This Report makes broad recommendations for modernizing key aspects of the POA. We have focused primarily on structural and major process reforms that we hope will support the fair and efficient enforcement of regulatory statutes for years to come. Several other procedural issues were raised in our consultation paper and during the course of our review, but it is beyond the scope of this Report to canvas each in detail. We are also cognizant of our recommendation that the POA be simplified and that the detailed procedural code be transplanted to subordinate authority such as a single set of POA rules or a single regulation. In our view, the body tasked with this important work will be in an excellent position to analyze these further areas of reform, equipped with its own expertise and the POA Reform Framework as a guiding set of principles. Some issues, like the establishment of a “paralegal-client” class privilege, will have implications beyond the enforcement of provincial offences and it may be that they are ultimately considered by another body for further analysis or the court through the common law. Nonetheless, we describe the additional reform areas that were raised and touch briefly upon some legal and policy considerations for each.
A. Modernization of the Search Warrant Provisions
1. Search and Seizure of Electronic Data
The use of computers and the electronic storage of data has been a major technological advance since the POA came into force in 1980. As a result, some of the search warrant provisions appear to be outdated and in need of reform. We discuss two issues: (1) what is seized when a search warrant is issued to obtain electronic data on a computerized system or device; and (2) what parameters ought to be placed within a search warrant so that it is not an overly intrusive invasion of privacy.
Sections 158 to 160 of the POA deal with search warrants. There is no specific provision that deals with the search of computers or electronic data. Subsections 158(1) and (1.1) of the POA would appear to apply when a search of information from computerized systems is needed, but they deal with “things” and do not specifically address electronic data. They state:
(1) A justice may at any time issue a warrant under his or her hand if the justice is satisfied by information upon oath that there are reasonable grounds to believe that is in any place,
(a) anything on or in respect of which an offence has been or is suspected to have been committed; or
(b) anything that there are reasonable grounds to believe will afford evidence as to the commission of an offence.
(1.1) The search warrant authorizes a police officer or person named in the warrant,
(a) to search the place named in the information for any thing described in clause (1); and
(b) to seize the thing and deal with it in accordance with section 158.2. [emphasis added]
The LCO heard from prosecutors who say that in the absence of clear authority, investigators are seizing hard drives and “imaging” those hard drives rather than simply copying the data which would be less disruptive and intrusive to the defendant and easier for investigators. If this is the only approach authorized under the POA, it confirms the practical difficulties raised by prosecutors. Moreover, electronic data today is often saved on remote computer servers rather than individual, stand-alone computers, which can be more difficult to locate and physically seize.
In R. v. Bishop, a criminal child pornography case involving searches of computers, the Ontario Court of Justice described the problem with the traditional use of search warrants in a computerized age:
Computers present particular challenges to the law governing search warrants. Warrants have historically been directed at a particular thing or documents located at clearly identifiable physical locations. Computer technology frees evidence and information from such physical limits and allows data to reside in various places on different media with no version representing an obvious original. Inexpensive mass storage devices permit even unsophisticated computer users to store huge amounts of data on a single physical medium. The search warrant scheme in the Criminal Code is a regime originally designed to deal with physical manifestations of privacy. As such, it does not always blend easily with the world of “virtual evidence”.
These same challenges arise in the POA context. One solution is to expressly amend the POA to permit “electronic data” from computerized systems to be copied and searched, instead of seizing the computerized equipment itself. In 1997 the Criminal Code was amended to specifically deal with searching computer systems and the seizure of data. Subsections 487 (2.1) and (2.2) state:
(2.1) A person authorized under this section to search a computer system in a building or place for data may
(a) use or cause to be used any computer system at the building or place to search any data contained in or available to the computer system;
(b) reproduce or cause to be reproduced any data in the form of a printout or other intelligible output;
(c) seize the print-out or other output for examination of copying; and
(d) use or cause to be used any copying equipment at the place to makes copies of the data.
(2.2) Every person who is in possession or control of any building or place in respect of which a search is carried out under this section shall, on presentation of the warrant, permit the person carrying out the search
(a) to use or to cause to be used any computer system at the building or place in order to search any data contained in or available to the computer system for data that the person is authorized by this section to search for;
(b) to obtain a hard copy of the data and to seize it; and
(c) to use of cause to be used any copying equipment at the place to make copies of the data.
The provisions in the Criminal Code offer a good starting point for POA amendments that would allow “data” to be copied from computers or other devices that hold electronic data. The limitation in the Code on the issuance of a search warrant in respect of “a building, receptacle or place” may be an issue, however, if the data is stored at a different location from the terminal from which the authorities are conducting their search, such as remote servers.
The next issue is whether the scope of data to be seized should be limited, and if so, how might it be limited within a search warrant. The Supreme Court of Canada has commented on the highly intrusive nature of a search of a personal computer:
As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.
Therefore, it would seem that restrictions on the scope of data are needed within search warrants, and obligations spelled out for anyone who is carrying out the search warrant so as to protect data or information that is not properly the subject of the search warrant.
