A. History of the Provincial Offences Act
The POA was first enacted in 1979. It governs much of the process for the prosecution and enforcement of provincial and federal regulatory offences and municipal by-laws. 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. 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. 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. 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.” 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.
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.
There was a clear intention to create an entirely new “custom-built procedural framework” 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.
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. 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.” It “was intended to establish a speedy, efficient and convenient method of dealing with… for the most part, minor offences”.
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. 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”. In addition, the POA applies to the prosecution of contraventions defined under the federal Contraventions Act. “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. 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.
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, and it is used for less serious offences, such as a failure to carry a driver’s licence while driving or the consumption of alcohol in a public place. 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. 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. The offence notice may indicate a set fine for the offence. Set fines are fixed by the Chief Justice of the Ontario Court of Justice.
A defendant who receives an offence notice may do one of the following:
□ If the defendant does not wish to dispute the charge, pay the set fine including any applicable charge or surcharge fixed by regulation. Payment of the fine constitutes a plea of guilty, a conviction of the defendant and imposition of a fine in the amount of a set fine.
□ If the defendant does not wish to dispute the charge but wants to make “representations” as to penalty, including a reduced fine, or seek an extension of time to pay, the defendant may appear before a justice at a time and date specified in the offence notice.
□ If the defendant wishes to enter a plea and have a trial of the matter, the defendant must give notice of intention to appear in court.
If the defendant takes none of the above steps within 15 days of service of the offence notice, the defendant will be deemed not to dispute the charge, and if the certificate of offence is complete and regular on its face, the justice will enter a conviction in the defendant’s absence. Where a defendant wishes to enter a plea and have a trial, the clerk of the court will send notice of the date and time of trial, and the process governing trials and sentencing found in Part IV of the Act applies.
We recommend that consideration be given to moving the prosecution of minor Part I offences out of the POA, and suggest that some might be more effectively enforced through a system of administrative monetary penalties.
Part II – Proceeding Commenced by Parking Infraction Notice
Part II sets out the procedure for commencing a parking infraction proceeding. It is very similar to the Part I process, except that Part II applies exclusively to parking offences which are primarily created by municipal by-laws. An enforcement officer will serve a parking infraction notice either personally or by affixing it to a conspicuous place on the vehicle. Set fines for the parking infraction will be indicated on the parking infraction notice and the defendant must, within 15 days, choose to pay the fine or request a trial. The amount of a set fine for a by-law parking infraction may be established by the Chief Justice of the Ontario Court of Justice (or this authority may be delegated to the Regional Senior Justice).
Where a defendant requests a trial, a proceeding may be commenced by filing the certificate of parking infraction with the court along with proof of ownership of the vehicle by the defendant. A defendant who does not pay the set fine or request a trial may be convicted in default, although provision is made to “re-open” a conviction in circumstances where a defendant establishes that he did not receive the parking infraction notice. Where a municipality has entered into an agreement with the Attorney General, the municipality will collect and retain fines under Part II.
We recommend that the ability to prosecute parking offences in court be removed from the POA. Instead each municipality (or Municipal Partner) would establish a system of administrative monetary penalties to enforce parking by-laws.
Part III – Proceeding Commenced by Information
The procedure in Part III is for offences that must be brought before a justice for resolution; they cannot be resolved through the payment of a set fine. The decision whether to prosecute under Part I or Part III often rests with the police officer or provincial offences officer. That decision will depend upon the nature of the offence and the public interest that may demand higher penalties. For example, offences under the Environmental Protection Act that carry potential fines of up to $50,000 on a first conviction and $100,000 on subsequent convictions would be brought under Part III.
The decision to charge under Part III may also depend on the circumstances or consequences of the commission of the offence. For example, an employer may be charged under the Occupational Health and Safety Act for a failure to provide its employees with appropriate protective devices and served with a Part I offence notice. However, if the failure to provide such protective devices resulted in serious injury or death to an employee, the employer may be charged under the Part III procedure.
