III. POA REFORM FRAMEWORK

III. POA REFORM FRAMEWORK2017-03-03T18:35:02+00:00

A.    Principles Informing the POA Reform Framework

When it was first enacted in 1979, the POA had as its objective the creation of a procedural code for the prosecution of provincial offences distinct and separate from the procedure that applied to criminal offences.[191] Yet from our discussion on the history of the POA in Chapter II, it is clear that other, more fundamental principles were the basis for the new POA. Proportionality, efficiency and fairness informed the creation of the POA and we believe they should continue to guide future reform. Access to justice and contemporary regulatory law theory based on the concept of the regulatory pyramid are further considerations that should inform POA reform. Collectively, we refer to these principles and considerations as the POA Reform Framework. 

 

1.     Proportionality

The principle of proportionality remains a primary consideration in the reform of the POA, as it was when the statute was first proclaimed. Drinkwalter and Ewart, in their 1980 text on the Ontario Provincial Offences Procedure, describe how the procedures under the former Summary Convictions Act that governed the prosecution of provincial offences “were still entirely out of keeping with the minor, regulatory nature of most provincial offences.”[192] The Ontario legislature responded with the new POA that created a “custom-built procedural framework” and “[f]rom start to finish the Act represents an attempt to ensure that each individual section is consonant with the nature of the offences it governs.”[193] “One of the major procedural changes wrought by the Act lies in the creation of two distinct procedural streams, one for minor offences and the other for more serious ones.” 

As stated by the former Attorney General for Ontario:

Many persons living in Ontario find the procedure which now governs the prosecution of provincial offences bewildering, expensive, time consuming and altogether disproportionate in gravity to those offences. This situation is redressed by the proposed Provincial Offences Act, which creates a clear, self-contained procedural code to simplify procedures, eliminate technicalities, enhance procedural rights and protections, and remove the obstacle of delay from the assertion of rights and the conclusion of prosecutions.[194]

Undoubtedly, proportionality of process consonant with the gravity or seriousness of the provincial offence was an underlying objective of the POA in 1979. It ought to remain a guiding principle for any future POA reform. Common sense dictates a commensurate relationship between the seriousness or complexity of an offence and the procedure afforded to its resolution. This is not unique to provincial offences reform. Proportionality of process has also been a driver for reform in the civil and family justice systems.[195] Given the vast number of provincial offences, the gamut of possible sanctions ranging from nominal fines to incarceration, and the increased complexity of some cases that may involve experts and thousands of documents, the principle of proportionality remains a relevant principle in POA reform.

 

2.     Efficiency and the Administration of Justice

Millions of offences each year are handled through the procedure dictated by the POA. For this reason alone, efficiency must be a consideration within the POA Reform Framework. Indeed, it was a key consideration when the POA was enacted.  In R. v. Jamieson, former Associate Chief Justice McKinnon stated:

The Provincial Offences Act is not intended as a trap for the unskilled or unwary but rather…an inexpensive and efficient way of dealing with, for the most part, minor offences.[196]

More than just the volume of cases, the nature of some POA cases demands that efficient processes be in place. An effective and efficient Provincial Offences Court was the subject of a 2003 decision of the Ontario Court of Appeal in R. v. Felderhof.[197] The case involved the prosecution of offences under the Securities Act. The decision speaks to the increased complexity of some provincial offence charges, the importance of dealing with these cases efficiently and the need for procedural tools for their effective adjudication: 

[40]         …  Until relatively recently a long trial lasted for one week, possibly two. Now, it is not unusual for trials to last for many months, if not years.  Early in the trial or in the course of a trial, counsel may make decisions that unduly lengthen the trial or lead to a proceeding that is almost unmanageable.  …

[42]         One of the “evolving social and material realities” is that litigation, even in the Provincial Offences Court, has become more complex and trials longer. Part of this is a result of the greater complexity of society that produces cases such as this one, which are based on complex commercial transactions. The other reality is the impact of the Charter of Rights and Freedoms. It may be that this would have been a lengthy case before 1982.  However, the Charter has introduced an additional level of complexity.  …

 

[43]         Similarly, requiring a provincial offences court to function as if this complex securities regulation case were nothing more than a traffic violation would seriously compromise its effective functioning. As a result of R. v. 974649 Ontario Inc., the Provincial Offences Court has a broad remedial jurisdiction under the Charter. It seems to me that by necessary implication it must have the procedural tools to ensure its process is effective and efficient for the disposing of applications for any of those remedies… The Legislature has given to the provincial offences court jurisdiction to deal with these complex commercial cases, involving hundreds if not thousands of documents, and sometimes, although not always, involving complex Charter applications and remedies.  In my view, the trial judge must have the power to control the procedure in his or her court to ensure that the trial is run effectively. 

