Contraventions Act Evaluation, Final Report

5. Key Findings

This section presents key findings related to the Contraventions Act. More specifically, it explores the relevance of the Act, as well as performance issues such as: the effectiveness of the implementation across Canada, other issues related to the enforcement of federal contraventions, the range of impacts associated with the Act, and efficiency and economy issues.

5.1. Relevance of the Contraventions Act

The evaluation considered relevance of the Contraventions Act with respect to: the alignment with federal priorities and the continued need for the Act. In terms of relevance, the evaluation also examined the appropriateness of the summary conviction process in relation to the Contraventions Act as well as the scope of designation. These next subsections of the report further explore these findings.

5.1.1. Alignment with federal priorities

The expectation that citizens will obey a well defined set of rules embodied in law and systematically and uniformly enforced, has long been established as a cornerstone of the rule of law and, by extension, of democracy. One of the strategic outcomes of the Department of Justice Canada is to promote "a fair, relevant and accessible justice system that reflects Canadian values."[20] One of these values is the rule of law, as stated in the preamble of the Canadian Charter of Rights and Freedoms: "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law."[21]

While there are many dimensions associated with the concept of the rule of law, they frequently convey the notion of predictability. As noted by the Supreme Court of Canada, "at its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs."[22] The Court also emphasized that "the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order."[23]

In accordance with its constitutional authority, the federal government has enacted a wide range of federal statutory offences and, as the Supreme Court of Canada indicated, it falls upon the federal government to appropriately maintain this legislative framework. At a minimum, the maintenance of a legislative framework includes its proper enforcement. Findings from this evaluation attest to the significant challenges that authorities face in their attempt to enforce federal statutory offences. However, the Contraventions Act offers an approach that facilitates the enforcement of statutory federal offences, and that contributes to maintaining the legislative framework of Canada. The Act is therefore consistent with the Minister's role as a steward of the Canadian justice system.

5.1.2. Need for the Contraventions scheme

To enforce statutory offences, designated officers must follow strict rules meant to ensure fairness and to protect citizens against arbitrary decisions and abuse of power. As noted in subsection 2.2 of this report, the summary conviction process, as defined in Part XXVII of the Criminal Code, is the default process to be used in all cases except indictable offences. This means that another procedure, such as the one defined in the Contraventions Act, may be used to enforce certain federal statutory offences but, in the absence of any other process, enforcement officers must fall back to the summary conviction procedure.

It is critical to understand just how burdensome the summary conviction process can be. While it may vary somewhat among regions, it typically includes a number of distinct steps, which can be illustrated through the following example. A wildlife officer comes across an individual who has hunted "migratory game bird after killing the permitted number".[24] To enforce this federal offence using the summary convictions process, the officer needs to go through the following steps:

Findings from this evaluation confirm that leaving enforcement officers with no other option but to enforce federal statutory offences by way of summary conviction is immensely problematic. There are a multitude of systemic barriers that are directly associated with this scenario:

Completing this process to end up with a fine of $100, $200 or even $400 appears highly inefficient. Simply put, the summary conviction process seems at odds with the nature of many federal statutory offences. So, how do enforcement officers react? Often by simply not laying a charge, as made abundantly clear during interviews held as part of this evaluation. Enforcement officers often limit themselves to the issuance of a "warning", which has no legal consequences. There is no doubt that a warning is a useful tool that enforcement officers may use to educate the general public or to deal with minor offences committed in mitigating circumstances, but it becomes problematic when enforcement officers resort to issuing warnings because they simply lack an alternative that would suit the offence they are dealing with. Having a body of federal statutory offences that are largely not enforced contradicts some of the fundamental values associated with the rule of law, such as the need to maintain a predictable and ordered statutory framework.

The concept of a ticketing system, as embodied in the Contraventions Act, was unanimously supported by enforcement officers and managers consulted as part of this evaluation.

Issuing a ticket allows officers to enforce federal statutory offences, while avoiding the lengthy process associated with the summary conviction scheme. As described in subsection 2.3 of this report, the ticketing system included in the Contraventions Act provides certainty by establishing set fines and allowing officers to issue a ticket on the spot, without having to secure a prior authorization from the Crown or from any other authority. The alleged offender can also opt to pay the fine, which puts an end to the process, without having to engage the court system.

The ticketing system appears particularly well suited for first-time offenders, or individuals who appear to genuinely lack an understanding of the federal legislation they are accused of violating. Enforcement officers consulted as part of this evaluation often emphasize with the need for a range of tools that suit the various scenarios they must deal with.

For some, having statutory offences enforced by way of a ticket (instead of the formal summary conviction process) may have initially appeared to trivialize these offences. It was an early perception that some enforcement officers have reported during interviews held as part of this evaluation. However, it now appears that experience gained to date with the Act has put this concern to rest.