When a thorough policy assessment of this issue is undertaken, reference might be had to the Sedona Canada Principles: Addressing Electronic Discovery that puts forward principles and commentary regarding the disclosure of data from electronic sources in civil litigation. It offers practical suggestions for limiting the scope of electronic data disclosure in the civil context, and aspects of it may be transferrable to the POA context or, at a minimum, may serve as a tool for justices who issue search warrants.
Finally, there have been several other amendments to the search warrant powers in the Criminal Code and other provincial regulatory statutes that should be examined for comparison purposes when amending the POA search warrant provisions. We recommend that these be reviewed to assess the desirability of adopting similar amendments to the search warrant powers in the POA.
The LCO recommends that:
32. The Ministry of the Attorney General, or body responsible for developing the newly updated POA procedural code, consider the search warrant powers within the POA and specifically propose legislative amendments to the Attorney General that will address search warrants for information from electronic sources.
2. Constitutionality of Section 160 of the POA
Section 488.1 of the Criminal Code and section 160 of the POA both set out a similar procedure for determining a claim of solicitor-client privilege when documents are seized from a lawyer under authority of a search warrant. Generally, these sections establish processes to protect solicitor-client privilege through various mechanisms until a court has an opportunity to consider whether the document should be disclosed or the privilege maintained.
In Lavallee, Rackel & Heintz v. Canada, the Supreme Court of Canada held that section 488.1 was contrary to the Charter and struck it down. In assessing whether the procedure in the section results in a reasonable search and seizure of documents in the possession of a lawyer, the court stated that the traditional balancing of interests involved in a section 8 analysis was inappropriate. Instead it applied a test of minimal impairment and found a number of problems with section 488.1 that more than minimally impairs solicitor-client privilege. The common “fatal” feature was that the procedure allows for the potential breach of solicitor-client privilege without the client’s knowledge.
The first problem is with subsection 488.1(8), which requires an investigative officer to give a reasonable opportunity for a claim of solicitor-client privilege to be made by the solicitor at the time of the search before examining, making copies or seizing documents. However, it provides no opportunity to inform the client – the privilege holder – before the investigative officer can examine, make copies or seize the documents.
The court found another fatal flaw in paragraph 488.1(4)(b), which allows the Attorney General to inspect the seized documents where the judge is of the opinion that it would assist the court in deciding whether the document is privileged. The court concluded that “any benefit that might accrue …from the Crown’s being in a better position to assist the court in determining the existence of the privilege is, in my view, greatly outweighed by the risk of disclosing privileged information to the state in the conduct of a criminal investigation.”
The court struck down the provisions and then set out principles that govern the legality of searches of law offices as a matter of common law until Parliament, if it chooses to do so, reenacts a new procedure. While the court is clear that there is more than one way to draft constitutional provisions on searches of lawyers’ offices, it writes the following about the purpose of the principles and the role that they have in the enactment of any future procedure:
These general principles should also guide the legislative options that Parliament may want to address in that respect. Much like those formulated in Descộteaux, supra, the following guidelines are meant to reflect the present-day constitutional imperatives for the protection of solicitor-client privilege, and to govern both the search authorization process and the general manner in which the search must be carried out;
Libman notes that it remains to be seen whether regulatory schemes such as the POA will be treated differently should they be challenged as being contrary to section 8 of the Charter.
While there may well be a lowered expectation of privacy in the regulatory arena such that the standard of reasonableness must be assessed in this manner, concerns with respect to the solicitor-client relationship and the importance of ensuring that it is safe guarded during the execution of a search warrant may be no less deserving of enhanced protection.
Section 160 of the POA does have some of the same attributes that led the Supreme Court to strike down section 488.1 of the Criminal Code. For example, subsections 160(1) and (2) of the POA do not provide an opportunity to inform the client before a person executing a search warrant can examine or seize documents in the possession of a lawyer. Moreover, while a client may bring a motion to sustain the claim of privilege or for the return of the document after a document has been seized, there is no positive obligation to advise the privilege holder that a document has been seized, giving rise to a potential breach of privilege without the client’s knowledge, let alone consent. The relevant portions of section 160 read:
160 (1) Where under a search warrant a person is about to examine or seize a document that is in the possession of a lawyer and a solicitor-client privilege is claimed on behalf of a named client in respect of the document, the person shall, without examining or making copies of the document,
(a) seize the document and place it, together with any other document seized in respect of which the same claim is made on behalf of the same client, in a package and seal and identify the package; and
(b) place the package in the custody of the clerk of the court or, with the consent of the person and the client, in the custody of another person.
(2) No person shall examine or seize a document that is in the possession of a lawyer without giving him or her a reasonable opportunity to claim the privilege under subsection (1).
(4) Where a document has been seized and placed in custody under subsection (1), the client by or on whose behalf the claim of solicitor-client privilege is made may make a motion to a judge for an order sustaining the privilege and for the return of the document.
Given, that the Supreme Court has repeatedly stated that solicitor-client privilege must be nearly absolute and that exceptions to privilege will be rare, there is a strong argument that section 160 of the POA is unconstitutional. However, its constitutionality remains to be decided by the courts.
