A. Background to the Modernization of the Provincial Offences Act Project
This Interim Report provides an analytical framework for modernizing and reforming the Provincial Offences Act (POA). In drafting this report, the Law Commission of Ontario (LCO) seeks not only to examine specific issues raised during our research and consultations, but also to make structural improvements and create a mechanism whereby future procedural improvements can be more easily achieved. In this respect, we hope this Report and the POA reform framework that we propose will serve as a valuable tool to respond to evolutionary developments on the provincial offences landscape in the years to come.
When the POA came into force 30 years ago it was hailed as “one of the most sweeping legislative reforms of procedures governing the prosecution of offences since the enactment of the Criminal Code in 1892”. Since that time the provincial offences environment in Canada has changed considerably, yet there have only been modest amendments to the POA. Major developments include the adoption of the Canadian Charter of Rights and Freedoms (the Charter), amendments to the Criminal Code, significantly increased maximum penalties for certain provincial offences the increased use of administrative monetary penalties (AMPS), the emergence of licensed paralegals and increased use of technology.
The impact of the POA on the lives of Ontarians is significant, not merely because of the vast number of offences to which the POA applies or the number of proceedings commenced each year, but because of the nature of the regulatory offences governed by its process. Regulatory law dominates many aspects of our daily living. John Swaigan has described the impact of regulatory law, or public welfare law, on the lives of Canadians as follows:
Public welfare laws pervade the lives of ordinary people. Almost every aspect of our activities is regulated from parking the car to fixing the roof. When people think about “the law” they often think of crimes such as theft, sexual assault and murder. But lawyers are well aware that the laws most likely to affect ordinary people, and to be broken by them, are not criminal laws, but the myriad of public welfare laws that are necessary to regulate and reduce the risk we impose on each other through activities as diverse as driving a car, operating a school, spraying a herbicide or constructing a nuclear power plant. These regulatory laws protect consumers, children in day-care centres, the elderly in nursing homes and hospitals, pedestrians and motorists, workers in factories, and the natural environment that sustains human and other life forms.
Consistent with the LCO’s mandate, this Interim Report examines the current framework of the POA and considers its efficacy in achieving the legislative objectives of the statutes that create the provincial offence. Clarity of process and accessibility by the average Ontarian are also key considerations given the significant impact provincial offences can have on individual and corporate defendants. Finally, the sheer volume of provincial offences demands that any procedure governing these matters be both fair and efficient. In a sense, our recommendations seek to return the POA to its roots, as legislation that responds to the needs of those it most affects, with additional enhancements reflecting more contemporary thought in regulatory law.
The original proposal to review and revise the POA was received in December 2007 from Kenneth Jull, a lawyer with much expertise in provincial offences and risk management. A number of organizations and individuals involved in POA matters also supported a review at this time. It is against this backdrop that on April 2, 2009 the LCO’s Board of Governors approved the Modernization of the Provincial Offences Act project (the “Project”).
The LCO engaged in an initial review of literature and informal discussions with many organizations and individuals prior to issuing a Consultation Paper on November 16, 2009 that set out a number of issues initially raised with the LCO. It was sent to just over 90 individuals and organizations and invited comments on the issues raised as well as the identification of further issues that had not already been canvassed. The LCO also met or spoke with many people and organizations including academics, paralegal organizations, members of the bench, Aboriginal organizations, members of the defence bar, civil servants, including prosecutors, court administrators, municipal organizations and other municipal representatives.
The LCO also established an Advisory Group for the Project whose members are listed at Appendix A. The group met regularly from December 2009 onwards and meetings or telephone calls with individual members were common. The diverse views they brought forward were extremely valuable to the LCO in its efforts to make recommendations that took into account a broad array of perspectives. The Advisory Group also contributed to the Project by facilitating discussions between their connections and the LCO.
This Interim Report is being circulated broadly to the judiciary, lawyers, paralegals, government officials, and the public for consultation and comment. Based on feedback received and additional research subsequently undertaken, a Final Report will issue following approval by the LCO’s Board of Governors.
B. A Word on the Scope of the Project
This Interim Report does not purport to deal with all of the issues that could possibly be addressed in the modernization and reform of the POA. Entire law reform reports could be drafted on several of the discrete Parts of the Act, and a substantive analysis of each is well beyond the scope of this Project. Moreover, a very technical review of many of the current POA sections was recently undertaken in 2009 by the Ministry of the Attorney General’s Provincial Offences Act Streamlining Review. With its Municipal Partners, the Ministry agreed to explore ways to streamline POA proceedings. A Working Group was established to consider proposals to simplify procedures, reduce demand for court resources, enhance fine enforcement and improve service to the public. Input from others on these issues was sought through the distribution of a consultation paper. The Working Group made over 60 specific and detailed recommendations to the Attorney General, and many have already been implemented by the Good Government Act, 2009 which made amendments to the POA and Municipal Act, 2001. Therefore, to avoid a duplication of efforts or the potential for competing recommendations, we were of the view that this Report not focus on detailed procedural reforms to the POA.
Instead, this Interim Report considers structural improvements, the establishment of an overall framework for an improved provincial offences system, alternative monetary penalties, sentencing and other specific recommendations that were not the subject of the detailed Provincial Offences Act Streamlining Review. Our objective was to establish a new framework for the POA that will bring greater clarity of process to and improved accessibility by the average Ontarian, while promoting a simpler, fair and efficient procedure for the adjudication of provincial offences. In Chapter III, we describe a framework for the modernization and reform of the POA (the POA Reform Framework) and then in subsequent chapters address a handful of specific issues that were brought to the LCO’s attention. A major objective of the POA Reform Framework is to serve as a set of guiding principles to tackle additional reform areas that are not dealt with in this Report. The LCO believes the POA Reform Framework and the issue-specific recommendations significantly contribute to building a roadmap for POA reform that will modernize it today and make it a responsive and functional statutory instrument for the future.
There are two important issues that are not dealt with 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 idea 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.
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, so it was not possible to confirm this perception with statistics. However, the LCO relied upon anecdotal information on 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 reveals 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 government, 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 ha