Contraventions Act Fund, Summative Evaluation

4. Key Findings (cont'd)

4. Key Findings (cont'd)

4.3. Range of activities implemented through the Fund

At the time of the evaluation, the Fund had been supporting activities in four jurisdictions. The range of activities in each jurisdiction is based on a needs assessment and typically covers both judicial and extra-judicial services. Provinces that have benefited from the Fund have largely succeeded in implementing their planned activities and, as a result, have strengthened their capacity to offer services in both official languages. This sub-section further explores these findings.

4.3.1. Activities supported by the Fund

The Fund has been supporting activities in Nova Scotia, Ontario, Manitoba, and British Colombia. As illustrated in Table 6 (on page 30), the new prosecution scheme for federal contraventions came into effect in different fiscal years among these four provinces: Ontario was the first one to implement the new scheme (in 2002–2003), and British Colombia was the latest one to do so (in 2006–2007). Funding has typically been provided in the one or two years leading up the implementation of the new prosecution scheme to allow for preparatory activities to be completed.

Each of the four beneficiary provinces negotiated with the federal government on the range of activities needed to address their specific gaps. It is important to note that not all provinces implementing the new prosecution scheme for federal contraventions will necessarily require support from the Fund. In the case of New Brunswick, for instance, the Contraventions Act is operational and yet, the two levels of governments have not identified any need for support from the Fund so far. As the experience of New Brunswick in processing federal contraventions evolves, it is possible that some support from the Fund will be required in the future.

Interviews conducted as part of this evaluation with provincial representatives pointed to a high level of satisfaction with the negotiation process. All four provincial governments concluded that their respective agreements adequately address their specific needs. The Terms and Conditions associated with the Fund are fairly broad, allowing the federal government to tailor Contraventions Act agreements to the specific structure of each provincial offence scheme and to the capacity level of each provincial government to provide bilingual services. As long as activities are specifically funded to meet the language requirements of the Contraventions Act, they can be the object of negotiations between the two levels of government.

Activities funded to date cover both judicial and extra-judicial activities:

Table 6: Information on activities supported by the Fund

In addition to the above-mentioned activities, the Fund has contributed to administrative expenditures related to the implementation of the Fund. In particular, the Fund has supported, in all four provinces, the design and printing of bilingual offence notice forms (tickets and related documents) that meet all requirements applicable to federal contraventions.[33] In Nova Scotia, Ontario, and Manitoba, both levels of government are now using the new bilingual ticket for their respective offences. In British Colombia, the province continues to use unilingual forms for provincial offences but is using the new bilingual form and related documents for federal contraventions. Other administrative expenditures include updating and translating websites, establishing 1-800 lines, and producing information brochures.

Two activities supported by the Fund are unique to Manitoba:

4.3.2. Implementation process

The four provinces targeted by the Fund have succeeded in implementing the set of activities included in their respective agreements. While some activities have taken longer than expected to complete, such as completing all required translations or filling all positions, the strategies initially designed in each jurisdiction have been implemented and are now operational.

In the process of implementing their respective activities, the four provinces have nonetheless faced a number of challenges that are largely common to all four jurisdictions. These challenges relate to their capacity to recruit bilingual personnel and their ability to actively offer services in situations where the demand for such services is both limited and unpredictable.

Recruiting bilingual personnel

The recruitment of bilingual personnel in specialized areas of court administration has proven difficult in all four provinces. Interviews conducted as part of this evaluation indicate that in Ontario the pool of bilingual individuals may be greater than in other regions, but the demand for bilingual individuals is also greater. In this context, the retention of bilingual personnel is proving to be difficult. In the other three jurisdictions, the pool of bilingual candidates is particularly limited, and finding individuals who may combine both the technical knowledge and the linguistic capacity to offer bilingual services continues to be a challenge.

Maintaining bilingual capacity

In all four jurisdictions, the demand for some of the bilingual services is limited. As described in this report, the Contraventions Act scheme systematically allows individuals alleged to have committed a contravention to plead guilty by simply paying the fine, typically by mail. As a result, the vast majority of people who are served a ticket for a federal contravention simply pay them. For instance, in Ontario in 2004–2005, enforcement authorities served 11,909 tickets for federal contraventions, and during the same year 1,566 trials were held for federal contraventions, including 12 trials in French. In Manitoba in 2003–2004, enforcement authorities served 407 tickets for federal contraventions; 28 trials were held, and none of them were French trials. In British Colombia in 2006–2007, enforcement authorities served approximately 1200 tickets for federal contraventions, three-quarters of which related to parking violations on National Defence sites, and no trial in French was requested. The fact that few or no trials are being held in French does not mean that no bilingual services were requested. Individuals may have called to get information, may have paid their ticket in person, at the counter, or may have opted for a guilty plea with explanations.

