* Citations and the full text of the recommendations are not included in this Executive Summary. We direct the reader to the Interim Report for citations and the full text of recommendations made.

 

——————————————————————————–

[1] Provincial Offences Act, RSO 1990, c P 33 [hereafter POA]. For a detailed description of those provisions or for supplementary reading on the POA, see Sheilagh Stewart, Stewart on Provincial Offences Procedure in Ontario, 2nd ed (Salt Spring Island, BC: Earlscourt Legal Press Inc, 2005). Be aware that there have been amendments to the POA since the publication of this edition of the book.

[2] Douglas Drinkwalter & Douglas Ewart, Ontario Provincial Offences Procedure (Toronto: The Carswell Company Limited, 1980) at iii.

[3] Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[4] Criminal Code, RSC 1985, c C-46.

[5] Rick Libman, Libman on Regulatory Offences, looseleaf (Salt Spring Island: BC Earlscourt Legal Press Inc, 2002).

[6] Todd Archibald, Kenneth Jull & Kent Roach, Regulatory and Corporate Liability: From Due Diligence to Risk Management, looseleaf (Aurora, Ont: Canada Law Book, 2008) at 15-1; David Potts, “Municipal Systems of Administrative Penalties” in Creating and Enforcing Municipal By-Laws (Toronto: Canadian Institute, 2008). In his paper, David Potts identifies 21 existing or proposed administrative penalty systems for the enforcement of Ontario statutes.

[7] John Swaigen, Regulatory Offences in Canada: Liability and Defences (Toronto: Carswell, 1992) at xxxv.

[8] Ontario, Working Group for Provincial Offences Act Streamlining Review, Provincial Offences

Act Streamlining Review: Consultation Paper (Toronto: Working Group for POA Streamlining, 29

January 2009), online: Law Society of Upper Canada

<www.lsuc.on.ca/media/apr0109_poa_streamlining_consultation.pdf>.

[9] The Good Government Act, 2009, SO 2009, c 33, Schedule 4 (Bill 212) made numerous amendments to the Provincial Offences Act. 

[10] Youth Criminal Justice Act, SC 2002, c 1.

[11] POA, note 1, s 9 and 54.

[12] Based on information provided by Chief of Police John Domm, Rama Police Services on March 19 2010, enforcement agencies perceived to have a high proportion of provincial offence charges laid against aboriginal people are: OPP Lac Seul First Nations, Treaty 3 Police-Kenora, Anishinabeck Police Service, OPP Wikwemikong First Nation, OPP UCCM, Thunder Bay City and Thunder Bay Police Force.

[13] Ministry of the Attorney General, Court Services Division, ICON Database (statistics), Number of Charges Disposed by Disposition Outcome, Ontario Court of Justice, Provincial Offences Act, Parts I & III, Values by Select Charging Agencies Combined, 2007 – 2009  [April 1 2010, unpublished].

[14] Ministry of the Attorney General, Court Services Division, ICON Database (statistics), Number of Charges Disposed by Disposition Outcome, Ontario Court of Justice, Provincial Offences Act, Parts I & III, Values by Select Regions, 2007 – 2009  [March 30 2010, unpublished].

[15] Government of Ontario, Backgrounder, “Aboriginal Community Justice Programs” (January 26, 2009), online: Ontario Ministry of the Attorney General  <www.attorneygeneral.jus.gov.on.ca/english/news/2009/20092601-acj-bg.asp>.

[16] Department of Justice Canada, “The Aboriginal Justice Strategy” (February 24, 2010), online: Department of Justice <www.justice.gc.ca/eng/pi/ajs-sja/index.html>.

[17] Although opportunities to take advantage of the existing programs for Aboriginals should be examined. The same is true of any consideration of the young person provisions of the POA.

[18] The LCO is indebted to the Honourable Mr. Justice Rick Libman and Kenneth Jull for identifying a number of these trends in conversations with the LCO.

[19] R v Wholesale Travel Group Inc, [1991] 3 SCR 154, 1991 CarswellOnt 117 at para 150 (SCC) (WLeC).

[20] For a detailed review of the Charter’s application to the POA see Libman, note 5 at c 10.

[21] Lavallee v. Alberta (Securities Commission), [2010] AJ No 144 (CA) [hereafter Lavallee].

[22] An Act to Amend the Criminal Code (Sentencing) and Other Acts in Consequence Thereof, SC 1995, c 22 amending RSC 1985, c C-46.

[23] An Act to amend the Criminal Code (Criminal Liability of Organizations), SC 2003, c 21 amending RSC 1985, c C-46.

[24] Public Health Act, SBC 2008, c 28.

[25] R. v. Sault Ste. Marie (City), 1978 CanLII 11, 1978 CarswellOnt 24, (SCC) (WLeC).

[26] Libman, note 5 at 1-5 to 1-6.

[27] Securities Act, RSO 1990, c S5, s 122.

[28] Environmental Protection Act, RSO 1990, c E. 19, s 187 [hereafter EPA].

[29] Todd Archibald, Kenneth Jull & Kent Roach, Regulatory and Corporate Liability: From Due Diligence to Risk Management, looseleaf (Aurora, Ont: Canada Law Book, 2008) at INT-4.

[30] Archibald, Jull & Roach, note 6 at 15-1 (the authors note that the administrative system is thought to be less expensive than regulatory trials).

[31] Municipal Act, 2001, SO 2001, c 25 at s 102.1.

