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 compliance than the severity of the punishment. For this reason, one might argue that if AMPS are not the exclusive enforcement tool, they should at least be available within the regulator’s toolbox. If available, compliance rates can be expected to be better than in systems that rely solely on prosecutions.
Also, AMP systems often have decision-makers who possess expertise that the court typically does not have and, therefore, administrative decision makers may be better equipped to ensure that regulatory goals are met. A common example is environmental protection matters where members of specialist environmental tribunals possess or develop the technical and scientific expertise needed to realize regulatory goals.
The Saskatchewan Law Reform Commission (SLRC), however, has identified concerns with features of some AMP models. It expressed unease around regulators investigating breaches and then adjudicating upon any review of the AMP arising from breaches discovered. The duty of fairness requires that the decision maker be unbiased and independent. It also requires that a person have an opportunity to present his or her case and respond to the evidence and arguments that others advance. The SLRC notes that in many administrative contexts the investigative versus adjudicative functions of the decision maker are separated or there is an appeal to an independent adjudicator. However, many of Saskatchewan’s AMP systems have no statutory right of appeal to a court or review by any other independent decision maker. As will be considered in the discussion of AMPS for parking infractions, procedural protections set out in the Municipal Act regulations and municipal by-laws respond to these duty of fairness concerns.
A further apprehension with AMPS is that other enforcement tools may no longer be used. Prosecutions remain a valuable tool in the regulatory pyramid, yet regulators may rely excessively on AMPS and not bother with more cumbersome, costly and complex prosecutions. There is some support for this concern. Brown’s study found that the two regulators studied who have the ability to use AMPS and prosecute relied almost exclusively on AMPS. Brown studied the Occupational Health Safety and Health Administration (OSHA) in the US and found that even for willful violations causing death, the OSHA used AMPS more than criminal prosecutions and their associated sanctions.
Regulatory directives or guidelines could be introduced to respond to this fear. The offence-creating statute or other authority can specify that AMPS are not available for certain categories of serious offences, or enforcement policies can set out when AMPS are appropriate and when prosecution should be pursued. The attractiveness of AMPS also raises concerns that regulators will ignore tools at the lower end of the pyramid, such as warning letters, and go straight to AMPS. While AMPS can be a useful addition to the regulator’s toolbox, they are one tool only and there ought to be guidance on when it is appropriate to use AMPS over other available enforcement tools.
Another contributor to the Project asked whether the real reason for AMPS is to get around the ruling in the R. v. Sault Ste. Marie (City) decision that regulatory offences are most appropriately treated as strict liability offences rather than offences of absolute liability. With absolute liability offences, the defence of due diligence is not available and all that is required is proof that the offence occurred. By imposing an AMP upon discovering a breach of a regulatory standard, the matter would be treated very much like an absolute liability offence if there were no possibility of raising a due diligence defence at a subsequent hearing. Indeed, subsection 182.1(6) 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. If Sault Ste. Marie represented a solution that is fairer than absolute liability, he asked whether it is good public policy to allow authorities to circumvent this decision merely by calling the offence by a different name, lowering the amount of the penalty, putting the case before a tribunal instead of a court, and perhaps calling the penalty “compensatory” or using other language that suggests the penalty isn’t really a penalty?
Arguably, this might be a very real concern for offences that carry significant penalties, but less of a concern for very minor offences now dealt with through an AMP system. In fact, one could argue that the creation of AMPS for minor absolute liability offences is a logical and appropriate extension of the reasoning in Sault Ste. Marie which resulted in a different approach to different types of public welfare offences – those that are least like true crimes and which carry modest penalties (i.e. absolute liability offences) are not to be treated like true crimes with full rights of defence. Moreover, since Sault Ste. Marie, the courts have considered AMPS involving very significant penalties. These cases suggest that the court takes little issue with legislative enactments that move some traditional offences into an AMPS regime provided certain safeguards are in place. We discuss the court’s treatment of other AMP regimes in section 3 of this chapter on “Constitutional Considerations for AMPS”.
Finally, responsive regulation and the regulatory pyramid provide a compelling argument for making a diverse and flexible toolkit available to regulators. A criminal or regulatory prosecution is not always the appropriate response for every violation of a regulatory statute. It would be unfair to prosecute someone criminally for a minor violation when there may be significant stigma attached to a criminal conviction, as well as other serious repercussions that follow such a conviction (e.g., impact on professional licensing or ability to serve as a company director). In these circumstances, an AMP may be a more effective and appropriate enforcement tool.
Our review of AMPS in Canada and abroad and the literature documenting their effectiveness and advantages as one enforcement tool creates a compelling case for a gradual shift towards greater use of AMPS throughout Ontario’s offence-creating statutes. It is far beyond the scope of this Report to assess and catalogue all offences that ought to be enforced through AMPS. Depending upon the nature of the offence and the purpose of the offence-creating statute, AMPS may be the exclusive enforcement tool for certain contraventions, or simply one mechanism available within the regulator’s toolbox when less severe tools (such as warning letters) or more severe tools (such as prosecutions and licence suspensions) are neither effective nor appropriate.
As a starting point for reform, there is a strong prima facie case to move all Part II parking infractions out of court and into an AMPS regime. We discuss moving parking infractions into an AMPS regime next, followed by an assessment of whether other minor traffic offences, including ones under the Highway Traffic Act, should also be subject to an AMPS process.
1. The Case for AMPS for Parking Infractions in all Ontario Municipalities
a) Overview of AMPS under the Municipal Act
Section 102.1 of the Municipal Act creates authority for municipalities to impose an administrative penalty where the municipality is satisfied that a person failed to comply with a by-law respecting the parking, standing or stopping of vehicles. If a municipality chooses to set up an AMP system for parking infractions, the POA no longer applies.
Section 3 of O. Reg. 333/07 under the Municipal Act (AMP Regulation) requires a municipality to pass a by-law establishing a system of AMPS if it is to exercise its authority to use AMPS for illegal parking, standing or stopping of vehicles. The by-law must meet the requirements of the AMP Regulation.
The first requirement is a monetary limit. Section 6 fixes a limit of $100 in any by-law establishing an AMP. It states:
6. The amount of an administrative penalty established by a municipality,
(a) shall not be punitive in nature;
(b) shall not exceed the amount reasonably required to promote compliance with a designated by-law; and
(c) shall not exceed $100.
Section 7 creates rules for the administration of an AMP system, which appear intended to prevent political interference in its administration so that decisions made by hearing officers are independent. It reads:
7. A municipality shall develop standards relating to the administration of the system of administrative penalties which shall include,
(a) policies and procedures to prevent political interference in the administration of the system;
(b) guidelines to define what constitutes a conflict of interest in relation to the administration of the system, to prevent such conflicts of interest and to redress such conflicts should they occur;
(c) policies and procedures regarding financial management and reporting; and
(d) procedures for the filing and processing of complaints made by the public with respect to the administration of the system.
