A. The Purpose of the POA Today
Chapter II begins with a discussion of the purpose of the POA as found in section 2 of the Act. We noted that the underlying objectives of the POA were much more than simply “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.” Several sources reveal that the true underlying objective of the POA was “to provide a fair and efficient method for the trial of the large number of cases which are handled by the provincial offences court,” and “to establish a speedy, efficient and convenient method of dealing with… for the most part, minor offences.” The objectives of proportionality, efficiency and fairness were real then and they remain real today, and in our view, they ought to be properly reflected in an amended purpose section of the POA.
After 30 years of experience with a separate procedural code for POA matters, there is no doubt that regulatory offences are to be governed by a procedure that is separate from the Criminal Code summary conviction process. Therefore, it is no longer necessary to refer to the creation of a POA procedure distinct from the Criminal Code procedure as the sole purpose of the POA. There may still be valid reasons to distinguish “criminal offences” from “provincial offences” in the purpose section. As recommended in Chapter II, a separate procedural code ought to be maintained for provincial offences given the distinction between most regulatory offences and crimes, and this distinction ought to be retained in a newly expanded purpose section that reflects the legislation’s true underlying objectives. Expressly stating within the purpose section that provincial offences are to be distinguished from criminal offences may be further justified, given the different extent to which Charter protections apply to provincial offences versus criminal ones, and because some offences can be prosecuted as provincial offences or as criminal offences (e.g. cruelty to animals) .
A purpose section provides insight into the legislator’s true intent for the enactment. Not only does it guide the judiciary in the interpretation and application of the statute, but it also directs prosecutors and defendants to govern themselves in a manner consistent with this legislative objective. The drafting of subordinate POA rules, regulations and forms would similarly be guided by the overarching purpose of the statute. To date, it has been left to the judiciary and rules committees to interpret the true underlying objective of the POA.
A POA purpose section that incorporates concepts of proportionality, efficiency, fairness, accessibility and responsiveness to the offence-creating statute’s objectives will, in our view, create a dynamic and flexible procedural code. It will create opportunities for a living and evolving procedure (or procedures) that can best respond to the volume and diverse nature of POA offences today and in the future. It will establish the guiding principles upon which any POA procedure, rule or regulation is to be developed, interpreted and applied.
The flipside of flexibility is certainty. Some may argue that the introduction of these concepts will make for an uncertain procedural code. The judiciary, prosecutors, and defendants alike must know the process that governs a proceeding and we do not advocate abandoning a precise procedural code for POA offences. On the contrary, we recommend the establishment of clear procedures for different types of POA proceedings in the next section. We do believe, however, that the above-noted principles and factors be included in the POA’s purpose section so that they may guide the statute’s interpretation and application. The alternative is to provide no guidance and leave it entirely for judicial determination, but this can result in greater uncertainty and may not achieve the objectives that we believe ought to govern POA proceedings.
The approach we propose is neither unique nor novel. Each procedural code governing civil, family, small claims and criminal cases includes a governing purpose or interpretative provision that capture concepts of proportionality, fairness, or efficiency in the administration of justice. Similar concepts should define the overarching principles that guide the development, interpretation and application of POA procedure. While we defer to the expertise of legislative drafters, we offer the following draft of a revised purpose section:
The purpose of this Act is to:
(a) provide an accessible procedure for the fair and efficient resolution or trial of provincial offences in a manner that is proportionate to the complexity and seriousness of the provincial offence,
(b) promote the objectives of the offence-creating statute, and
(c) provide a procedure that reflects the distinction between provincial offences and criminal offences.
The LCO recommends that:
4. The purpose section of the POA be amended to advance a procedure for the trial or resolution of provincial offence cases that is:
a. proportionate to the complexity and seriousness of the provincial offence;
e. responsive to the offence-creating statute’s objective; and
f. reflective of the distinction between provincial offences and criminal offences.
