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 agreeme