Even if section 160 of the POA were found to be constitutional, there are strong policy reasons to amend section 160. The potential breach of solicitor-client privilege without the client’s consent, or even the client’s knowledge is arguably an unnecessary and unacceptable breach of solicitor-client privilege, even in the regulatory context. It could potentially be remedied by mandating a positive obligation to give notice to a client when a document subject to solicitor-client privilege has been seized. The absolute nature of solicitor-client privilege applies outside of the criminal arena and while section 160 does not directly fly in the face of this principle since it affords a level of protection to material that is subject to solicitor-client privilege (i.e. determination by the court of the claim of privilege), it has the potential to severely undermine it since the privilege holder may be unaware of its seizure and potential disclosure. Any amendment to section 160 should give due consideration to the principles set out by the Supreme Court in Lavallee, Rackel & Heintz.
An additional concern with section 160 was brought to our attention. This section refers to a document “that is in the possession of a lawyer”, but often documents for which solicitor-client privilege is claimed are in the possession of the client. Extending section 160 to documents that are in the possession of the client would appear to be helpful to all parties concerned as it would provide clarity on the process to be followed to determine the claim. A policy concern would be attempts by a client to improperly assert solicitor-client privilege to protect documents that would otherwise be the proper subject of a search warrant.
The Law Society of Upper Canada’s Professional Regulation Committee has developed draft guidelines for the search of a lawyer’s office for approval by Convocation at its meeting on January 27, 2011; consideration of the guidelines was deferred, however. The guidelines were developed in response to the Supreme Court of Canada’s decision in Lavallee, Rackel & Heintz. Should guidelines ultimately be adopted by the Law Society of Upper Canada, they may be helpful when assessing potential amendments to section 160.
The LCO recommends that:
33. The Ministry of the Attorney General, or body responsible for developing the newly updated POA procedural code, review and assess whether additional protections should be included within the search warrant powers currently found in section 160 of the POA:
a. that would better protect documents or other things that are in the possession of a lawyer and subject to solicitor-client privilege, including electronic data, consistent with the Supreme Court of Canada’s decision in Lavallee, Rackel & Heintz; and
b. that would expand the protection to documents or other things that are in the possession of a client and for which the client asserts solicitor-client privilege,
and propose corresponding legislative amendments to the Attorney General.
3. “Paralegal-Client” Privilege and Search Warrants
As noted in the introduction to this Report, a key development since the passage of the POA has been the licensing and regulation of paralegals. At present it is unclear if privilege extends to “paralegal-client” communications. We raise this because if section 160 is to be amended with respect to items that are subject to solicitor-client privilege, one should also consider whether such protection should be extended to a new ground of “paralegal-client” privilege.
In Chancey v. Dharmadi, a 2007 decision of the Superior Court of Justice, a Case Management Master considered whether communications between a paralegal and a client should be privileged in the same way as solicitor-client communications. The client’s discussions with the paralegal took place before the licensing of paralegals. The court held that in order to recognize a class privilege respecting paralegal-client communications, the class must have specific identifiable actors. Therefore, on the particular facts of the case it refused to decide whether or not class-privilege exists.
However, after noting that paralegals are now regulated and licensed by the Law Society of Upper Canada, the court set out strong arguments for extending class-privilege to paralegal-client communications. It first noted that paralegals, under section 4.1 of the Law Society Act, must “meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide”. The court also referenced the Paralegal Rules of Conduct that place confidentiality obligations on paralegals analogous to the obligations lawyers have with respect to the confidentiality of their clients.
The court then argued that access to justice requires that a class privilege be created for discussions between a paralegal and a client:
In those areas where paralegals are entitled to represent clients they are often more affordable than lawyers and the matters often involve less serious issues, such as traffic tickets, small claims and tenants rights. Those are the very areas where many clients can ill afford the cost of a lawyer. Paralegals fill an affordability gap in delivering legal services in such matters and provide access to justice and legal representation where clients could not afford to retain a lawyer. The failure of the court to protect as confidential communications between paralegal and client sends a message to the public that there is a two-tier justice system in effect. As noted, the Access to Justice Act provides that the Law Society in regulating paralegals “has a duty to act so as to facilitate access to justice for the people of Ontario.”
The rationale for creating this new class privilege was summarized as follows:
In my view there is no principled reason why communications between a paralegal and his client should not be subject to the same class privilege as exists between a solicitor and his client. Both are subject to similar rules of conduct including obligations of confidentiality. Both are now regulated and licenced by a governing body that ensures standards of competence and imposes and enforces ethical obligations. The historical reasons for recognizing a class privilege over solicitor-client communications apply with equal vigour to paralegal-client communications. Both require full and candid communication from the client to his legal advisor to ensure competent and fair representation before the court or tribunal. The relationship and the communications between a paralegal and his client are as essential to the effective operation of the legal system as those between a solicitor and his client. Such communications are inextricably linked with the very legal system which desires the disclosure of the communication. The paralegal-client relationship, no less than the solicitor-client relationship, is a part of that system, not ancillary to it.