[32] Potts, note 6. In his paper, David Potts identifies 21 existing or proposed administrative penalty systems for the enforcement of Ontario statutes. A search of e-laws using “administrative /3 penalty and administrative /3 penalties results in a listing of 21 statutes and some statutes, such as the Environmental Protection Act, may set up an AMP system and call it something different. The Environmental Protection Act creates a monetary penalty that it calls an environmental penalty.

[33] City of Vaughan, by-law No 156-2009, A By-Law to Further Amend Parking By-Law 1-96, as amended, to provide for a system of administrative penalties and administrative fees, (30 June 2009) [hereafter Vaughan AMP By-law].

[34] POA, note 1, ss 162 and 165.

[35] Law Society Act, RSO 1990, c L 8.

[36] By-Law 4, s 6(2), made under s 62 of the Law Society Act, RSO 1990, c L 8.

[37] Ontario, Paralegal Rules of Conduct, online: Law Society of Upper Canada <http://www.lsuc.on.ca/with.aspx?id=1072>.

[38] Law Reform Commission of Ontario, Report on the Administration of Courts (Toronto: Law Reform Commission of Ontario, 1973) Part I at 17.

[39] Ministry of the Attorney General, Ontario Court Services Division, ICON Database (statistics) [unpublished]. The “date of first hearing request” is the date that the notice of intention to appear in court or the date on the summons is entered into the database. These numbers exclude prepaid fines and fail to respond.

[40] Conversation with Barry Randell, Director, Court Services with the City of Toronto (April 2010).

[41] The Provincial Offences Act, SO 1979, c 4.

[42] POA, note 1, s 1(1) definition of “offence”.  See also note 56 on the application of the POA to federal contraventions.

[43] Law Reform Commission of Canada, Studies in Strict Liability (Ottawa: Government of Canada, 1974) at 2.

[44] According to the Ministry of the Attorney General of Ontario, Court Services Division, ICON Database (statistics) [unpublished], note 122, over 2 million charges were disposed of in each of 2007, 2008 and 2009. These numbers do not include tickets issued under Part II of the POA which governs the procedure for parking infractions.

[45] Summary Convictions Act, RSO 1970, c 450.

[46] Drinkwalter & Ewart, note 2 at iii.

[47] Law Reform Commission of Ontario, note 38, Part 1 at 17.

[48] Attorney General’s Statement, published in the Provincial Offences Procedure, Ministry of the Attorney General (April, 1978) at 1.

[49] Drinkwalter & Ewart, note 2 at iv.

[50] POA, note 1, s 2(1).

[51] Drinkwalter & Ewart, note 2 at iv- v.

[52] Murray D. Segal & Rick Libman, The 2010 Annotated Ontario Provincial Offences Act (Toronto: Thomson Canada Limited, 2010) at 1.

[53] R v Jamieson (1981), 64 CCC (2d) 550 (Ont CA) at 552, [1981] OJ No 1937 at para 5 (QL).

[54] The Ministry of the Attorney General does not collect data on the number of self represented litigants in POA proceedings. Although, there is a strongly held perception by those with whom the LCO consulted that the vast majority are self-represented.

[55] POA, note 1, s 1(1).

[56] The POA, with the exception of subsections 12(1), 17(5) and 18.6(5), applies to the prosecution of contraventions under the Contraventions Act, SC, 1992. c 47. Section 65.1 of the Contraventions Act provides the authority for the Application of Provincial Laws Regulations SOR/96-312, which states that the laws of the province referred to in the schedule apply to the contraventions designated under the Contraventions Regulations. Section 1 of Part 1 of Schedule 1 states that the POA and any regulations made under the POA and the rules of court made under the Courts of Justice Act of Ontario apply, with such modifications as are necessary, to contraventions alleged to have been committed on or after August 1, 1996, in Ontario or within the territorial jurisdiction of the courts of Ontario. Collectively, the offences to which the POA applies will be referred to as regulatory or public welfare offences.

[57] POA, note 1, s 1(1).

[58] Good Government Act, 2009, note 9, made numerous amendments to the Provincial Offences Act. At the time of writing, many of those amendments have not yet been proclaimed and accordingly, they are not discussed in detail below.

[59] Stewart, note 1 at 2.

[60] Highway Traffic Act, RSO 1990, c H.8, s 33(1) [hereafter HTA].

[61] Liquor Licence Act, RSO 1990, c L.19, s 31(2).

[62] Section 12 of the POA states that imprisonment is not available for a proceeding commenced under Part I.  Furthermore, while subsection 69(14) does allow for the incarceration of a person who does not pay a fine in limited circumstances (i.e. where person is able to pay the fine and incarcertation would not be contrary to the public interest), it is not truly available in Ontario.  Subsection 165(3) of the POA states that the enforcement provisions found in subsections 69(6) to 69(21) do not apply where a municipality has entered into a POA transfer agreement with the Attorney General.  Since the entire province is now covered by agreement, these enforcement tools, including imprisonment for unpaid fines, are not used or available.  See POA, note 1.

[63] POA, note 1, s 4.

[64] Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, O Reg 200, as amended by s 6. The set fine is intended to reflect the average penalty for the offence charged and is somewhat above the minimum penalty for the offence, if any, and applicable to the average defendant in average circumstances. The Chief Justice fixes the amount since sentencing is a judicial act. See Stewart, note 1 at 4.

[65] POA, note 1, ss 8(1), 8(2).

[66] P