For Part III proceedings, a provincial offences officer (which is defined as including a police officer) may serve a summons on a defendant and then subsequently attend before a justice to swear an information; or the information may be sworn before the justice with service of the summons occurring afterwards. In addition to a provincial offences officer, any person may lay an information that alleges the offence under oath before a justice. The justice may issue a summons directed at the defendant setting out briefly the offences in respect of which the defendant has been charged and requiring the defendant to appear in court on a specified date and time. Instead of a summons to compel the defendant’s appearance in court, the justice may issue an arrest warrant for the defendant where authorized by statute and where the justice is satisfied on reasonable and probable grounds that it is necessary in the public interest to do so. Service of a “ticket” or offence notice does not commence a Part III proceeding; all Part III proceedings are commenced by swearing of the information before a justice. In these respects, the procedure for commencing a Part III proceeding is more akin to commencing a criminal proceeding.
With respect to sentencing, the $1,000 fine maximum applicable to Part I offences does not apply under Part III, and imprisonment is a sentencing option.
Part IV – Trial and Sentencing
Part IV of the Act covers the conduct of a trial and sentencing in POA proceedings. The sections relating to the conduct of a trial are set out in sections 29 to 55, and those relating to sentencing are found in sections 56 to 75. The trial provisions apply to all trials, regardless of whether the proceeding was commenced under Parts I, II or III. They address such matters as venue, authority of the Attorney General to stay a proceeding, issuance of summons to witnesses or the arrest of a witness who fails to appear, taking of pleas, pre-trial conferences, evidence and when it may be presented by way of a certificate, adjournments, and the authority to convict where a defendant does not appear.
The remainder of Part IV details the powers of the court when sentencing. Certain sentencing powers are limited to Part III proceedings, such as directing the preparation of a pre-sentence report and issuing a probation order. Where the statute that creates the offence authorizes imprisonment as a penalty, the court may consider the time the person convicted already spent in custody, and the imposition of a fine in lieu of imprisonment. There is no general authority within the POA to order imprisonment as a sentence; such authority must exist in the offence-creating statute. Upon conviction, a defendant is liable to pay court costs as prescribed by regulation and a surcharge when a fine is imposed in respect of a Part I or Part III offence. Fines are due and payable within 15 days after they are imposed.
When a fine is in default, it may be enforced as a civil judgment by filing a certificate in either the Small Claims Court or Superior Court of Justice, which shall be deemed to be an order of that court for the purposes of enforcement. Other fine enforcement tools include a suspension of or refusal to renew a permit, license, registration or privilege where an Act authorizes the suspension or refusal to renew.
The POA states that a justice may issue an arrest warrant when a fine is in default, but only where other methods of collecting the fine have been tried and have failed, or where they would not appear to be likely to result in payment within a reasonable period of time. A justice may also order a term of imprisonment (i.e. warrant of committal) for unpaid fines where incarceration would not be contrary to the public interest. In the case of a person unable to pay a fine, a justice may grant an extension of time, establish a schedule of payments, or in exceptional circumstances, reduce the fine. We note, however, that these more severe fine enforcement provisions (e.g., to issue a warrant or order imprisonment for non payment of a fine) are not truly in force since section 165(3) of the POA states that they do not apply where municipalities have entered into POA transfer agreements with the Province. Transfer agreements have been established throughout Ontario, so these enforcement tools are not truly available. There may be a case to remove these enforcement tools from the POA altogether, although there may be offences prosecuted by the province involving offenders who flagrantly refuse to pay fines even though they are able to do so. These situations may offer a policy rationale to retain them.
Finally, a fine options program, authorized by the Act and established by regulation, permits the payment of fines by means of credit for work performed, although no such program is currently in effect.
Below we recommend that different trial procedures be adopted proportionate to the nature and complexity of the offence (i.e., different trial processes for Part I and Part III offences). We also recommend the adoption of sentencing principles and an expanded toolkit of sentencing tools to better promote compliance with regulatory objectives.
Part V – General Provisions
Part V of the POA is entitled “General Provisions” and it applies to all types of proceedings under the Act. It includes provisions respecting limitation periods for the commencement of proceedings, a definition of parties to an offence and those who counsel another person to be party to an offence, common law defences, and the authority for a witness, defendant, prosecutor and interpreter to participate in a proceeding electronically by way of video, audio or telephone conference. One of the few offences created by the POA is found in Part V, namely, the offence of contempt of court.