Technically speaking, the fundamental purpose of the Fund is to enhance the capacity of provincial governments to prosecute and process federal contraventions in a manner that is fully consistent with the constitutional and quasi-constitutional language rights of Canadians. In that sense, the actual demand for bilingual services is largely secondary. In practical terms, however, the very limited demand for some of the bilingual services raises a significant challenge for provinces in their attempt to maintain a bilingual capacity. Interviews conducted with court managers indicated that maintaining bilingual capacity when practically no demand for French services are made is an ongoing challenge. To address this challenge, managers send bilingual staff to language training, but over the long term, the challenge will likely remain.

Providing extra-judicial services in both languages

In all four jurisdictions, challenges relating to the provision of bilingual services are typically associated with extra-judicial services. The demand for such services, whether in the form of calling for information, paying a ticket at the counter, or appearing before a justice of the peace to plead guilty with an explanation, is largely unpredictable and therefore allows for little planning. Since federal contraventions constitute only a fraction of all offences managed by provincial governments, they are processed in large organizations that must deal with large volumes of provincial offences every day. For instance, while just over 10,000 tickets may be issued in Ontario for federal contraventions in any given year, approximately 1.5 million tickets may be issued for provincial offences in that same year. In this context, activities supported through the Fund have increased the capacity of certain court locations to offer bilingual services, but it remains a challenge for these court locations to always be in a position to offer bilingual services in an environment where most of their services are offered in English only.

In contrast, judicial services (in-court services offered during a trial) can be planned in advance, following the decision of a person who is alleged to have committed a contravention to have a trial in French. Interviews with provincial government representatives conducted as part of this evaluation confirmed that in all four provinces, bilingual teams including provincial court judges, prosecutors, in-court personnel are available to hold bilingual trials. Provinces have had to build their capacity to hold trials in the official language of the defendants as part of the implementation of sections 530 and 530.1 of the Criminal Code since their adoption in 1988, and this experience has come a long way to support the implementation of in-court language requirements associated to the Contraventions Act.

Active offering of bilingual services

Like any other federal institution, court locations where federal contraventions are processed and prosecuted and that meet the criteria established in Part IV of the Official Languages Act must actively offer services in both official languages. As described in the Official Languages Act, this means that these court locations:

“shall ensure that appropriate measures are taken, including the provision of signs, notices and other information on services and the initiation of communication with the public, to make it known to members of the public that those services are available in either official language at the choice of any member of the public.”[34]

Treasury Board has further defined the concept of “active offer” through its Policy on the Use of Official Languages for Communications with and Services to the Public.[35] Among other things, the policy indicates that the designated institution must ensure that

The policy specifies that any strategy to actively offer bilingual services should include measures to:

The four jurisdictions where activities supported by the Fund have been implemented largely meet these criteria. The main communication tool that all individuals alleged to have committed a contravention will receive is the ticket, and, in all four cases, the form used is entirely bilingual. In all four jurisdictions, websites including details about federal contraventions are available in both official languages. Additional forms and brochures have also been developed and are available in both official languages.

One area where strategies have differed among the four jurisdictions is signage. In Nova Scotia and British Colombia, court locations designated under Part IV of the Official Languages Act for the purpose of processing federal contraventions display the official languages symbol or its equivalent at counters where bilingual services are available. Other signs in these court locations are displayed in English only. In Ontario, the provincial government has used the Fund to make all signs (both interior and exterior) bilingual in the court locations targeted by its agreement. In Manitoba, all court locations already had bilingual signs (inside and outside) before the Contraventions Act agreement was signed.

The governments of Nova Scotia and British Colombia are meeting the strict minimal requirements of Treasury Board's policy on bilingual signs. However, it is clear that the approach taken by Ontario and Manitoba better reflects the spirit of the Official Languages Act and requirements established by the Supreme Court of Canada in Beaulac. As the Court stated in that case, “language rights are not negative rights, or passive rights: they can only be enjoyed if the means are provided.”[37]

Ultimately, court locations designated under Part IV of the Official Languages Act must communicate a clear message on the availability of bilingual services to Canadians who are alleged to have committed a contravention and who come into contact with them. Appropriate signage plays an important role in that regard.