also commit offences. We unfortunately know the tragic consequences that can result to our public welfare when corporations fail to implement safety standards in the workplace, ignore securities regulations for the sake of profit, fail to properly test our water supply or engage in business practices that create environmental disasters. Most corporate wrong-doing is not prohibited by the Criminal Code, but by numerous regulatory statutes governing activity in these fields. It is therefore essential that effective enforcement mechanisms be in place within provincial offence regimes to promote compliance with regulatory standards.
We have discussed how fines can be ineffective in promoting compliance. They can often become a cost of doing business that is passed on to consumers. Corporate structures can be deliberately set up as shells without assets so as to be shielded from paying fines, which further frustrates enforcement of regulatory regimes. While high fines may intimidate some corporations to act lawfully, they generally fail to address the root causes of regulatory non-compliance and they miss an opportunity to effect positive change in the corporation’s conduct. In fact, empirical research has shown that punishment can often inhibit compliance with regulatory standards; it insults the regulated actors and demotivates them. It fosters individual rebellion and the potential for a business subculture of resistance to regulation. On the other hand, factors that motivate compliance include desire to maintain reputation, a desire to do what is right, fidelity to an identity as a law-abiding citizen, and living up to a self-concept of social responsibility. Sentencing orders that respond to these motivators may be much more effective in addressing the causes of non-compliance and in promoting future compliance.
Subsection 732.1(3.1) of the Criminal Code recognizes the principles of remediation and rehabilitation when issuing probation orders against an “organization”, which includes corporate and non-corporate entities. Clause (a) of section 732.1(3.1) allows for restitution to an injured person for any harm caused. Clauses (b) through (e) establish monitoring mechanisms to reduce the likelihood of the organization engaging in unlawful conduct in the future. Clause (f) permits the court to order that the organization notify the public of the offence and sentence. This type of order recognizes that “the public and customers may play an important role in influencing and monitoring corporate behaviour.” This is also consistent with studies that show regulated parties do not wish to lose a positive reputation and that they seek to do what is right and socially responsible. Subsection 732.1(3.1) reads:
(3.1) The court may prescribe, as additional conditions of a probation order made in respect of an organization, that the offender do one or more of the following:
(a) make restitution to a person for any loss or damage that they suffered as a result of the offence;
(b) establish policies, standards and procedures to reduce the likelihood of the organization committing a subsequent offence;
(c) communicate those policies, standards and procedures to its representatives;
(d) report to the court on the implementation of those policies, standards and procedures;
(e) identify the senior officer who is responsible for compliance with those policies, standards and procedures;
(f) provide, in the manner specified by the court, the following information to the public, namely,
(i) the offence of which the organization was convicted,
(ii) the sentence imposed by the court, and
(iii) any measures that the organization is taking — including any policies, standards and procedures established under paragraph (b) — to reduce the likelihood of it committing a subsequent offence; and
(g) comply with any other reasonable conditions that the court considers desirable to prevent the organization from committing subsequent offences or to remedy the harm caused by the offence.
We recommend the POA adopt a similar provision to expressly give 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. Such authority is necessary if the recommended sentencing purposes and principles are to be implemented by the court. In addition, the POA should permit a general power on the court to impose other creative terms, as found in clause 732.1(3.1)(g) of the Criminal Code, that will promote compliance with the offence-creating statute’s objectives.
We note that many businesses that run afoul of regulatory standards may be operated by an individual, partnership or firm with a registered business name, but the business is not a corporate entity. For these business enterprises, the above noted probation terms could be equally effective in promoting compliance and we see no reason why they should not apply simply because the business has chosen not to incorporate. This is likely the reason why the Criminal Code provisions apply to an “organization” which term is defined very broadly to include corporate and unincorporated bodies, as well as other associations of people. We would not adopt the broad definition of organization in the Criminal Code, given its potentially significant scope. We do, however, recommend that probationary terms similar to those found in subsection 732.1(3.1) be available to the court when sentencing a corporation and any other business enterprise, whether incorporated or not.