Following the release of Chancey, the then Treasurer of The Law Society of Upper Canada is reported to have said that it would be preferable if any paralegal-client privilege were to be developed through the common law as opposed to a statute:
I do think the judgment is helpful, though it won’t be the final word on the subject. The Law Society urged the government not to address the privilege in the legislation on the ground that the solicitor-client privilege is a principle that has evolved through the common law and should continue to do so in the context of regulated legal services.
The issue to be determined is whether a class of paralegal-client privilege should be codified through legislation, or whether the common law should determine whether such a class privilege ought to be created. Paralegals are licensed to represent clients in a variety of matters that go beyond POA proceedings. Therefore, a legislative amendment could have implications beyond provincial offences and further consideration and consultation should occur on the impact of such a class privilege in those matters. A statutory approach has the advantage of resulting in a relatively quick determination of this issue as opposed to waiting for an authoritative court ruling from the Court of Appeal or Supreme Court of Canada. On the other hand, it would be anomalous if paralegal-client privilege were established by statute, but solicitor-client privilege were simply a product of common law when the rationale for both types of privilege appears to be identical. Should paralegal-client privilege be established by statute or common law, it would make logical sense that section 160 be amended to similarly protect paralegal-client communications.
The LCO recommends that:
34. The Ministry of the Attorney General, in consultation with the Law Society of Upper Canada, prosecutors, paralegals and administrative tribunals or adjudicative bodies before which paralegals are lawfully entitled to appear, consider whether a class of paralegal-client privilege ought to be prescribed by statute, and if so, propose amendments to section 160 of the POA.
4. Production Orders versus Search Warrants
The Travel Industry Council of Ontario (TICO) has raised a concern with the use of search warrants to enforce compliance with the Travel Industry Act (“TIA”). When TICO suspects that a breach of the TIA has occurred and it contemplates prosecution, a search warrant needs to be obtained for any search and seizure. Subsections 20(2) and (10) of the TIA permits a justice of the peace to issue a search warrant if there are reasonable grounds to believe that a person has contravened a section of the Act or its regulations. An investigator, in the course of executing the search warrant, may require a person to provide evidence or information described in a search warrant.
When investigating the conduct of travel agents and agencies, bank records are usually required and TICO will typically apply and receive the necessary search warrants for this purpose. However, an argument has been raised that by virtue of section 33(4) of the Ontario Evidence Act (OEA), banks are not compelled to provide any books or records in any proceedings to which they are not a party, “unless by the order of the court or the judge made for special cause” under subsection 33(5). Section 33(5) states that the inspection of the account might be allowed by the court, if the application for inspection is made on notice to the account holder and the bank.
The Canada Evidence Act (CEA) similarly contains a section dealing with the inspection of bank records with notice to the account holder. But subsection 29(7) of CEA provides that the inspection of records on notice to the account holder does not apply where a search warrant is issued. Once served with the search warrant, the bank must allow the search and seizure of copies of bank records. The CEA, however, does not apply to provincial offences prosecution.
Arguably, section 33 of the OAE was intended to protect original bank records as their search and seizure would disrupt bank operations. This justification may no longer hold true, given the ease with which documents may be copied or reproduced today. Also, section 29(7) of the CEA was an amendment to that Act to permit search warrants of bank records to be executed, and one solution may be to introduce a similar amendment to the OEA.
An alternative solution is to permit “production orders” within the POA. A search warrant is a court order authorizing the officer to enter the premises, physically search them and remove any evidence or information that is described in the search warrant. The practical reality is that copies of records are typically produced by the bank, without the investigator conducting a physical search of the premises. In essence, it is really an order for the production of documents, and a search warrant may not be the most appropriate tool to effect this result. Moreover, justices may be more willing to authorize production orders if they did not contemplate an investigator physically entering the premises of a bank and disrupting bank operations, which we were told is not the practice in any event.
There may well be other regulated industries where the use of “production orders” sanctioned under the authority of the POA may be a more efficient and practical tool for the investigation and enforcement of regulatory offences. There may also be other large non-party institutions, other than banks, that hold records relevant to a POA prosecution (e.g., government, insurer). For some non-party record holders, issues of privacy may arise (e.g. a patient’s medical records held by a physician that could be relevant to a prosecution of a public health offence). With certain institutions, the retrieval and production of documents may involve significant time and cost, particularly if the records are not searchable or retained in an electronic format. A policy decision as to who will be responsible for those costs will have to be made. Related to the issue of how documents are stored by the non-party is how documents are to be produced – whether in electronic or paper format. We recommend that this topic be considered further.
The LCO recommends that:
35. The Ministry of the Attorney General, or body responsible for developing the newly updated POA procedural code, consider whether a tool to obtain production of documents or things to assist in the prosecution of POA offences (e.g. a production order) should be authorized in the POA or its rules/regulations, separate and apart from a search warrant.
B. Codifying common law defences in the POA
Section 80 of the POA states:
Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of offences, except in so far as they are altered by or inconsistent with this or any other Act.
The courts have held that defences such as “de minimis non curat lex” (or the law does not concern itself with small or trivial matters), necessity and officially induced error of law are available in POA matters. Yet the POA does not provide a comprehensive list of what defences are available to a defendant, nor does it attempt to codify them. As a tool to promote greater transparency and access to the courts, particularly for minor offences where defendants are often unrepresented, it has been argued that common law defences should be expressly codified in the POA. When the Law Reform Commission of Canada proposed a new Code of Substantive Criminal Law for Canada, it recommended including all the defences that had been developed at common law in the Code.