5.1.3. When the summary conviction process remains appropriate

The implementation of the Contraventions Act does not signal the end of the summary conviction process to deal with federal statutory offences, including those designated as contraventions. Key informants consulted as part of this evaluation emphasized on several occasions the relevance of proceeding with the summary conviction process when circumstances warrant, which would include the following scenarios:

Enforcement officers will therefore continue to use the summary conviction process to deal with serious cases related to any of the federal statutory offences designated as contraventions.

5.1.4. The scope of designation

The scope of federal statutory offences designated as contraventions has a direct impact on the relevance of the Act itself. In fact, the issue of scope can be addressed through two complementary perspectives.

First, at a conceptual level, it may not be apparent why the Contraventions Act would not cover essentially any federal offence for which a limited and set fine appears appropriate when no aggravating circumstances exist. As already noted, the Act adds a new component to an enforcement officer's tool box, but it does not take anything away from it. When circumstances warrant it, enforcement officers always maintain the option of proceeding by way of summary conviction.

Second, at a practical level, if offences designated as contraventions are not the "right ones", then the relevance of the Act becomes more ambiguous. The vast majority of key informants consulted as part of this evaluation called for an expansion of the current scope of federal offences designated as contraventions.

According to those key informants, areas that would benefit from a broadening of the scope of contraventions include the fisheries (Small Fishing Vessel Inspection Regulations, Atlantic Fishery Regulations, Fishery (General) Regulations and Management of Contaminated Fisheries Regulations); the environment (Species at Risk Act and its regulations); broadcasting (Broadcasting Act and the Radiocommunication Act, along with their associated regulations); and explosives (Explosives Act and its regulations).

It is important to note that the decision to expand the scope of the Contraventions Act rests primarily with each federal department responsible for these statutes. The Department of Justice Canada also plays a role, which is further discussed in the next subsection of the report.

5.2. Performance: Effectiveness

This subsection of the report focuses on performance issues associated with the implementation of the Contraventions Act across Canada. It discusses the effectiveness of the Act and the implication of having three provinces where the Act is not operational, before turning to the implementation process in provinces where the Act is operational. Other issues related to performance that are presented include: the role of the Department of Justice Canada; engagement of key stakeholders; and the enforcement of federal contraventions. Impacts of the Act on enforcement officers, the court system and broader societal impacts are also presented.

5.2.1. Achieving a full implementation of the Act

The implementation of the Contraventions Act has proven to be an incremental process. First passed in 1992, the Act was essentially not implemented until Parliament amended it in 1996 to allow (among other things) the federal government to sign agreements with provincial governments to use their respective prosecution schemes to process federal contraventions. On that basis, the Department initiated discussions with provincial authorities, which led to the signing of agreements in seven provinces (see Table 5). As noted in subsection 2.4 of this report, the ruling that the Federal Court rendered in 2001 on language rights forced the renegotiation of existing agreements and delayed the negotiation of new agreements.

Table 5: Year that Contraventions Act agreements were first signed, by province
Jurisdictions Date
Ontario 1996
New Brunswick 1997
Prince Edward Island 1997
Manitoba 1997
Nova Scotia 1999
Quebec 2000
British Columbia 2004

Source: administrative documents

Technically, the Act has been operational in seven provinces for a number of years. In reality, the implementation of these agreements has also proven to be incremental. In fact, some federal departments have yet to use the ticketing system available as a result of the Act, even in jurisdictions where agreements have been signed for several years. A few cases in point:

Federal and provincial governments, as well as enforcement authorities, will need to address a number of issues before the Act becomes fully operational where Contraventions Act agreements have been signed. Many of these challenges are documented in this report, particularly in this subsection.

Beyond implementation issues associated with current agreements, the fact remains that the Act is still not operational in Newfoundland and Labrador, Saskatchewan and Alberta. Maintaining a partial implementation of the Act may trigger a number of risks.

First, the enforceability of federal statutory offences in these three provinces, particularly those designated as contraventions, can be seriously questioned. Enforcement officers are faced with the scenario described in subsection 5.1 of this report whereby they either issue a warning or proceed with the full summary conviction process. However, in these circumstances, enforcement officers often choose to not lay charges or to simply issue a warning, which has no legal consequences.

Second, having two separate procedures related to the same federal offence, with different outcomes associated with each of them, contradicts the notion of having a consistent and predictable statutory framework in relation to federal statutes. As one key informant said, "Everyone should receive the same treatment when they commit a federal offence. It should not matter what province you live in. If you violate a regulation in Saskatchewan, you need to go to court whereas you only get a ticket in Manitoba for the same offence."

5.2.2. Contraventions Act agreements

Contraventions Act agreements have proven to be a helpful tool in structuring the collaboration between the federal and provincial governments. Provincial representatives consulted as part of this evaluation have expressed a high degree of satisfaction with the agreements themselves and their ongoing relationship with Justice Canada.

On the issue of reporting, provinces are essentially divided into two groups:

Having statistics consistently gathered in all provinces where the Act is operational (regardless of contributions made through the Fund) would greatly contribute to effective monitoring of its implementation. This is particularly desirable since these statistics exist in provincial databases.