Efficiency of process, we believe, must be a guiding consideration to deal with not only simple and uncomplicated POA cases, but also the more complex and lengthy ones. A POA procedural code will not further the administration of justice if it is not efficient.

 

3.     Fairness

The principle of fairness was strongly entrenched within the POA based on the premise that “provincial offences are in substance quasi-criminal.”[198] Drinkwalter and Ewart stated in 1979 that even for offences prosecuted in the minor stream (Part I), the right to a trial remained absolute and unqualified.[199] “[T]he principal challenge in the creation of the new code of procedure [was] to strip out the excess procedural baggage while preserving and enhancing the procedural rights of accused persons.”[200]   

It is critical that fairness in procedure remain a paramount consideration when reforming the POA. Proportionate and efficient processes for prosecuting provincial offences must always be measured against fairness considerations.  However, it our view that the extent of procedural fairness that ought to be afforded for many minor offences need not be as broad today as may have been envisaged when the POA was first enacted. The purpose of proceedings under the POA, it was perceived, “was clearly to impose punishment” and this perspective informed the view that provincial offences are quasi-criminal in nature.[201] In view of contemporary theories of regulatory law and the objectives of sentencing discussed in the following chapters, the LCO questions whether the purpose of modern-day POA proceeding is to punish. Other objectives, such as persuasion and compliance with regulatory standards through non-penal means, or restorative justice may be more effective in achieving the regulatory goals of the offence-creating statutes. In this sense, fairness may dictate something less than the full procedural guarantees afforded in criminal trials. Put differently, applying criminal-trial processes to all regulatory offence hearings may well frustrate the very important public welfare objectives of these statutes and significantly hamper the effective administration of justice.

Courts have held that procedural protections under the Charter of Rights and Freedoms may be less stringent or may not apply to regulatory proceedings. Archibald, Jull and Roach state “the Supreme Court of Canada has often accepted the principle that reductions in due process in terms of search requirements, the presumption of innocence and rights against self-incrimination, go hand-in-hand with the fulfillment of regulatory objectives.”[202]  

For example, in R. v. Transport Robert (1973) Lteé, the Ontario Court of Appeal held that the section 7 right to security of the person and not to be deprived thereof except in accordance with the principles of fundamental justice does not apply to the prosecution of the offence of a wheel coming detached from a commercial vehicle. The court distinguished the offence from a “true crime” and relied instead on the regulatory nature of the offence (i.e. to prevent the harmful consequences of a breach) when it concluded that the stigma of a conviction along with the potential imposition of a $50,000 fine was not sufficient to trigger section 7 protections.[203]  

A similar conclusion was reached by the Alberta Court of Appeal in Lavallee v. Alberta (Securities Commission), which held that sections 7 and 11 of the Charter did not apply to proceedings alleging breaches of the provincial Securities Act.[204] Proof of the alleged fraudulent and illegal activity carried sanctions of administrative penalties of up to $1 million for each contravention.  The court looked at the penalty, the purpose of the penalty and the purpose of the Securities Act in concluding that the appellants were not charged with an “offence” within the meaning of section 11 of the Charter because the potential consequences for breach were not penal in nature. Instead, the court concluded that the purpose of the fine was to regulate conduct within the securities industry to best achieve the purposes of the statute, including the protection of investors and the public. Accordingly, the section 11(d) right to be presumed innocent of an offence until proven guilty in a fair and public hearing did not apply.[205] With respect to the section 7 right to security of the person, the court found that the imposition of the penalty did not compare to the kind of stigma attached to an overlong and vexatious criminal trial, and therefore, the section 7 Charter right was not engaged.[206]

This, however, can be contrasted to offences which carry imprisonment as a penalty or those that are “penal in nature”. In these cases, procedural protections guaranteed under the Charter are more likely to apply. For example, in R. v. Pontes, the Supreme Court of Canada stated, “…generally speaking, an offence of absolute liability is not likely to offend s. 7 of the Charter unless a prison sanction is provided.”[207] And in R. v. Jarvis, the Supreme Court held that where the predominant purpose of an investigation of a regulatory offence is to determine penal liability, all Charter protections that are relevant in the criminal context apply.[208]