This would undoubtedly be a major undertaking. The federal government has not yet implemented the Law Reform Commission of Canada’s recommendation and there may be good policy reasons not to adopt such an approach. It may just be too difficult to translate complex common law defences into clean and simple statutory provisions that will achieve the goal of promoting access. We note that in the civil context, there is not a simple statute that codifies common law torts and defences that may be brought in the Small Claims Court even though that court also has a large number of unrepresented. Again, the difficulty of translating complex common law principles into a simple statute may be the explanation.
It was proposed that at least one common law defence, “de minimis non curat lex”, may be simply and easily translated into the POA. General authority for the de minimis maxim in criminal law is not clear although the Supreme Court of Canada has said recently in Canadian Foundation for Children, Youth and the Law v. Canada that its application is still open for judicial consideration. Justice Arbour described the de minimis doctrine and its rationale as follows:
Generally, the justifications for a de minimis excuse are that: (1) it reserves the application of the criminal law to serious misconduct; (2) it protects an accused from the stigma of a criminal conviction and from the imposition of severe penalties for relatively trivial conduct; and (3) it saves courts from being swamped by an enormous number of trivial cases.
Codifying a de minimis defence into the POA could potentially give justices express authority to dismiss provincial offences where the violation was trivial. If a decision were made to codify the de minimis defence, model provisions are available from The American Law Institute in its Model Penal Code, and from
the Canadian Bar Association’s Criminal Code Recodification Task Force Report from 1992 where it recommends the adoption of a de minimis defence in the Criminal Code.
A challenge with codifying any common law defence is that the court continuously amends and defines common law defences applicable in criminal and POA cases. Were legislative drafters to prescribe a common law defence for a POA matter, it would be stuck in time while the same common law defence in the criminal context might evolve and be further refined by the courts. Those refinements would not apply in the POA context unless the POA defences were amended by the legislature. This would create an anomaly that might be difficult to justify.
Therefore, we do not think a compelling case has been made to codify common law defences within the POA, including the de minimis defence. This would be a daunting task, and given the complexity of many defences, they could not be easily translated into a statute and be any more comprehensible to the public than they are today. It also raises a significant potential for discrepancies to arise between how defences are treated in the criminal versus POA context that cannot be rationalized. We do, however, believe that providing greater information to the public about common defences is a valuable exercise and to promote access to justice, reference to the more common defences be included in any guides that are created for unrepresented POA litigants.
The LCO recommends that:
36. Common law defences not be codified in the POA.
37. To promote access to justice and greater information to the public about POA defences, the Ministry of the Attorney General include a general summary of the most common defences in its public guides for the public on POA proceedings (see recommendation 9).
C. Notice of Constitutional Question
Subsection 109(1) of the Courts of Justice Act (CJA) requires a notice of constitutional question to be served in the following circumstances:
(1) Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:
1. The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.
2. A remedy is claimed under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.
Where such notice is not served, a ruling on the constitutional invalidity shall not be granted.
Three issues were raised. First, whether municipalities and other prosecutors should also receive notice of constitutional question when the constitutionality of a law, rule or regulation is in question. Second, whether notice should be given to municipalities when a constitutional remedy arising from an act or omission of a municipality is sought under paragraph 2. Third and related to the second issue, whether it is necessary to serve the Government of Canada or the Government of Ontario when a constitutional remedy arising from an act or omission of a municipality is sought under paragraph 2
On the first issue, stakeholders have said that a notice of a constitutional question should also be served on prosecutors in a POA matter. Prosecutor is defined in subsections 1(1) and 167(2) of the POA. Subsection 1(1) reads:
“prosecutor” means the Attorney General or, where the Attorney General does not intervene, means the person who issues a certificate or lays an information, and includes an agent acting on behalf of any them.
Subsection 167(2) incorporates municipal prosecutors where the Attorney General has entered into a transfer agreement with municipalities. This subsection reads:
“prosecutor” means the Attorney General or, where the Attorney General does not intervene, means a person acting on behalf of the municipality in accordance with the agreement or, where no such person intervenes, means the person who issues a certificate or lays an information, and includes an agent acting on behalf of any them.
If notice of constitutional question is to be served on prosecutors in municipalities that have entered into transfer agreements with municipalities, should other prosecutors also be entitled to the same service? There are numerous other prosecuting agencies who are not captured under subsection 167(2) of the POA, such as transit authorities, conservation authorities, health departments, Travel Industry Council of Ontario, and the Ontario Motor Vehicle Industry Council. They might be captured under the definition of prosecutor in subsection 1(1) of the POA.
Currently, prosecutors only become aware of the constitutional challenge by happenstance. Knowledge of such a challenge will have a direct bearing not only in the case in which the challenge is brought, but it can also inform prosecutorial decisions in other similar cases. These may range in the tens, hundreds, or even thousands. Now that municipalities have assumed the responsibility for prosecuting most provincial offences, it seems only logical that they should also receive Notice of Constitutional Question when the constitutionality of a law, rule or regulation is in question.