The next issue is whether the POA should list factors that the court must consider when seeking to punish a corporation or other business enterprise after it has considered the principles of remediation, rehabilitation and deterrence. Clause 106(4)(b) of British Columbia’s Public Health Act states that a sentencing judge may impose a penalty for the purpose of punishing if “sufficient aggravating circumstances exist that the offender should be punished for the offence.” The Act, however, does not list a set of aggravating factors. In comparison, section 718.21 of the Criminal Code lists considerations that a court must consider when sentencing an organization, but the list includes both aggravating factors (e.g., the degree of planning involved in carrying out the offence) and mitigating factors (e.g., measures taken to reduce the likelihood of it committing a subsequent offence). Therefore, it does not transplant well into our proposed POA sentencing model.
In our view, there is good reason to prescribe a non-exclusive list of factors that might justify a punitive or denunciatory penalty. First, it will put corporations and other business enterprises on notice as to the kind of conduct that may result in a punitive penalty. It will also reinforce the authority of the court to render a punitive response in the appropriate case. Finally, it will respond to increasing expectations from the public that corporations and other businesses be held accountable for egregious conduct, with an assurance that they will be punished where aggravating factors have been established.
At this juncture, we do not recommend what the non-exhaustive list of aggravating factors should include, only that a list be developed. In discussing the type of aggravating factors that may merit a punitive response, Verhulst gives, as examples, the offender’s failure to exercise due diligence “if it would have been simple or inexpensive to do so, or if the risks of harm were particularly high,” or the party’s “dismissive or obstructive attitude towards regulatory officials”, especially “if attempts have been made to suppress the offence or re-direct blame.” Reference may also be had to section 718.21 of the Criminal Code, which, for example, includes as a factor attempts made by a corporation to conceal or convert assets to avoid paying a fine or making restitution. Case law on sentencing provincial offences will provide further guidance on other aggravating factors that merit a punitive response.
The LCO recommends that:
24. The POA be amended to confer power on the court to make a probation order against a corporation or other business enterprise, whether incorporated or not, with conditions modeled on subsection 732.1(3.1) of the Criminal Code regarding probation conditions for an organization.
25. The Ministry of the Attorney General, after consultation with the judiciary, prosecutors, defence bar and paralegals, develop a non-exhaustive list of aggravating factors to be included within the POA for the court to consider when ordering a punitive or denunciatory penalty against a corporation or other business enterprise. Such factors may include degree of planning in the commission of the offence, efforts to deliberately conceal the offence from detection by regulatory officials, or if compliance could have been achieved at little or no cost.
F. Bail Reform
1. POA Bail Provisions Generally
Relatively few people are arrested for the commission of provincial offences. Even fewer are held or released on bail under the POA each year. In 2009, of the approximate 2.1 million provincial offence charges that were received by the court under Parts I and III, there were only 4,009 bail hearings (or 0.002% of all charges received). At those hearings, bail was denied in 426 cases involving Part III offences. Bail was allowed in all 18 Part I bail hearings. Although infrequent, the principles of fundamental justice demand that “even one arrest requires some mechanism for release.” We turn to a summary of the arrest and bail provisions in the POA followed by an analysis of two areas of potential bail reform: (1) the grounds for detaining someone and (2) the conditions that a justice is authorized to impose when granting bail.
There is no general power of arrest under the POA; a person may only be arrested before trial if the offence-creating statute specifically authorizes arrest. Unless otherwise provided for in the offence-creating statute, the arrest and bail provisions of the POA apply. In general, a defendant charged will be released by the arresting officer, the officer in charge or by a justice at a bail hearing within 24 hours. Section 150 sets out the grounds for detention by a justice. There is a clear presumption in this section “that a defendant who is arrested should be released pending the disposition of the charge, unless the detention is necessary to ensure the defendant’s attendance in court.” The onus rests on the prosecution to show cause why an arrested defendant should remain in custody pending his or her trial. Conditions for release are also prescribed, but the list is limited and the conditions must be considered sequentially. Powers to review and appeal detention decisions are found in sections 151 and 152 of the POA.
2. Grounds for Detention
Subsection 150(4) authorizes a justice to order detention in custody to ensure the appearance of an accused in court, but it does not authorize a justice to order detention for the protection or safety of the public. It reads:
150(4) Order for detention — Where the prosecutor shows cause why the detention of the defendant in custody is justified to ensure his or her appearance in court, the justice shall order the defendant to be detained in custody until he or she is dealt with according to law.