5.2.3. The role of the Department of Justice Canada

The Department of Justice Canada plays a pivotal role in the implementation of the Contraventions Act. A predominant aspect of this role consists of constantly monitoring legislative amendments made to statutes currently covered under the Act to ensure they maintain the accuracy of the Contraventions Regulations. The Department is also responsible for systematically informing enforcement authorities of any amendments made to these regulations, so that enforcement officers may operate on an appropriate basis.

Findings from this evaluation indicate that the Department has faced some challenges in assuming these responsibilities. Some representatives from provincial governments have pointed to delays in relaying information on legislative amendments made to statutes currently covered under the Act. To fully address this challenge, the Department must have an effective internal strategy on communicating changes made to a law or regulation that are currently designated as contraventions. The Department must also have an effective external communication strategy to relay amendments to Contraventions Regulations to other federal departments. Experience to date indicates that inadequate mechanisms exist within the Department to systematically communicate this information in a timely manner.

In addition, some provincial representatives were uncertain whether all enforcement agencies were being updated. This is particularly significant, since several federal departments count on provincial or municipal authorities to enforce their legislation. The extent to which municipal police officers, members of the RCMP, provincial conservation officers, or other provincial or municipal inspectors are kept informed of changes made to the Contraventions Regulations remains uncertain.

Activities of the Department also extend to the actual designation of federal statutory offences as contraventions. Each federal department is primarily responsible for determining which offences, of those it is responsible for, should be designated as contraventions. Once a federal department has decided to proceed as such, it must work directly with legal counsel associated with the Innovation, Analysis and Integration Directorate to complete the required steps. To facilitate this process, the Directorate has published guidelines meant to assist other federal departments in deciding whether a specific offence can be appropriately designated as contraventions. In essence, these guidelines cover the nature and the severity of offences considered for designation. It puts the emphasis on designating offences that are minor and that are of a regulatory nature. It should be noted that a department cannot proceed with a designation unless it is first approved by the Directorate. After its approval, the designation goes through the normal federal regulatory approval process.

Finally, Justice Canada is also involved in the provision of the appropriate training of enforcement officers. On several occasions, individuals interviewed as part of this evaluation have indicated they attended training sessions involving representatives from the Department, along with representatives from their respective provincial government. Despite the limited capacity that exists in the Department to deliver training sessions, these key informants were pleased with the training they received, which allows them to better understand the processes associated with the Contraventions Act.

5.2.4. Engaging key stakeholders

The successful implementation of the Contraventions Act requires the involvement and collaboration of a wide range of stakeholders. As previously mentioned in this subsection, a number of these stakeholders belong to provincial and municipal entities, such as municipal and provincial police services, conservation officers and provincial inspectors. In all cases, the work of these provincial enforcement authorities is complementary to the work of federal enforcement officers such as fishery officers, RCMP officers, railway police officers, federal park wardens and wildlife enforcement officers.

Due to the limited number of federal enforcement officers available across the country, the assistance of provincial and municipal authorities becomes critical in effectively enforcing federal statutory offences. Yet, findings from this evaluation indicate that there are very few incentives for these provincial or municipal authorities to spend time and resources enforcing federal statutes. In fact, provincial and municipal enforcement officers consulted as part of this evaluation indicated that they consider the enforcement of federal statutes to be largely incidental to their primary mandate, which is to enforce provincial or municipal statutes. If they come across a violation of a federal statute for which they have the authority, they will typically deal with it. The same goes for when a federal department contacts them for assistance-as much as possible, they will provide assistance. But this work is essentially done in a reactive mode.

Not surprisingly, the systemic barrier that provincial and municipal authorities face in enforcing federal statutes is financial. If a provincial or municipal enforcement officer can simply issue a ticket for a federal contravention and the offender pays the fine, the impact of issuing the ticket on the workload of that officer is limited. But what happens if the ticket is challenged? The enforcement officer must then spend time in the office and in the court room on a matter that is not related to his or her primary responsibility. And what about the scenario where the federal offence is not designated as a contravention (or is occurring in a province where the Act is not operational)? Then, the enforcement officer becomes engaged in the burdensome summary conviction process. Managers involved in provincial and municipal authorities consulted as part of this evaluation expressed serious reservations about the notion of having their enforcement officers spending too much time enforcing federal statutes, since that work is not being compensated by the federal government. Again, this may become a strong incentive for provincial and municipal authority to simply issue a warning.

Another complication in engaging key stakeholders relates to the work of the PPSC. As stated before, unless there is an agreement to the contrary, Crown prosecutors associated with the PPSC are the ones dealing with any trial related to a federal statute. The work done by these prosecutors is invoiced back to the federal department responsible for the statute that created the federal statutory offence. This procedure requires federal regional managers to monitor the costs being incurred by these prosecutors. Having a number of municipal or provincial enforcement officers issuing tickets or laying charges can therefore trigger unexpected costs. Some provincial enforcement officers consulted as part of this evaluation recalled having their charge dropped by the federal department, on the basis that it did not have the resources to prosecute them. This scenario may create yet another incentive for provincial or municipal officers to limit themselves to the issuance of a warning.

