A. Background to the Modernization of the Provincial Offences Act Project
This Interim Report provides an analytical framework for modernizing and reforming the Provincial Offences Act (POA).[1] In drafting this report, the Law Commission of Ontario (LCO) seeks not only to examine specific issues raised during our research and consultations, but also to make structural improvements and create a mechanism whereby future procedural improvements can be more easily achieved. In this respect, we hope this Report and the POA reform framework that we propose will serve as a valuable tool to respond to evolutionary developments on the provincial offences landscape in the years to come.
When the POA came into force 30 years ago it was hailed as “one of the most sweeping legislative reforms of procedures governing the prosecution of offences since the enactment of the Criminal Code in 1892”.[2] Since that time the provincial offences environment in Canada has changed considerably, yet there have only been modest amendments to the POA. Major developments include the adoption of the Canadian Charter of Rights and Freedoms (the Charter)[3], amendments to the Criminal Code,[4] significantly increased maximum penalties for certain provincial offences[5] the increased use of administrative monetary penalties (AMPS),[6] the emergence of licensed paralegals and increased use of technology.
The impact of the POA on the lives of Ontarians is significant, not merely because of the vast number of offences to which the POA applies or the number of proceedings commenced each year, but because of the nature of the regulatory offences governed by its process. Regulatory law dominates many aspects of our daily living. John Swaigan has described the impact of regulatory law, or public welfare law, on the lives of Canadians as follows:
Public welfare laws pervade the lives of ordinary people. Almost every aspect of our activities is regulated from parking the car to fixing the roof. When people think about “the law” they often think of crimes such as theft, sexual assault and murder. But lawyers are well aware that the laws most likely to affect ordinary people, and to be broken by them, are not criminal laws, but the myriad of public welfare laws that are necessary to regulate and reduce the risk we impose on each other through activities as diverse as driving a car, operating a school, spraying a herbicide or constructing a nuclear power plant. These regulatory laws protect consumers, children in day-care centres, the elderly in nursing homes and hospitals, pedestrians and motorists, workers in factories, and the natural environment that sustains human and other life forms.[7]
Consistent with the LCO’s mandate, this Interim Report examines the current framework of the POA and considers its efficacy in achieving the legislative objectives of the statutes that create the provincial offence. Clarity of process and accessibility by the average Ontarian are also key considerations given the significant impact provincial offences can have on individual and corporate defendants. Finally, the sheer volume of provincial offences demands that any procedure governing these matters be both fair and efficient. In a sense, our recommendations seek to return the POA to its roots, as legislation that responds to the needs of those it most affects, with additional enhancements reflecting more contemporary thought in regulatory law.
The original proposal to review and revise the POA was received in December 2007 from Kenneth Jull, a lawyer with much expertise in provincial offences and risk management. A number of organizations and individuals involved in POA matters also supported a review at this time. It is against this backdrop that on April 2, 2009 the LCO’s Board of Governors approved the Modernization of the Provincial Offences Act project (the “Project”).
The LCO engaged in an initial review of literature and informal discussions with many organizations and individuals prior to issuing a Consultation Paper on November 16, 2009 that set out a number of issues initially raised with the LCO. It was sent to just over 90 individuals and organizations and invited comments on the issues raised as well as the identification of further issues that had not already been canvassed. The LCO also met or spoke with many people and organizations including academics, paralegal organizations, members of the bench, Aboriginal organizations, members of the defence bar, civil servants, including prosecutors, court administrators, municipal organizations and other municipal representatives.
The LCO also established an Advisory Group for the Project whose members are listed at Appendix A. The group met regularly from December 2009 onwards and meetings or telephone calls with individual members were common. The diverse views they brought forward were extremely valuable to the LCO in its efforts to make recommendations that took into account a broad array of perspectives. The Advisory Group also contributed to the Project by facilitating discussions between their connections and the LCO.
This Interim Report is being circulated broadly to the judiciary, lawyers, paralegals, government officials, and the public for consultation and comment. Based on feedback received and additional research subsequently undertaken, a Final Report will issue following approval by the LCO’s Board of Governors.
