Provincial Offences Act - Ontario Law PDF

**Chapter 1: An Overview of the Provincial Offences Act** --------------------------------------------------------- **Introduction:** - Ontario Statute - Procedures for administration and prosecution of certain offences: - Provincial statute, municipal by-law and specific federal...

**Chapter 1: An Overview of the Provincial Offences Act** --------------------------------------------------------- **Introduction:** - Ontario Statute - Procedures for administration and prosecution of certain offences: - Provincial statute, municipal by-law and specific federal statutes - Also called regulatory / public welfare offence - *Procedural Act* - Provincially legislated act - *Provincial Offence Act,* RSO 1990, c P.33 (POA) Regulator Offences -- regulates our behaviour Public Welfare offences -- Well-being of the general public - You are regulated until you die (there is regulation on what to do with dead bodies) - Everything is regulated think of the rules certain establishments has (restaurant, healthcare, Schools (Fire alarms, drills, and building capacity, WHMIS, SOP), driving) - Public Safety - By-laws **Statutes Governed by Provincial Offence Act** - Provincial Statutes - *Highway Traffic Act* - *Compulsory Automobile Insurance Act* - *\$5,000 minimum First offence* - *\$10,000 minimum second time offence* - *Liquor Licence Act* - *Selling alcohol beyond the legal hours* - *Cannabis Control Act* - *Who and where and how they sell it* - *Type and the amount of cannabis within the product* - *Occupational Health and Safety Act* - *WHIMS* - *Any safety within establishment* - Municipal By-Laws: - Under authority of the *Municipal Act* - Federal Statutes - *Canadian Environmental Protection Act* - *EXAMPLE: Drycleaner dumping chemicals down the drain system* - *Canadian Shipping Act, 2001* - *Fisheries Act* - *EXAMPLE: need to have a license to go fishing* **Common Charges** - 81.5% of Provincial Offence Acts are Traffic violations - Speeding, redlight, cellphone, careless driving - Parking Offences - Fire routes, expired meter, fail to display permit etc. - Parking matters can follow administrative penalty by-law - Under Provincial Offence Part 2 - August 2017 moved the parking offence to an administrative penalty system - By-laws - Noise, licensing matters, building permits, etc. - Business that operates in Toronto have to be registered - Building Permits: For safety regulations, and the safety of the building - Regulatory inspections when building - Environmental - Municipal, provincial or federal legislation **Comparison with Criminal Charges** - Pre-1979 used criminal summary conviction process - Purpose of POA: to distinguish from criminal - Some resemblance to criminal process - Most charges and penalties - Procedures less restrictive and complex - No criminal record - Under Provincial Offences **Breakdown of the Provincial Offences Act (10 Sections)** Part I = procedure for minor offences - a ticket - Set fines Part II = procedure for parking offences - Parking illegal -- Ticket under the windshield Part III = procedure for more serious offences - No set fines - Court determines the amount - Driving with out insurance, stunt driving, etc. Part IV = trials and sentencing - The options when you are charged - The process, the guidelines Part V = general provisions Part VI = special rules for young persons - 15 years or younger - Truancy, alcohol and cigarettes, smoke or vape on school property Part VII = appeals and reviews - Determine if there is an error, evidence was not looked at, and Part VIII = arrest, bail, and search warrants - Upon an investigation - Driving without a license -- the second time - Bail hearing to see if you can be released Part IX = orders on applications under statutes - Continuously being convicted of the same offence - Fire code violation (Not having working smoke alarms) Part X = agreements with municipalities **Provincial Offence Act Regulations** - Certified Evidence - Costs - Electronic Documents - Extensions of Prescribed Times - Fees for Late Payment of Fines - Forms - Parking Infractions - Proceedings Commenced by **Certificate of Offence** - Victim Fine Surcharges - Service of Summons - Defective Certificate of Offence **Courts of Justice Act** - Sets out rules for Ontario courts - Section 38(2) of CJA - Designates Ontario Court of Justice as court with jurisdiction - Section 39 of CJA - Grants authority for judge and justice of the peace to preside - Regulations to CJA contain forms and rules for proceedings