On the second issue, some have said that paragraph 2 of subsection 109(1) of the CJA should be amended to require notice be served on a municipality when a remedy is sought that relates to the acts or omissions of a “municipality” or “local board” as defined in the Municipal Act. Most often, motions to stay a proceeding arise because of an unreasonable delay or abuse of process caused by a municipality’s failure to prosecute on a timely basis.
The problem is readily apparent in the 2009 decision of R. v. Vellone, where it was held that the defendant did not have to provide notice of constitutional question to a municipality under section 109 of the CJA. The case involved a charge of speeding that was prosecuted by a municipality pursuant to an agreement under Part X of the POA. The defendant brought a motion to stay the prosecution on the grounds that his right to be tried within a reasonable time under subsection 11(b) of the Charter had been violated. The court held that any delay was a result of the acts or omissions of the municipality, and paragraph 2 of section 109(1) only requires notice of constitutional question be served when an act or omission of the Government of Ontario or Government of Canada is alleged. Leave to appeal to the Ontario Court of Appeal on this issue has been granted, but as of the time of writing, no decision on the appeal has been released.
R. v. Vellone appears to be a strict interpretation of the CJA, given that municipalities have assumed responsibility over POA prosecutions and court administration which was previously the responsibility of the provincial government. If the policy rationale to serve notice of constitutional question is still justified, then it would seem that notice should be given to a municipality since it has assumed responsibilities previously held by the provincial government. Most often, it will be the municipality’s acts or omissions that are under attack and fairness suggests that it receive the notice that the Province would have received had it still had carriage over POA matters.
A further point raised was that the duty to serve notice of constitutional question on the federal and provincial governments in POA prosecutions should be limited to situations where a litigant seeks a declaration of constitutional invalidity under s. 24(1) of the Charter (i.e. paragraph 1 of subsection 109(1) of the CJA). It should not be a requirement in all other situations where a litigant is seeking a case-specific remedy, such as a stay for unreasonable delay or abuse of process arising from an act or omission of a municipality (i.e. the proposed amended paragraph 2 of subsection 109(1) of the CJA). The Attorney General of Canada has absolutely no meaningful interest in the matter, and imposing this burden is unnecessary and costly. To the extent that the Attorney General of Ontario has an interest, it is really the local (municipal) prosecutor’s office that should be notified; not the Crown Law Office in downtown Toronto. As currently worded, section 109 creates an unnecessary barrier for litigants, especially those who are self represented, from raising legitimate constitutional complaints before provincial offences courts. Denying such access on the basis of a technical rule of service that has no practical purpose makes little sense and is unjustifiable.
The LCO recommends that:
38. The Attorney General table amendments to section 109(1) of the Courts of Justice Act that would:
a. Require service of a Notice of Constitutional Question on prosecutors in all POA matters;
b. Require that a Notice of Constitutional Question must be served on a municipal prosecutor when a party seeks relief under section 24(1) of the Charter relating to an act or omission of a municipality; and
c. Remove the requirement to serve Notice of Constitutional Question on the Government of Canada and the Government of Ontario when a litigant is seeking a case-specific constitutional remedy arising from the acts or omission of a municipality.
D. Reopening Rule
The POA allows for a Part I or II conviction to be reopened if a defendant has been convicted without a hearing, and the defendant seeks to have the case reopened within 15 days of becoming aware of the conviction. Subsection 11(1) states:
If a defendant who has been convicted without a hearing attends at the court office during regular office hours within fifteen days of becoming aware of the conviction and appears before a justice requesting that the conviction be struck out, the justice shall strike out the conviction if he or she is satisfied by affidavit of the defendant that, through no fault of the defendant, the defendant was unable to appear for a hearing or a notice or document relating to the offence was not delivered.
A justice may then strike out the conviction and order a new trial, in which case, a new notice of trial will be issued.
Some have called for the reopening rule to be restricted to prevent abuse. For example, a defendant may seek a reopening of a case, not attend the newly scheduled trial, and then seek a second reopening of the case arguing that they were unable to attend the new trial. It has been proposed that a defendant be restricted to reopening a case only once.
It was also proposed that a defendant only be permitted to reopen a case within one year after the original conviction. A one-year limitation on reopenings may be justified if mechanisms were in place to ensure that defendants became aware of convictions within that time period, otherwise the limitation period may be seen as unfair.
Finally, it was suggested that justices be given discretionary power to order costs for witnesses or interpreters who had appeared at the original hearing where the conviction was entered, and that payment of these costs be a condition to granting the reopening. If the costs are not paid within a certain period of time, the reopening application would be deemed to be abandoned. On the one hand, this would reimburse the municipal partner for unnecessary costs that were wasted and it could potentially minimize abuse of the reopening process. On the other hand, it may unfairly discourage defendants from seeking a trial on a charge for which they had no notice. A hybrid solution might be to make these costs payable upon a conviction being entered at the new trial, subject to any discretion in the justice to order otherwise.
