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,