Section 8 sets out the procedural requirements of any AMP by-law, addressing procedural fairness matters. It states that a person is entitled to notice of the penalty and to have the penalty reviewed by a screening officer appointed by the municipality. The screening officer may affirm, cancel or vary the penalty. The person may then request a review of the screening officer’s decision before a hearing officer who is also appointed by the municipality. After providing the person with an opportunity to be heard, the hearing officer may similarly affirm, cancel or vary the penalty. Procedures for extensions of time to pay a penalty must be included in any municipal by-law. The Statutory Powers and Procedure Act applies to a hearing officer’s review.
Sections 9 and 10 describe enforcement mechanisms that are similar to those for non-payment of fines ordered by a POA Court. In the event of default of payment of a penalty, a certificate of default may be filed in the appropriate civil court for enforcement purposes. In addition, notice may be given to the Registrar of Motor Vehicles; the Registrar shall not validate or issue a vehicle permit until the penalty is paid. Imprisonment is not a permitted enforcement mechanism for non-payment of an AMP and as noted above, the AMP regulation states that any penalty shall not be punitive in nature.
b) Experience of the City of Vaughan
At the time of writing, the City of Vaughan is the only municipality that has passed a by-law creating an AMP system for parking violations. On August 10, 2009, its AMP system came into effect. Instead of going to the Ontario Court of Justice, any review of the roughly 40,000 parking tickets issued annually by the City go to a screening officer and where a subsequent review is requested, to a hearing officer.
The administrative penalty looks much like a ticket and subsection 10.1(4) of the City’s by-law states that it shall contain the particulars of the contravention, the amount of the penalty, information on how to request a review, and a statement that the penalty will constitute a debt to the City unless cancelled or reduced pursuant to the review process. If the person receiving the administrative penalty wants a review by a screening officer, he or she must call the City and an appointment is set up. Most screening officer appointments are scheduled for a date within two weeks of the call. The person then attends at a City of Vaughan office and provides whatever evidence or submissions they wish and the screening officer makes a decision at that time. The screening officer may affirm, cancel or reduce the penalty, or extend the time for payment on grounds set out in the by-law. If the person wishes to have the matter further reviewed by a hearing officer, he or she makes an appointment at that time and is given a time and date for the hearing with the hearing officer. The second hearing is usually held within five weeks of the date of the screening appointment.
Hearings are held every Tuesday and there are roughly 20 held each day. At the hearing, the person challenging the AMP is in attendance, as well as the hearing officer, a clerk who puts the file together and manages it during the hearing, and the municipal law enforcement officer who wrote the ticket. There is no prosecutor. The City has contracted with two hearing officers, both legally trained and one a retired judge. The person is sworn in, submits any evidence and makes any submissions that they wish. The hearing officer provides a written decision on a pre-printed form usually with a few lines giving reasons for the decision.
Like the screening officer, the hearing officer may affirm, cancel or reduce the administrative penalty, or extend the time for payment on grounds set out in the by-law. The grounds are limited to the penalty recipient establishing on a balance of probabilities that the vehicle was not parked, standing or stopped as described in the penalty notice. This is extremely hard to prove since Vaughan municipal law enforcement officers photograph the car at the time they hand out the penalty and the photograph is always provided to the decision makers. The second ground is undue hardship. As one writer notes, these narrow grounds effectively remove the defence of due diligence and create an absolute liability offence.
From the perspective of the three employees of the City of Vaughan and the hearing officer to whom the LCO spoke, the AMP parking system has been a great success with the following benefits achieved:
· Matters are heard much more quickly. The time to have a matter heard by both a screening officer and hearing officer is typically under two months. This compares with a roughly 10 month wait for parking tickets when they were heard in court.
· Less time wasted by the public. A fixed time for a hearing is now provided. The public does not have to book extensive time off from work to wait around the courthouse until their matter is reached on the docket.
· Savings in costs. Hearings are scheduled during the municipal law enforcement officers’ regular work shift so that it is not necessary to pay them overtime. When parking matters were heard in court, the City would often have to pay the officer overtime since court scheduling was not tailored to the officer’s regular working hours. In addition to the wage savings of the municipal law enforcement officer, no prosecutor attends the hearing.
· Overall reduction in hearings. The percentage of matters going to a hearing officer is roughly 1.5% of tickets issued, which is lower than the roughly 3.5% of tickets that were challenged in court. One might assume that fewer hearings are requested now because people no longer benefit from the delay with the court system, or the potential for dismissal of the ticket because of delay or the absence of the ticketing officer.
· Savings of time for POA Court and prosecutor. Parking offences were taking up valuable court time. Time has now been freed up for the regional prosecutor to bring more serious matters to court more quickly.
· Public satisfaction. Vaughan employees and the hearing officer believed that those who sought review seemed satisfied with the process. They noted that while the AMP system does not involve the same procedure as POA prosecutions, people are still afforded a fair hearing in front of a legally trained, neutral decision maker on matters involving less than $100 (with most between $25 and $35).
· Cost of Hearing Officers is not significant. From a cost perspective, we were told that the additional cost incurred by the City of Vaughan for both hearing officers is not significant. As there is only one day of hearings per week, the annual cost of both hearing officers is approximately $13,000. This additional cost is recovered through revenue from the administrative penalties. Moreover, revenue that was lost from parking tickets that were dismissed or disposed of without a fine payable under the court system no longer occurs. Parking penalty revenue is expected to be the same or greater than under the POA regime.
c) AMPS for Parking Infractions in all Ontario Municipalities
The very positive experience of Vaughan, albeit for only one year, creates a strong case for the use of AMPS for parking infractions in all Ontario municipalities. Some municipalities like the City of Oshawa are in the process of implementing an AMPS system for parking. Legal and operational concerns create reluctance for other cities to adopt an AMPS model at this time.
The first argument against an AMPS parking regime is that it results in no practical difference to the POA system that is currently in place. Under both systems, a parking ticket recipient can pay the penalty (or set fine), or request a review hearing (or trial). Provincial data are not available on the number of people who voluntarily pay fines versus asking for a trial, but if Toronto data are representative of trial requests in other cities, it would appear that only 10% or less of ticket recipients request a trial. Therefore, the only real change, which is the nature of the hearing, would impact only a small proportion of cases. Also, some municipalities have given staff guidelines to cancel a parking ticket under limited specified grounds (e.g., irregularities on the ticket; presenting a parking permit demonstrating that the parking was legal). This is the same function that a screening officer would perform in the AMPS model. Furthermore, some municipalities said that they do not experience long delays in having parking matters heard in POA courts. For these reasons, an AMPS system would offer little practical benefit except that the hearing officer would be a less expensive adjudicator than a justice of the peace.
We do not find this argument convincing. What is important is the actual number of cases that do end up in court, the cost of running courts for this purpose, and the perception it leaves on the public when a judicial officer determines such matters and is thereby unavailable to hear more serious matters that are pending on the court’s dockets. While only 10% or less of all parking tickets may end up on trial lists, in raw numbers, this can represent a significant number of cases that draw upon limited resources. In Toronto in 2009, 129,932 parking trials were heard by justices of the peace, taking up costly court, judicial and prosecutorial resources. Costs include court staff, a prosecutor, overtime costs for enforcement officers to attend, courtroom security and the annual salary of a justice of the peace. Cost savings could be achieved under an AMPS model where hearing officers are paid less than justices of the peace, where prosecutors are not required to attend hearings, and where hearings are scheduled so that enforcement staff can attend without being paid overtime.