The LCO recommends that:
39. The Ministry of the Attorney General, or body responsible for developing the newly updated POA procedural code, consider whether the re-opening rule should be restricted to prevent abuse, and whether the court should have the discretionary authority to award costs in cases where the re-opening process is abused.
E. Applicability of certain POA appeal sections
Section 124 of the POA, under the heading “Appeals Under Part III”, sets out circumstances where an appeal should not be allowed, but it refers to a “certificate” which suggests a proceeding commenced under Parts I or II. It states:
(1) Judgment shall not be given in favour of an appellant based on any alleged defect in the substance or form of an information, certificate or process or any variance between the information, certificate or process and the evidence adduced at trial unless it is shown that objection was taken at the trial and that, in the case of a variance, an adjournment of the trial was refused although the variance had misled the appellant. [emphasis added]
(2) Where an appeal is based on a defect in a conviction or an order, judgment shall not be given in favour of the appellant, but the court shall make an order curing the defect.
As a result, there is uncertainty as to its application where the alleged defect or variance relates to a certificate. A certificate is defined by subsection 1(1) of the POA as meaning “a certificate of offence issued under Part I or a certificate of parking infraction issued under Part II”. In a recent case it was held that section 124 did not apply to appeals of Part I and Part II POA matters. In holding that section 124 did not apply to certificates, the court observed the following:
While I am puzzled by the reference in s.124 to “certificate”, which by s.1(1) of the Act is defined to mean “a certificate of offence issued under Part I or a certificate of parking infraction issued under Part II”, I am nonetheless satisfied that the section only applies to appeals under Part III of the Act.
It was suggested that the confusion stemming from the reference to “certificate” in section 124 should be deleted given this decision.
In addition, we note that section 125 of the POA is tied to section 124. If section 124 of the POA is amended, the applicability of section 125 should be revisited. Section 125 reads:
Where a court exercises any of the powers conferred by sections 117 to 124, it may make any order, in addition, that justice requires.
Others have proposed that other sections (section 117 regarding the powers of court on appeal, and section 118 regarding the right to representation) should apply to non-Part III appeals.
The policy rationale behind sections 124 and 125 and the other sections noted above governing appeals should be revisited to assess whether or not they should apply only to appeals of Part III offences or to other appeals as well.
The LCO recommends that:
40. The Ministry of the Attorney General, or body responsible for developing the newly updated POA procedural code, review the policy rationale behind sections 124 and 125 of the POA to assess whether they are to apply to only Part III appeals, or to all appeals.
F. Enforcement Tools for Unpaid Fines
Concerns with unpaid fines and available enforcement tools were brought to our attention. A media article from May 2010 reported that there are over $1 billion in outstanding fines owed largely by drivers in Ontario.
As discussed in Chapter II, there are generally three modes of enforcement for unpaid fines authorized under the POA: (1) certificate of default and enforcement proceeding through the civil courts (i.e., Small Claims Court or Superior Court of Justice); (2) suspension or refusal to renew a vehicle licence plate; and (3) suspension or refusal to renew a driver’s licence.
Enforcement through the civil courts typically results in a writ of seizure and sale being registered upon any land owned by the defaulting debtor and the money is usually only paid when the land is sold or any mortgages to the property are renewed. As a result, there can be delays through this enforcement tool. With respect to the suspension or renewal of driver’s licences or vehicle plates, effective systems must be in place to allow municipalities to report unpaid fines to the Ministry of Transportation directly or through the Ministry of the Attorney General.
A further enforcement tool was established in 2009. Amendments to the Municipal Act, 2001 now permit municipalities to add to municipal property tax rolls any unpaid fines “for which all of the owners are responsible for paying the fine and collect it in the same manner as municipal taxes.” While helpful, it is not available when two or more people are registered owners of a property but only one registered owner has unpaid fines.
In 2006, the Alberta government started a pilot project in Edmonton whereby unpaid fines arising from traffic tickets were deducted from income tax refunds and GST rebates through an arrangement with Canada Revenue Agency. Media articles report that it was an effective enforcement tool, collecting $1.3 million in unpaid fines in less than a year, which money was largely diverted back to the municipality. It appears that this fine enforcement program established by Alberta Justice is now being used elsewhere within the province, and we were told that it has been an effective enforcement tool. A similar program has been adopted in Saskatchewan through its Fine Collection Branch.
The use of a tax diversion mechanism, as the one in place in Alberta, may serve as a possible further enforcement tool in Ontario and its merits should be assessed. Where fines have been ordered payable, the public’s respect for the rule of law and the administration of justice is threatened if effective enforcement mechanisms are not in place. However, deducting income tax refunds or GST rebates may have a deleterious impact on the poor who may rely heavily on these sources of income for basic necessities of food, shelter and clothing. Indeed, one policy rationale for GST rebates is to lessen the burden of this tax on those with low or modest incomes. We believe the impact of this reform option on low-income Ontarians ought to be given particular attention. The LCO understands that various organizations in Ontario continue to examine this issue, and that enforcement of fines was an issue considered by the Ministry of the Attorney General’s POA Streamlining Review Committee. This work should continue with particular attention given to the impact of this reform option on the poor.