and appeals **Administration of Provincial Offence Act** - Part I & Part II: Municipalities have responsibility - Soon to be PART I TO PART III in Toronto (They are the only ones that have not done this yet) - Part III: Province has responsibility - Downloaded to municipalities in future (Schedule 35 of Bill 177) - Municipalities administer the POA courts and collect fines **Chapter 2: Role and Responsibilities** ---------------------------------------- Defendant (Client) - Charged with an offence - Can self-represent or hire a legal representative (Lawyer or Paralegal) - Becomes "client" when a representative is retained - Responsibilities include: - Providing instructions to representative - Paying fines, surcharges and costs - Testifying as witness **Provincial Offences Officer vs. Police Officer** +-----------------------------------+-----------------------------------+ | **Provincial Offences Officer** | **Police Officer** | +===================================+===================================+ | - Broad term | - Specific term | | | | | - Investigate possible offences | - Only refers to police officer | | | | | - Lays charges against | | | defendant | | | | | | - Includes range of officers | | | who can lay charges | | | (including police officer) | | | | | | - Called as witness for | | | prosecution trial | | +-----------------------------------+-----------------------------------+ **Representative** - Retained to represent defendant - Defend someone charged with an offence - Licensed by the Law Society of Ontario (LSO) - Must follow LSO ethical rules and guidelines - Lawyer - Also known as barrister and solicitor - Paralegal - Also known as agent **Court Administration Staff** - Perform administrative functions - Cannot provide legal advice - Responsibilities include: - Accepting payments - Scheduling trials - Arranging interpreters and officers to attend court - Answering general inquiries **Court Clerk** - Provides assistance to the justice - Sits in front of the justice - Wears black robe with no sash - Refer to as Madam/Mister Clerk - Responsibilities include: - Commencing and closing proceedings - Recording proceedings - Administering oaths - Collecting and itemizing exhibits - Completing paperwork - [arraigning the defendant ] - A charge **Court Security Officer** - Civilian members of police services board - Appointed as a special constable - Responsibilities include: - Monitoring courthouse - Attending to specific incidents - Screening everyone who enters the courthouse - They are physically in the court room when... - Freeman of the land, Sovern Citizen (Straw person) - They believe the laws that are created are not applicable to them - More so in the USA (violent) - In Canada -- Typically they are more vocal then violent - When there is a not mentally there person **Prosecutor (Crown)** - Agent of the Attorney General - Prosecutes the charges against the defendant - Can be employed by a municipality or the province - Not required to be a lawyer - There isn't a wining or loosing mind set - More of the mind set "Is it in the public interest, give them compassion) - Responsibilities include: - Preparing cases and evaluating charges - Interviewing witnesses - Providing disclosure - It's a right/ law - Negotiating with defendant - Presenting case in court - Vetting the personal information (Blacking out the personal information) - Beyond Reasonable Doubt - RPC: Reasonable Prospect Conviction ("Public Interest") - **Quaisi** **The Justice -- Justice of the Peace** - Addressed as "Your Worship" - Wears black robe with green sash - Lay bench (not required to have prior legal training) - Gives the "I am just like you" - "Normal person" -- less daunting - Varied professional backgrounds - Responsibilities include: - Presiding over trial level matters - Issuing information and applications - Conducting criminal bail hearings - 75 years is the maximum age -- Retired after that **The Justice -- Provincial Court Judge** - Addressed as "Your Honour" - Wears black robe with red sash - Must have 10 years' experience as lawyer - Responsibilities include: - Presiding over more serious POA cases - Hearing POA appeals - First level of appeal -- Paralegal can represent -- OCJ - Second level of appeal -- Only Lawyers can represent **Court Interpreter** - Work on a freelance basis - Must be on roster of accredited court interpreters - Translate exactly what has been stated - Provide services in many languages, including sign language - Services provided at no cost to defendant or witnesses - Justices have discretion to allow non-accredited interpreters - Notice of Intention to Appear - Type of form - What language they would like there hearing in **Witnesses** - First-hand knowledge about the matter - Could include: - Provincial offences officer - Defendant - Civilian witnesses - Can be summoned to give evidence at trial - Must be able to provide material evidence ### **Chapter 3: Procedural Streams** Introduction - First three parts of the POA govern the commencement of proceedings: - Part I: Minor Offences - tickets - Part II: Parking Offences - parking offences - Part III: Serious Offences Part I Offences Charging Document - Certificate of Offence: - Filled with court - Complete and regular on its face - Offence Notice or Summons: - Served on defendant - Handwritten or electronic - Fixed amount for out- of -court guilty plea - Does not apply to convictions at trial - Approved language to describe an offence - Personal service by provincial offence officer - Within 30 days from date of offence - Can be served by another officer - Served on defendant within 30 days of offence date - Filed in court within 7 days of service Part II Offence Charging Document - Certified of Parking infraction - Filed with the court - Parking Infraction Notice: - Served on the owner/operator - Handwritten or electronic Set Fines - Established by by-laws or regional senior judge - Fixed amount for out-of-court guilty plea - Some municipalities have early payment options - Service on owner by affixing to vehicle, or - Personal service on operator/person with care and control - Immediate (Time of the offence) - 15 days to respond - Notice of Impending Conviction -- additional 15 days Part III Offences Charing Documents - Information -- Laid before a Justice: - Detail of offence - Summons served on defendant: - Form 104 -- Before information is laid - For 106 -- After information is laid - Warrant: - Public interest - No set fine or out-of-court payments - Determined by the Justice at court date - \$5000 maximum -- unless otherwise specified in charging act - Can include other penalties (Example: imprisonment) - Expand option for service: - Personally, on defendant - Left at usual or last known residence - Registered mail, courier, or email - Service on representative by registered mail, courier, or email - Other options for corporations and defendant outside Ontario - Form 104: - Time and Place of offence - Form 106: Within six months unless otherwise specified in charging act **Chapter 4: Classification of Offence** ---------------------------------------- Introduction R v Sault Ste Marie (City), \[1978\] 2 SCR 1299, 1978 CanLII 11 - All provincial offences fall into one of three categories: - *Mens Rea* - Strict Liability It was added because of this case - Absolute Liability Classification - Provides framework for prosecution's case - Allows paralegal to determine how to defend ***Mens Rea* Offence (guilty minds)** - Very few provincial offences are *mens rea* - Refers to mental element/state of mind - Charging section will use words like: - Intentionally - Knowledge - Wilfully - Prosecution must prove - Defendant committed offence - Defendant had necessary mental element - Must be proven beyond a reasonable doubt - More difficult for prosecution to prove **Strict Liability Offence** - Most provincial offence are strict liability - Prosecution must prove: - Defendant committed offence - Must be proven beyond a reasonable doubt - Onus then switches to defendant - To provide due diligence defence Example: reasonable care, mistake of fact - Must be proven on a balance of probabilities **Absolute Liability Offence you are just guilty period.** - Many common offence are absolute liability - Example: *Highway Traffic Act* - Defendant liable even if not at fault - Prosecution must prove: - Defendant committed offence - Must be proven beyond reasonable doubt **Charter Issue** - Cannot be classified as absolute liability if possibility of incarceration - Contrary to section 7 of Charter: Life liberty, and security of a person - Limited ability to defend - Defence could bring Charter application **Classification /Reclassification of Offence** - Most classification have already been firmly established - Classification can be challenged - Burden of Proof: Party challenging classification *R v Kanda*, 2008 ONCA 22 - Driving while passenger under 16 fails to wear seat belt - Court assessed: subject matter, penalty, precision of language - Reclassified as strict liability - Allows for due diligence defence