Among all stakeholder groups involved in the implementation of the Contraventions Act, the one that stands somewhat apart from all others are the airports. Major airports in Canada are run by local airport authorities. Although their activities are regulated by federal laws, they are not linked to any federal department and constitute separate and independent entities. Yet, airports operate on federally owned land and are expected to enforce a number of federal statutes, such as the Government Property Traffic Act, which regulates (among other things) parking at airports. The implementation of the Act at some of Canada's main airports has proven to be very problematic. Essentially, these airport authorities do not have the ability to issue tickets that could be registered into the provincial court system in order to be enforced. Adding to that difficulty is the fact that these airport authorities do not have resources to prosecute them. In particular, it is unclear which federal department would pay for services provided by the PPSC in the case of a trial. Since airport authorities do not access any revenues from the issuance of tickets, they can hardly justify spending resources on prosecuting these tickets. As a result, most of these airports are issuing administrative tickets that are not enforceable through the court system. By extension, this means that the contraventions listed in the Government Property Traffic Act and related to these airports are simply not enforced.

5.2.5. Enforcement of federal contraventions

Arguably, the volume of federal contraventions tickets issued across Canada has been lower than expected. This subsection of the report explores some of the factors that have contributed to this outcome.

Over a three-year period (2006-2008), enforcement officers have issued between 18,000 and 20,000 tickets per year for federal statutory offences designated as contraventions. Reflecting demographic trends, the bulk of tickets have been issued in Ontario and Quebec. Table 6 includes the distribution of tickets among the seven provinces where the Act is operational.

Table 6: Number of contraventions tickets issued, per province
Provinces 2006-2007 2007-2008 2008-2009
PE n/a1 n/a1 n/a1
NS 364 326 198
NB2  7 13  6
QC 6,191 4,978 7,120
ON 11,831 10,361 8,235
MB 305 225 422
BC 1,155 1,924 1,960
Total (partial) 19,853 17,827 17,941

Source: administrative data

Common among all provinces is the fact that a significant portion of contraventions tickets are issued for driving-related offences (speeding, parking, etc.) occurring on federally owned land. Among the four provinces where this type of data was available at the time of the evaluation (NS, ON, MB, BC), this category of offence represented between 40% and 90% of all contraventions tickets issued. The size, location and economic profile of each province determine where the remaining portion of tickets was issued:

The expectation has been that more tickets would be issued. During interviews conducted as part of this evaluation, several key informants confirmed that current statistics appear rather low, particularly in provinces other than Ontario and Quebec. The review of Contraventions Act agreements also supports this finding. In many provinces, there was an expectation that provincial authorities would be in a position to cover their administrative costs out of revenues generated by the federal contraventions (revenues in excess of these administrative costs would be shared equally among the federal and provincial government). With volumes below 500 tickets per year in a number of provinces, it is obvious that this leaves limited resources to cover administrative costs, let alone share any surplus.

The following sections explore a number of factors that have limited the number of tickets issued.

Is the enforcement of contraventions a priority?

By their very nature, federal statutory offences designated as contraventions are "less serious" offences and, as such, their enforcement is not always seen as a priority. As already mentioned in this subsection of the report, provincial or municipal authorities do not tend to proactively monitor and enforce federal contraventions. When it comes to federal enforcement agencies, competing priorities may also limit the level of efforts dedicated to enforcing federal statutory offences designated as contraventions.

Findings from this evaluation point to a significant difference in behaviour between the RCMP, which is a more general enforcement authority, and specialized groups such as fishery officers, railway police officers, federal park wardens and wildlife enforcement officers.

Although the RCMP is a federal agency responsible for enforcing federal statutes, it is facing pressures to deal with a multitude of crimes and offences. Interviews with RCMP representatives pointed to a reluctance in dedicating much time and resources to enforce federal contraventions. These are simply not pressure points and, as such, do not get much of the attention of RCMP officers and managers. This is particularly significant for a department like Transport Canada, which does not directly employ enforcement officers. The Department relies instead on other enforcement agencies, such as the RCMP, to enforce legislation such as the Small Vessels Regulations, which apply to recreational boating.

Specialized federal enforcement agencies will logically be more inclined to invest time and resources to enforce federal statutory offences, since this is their primary mandate. Interviews conducted as part of this evaluation confirmed that these enforcement authorities are well aware of the availability of the ticketing system included in the Contraventions Act. What is seen as a problem, however, is the current scope of the Act. As mentioned in subsection 5.1 of this report, several key informants consulted as part of this evaluation have called for an expansion of the current scope of the Contraventions Act. For example, there are currently 56 regulations that have been adopted pursuant to the Canada Shipping Act. Only five of these regulations are currently included, in part, in the Contraventions Regulations. Much of the same situation applies to the Fisheries Act, which includes 31 regulations. Two of these regulations are currently included, in part, in the Contraventions Regulations. Findings from this evaluation indicate that the vast majority of offences that federal fisheries officer enforced are contained in the Fishery (General) Regulations, which are currently not included in the Contraventions Regulations.

