Certain municipalities across the province (collectively, Transferee Municipalities) have, since 2000, undertaken courts administration and court support functions under the Provincial Offences Act (POA) and prosecutions (collectively, Transferred Obligations) of all matters commenced under Parts I and Parts II of the POA in accordance with a transfer agreement between each Transferee Municipality and the province as represented by the Attorney General (Original Transfer Agreement). Some Transferee Municipalities have also assumed Transferred Obligations respecting matters commenced under Part III of the POA in accordance with a separate Interim Transfer Agreement (ITA).
In its September 15, 2006 submission to the Standing Committee on Justice Policy respecting Bill 14, Access to Justice Act, 2006, the Association of Municipal Managers, Clerks and Treasurers of Ontario described the disturbing consequences of the inadequacy of resources in the Ontario Court of Justice:
“[P]ublic confidence in the administration of justice is being eroded. Some citizens have learned that it is possible to get away with breaking society’s rules and laws by simply exercising their right to request a trial. This is because sittings of POA courts are being reduced to the point that matters are being dismissed because they cannot be heard within an acceptable amount of time. The result is that these citizens are more likely to break the rules again, while a sense of unfairness grows among those citizens who respect the law.”
Despite efforts by the Ministry of the Attorney General to increase the number of appointments of Justices of the Peace, a Transferee Municipality’s ability to secure an adequate allocation of judicial resources for the performance of its Transferred Obligations remains an issue. Section 15 of the Justices of the Peace Act delegates to regional senior judges authority to allocate judicial resources:
15 (1) The regional senior judge, under the direction of the Chief Justice of the Ontario Court of Justice, shall direct and supervise the sittings of the justices of the peace in his or her region and the assignment of their judicial duties, and the authority of the regional senior judge shall include,
(a) the approval of duty rosters;
(b) the determination of the sittings for justices of the peace and the assignment of justices of the peace to those sittings;
(c) the assignment of cases and other judicial duties to individual justices of the peace;
(d) the determination of sitting schedules and places of sittings for individual justices of the peace; and
(e) the preparation of trial lists and the assignment of court rooms, to the extent necessary to control the determination of who is assigned to hear particular cases.
Judicial resources are critical to a Transferee Municipality’s ability to perform its Transferred Obligations but are resources over which the Transferee Municipality has no control.
In R. v. Jordan (2016), [2016] 1 SCR 631, the Supreme Court of Canada established a presumptive ceiling for bringing of charges (including for provincial offences) to end of trial within 18 months failing which the delay is presumed to be unreasonable for purposes of paragraph 11(b) of the Charter of Rights and Freedoms. Many Transferee Municipalities are struggling to comply with the Jordan timeline.
Set fines, court costs, and the maximum penalty for Part I offences ($1,000.00) have largely remained the same for more than 20 years[1]. At the same time, Transferee Municipalities’ costs to perform their Transferred Obligations – including costs over which they have no control – have steadily increased.
The result is that business case for Transferee Municipalities continuing to perform their Transferred Obligations is increasingly bleak.
At issue is whether the imposition of a POA quasi-criminal process to address regulatory contraventions is itself fundamentally a misallocation of scarce judicial resources. Perhaps a solution is to cause the diversion of many, if not most, of Part I and all of Part II POA matters to administrative monetary penalty (AMP) systems to permit scarce judicial resources to be reserved to the greatest degree to serious Part III POA matters.
This is not a new idea.
In its August, 2011 report, Modernization of the Provincial Offences Act,[2] the Law Commission of Ontario considered how AMP systems may contribute to a more effective and efficient use of court resources:[3]
“Given the volume of minor Part I and II offences heard by the Ontario Court of Justice, the cost of administering POA courts, and the increasing use of AMP systems in Canada and elsewhere, one must ask whether Ontario’s POA regime should rely more heavily on AMPS as an alternative to the court process. Another key consideration is whether respect for our judicial system is promoted when court resources are used to hear very minor offences.”
Among the Law Commission of Ontario’s 47 recommendations were several respecting AMP systems:[4]
10. Within three years, after the Ministry of the Attorney General has consulted with municipalities and an appropriate IT infrastructure has been developed to report defaulted AMPs, the POA be amended to remove the prosecution of Part II parking infractions in the Ontario Court of Justice.
11. Within three 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.
12. Amend O. Reg. 333/07 under the Municipal Act (and O. Reg. 611/06 under the City of Toronto Act, 2006) to permit administrative penalties for the enforcement of by-laws establishing systems of disabled parking.
13. Increase the monetary limit for administrative penalties in section 6 of O. Reg 333/07 (and section 6 of O. Reg. 611/06) from $100 to $500, or such other amount as is necessary to permit enforcement of disabled parking by-laws through AMPS.