Regardless of the penalty or the predominant purpose of an offence, a minimum level of procedural fairness must always be guaranteed. A right to know the offence combined with an opportunity to be heard by an unbiased decision-maker will be essential hallmarks of any reformed provincial offences procedural code.[209] The content of procedural fairness afforded in a given case may vary and its content is to be decided in the specific context of each case.[210] Most importantly, any procedure adopted for the prosecution or enforcement of provincial offences must be perceived to be fair in order to maintain the public’s respect for the rule of law and the administration of justice. People may be more willing to obey the law if they believe that they are being treated fairly.[211]
 

 

4.     Access to Justice

A fourth and important consideration that guides the POA Reform Framework is access to justice.  Access to justice, in its broadest sense, has several components and barriers may include:[212]

  • Procedural barriers that prevent reasonable and effective access to court proceedings.  Examples may include complex court rules, or the lack of simple, plain-language information on court processes;
  • Economic barriers such as the cost of retaining a legal representative, or processes that require multiple and unnecessary court appearances which thereby increase costs;
  • Physical barriers that prevent physical access to the justice system, such as inaccessible courthouses or court forms that cannot be accessed by people with disabilities;
  • Cultural and language barriers that may disproportionately impact certain groups’ access to the legal system.  For instance, perceptions of non-Canadian legal systems may impact on how our justice system is perceived; and
  • Other barriers that preclude certain groups from becoming involved in broader law, economic and social justice reform. These may include a lack of education or lack of awareness as to how to participate in the development and reform of the law.  

Access to justice must be considered in any reform of the provincial offences justice system. Regulatory law impacts each of us daily. The provincial offences justice system is the “face of the justice system” for most in Ontario and it must therefore provide for simple, easily understood and accessible procedures for those offences with which typical Ontarians most often are charged.  Without a simple and accessible provincial offences system there is a risk that it will be detached from, and lose the respect of, the community that it serves. Most worrisome is that it will not foster respect for the rule of law.

 

 

B.    Responsive Regulation and the Regulatory Pyramid
 

A final concept that ought to inform the POA Reform Framework is responsive and proportionate regulation. This concept contemplates a “regulatory pyramid” which suggests an incremental response when regulators detect non-compliance with regulatory standards, rather than launching regulatory prosecutions with hefty fines as the first avenue of response.[213]

We recognize that the regulatory pyramid does not directly bear on the appropriate procedural code for provincial offence prosecutions; it is more germane to a critical review of how regulators ought best respond to breaches of regulatory standards once detected. As described below, prosecutions are only one potential response within the regulatory pyramid and the POA only deals with the procedure once a decision to prosecute has been made. Nevertheless, the regulatory pyramid can be an instructive and helpful tool for prosecutors when deciding whether to launch a prosecution, and most notably for our purposes, it can be instructive for justices when considering appropriate sentencing options. 

The concept of responsive regulation arose from the unsatisfactory debate over business deregulation. On the one hand, prominent politicians in the 1980s and 1990s sought to replace what was perceived as excessive government control by the “Nanny State” with greater privatization and governance by “the magic of the market.” [214] The opposing view is that government regulation with strict enforcement via penalties is necessary to protect individuals in a modern society.  Private industry, without regulation and enforcement of those regulatory standards, cannot be trusted to protect the public since they are only interested in profit, and not public welfare objectives. Those in favour of strong regulation and enforcement (in both the public and private context) might point to the tragic incidents arising from unsafe drinking water in Walkerton, Ontario in 2000 and the subsequent Inquiry where the Honourable Mr. Justice O’Connor found that the failure of the provincial government to enact legally enforceable regulations contributed to the outbreak of unsafe drinking water and the sickness and death that ensued.[215] 

Responsive regulation and the regulatory pyramid seek to transcend the debate about regulation versus deregulation.