Part VI – Young Persons
Part VI applies to young persons, defined as being between the ages of 12 and 16, who are alleged to have committed provincial offences. It includes special provisions with respect to initiating Part I proceedings (i.e., by way of summons rather than offence notice), additional sentencing options and processes for young persons, and a prohibition against publishing the identity of a young person who has committed or is alleged to have committed an offence. As noted in the introduction, we recommend that this Part of the POA be the subject of a separate review.
Parts VII – Appeals and Review
Part VII contains provisions dealing with appeals and review. Certain provisions in this Part apply to all appeals. However, the remaining provisions are separated between appeals from orders under Parts III, and appeals from orders under Parts I and II. In addition, there are separate rules of procedure that apply to appeals of Part III matters and appeals of Parts I and II matters.
We propose modest amendments to these sections to remedy an apparent anomaly about the power to award costs by an appellate court.
Part VIII – Arrest, Bail and Search Warrants
The arrest provisions in Part VIII describe the authority to arrest a person with or without a warrant and the use of force.
The sections on bail speak to when police officers are to release a person after arrest, and if not released, the authority of the “officer in charge” to release the person. If the defendant is not released by the officer in charge, the person is to be brought before a justice as soon as is practicable but in any event within 24 hours. A justice may order the conditional release of the defendant or that the defendant remain in custody. Other provisions speak to the liability of those released on a recognizance to appear, the liability of a surety, and the consequences of a default of recognizance.
We make recommendations as to the circumstances under which bail may be denied and suggest a review of the conditions upon which bail may be granted.
The search warrant sections cover the authority of a justice to issue a search warrant and the circumstances under which a search warrant may be issued by telewarrant without an appearance before a justice. Further sections define the duty of a person who carries out a search warrant, orders a justice may make regarding things seized, and the procedure to follow when a document seized is subject to a claim of solicitor-client privilege.
We recommend that the search warrant provisions be redrafted to account for searches of information from electronic sources, and we also propose that the power to issue a production order be considered as an alternative to issuing a search warrant. We further propose that paralegal-client privilege be considered as a further ground to protect documents that may be seized.
Part IX – Orders under Statutes
Part IX of the POA has only one section. Section 161 states that the POA applies where another Act permits the making of an order but does not provide a procedure.
Part X – Agreements with Municipalities
Finally, Part X of the Act allows the Attorney General and a municipality to enter into an agreement with respect to a specific area that authorizes the municipality to perform courts administration and court support functions. When such an agreement is in force, municipalities have the power to collect all fines under Parts I, II and III and to enforce their payment. Throughout this Report, we recommend that municipalities (or Municipal Partners) be actively involved in POA reform, given the significant role they play in POA prosecutions, courts administration and fine enforcement.
In summary, the POA provides a single procedural code for the prosecution of all provincial offences. There are key differences with respect to how Part I, II, and III proceedings are commenced (i.e., offence notice or parking infraction notice is used to commence Part I and II proceedings, respectively, and the swearing of an information before a justice commences a Part III proceeding). Another key difference is with respect to sentencing. There is a maximum fine of $1,000 for Part I offences and imprisonment is not a permitted penalty, but these restrictions do not apply to Part III proceedings. Generally, and unless the statute states otherwise, the procedure on trial, arrest, bail and other processes apply equally to all Parts I, II and III proceedings.
Rules and Regulations applicable to POA Proceedings
In addition to the Act, there are several rules and regulations that apply to POA proceedings created under the POA or the Courts of Justice Act. Seven regulations created under the POA affect POA proceedings:
RRO 1990, Reg 945
Costs – Prescribes the court costs that the defendant is liable to pay upon conviction.
Electronic Documents – Prescribes the standards for the completion, signing and filing of electronic documents.
Fee for Late Payment of Fines – Prescribes fee for late payment of fines.
RRO 1990, Reg. 948
Fine Option Program – Prescribes the framework of the Fine Option Program and how it is to be administered (although no such programs are currently in effect).
RRO 1990, Reg. 949
Parking Infractions – Prescribes the forms, allowances to municipalities, and certain enforcement process for Part II (parking infraction) proceedings.
RRO 1990, Reg. 950
Proceedings Commenced by Certificate of Offence – Prescribes the forms and notices for Part I (Certificate of Offence) proceedings.
