A. History of the Provincial Offences Act
The POA was first enacted in 1979.[41] It governs much of the process for the prosecution and enforcement of provincial and federal regulatory offences and municipal by-laws.[42] In 1974, the Law 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.[43] 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.[44] Those charges are laid in diverse areas such as traffic, regulation of controlled substances, environment, and occupational health and safety.
Prior to the POA coming into force, the procedure for enforcing and prosecuting regulatory offences in Ontario was set out in the Summary Convictions Act.[45] 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.”[46] 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.[47]
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.[48]
There was a clear intention to create an entirely new “custom-built procedural framework”[49] 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.[50]
Under the POA, distinct streams were created – one for minor offences (Part I) and the other 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.[51] 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.”[52] It “was intended to establish a speedy, efficient and convenient method of dealing with… for the most part, minor offences”.[53]
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.[54] We must also consider more serious provincial offences that come with serious 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.
B. 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”.[55] In addition, the POA applies to the prosecution of contraventions defined under the federal Contraventions Act.[56] “Court” under the Act 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.[57] Below is a snapshot overview of some of the POA’s key parts.
The Act contains three distinct parts that govern the commencement of proceedings.[58]
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,[59] and it is used for less serious offences, such as a failure to carry a driver’s licence while driving[60] or the consumption of alcohol in a public place.[61] 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.[62] 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.[63] The offe