Lack of resources to enforce federal contraventions

Many of the federal statutory offences designated as contraventions cover scenarios that typically occur in remote locations, such as those dealing with inland fishing, migratory birds, national parks, protected areas or recreational boating. Other designated offences, such as those related to smoking, may occur at any corner store across Canada. With a country as large as Canada, effectively covering all target areas presents a formidable challenge.

Not only do enforcement authorities have limited resources to cover these target areas, but for a number of these departments, these resources have declined over the years. As a result of these limited or declining resources, a number of federal departments have come to depend on provincial or municipal authorities to enforce their designated offences. But as already noted in this report, these provincial and municipal authorities tend to be quite reluctant to invest too much time and resources toward a task they do not consider to be their primary responsibility, particularly in light of the fact that they receive no compensation from the federal government to do so.

Alternatives to the alternative

Although the ticketing system included in the Contraventions Act represents an alternative to the summary conviction process, there are, in fact, other alternatives available to some enforcement authorities.

First, the Fisheries Act already contains a ticketing system. This ticketing system offers much of the same benefits as the one contained in the Contraventions Act.[26] Enforcement officers write tickets containing a set fine, allowing the person receiving it to either pay the fine or challenge it. In order to use that system, Fisheries and Oceans Canada must establish the necessary administrative procedures to have these tickets processed through the provincial court system (along the same lines as what needs to be done for federal contraventions). Fisheries and Oceans Canada has completed this process in British Columbia, but not in Atlantic Canada. This explains the fact that contraventions tickets under the Fisheries Act are issued in Nova Scotia for instance, but not in British Columbia.

To facilitate the enforcement of the Canada Shipping Act, in 2008, the federal government adopted regulations that allow enforcement officers to issue administrative monetary penalties.[27] The rationale behind this new system is largely similar to the one that motivated the adoption of the Contraventions Act, which is to avoid the summary conviction process. At this point, these penalties apply to all vessel types except recreational boats, whereas the Contraventions Act typically applies to recreational boats (although some designated offences apply to all vessel types). As a result, these two tools play a largely complementary role and administrative penalties do not technically represent an alternative to the Contraventions Act. It is nonetheless worth mentioning the availability of this tool, as its application may evolve in the future.

When faced with certain prohibited behaviours, enforcement officers often have a choice between issuing a federal ticket (under the Contraventions Act) or a provincial ticket (under provincial statutes). This is typically the case for offences related to hunting and fishing. For instance, to legally hunt migratory birds, an individual requires both a federal and a provincial licence. Findings from this evaluation indicate that penalties under provincial legislation tend to be more severe than those included in federal legislation such as the Migratory Birds Convention Act, in addition to providing greater opportunities to seek forfeiture of equipment. Since there are far more provincial conservation officers than federal enforcement officers (such as wildlife or fisheries officers), it may be tempting for a provincial enforcement officer to proceed with a legislation that he or she is more comfortable with, particularly if greater penalties are sought.

Getting tickets into the court system

Some enforcement authorities are unable to issue contraventions tickets that courts can enforce. As already mentioned in this subsection, most of Canada's international airports do not have the required administrative arrangements to allow their enforcement officers to issue enforceable tickets for parking-related offences. Findings from this evaluation indicate this problem also applies to some of Canada's military bases. In the absence of a clear procedure to issue federal contraventions tickets, the Military Police officers issue administrative parking tickets, which are not enforceable in court. Close to 90% of these administrative tickets are left unpaid.

The non-payment of fines

Not all individuals who are found guilty of an offence and who are ordered to pay a fine actually pay their fine. Findings from this evaluation indicate that this problem is not limited to federal contraventions. Ensuring that convicted individuals pay their fines related to municipal offences (such as those for unauthorized parking) or provincial offences (such as speeding) has also proven to be a challenge.

At this point, the Contraventions Act does not provide a straightforward solution to deal with unpaid fines. In fact, one of the main characteristics of the Act, which is that no individual convicted through a contraventions ticket is liable to imprisonment, has raised some difficulties.[28] It appears to have had the unintended impact of discrediting the contraventions tickets among some enforcement officers. During consultations held as part of this evaluation, a number of enforcement officers complained that some offenders who were issued a ticket were systematically ignoring these tickets, with no consequence ensuing. Wanting to avoid the embarrassment of issuing yet another ticket that would be ignored, these officers tended to issue warnings and when enough of those have been issued to the same individual, they then turn to the summary conviction process.

To address this issue, it is important to understand how responsibilities are assigned for the collection of unpaid fines. The enforcement of all offences listed in the Contraventions Act is systematically assigned to a federal department that, in turn, designates municipal, provincial or federal authorities to issue tickets as appropriate. Once a ticket has been issued, it is the responsibility of the enforcement officer to monitor the file until its final disposition. In the event that the person is found guilty of having committed the offence (whether through failing to appear in court or through an unsuccessful challenge of the offence), it is no longer the responsibility of the enforcement officer to ensure the person pays the fine. While rules vary among provinces, this responsibility typically rests with the courts themselves. In some cases, the responsibility may be assigned directly to the PPSC.