B. A Word on the Scope of the Project
This Interim Report does not purport to deal with all of the issues that could possibly be addressed in the modernization and reform of the POA. Entire law reform reports could be drafted on several of the discrete Parts of the Act, and a substantive analysis of each is well beyond the scope of this Project. Moreover, a very technical review of many of the current POA sections was recently undertaken in 2009 by the Ministry of the Attorney General’s Provincial Offences Act Streamlining Review. With its Municipal Partners, the Ministry agreed to explore ways to streamline POA proceedings. A Working Group was established to consider proposals to simplify procedures, reduce demand for court resources, enhance fine enforcement and improve service to the public. Input from others on these issues was sought through the distribution of a consultation paper.[8] The Working Group made over 60 specific and detailed recommendations to the Attorney General, and many have already been implemented by the Good Government Act, 2009 which made amendments to the POA and Municipal Act, 2001.[9] Therefore, to avoid a duplication of efforts or the potential for competing recommendations, we were of the view that this Report not focus on detailed procedural reforms to the POA.
Instead, this Interim Report considers structural improvements, the establishment of an overall framework for an improved provincial offences system, alternative monetary penalties, sentencing and other specific recommendations that were not the subject of the detailed Provincial Offences Act Streamlining Review. Our objective was to establish a new framework for the POA that will bring greater clarity of process to and improved accessibility by the average Ontarian, while promoting a simpler, fair and efficient procedure for the adjudication of provincial offences. In Chapter III, we describe a framework for the modernization and reform of the POA (the POA Reform Framework) and then in subsequent chapters address a handful of specific issues that were brought to the LCO’s attention. A major objective of the POA Reform Framework is to serve as a set of guiding principles to tackle additional reform areas that are not dealt with in this Report. The LCO believes the POA Reform Framework and the issue-specific recommendations significantly contribute to building a roadmap for POA reform that will modernize it today and make it a responsive and functional statutory instrument for the future.
There are two important issues that are not dealt with in this Report on which we make some general comments. First, the Consultation Paper raised the issue of reforming the treatment of young persons charged with provincial offences. The federal Youth Criminal Justice Act[10] creates a separate criminal justice system for young people based on the idea that youths should be treated differently from both children and adults. This legislation is more comprehensive than Part VI of the POA which governs young people, and provides for a greater number of distinctions between the treatment of adults and younger people. Nova Scotia and the Northwest Territories have also enacted separate legislation to deal with young persons charged with provincial offences. Whether Ontario should adopt a similar approach is a significant and important policy issue that warrants separate consideration. The LCO recommends that this matter be the subject of further review.
Second, concerns were raised about the POA’s application in relation to Aboriginal people. As an example, the LCO heard that many Aboriginal people are being convicted without a trial after being deemed not to dispute the charge, or after a trial in their absence pursuant to sections 9 and 54 of the POA, respectively.[11] The Ministry of the Attorney General does not collect data on the nature of a defendant and, in particular, whether or not a defendant identifies as being Aboriginal, so it was not possible to confirm this perception with statistics. However, the LCO relied upon anecdotal information on enforcement agencies that are believed to have higher than average Aboriginal populations who are charged with POA offences.[12] We then extracted data on the number of charges brought by those enforcement agencies that resulted in a conviction from a failure to respond to an offence notice or a failure to attend at trial. Data reveals 43% of charges in 2007 and 2008, and 42% of charges in 2009 brought by these enforcement agencies resulted in a conviction for a failure to respond or failure to attend at trial.[13]
To assess whether this is a disproportionately high percentage, we compared data on the same disposition outcomes in regions of the province where these enforcement agencies are located, namely the North East and North West Court Services regions. We did this to assess whether or not geographic issues had an impact on the failure to respond to POA charges. In the North East region, 27% of charges in both 2007 and 2008, and 26% of charges in 2009 resulted in a conviction from a failure to respond or failure to attend at trial. In the North West region, the percentages were 34% in both of 2007 and 2008, and 33% in 2009. Provincial data from all court regions similarly revealed a much lower percentage of charges resulting in convictions from a failure to respond or failure to attend trial; 29% in 2007, 30% in 2008, and 28% in 2009.[14]
While not conclusive, it does lend some statistical support to the concern raised that a disproportionate number of Aboriginal people are being convicted without a trial. Relying upon the above data, Aboriginal people may tend to be convicted from a failure to respond to a charge or failure to appear at trial anywhere between 8 to 15% higher than non-Aboriginals.
