Contraventions Act Fund, Summative Evaluation

Executive Summary

Executive Summary

In 2003, the federal government established the Contraventions Act Fund (hereafter “the Fund”) to support the implementation of the Contraventions Act in a manner consistent with all applicable constitutional and legislative language rights. As part of its performance measurement strategy, the Department of Justice Canada scheduled this summative evaluation of the Fund to be conducted in fiscal year 2007–2008. This document constitutes the summative evaluation's final report.

1. Program description

In 1992, Parliament passed the Contraventions Act to recognize the distinction between criminal offences and regulatory offences and to establish a more effective framework to process and prosecute these regulatory offences. The logic of the Contraventions Act involves identifying regulatory offences that are to be considered “contraventions” and establishing a simpler alternative scheme to process and prosecute contraventions.

In 2001, the Federal Court was asked to clarify language rights applicable to judicial activities and extra-judicial services delivered as part of the Contraventions Act. The Court concluded that while the federal government is authorized to use the prosecution scheme of a province to prosecute federal contraventions, it must comply with all language rights requirements that would be applicable in the context of a purely federal prosecution scheme. The Court added that any level of government that processes federal contraventions is, in fact, acting on behalf of the Government of Canada and must therefore comply with all language rights applicable to federal institutions.

Following the Federal Court decision, the Department of Justice initiated the process of modifying existing Contraventions Act agreements and their related statutory frameworks to address language rights requirements identified in the ruling. To support this process, the Department of Justice received funding to establish the Fund, which is the object of this summative evaluation.

2. Methodology

The methodology used to conduct this evaluation has three main components:

3. Program rationale

The federal government has exclusive jurisdiction over the prosecution of federal contraventions. As such, it may implement its own prosecution scheme or incorporate provincial prosecution schemes. Regardless of the option selected, the federal government must ensure that all applicable constitutional and quasi-constitutional language rights are respected. According to the 2001 Federal Court ruling, this means that the constitutional rights included in Sections 16 and 20 of the Canadian Charter of Rights and Freedoms, as well as the quasi-constitutional rights included in Sections 530 and 530.1 of the Criminal Code (for judicial services) and Part IV of the Official Languages Act (for extra-judicial services), must be respected in all jurisdictions where the Contraventions Act is operational.

The inclusion of provincial or territorial offence schemes is an acceptable strategy to implement the Contraventions Act, as long as the following two requirements are met:

The only exception to that rule is New Brunswick, which is the only province in Canada where constitutional language rights applicable to the provincial government mirror those applicable to the federal government.

The Fund represents a critical tool supporting the federal government's current efforts to pursue the implementation of the Contraventions Act throughout Canada in a manner that is consistent with all constitutional and quasi-constitutional rights applicable to federal contraventions. Without the Fund, it is doubtful that the federal government would succeed in its ultimate objective, which is to offer Canadians a more effective prosecution scheme for certain regulatory offences designated as contraventions.

The Fund has been assisting provincial governments to address gaps in their capacities to provide the bilingual services required in relation to the prosecution of federal contraventions. The Fund has proven flexible enough to tailor strategies to the situation prevailing in each province.

4. Design and delivery

At the time of the evaluation, the federal government had included activities supported by the Fund in Contraventions Act agreements signed with four provinces: Nova Scotia, Ontario, Manitoba, and British Colombia. In these four provinces, the required regulatory framework has also been put in place to guarantee language rights included in the Criminal Code for judicial activities. With New Brunswick which already guarantees all language rights applicable to federal contraventions, it means that Canadians in five jurisdictions now have access to an alternative prosecution scheme for federal contraventions that achieves the stated goals of the Contraventions Act and that are consistent with all applicable language rights.

In two other jurisdictions, namely Prince Edward Island and Quebec, federal contraventions are processed and prosecuted using the provincial scheme, but the regulatory framework has yet to include the required reference to all language rights applicable to Federal Contraventions. Also, in the case of Prince Edward Island, the existing Contraventions Act agreement has yet to be modified to include the required reference to language rights applicable to contraventions.