To assist in recouping unpaid fines, courts or the PPSC may contract a collection agency that will use all legal means at its disposal to ensure that fines are actually paid. Findings from this evaluation indicate that resources available to collect unpaid fines are limited and, logically, these agencies focus on the more substantive fines. Since most federal contravention fines are limited to $500 or less, they do not tend to be a priority for collection agencies.

To avoid judicial procedures to force the payment of somewhat limited fines, authorities have come up with a number of administrative tools. At the municipal level, unpaid fines may end up on one's municipal tax bill. At the provincial level, many governments have implemented systems whereby unpaid fines are directly linked to the driver's licence renewal process. Such a system is not currently available at the federal level for contraventions. Many individuals consulted as part of this evaluation recommended that unpaid fines associated with a federal contravention be linked to a driver's licence. However, the feasibility of implementing such a process appears doubtful, since the issuance of drivers' licences is a provincial responsibility, while contraventions are a federal responsibility. Technically, unpaid contraventions could be linked to other types of licences, such as a federal hunting licence for migratory birds, but the scope of such a system appears limited and, at the time of writing this report, had not been implemented.

A more promising avenue would be to link unpaid contraventions fines to recovery mechanisms of the Canada Revenue Agency (CRA). According to key informants consulted as part of this evaluation, the CRA already has procedures in place to recover amounts due to the federal government. No doubt, this avenue would require the negotiation of appropriate protocols and procedures, but it would clearly strengthen the enforcement of federal contraventions by giving it "more teeth". This, in turn, would act as an incentive for enforcement officers to issue contraventions tickets when circumstances warrant it.

The one alternative that is currently available to enforcement officers if an individual were to systematically ignore his or her tickets is to proceed by way of summary conviction. While this alternative will always remain available, the fact remains that the very purpose of implementing the Contraventions Act was to avoid the summary conviction process. Resorting to an administrative solution (such as CRA recovery mechanisms) will always be more efficient than resorting to a legal solution (such as the summary conviction process).

Seizures and forfeitures

The ability of enforcement officers to seize items associated with a perceived offence constitutes an important tool, particularly when it comes to enforcing statutory offences related to hunting, fishing, or protected areas. This may provide critical evidence should the matter be brought to the attention of the court. Moreover, in some circumstances, enforcement officers may seek forfeiture of the equipment used at the time of the offence, which substantially increases the penalty that the alleged offender is facing as a result of his or her behaviour. According to enforcement officers consulted as part of this evaluation, the possibility of having one's shotgun or fishing boat forfeited as a result of an offence acts as a particularly strong deterrent. It should be noted that forfeiture is typically sought in the case of more serious offences.

To this day, there is confusion remaining as to the extent to which enforcement officers may seize items or seek forfeiture in relation to a federal statutory offence designated as a contravention. Several key informants indicated that this remains an unresolved issue. For instance, uncertainties around the issue of seizure and forfeiture are said to have contributed to delaying the issuance of tickets in New Brunswick for designated offences included in the Fisheries Act or its associated regulations. In June 2008, the Department of Fisheries and Oceans Canada issued national enforcement guidelines confirming that enforcement officers may seize items or request forfeiture by issuing a Notice of Forfeiture, in addition to the contraventions ticket. It appears these guidelines have yet to be fully implemented.

5.2.6. Impacts on enforcement officers

The most significant impact expected from the implementation of the Contraventions Act is on the behaviour of enforcement officers. The Act has been designed to provide an efficient tool, allowing officers to more effectively enforce certain federal statutory offences designated as contraventions. This subsection of the report explores evaluation findings related to the training of officers on how to use the ticketing scheme, the directives and procedures in place for issuing contraventions tickets, and the impact of this tool on the behaviour of enforcement officers.

Access to the required training

Overall, federal departments are providing the required training to enforcement officers on the issuance of contraventions tickets. This is particularly the case for those federal departments that directly employ enforcement officers (as opposed to relying on other enforcement authorities). More specifically, Fisheries and Oceans Canada, Environment Canada, Industry Canada, as well as the St. Lawrence Seaway Management Corporation (non-profit organization) and the Canadian Pacific (private company) offer training to their respective enforcement officers on the content of the Contraventions Act and on the issuance of contraventions tickets in accordance with provincial statutes. It appears that other federal departments have yet to systematically offer such training to their enforcement officers.

For departments that rely on other enforcement authorities, such as Transport Canada, it is more challenging to ensure that all potential enforcement officers receive the required training. It is important to note that Transport Canada does offer training and is clearly available to offer more training as required. The challenge is to gather all potential enforcement officers, who may not perceive this training to be a priority. In fact, some police officers who were interviewed as part of this evaluation were not aware that the Act was operational in their jurisdiction.