O. Reg. 161/00
Victim Fine Surcharges – Prescribes the victim fine surcharges applicable when a fine is imposed in a Part I or Part III proceeding.
In addition, the Courts of Justice Act confers on the Criminal Rules Committee, subject to the approval of the Attorney General, the authority to make rules relating to the practice and procedure of POA matters, including forms. There are four different sets of rules established by regulation under the Courts of Justice Act that apply to POA proceedings and appeals, briefly described as follows:
RRO 1990, Reg. 200
Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings – Prescribes various procedural matters such as the calculation of time, filings, delivery of notices, certificates and other documents, and the prescribed forms to be used.
O. Reg. 721/94
Rules of the Court of Appeal in Appeals under the Provincial Offences Act – These rules govern appeals to the Court of Appeal, including inmate appeals.
O. Reg. 722/94
Rules of the Ontario Court (Provincial Division) in Appeals under Section 135 of the Provincial Offences Act – These rules govern appeals by a defendant, prosecutor or the Attorney General from an acquittal, conviction or sentence in a Part I or II matter that is appealed to the Ontario Court of Justice.
O. Reg. 723/94
Rules of the Ontario Court (General Division) and the Ontario Court (Provincial Division) in appeals under section 116 of the Provincial Offences Act – These rules govern appeals of Part III matters to either the Superior Court of Justice or the Ontario Court of Justice.
C. Volume and Nature of Provincial Offences in Ontario
To give some context to the nature of POA proceedings, we review statistics on the volume and most common types of provincial offences disposed of by the Ontario Court of Justice, and provide a brief overview of regulatory offences that are governed by the POA.
Volume and Most Common Provincial Offences
Judges and justices of the peace of the Ontario Court of Justice have jurisdiction to hear all POA offences, although justices of the peace preside over almost all provincial offence matters that require adjudication.
In 2009, of the 2.1 million Part I and Part III charges received by the court, 1.9 million (or 92%) were Part I offences and 170,000 (or 8%) were Part III offences. Of the Part I proceedings, 1.6 million (or 81%) were offences under the Highway Traffic Act or its regulations. Data from 2007 and 2008 reveal a similar volume and proportion of POA offences each year.
In 2007, 2008 and 2009, the three most common Part I offences disposed by the court arose from charges under the Highway Traffic Act (approximately 80% each year), the Compulsory Auto Insurance Act (approximately 6% each year), and municipal by-laws (approximately 4% each year). Interestingly, the three most common Part III offences disposed by the court in the same years arose from charges under the same authority: Highway Traffic Act (approximately 58% each year), the Compulsory Auto Insurance Act (approximately 14% each year), and municipal by-laws (approximately 5% each year).
Provincial data on the number of Part II parking infractions issued are not available but we know that in 2009 in Toronto alone, 2.8 million parking tickets were issued and 300,535 (10.75%) defendants requested a trial. Data from select Ontario municipalities reveal a high volume of parking infractions that were issued in 2009: City of Ottawa issued 343,719 with 5,614 (2%) trial requests, and the City of Brampton issued 89,285 with 4,004 (4%) trial requests.
Overview of Types of Provincial Offences
Numerous provincial statutes regulate the conduct of individuals and industry. Where breaches of those regulations occur, the governing statute typically creates a corresponding offence to promote compliance with the regulatory standard. Key areas of regulatory law in Ontario include:
1. Motor Vehicle Regulation
The Highway Traffic Act (HTA) regulates the conduct of drivers on Ontario roads. It may be one of the most well known regulatory statutes within the province, creating numerous offences including speeding, careless driving, failure to wear a safety belt, failure to follow the instructions on a road sign, and failure to carry one’s license while driving a motor vehicle. In some instances, the penalty for offences under the HTA can be significant. For example, motorists can incur a maximum fine of $10,000 or 6 months imprisonment for stunt driving, and a maximum fine of $50,000 if a wheel detaches from a commercial vehicle.
The Compulsory Automobile Insurance Act also creates an offence for failure to have insurance while operating a motor vehicle and it carries a significant minimum fine of $5,000 on a first conviction, and $10,000 on a subsequent conviction.
Municipal by-laws also prescribe various parking, “no stopping”, and certain other motor vehicle related offences that are enforced through the POA.
