Contraventions Act Fund, Summative Evaluation
4. Key Findings
4. Key Findings
This section presents key findings from the document review, interviews, and site visits. The information is complementary to that included in the program description.
4.1. The rationale for the Contraventions Act Fund
The rationale for implementing the Fund rests primarily on the need to address the legal risk resulting from the 2001 Federal Court decision, as well as on the need to design a response that can be effectively aligned with the logic of the Contraventions Act.
4.1.1. Legal risks resulting from the court ruling
The 2001 ruling of the Federal Court on the Contraventions Act jeopardized the entire federal government's effort to streamline the prosecution of certain regulatory offences. As described in sub-section 2.1.2, the Court gave one year to the federal government to modify its Contraventions Act agreement with the province of Ontario to ensure that all applicable language rights be respected; otherwise the agreement would become void.[28] In the absence of a valid agreement, contraventions would no longer be prosecuted using the provincial scheme, and all stakeholders would be sent back to the drawing board.
While invalidating the initial approach selected by the Department of Justice to implement the Contraventions Act, the Federal Court ruling also paved the way for the federal government to retain the Contravention Act project. The Court confirmed that the overall strategy selected by the federal government to prosecute contraventions, particularly as it relates to the use of provincial offence schemes, was valid as long as “necessary measures, whether legislative, regulatory, or otherwise
” were taken to guarantee that all language rights applicable to federal contraventions were respected.[29] This essentially clarified the conditions upon which the federal government could pursue its effort to roll-out the new ticket scheme throughout Canada.
The federal government's response to the Court ruling needed to be sufficiently flexible to address different gaps associated with different prosecution schemes. In practical terms, the “necessary measures” taken in Ontario to ensure that language rights applicable to contraventions are respected are bound to be different than those measures taken in Manitoba or British Colombia for the same purpose. Each province has its own prosecution scheme and its own capacity to offer services in both official languages. The nature of measures taken in each jurisdiction to protect language rights had to reflect the nature of the gaps that existed in each jurisdiction.
To implement measures tailored to the specific context of a province, the federal government modified existing contravention agreements and their associated regulatory framework. At the time of the court ruling, the federal government had already signed Contraventions Act agreements with several jurisdictions and was in the process of negotiating agreements with others. The strategy therefore consisted of re-opening these agreements to include new measures dealing specifically with the set of orders issued by the Federal Court and to modify their regulatory framework to include a direct reference to sections 530 and 530.1 of the Criminal Code. To date, the Fund has been providing the necessary financial resources to allow the federal government to support provinces that need to address certain gaps in their capacity to provide judicial and extra-judicial services in both official languages.
4.1.2. Consequential impact of the court ruling
In the absence of an adequate response to the Federal Court ruling, all federal contraventions would be sent back to the summary conviction process, which would have significant consequences. A brief comparison between the ticket-based prosecution scheme and the summary conviction process illustrates the advantages of pursuing the full implementation of the Contraventions Act (see Figure 4 on page 24 of this report):
- The first key difference between the two prosecution schemes is the action required as a result of the decision by the enforcement authority to lay a charge. As noted in sub-section 2.1.1 of this report, a person served with a ticket typically has three options: pay the fine, plead guilty with an explanation (to reduce the fine or obtain more time to pay), or ask for a trial. Even if the person served with an information (dénonciation) under the summary conviction process does not wish to challenge the charge, he or she must nonetheless proceed with a first appearance in court, and this step has significant impacts: it mobilizes the time of court personnel, duty counsel (where applicable), prosecutors, and judges. It also requires that the accused person appear in the judicial district where the offence is alleged to have been committed, which may involve lengthy and costly travelling. That first step is completely avoided in the case of contraventions. And considering the nature of federal contraventions (regulatory offences subject to a relatively small fine), the vast majority of individuals alleged to have committed one simply pay the fine by mail or in person.
- The second key difference between the two schemes is the option given to a person who is alleged to have committed a contravention to plead guilty with an explanation. This option avoids a full trial if the person agrees that his or her behaviour was inconsistent with federal laws, but wishes to present mitigating factors. Also, this option is typically done in front of the Justice of the Peace and, in some cases, can be submitted in a written form.
- The third difference is that, in the event of a trial, provinces may set “offences courts,” whose mandate is to deal with both provincial offences and federal contraventions (such is the case in Ontario). These offences courts typically follow procedures that are simpler than those applicable in a criminal court, which benefits all parties involved.
An effective response to the Court ruling would also allow the federal government to achieve the second purpose of the Contraventions Act, which is to essentially “abolish the consequences in law of being convicted of a contravention.
”[30] As noted in section 2.1.1 of this report, a person found guilty of a contravention will not have a criminal record. Such is not the case for a person found guilty of a summary conviction offence, who automatically ends up with a criminal record. This consequence in law may create significant barriers to employment in addition to limiting the ability of the person to obtain a passport and travel outside of Canada. Simply put, Parliament adopted the Contravention Act to limit the penalty associated with certain regulatory offences to the prescribed fine.
While not stated as a direct purpose of the Contraventions Act, the establishment of a simpler, more effective prosecution system serves as a strong incentive for enforcement authority to more readily enforce federal laws. During our interviews with provincial representatives, it was noted that enforcement officers typically welcomed the implementation of the Contraventions Act in their province as a new tool to effectively deal with the designated regulatory offences.
