X. LIST OF RECOMMENDATIONS

X. LIST OF RECOMMENDATIONS2017-03-03T18:35:02+00:00

The LCO recommends that:

 

Young Persons

 

1.             The treatment of young persons charged with provincial offences under the POA be the subject of further review, and that such review take into consideration the unique consideration given to young persons under the federal Youth Criminal Justice Act and legislation in other jurisdictions that create unique procedures for young persons charged with provincial offences.

 

Aboriginal Peoples

 

2.             The provincial government, in consultation with the federal government, undertake a review of the application of the POA in relation to Aboriginal people, and in particular, consider strategies to allow local communities to offer culturally appropriate ways to help Aboriginal people better respond to the provincial offences justice system.

 

Maintaining a POA

 

3.             Given the distinctions between regulatory offences and criminal offences, a separate procedural code for the prosecution, enforcement and sentencing of provincial offences should remain in place, separate and apart from the Criminal Code procedure.

 

Purpose of POA

 

4.             The purpose section of the POA be amended to advance a procedure for the trial or resolution of provincial offence cases that is:

a.                  proportionate to the complexity and seriousness of the provincial offence;

b.                  efficient;

c.                   fair;

d.                  accessible;

e.                  responsive to the offence-creating statute’s objective; and

f.                    reflective of the distinction between provincial offences and criminal offences.

 

Restructuring the POA

 

5.             The POA be significantly restructured to strip it of its detailed procedural code with only the necessary foundational, jurisdictional and offence-creating provisions remaining and that are necessary to permit the POA regime to operate.

 

6.             The POA continue to prescribe different streams for the commencement of POA proceedings (i.e., Part I for less serious offences and Part III for more serious offences).

 

7.             The four different sets of POA Rules and forms be consolidated into a single set of rules, a single regulation or other appropriate subordinate authority.

 

8.             New subordinate authority prescribe a simplified and complete procedural code for the fair, accessible, most efficient trial, appeal or resolution of a POA proceeding based on the stream in which the proceeding is commenced. In particular, simplified trial rules be established for Parts I offences, and separate more comprehensive trial rules established for Part III offences. Further specialized and proportionate rules may be developed as necessary for the most common types of POA offences or for those offences that are unduly complex or would benefit from specialized rules that further the POA’s objectives.

 

9.             The Ministry of the Attorney General, in consultation with municipalities, develop simple, plain language procedural guides for POA defendants that are accessible on the Ministry of the Attorney General’s website and at all POA court locations.

 

10.         The Attorney General and the Chief Justice of the Ontario Court of Justice jointly agree on how the newly updated POA procedural code should be established and by whom, after consultation with the Criminal Rules Committee, the Chief Justices of the other levels of Court and municipalities who now have carriage over POA prosecutions and courts administration.

 

11.         Amend section 70(2) of the Courts of Justice Act, accordingly, to relieve the Criminal Rules Committee of jurisdiction to make POA rules and identify the new body or entity responsible for developing the newly updated POA procedural code.

 

Administrative Monetary Penalties

 

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:

a.                  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;

b.                  the effectiveness of AMP regimes for other minor offences;

c.                   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;

d.                  the proposed penalty under an AMP regime and whether it would be punitive or give rise to the potential of imprisonment;

e.                  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;

f.                    operational issues that would hamper the ability to transition the offence into an AMPS regime; and

g.                  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.

 

Sentencing 

19.         The POA be amended to provide a statement of sentencing principles of general application that shall be used by the court as guidelines when sentencing offences commenced under Part III, subject to other or different sentencing principles or provisions prescribed in the offence-creating statute.

 

20.         Where necessary given the unique circumstances of a case and the interests of justice, the court may consider the sentencing principles for Part I offences and render a remedial, rehabilitative or denunciatory sentence where appropriate.

 

21.         The statement of sentencing principles should includes the following five hierarchical steps:

 

(i)  Parties should be encouraged to submit joint submissions on aggravating and mitigating factors as well as the sentence to be imposed (“joint submissions”);

(ii)  Impose a sanction that remedies the violation, to the extent that such a sanction is possible and reasonable (“remediation”);

(iii)  If the offender is likely to continue to engage in the regulated activity after sentencing, but the offender’s behaviour must change to prevent future breaches, impose a sanction that promotes the changes necessary to prevent future violations (“rehabilitation”).

(iv)  Impose a sanction that promotes change in the behaviour of other persons (e.g., dissuade others from committing the same or similar offence), but only if the court believes that that it could serve a regulatory objective and where the remedial and rehabilitative sanctions are insufficient given the circumstances of the case (“general deterrence”);

(v)  Impose a sanction that denounces and punishes the offender’s behaviour if aggravating circumstances make such a sanction appropriate (“denunciation”).

 

22.         The POA be amended to confer broad authority on the court to make probation orders for all provincial offences in order to give effect to the remedial and rehabilitative sentencing principles.  Permissible probationary terms that may be ordered by the court ought to include restitution and such other conditions that the court considers necessary and appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant, regardless of whether or not the offence is punishable by imprisonment.

 

23.         The POA be amended to include community service as a possible term of probation where it would achieve remediation for any harm caused, contribute to the rehabilitation of the offender, or serve as an alternative to the payment of a fine where a defendant is unable to pay a fine.

 

24.         The POA be amended to permit alternative penalties to be issued by the court. In particular, authority for free-standing restitution or compensatory orders that may be enforced in civil courts be expressly created, as well as authority to order an embedded auditor to promote compliance with regulatory standards.

 

25.         The POA be amended to expressly permit the use of victim impact statements for offences in which harm has been caused, subject to a residual discretion in the court to decide whether or not to admit them after considering the seriousness of the offence and any harm caused.

 

26.         After further consultation with municipalities, the Ministry of the Attorney General consider the adoption of alternative measure programs for less serious provincial offences.

 

27.         The POA be amended to confer power on the court to make a probation order against a corporation or other business enterprise, whether incorporated or not, with conditions modeled on section 732.1(3.1) of the Criminal Code regarding probation conditions for an organization.

 

28.         The Ministry of the Attorney General, after consultation with the judiciary, prosecutors, defence bar and paralegals, develop a non-exhaustive list of aggravating factors to be included within the POA for the court to consider when ordering a punitive or denunciatory penalty against a corporation or other business enterprise.

Bail

 

29.         The POA be amended to permit a justice to deny bail where detention is necessary for the protection or safety of the public, including any alleged victims or witnesses, having regard to all the circumstances.  For denying bail under this ground, the prosecutor must demonstrate a real and substantial likelihood that the defendant will commit a serious offence that will harm the public.

 

30.         The POA not adopt “maintaining confidence in the administration of justice” as a ground for denying bail.

 

31.         The Ministry of the Attorney General, in consultation with the judiciary, municipal prosecutors, defence bar and paralegals, review and consider any further bail conditions that ought to be added to the POA. 

 

Search Warrants

 

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.

 

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.

 

Paralegal-Client Privilege

 

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.

 

Production Orders

 

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.

 

Codifying Common Law Defences

 

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).

 

Notice of Constitutional Question

 

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.

 

Re-Opening Rule

 

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.

 

POA Sections on Appeals

 

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.

 

Enforcement of POA Fines

 

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. 

 

Telephone or Videoconference Hearings 

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.

 

Appeals of Cost Awards on Reviews

 

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.

 

Implementing POA Streamlining Review

 

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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