The following recommendations fall into one of three categories: (a) structural reforms to the Provincial Offences Act system, including the transition to administrative monetary penalties for certain offences; (b) procedural reforms to be considered within any newly structured Provincial Offences Act or new POA rules or regulation, to be developed by the Ministry of the Attorney General or body responsible for the newly updated POA procedural code; and (c) future law reform initiatives given the limited scope of this project.
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.
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.
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.
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.
10. Within three years, after the Ministry of the Attorney General has consulted with municipalities and an appropriate IT infrastructure has been developed to report defaulted AMPs, the POA be amended to remove the prosecution of Part II parking infractions in the Ontario Court of Justice.
11. Within three years, each municipality (or jointly with other municipalities or Municipal Partners) adopt and implement a by-law for administrative penalties to enforce by-laws relating to the parking, standing or stopping of vehicles, including by-laws relating to disabled parking.
12. Amend O. Reg. 333/07 under the Municipal Act (and O. Reg. 611/06 under the City of Toronto Act, 2006) to permit administrative penalties for the enforcement of by-laws establishing systems of disabled parking.
13. Increase the monetary limit for administrative penalties in section 6 of O. Reg 333/07 (and section 6 of O. Reg. 611/06) from $100 to $500, or such other amount as is necessary to permit enforcement of disabled parking by-laws through AMPS.
14. Each municipality and relevant government Ministries, including the Ministry of Transportation, immediately assess operational challenges to the successful implementation of an AMPS regime for parking enforcement (such as any required IT infrastructure), and put in place a plan to resolve those challenges within three years. Consultation with municipalities who have already implemented an AMP system may assist in overcoming any operational challenges.
15. The Ontario government conduct a review of minor provincial offences most typically commenced as Part I proceedings, and in particular, minor Highway Traffic Act offences currently prosecuted under Part I, to assess which offences may be better enforced under an AMPS regime. This review should consider, among other legal, policy and operational considerations:
a. the most common offences currently prosecuted under Part I, their volume, and associated court and judicial resources required to dispose of these offences as compared to an AMPS regime;
b. the effectiveness of AMP regimes for other minor offences;
c. the nature of the offence (i.e., whether it is a strict or absolute liability offence), and whether due diligence defences could or should be maintained in an AMPS regime through appropriate guidelines to the administrative hearing officer;
d. the proposed penalty under an AMPS regime and whether it would be punitive or give rise to the potential of imprisonment;
e. whether the potential circumstances giving rise to the offence could potentially lead to allegations of infringements of Charter or other rights, and if so, how might those allegations be dealt with under an AMPS regime;
f. operational issues that would hamper the ability to transition the offence into an AMPS regime;
g. the impact on the Victims’ Justice Fund; and
h. the merits of maintaining two separate and distinct systems for the resolution of the same provincial offences currently prosecuted under Part I (e.g., an AMPS and a POA court-based system).
16. The POA be amended to provide a statement of sentencing principles of general application that shall be used by the court as guidelines when sentencing all provincial offences, subject to other or different sentencing principles or provisions prescribed in the offence-creating statute.
17. The statement of sentencing principles should include the following four principles:
(i) Impose a sanction that remedies the violation, to the extent that such a sanction is possible and reasonable (“remediation”);
(ii) If the offender is likely to continue to engage in the regulated activity after sentencing, but the offender’s behaviour must change to prevent future breaches, impose a sanction that promotes the changes necessary to prevent future violations (“rehabilitation”).
(iii) Impose a sanction that promotes change in the behaviour of other persons (e.g., dissuade others from committing the same or similar offence), but only if the court believes that that it could serve a regulatory objective and where the remedial and rehabilitative sanctions are insufficient given the circumstances of the case (“general deterrence”);
(iv) Impose a sanction that denounces and punishes the offender’s behaviour if aggravating circumstances make such a sanction appropriate (“denunciation”).
18. At sentencing hearings, particularly in Part III offences, parties should be encouraged to submit joint submissions on aggravating and mitigating factors as well as the sentence to be imposed.
19. The POA be amended to confer broad authority on the court to make probation orders for all provincial offences in order to give effect to the remedial and rehabilitative sentencing principles. Permissible probationary terms that may be ordered by the court ought to include restitution and such other conditions that the court considers necessary and appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant, regardless of whether or not the offence is punishable by imprisonment. While available for all offences, probation orders should be made for less serious offences only where the circumstances of the case render probation a particularly appropriate sentencing option.
20. The POA be amended to include community service as a possible term of probation where it would achieve remediation for any harm caused, contribute to the rehabilitation of the offender, or serve as an alternative to the payment of a fine where a defendant is unable to pay a fine.
21. The POA be amended to permit alternative penalties to be issued by the court. In particular, authority for free-standing restitution or compensatory orders that may be enforced in civil courts be expressly created, as well as authority to order an embedded auditor to promote compliance with regulatory standards.
22. The POA be amended to expressly permit the use of victim impact statements for offences in which harm has been caused, subject to a residual discretion in the court to decide whether or not to admit them after considering the seriousness of the offence and any harm caused.
23. After consultation with municipalities and legal and community organizations, the Ministry of the Attorney General consider the adoption of alternative measure programs for less serious provincial offences.
24. The POA be amended to confer power on the court to make a probation order against a corporation or other business enterprise, whether incorporated or not, with conditions modeled on section 732.1(3.1) of the Criminal Code regarding probation conditions for an organization.
25. The Ministry of the Attorney General, after consultation with the judiciary, prosecutors, defence bar and paralegals, develop a non-exhaustive list of aggravating factors to be included within the POA for the court to consider when ordering a punitive or denunciatory penalty against a corpor