Even if a compelling cost argument cannot be established, there is something strikingly disproportionate with having trials of parking infractions heard by an appointed judicial officer in a courtroom. Non-judicial adjudicators in Ontario determine matters of fundamental importance to us, such as violations of our human rights, our rights as tenants to housing, our entitlement to social assistance and our ability to work and be licensed in a chosen profession. Yet, under our current POA regime, it is possible to get a trial before a justice of the peace to adjudicate upon a disputed $30 parking ticket. There are more serious matters with greater public safety implications (e.g. criminal bail, environmental and occupational health and safety offences) that should take precedence over parking violations. In our view, greater respect for the rule of law and the administration of justice would be achieved if court and judicial resources were reserved for more serious matters.
A second argument against an AMPS regime is that AMPS cannot apply to parking tickets issued pursuant to a by-law establishing a system for disabled parking. The result is that certain parking infractions must always be prosecuted in POA courts and that it does not make sense to have an AMPS and POA system for parking infractions – instead, a single system should be adopted. We agree that a single system for all parking infractions is preferred, and therefore recommend the inclusion of these infractions within an AMPS scheme. Again, if Toronto’s experience is representative of the province, only 0.32% of all parking tickets issued in 2009 relate to disabled parking. More importantly, we do not understand the policy rationale for excluding disabled parking tickets from an AMPS regime. If an AMPS system offers a fair, quick, and more accessible forum for resolving disputed parking tickets, we see no reason why it should not be made equally accessible to those who seek a review of a disabled parking penalty. This is particularly true if the ticketed person is disabled and properly displayed a valid disabled parking permit, but the ticketing officer failed to see it.
Fines for parking in a disabled parking spot may exceed the $100 limit for AMPS, and part of the rationale for excluding them may be that the fine is seen as “punitive in nature”. As such, constitutional arguments may be made that the court must hear those offences or that Charter protections apply. As discussed in our constitutional analysis below, AMPS of up to $1 million have been upheld as not contravening the Charter. Accordingly, we believe the limit should be increased or exceptions should be drafted so that all tickets relating to by-laws for the parking, standing or stopping of vehicles are dealt with within an AMPS regime.
A third reason against an AMPS by-law like the one in Vaughan is that unique and different considerations may apply to other municipalities given their nature and size. In Toronto, for example, we were told that a significant volume of its 2.4 million parking tickets are issued to courier trucks and other commercial vehicles that need to make regular stops on Toronto streets. Toronto City Council is currently seeking a report on this issue so that it can properly respond to the competing pressures of facilitating traffic flow and permitting deliveries on some of its busiest streets. This is likely an issue for other urban centres in Ontario, as well. While it is a real issue, we do not see how it affects a decision to adopt an AMPS system. One might expect this issue to be resolved through amendments to the parking, stopping and standing by-laws, but not to a by-law establishing how the former by-laws are to be enforced.
Another unique consideration applicable to larger urban centres is the volume of parking tickets issued, and the resulting cost of administering an AMPS regime. The costs in the City of Toronto are expected to be much larger than the costs in the City of Vaughan. There are also administration costs with setting up and maintaining an AMPS system. However, municipalities are currently responsible for the costs of administering POA courts under municipal transfer agreements, and it would seem that those costs would not necessarily increase and in fact, could well decrease under an AMPS regime.
On the other hand, smaller municipalities said they do not have the volume of parking violations to warrant a separate system. Section 20 of the Municipal Act, however, permits a municipality to enter into an agreement with one or more municipalities “…to jointly provide, for their joint benefit, any matter which all of them have the power to provide within their own boundaries.” Indeed, municipal partnerships have already been made to administer POA courts under Part X of the POA, and these Municipal Partners could similarly share in the cost of an AMPS regime. So it is possible for several smaller municipalities to jointly create an AMPS system for their shared use. The benefits that Vaughan achieved ought to be seriously considered by all municipalities. There may well be other unique considerations, and we recommend that each municipality carefully assess and seek to resolve them with a view to adopting an AMPS regime for all parking infractions.
Time should be permitted for the transition to AMPS. While any date is arbitrary, we believe the transition should occur within two years and the exact date be decided upon after extensive consultations with the municipalities. A lengthy transition period will allow municipalities to put in place their systems carefully and to have the advantage of observing the Vaughan experience (and other municipalities like the City of Oshawa who will soon adopt an AMPS system). Minor operational challenges should not be used to unduly prolong the implementation of an AMPS system; instead solutions to those difficulties should be sought out and implemented so that court and judicial resources can be redirected to more serious matters.
A final concern raised by some municipalities is the constitutionality of using AMPS for parking infractions. If parking infractions are offences to which Charter protections apply, then an AMPS regime that imposes a penalty without a trial or finding of guilt may offend the Charter. We discuss this issue next and conclude that there are strong arguments supporting the constitutionality of an AMPS model like that used in Vaughan.
2. Constitutional Considerations for AMPS
a.) Charter principles applicable to all AMP systems
A critical question is whether the Charter applies to AMPS. The purpose of the offence-creating statute, the nature and purpose of the sanction, and the nature of the proceeding will inform whether the proceeding is one to which the Charter applies. If Charter rights do apply, then an AMP system may be found to be unconstitutional or it may require the addition of further procedural safeguards that could render the benefits of an AMP system negligible. The Charter rights that we examine and which are most relevant are sections 7 and 11.
Section 7 of the Charter states:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
In R. v. Pontes, the Supreme Court held that absolute liability offences that could potentially result in imprisonment infringe section 7 of the Charter. Therefore, any AMP system that has imprisonment as a potential penalty is most likely to offend section 7. The majority of the court, however, left open for another day the issue of the constitutionality of an absolute liability offence punishable by fine with the possibility of imprisonment should payment of the fine go into default and where the legislation has a means test for the imposition and collection of fines.
If the penalty is only a fine, case law suggests that this alone will not engage section 7 rights. In R. v. Transport Robert (1973) Lteé, the Ontario Court of Appeal considered the constitutionality of section 84.1 of the Highway Traffic Act. As discussed in Chapter I, this case involved a defendant who was charged with operating a commercial motor vehicle on a highway when a wheel became detached. It was an absolute liability offence since subsection 84.1(5) provides that due diligence is not a defence to this charge. It carries a maximum penalty of a $50,000 fine, but the defendant could not be liable to imprisonment. The defendants argued that as a result of a combination of the risk of a significant fine being imposed and the stigma attached to a conviction, the section 7 Charter right to security of the person was offended.
