A. Using the Court to Adjudicate Part I and II POA Proceedings
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. Without question, this represents a significant volume of work for the court and the vast majority of it appears to involve minor offences. Given the volume and nature of this work and its associated costs, we examine whether moving the resolution of many of these offences into an AMPS regime would better promote the administration of justice and the efficacious use of judicial resources.
As noted earlier, the court typically receives approximately 2.1 million Part I and Part III charges each year. Of them, roughly 90% (1.9 M) are Part I offences, and about 10% (or 170,000) are Part III offences. Consistently in each of 2007, 2008 and 2009, of the Part I proceedings, approximately 80% are charges under the Highway Traffic Act or its regulations.
While provincial data on the number of Part II parking infractions received by the court are not available, we know that these numbers are significant. In 2009 in Toronto alone, 2.8 million parking tickets were issued. Estimates from other large Ontario municipalities reveal that hundreds of thousands of parking infractions are brought annually.
What is important to our analysis is the significant amount of court time spent disposing of POA matters. Provincial data on courtroom operating hours for 2009 reveal that justices of the peace spent a total of 57,576 hours on POA matters in 2009. Of those hours,
· 58% (33,358 hours) were spent presiding over Parts I and II trials,
· 26% (15,088 hours) were spent on Part III trials
· 16% (9,129 hours) were spent on other POA matters (e.g. motions, fail to respond).
These figures demonstrate that the majority of justice of the peace time on POA matters relates to parking and Part I offences.
We were not able to obtain data on the cost of administering POA courts throughout Ontario but it is believed to be significant. The Ministry of the Attorney General does not have this data and each municipality calculates these costs differently. However, looking at Toronto data again, it is estimated that $50 million is spent each year administering POA courts. The Ministry of the Attorney General’s annual expenditures for justices of the peace is estimated at $45.4 million. Using the number of hours spent by justices of the peace presiding over Part I and II trials as a calculation tool, it is estimated that $9.2 million of justice of the peace expenditures relate to hearing these less serious offences. Additional POA administration costs borne by municipalities would include the cost of courtroom facilities, prosecutors, court staff, and related administration (e.g. office equipment for court staff). Given these costs, we must ask whether a less expensive but equally fair forum for the adjudication of these offences should be made available, such as an AMPS process. Such a transition could also promote greater respect for the court system leaving appointed judicial officials to preside over more serious matters.
B. Introduction to Administrative Monetary Penalties
Administrative Monetary Penalty(ies) (AMP or AMPS) systems allow for monetary penalties to be imposed by a regulator for a contravention of an Act, regulation or by-law. The regulator issues an AMP upon discovering that an unlawful event occurred, and it is due and payable subject only to any rights of review that may be available under the AMP scheme. A fine may be distinguished from an administrative penalty in that a fine denotes a criminal or quasi-criminal monetary penalty payable only after an admission of guilt or finding of guilt by a court. An AMP, on the other hand, “does not contain a criminal element and is intended to merely reflect the violation of a law or rule that carries with it a monetary sanction.” It is a regulatory penalty imposed to promote compliance with a given regulatory scheme, and it “is not considered to be a criminal punishment, because it is primarily imposed in order to compensate the state for harm done to it, rather than as a means of punishing the wrongful activity.”
Where an AMP is authorized, there is often some form of review available. The type of review will depend upon the AMP scheme. Quite often the regulator’s decision to impose an AMP is subject only to administrative review by a designated person or body, although sometimes there is a right to appeal the penalty to a court. As with all decisions made by administrative bodies, decisions under AMP systems are subject to judicial review before the Superior Court of Justice.
Of particular interest is the AMP system found in the Municipal Act, 2001. On January 1, 2007, section 102.1 was added to the Municipal Act by the Municipal Statute Law Amendment Act, 2006. This section give municipalities the broad authority to require a person to pay an administrative penalty where the municipality is satisfied that the person failed to comply with a by-law respecting the parking, standing or stopping of vehicles. It is the municipality’s decision whether to create an AMP system for parking violations; should it choose to do so, the POA regime no longer applies.
It is important to note that this authority (as well as the authority for the enforcement of a licensing system established by a municipality under section 151(1)(g) of the Municipal Act) begins with a phrase, “[w]ithout limiting sections 9, 10 and 11”. Those sections confer broad powers on municipalities. Accordingly, it has been argued that the power to establish a municipal system of administrative penalties is not limited to parking and licensing but could potentially apply in respect of any by-law respecting services and things that a municipality is authorized to provide under the broad Municipal Act powers.