In the remaining jurisdictions, all federal regulatory offences, including those designated as contraventions, are still prosecuted using the summary conviction scheme of the Criminal Code.

The range of activities supported by the Fund is relatively small and typically includes the hiring and training of judicial and extra-judicial court personnel, communication tools, production and distribution of bilingual tickets, and other administrative activities. In all four provinces where the Fund has been supporting such activities, the provinces have successfully implemented their specific set of activities.

The experience to date demonstrates that jurisdictions prosecuting federal contraventions can expect to face the following challenges:

One avenue that the Contraventions Act Implementation Management Division may wish to consider is the establishment of a network of provincial officials responsible for the implementation of the Contraventions Act. For many provincial officials, the effective implementation of fully bilingual services relating to the federal contraventions is an area where they have little corporate experience to rely on. While each province has its unique prosecution scheme, challenges are common among all provinces that are now involved in the processing of federal contraventions and yet, provincial officials have no means by which they can share their experiences and best practices.

5. Results

Activities supported to date through the Fund are established based on needs assessments and negotiations between the federal government and each province. These activities ensure that participating provinces have the required capacity to deal with the processing and prosecution of federal contraventions under their regime in a manner that is consistent with all applicable language rights. In all four provinces where the Fund has supported activities, these activities have, in fact, strengthened the capacity of targeted court offices to provide bilingual services.

It is to be expected that the range of activities within each province or among all participating provinces will constantly evolve, and, as such, it would be desirable for the Fund to maintain its current flexibility. As each province forges ahead with the processing of federal contraventions, it is possible that unexpected gaps will emerge and that the Fund will be needed to effectively address these gaps.

The four participating provinces are fully prepared to offer trials dealing with federal contraventions in a manner consistent with language rights protected in sections 530 and 530.1 of the Criminal Code. Each province has built the capacity to uphold these rights, which can be addressed in advance once a person alleged to have committed a federal contravention opts for a trial in French.

A failure to provide a trial in a manner that is consistent with the language rights contained in the Criminal Code would constitute a substantial wrong, which would allow a court to order a new trial in the official language of the person alleged to have committed a federal contravention.

The four participating provinces have also taken measures to actively offer extra-judicial services in both official languages in all court locations covered by Part IV of the Official Languages Act. Experience to date indicates that providing these services systematically and proactively is a challenge and will certainly require ongoing monitoring. The various associations de juristes d'expression française and the Commissioner of Official Languages will play a central role in that regard.

An important aspect of actively offering services is ensuring that any communication with the public sends a clear message about the availability of bilingual services. The current forms (tickets) used in all four provinces go a long way in communicating this message. But when individuals do show up at a court location to pay their fine or to enquire about their options, the signage within this location must also convey the message that services are in fact available in both languages. The approaches taken in Ontario and Manitoba in relation to signage stand as good practices for other jurisdictions to follow.

All provincial or municipal governments that are processing federal contraventions are acting on behalf of the federal government. The nature of their obligation in that regard is one of result. Any failure to comply with the Official Languages Act can lead to a complaint being filed with the Commissioner of Official Languages and may lead to a court remedy, should a complainant choose to file an application before the Federal Court under the Official Languages Act.

6. Cost effectiveness / alternatives

The Fund has been implemented in a cost-effective manner. Only well-identified gaps within each participating province have been the object of funding, and experience to date indicates that the actual costs of implementing activities included in Contraventions Act agreements have been smaller than initially anticipated.

This evaluation has not identified any alternative to the Fund that could more efficiently achieve its stated objectives. The Fund has proven to be a flexible tool that has supported federal and provincial governments in their attempt to address identified issues relating to the protection of language rights, so that provincial schemes can be used to process and prosecute federal contraventions.