The court considered the Supreme Court of Canada’s decision in R. v. Blencoe that canvassed the scope of the section 7 right to security of the person:
In Blencoe v. British Columbia (Human Rights Commission)…, Bastarache J. speaking for the majority held that, “[N]ot all state interference with an individual’s psychological integrity will engage s. 7. Where the psychological integrity of a person is at issue, security of the person is restricted to ‘serious state-imposed psychological stress’”. Thus, “[N]ot all forms of psychological prejudice caused by government will lead to automatic s. 7 violations.” Further, there is no “generalized right to dignity, or more specifically, a right to be free from stigma” … and, “[d]ignity and reputation are not self-standing rights. Neither is freedom from stigma” …
The court went on to hold that despite the high fine, section 84.1 of the Highway Traffic Act did not engage the security of the person guarantees in the Charter:
However, we are not convinced that a prosecution for the s. 84.1 offence engages the kind of exceptional state-induced psychological stress, even for an individual, that would trigger the security of the person guarantee in s. 7. The offence does not create a true crime, and like most regulatory offences, it focuses on the harmful consequences of otherwise lawful conduct rather than any moral turpitude. . . . The s. 84.1 offence focuses on the unintended but harmful consequences of the commercial trucking industry. We reject the proposition that a defendant charged with this offence is stigmatized as a person operating in a wanton manner, heedless of the extreme dangers to life and limb posed by his or her operation. Conviction for the offence at most implies negligence and like the misleading advertising offence considered in Wholesale Travel, any stigma is very considerably diminished.
The diminished stigma attached to the s. 84.1 offence is not sufficient to trigger the security interest in s. 7 even when coupled with the possibility of a significant fine. This is simply not the kind of serious state-imposed psychological stress that is intended to be covered by security of the person. It is qualitatively different than the kinds of stresses that have been recognized in the cases.
In a recent decision of the Alberta Court of Appeal, Lavallee v. Alberta (Securities Commission), the court considered an AMP system under the Securities Act that could result in penalties of up to $1 million per contravention. The appellants argued that clauses 29(e) and (f) of the Securities Act were contrary to sections 7 and 11 of the Charter because the effect of them was to require the Securities Commission to admit all evidence marginally relevant to the matter, regardless of that evidence’s probative value, prejudicial effect or reliability. The court disagreed with the above interpretation of clauses 29(e) and (f), but stated that if it had reached a different interpretation of the two clauses, sections 7 and 11 of the Charter are not applicable to administrative proceedings and did not protect economic rights. In dealing with section 7, the court found that consequences of the large penalties were not sufficient to trigger s. 7:
As Bastarche J. stated at para. 83 of Blencoe, the s. 7 security of the person interest is triggered only in exceptional cases where the state interferes in profoundly intimate and personal choices; such choices “would not easily include the type of stress, anxiety and stigma that result from administrative or civil proceedings”.
I agree with the chambers judge that the effect of the potential consequences faced by the appellants does not compare to the kind of stigma attached to an overlong and vexatious criminal trial or proceedings initiated to remove a child from parental care. The appellants’ s. 7 rights are not engaged here.
It is noteworthy that the application for leave to appeal this decision to the Supreme Court of Canada was dismissed.
In summary, it would appear that AMP regimes that provide for purely monetary penalties and for which there is no possibility of incarceration are unlikely to engage section 7 of the Charter. The more interesting question is whether section 11 of the Charter would apply to AMPS imposed for breaches of regulated activity.
The parts of section 11 relevant to this analysis are:
11. Any person charged with an offence has the right …
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;…
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;…
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;
The Supreme Court of Canada’s decision in R. v. Wigglesworth is the starting point to the analysis of section 11. Justice Wilson restricts the application of section 11 to criminal or penal matters and then formulates a test to determine if a particular proceeding is a criminal or penal proceeding. As Archibald, Jull and Roach note, the Wigglesworth case seems to create “two separate levels of analysis to make that determination: (1) the “by nature” test, and (2) the “true penal consequence” test.”
With regards to the “by nature” test, Justice Wilson states:
There are many examples of offences which are criminal in nature but which carry minor consequences following conviction. Proceedings in respect of these offences would nevertheless be subject to the protections of s. 11 of the Charter. It cannot be seriously contended that just because a minor traffic offence leads to a very slight consequence, perhaps only a small fine, that offence does not fall within s. 11. It is a criminal or quasi-criminal proceeding. It is the sort of offence which by its very nature must fall within s. 11.
The court then sets out the “by nature” test and describes matters that fall within section 11:
In my view, if a particular matter is of a public nature, intended to promote public order and welfare within a public sphere of activity, then that matter is the kind of matter which falls within s. 11.
Proceedings to which section 11 would not apply, because of their nature, are then described:
This is to be distinguished from private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited private sphere. . . . Proceedings of an administrative nature instituted for the protection of the public in accordance with the policy of a statute are also not the sort of “offence” proceeding to which s. 11 is applicable.
Wilson J. went onto state that even where a proceeding passed the “by nature test” it would still be subject to section 11 if it provided for a true penal consequence. A true penal consequence that would attract the application of section 11 was imprisonment or a fine, the magnitude of which “would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity.”
Many AMP systems could be classified as being of an administrative nature instituted for the protection of the public in accordance with the policy of a statute. The “by nature” analysis was elaborated upon by the Supreme Court of Canada in the decision of Martineau v. M.N.R. In this case, a customs officer ordered Mr. Martineau to pay $315,458 under section 124 of the Customs Act. This process is widely known as “ascertained forfeiture”. The amount of the demand was the deemed value of the goods that he had allegedly tried to export by making false statements. Mr. Martineau requested that the Minister of National Revenue review the custom officer’s decision, but the Minister upheld the order for payment. Mr. Martineau then appealed the Minister’s decision by way of an action, which led to the Minister filing a motion to examine Mr. Martineau for discovery.
Mr. Martineau argued that discovery would violate his right against self-incrimination guaranteed under s. 11(c) of the Charter and this was the issue before the Supreme Court. To answer this question, the court had to determine whether Mr. Martineau had been charged with an offence. After examining its decision in Wigglesworth, the Court stated that a distinction must be drawn between penal proceedings on the one hand and administrative proceedings on the other, with only the former attracting the application of section 11. The court set out three criteria to determine if a proceeding is penal or administrative in nature.
The first criterion is the objective of the Act and the section in question. The Customs Act’s objectives are to “regulate, oversee and control cross-border movements of people and goods.” To do this, reporting requirements under the Act must be enforceable, which is the purpose of section 124 of the Customs Act under which the customs officer made his order. The court is clear that the focus of this inquiry is on the nature of the proceedings not the nature of the act that gives rise to the proceeding. Therefore, it was irrelevant to the court’s determination that the violation of the Customs Act could have been enforced by prosecution rather than demand by written notice, as was the case in Martineau.
The second criterion is the purpose of sanction. The court held that the purpose of ascertained forfeiture is not to punish the defendant to create a deterrence effect. Instead, the purpose is to ensure compliance with the Customs Act by giving customs officers a timely and effective method of enforcement. It is not designed to punish the offender, though the court concedes that it may have that effect in some cases. It is true that ascertained forfeiture can deter, however, actions in civil liability and disciplinary hearings that also aim to deter are not thereby criminal proceedings. Finally, the court said there was nothing to indicate that the ascertained forfeiture was to redress a wrong to society. It notes that section 124 does not take into account principles of sentencing or criminal liability in reaching this conclusion.