The LCO is not aware of options that have been presented to improve the manner in which Aboriginal people interact with Ontario’s provincial offences system. This is in contrast to the criminal justice system where the Aboriginal Justice Strategy, funded by the Ontario and federal government, seeks to “allow local communities to offer culturally appropriate ways to help Aboriginal people deal with the criminal justice system.”[15] The centerpiece of the strategy is Community Based Justice programs, which have various objectives that could potentially apply in the POA context. These objectives include the reduction in the rates of crime and incarceration among Aboriginal people, allowing Aboriginal people to assume greater responsibility for the administration of justice in their communities, fostering improved responsiveness, fairness and inclusiveness, and improving the effectiveness of the justice system to better meet the needs of Aboriginal people.[16]
This Report does not evaluate the Aboriginal Justice Strategy or attempt to determine whether aspects of it might apply to our system of provincial offences.[17] Rather, we note that while efforts to address the needs of Aboriginal Peoples in the criminal justice system have been made, no similar attempt appears to have been made in relation to provincial offences. We conclude that this issue is sufficiently significant to warrant further study and review, and recommend that it be undertaken by the provincial government in consultation with the federal government.
The LCO recommends that:
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.
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.
C. Key Developments that Support Reform at This Time
In the 30 years since the POA came into force, important changes to the Canadian legal landscape have significantly affected the POA’s operation.[18] These developments strongly support reform of the POA at this time, but one can expect that many will continue to have an ongoing impact on our provincial offences system for years to come. A procedural code that can adapt and respond to these and other developments in the future is a central recommendation of this Report. For this reason, they must be considered not only for their present-day impact, but their potential impact on the administration of provincial offences in the future.
1. The Adoption of the Canadian Charter of Rights and Freedoms
In 1982, two years after the POA came into force, the Canadian Charter of Rights and Freedoms (the Charter) was enacted. The Charter applies to POA prosecutions, although the Supreme Court of Canada has stated that the regulatory context is relevant in determining the scope and content of Charter rights:
A contextual approach is particularly appropriate in the present case to take account of the regulatory nature of the offence and its place within a larger scheme of public welfare legislation. This approach requires that the rights asserted by the appellant be considered in light of the regulatory context in which the claim is situated, acknowledging that a Charter right may have different scope and implications in a regulatory context than in a truly criminal one.[19]
A number of Charter decisions affect the discussion of issues later in this Report.[20] For example, in a recent decision of the Alberta Court of Appeal, Lavallee v. Alberta (Securities Commission),[21] the court examined whether section 7 and 11 Charter rights apply to proceedings involving a $1 million administrative monetary penalty for an offence under Alberta’s Securities Act. This case informs our discussion on the use of alternative monetary penalties (AMPS). The Charter will also be referenced with respect to search warrants.
2. Developments in Criminal Law and Other Regulatory Statutes
We recognize the distinction between the Criminal Code and the POA. Although, some amendments to the Criminal Code and provincial regulatory statutes present an opportunity to consider whether similar amendments would are necessary or helpful in the POA context. Some statutory changes have influenced our recommendations in this Report. The introduction of a statement of sentencing principles in the Criminal Code,[22] along with amendments relating to sentencing principles for corporate or “organization” offenders,[23] are considered to assess whether similar provisions are needed in the POA. Developments in other jurisdictions, such as British Columbia’s Public Health Act,[24] have also been enlightening. The search warrant provisions in the Criminal Code also inspired a consideration of the POA’s equivalent provisions.
3. Increase in Penalties for Some Provincial Offences
The severity of sanctions available for certain provincial offences is another key development. The maximum fine for some offences prosecuted under Part III is far more than the $2,000 maximum set out in the residual penalty clause of the originally enacted POA. When the Supreme Court of Canada decided R. v. Sault Ste. Marie (City)[25] in 1978, the highest fine available for most environmental offences was $5,000. By contrast many environmental laws now have maximum fines in the millions of dollars, imprisonment and other serious consequences such as forfeiture of property and business licences.[26] While the severity of penalty has mounted for many offences, there is little direction to the judiciary on when these powerful sentencing tools are to be used in a principled and consistent manner.
Periods of incarceration can be significant under Ontario regulatory laws with a possibility of imprisonment of five years less a day under certain statutes such as the Securities Act[27] and the Environmental Protection Act.[28] It has been argued that the POA is not suited for such serious offences and the unavailability of conditional sentences or other sentencing tools is cited in support of this argument.[29]
4. Increased Use of Administrative Monetary Penalties
A fourth important development has been the increased use and acceptance of administrative monetary penalties (AMPS) in Ontario statutes, which are thought by some to be more efficient and less expensive than a regulatory offence regime.[30] There are a number of AMPS regimes in Ontario, including the system created under the Municipal Act, 2001[31] that allows a municipality to establish an AMPS system to enforce parking by-laws instead of pursuing a prosecution under Part II of the POA.[32] At present, only the City of Vaughan has chosen to implement an AMPS system for parking infractions,[33] although other municipalities have them to enforce other by-laws or are in the process of implementing a parking AMPS system like Vaughan. This issue is the focus of Chapter V of this Report.