2. Occupational Health and Safety Regulation
The Occupational Health and Safety Act (OHSA) imposes duties on both workers and employers with respect to equipment, material and protective devices to ensure that our places of work are safe. The duties imposed by the OHSA on workers include wearing the clothing and equipment specified by their employers, and reporting any defects with such clothing or equipment. Workers are also required to report to their employer any contraventions of the OHSA of which they are aware. The duties imposed on employers include developing and implementing a health and safety program, and formulating a policy regarding workplace violence and harassment.
The OHSA creates offences for a failure to comply with provisions in the Act punishable with maximum penalties of $25,000 or 12 months imprisonment for persons, and a $500,000 maximum fine for corporations.
Some charges can be significant. For example, numerous charges have been laid against an employer who is alleged to have failed to provide proper training and equipment to migrant workers who were killed while performing balcony repairs to a building in Toronto in December of 2009. The 61 charges are reported to carry up to $17 million in fines in total.
3. Environmental Protection Regulation
A particularly current and important area of provincial regulation is environmental protection. The Environmental Protection Act (EPA), Clean Water Act, 2006 (“CWA”), and Pesticides Act (PA) are just some examples of provincial legislation that create obligations to protect the environment with offences established for breaches of those statutes.
The EPA regulates the actions of persons in charge of pollutants, creating offences in areas such as spillage. A person in charge of a pollutant must develop a plan to reduce the risk of spillage and to respond to its occurrence. The EPA also prohibits littering, imposing a fine up to $1,000 on a first time offence and up to $2,000 on a second time offence.
The CWA establishes a number of obligations, such as a requirement that a person with authority under the CWA who becomes aware of a water drinking hazard provide notice to the Ministry of the Environment. Under the CWA, it is an offence to continue engaging in an activity that endangers a water supply.
The PA imposes obligations on individuals who have released pesticides into their environment outside of an ordinary course of events, such that injury to the environment, animals or persons is likely to occur.
4. Regulation of Controlled Substances
Provincial legislation also regulates the use of controlled substances, such as liquor and tobacco. The Liquor Licence Act (LLA) and the Smoke-Free Ontario Act (SFOA) are two examples that affect numerous individuals and businesses in Ontario and they create offences for breaches of their provisions.
The LLA makes it a regulatory offence to be intoxicated in a public place or to carry an opened container of alcohol in a motor vehicle. Individuals must be licensed in order to sell alcohol. Persons who are convicted of a regulatory offence under the LLA can be subject to a maximum fine of $100,000, imprisonment for a year, or both. Corporations convicted under the LLA can be subject to a maximum fine of $250,000.
The SFOA makes it a regulatory offence to sell tobacco to persons under the age of 19, or to display tobacco products in a place where such products are sold. Corporations engaged in the manufacture, sale or distribution of tobacco products can be charged a maximum of $100,000 for contravening provisions under the statute.
5. General Public Order and Safety regulation
Numerous statutes regulate matters of public order and safety. The Trespass to Property Act creates an offence where a person enters premises to which entry is prohibited by the Act. The Family Law Act permits a court to make a restraining order against a person’s former spouse where that person has reason to fear for his or her safety.
Part VII of the Fire Protection and Prevention Act, 1997 creates several offences, such as violating a provision of a fire code. The Food Safety and Quality Act, 2001 regulates, among other things, the production, processing and manufacturing of food for consumption and it establishes offences for contraventions of the Act. Under this statute, orders can be made to prevent or eliminate any food safety risk.
Christopher’s Law (Sex Offender Registry), 2000 imposes certain reporting requirements on a person convicted of a “sex offence” and where a person fails to comply with the Act, he or she is guilty of an offence punishable by a fine or imprisonment.  The Safe Streets Act, 1999 creates offences for soliciting in certain public locations and disposing of dangerous things in an outdoor public place. A provision under this statute makes it an offence to solicit a person in a vehicle on a roadway.
6. Consumer Protection
The Consumer Protection Act, 2002 (CPA) applies to consumer transactions in Ontario. The CPA prohibits representations to consumers that are false or misleading. It lists a number of prohibited representations, such as specifying that a certain repair is necessary when it is not, or that a price advantage exists when it does not. The CPA also governs consumer transactions that take place over the internet. It imposes an obligation on suppliers to provide consumers with a written copy of any agreement they have entered into. The CPA also enables consumers to cancel an agreement made over the internet under prescribed circumstances.