This appears to have been by design. In 1980, Drinkwalter and Ewart, two drafters of the POA, wrote:
The release provisions of the Criminal Code must be sufficiently stringent to deal with persons who are or may be dangerous to the public peace and to the public interest . . . However, persons apprehended for provincial offences are in a different situation. Their arrest will probably have been made initially for one of the ancient, historical reasons of public interest, including the need to properly identify the accused, to secure or preserve evidence, or to prevent the continuation of the offence or similar offences. However, these concerns last only a short while; thereafter the only issue is the likelihood of the person appearing for his trial.
The absence of a public safety ground for detention may result in absurdities. In R. v. Banka (1999), for instance, the court was forced to grapple with the question of bail for a defendant charged with a provincial offence which, if repeated, would jeopardize the protection and safety of the public. Mr. Banka had been charged with three breaches of a restraining order under section 46 of the Family Law Act, which is invoked where a person has “reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.” Mr. Banka had recently been convicted of a similar offence. The court found that there was a substantial likelihood that, if released, Mr. Banka would reoffend. Under these circumstances, the justice determined that to follow subsection 150(4) of the POA would
…cause an unacceptable and absurd consequence … it would bring the administration of justice into disrepute if this court was to turn a blind eye to the protection and prevention aspects of this case and order release, solely due to an obvious technical legislative deficiency.
The court ordered detention based on its “inherent jurisdiction . . . [to] remedy legislative drafting errors or gaps which lead to consequences which cannot have been the intent of the Legislature.”
The absence of a public safety ground for detention in the POA also leads to a lack of uniformity within the Act. It is peculiar that clause 149(1)(iii) authorizes a police officer to detain a defendant to prevent the continuation or repetition or the commission of another offence but that a justice is not authorized to order the same under subsection 150(4).
Similar to the POA, the application of the law of bail to criminal offences originally depended on the probability that an accused would appear in court. While this was once the sole ground for which an accused could be detained, other grounds of detention were eventually recognized. Subsection 515(10) of the Criminal Code contains three grounds for detention: to ensure the attendance of the accused in court, for the protection or safety of the public, or to maintain confidence in the administration of justice. It states:
515(10) Justification for detention in custody — For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
Complete correspondence between the POA and the Criminal Code may be contrary to the spirit of the POA, which was designed – at least in part – “to wrest provincial offences from the clutches of the Criminal Code’s procedure and its concomitant mind-set.” However, as the Banka case demonstrates, the protection of the public might well be a necessary ground to deny bail in POA matters in certain circumstances.
With respect to the third ground in the Criminal Code, recent cases have considered whether the objective of maintaining confidence in the administration of justice is a justifiable ground for refusing bail. In the 2002 decision of R v. Hall, the Supreme Court struck out part of the wording of clause 515(10)(c) but concluded that this ground is neither “superfluous [n]or unjustified,” as public confidence in the judicial system is necessary to the well-functioning of both the bail system and the judicial system as a whole. Although the Hall decision remains authoritative, there have been variances in the courts’ application of the reformed clause 515(10)(c). While some justices have emphasized that the provision should only be used in rare instances, others have given it a more expansive interpretation. An accused need not have committed a particular crime for clause 515(10)(c) to apply.
While maintaining confidence in the administration of justice will in some instances be a valid ground for denying bail in the criminal context, it is difficult to conceive of instances that would justify its application in the context of provincial offences. Moreover, this proposition did not receive much support in the LCO’s consultations. The application of clause 515(10)(c) entails the consideration of four stated factors including the gravity of the offence, the use of a firearm and whether the accused will serve a lengthy sentence. These grounds point to the differences between provincial and criminal offences, and to the limits of using the Criminal Code as a comparator for this particular ground of detention. In our view, “maintaining confidence in the administration of justice” as a ground for denying bail should not be extended to the POA.
A foundational principle of all modern criminal law reform is the principle of restraint. Fairness dictates that pre-trial detention should only be imposed where necessary. Depriving an accused of his or her liberty prior to conviction is one of the bluntest instruments the state can use. Pre-trial remand can be harsher than detention after sentencing. Moreover, systems of bail have tended to discriminate and disadvantage people on the basis of race, ethnicity and income. Most importantly, the presumption of innocence and the right not to be denied reasonable bail are values entrenched in sections 11(d) and 11(e) of the Charter. For these reasons, we prefer to limit the instances in which bail may be denied to those that are truly necessary in light of the nature and seriousness of provincial offences, as compared to criminal offences.
