Contraventions Act Fund, Summative Evaluation
2. Description of the Contraventions Act Fund
2. Description of the Contraventions Act Fund
The federal government established the Fund to support the implementation of the Contraventions Act in a manner consistent with all applicable constitutional and legislative language rights. This section of the report describes the overall policy and legislative context relating to the Contraventions Act and the Fund, as well as a description of the Fund's program logic, management structure, and resources.
2.1. Policy and legislative context
In describing the policy and legislative context associated with the Fund, this sub-section describes the Contraventions Act to which the Fund is intrinsically linked, the set of language rights applicable to federal contraventions, the 2001 ruling of the Federal Court on the Contraventions Act, and the establishment of the Fund as a response to this ruling.
2.1.1. The Contraventions Act
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 Act is expected to benefit both Canadians and their justice system by limiting the long-term impact of a conviction of certain regulatory offences and by allowing the court system to focus its resources on instances where individuals alleged to have committed certain regulatory offences wish to plead not guilty and request a trial. As formally stated in Section 4 of the Act:
4. The purposes of this Act are:
- to provide a procedure for the prosecution of contraventions that reflects the distinction between criminal offences and regulatory offences and that is in addition to the procedures set out in the Criminal Code for the prosecution of contraventions and other offences; and
- to alter or abolish the consequences in law of being convicted of a contravention, in light of that distinction.[3]
The logic of the Contraventions Act is relatively straightforward:
- First, the federal government identifies regulatory offences that are to be considered “contraventions.”
- Second, the federal government establishes a simpler alternative scheme to prosecute federal offences designated as contraventions. The federal government essentially considered two options: establishing an entirely new federal scheme or using schemes that are already in place in provinces to prosecute and process provincial offences. The federal government opted for the latter option. As a result, a designated federal regulatory offence, such as operating a pleasure craft with an insufficient number of lifejackets, is treated much like a provincial offence, such as driving without wearing a seat belt. In both cases, the person is served a ticket offering a range of options such as paying the fine, pleading guilty with an explanation, or opting for a trial.
The remainder of this sub-section provides additional information on these two key steps, which are illustrated in Figure 1.
Prosecution of Federal Offences
Figure 1
Designation as “contraventions”
The Contraventions Act specifically defines a contravention as “an offence that is created by an enactment and is designated as contravention by regulation of the Governor in Council.”
[4] Using the Contraventions Regulations, [5] the federal government has, to date, designated more than 2,700 regulatory offences as contraventions, involving more than 20 different federal laws and 40 sets of regulations. All federal offences designated as contraventions are regulatory offences under a wide range of federal acts other than the Criminal Code. Table 1 provides examples of regulatory offences that the federal government has designated as contraventions.
| Enabling act | Contraventions |
|---|---|
| Canada National Parks Act | Damaging an archaeological site or a historical resource |
| Canada Wildlife Act | Unlawfully hunting or fishing |
| Migratory Birds Convention Act | Hunting a migratory bird without a permit |
| Motor Vehicle Transport Act | Requesting a commercial vehicle driver to drive without at least eight consecutive hours of off-duty time. |
| Tobacco Act | Furnishing a tobacco product to a young person in a public place or in a place to which the public reasonably has access. |
| Canada Shipping Act | Allowing a person under 12 years of age to operate a pleasure craft with engine power greater than 7.5 kW without prescribed supervision. |
Source: Contraventions Regulations (SOR/96-313) and enabling laws and regulations
A practical example can illustrate the process of establishing a contravention. In 2000, Parliament passed the Canada National Parks Act, whose main purpose is to establish parameters for the use and maintenance of national parks “so as to leave them unimpaired for the enjoyment of future generations.”
[6] Paragraph 16(1)(b) of the Canada National Parks Act allows the Governor in Council to make regulations respecting “the protection of flora, soil, waters, fossils, natural features, air quality, and cultural, historical and archaeological resources.”
On that basis, the federal government passed the National Historic Parks General Regulations, which stipulates at subsection 4(1) that “no person shall remove, deface, damage or destroy flora, fauna or natural objects in a Park.”
Referring back to the definition of a contravention, the first condition for creating a
federal contravention is met: we have “an offence that is created by an enactment,”
in this case created by the National Historic Parks General Regulations. The second condition for creating a contravention is that the offence be “designated as contravention by regulation of the Governor in Council.”