The final criterion examines the ascertained forfeiture process. Section 124 requires a customs officer to have reasonable and probable grounds that there has been a violation of a Customs Act provision. If this is the case and it has been established that it would be difficult to seize the actual goods, the amount of money equal to the value of the goods may be demanded. The person who receives the notice of demand can ask the Minister of National Revenue to review the decision. The Minister then serves a notice of reasons in support of the sanctions and the person has 30 days to make submissions and submit evidence in writing to the Minister. The Minister then makes a decision on the review request. This decision is not subject to review except that the person may appeal it by way of action to the Federal Court.
The court found that this process is not at all like a penal process. No one is charged, no one is arrested, no one is summoned to appear before a court of criminal jurisdiction and no criminal record follows from the proceedings. The worst thing that can happen is that a person may be subject to a civil action if the person exhausts all avenues of appeal and still refuses to pay.
The Supreme Court concluded that the notice of ascertained forfeiture was administrative in nature, but recalling its judgment in Wigglesworth, it says that in cases where the “by nature” test conflicts with the “true penal consequences” test the latter trumps the former. Therefore, the court considered whether the notice of ascertained forfeiture was a true penal consequence. It noted that there is no chance of imprisonment and then considered whether the money demanded under section 124 “constitutes a fine that, by its magnitude, is imposed for the purpose of redressing a wrong done to society at large, as opposed to the purpose of maintaining the effectiveness of customs requirements.”
The court said that while the amount of $315,458 is greater than the maximum fine that could be imposed on a person upon summary conviction for the same act, if it had proceeded by way of indictment the fine could have been as large as $500,000. Further, a fine on summary conviction or indictment must take into account the factors and principles governing sentencing and is clearly penal in nature. Ascertained forfeiture, on the other hand, is civil in nature, purely economic and arrived at by a simple mathematical formula. The court also stated that the demand does not stigmatize anyone. There is no criminal record, the purpose is not to punish and principles and factors of sentencing do not apply. The court concludes that a notice of forfeiture does not lead to true penal consequences for Mr. Martineau.
We return to the Lavallee case of the Alberta Court of Appeal because it is noteworthy given the amount of the penalty in that case. The court applied the Wigglesworth decision to determine if section 11 of the Charter applied to the AMPS system created by the Securities Act. It found that administrative hearings before the Securities Commission generally fall into the category of “administrative proceedings instituted for the protection of the public in accordance with the policy of a statute.” It then went on to consider whether, despite the nature of the proceeding, the Security Commission proceedings resulted in true penal consequences. The appellants argued that a fine of up to $1,000,000 per contravention is a true penal consequence. The Court of Appeal rejected this argument and stated that the purpose of the sanction and the Securities Act must be considered along with the magnitude of the penalty. The purposes of the Securities Act include the “protection of investors and the public, the efficiency of the capital markets, and ensuring public confidence in the system.” In this light, the magnitude reflects the legislature’s intent that the penalties are not considered just another cost of doing business and that no true penal consequences arise. Finally, the Court of Appeal held that general deterrence is a relevant factor when the Commission imposes a sanction that is intended to be “protective and preventative.”
b.) Applying the Charter to the AMP system for Parking Infractions
In our view, an AMP system for parking infractions similar to the model adopted by the City of Vaughan and authorized under the Municipal Act and its regulations would not attract the protections of sections 7 and 11 of the Charter. We offer the following analysis in support of our recommendation that all municipalities implement an AMPS system for parking infractions and that their prosecution be taken out of the POA.
First, for section 7 rights to be engaged there must be a life, liberty or security of the person interest at stake. None appears to be at stake given the nature of the penalty authorized under the Municipal Act regulations. First, imprisonment is not a permitted penalty. Second, the monetary penalty cannot be punitive in nature, shall not exceed the amount reasonably necessary to promote compliance, and in no case can it exceed $100. One need only compare the fine of $50,000 in Transport Robert, or the $1,000,000 penalty in Lavallee, and the court’s finding in both cases that these amounts do not attract the level of stigma necessary to engage section 7 rights, to find further support for our view that a $100 penalty for a parking infraction is unlikely to engage section 7 rights. Over time, one might expect modest and incremental increases to the $100 maximum. The decisions in Transport Robert and Lavallee coupled with the objective of promoting compliance with parking by-laws would suggest that reasonable increases to the $100 maximum would also survive a section 7 challenge.
The Supreme Court in R. v. Pontes left open whether the possibility of imprisonment for unpaid fines could give rise to a section 7 right, and therefore, we consider whether incarceration is a possibility should a person refuse to pay an AMP. In R. v. Bowman, the Ontario Court of Justice held that the possibility of being imprisoned for an unpaid parking ticket under the current POA regime was too remote to trigger section 7 rights. The court noted that imprisonment is not a direct penalty arising from a parking infraction conviction; it is only possible after a further hearing before a judicial officer and even once that occurs, it remains a remote possibility since there must be a showing that the person is able to pay the fine but refuses to do so and that imprisonment is not contrary to the public interest. (As noted previously, imprisonment for unpaid fines is not truly available in Ontario today since section 165(3) precludes this enforcement option once municipalities have entered into transfer agreements with the Province. Agreements are now in place throughout Ontario, and therefore, imprisonment is unavailable as an enforcement tool to municipalities for unpaid fines. In fact, no one was imprisoned for non-payment of a fine in recent years, based on data from the Ministry of the Attorney General for 2007 and 2008.)
Similarly, if imprisonment can occur under the AMPS parking regime, it would appear to be a very remote possibility that is not directly related to the penalty. Section 9 of the regulation allows municipalities to file a certificate of default with the Small Claims Court or Superior Court of Justice where a fine is not paid, and the certificate is deemed to be an order of the court and can be enforced as such. Arguably, if someone were to refuse to abide by enforcement proceedings in these courts (e.g., fail to attend a judgment-debtor examination or answer a relevant question), he or she could be incarcerated for contempt of court after a further contempt hearing before a judge. But such incarceration would arise from a failure to abide by orders of those courts and not because of a failure to pay the penalty. Indeed, this would be true in any civil enforcement proceeding.
The case of London (City) v. Polewsky is also instructive. In that case, the Ontario Court of Appeal considered whether the potential risk of imprisonment arising from default proceedings under section 69 of the POA could give rise to section 7 Charter rights in the original POA proceeding. After noting that section 69 provides for separate default proceedings from the original trial of the provincial offence and that it also requires an assessment of the person’s ability to pay the fine, it held that the risk of imprisonment in default was sufficiently remote so as not to engage a liberty interest under section 7. Similarly, under the AMPS regime authorized by the Municipal Act regulation, the enforcement of a certificate of default would be made in a different proceeding in a civil court. Moreover, section 8 of the regulation requires municipalities to establish procedures to permit persons to be excused from paying all or part of an AMP where requiring payment would cause undue hardship. This also reduces the prospect of a penalty being enforced against a person who is unable to pay it. For these reasons, we believe that the possibility of imprisonment under the AMPS regime is sufficiently remote as not to engage a liberty interest under section 7 as it would only arise from a separate proceeding for contempt of court.