Some municipalities have created AMP systems to deal with contraventions of other types of municipal by-laws passed pursuant to the Municipal Act.
For parking enforcement, and as of the time of writing, only the City of Vaughan has put in place an AMP system for parking, but the City of Oshawa has just approved an AMP system for parking starting in early 2011.
The use of AMP systems for other purposes appears to be steadily increasing in Ontario and elsewhere in Canada. Twenty-one statutes in Ontario establish various different administrative penalties. Other terms are sometimes used to describe AMPS. Section 182.1 of the Environmental Protection Act, for example, provides for “environmental penalties” and it is one of the better known AMPS regimes in Ontario. The Metrolinx Act, 2006 also permits by-laws establishing a system of “administrative fees” for regional transit systems (i.e. GO Transit) where a person contravenes by-laws regarding the payment of passenger fees or the stopping, standing or parking of vehicle on certain land. Regulations to the Act prescribe administrative and procedural requirements for any administrative fee by-law that are similar to the requirements under the Municipal Act regulation (e.g., notice to the person, review by screening officer, followed by review by hearing officer).
In the United States, the enforcement of parking tickets administratively is quite common. The chart at Appendix B suggests that administrative hearing systems are about as common as the use of courts for the enforcement of parking violations throughout the United States. Many of these systems have been in place for quite some time. New York City moved parking enforcement out of the court system to administrative tribunals in the 1970’s. Chicago’s Department of Administrative Hearings came into effect in 1997, but it was in 1990 that the city decriminalized parking matters and its Department of Revenue began holding administrative hearings for a variety of matters including parking. Now, Chicago’s Vehicle Hearings Department hears parking and vehicle equipment matters.
C. AMPS as an Alternative to the POA Regime
Given the volume of minor Part I and II offences heard by the Ontario Court of Justice, the cost of administering POA courts, and the increasing use of AMP systems in Canada and elsewhere, one must ask whether Ontario’s POA regime should rely more heavily on AMPS as an alternative to the court process. Another key consideration is whether respect for our judicial system is promoted when court resources are used to hear very minor offences. We first look at the following general areas before considering whether AMPS should be used to enforce certain matters currently prosecuted under the POA:
The policy arguments for and against AMPS generally;
The AMP system for parking infractions under the Municipal Act and its use in the City of Vaughan;
The application of the Charter to an AMPS system; and
Duty of fairness in an AMPS system.
We conclude with recommendations for reform.
Policy Arguments for and against AMPS Generally
The focus of our recommendations is on the use of AMPS for parking and other minor offences, but we begin with a summary of the arguments for and against AMPS generally.
Several scholars and practitioners argue that AMPS are the more efficient alternative as compared to the court process. While the many AMP systems provide for significantly different levels of procedural protection, they are generally less protective and more informal than the court process. With POA prosecutions, formal rules of court must be followed, defence and prosecutors must prepare their case and witnesses, and detailed disclosure may be required. These are not traits of most AMP systems. The standard of proof required in AMP systems is often lower than in a typical regulatory prosecution, which can eliminate much of the issues typically dealt with at trial. For example, subsection 182.1 of the Environmental Protection Act states that the requirement to pay an environmental penalty is not subject to the defences of reasonable care and reasonable belief in a mistaken set of facts. Therefore, administrative penalties are generally seen as a quicker and less expensive option than court proceedings.
It has also been argued that an enforcement system that employs AMPS is more effective than a system that relies exclusively on regulatory or criminal prosecutions. The cost, complexity and time demands associated with these prosecutions can deter regulators from enforcing a violation leading to what Richard Macrory calls a “compliance deficit” – the failure to undertake enforcement action for known non-compliances because of a lack of resources to enforce effectively. Macrory acknowledges that it is hard to assess the general level of compliance with regulatory standards because tangible evidence is lacking. However, 60% of the respondents to his study believed that the then current system in the UK for enforcing regulatory violations was inadequate and 66% supported the greater use of AMPS.
One study by Professor R.M. Brown looked at investigations done by regulators in British Columbia and the United States who use AMPS to enforce occupational health and safety standards. Brown then compared them with investigations done by Ontario’s Ministry of Labour to enforce its Occupational Health and Safety Act through POA prosecutions. The study concluded that there is a greater probability of penalties for violations of standards when AMPS are used as compared to prosecutions. To explain why enforcement through an AMPS scheme is more effective, the study cites the cost of adjudication in court, the work involved in preparing for a prosecution, the difficulty in securing a conviction and the delay involved in judicial determinations. Brown goes on to argue that certainty of punishment has a stronger impact on complian