Using the Contraventions Regulations, the federal government designated the offence described in subsection 4(1) of the National Historic Parks General Regulations (removing flora, fauna or a natural object) as a contravention and established the maximum fine at $300.[7]
Prosecution scheme
The main purpose of the Contraventions Act is to create a new option for prosecuting and processing certain regulatory offences that are designated as contraventions. As stated above, the purpose of the Contraventions Act is to “provide a procedure for the prosecution of contraventions […] that is in addition to the procedures set out in the Criminal Code for the prosecution of contraventions and other offences.”[8]
The initial design of the Contraventions Act, before its 1996 amendments, provided for the establishment of an entirely new prosecution scheme that would specifically deal with federal contraventions. It is relevant to describe this proposed federal prosecution scheme to better understand the initial intent of Parliament. The Contraventions Act establishes an alternative process that could be followed in relation to a federal contravention. Key characteristics of this proposed prosecution scheme include:
- Creation of a special mode of prosecution: Enforcement authorities have the option of completing and serving a ticket to individuals who are alleged to have committed a contravention. The person who is alleged to have committed a contravention is given the option to pay the fine (typically by mail), which constitutes a guilty plea; plead guilty with an explanation (to reduce the fine); or ask for a trial.[9]
- Right to a trial in the official language of the accused: In the event that someone who is alleged to have committed a contravention wishes to have a trial, the Contraventions Act specifically states that measures included in the Criminal Code on the language of a trial (sections 530.1 and 531) apply.[10]
- Sentence limited to a fine: A person convicted of a contravention prosecuted by ticket is liable to the fine established by the Contraventions Regulations (not the fine stated in the original act or regulation) and under no circumstances is the person liable to imprisonment. Using our earlier example relating to national parks, a person who is found guilty of removing protected flowers from a national park is liable to a fine of $300, not to a fine of up to $2,000 for proceedings commenced by way of summary conviction.[11]
- No criminal record: One of the central objectives of the Contraventions Act is to remove the stigma and the impact of having a criminal record for individuals who are found guilty of certain regulatory offences designated as contraventions. The purpose of the Act is to reflect the distinction between regulatory offences and criminal offences and
“to alter or abolish the consequences in law of being convicted of a contravention, in light of that distinction.”
It is on this basis that the Contraventions Act states that, apart from exceptional circumstances,“a person who has been convicted of a contravention has not been convicted of a criminal offence”
and adds that“a contravention does not constitute an offence for the purpose of the Criminal Records Act.”
[12] This is a significant change considering the impact that a criminal record may have on the ability of an individual to practice certain professions, find employment, or even obtain a passport.
In 1996, Parliament modified the Contraventions Act to avoid the duplication that would have resulted from the establishment of an entirely new federal scheme to prosecute federal contraventions. Instead, the Act gives authority to the federal government to use provincial schemes to prosecute federal contraventions. As stated in section 65.1 of the Act:
“ 65.1 (1) The Governor in Council may, for the purposes of this Act, make regulations making applicable, in respect of any contravention or any contravention of a prescribed class of contraventions, alleged to have been committed in or otherwise within the territorial jurisdiction of the courts of a province, laws of the province, as amended from time to time, relating to proceedings in respect of offences that are created by a law of the province, with such modifications as the circumstances require […].”
As one may expect, the prime advantage for the federal government of using provincial schemes is to avoid setting up an entirely new structure for managing tickets, payments, trials, reporting, and all other functions related to a ticket-based prosecution scheme. But in order for the federal government to use a provincial scheme, it must first obtain the support of the concerned provincial government. To facilitate this process, the Contraventions Act states that “the Minister may enter into an agreement with the government of a province respecting the administration and enforcement of this Act generally.”
[13] Among other things, these agreements determine how administrative costs relating to the processing of federal contraventions will be covered and how revenues from contraventions are to be shared between the two levels of government.
On the basis of an agreement between the two levels of government concerning the use of a provincial scheme to prosecute and process federal contraventions, the federal government, by means of the Application of Provincial Laws Regulations, essentially incorporates a provincial prosecution scheme into the Contraventions Act. As stated in section 1 of the Application of Provincial Laws Regulations, “the laws of a province referred to in the schedule apply, as amended from time to time, to the prosecution of contraventions designated under the Contraventions Regulations, to the extent and with the adaptations indicated in the schedule.”
A provincial scheme can only be used to prosecute and process federal contraventions once the following two steps have been completed: an agreement has been signed between the federal and provincial governments and the required regulatory framework has been established to incorporate the provincial prosecution scheme. In the absence of either one of these two steps, federal contraventions are prosecuted by way of summary conviction or indictment.
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