There are three issues that are not dealt with in depth in this Report on which we make some general comments.
First, the Consultation Paper raised the issue of reforming the treatment of young persons charged with provincial offences. The federal Youth Criminal Justice Act creates a separate criminal justice system for young people based on the concept that youths should be treated differently from both children and adults. This legislation is more comprehensive than Part VI of the POA which governs young people, and provides for a greater number of distinctions between the treatment of adults and younger people. Nova Scotia and the Northwest Territories have also enacted separate legislation to deal with young persons charged with provincial offences. Whether Ontario should adopt a similar approach is a significant and important policy issue that warrants separate consideration. The LCO recommends that this matter be the subject of further review in consultation with groups representing young persons.
Second, concerns were raised about the POA’s application in relation to Aboriginal people. As an example, the LCO heard that many Aboriginal people are being convicted without a trial after being deemed not to dispute the charge, or after a trial in their absence, pursuant to sections 9 and 54 of the POA, respectively. The Ministry of the Attorney General does not collect data on the nature of a defendant and, in particular, whether or not a defendant identifies as being Aboriginal; therefore, it was not possible to confirm this perception with statistics. However, the LCO relied upon anecdotal information about enforcement agencies that are believed to have higher than average Aboriginal populations who are charged with POA offences. We then extracted data on the number of charges brought by those enforcement agencies that resulted in a conviction from a failure to respond to an offence notice or a failure to attend at trial. Data reveal 43% of charges in 2007 and 2008, and 42% of charges in 2009 brought by these enforcement agencies, resulted in a conviction for a failure to respond or failure to attend at trial.
To assess whether this is a disproportionately high percentage, we compared data on the same disposition outcomes in regions of the province where these enforcement agencies are located, namely the North East and North West Court Services regions. We did this to assess whether or not geographic issues had an impact on the failure to respond to POA charges. In the North East region, 27% of charges in both 2007 and 2008, and 26% of charges in 2009, resulted in a conviction from a failure to respond or failure to attend at trial. In the North West region, the percentages were 34% in both of 2007 and 2008, and 33% in 2009. Provincial data from all court regions similarly revealed a much lower percentage of charges resulting in convictions from a failure to respond or failure to attend trial; 29% in 2007, 30% in 2008 and 28% in 2009.
While not conclusive, it does lend some statistical support to the concern raised that a disproportionate number of Aboriginal people are being convicted without a trial. Relying upon the above data, Aboriginal people may tend to be convicted from a failure to respond to a charge or failure to appear at trial anywhere between 8 to 15% higher than non-Aboriginals.
The LCO is not aware of options that have been presented to improve the manner in which Aboriginal people interact with Ontario’s provincial offences system. This is in contrast to the criminal justice system where the Aboriginal Justice Strategy, funded by the Ontario and federal governments, seeks to “allow local communities to offer culturally appropriate ways to help Aboriginal people deal with the criminal justice system.” The centerpiece of the strategy is Community Based Justice programs, which have various objectives that could potentially apply in the POA context. These objectives include the reduction in the rates of crime and incarceration among Aboriginal people, allowing Aboriginal people to assume greater responsibility for the administration of justice in their communities, fostering improved responsiveness, fairness and inclusiveness, and improving the effectiveness of the justice system to better meet the needs of Aboriginal people.
This Report does not evaluate the Aboriginal Justice Strategy or attempt to determine whether aspects of it might apply to our system of provincial offences. Rather, we note that while efforts to address the needs of Aboriginal Peoples in the criminal justice system have been made, no similar attempt appears to have been made in relation to provincial offences. We conclude that this issue is sufficiently significant to warrant further study and review, and recommend that it be undertaken by the provincial government in consultation with Aboriginal communities and the federal government.
A further potential reform option was presented to the LCO very close to the completion of the Interim Report in the project. We table it briefly as an issue worthy of further review and consideration.
First Nation (FN) communities are not considered a “municipality” as this term is defined under the Municipal Act. Therefore, they have no authority to establish an AMP system or collect AMPS to enforce by-laws on FN communities. Under the federal Indian Act, FN communities have authority to establish by-laws, governing a wide variety of matters, including the regulation of traffic. However, we were told that jurisdictional issues and an ineffective prosecutorial process render this by-law making authority useless in virtually all FN communities.
At first glance, it seems to be a potentially worthwhile reform option since there would be no reason to treat the enforcement of traffic by-laws by a FN communities any differently from those of a municipality. However, we have not had a sufficient opportunity to consult or fully assess the legal or policy implications of this reform option, which we recommend be performed by the Ontario government in consultation with FN communities in Ontario.
The LCO recommends that:
45. The Ontario government undertake a review of the treatment of young persons charged with provincial offences under the POA, in consultation with youth groups, and that such review take into consideration the unique consideration given to young persons under the federal Youth Criminal Justice Act and legislation in other jurisdictions that create unique procedures for young persons charged with provincial offences.
46. The Ontario government, in consultation with Aboriginal communities and the federal government, undertake a review of the application of the POA in relation to Aboriginal peoples, and in particular, consider strategies to allow local communities to offer culturally appropriate ways to help Aboriginal peoplse better respond to the provincial offences justice system.
47. The Ontario government, in consultation with First Nations communities, consider the legal and policy implications of expanding the definition of “municipality” within the Municipal Act to permit by-laws enacted by a First Nation band under the federal Indian Act to be enforced through an AMPS.
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