This Interim Report provides an analytical framework for modernizing and reforming the Provincial Offences Act (POA). The POA was enacted more than 30 years ago, establishing a procedure for the prosecution of offences under Ontario statutes, regulations and municipal by-laws. A comprehensive review of the POA has not been undertaken to assess whether it continues to meet its original objectives and whether those objectives remain current today. Nor has there been a review to consider the impact of significant developments such as the enactment of the Charter of Rights and Freedoms, the transfer of prosecution and court administration of POA matters from the Province to municipalities, significantly increased penalties for many offences, and the increased use of administrative monetary penalties to enforce regulatory standards.
The Board of Governors of the Law Commission of Ontario (LCO) approved this Project on April 2, 2009. We have examined specific procedural issues, and have proposed structural improvements and a mechanism whereby procedural improvements in the future can be more easily achieved.
Regulatory law dictates how we drive our vehicles, the safety of our places of work, the food and beverages we consume and how we treat our pets, among many other areas that affect Ontarians on a daily basis. The POA mandates the process to deal with the millions of charges that are brought under regulatory statutes each year. The vast majority involve “less serious” offences for which defendants are most likely to be unrepresented. It is important that the process governing these offences is fair, efficient, accessible and proportionate to the interests at stake.
II. Provincial Offences and the Provincial Offences Act
Prior to the POA coming into force, the Summary Convictions Act governed the procedure for enforcing and prosecuting provincial offences. It largely adopted the federal Criminal Code’s provisions for the prosecution of summary conviction offences. The new POA was intended to establish a speedy, efficient, simple and appropriate method of dealing with, for the most part, minor offences by the provincial offences court. This objective remains current today.
The POA sets out three distinct streams for commencing prosecutions of provincial offences before a judge or justice of the peace (justice) in the Ontario Court of Justice. It contains ten parts described in detail in the Interim Report. Briefly, these are as follows:
· Part I proceedings are commenced by way of a certificate of offence, typically with a set fine. The maximum penalty is $1,000; imprisonment is not a permitted penalty. The defendant’s options are to pay the fine, dispute the penalty or request a trial.
· Part II applies exclusively to parking offences, with a process similar to that under Part I. A person served with a ticket may pay the set fine or request a trial.
· Part III matters must be brought before the court for resolution. The offence-creating statute will typically dictate the maximum (or minimum) penalty for the offence, which may include imprisonment. The nature and circumstances surrounding the offence and whether the public interest demands a higher penalty will dictate whether the charge is brought under Parts I or III.
· Part IV provides a single trial process that applies to all trials, regardless of whether the proceeding was commenced under Parts I, II or III. The sentencing provisions are of a general nature, but certain distinctions are made between Part I and Part III offences (e.g., probation is only available for offences commenced under Part III).
· Part V contains general provisions including the parties to an offence, the use of telephone and videoconferences at a hearing, common law defences, and the offence of contempt of court.
· Part VI prescribes a special procedure for young persons, defined as being between the ages of 12 and 16 who are alleged to have committed a provincial offence.
· Part VII governs appeals and reviews by either the Ontario Court of Justice or Superior Court of Justice.
· Part VIII deals with the power to arrest, the authority to grant bail and under what circumstances, and the authority of a justice to issue a search warrant.
· Part IX states that the POA applies where another Act permits the making of an order, but does not provide a procedure.
· Part X permits the Attorney General and a municipality to enter into an agreement whereby the municipality (rather than the Province) will carry out court administration, prosecution and enforcement functions. All municipalities in Ontario have entered into such an agreement.
Seven regulations apply to POA proceedings, governing such matters as costs, fees for late payment of fines, forms and notices for various types of proceedings, and fine surcharges. In addition, four different sets of procedural rules dictate the practice and procedure for POA proceedings and appeals.
Typically, 2.1 million charges are brought under Parts I and III each year, with about 90% brought under Part I; in 2009 in Toronto alone, 2.8 million parking tickets, governed by Part II, were issued. The vast majority (80%) of Part I offences are under the Highway Traffic Act or its regulations.