The Consumer Reporting Act, 1990 regulates the gathering of information of a company’s consumer base. It requires a consumer agency to correct information where a consumer has reported to the agency that there is an error in the information kept in his or her file. A director or an officer of a corporation who is convicted of an offence under this statute may be liable to a maximum fine of $35,000, one year of imprisonment, or both. The maximum fine that can be imposed on a corporation is of $100,000.
The preceding snapshot of regulatory offences provides a glimpse of the range of offences that could be brought under the POA’s procedure. They differ dramatically not only in subject-matter, but also in gravity and in the potential penalties upon conviction. A provincial offences officer may choose to use the Part III process which would allow for a more severe penalty as authorized under the offence-creating statute, but excluding the manner in which the proceeding is commenced, the POA makes virtually no other distinction as to the manner in which this broad range of offences are determined by the court.
D. Distinguishing Between Regulatory Offences and True Crimes – The Need for a Provincial Offences Procedural Code
Despite attempts in case law and academic articles to draw a clear line between regulatory offences and true crimes, one has not emerged in practice. The distinction is relevant in at least three respects: (1) for criminal offences, the prosecution must prove the existence of mens rea (mental intent), which onus does not exist for regulatory offences unless the statute prescribes otherwise; (2) the extent of Charter procedural protections may differ depending upon whether the offence is regulatory or a true crime; and (3) the purposes of sentencing (and actual sentences) differ depending upon whether the offence is criminal or regulatory.
We summarize the arguments that distinguish a regulatory offence from a true crime to offer perspective on the objectives of a POA procedural framework, and indeed, the continued need for a POA separate from the former Criminal Code’s summary conviction procedure. An understanding of regulatory offences informs the POA Reform Framework discussed in the next chapter, and our discussion on alternative monetary penalties, sentencing, and other POA procedural matters.
In the 1970’s, the Law Reform Commission of Canada (LRCC) examined regulatory law in a series of influential working papers and reports. It viewed regulatory offences as fundamentally different from criminal offences. In a working paper released in 1974, it distinguished between the two as follows:
What we conclude is that in our criminal law there is a broad distinction which can’t be pressed too far but which rests on an underlying reality. On the one hand there exists a small group of really serious crimes like murder, robbery and rape – crimes of great antiquity and just the sort of crimes that we should expect to find in any criminal law. . . .
By contrast there exists a much larger group of lesser offences like illegal parking, misleading advertising, selling adulterated foods – offences of much more recent origin. These are offences that were never known to common law and never gained entry into the Criminal Code.
The LRCC argued that criminal offences are prohibited acts that are revolting to the moral sentiments of society whereas regulatory offences are merely prohibited. It set out three further differences:
First, crimes contravene fundamental rules, while offences contravene useful, but not fundamental ones. Murder, for example, contravenes a basic rule essential to the very existence of and continuance of any human society – the rule restricting violence and killing. Illegal parking violates a different kind of rule, one which is by no means essential to society, useful though it may be.
Secondly, crimes are wrongs of greater generality: they are wrongs that any person as a person could commit. Offences are more specialized: they are wrongs that we commit when playing certain special roles or when engaging in certain specialized activities. Murder and stealing, for example, are wrongs done by men simply as men. Illegal parking, unlawful sale of liquor and fishing out of season are wrongs done by men as motorists, as merchants or as fishermen. Such specialized offences we expect to find, not in criminal codes or books on criminal law, but in the specialized statutes and books on these particular topics.
But thirdly, crimes are far more obvious wrongs. Murder and robbery seem plainly wrong: they involve direct, immediate and clearly apparent harm to identifiable victims, and they are done with manifestly wrong intention. Offences are less clearly wrong: the harm involved is less direct, is collective rather than individualized, and is as often done by carelessness as by design. What is more, it is as often as not potential rather than actualized.
