Contraventions Act Fund, Summative Evaluation

4. Key Findings (cont'd)

4. Key Findings (cont'd)

4.3. Range of activities implemented through the Fund (cont'd)

4.3.3. Results to date

Overall, the Fund has achieved its fundamental purpose: it has provided the federal government with a critical tool to successfully negotiate the implementation of the Contraventions Act in a manner that is consistent with the constitutional and quasi-constitutional language rights of Canadians. At the time of the evaluation, Canadians in five jurisdictions were benefiting from a more effective prosecution scheme for federal contraventions, while being entitled to all language rights applicable to a federal institution under the Constitution, the Official Languages Act and the Criminal Code. This sub-section further elaborates on these results.

The implementation of the Contraventions Act

The fundamental purpose of the Fund is to allow the federal government to pursue the implementation of a simpler and a more effective prosecution scheme for certain regulatory offences designated as contraventions. Without the Contraventions Act, the Fund looses all purpose, and without the Fund, the implementation of the Contraventions Act, in conformity with the spirit of the 2001 Federal Court ruling, becomes impossible. The court ruling confirmed that the federal government's initial strategy for the implementation of the Contraventions Act was leading to an erosion of constitutionally protected language rights. To retain its contraventions project and avoid having to establish a purely federal ticketing scheme, the federal government needed to convince provinces to commit to all language rights that federal institutions normally have to commit to. To do so, provinces needed to address some of the gaps in their capacity to deliver bilingual services. The Fund has provided the support needed to address these gaps. It is on that basis that the federal government has been in a position to incorporate Section 530 and 530.1 of the Criminal Code into provincial schemes for the purpose of processing and prosecuting federal contraventions, and provincial governments have signed agreements where they have unambiguously committed themselves to uphold all language rights applicable to federal contraventions.

Apart from New Brunswick, which stands in a category of its own, the Fund has been supporting specific activities in the four other provinces that have agreed to process and prosecute federal contraventions in a manner consistent with the constitutional and quasi-constitutional language rights of Canadians (Nova Scotia, Ontario, Manitoba, and British Colombia).

Obligation of results

Like any other federal institutions, the five provincial governments that have committed themselves to process federal contraventions in a manner consistent with applicable language rights are now accountable under their respective Contraventions Act agreement for the successful delivery of these services. In 2005, the Federal Court was asked to clarify the nature of the obligations included in the Official Languages Act. Simply put, the Court had to decide whether the obligations described in the Official Languages Act were an obligation of means or obligation of results:

“In the case of an obligation of means, the respondent will be liable only if it has not exercised due diligence and care in respect of its obligation. The obligation of result, on the contrary, suffices to impose a presumption of fault on the respondent. Accordingly, in order to prove it is not liable, the respondent must establish that the non-conformance or harm results from a force majeure. Absence of fault is not sufficient to exonerate it.”[38]

The Court concluded that the obligation is one of result.[39] This interpretation is consistent with the interpretation offered by the Supreme Court of Canada on the nature of the obligations associated with Sections 530 and 530.1 of the Criminal Code, where the Court concluded that these rights constitute “a substantive right and not a procedural one that can be interfered with.”[40]

As demonstrated by the 2001 Federal Court ruling, in the event that any designated court location fails to respect language rights applicable to federal contraventions, the person alleged to have committed a contravention will have access to all available remedies.

Efficient approach

The range of activities supported through the Fund is relatively limited (see Table 6 on page 30). Interviews conducted in all four jurisdictions indicate that the actual costs of implementing activities included in their respective agreements have been smaller than initially anticipated. According to provincial representatives consulted, the relatively low volume of federal contraventions processed and the small demand for trials have reduced the expenditures initially anticipated.

4.4. Alternatives to the Fund

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 gaps in the provision of bilingual services, so that provincial schemes can be used to process federal contraventions. If the federal government were to implement the original procedures found in the Contraventions Act, the Fund would no longer be needed. However, this alternative approach would be more onerous on the court system and for individuals alleged to have committed a contravention.

The only other option would be to send contraventions back into the summary conviction scheme, something that would represent a fatal setback in the achievement of the objectives pursued through the Contraventions Act.