We now consider whether section 11 rights would be engaged. Section 11 only applies to penal proceedings, not administrative proceedings. To determine whether the AMP regime for parking infractions is a criminal (penal) or administrative proceeding, we turn to the three criteria set out in Martineau.
The first is the objective of the statute and regulation. Subsection 3(2) of the regulation describes the purpose of a system of administrative penalties:
The purpose of the system of administrative penalties established by the municipality shall be to assist the municipality in regulating the flow of traffic and use of land, including highways, by promoting compliance with its by-laws respecting parking, standing or stopping of motor vehicles.
This purpose of this legislation is regulatory rather than criminal. The AMP scheme seeks to promote compliance with parking by-laws, which are there to regulate the flow of traffic and use of land. The emphasis is on compliance and the prevention of harmful consequences rather than punishment of past conduct. One can infer that the AMP system is intended to deter illegal parking but this does not mean that its purpose is criminal. In Martineau, Mr. Justice Fish held that actions in civil liability and disciplinary hearings that are also “aimed at deterring potential offenders, nevertheless do not constitute criminal proceedings.”
The second criterion is the purpose of the sanction itself. Similar to the analysis in Martineau, the purpose of the administrative penalty is to ensure compliance with parking by-laws by providing the municipal law enforcement officers with a cost effective and timely method of enforcement. AMPS are not designed to punish a person who violates the by-law; in fact, the regulation demands that any penalty imposed not be punitive in nature. The monetary limit of the penalty of $100 is low and a much steeper penalty, one would argue, would be necessary to achieve a penal purpose. Finally, the regulation does not require a consideration of the principles of criminal liability and sentencing before the AMP is issued; the City fixes the amount of the penalty before the infraction occurs, and the amount does not vary based on repeated infractions or other factors of those who contravene the by-laws.
The final criterion is the AMPS proceeding. Under the regulation, an AMP may be issued if a vehicle has been left parked, standing or stopped in contravention of a designated by-law. The owner must be given notice of the penalty and be advised of the right to request a review by a screening officer and hearing officer. Only the hearing officer is required to hold a hearing and the Statutory Powers and Procedures Act (SPPA) applies. The SPPA applies to tribunals, not courts. The rules of evidence relating to tribunals in the SPPA are different from those that apply in court proceedings. For example, a hearing officer can admit oral evidence even when it is not under oath or affirmation and can accept all relevant evidence unless the testimony or documentation is inadmissible due to a privilege under the law of evidence or a provision in a statute. The decision of the hearing officer is final and not subject to an appeal.
Like the process in Martineau, this process is much closer to an administrative hearing than a judicial criminal hearing. No one is charged, no information is laid, no one is arrested and no one is summoned to appear before a court of criminal jurisdiction. No criminal record follows from an administrative penalty and if the person refuses to pay, the worst that might happen is that civil enforcement proceedings are initiated and the Registrar of Motor Vehicles may refuse to validate or issue a new vehicle permit to that person.
Based on the three criteria set out in Martineau, there is a strong argument that an AMPS system like the one used in Vaughan is administrative in nature rather than criminal or penal. This analysis can be trumped by the true penal consequences analysis. The maximum fine that can be imposed under the regulation is $100 and the regulation is clear that the amount under this cap cannot be punitive and cannot exceed the amount reasonably required to promote compliance. Given these limits, it seems much more like a penalty that promotes compliance with parking, standing and stopping of motor vehicle by-laws, than one that is imposed to redress a wrong done to society at large. Indeed, one might argue that the limit of $100 could be increased to at least $500 (and potentially higher over time) so that it may cover penalties that promote compliance with by-laws respecting disabled parking. We say this given the willingness of the Court to find much larger AMPS not subject to Charter protections as was done in Lavallee. We are also of the view that steeper penalties may indeed be necessary to promote compliance with disabled parking by-laws, given the strong social interest of accommodating persons with disabilities with appropriate parking.
To conclude, in our view, the AMP regime prescribed under the Municipal Act and its regulations for enforcing municipal parking by-laws does not appear to offend sections 7 or 11 of the Charter. We are supported in this conclusion by the fact that AMPS are already in place throughout Ontario in several other contexts and by some municipalities, that they have been duly considered and analyzed for their constitutionality by government prior to implementation, and that they have subsequently been upheld by various courts. As the above analysis demonstrates, we are hard pressed to identify any constitutional concerns with the model AMP parking by-law permitted under the Municipal Act. In our view, constitutional concerns should not be tabled as a reason to delay implementation of a province-wide AMPS parking regime.
3. Duty of fairness concerns in an AMPS system
The duty of procedural fairness applies to an administrative decision that affects “the rights, privileges or interests of an individual”. Therefore, where a regulator imposes an administrative penalty, a level of procedural fairness must be afforded to those who are subject to the penalty. The Superior Court of Justice has jurisdiction to judicially review the procedure used by any administrative body and it may make various orders to ensure the appropriate level of procedure is afforded.
Generally speaking, the duty of procedural fairness includes some measure of the following procedural rights: (a) notice that an individual’s rights, privileges or interests may be affected with sufficient information so that the person may respond; (b) an opportunity to be heard orally or in writing and to make representations to the decision-maker before a decision is made; (c) an impartial decision maker with decisions that are made free from a reasonable apprehension of bias; and (d) a right to know the decision, and in some cases, the reasons for the decision.
The concept of procedural fairness is variable and dependent upon the context of each case. In Baker v. Canada, the Supreme Court held that the content of the duty of fairness depends on the type of right and the circumstances of the case. The Court listed five factors that affect the content of this duty. Underlying these factors
…is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
We discuss each factor briefly in relation to the AMPS regime for parking infractions under the Municipal Act, AMPS Regulation, and the City of Vaughan by-law.
(i) Nature of the decision being made and process followed in making it
This factor examines how close the administrative process is to a judicial process. The closer the process is to a judicial process the more likely it is that procedural protections used in trials will be required.
The AMPS procedure is very different from the procedure in a POA court: the hearing officers are not judicial officials; the first stage of review by a screening officer is more in the nature of a meeting than a hearing; the process is not adversarial as there is no prosecutor; there is an opportunity for the ticket recipient to be heard at a meeting with the screening officer and then before the hearing officer, but the strict rules of evidence used in court do not apply before a hearing officer; the issue at the hearing is not whether a “fine” should be imposed, but whether the “penalty” should be varied or cancelled, or whether an extension of time for payment should be granted. Taken together, the AMPS hearing process appears to be much closer to an administrative than a judicial hearing.
(ii) Nature of the Statutory Scheme
Subsection 3(2) of the AMPS regulation states that the purpose of the administrative penalty system is to help municipalities regulate “the flow of traffic and use of land, including highways by promoting compliance” with its parking by-laws. The purpose is not to punish, which would suggest greater procedural protections. Furthermore, there are two levels of review of the initial decision to impose a penalty – first by a screening officer and then by a hearing officer – which provides further procedural protection.