14. 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 three years. Consultation with municipalities who have already implemented an AMP system may assist in overcoming any operational challenges.
15. 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 regime. 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 AMPS 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;
e) operational issues that would hamper the ability to transition the offence into an AMPS regime;
f) the impact on the Victims’ Justice Fund; 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 and a POA court-based system).
On March 3, 2015, the Ministry of the Attorney General released its consultation document, “Exploring an online Administrative Monetary Penalty System for infractions of provincial statutes and municipal by-laws in Ontario”. The purpose of the consultation was to gather input on the merits of a potential online AMP system to replace in-court procedures for resolving traffic and other charges prosecuted under the POA:
“When an individual violates a provincial statute or municipal by-law, the current system treats it as an “offence” to be prosecuted under the Provincial Offences Act (POA).
Last year in Ontario, roughly 1,650,000 Part I and Part III provincial offences charges were laid under provincial statutes and municipal by-laws. These charges are largely made up of traffic matters (e.g. driving without a license).
Although provincial offences are not crimes, the process for fighting them in court often mirrors the criminal trial process, which is designed to emphasize the seriousness of an offence and to protect defendants from being unfairly punished. Like the criminal court process, the process for dealing with these matters requires significant court and law enforcement resources, which are paid for by Ontario and municipal taxpayers – resources that could be redirected to other needs.
The complexity of the current system may also pose barriers to meaningful access to justice. Those who wish to dispute provincial offence charges may find that the cost, length of time involved, formality and inconvenience of the court process are significant deterrents to fighting a ticket.
To help build a system that is effective, simpler, faster, less expensive – but still fair – for all Ontarians, the Ministry of the Attorney General (“the ministry”) is exploring whether to adopt an online administrative monetary penalty system (AMP) for select infractions of provincial statutes and municipal by-laws. The most serious provincial matters would continue to be prosecuted as offences in the Ontario Court of Justice.
An online AMP system has the potential to be a more appropriate and accessible way to deal with certain matters under the Provincial Offences Act. It may also meet the public’s expectation of electronic access to modern public services.”
Although an on-line provincially administered AMP system did not proceed, the consultation’s stated purpose underscored the point that scarce judicial resources should not be allocated to various infractions of provincial statutes and municipal by-laws but should be reserved for the determination of “serious matters”.
Several Ontario municipalities no longer rely on Part I or Part II of the POA and have established municipal AMP systems for the enforcement of their standards.
In 2014 the Highway Traffic Act (HTA) was amended to permit the imposition of AMPs for HTA matters,[5] and for matters prescribed by regulation. In 2022, the Province promulgated a regulation enabling AMPS for red light camera and automated speed enforcement matters.[6] Significantly, the regulation delegates to municipalities the authority to undertake the screening and review processes, the adjudication of appeals by a Hearing Officer and the collection of payments of the penalties.
Several Transferee Municipalities have also established their own AMP systems and have several years of experience in administering them. It would seem to be in the mutual interests of the province and of Transferee Municipalities to build on their existing relationships. Specifically, the province should consider:
- expanding the scope of HTA and other matters for which provincial AMPs are available as an enforcement alternative including for contraventions historically the subject of POA Part I proceedings under the Original Transfer Agreements; and
- delegating to Transferee Municipalities the authority to administer such provincial AMPs including undertaking the screening and review processes, the adjudication of appeals by a Hearing Officer and the collection of payments of the penalties.
Perhaps now is the time to also repeal POA, Part II (Parking Infractions), as originally recommended by the Law Commission of Ontario in 2011. Similarly, consideration should be given to amending POA, Part I, so that the Part I process is no longer available for contraventions of municipal standards for which a municipal AMP system is available as an enforcement alternative.
The implementation of these initiatives should, together, contribute to a more efficient and effective allocation of scarce judicial resources in the Ontario Court of Justice.
(The views in this memorandum are those of the author and not necessarily consistent with the views of the author’s municipal employer.)
[1] As at July 1, 2024, the set fine for driving without a currently validated permit contrary to section 7(1)(a) of the HTA was increased from $85.00 to $125.00, but the vast majority of similar offences remain at $85.00 and the most common offence type (speeding) has remained unchanged for decades.
[2] https://www.lco-cdo.org/wp-content/uploads/2011/10/POA-Final-Report.pdf (Law Commission Report)
[3] Law Commission Report at p 51.
[4] Law Commission Report at pp 133-134.
[5] HTA, s. 21.1.
[6] O.Reg 355/22, Administrative Penalties for Contraventions Detected Using Camera Systems.
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