Evaluation of the Contraventions Act Program

2. Description of the Contraventions Act Footnote 7

The passing of the Contraventions Act in 1992 marked a milestone in a lengthy process to establish a clearer distinction between criminal and statutory offences. The Act established the foundation of this new approach, and is directly supported by two sets of regulations. This section describes the Act, its purpose and structure, and the regulatory regime associated with it.

2.1. Historical Context

It has long been recognized that criminal offences (such as stealing or assaulting) are fundamentally different from statutory offences (such as hunting a migratory bird without a federal permit) and, as such, should be treated differently. While its scope continues to evolve, a criminal offence refers to a behaviour that is not only forbidden by law, but that also — and just as importantly — violates fundamental values generally espoused by the whole of society. In 1976, the Law Reform Commission expressed serious concerns that the chaotic assemblage and mixture of criminal and statutory offences was diluting the primary purpose of criminal law.

To address this issue, the Commission called for a clearer distinction between criminal and statutory offences: “For this the remedy is restraint. We must keep regulatory offences in their proper place and confine ‘real’ criminal law to its own proper job.”Footnote 8 The Commission went on to suggest that two distinct regimes should be considered to deal with criminal and regulatory offences: “Real crimes need a criminal regime, violation a non-criminal regime.”Footnote 9

The federal government did not act immediately on this recommendation. A decade later, in 1986, the Commission reiterated the need for a formal process to establish a distinction between criminal and statutory offences. In recommending the adoption of a new legislation — the “Infraction Procedure Act” — the Commission established the overall vision that would later be reflected in the Contraventions Act. The Commission essentially suggested a two-step process, which included formally classifying some statutory offences as “infractions” and establishing a separate system to process them. The Commission acknowledged the valued experience of provincial governments in dealing with regulatory offences. On that basis, it recommended that federal “infractions” be processed in a manner similar to that found at the provincial level.

During that same period, the Department of Justice initiated a process to deal with federal statutory offences. It held consultations with the Royal Canadian Mounted Police (RCMP) and a variety of federal departments that were involved in establishing and enforcing federal statutory offences (e.g., then-named Environment Canada, Fisheries and Oceans Canada, and National Defence). The Department developed a proposal that would see the establishment of a new category of offences called “contraventions” (instead of “infractions” as proposed by the Commission). The new Act, the Contraventions Act, would pursue three objectives:

As a result, a new ticketing scheme was adopted with the passing of the Contraventions Act in 1992.

2.2. Overview of the Contraventions Act

The Act allows the federal government to designate federal statutory offences as contraventions, so that they can be prosecuted using a ticketing system, instead of the summary conviction process included in the Criminal Code.

By establishing a ticketing system, the federal government wishes to serve the interests of the court system and to limit the impact of a conviction based on a federal contravention. As stated in section 4, the purpose of the Act is:

  1. (a) to provide a procedure for the prosecution of contraventions that reflects the distinction between criminal offences and regulatory offences and this is in addition to the procedures set out in the Criminal Code for the prosecution of contraventions and other offences; and
  2. (b) to alter or abolish the consequences in law of being convicted of a contravention, in light of that distinction.

Before passing the Act, the summary conviction process described in the Criminal Code was essentially the one that enforcement authorities had to follow when enforcing a federal statutory offence. As stated in subsection 34(2) of the Interpretation Act:

(2) All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of that Code relating to summary conviction offences apply to all other offences created by an enactment (emphasis added), except to the extent that the enactment otherwise provides.

The passing of the Act did not create any new federal offences and it did not abolish the summary conviction process as an option for enforcing federal statutory offences. Rather, it added a new option to deal with some of these offences (those designated as contraventions), when circumstances warrant, which is expected to be simpler and more effective.

2.3. The Legislative and Regulatory Frameworks

The Act and its associated regulations cover all aspects of the contravention continuum, from the designation of a federal statutory offence as contravention, to the enforcement and prosecution of that offence, up to the consequences of a conviction. This subsection describes these various components.

Creating a Federal Contravention

The Act allows the federal government to make regulations designating federal statutory offences as “contraventions.”Footnote 10 It is on this basis that the federal government passed the Contraventions Regulations.Footnote 11 This regulation lists all federal statutory offences that are to be treated as contraventions.

The Act allows the federal government to establish the amount of the fine associated with a federal contravention.Footnote 12 That amount is systematically lower than the maximum fine an offender could face, should the offence be prosecuted by way of summary conviction. For example, according to the Historic Canal Regulations (adopted under the Department of Transport Act), “taking off an aircraft on a navigation channel” is illegal.Footnote 13 The federal government has designated this federal offence as a contravention. Therefore, an enforcement authority may elect to issue a ticket to someone accused of violating this provision. Should the person be found guilty, they will be required to pay a fine of $200. If, for a variety of reasons, the enforcement authority elects to proceed with the summary conviction process, then the accused could be liable to a fine of up to $400.

At the time of this report, there were more than 1,300 regulatory provisions (some of which include more than one offence), involving 21 different federal laws and 54 sets of regulations covered under the ticketing system. Table 1 includes a listing of all federal laws containing federal offences designated as contraventions, the number of associated regulations containing contraventions, and an example of a federal contravention under each of these statutes.

