Contraventions Act Fund, Summative Evaluation

5. Conclusions and Lessons Learned

• 5.1. Program rationale
• 5.2. Design and delivery
• 5.3. Results
• 5.4. Cost effectiveness / alternatives

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5. Conclusions and Lessons Learned

This final section of the report presents conclusions and lessons learned, based on the findings presented in Section 4.0. The information is structured along the evaluation issues and questions identified for this evaluation.

5.1. Program rationale

Three evaluation questions relate specifically to the rationale for the Fund.

• 1. To what extent must the federal government provide bilingual services in the context of the Contraventions Act?

  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 or 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.

• 2.To what extent is the inclusion of provincial/territorial offence schemes in the Contraventions Act sufficient to meet the federal government's language obligations?

  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 regulatory framework incorporating the provincial offence scheme includes a direct reference to language rights guaranteed by the Criminal Code (Sections 530 and 530.1).
  • The agreement signed between the federal government and a provincial government for processing and, in some cases, prosecuting federal contraventions, includes a clear reference to language rights covering judicial activities (Criminal Code) and extra-judicial activities (Part IV of the Official Languages Act).

  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.

• 3. Is the Fund still needed?

  The Fund is still needed. It 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.

5.2.  Design and delivery

The formative evaluation of the Fund completed in 2006 addressed a number of evaluation questions relating to the design and delivery of the Fund. This summative evaluation addressed two such questions.

• 4. Have Contraventions Act Agreements been signed in every province?

  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 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.

• 5. Are the activities of the Fund implemented as expected?

  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:

  • The recruiting and retention of bilingual personnel in specialized areas of court administration is difficult.
  • The capacity of bilingual personnel to retain their capacity to operate in both official languages requires ongoing effort. Experience to date in all four jurisdictions indicates that the demand for bilingual services is low, something that is to be expected since the new prosecution scheme facilitates the payment of contravention fines for those who do not wish to challenge their ticket. Regardless of demand, the federal government must respect constitutional and quasi-constitutional language rights where applicable. This represents an operational challenge for court administrators that cannot be underestimated.
  • Judicial activities in both official languages can effectively be carried out in all four provinces where the Fund has been supporting activities. These activities can be planned in advance, once an individual alleged to have committed a federal contravention opts for a trial in French. The offering of extra-judicial services at the counter or over the phone is more challenging. The demand for these services is unpredictable, and federal contraventions are typically processed in large organizations that process a large volume of provincial offences in English. The four provinces have built their capacity to offer extra-judicial services in both languages, but these will require ongoing monitoring.

  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.

5.3. Results

Four evaluation questions explore the results achieved to date with the Fund.

• 6. What is the range of activities supported by the Fund to date? Are these activities required? Are gaps remaining to fulfill the federal government's obligations?

  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.

• 7. To what extent has the capacity of the provinces and territories to deliver bilingual services increased?

  The Fund has been supporting specific activities relating to needs identified by participating provinces. In all cases, the range of activities supported is relatively small and, as a result, the Fund has moderately increased their capacity to deliver bilingual services. As mentioned above, it is possible that unexpected gaps will be identified in the future and that new activities will require support from the Fund. The experience to date indicates that this incremental strategy constitutes an effective approach, as long as the Fund remains flexible to address these various needs as they emerge.

• 8. Do judicial services provided through the use of provincial offence schemes respect sections 530 and 530.1 of the Criminal Code? Are these services actively offered?

  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.

• 9. Do extra-judicial services provided in the context of the Contraventions Act respect the provisions established in Part IV of the Official Languages Act? Are these services actively offered?

  The four participating provinces have 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 be addressed by an investigation of the Commissioner of Official Languages and may lead to a court remedy, as prescribed in the Official Languages Act.

5.4. Cost effectiveness / alternatives

The final two evaluation questions relate to the cost-effectiveness of the Fund.

• 10.  Has the Fund been implemented in a cost-effective manner?

  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.

• 11.  Are there alternative ways to achieve the objectives of 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 issues relating to the protection of language rights, so that provincial schemes can be used to process and prosecute federal contraventions.

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