The responsive approach (to regulation) proposed by Ayres and Braithwaite involves a process whereby regulators proceed with compliance based strategies and then resort to more punitive “deterrents” when the desired level of compliance is not achieved. In their opinion, this is a more preferable option to the positions supported either by those who believe that “gentle persuasion works in securing business compliance with the law” and those who only consider that corporations would only comply with the law where tough sanctions were applied.[216]  

The regulatory pyramid provides a balance between those who believe deterrence through tough sanctions is the best way to achieve compliance with the law, and those who believe that gentle persuasion works in securing compliance. Instead of asking whether to punish or persuade, it asks when to punish, or when to persuade?[217] John Braithwaite, through much of his empirical research on what motivates regulated actors, concludes that punishment as a first response can often inhibit compliance with regulatory standards; it insults the regulated actors and demotivates them.[218] It fosters individual rebellion and the potential for a business subculture of resistance to regulation.[219] 

When punishment rather than dialogue is in the foreground of regulatory encounters, it is basic to human psychology that people will find this humiliating, will resent and resist in ways that include abandoning self-regulation.[220]

Ayres and Braithwaite note that people and businesses often comply with regulations not because of a fear of sanctions, but because of other factors that motivate compliance, including a loss of reputation, a desire to do what is right, to be faithful to an identity as a law-abiding citizen, and to sustain a self-concept of social responsibility.[221] They argue these motivators ought to be the source of proportionate and custom-tailored responses to regulatory breaches that promote cooperation and compliance, rather than a prosecution with the imposition of a standard fine as the first response. Moreover, prosecutions might ultimately have no impact on altering behaviour or motivating compliance, especially if the fine is passed on to the consumer and not borne by the regulated party.

Resort to punishment, however, should not be abandoned. It must always be in the background as a “big stick” that can be called out to promote compliance with lesser sanctions.[222]
 

The base of the regulatory pyramid, proposed by Ayres and Braithwaite, is persuasion. As one moves up the pyramid, the more demanding and punitive the tools used by regulators become. Persuasion escalates to a warning letter that in turn escalates to a civil penalty, a prosecution or criminal penalty, a licence suspension and then a licence revocation. The model is intended to be dynamic. It should not be used to specify in advance what level regulators should turn to respond to a violation. There should be a presumption in favour of starting at the base of the pyramid, although circumstances may demand starting elsewhere. Where the regulated person fails to respond to persuasion the regulator can move up the pyramid until there is “reform and repair”.[223]   

In Ontario, Archibald, Jull and Roach build on the work of Ayres and Braithwaite. They also place self-regulation and persuasion at the bottom of the pyramid, but in addition, they see an early role for restorative justice for some regulatory breaches.[224] They refer to the definition of restorative justice articulated by Supreme Court of Canada in the criminal context:

In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the need of the victims and the community, as well as the offender. The focus is on the human beings closely affected by the crime.[225]

If persuasion and restorative justice are unsuccessful, Archibald, Jull and Roach propose warning letters. Where there is non-compliance after warning letters have been sent, the next level is the civil or administrative stream which would include civil actions whose purpose would be compensation and cost internalization. AMPS would appear to be included on this level. The next level is regulatory prosecution, which is where the POA would come into play. Deterrence has traditionally been the objective at this level. Defendants are prosecuted, but they may avoid guilt by establishing that they acted with due diligence by implementing safeguards that any reasonable defendant would have taken to avoid the occurrence of the prohibited act.[226] At the apex of their pyramid would be criminal sanctions and temporary or permanent licence suspension.[227] 

Braithwaite argues that the pyramid works from the experience of business regulatory agencies all over the world.[228] Empirical evidence shows that sometimes persuasion works and sometimes it does not, but the same is true of punishment. Also, the presumption in favour of persuasion means that you start with the cheaper and more respectful option. Any eventual coercion is more likely to be seen as fair and legitimate by regulated persons or at least by others if persuasion is attempted first. It can also divert cases out of the traditional prosecutorial response, reducing overall court and prosecutorial costs and the delay associated with prosecutions.[229]   

The LCO supports responsive regulation and the notion of a flexible and responsive toolkit for regulators to promote compliance with regulatory standards. The multi-disciplinary field research conducted by Braithwaite and others[230] is compelling and it ushers in creative solutions for promoting compliance with regulatory standards that do not appear in much of Canada’s regulatory law landscape.  

As mentioned earlier, the regulatory pyramid is more relevant to a general analysis of how best to promote compliance with regulatory standards by regulators than it is to a procedural code for prosecuting offences. However, the concept does have some application to a review of the sentencing tools available to a justice at the regulatory prosecution stage of the pyramid It questions the general deterrence-fine paradigm as the standard sentencing response for most regulatory prosecutions, and opens up the possibility of more efficacious sentencing tools that can better promote compliance with the regulatory objectives in the future. As discussed in the Chapter VI on sentencing, the greater use of probation, the ability to make restitution and compensatory orders, and the ability to order an embedded auditor to monitor compliance are some sentencing options that are consistent with responsive regulation and the regulatory pyramid.

 

 

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