(iii) Importance of the Decision to the Individual
The importance of the decision to the individual affected is a significant factor in considering the content of procedural fairness. Compared to other interests that are the subject of administrative or judicial hearings, a maximum penalty of $100 cannot be said to be a significantly important interest that demands a full trial process. Moreover, review procedures are built in to assess if the fine would cause undue hardship and extensions of time to permit payment may be granted. Where the person refuses to pay a penalty, the Registrar of Motor Vehicles can refuse to validate or issue a new permit to the person until it is paid. Still, these are fairly minor and easily remedied consequences and do not compare to the significant interests that are typically impacted in civil, family or criminal court proceedings.
(iv) Legitimate Expectations of the Person Challenging the Decision
In some cases the legitimate expectations of the person challenging the decision can inform the content of the duty of procedural fairness. For example, where a person has a legitimate expectation that they will be able to make oral arguments before an unbiased decision maker, which may inform the type of hearing provided. A legitimate expectation, however, can only give rise to a procedural right, not a substantive right. We are not aware of any assertions by the City of Vaughan that would create expectations of a procedure that is beyond what is set out in its AMPS by-law, and which may give rise to additional procedural protections based on legitimate expectations.
An argument may be made that those confronted with a parking AMP will equate it with a parking ticket based on their past experience with tickets. They may come to expect certain processes to continue to be in effect, such as the Parking Ticket Cancellation Guidelines issued to staff in the City of Toronto directing when parking tickets may be cancelled without appearing before a justice. These guidelines list numerous situations in which a parking ticket may be cancelled administratively, such as where there is incorrect or missing information on a ticket, or where a person presents a permit evidencing their authority to park. While this argument may be made, a more rational approach would be to continue to adopt these cancellation guidelines as the grounds upon which a screening officer may cancel a parking AMP.
(v) The Choice of Procedure Made by the Agency
A fifth factor in assessing the content of the duty of fairness is deference to the choice of procedure adopted by the agency itself. The AMPS Regulation prescribes the most important procedural components of any municipal AMPS by-law for parking infractions, and there is little room remaining to deviate from the procedure prescribed. One would expect some deference to the few additional procedural details provided for in a municipality’s AMPS by-law.
In light of the above analysis, we are of the view that the content of the duty of procedural fairness in an AMPS parking regime should be much less than one might expect at a full trial involving more significant rights or interests. The Vaughan AMPS regime, which is based largely on the requirements of the AMPS Regulation, contains significant procedural protections that, in our view, are sufficient given the interests at stake and the nature and purpose of the AMPS regime for parking violations. These protections include:
Notice of the penalty with particulars of the contravention and information on how to exercise a right of review;
A right to have the penalty reviewed by a screening officer at a meeting;
A further right of review before a hearing officer at a hearing;
An opportunity to make oral representations to the hearing officer; and
All the procedural protections set out in the SPPA.
With respect to the independence of the decision-maker and protecting against a reasonable apprehension of bias, the City of Vaughan By-Law 157-2009 prohibits interference with decisions made by the screening or hearings officers. It states:
6. No person shall attempt, directly or indirectly, to communicate for the purpose of influencing a Screening Officer or a Hearings Officer respecting the determination of an issue respecting a Delegated Power of Decision in a proceeding that is or will be pending before the Screening Officer or Hearings Officer except a person who is entitled to be heard in the proceeding or the person’s lawyer or licensed paralegal and only by that person or the person’s lawyer or licensed paralegal during the hearing of the proceeding in which the issue arises. Failure to comply with this section constitutes an offence.
Finally, the AMPS regulation requires that the appointment of a hearing officer be consistent with conflict of interest guidelines. Vaughan’s by-law states that City Council members and relatives are ineligible for appointment as a screening or hearing officer. It would appear that the Vaughan by-law puts in place sufficient protections to ensure independent decision-making by the screening and hearing officer.
4. Use of AMPS for Minor Offences under Part I
80% of Part I charges relate to offences under the Highway Traffic Act and its regulations, representing approximately 1.6 million charges each year that take up approximately 30,000 hours of time by justices of the peace. Many offences would be considered minor. They take up enormous court and judicial resources that could well be directed to more serious offences. While we highlight minor Highway Traffic Act offences, there are other provincial statutes for which AMPS may be appropriate. For example, the Building Code Act, 1992 is municipally enforced. It provides a system of administrative orders with corresponding rights of review and appeal. A system of administrative penalties is a natural extension of these existing systems to encourage compliance in advance or possibly in lieu of a POA prosecution. The current use of judicial officials to dispose of these minor offences may not promote respect for the administration of justice. For these and other reasons, Archibald, Jull and Roach argue that minor speeding offences should be transferred out of POA courts and into an AMPS regime:
Resource considerations suggest that for minor provincial offences, we ought not to use our courts at all. Minor speeding offences are a perfect subject for administrative monetary penalties. In our view, the present practice of utilizing courts, presided over by Justices of the Peace, to adjudicate minor speeding offences, does not make great practical sense. Moroever, the practice is inconsistent with the move towards administrative monetary penalties in other sectors such as the environment.
The legal, policy and constitutional arguments relating to parking AMPS systems would be relevant to an analysis of whether minor Part I offences should also move to an AMPS regime. Having said that, careful consideration of a variety of additional legal, policy and operational issues should be undertaken before moving minor offences, including minor Highway Traffic Act offences, into an AMPS system. They include:
· Which offences? There are hundreds of Highway Traffic Offences and many other minor offences under other statutes that could potentially be subject to an AMP. An assessment of which should qualify for an AMP will have to be made, and for consistency, that decision should be based on a rationale and consistently applied threshold test.
· When to impose an AMP or commence a prosecution? Some offences may be considered minor in some circumstances (e.g. driving without a licence because the driver forgot his licence at home) but more serious in others (e.g. driving without a licence because it was previously cancelled by the Registrar of Motor Vehicles because of prior convictions). Would the enforcement officer have jurisdiction to issue an AMP or elect a POA prosecution?
· Nature of offence – absolute vs. strict liability. Whether offences that are now strict liability offences would effectively become absolute liability offences if enforced through an AMPS regime. Would a defence of due diligence be available for some offences before a hearings officer under an AMPS regime, or would they expressly be excluded by statute as is done for environmental penalties under the Environmental Protection Act? If due diligence defences were to be maintained, might it be possible to outline those defences in guidelines to be used by a hearing officer which could also be made available to the public?
· The penalty and constitutional considerations. Whether the proposed penalty contemplates imprisonment or another punitive penalty. The quantum of any penalty should not be punitive; if so, it might invoke Charter rights.
· Other legal and policy issues. For example, how might an AMPS hearings officer deal with an unlawful arrest or search that arose during the commission or investigation of a Part I offence, and under what authority would a hearing officer exercise any remedial powers? Also, would people still be prepared to comply with important regulatory standards if they know that the only consequence was a monetary penalty, versus a potentially more severe penalty that could be issued only by a justice of the Ontario Court of Justice (e.g. probation, licence revocation)?
· Implementation issues. The volume of cases would be significant, and municipalities would have to develop and implement appropriate structures and staffing to accommodate the expected case volume. Appropriate IT infrastructures would also have to be in place to allow for appropriate reporting to government agencies/ministries for enforcement purposes (e.g. Registrar of Motor Vehicles).