The LRCC examines this distinction again in its 1976 report entitled Our Criminal Law. Referring back to its earlier work it states:
There is, however, another distinction to which we drew attention in Working Paper 2, The Meaning of Guilt. This is a distinction between “real” crimes and mere regulatory offences. The difference between the two is well recognized by ordinary citizens, accepted formerly by criminal jurisprudence and based on logic and common sense. It should be recognized by law. We therefore recommend that the Criminal Code be pruned so as to contain only those acts generally considered seriously wrongful and that all other offences be excluded from the Code. [emphasis original]
While arguing that there is a difference between real crimes and mere regulatory offences, the LRCC recognized that this distinction was not always honoured. It set out the scope of what criminal law should be:
Only those crimes thought seriously wrong by our society should count as crimes.
Not all such acts, however, should be crimes. Wrongfulness is a necessary, not a sufficient condition of criminality. Before an act should count as a crime, three further considerations must be fulfilled. First, it must cause harm – to other people, to society or, in special cases, to those needing to be protected from themselves. Second, it must cause harm that is serious both in nature and degree. And third, it must cause harm that is best dealt with through the mechanism of the criminal law. These conditions would confine the criminal law to crimes of violence, dishonesty and other offences. Any other offences, not really wrong but penally prohibited because this is the most convenient way of dealing with them, must stay outside of the Criminal Code and qualify merely as quasi-crimes or violations.
In 1978, in the seminal decision of R. v. Sault Ste Marie, the Supreme Court of Canada set out its classic statement that distinguishes true crimes from regulatory offences and the burdens of proof that accompany each:
I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:
1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case.
3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.
Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as “wilfully,” “with intent,” “knowingly,” or “intentionally” are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.
While the court distinguished between offences that are criminal in the true sense and public welfare or regulatory offences, it did not really explain the distinction. This was not done until 1991 in R. v. Wholesale Travel Group Inc., where the Supreme Court relied upon the inherent wrongfulness or moral blameworthiness of the offence to seek to distinguish between regulatory offences and crimes:
Acts or actions are criminal when they constitute conduct that is, in itself, so abhorrent to the basic values of human society that it ought to be prohibited completely. Murder, sexual assault, fraud, robbery and theft are all so repugnant to society that they are universally recognized as crimes. At the same time, some conduct is prohibited, not because it is inherently wrongful, but because unregulated activity would result in dangerous conditions being imposed upon members of society, especially those who are particularly vulnerable.
The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers and motorists, to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.
It follows that regulatory offences and crimes embody different concepts of fault. Since regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, conviction of a regulatory offence may be thought to import a significantly lesser degree of culpability than conviction of a true crime. The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthiness in the same manner as criminal fault. Conviction for breach of a regulatory offence suggests nothing more than that the defendant has failed to meet a prescribed standard of care.
The court concedes that the application of this distinction is difficult, but maintains that there is a sound basis for it. In fact, the distinction that the Supreme Court sought to create was controversial, as noted by the Honourable Mr. Justice Rick Libman in his text:
Hence as regulatory offences continue the trend from no longer resembling “minor offences” but “true crimes” (particularly as the sanctions for the former escalate higher than the latter with greater frequency), one wonders whether the lines between these categories of “public welfare offences” will become in time less and less apparent. Indeed, Dean Hogg describes the Supreme Court’s decisions distinguishing between true crimes and regulatory offences as constituting a silly distinction.
The illusory nature of this distinction is evident from the many offences in the Criminal Code that do not fit the LRCC’s vision or the Supreme Court’s description of a crime. In Our Criminal Law, the LRCC pointed to the offences of pretending to practice witchcraft and having a motor vehicle equipped with a smokescreen as examples of offences that most people would not count as sufficiently important to count as crimes. Furthermore, some regulatory offences prescribe serious penalty provisions, such as hefty fines and periods of incarceration. It has been argued that significant stigma can attach to regulatory offences which have serious penalties. Also, stigma associated with certain offences, such as securities offences, will shift with the market volatility – at one extreme people will seek out villains for conduct that was previously thought trivial.