To give some context to the type of provincial offences that would be governed by the POA, we describe key areas of regulatory law in Ontario. They include motor vehicle regulation, occupational health and safety laws, environmental protection, the regulation of controlled substances such as liquor and tobacco, and general public order and safety regulation such as trespass and fire prevention.
The justification for a separate statute addressing procedural matters stems from the view that there is a clear distinction between regulatory offences and true crimes. Criminal conduct under the federal Criminal Code is said to constitute conduct that is inherently contrary to basic human values and is therefore prohibited completely through criminal enactments. There is usually stigma associated with a conviction of a crime. Regulatory offences, on the other hand, involve conduct that is prohibited not because it is inherently wrongful but because dangerous conditions and risks to society at large would result if that conduct was not regulated. There is little or no stigma associated with a provincial offence conviction. Unlike criminal activity, there is an expectation that people will continue to engage in the regulated activity after a prosecution, but that they will do so lawfully. It is not always easy to make the distinction, particularly for provincial offences that have significant penalties and the possibility of imprisonment. Nevertheless, the vast majority of POA charges relate to matters that are clearly regulatory and are minor in nature and warrant distinctive treatment, including sentencing.
III. Provincial Offences Act Reform Framework
Certain principles ought to guide the reform of POA procedure now and in the future. They are:
1. Proportionality. The procedure governing the prosecution of an offence must be proportionate to the interests at stake.
2. Efficiency and the Administration of Justice. Any procedural system must be efficient to handle the millions of minor charges as well as the less common, but increasingly complex, cases under Part III.
3. Fairness. Fairness must remain a paramount consideration when reforming the POA, although not necessarily as broad in scope as in the criminal context.
4. Access to Justice. Given the volume of minor provincial offences, the POA system is the “face of the justice system” for most Ontarians. Most defendants are believed to be unrepresented. The POA must therefore provide for simple, easily understood and accessible procedures for the most common offences.
We have also applied the concept of responsive regulation to POA reform and in this regard briefly discuss “the regulatory pyramid”. Responsive regulation is most applicable when deciding how best to enforce regulatory standards, but it also has relevance to sentencing of regulatory offences.
Under the regulatory pyramid, regulators proceed with modest strategies to encourage parties to comply with regulatory standards, and if unsuccessful, resort to successively more punitive mechanisms, as an alternative to regulatory prosecutions and fines as a first response. We discuss alternative sentencing tools in Chapter VI.
IV. The Purpose of the Provincial Offences Act and A Proposed New Structure
Section 2 of the POA states that its purpose is “to replace the summary conviction procedure for the prosecution of provincial offences…with a procedure that reflects the distinction between provincial offences and criminal offences.” The POA’s underlying objectives were to establish a fair and efficient method of resolving provincial offences proportionate to the complexity or seriousness of the offence, but different from the process governing criminal cases. Given the numbers of unrepresented litigants today, accessibility is an increasingly important objective. It is also important that the POA, as a procedural code, further the objectives of the offence-creating statute to which it applies.
We therefore recommend that the purpose section be amended to incorporate these concepts in order to guide parties and the court when interpreting the POA, and to inform the development of any rules, forms or other subordinate authority.
We believe the POA and its four sets of rules and seven regulations must be simplified. The POA contains 10 parts and 176 sections, with internal exception and frequent cross-references to other sections, regulations or forms. The trial provisions apply to the most serious and less serious offences without distinction.
We therefore recommend that the POA be restructured and stripped of its detailed procedural code, leaving only those matters that are properly left within a statute. While it should continue to prescribe different streams for less serious and more serious matters, the bulk of the procedural code should appear in a single rule, regulation or other subordinate authority, with streamlined procedures for less serious offences, and more detailed procedures for more complex cases, consistent with the principle of proportionality. Simple, plain language guides for defendants would make the POA more readily accessible. We further recommend that the Attorney General and the Chief Justice (Ontario Court of Justice), in consultation with others, jointly determine the most appropriate body to develop the new procedural code.