· Creating two discrete systems. If an AMPS system for certain minor offences is created, but the current POA system is to be maintained for other offences, there would be two discrete systems. There may be economies of scale achieved by keeping a single system for all Part I and III offences, rather than creating a new and separate system for only certain minor offences.
The sheer volume of Part I offences and the time devoted to their disposition require that this issue be further investigated. We believe that the system could benefit from the Ontario government undertaking an analysis of which minor provincial offences, and most notably, minor Highway Traffic Act offences, ought to transition to an AMPS system after due consideration of all legal, policy and operational issues.
Use of AMPS for Parking Enforcement by First Nation Communities
A further potential reform option was presented to the LCO very close to the completion of this Interim Report. We table it briefly as an issue worthy of further review and consideration.
First Nation (FN) communities are not considered a “municipality” as this term is defined under the Municipal Act. Therefore, they have no authority to establish an AMP system or collect AMPS to enforce by-laws on FN communities. Under the federal Indian Act, FN communities have authority to establish by-laws, governing a wide variety of matters, including the regulation of traffic. However, we were told that jurisdictional issues and an ineffective prosecutorial process render this by-law making authority useless in virtually all FN communities.
At first glance, it seems to be a potentially worthwhile reform option since there would be no reason to treat the enforcement of traffic by-laws by a FN communities any differently than those of a municipality. However, we have not had a sufficient opportunity to consult or fully assess the legal or policy implications of this reform option, which we recommend be performed by the Ontario government in consultation with FN communities in Ontario.
D. Conclusions and Recommendations
The use of AMPS as an alternative to prosecuting the 1.9 million less serious Part I provincial offences is a subject worthy of its own report. However, we have sought input and conducted research and analysis to recommend discrete yet major reforms that will see greater use of AMPS as the exclusive enforcement mechanism for parking infractions.
As a starting point, there is a strong prima facie case that significant cost and time savings can be achieved if all Part II parking infractions were moved out of the POA system and into an AMPS system in each municipality. Even if a compelling cost-savings argument cannot be established or is not accepted, there remains something strikingly disproportionate with using justices of the peace and limited court resources for these very minor matters. We believe that the use of AMPS, based on the model adopted in the City of Vaughan, provides a fair and balanced mechanism to review administrative penalties and that this system would not offend the Charter. The AMPS regime is also more accessible and it should be made available for the enforcement of by-laws relating to systems of disabled parking. Most importantly, we believe that greater respect for the rule of law and the administration of justice would be achieved if court and judicial resources were reserved for the prosecution of more serious provincial offences.
We believe that a transition to an AMPS system for all Part II parking infractions in all Ontario municipalities should be completed within two years, after further discussion among municipalities and relevant government ministries. During our consultations on this issue, we were advised of very real implementation issues, most notably, the time needed to establish an IT infrastructure to allow municipalities to advise the Registrar of Motor Vehicles of non-payment of an AMP. The authority in the Registrar to not validate or issue a vehicle permit until the penalty is paid is an important and effective enforcement tool. We were told by the City of Oshawa, from its experience, that considerable work is involved to set up an appropriate IT infrastructure that would allow direct reporting of the non-payment of an AMP to the Ministry of Transportation (MTO). Traditionally, the Ministry of the Attorney General (MAG) maintains the IT infrastructure that would allow direct reporting to the Registrar of Motor Vehicles. The MTO does not yet have the IT structure in place to allow municipalities to directly report non-payment of AMPS. Municipalities must work through the MAG, who in turn, deals with MTO. As in interim measure, the City of Oshawa intends to strike an interim tripartite agreement with MAG and MTO pursuant to which Oshawa’s systems will be able to communicate with MOT via MAG’s IT system. We were told that MTO is in the process of developing its own IT infrastructure that would allow direct reporting from municipalities to MTO.
Without question, this is a real implementation issue, but we maintain that a transition to a parking AMPS system for all municipalities should not be delayed and that it ought to be completed within two years. In our view, two years is a reasonable and sufficient time to develop and have in place a direct reporting IT infrastructure between municipalities and MTO, especially given the work and consideration of this issue that has been done to date. If a reasonable deadline is not selected, the transition may simply never occur, and we believe that it must occur in a timely manner so that limited court and judicial resources can be redirected to more serious matters promptly. Moreover, some municipalities have already implemented AMP regimes for parking and other by-law enforcement, and their experience and best practices ought to be referenced to assist in overcoming any other operational barriers.
With respect to having AMPS apply to other minor offences currently prosecuted under Part I, including minor Highway Traffic Act offences, we believe there is a strong prima facie case to do so, subject to an examination of several outstanding legal, policy and operational considerations.
Given these conclusions, we make the following recommendations:
The LCO recommends that:
12. Within two years, the POA be amended to remove the prosecution of Part II parking infractions in the Ontario Court of Justice.
13. Within two years, each municipality (or jointly with other municipalities or Municipal Partners) adopt and implement a by-law for administrative penalties to enforce by-laws relating to the parking, standing or stopping of vehicles, including by-laws relating to disabled parking.
14. Amend O. Reg. 333/07 under the Municipal Act to permit administrative penalties for the enforcement of by-laws establishing systems of disabled parking.
15. Increase the monetary limit for administrative penalties in section 6 of O. Reg 333/07 from $100 to $500, or such other amount as is necessary to permit enforcement of disabled parking by-laws through AMPS systems.
16. Each municipality and relevant government Ministries, including the Ministry of Transportation, immediately assess operational challenges to the successful implementation of an AMPS regime for parking enforcement (such as any required IT infrastructure), and put in place a plan to resolve those challenges within two years. Consultation with municipalities who have already implemented an AMP system may assist in overcoming any operational challenges.
17. The Ontario government conduct a review of minor provincial offences most typically commenced as Part I proceedings, and in particular, minor Highway Traffic Act offences currently prosecuted under Part I, to assess which offences may be better enforced under an AMPS system. This review should consider, among other legal, policy and operational considerations:
the most common offences currently prosecuted under Part I, their volume, and associated court and judicial resources required to dispose of these offences as compared to an AMPS regime;
the effectiveness of AMP regimes for other minor offences;
the nature of the offence (i.e., whether it is a strict or absolute liability offence), and whether due diligence defences could or should be maintained in an AMPS regime through appropriate guidelines to
the administrative hearing officer;
the proposed penalty under an AMP regime and whether it would be punitive or give rise to the potential of imprisonment;
whether the potential circumstances giving rise to the offence could potentially lead to allegations of infringements of Charter or other rights, and if so, how might those allegations be dealt with under an AMPS regime;
operational issues that would hamper the ability to transition the offence into an AMPS regime; and
the merits of maintaining two separate and distinct systems for the resolution of the same provincial offences currently prosecuted under Part I (e.g., an AMPS system and a POA court-based system).
18. The Ontario government, in consultation with First Nation communities, consider the legal and policy implications of expanding the definition of “municipality” within the Municipal Act to permit by-laws enacted by a First Nation band under the federal Indian Act to be enforced through an AMPS regime.
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