Figure 4 - Comparison of Summary Conviction and Contravention Processes
4.2. Overview of implementation across Canada
The implementation of the Fund is directly linked to the implementation of the Contraventions Act throughout Canada. For the purposes of this evaluation, it is best to structure the overview of program implementation on two distinct periods: pre-Federal Court ruling and post-Federal Court ruling.
4.2.1. Pre-Federal Court ruling
Following the 1996 amendment to the Contraventions Act, the federal government initiated the process of incorporating provincial offence schemes and signing agreements to make the Contraventions Act operational throughout Canada. At the time of the Federal Court ruling in 2001, the federal government had completed these two steps in six jurisdictions (see Table 4).
| Jurisdictions | Date |
|---|---|
| Prince Edward Island | 1997 |
| Nova Scotia | 1999 |
| New Brunswick | 1997 |
| Québec | 2000 |
| Ontario | 1996 |
| Manitoba | 1997 |
Source: administrative documents
It is important to note that, at that point, none of the regulations incorporating the provincial scheme for the purpose of the Contraventions Act, and none of the agreements signed between the federal government and provincial governments, with the exception of the one signed with the Quebec government, referred to the language rights incorporated in the Criminal Code or Part IV of the Official Languages Act. Nonetheless, all federal offences designated as contraventions have been prosecuted using the provincial offence scheme since the years mentioned in Table 4.
4.2.2. Post-Federal Court ruling
The immediate impact of the 2001 Federal Court ruling was to create, de facto, three categories of jurisdictions for the purpose of the Contraventions Act's implementation:
- Category 1: Jurisdictions fully compatible with the Federal Court ruling.
- Category 2: Jurisdictions where the Contraventions Act is operational but that have yet to be fully compatible with the Federal Court ruling.
- Category 3: Jurisdictions where the Contraventions Act is not yet operational.
This sub-section describes where each jurisdiction in Canada stands in relation to these categories and how the Fund has been used to date. Table 5 (page 28 of this report) summarizes the information presented.
Category 1: Compatible jurisdictions
In its 2001 ruling, the Federal Court essentially required that two actions be taken to guarantee language rights relating to federal contraventions:
- Any incorporation of a provincial scheme for the purpose of prosecuting federal contraventions must include a direct reference to the language rights guaranteed by the Criminal Code (Sections 530 and 530.1).
- Any agreement signed between the federal government and a provincial government must include a clear reference to the language rights covering judicial activities (Criminal Code) and extra-judicial activities (Part IV of the Official Languages Act).
To comply with the ruling, avoid new court challenges in other jurisdictions where the Contraventions Act was already operational (see Table 4), and pursue the implementation of the Contraventions Act in other jurisdictions, the Department of Justice was facing two critical tasks:
- modify the existing regulations made under the Application of Provincial Laws Regulations to make applicable language rights included in section 530 and 530.1 of the Criminal Code and amend agreements made in support of the Contravention Act's implementation in accordance with the court ruling.
- pursue, in a manner consistent with the Federal Court ruling, negotiations with jurisdictions that have yet to make the Contraventions Act operational.
At the time of this evaluation, this process was completed in five jurisdictions: Nova Scotia, New Brunswick, Ontario, Manitoba, and British Colombia. Different strategies were required to achieve this result.
- In the cases of Nova Scotia, Ontario and Manitoba, the federal government modified the existing regulations and agreements to comply with the Federal Court ruling.
- In the case of British Colombia, the federal government established the proper regulatory framework and signed the Contraventions Act agreement in the period following the Federal Court ruling and completed the process in a manner consistent with the Federal Court ruling.
- In the case of New Brunswick, no actions were required on the part of the federal government. Indeed, New Brunswick stands in a category of its own, being the only province in Canada where constitutional language rights applicable to the provincial government mirror those applicable to the federal government.[31] By incorporating the provincial offence scheme for the purpose of prosecuting federal contraventions, the federal government was incorporating a system that guarantees all constitutional language rights applicable to federal contraventions.
Category 2: Jurisdictions that have yet to be compatible
Two jurisdictions are currently prosecuting and processing federal contraventions using their respective provincial offence schemes while their regulatory frameworks and agreements have yet to be made fully compatible with the Federal Court ruling:
- Prince Edward Island: While the federal government intends to modify the regulatory framework and the related agreement, no specific action were underway at the time of the evaluation.
- Quebec: The federal government has initiated the process of amending the regulatory framework applicable to the province of Quebec. On December 2, 2006, the federal government published the proposed amendment in the Gazette of Canada to fully incorporate sections 530 and 530.1 of the Criminal Code. Also, negotiations are ongoing between the two levels of government to amend the agreement relating to federal contraventions. Finally, the ticket served for federal contraventions in Quebec has already been modified to reflect these changes.
Category 3: Contraventions Act not operational yet
In the remaining jurisdictions (Newfoundland and Labrador, Saskatchewan, Alberta, and the three territories), individuals alleged to have committed a federal contraventions are prosecuted using the summary conviction process. The federal government has initiated discussions at various levels with these jurisdictions, but no formal agreement had been implemented at the time of this evaluation.
Table 5: Overview of the implementation of the Contraventions Act across Canada
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