5. Transfer of POA Prosecution & Administration to Municipalities (Municipal Partners)
Part X of the POA allows the Attorney General and a municipality to enter into an agreement with respect to a specific area that authorizes the municipality to perform courts administration and court support functions. When such an agreement is in force, municipalities have the power to conduct most prosecutions, collect fines in POA proceedings and enforce their payment.[34]
Municipalities in some Court Service Areas (CSAs) identified one municipality to deliver POA court services on behalf of all municipalities in the CSA, although in some larger CSAs, there is only one municipality (e.g. Ottawa and Toronto). A Municipal Partner is a municipality that has entered into an agreement with the Attorney General as per Part X of the POA on behalf of more than one municipality. Where there are multiple municipalities in a CSA, the Municipal Partner is required to enter into an inter-municipal revenue and cost-sharing agreement with all other “serviced municipalities” in the CSA. For the purposes of this Report, we refer only to “municipalities” recognizing that some will be included within a Municipal Partner transfer agreement. Since 1999 the Attorney General has entered into 52 POA Transfer Agreements with municipalities and the transfer of these responsibilities to the municipalities is now complete.
This is an important consideration when modernizing the POA. Different regions of the province may face unique operational pressures and new procedures may have a different impact on each municipality.
6. The Licensing of Paralegals to Provide Legal Services
Paralegals are now regulated by the Law Society of Upper Canada[35] and may represent people on POA matters in the Ontario Court of Justice[36] and before administrative tribunals. As of March 30, 2009 over 2,300 paralegals have been licensed and insured in Ontario. Paralegals are required to follow the Paralegal Rules of Conduct and complaints about paralegals can be made to the Law Society of Upper Canada, which may result in discipline where appropriate.[37] The increased use of paralegals in POA matters is a new development that did not exist when the POA was enacted 30 years ago. It goes some way to affording greater access to justice for those unable to afford a lawyer. It also raises questions about the appropriateness of extending traditional solicitor-client privilege to paralegal-client relationships.
7. Changes in Technology
There have been enormous technological advances since 1980 and many could improve the investigation and enforcement of POA matters, court administration and how POA proceedings are conducted. The use of technology has been incorporated into certain POA sections. For example, on June 15, 2010, subsections 83.1(1), (2) and (3) of the POA came into effect, allowing a witness, defendant, prosecutor and interpreter to participate in a POA proceeding by electronic method. An electronic method means video conference, audio conference, telephone conference or other method determined by the regulations. While section 83.1 does contain some caveats and limitations on this authority, it is a significant development that can improve access and service.
However, there are gaps on the use of technology in the POA. For example, the POA search warrant provisions, in contrast to the Criminal Code provisions, do not deal with the seizure of intangibles such as electronic data on a computer. Amending the POA to address advances in technology is one solution, but one might question the efficacy of legislating procedural matters involving technology when Rules of Practice, a regulation or practice guideline may offer a more adaptable and flexible alternative, particularly given the rapidly changing nature of technology.
8. Lengthy Waiting Periods to Resolve POA Matters
In its 1973 “Report on the Administration of the Courts”, the Ontario Law Reform Commission wrote as follows:
The primary goal of the court system is to serve the public; this involves adjudicative decisions which are not only fair, but made without delay and at reasonable cost and convenience.[38]
While the disposition time of POA matters in courts changes over time and varies between municipalities, it is clear that there is presently a significant waiting period to resolve a POA matter. In Ontario as a whole in 2007, the average number of days from the date of the first hearing request to disposition of a Part I matter in the Ontario Court of Justice was 198.7 days and for a Part III matter it was 291.9. In 2008, it was 207.1 days for Part I matters and 276.8 days for Part III matters.[39] Figures for Part II parking tickets are not available, but the City of Toronto has indicated that it can take up to 14 months to get a trial date for a parking matter. (There is a range of anywhere from 8 to 14 months, depending on a number of variables.)[40]
9. Lessons from Experience
Finally, as is the case with all legislation and regulation, many years of experience have led those working with the POA to develop views about which parts of the POA work well and which could be improved to better implement its purposes. The LCO’s discussion on bail in POA proceedings, for example, was driven more by the problems that stakeholders had experienced rather than by a simple statutory comparison with the Criminal Code bail provisions.
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