Like any training initiative, every department and entity involved in the issuance of contraventions tickets must deal with the turnover among enforcement officers, which creates a need for ongoing training. Key informants also emphasized the need for ongoing resource people whom enforcement officers could access if they had specific questions to address in relation to the Act.

Directives on the issuance of contraventions tickets

Regardless of the entity they work for or their geographical location, enforcement officers have considerable discretion when it comes to issuing a warning, a ticket, or laying a charge. Findings from this evaluation leave no doubt that officers are expected to use their judgement and experience to assess each circumstance they face and decide on the best strategy to deal with it.

Obviously, the discretion of officers is not absolute. Every entity that employs enforcement officers aims for some consistency in the enforcement of statutory offences. To this end, they use formal or informal guidance. Some federal departments, such as Fisheries and Oceans Canada, have issued written guidance, which still leaves a fair amount of discretion to enforcement officers. Other entities count on ongoing communications among enforcement officers to ensure a common understanding of statutory offences and how best to address various scenarios they may encounter.

Some federal departments, such as Transport Canada, have developed tools, often in the form of a booklet that enforcement officers can carry with them to have direct access to relevant information on the various federal statutory offences that have been designated as contraventions. Departments face a significant challenge in developing these tools as statutes covered by the Contraventions Act are regularly amended. Since these tools are still paper-based, keeping them updated has proven difficult.

Beyond specific directives on the issuance of contraventions tickets, it is critical for senior managers within each federal department involved in the issuance of contraventions tickets to send a clear message urging enforcement officers to use the ticketing scheme when appropriate. Findings from this evaluation indicate that this is not always the case, leaving enforcement officers uncertain about the extent to which they should use this ticketing tool.

Behavioural impacts

The availability of a ticketing system to enforce statutory offences is unanimously supported by enforcement authorities and officers. As made abundantly clear throughout this report, the ticketing system included in the Contraventions Act is seen as critical and essential. What is somewhat concerning, however, is the extent to which key informants still refer to the "potential" of this tool, close to 15 years after the Act coming into force. This report does point to a number of challenges that have yet to be addressed to allow for a full implementation of the Act. As a result, actual changes in behaviour among enforcement officers have yet to fully materialize. Having stated that, the fact remains that approximately 18,000 contraventions tickets are currently being issued per year across Canada (where the Act is operational), which demonstrates that the Act is having a direct and beneficial impact on the behaviour of enforcement officers.

Achieving the expected changes in behaviour among enforcement officers will always remain more challenging among those entities that do not directly report to federal departments responsible for various statutes covered by the Act. This is particularly the case for police services and provincial enforcement entities. This largely results from these entities facing competing demands and they may not perceive the enforcement of federal statutory offences as a priority.

5.2.7. Impacts on the court system

A prime objective of the Contraventions Act is to divert charges related to less serious federal statutory offences away from the court system. Paradoxically, the implementation of the Act may have increased, albeit to a very limited scale, the level of activities within the court system. This subsection of the report further explores these findings.

Volume of cases

Since the Contraventions Act facilitates the enforcement of designated federal statutory offences, it is bound to trigger a number of trials involving individuals who wish to challenge their tickets. As mentioned in Table 6, enforcement officers issued close to 18,000 contraventions tickets in 2007-2008. As a result of limitations in data availability, it is not possible to know the total number of trials held across Canada related to contraventions tickets. However, statistics are available for four of the provinces where the Act is in operation: Nova Scotia, Ontario, Manitoba and British Columbia. In these four provinces, a total of 1,807 trials were held in 2007-2008, the vast majority of which (1,780) were held in Ontario. With 5,000 contraventions tickets issued in Quebec, a number of trials were undoubtedly held that same year. It is just not possible to know how many.

To achieve the expected outcome of a reduced burden on the court system, one would need to assume that, in the absence of the ticketing scheme included in the Contraventions Act, the behaviour of enforcement officers would remain essentially the same, and that they would enforce statutory offences through the summary conviction process. Using the 2007-2008 statistics, this would mean that enforcement officers would have laid 18,000 charges through the summary conviction process. Issuing 18,000 tickets instead, with only a fraction resulting in a trial, would be a substantial reduction on the burden of the court system. As clearly stated in this report, however, the reality is dramatically different. In the absence of the ticketing system, it is clear that a smaller number of charges would have been laid, and enforcement officers would have either issued warnings, or simply not have dealt with these offences.

Having between 3% and 15% of tickets challenged (depending on the province) somewhat increases the workload of the court system. However, it is important to emphasize that this represents only a fraction of the total number of trials held in each of these provinces. For instance, in 2006-2007, enforcement officers in Nova Scotia issued 364 contraventions tickets, and 11 trials were held in relation to these. During the same year, these officers issued approximately 35,000 tickets for provincial statutory offences (there is no data available on the number of trials held in relation to these). Therefore, contraventions tickets represent 1% of all tickets issued in the provinces for statutory offences (federal and provincial combined). By extension, it only represents a fraction of the total number of trials held in relation to a statutory offence.