However, as Banka demonstrates, there may be unlawful conduct prohibited by provincial statutes that can create real public safety risks if repeated. In those instances, it would be absurd to ignore the public interest and maintain the presumption in favour of release. Where bail is denied to protect the public safety, care must be exercised. Case law has circumscribed what is and is not “necessary” for the public safety. Detention should not be ordered where it would be merely convenient or advantageous; a risk of reoffending that will harm the public safety must be real. There must be “sufficient evidence of a clear and present danger to justify interference with the liberty of the accused” before guilt or innocence has been determined. These cases suggest that any grounds for pre-trial detention within the POA must be limited. They should be used sparingly and only where necessary to ensure attendance in court or for the protection or safety of the public. Consideration may be given to prescribing within the POA the factors a court shall consider when deciding whether or not to refuse bail under any newly proposed “public safety” ground.
The LCO recommends that:
3. Bail Conditions
The ability to impose bail conditions can be very important when deciding whether to grant bail. As one author states, “[t]he balance of the decision whether to remand a person in custody or on bail may well rest on the ability of the court to impose meaningful conditions on bail.” However, the authority to impose bail conditions in the POA is very limited.
Clause 150(2)(a) of the POA empowers a justice to impose bail conditions generally, but only to “ensure his or her appearance in court.” Clause 150(2)(b) and (c) cover offences that can lead to twelve or more months in prison, or ones where the defendant is not ordinarily resident in Ontario. In both situations, the court may impose the condition of recognizance with sureties or depositing security with the court. Again, these conditions may only be imposed to ensure the defendant’s appearance in court.
R. v. Desroches, a 1986 Ontario District Court decision, confirmed that the power to impose bail conditions is limited. A man was charged with an offence contrary to the Trespass to Property Act. A justice of the peace ordered that the defendant not enter certain premises as a term of the bail order. On appeal, the court confirmed that the only authority to impose bail conditions is to ensure the defendant’s appearance in court. The court said, “[h]owever desirable it may be in certain circumstances to order that a person stay away from certain property, to impose such a condition is clearly beyond the powers given to the justice by [clause 150(2)(a)].”
The Criminal Code can be used as a basis for comparison with the POA’s treatment of bail conditions. Similar to the POA, the Criminal Code approaches bail conditions with caution. Bail orders must account for the fact that they are made previous to a finding of guilt. As such, checks must exist against conditions that are inappropriately intrusive. Subsection 515(4) of the Criminal Code authorizes a justice to select from five key types of bail conditions and permits other reasonable conditions to be imposed where appropriate.
515(4) Conditions authorized — The justice may direct as conditions . . . that the accused shall do any one or more of the following things as specified in the order:
(a) report at times to be stated in the order to a peace officer or other person designated in the order;
(b) remain within a territorial jurisdiction specified in the order;
(c) notify the peace officer or other person designated under paragraph (a) of any change in his address or his employment or occupation;
(d) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the justice considers necessary;
(e) where the accused is the holder of a passport, deposit his passport as specified in the order; [and]
. . .
(f) comply with such other reasonable conditions specified in the order as the justice considers desirable.
Subsection 515(4.1) authorizes a justice to restrict the use or possession of hazardous possessions such as firearms, explosives and other restricted weapons. Beyond the conditions explicitly set out in this subsection, non-enumerated types of conditions include monetary conditions, curfews, orders to seek medical treatment, control drug and alcohol consumption and carry identification or release documents at all times. Examples of bail conditions less frequently used include not possessing a cell phone and not using a computer or attending football (soccer) matches.
The Charter and case law place limits on bail conditions. Section 11(e) requires that any bail conditions imposed be reasonable. Cases prior to the Charter considered when a bail condition would be reasonable. For one, bail conditions must relate to the offence with which the accused has been charged or to the context under which the accused was charged with the offence. Conditions must be “operable” or not so onerous as to effectively amount to a detention order. They must also not be so vague or overbroad as to lack certainty. Finally, conditions should relate to the grounds for release and detention specified by the legislature. In other words, they must be related to the purposes of bail and should not be used as a form of summary punishment to show the defendant that the court “means business”.