B. Restructuring the POA and POA Rules
In Chapter II we summarized the POA structure, and the rules and regulations that govern provincial offence proceedings and appeals. We identified a number of concerns with the structure of the POA and its rules and regulations which we discuss next. In our view, it is time to significantly restructure and simplify the Act consistent with the objectives of the POA Reform Framework.
1. Simplify the POA
The POA regime, with its numerous rules, forms and regulations is very complex. Its complexity is particularly troubling since most offences prosecuted under the POA are minor and involve self-represented defendants. We list components of the POA regime to demonstrate how complex and cumbersome it can be:
The Act contains 10 parts and has 176 sections. It describes how to commence a prosecution, how to respond to a proceeding, powers of arrest, search warrants, sentencing, bail and rules governing trials and appeals. Given the frequent cross-references to other sections within the statute or to regulations or forms, it can be very cumbersome for even the most educated reader. Moreover, it is not written in plain language.
There are seven regulations under the POA that may apply to a given POA proceeding.
There are four different sets of rules established by the Criminal Rules Committee under the Courts of Justice Act that govern POA proceedings and appeals. In some instances the POA Rules appear to duplicate or render superfluous what is already stated in the POA.
The forms required to follow the procedure set out in the POA are contained in a separate regulation or are found in one of the four sets of rules. These forms are not expressly identified within the POA, making it necessary to search through one of the four sets of rules or seven regulations to ascertain the correct form.
There are several exceptions to the general processes prescribed in the POA. For example:
· Several procedures that govern Part I and Part II proceedings only apply in certain parts of Ontario and to determine whether they apply, reference must be had to a separate regulation.
· Various other sections of the Act do not apply in certain municipalities to which certain sections of the Act apply.
To become familiar with the POA statutory procedure, the procedural rules established under the Courts of Justice Act must also be referenced to ensure compliance.
We do not suggest that the procedural requirements set out in the POA are unnecessary or without a sound policy basis. A clearly defined process is essential for any procedural code. Much of the procedure, we suspect, appears to have been placed in the POA based on conventions for drafting quasi-criminal procedure when the POA was first enacted in 1979. We question, however, the necessity and efficacy of including such detail within a statute today.
We also question the wisdom of having to refer to several other sets of rules, regulations and forms to fully understand and adhere to the POA process. The complexity that results can render the procedure unintelligible, and therefore, inaccessible. This is compounded by the fact that the POA contains much “legalese” and it is not readily accessible unless one knows how to access statutory documents. In our view, the POA procedure must be simplified, particularly for Part I and II proceedings, which represent the vast majority of POA proceedings commenced and because they are most likely to involve unrepresented defendants.
As noted previously, 90% of POA prosecutions are Part I offences, and 80% of those relate to Highway Traffic Act offences and it is believed that most of those defendants are unrepresented. To expect an unrepresented person to sort through the POA, its rules and forms to understand the process to which he or she is subjected promotes neither fairness nor accessibility. The amount of detailed procedure is simply disproportionate given the interests at stake. As a point of comparison, we note that another court forum where a majority of litigants are unrepresented, namely the Small Claims Court, has a complete procedural code that contains a total of 21 rules with all associated forms contained within these rules. In addition, plain-language procedural guides prepared by the Ministry of the Attorney General are readily available to assist litigants through the Small Claims Court process.
2. Simplify and Update the POA Rules
There are four different sets of POA rules with associated forms prescribed under each: (1) POA procedure before the Ontario Court of Justice; (2) appeals to the Ontario Court of Justice from Part I and Part II proceedings; (3) appeals of Part III proceedings to the Ontario Court of Justice or Superior Court of Justice; and (4) POA appeals to the Court of Appeal. The Criminal Rules Committee, with the approval of the Attorney General, makes POA rules under the authority of the Courts of Justice Act.
As with the POA, we heard that the rules are also unduly complex. They are written in legal language and to navigate through them without formal training is a challenge. As one person said with respect to the complexity of the rules, “it’s like you need to have your decoder ring from your box of Cheerios with you!” Since they were created, the general POA rules for the Ontario Court of Justice have only received minor amendment. The last time they received any amendment was ten years ago and those