Nonetheless, other reasons are put forward to maintain the distinction. It is not necessary to prove an intention to commit a regulatory offence for most provincial offences, and this has been said to be a key distinction between regulatory offences and crimes since greater stigma will likely attach to offences for which proof of intention to offend is established. In fact, this informed the court’s reasoning in R. v. Transport Robert (1973) Ltee. In this case, the Ontario Court of Appeal upheld section 84.1(1) of the Highway Traffic Act, which made it an offence for a wheel to become detached from a commercial vehicle while it is on a highway. It is an absolute liability offence and it is not a defence to assert due diligence. The offence is punishable by a fine of up to $50,000, but imprisonment is not a possibility. The defendant argued that the absolute liability offence violated its guarantee of security of the person under s. 7 of the Charter. The court rejected the defendant’s argument and upheld the legislation. It stated that most regulatory offences focus on the harmful consequences of otherwise lawful activities. The court also stated that because proof of the mental state of the accused (mens rea) is not required for most provincial offences, the stigma associated with regulatory offences is generally less.
A further rationale for distinguishing criminal offences from regulatory offences is that they require different approaches to sentencing. With criminal activity, the activity is not desired and penalties exist to deter the activity from ever occurring in the first place. With regulated activity, the activity is often necessary or beneficial to society and it is only deviations from the regulated standards that are to be avoided. Penalties are imposed to deter deviations from the regulated standard, but once the sentence is imposed (e.g., a fine), the regulated typically resumes the regulated activity. Driving a car, processing food, or controlling water supplies are just some examples of necessary or beneficial regulated activities.
Sheri Verhulst proposes that sentencing principles that go beyond simple deterrence are required for regulatory offences, and that those principles ought to be different from those that apply to criminal offences. She argues that sentencing of provincial offences must recognize that a regulatory sentence is part of a regulatory cycle. In the regulatory cycle, sentencing is not the end of the matter and the defendant will likely go back to the activity that led to its conviction:
However, the sentence and any subsequent punishment are not the “end” of the cycle. Short of permanent incapacitation, the offender often continues to engage in the regulated activity after sentencing. Indeed, society may even desire this, as the regulated activity may be socially beneficial, creating employment or needed goods and services. What society does not desire [is] continued engagement in the same behavioural patterns that gave rise to the offence in the first place, so the offending behaviour must be corrected.
It is clear that there has been a marked increase in the maximum fines available and the possible incarceration periods for Part III matters which have blurred the lines between certain provincial offences and criminal matters. The LCO is of the view, however, that this is not sufficient reason to abandon the separate procedural code for regulatory prosecutions and return to the summary conviction procedure of the Criminal Code. Indeed there are strong reasons to maintain a separate and efficient procedural code proportionate to the less serious nature of most provincial offences, which was the underlying intention behind the POA when it was first enacted.
The LCO acknowledges that the line drawn by the Supreme Court in Wholesale Travel can often be breached and it is difficult to implement, but there is enough truth in it that it is useful. Statistics reveal that the overwhelming majority of regulatory offences are minor in nature and less serious than most criminal offences. As noted previously, 1.9 million charges were laid under Part I in 2009 while fewer than 200,000 charges were laid under Part III, or 8% of the total number of charges laid under both Parts I and III. While the LCO could not obtain complete provincial data on parking infractions under Part II, these numbers would result in an even greater number of minor offences that fit the Wholesale Travel description. It would appear to be completely incongruent to the objectives of proportionality and efficiency to revert back to a complex procedural code with its extensive procedural protections for primarily minor, regulatory offences. For the 8% of the more serious cases that require greater procedural protections, separate procedural rules can be enacted although still through the POA.
Finally, it must be recognized that many regulatory offences, including those initiated under Part III, are committed while engaging in otherwise legitimate and useful conduct. Roughly 74% of the 2.1 million Part I and Part III charges (or 80% of the Part I charges) relate to offences under the Highway Traffic Act or its regulations. Regulated activities, like driving, are not typically morally wrong; rather it is the way in which they are conducted and the resulting consequences that are sought to be avoided. This translates into a demand for distinct sentencing principles for regulatory offences, established under a separate procedural code, with objectives that need to be different from those that apply to criminal matters. For these reasons, we agree with the view of the LRCC in 1976 that “a quicker, more streamlined, more informal arbitration” procedure is needed for the vast number of regulatory offences that do not contravene basic values.
Accordingly, the LCO concludes that a separate procedural code for regulatory offences is still justified and is a useful tool for regulators who need a responsive and flexible tool kit to best ensure compliance with regulatory standards.
The LCO recommends that:
3. 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.
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