Official languages requirements

A direct impact of using the provincial court system to process contraventions tickets relates to official languages requirements. As indicated in subsection 2.4 of this report, when they process contraventions tickets, provincial governments are acting on behalf of the federal government. As a result, they must comply with all language rights requirements that would be applicable in a federal context.

Provincial governments have implemented a number of changes to their procedures to comply with applicable language rights contained in the Criminal Code and the Official Languages Act. As noted in the 2007 Summative Evaluation of the Contraventions Act Fund, the Department of Justice Canada has provided financial assistance to the governments of Nova Scotia, Ontario, Manitoba and British Columbia to ensure they can provide the required services in both official languages, and the results have been positive:

“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. (…)

The four participating provinces have also 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.”[29]

The implementation of the Contraventions Act has raised the profile of official languages in the court system. Building on their capacity to offer trials in both official languages for criminal offences, provincial governments are now expanding their capacity to cover federal statutory offences. Some of the key informants consulted as part of this evaluation noted that the recruitment of bilingual staff continues to be a significant challenge. Regardless, these individuals noted that the enforcement of contraventions tickets has had the unintended, yet positive impact of making official languages more integrated in their ongoing management of court services and activities.

5.2.8. Broader societal impacts

Previous sections of this report have already documented a number of benefits (potential and realized) associated with the Contraventions Act, particularly as they relate to enforcement officers. The Act also offers a number of other benefits, which are described in this subsection.

Other benefits of the ticketing system

For Canadians, implementation of the Contraventions Act offers several benefits. First, it establishes a much clearer distinction between criminal and statutory offences. As already stated in this report, under the summary conviction process, all individuals against whom a charge has been laid must appear in court, even if it is to enter a guilty plea. Practically speaking, it means that someone who is accused by way of summary conviction of contravening a rule related to recreational boating, for instance, would systematically end up in a criminal court that is also hearing criminal cases. As one key informant said, "Having a person who committed a contravention sitting beside a drug trafficker is a problem. It just doesn't look right." By having the opportunity to pay the fine directly, the vast majority of individuals who are issued a contraventions ticket never interact with the court.

Second, the ability to pay a fine that is associated with a contraventions ticket also means that the person does not need to seek legal representation. Canadians are typically uncomfortable appearing in court without legal representation. Using the same example, even if a person simply wants to plead guilty to a charge that has been laid, he or she may end up seeking legal representation and incurring costs that would far exceed the fine itself.

Third, the ticketing system offers the ability to deal quickly with a fine. Instead of having to wait for the summary conviction process to be initiated, the person who was issued a contraventions ticket and who does not wish to challenge that offence can pay immediately and close the file.

Finally, the implementation of the Act brings greater certainty and consistency in the way that federal statutory offences designated as contraventions are enforced. By having a set fine, Canadians can expect the same treatment wherever the Act is currently operational.

Criminal records

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."[30] 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 to travel internationally.

5.3. Performance: Efficiency and Economy

The 2009 Treasury Board Policy on Evaluation requires that all evaluations provide an assessment of the degree to which programs have been efficient in their use of resources in producing outputs which support the achievement of intended results. This section of the report examines the efficiency and economy of the Contraventions Act.

The evaluation includes a brief analysis of court costs in order to compare the summary conviction process with the Contraventions Act ticketing scheme. For the purpose of this illustrative analysis, two hypotheses are required for the two schemas to be comparable: the same number and type of offences are enforced under each process, and the average court cost for a trial related to these offences is $859[31].

Under the summary conviction process (prior to implementation of the Contraventions Act), if an enforcement officer enforces 100 federal statutory offences, the totality of these cases would be prosecuted by the summary conviction process and therefore, 100 trials would take place. The average total cost for the court to prosecute the offences would be $85,900 ($859 x 100 trials).

After the implementation of the Act, if the same enforcement officer enforced 100 federal statutory offences, the totality of these cases would be prosecuted by the ticketing system and only a percentage of these cases would end up in front of the court system. This evaluation found that between 3% and 15% of the tickets issued are challenged, depending on the province. To illustrate the financial economy for the courts, this analysis will use both percentages to establish a range of economy. For the lower percentage of challenged tickets, the average total cost for the courts would be $2,577 ($859 x 3 trials). For the higher percentage, the average total cost for the courts would be $12,885 ($859 x 15 trials). These amounts represent a reduction of between 85% and 97% of court costs if federal statutory offences are enforced using the ticketing system included in the Act. There would be even more of a savings if one were to include the amounts of paid tickets in the analysis (i.e. the tickets that don't go to court but get paid through fines).

While this cost-effectiveness analysis is purely illustrative, and does not take into account a number of factors such as amounts invested in training for enforcement officers, amounts offered through the support fund, and productivity gains related to the absence of criminal records, this analysis nonetheless demonstrates that the costs for the courts are significantly reduced with the ticketing system included in the Act.