The LCO recommends that:
41. The Ministry of the Attorney General, in consultation with Ontario municipalities and the Canada Revenue Agency, assess whether the use of a tax diversion program may provide an effective and fair method for the enforcement of unpaid POA fines with due policy consideration given to how this reform option would impact low-income Ontarians who rely on tax refunds and GST rebates as a significant source of income.
G. Hearing Matters Electronically – Telephone or Video Conference
We heard that the POA should permit greater use of telephone or videoconferences for various POA hearings, and in particular, plea resolutions before justices of the peace. Where the appropriate equipment is available, the POA currently permits witnesses, defendants, prosecutors and interpreters to participate in a hearing by way of “electronic method”, which is defined as including video conference, audio conference or telephone conference. Section 83.1(2) reads:
Appearance by electronic method
(2) Subject to this section, in any proceeding under this Act or any step in a proceeding under this Act, if the appropriate equipment is available at the courthouse where the proceeding occurs,
(a) a witness may give evidence by electronic method;
(b) a defendant may appear by electronic method;
(c) a prosecutor may appear and prosecute by electronic method; and
(d) an interpreter may interpret by electronic method.
The POA, however, does not permit a justice to attend and conduct a hearing electronically. An amendment to the POA that has yet to be proclaimed would appear to address this. New subsection 83.1(3.1), once proclaimed, states:
(3.1) A justice may attend and conduct a sentencing hearing under sections 5.1 and 7 and any other proceeding or any step in a proceeding determined by the regulations, by means of electronic method, if the appropriate equipment is available at the courthouse where the proceeding occurs, and the justice may,
(a) adjourn the sentencing hearing to have the defendant appear in person before the justice for the purpose of ensuring that the defendant understands the plea; and
(b) adjourn any other proceeding or step in a proceeding determined by the regulations if he or she is satisfied that the interests of justice require it or it is necessary for a fair trial.
We also note that a 2002 amendment that has yet to be proclaimed would allow bail hearings to be conducted by a “telecommunications device”.
The use of telephone and videoconference technology can usher in significant advantages, particularly in remote areas of the province. It can also result in significant cost savings if distant witnesses are able to provide testimony through a video connection.
Once these provisions are proclaimed, their effectiveness should be reviewed and assessed. A paramount concern is that trial fairness not be jeopardized by the use of telephone or videoconference technology.
The LCO recommends that:
42. The Ministry of the Attorney General, or body responsible for developing the newly updated POA procedural code, review the use of telephone and videoconference hearings (authorized under the existing POA and any new provisions once proclaimed), for their effectiveness, fairness, and efficiency and recommend any improvements as it may deem appropriate.
H. Appeals of Cost Awards on Reviews
Under clauses 116(1)(e) and 116(2)(b) of the POA, the Superior Court of Justice has jurisdiction to hear appeals of cost orders made by a judge of the Ontario Court of Justice. Section 140 of the POA also confers jurisdiction on the Superior Court to review a decision arising under the Act and to grant mandamus, certiorari or prohibition. However, when such a prerogative order is sought and successfully obtained, the Superior Court does not appear to have jurisdiction to deal with any costs ordered by the lower court. Subsection 141(3) of the POA states that the Superior Court, on a review, does not have the authority to deal with costs since this is a matter that can be dealt with by way of appeal.
For example, if a prosecutor sought a review of a decision to stay certain charges that also included a cost award, it would have to commence an application for a review, plus an appeal of the cost order. This would result in an anomaly of two separate proceedings before the Superior Court arising from the same Ontario Court of Justice decision. We believe this is a procedural oversight that could be easily corrected.
The LCO recommends that:
43. To avoid fractured proceedings, section 140 of the POA be amended to provide jurisdiction to the Superior Court of Justice to review a cost award made by the Ontario Court of Justice when a prerogative remedy application is made under that section, notwithstanding that the POA allows for an appeal of a cost order under Part III.
I. Process Improvements Arising from the POA Streamlining Review
The Ministry of the Attorney General’s POA Streamlining Review Working Group was established in August 2006 to consider proposals to simplify procedures, reduce demand for court resources, enhance fine enforcement and improve service to the public. Members on the Working Group included representatives from the Municipal Court Managers’ Association, the Prosecutors’ Association of Ontario, Association of Municipalities of Ontario, Ministry of the Attorney General and select other Ministries. Public input was sought through the distribution of a consultation paper. In 2009, the Working Group made over 60 specific and detailed recommendations to the Attorney General. Many have already been implemented by the Good Government Act, 2009 which makes numerous amendments to the POA.
However, many recommendations were not included in the Good Government Act, 2009. The LCO was told that the Working Group engaged in much research, debate and discussion and it would be unfortunate if its recommended improvements were to get lost. We believe the recommendations of the POA Streamlining Review Working Group should be disclosed to the new body tasked with drafting a single set of POA rules or regulations so that they may be duly reviewed and considered.
The LCO recommends that:
44. The body responsible for developing the newly updated POA procedural code review the recommendations of the POA Streamlining Review Working Group to assess whether any recommended amendments not yet implemented should be adopted by way of rule, regulation or statutory amendment.
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