When a defendant is charged with both criminal and provincial offences simultaneously, POA bail conditions become more complicated to impose. Under these circumstances, bail must be considered and ordered under two separate forms of release. This gives rise to jurisdictional and other problems. In this regard, the Law Reform Commission of Canada has stated that “efficiency must also be promoted, especially where to do so would not seriously jeopardize fairness and, in fact, would help promote it.” To this end, the LCO recommends that one level of court have complete competence and authority to determine judicial interim release or detention for both types of offences. Alternatively, at a minimum, any additional conditions imposed on bail for provincial offences must also comply with those already ordered for criminal offences.
The LCO heard from many who were supportive of having more reasonable bail conditions available to a justice where necessary. Some of the specific conditions proposed include refraining from committing the same or similar offence, prohibitions on driving, non-communication orders stipulating that a defendant refrain from contacting witnesses or victims to the offence, and non-association orders stipulating that a defendant limit contact with a co-defendant. The imposition of prohibitions relating to the operation of a motor vehicle is a “delicate matter” and the courts have on occasion viewed these types of conditions as “punitive measure[s].” They should only be imposed in limited circumstances, such as where a defendant awaiting trial has a history of drunk, stunt or suspended driving. Non-communication and non-association orders should be used very sparingly as they may temporarily terminate contact with family members and impair legitimate trial preparation. Caution must also be exercised to ensure that the conditions relate to the circumstances under which bail may be granted or denied and that they do not resemble a probation order.
A further concern is the limited ability of the court to impose bail conditions pending appeal. Section 110 of the POA states that someone who has been convicted and incarcerated may be released on bail pending appeal “upon any of the conditions set out in sub-section 150(2)”; in other words, the same limited conditions available for post-arrest bail. When someone has been found guilty of a serious provincial offence and has been incarcerated, there is a stronger case to impose public safety and other conditions on bail. These may include conditions that the offender not commit the same or similar offence or attend at certain locations.
At the same time, the overall utility of bail conditions has been questioned. There is no denying that enforcement of a number of types of conditions can be problematic. There is also the risk that bail conditions can become subjected to overuse or “institutionalised” as some British researchers have documented. Permitting the court to impose additional reasonable bail conditions that are directly related to the charge and the circumstances under which bail may be granted or denied can result in effective alternatives to pre-trial custody. These are significant concerns, and we recommend that these issues be the subject of further review. We further recommend that guidelines ought to issue to assist in the application of any new bail conditions that are created to help promote their proper use, and to protect against their overuse. Finally, how any new bail conditions are being applied ought to be further studied within five years after they are introduced.
The LCO recommends that:
27. The Ministry of the Attorney General, in consultation with the judiciary, municipal prosecutors, defence bar, paralegals, and relevant legal and community organizations:
a. review and consider any further bail conditions that ought to be added to the POA;
b. prior to the introduction of any new bail conditions, develop judicial guidelines to promote their use by the court in a manner that is consistent with the principles outlined in the POA Reform Framework; and
c. within five years after any new bail conditions are implemented, review the cases in which they are being used to ensure they are not being abused or overused in a manner that unduly infringes a defendant’s pre-trial liberties.
4. Bail Procedural Reforms
We were also advised that bail procedure within the POA has not kept up with recent bail procedural amendments in the Criminal Code. For example, a justice may make an order prohibiting the publication of evidence at a criminal bail hearing. There is also a section that prohibits the defendant from being cross-examined on the circumstances of the offence which is the subject of the bail hearing. These may well be worthwhile amendments to the POA.
A detailed review of POA bail procedure is not the focus of this Report. However, the criminal bail procedural reforms give pause to consider whether similar or other process reforms should be adopted for POA proceedings. This does not mean the POA ought to necessarily adopt the Criminal Code bail procedure; differences between the nature and procedure that governs criminal versus regulatory offences may dictate that different procedures apply. Indeed, the application of the principles under the POA Reform Framework may dictate a different bail procedure. A review of POA bail procedure ought to be considered by the new body vested with authority to codify provincial offence procedure.
The LCO recommends that:
28. The Ministry of the Attorney General or the body responsible for developing the newly updated POA procedural code consider the current POA bail procedure and assess whether it would benefit from process amendments after considering Criminal Code bail amendments and any other relevant considerations, including the principles under the POA Reform Framework. Any new bail procedure ought to be codified in the new POA procedural code.
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