Table 1: Legislations and associated regulations containing federal contraventions
Laws Number of regulationsTable note i Example of a contravention Fine
Canada Marine Act 1 Obstruct course of ferry $100
Canada National Park Act 12 Damage an archaeological site or historical resource $300
Canada Shipping Act 5 Operate power-driven or electrically propelled vessel with more engine power than maximum specified $100
Canada Wildlife Act 1 Unlawfully destroy an animal egg $150
Canadian Environmental Protection Act 18 Quarterly report of Lead Concentration in Gasoline Produced (…) not submitted to the Minister with the required information $500
Department of Transport Act 1 Aircraft take off on a navigation channel $200
Fisheries Act 2 Possess any live fish for use as bait in the inland waters of New Brunswick $200
Government Property Traffic Act 3 Park where prohibited by sign at Schedule I airport $25
Migratory Birds Convention Act 2 Hunt migratory game bird after killing the permitted number $200
plus $50/bird
National Battlefield at Québec Act 1 Permitting any animal brought into the Park to be in any water in the Park $200
National Capital Act 3 Have a domestic animal at LeBreton Flats campground $150
National Defence Act 1 Enter controlled access area without pass $100
Navigation Protection Act 0 Throw any rubbish liable to interfere with navigation $500
Non-Smokers Health Act 0 Fail to inform employees and members of the public of smoking prohibition $500
Radiocommunication Act 1 Operate a radio apparatus without a radio authorization $500
Railway Safety Act 0 Enter on land on which a line work is situated $100
Saguenay-St. Lawrence Marine Park Act 1 Conduct scientific research without a permit or without authorization $400
Telecommunications Act 1 Alter markings on a telecommunications apparatus $500
Tobacco Act 0 Sell cigarettes in a package containing fewer than 20 $500
Transportation of Dangerous Goods Act 0 Handle dangerous goods that are not accompanied by all applicable prescribed documents $500
Wild Animal and Plan Protection and Regulation of International and Interprovincial Trade Act 1 Unlawfully ship live plant by land $100
Table note i

Some of the offences designated as contraventions are included in the laws themselves, and not in their regulations, explaining why some of the laws included in the table do not have associated regulations

Return to table note i referrer

Enforcing a Federal Contravention

The Act does not modify who enforces federal statutory offences, but rather how enforcement authorities go about executing their respective mandates. Police officers, or any other person or body designated by law to administer any of the federal statutes listed in Table 1 continue to be the enforcement authority.

In the context of a ticketing scheme, the enforcement officer completes a ticket by including the prescribed information and serves it to the individual (or corporation) who is alleged to have committed a contravention. That person will be faced with a number of options, which include, at a minimum, the option of pleading guilty and paying the prescribed fine, or of pleading not-guilty and requesting a trial. The obvious advantage of the ticketing model is to allow a person who does not wish to challenge the ticket to simply pay the prescribed fine. That way, only minimal time and resources are required from the court personnel to receive and process the payment. The court clerk, the prosecutor, and the presiding judge (or justice of the peace) are not involved in such a scenario.

Application of Provincial Laws

In order for the federal government to use a ticketing model to enforce federal contraventions, it needed to secure the existence and availability of such a ticketing model. To this end, the Act offers two options.

First, the Act contains a series of provisions detailing how federal contraventions could be enforced through a new federal structure. These sections of the Act cover issues such as the completion and service of tickets, the content of the ticket, the commencement of proceedings, options available to defendants, trial procedures, the evidence, and the sentencing. However, while passed with the original bill in 1992, these sections have yet to come into force.Footnote 14 Implementing these sections of the Act would, in fact, require the establishment of a new federal scheme that would heavily involve provincial governments, which already have their own structure for prosecuting provincial offences. In other words, under that scenario, there would be two parallel systems that would pursue similar goals (prosecuting tickets), but through somewhat different ticketing systems.

Parliament opted for a second option. In 1996, it amended the Act to allow the federal government to use existing provincial prosecution schemes to prosecute federal contraventions. As stated in subsection 65.1(1) of the Act, “the Governor in Council may (…) make regulations making applicable (…) laws of the province (…) relating to proceedings in respect of offences that are created by a law of the province.” It is on that basis that the federal government adopted the Application of Provincial Laws Regulations. To date, this regulation has incorporated, for the purpose of enforcing federal contraventions, individual prosecuting schemes, currently in place in all provinces except Saskatchewan and AlbertaFootnote 15. Until the prosecution schemes currently applicable to these two provinces are incorporated, federal offences designated as contraventions that are alleged to have been committed in these two provinces can only be prosecuted using the summary conviction process.

Using existing provincial schemes to prosecute federal contraventions creates additional demands on these systems and triggers additional costs. To help manage these, the Act allows the Minister of Justice Canada to sign agreements with each province.Footnote 16 These agreements relate to the administration and enforcement of the Act and cover any issue relating to the prosecution process, the enforcement of fines, as well as the sharing of fines and fees imposed as a result of the Act.

In practical terms, enforcement authorities start using a provincial ticketing scheme when both the incorporation of the provincial legislation has been completed in accordance with the Application of Provincial Laws Regulations and an agreement has been signed with the provincial government. In the absence of either one of these two conditions, federal offences designated as contraventions continue to be prosecuted using the summary conviction process. To date, the federal government has completed these two steps in all provinces except Newfoundland and Labrador, Saskatchewan, and Alberta (see Table 2).

Table 2: Implementation process for the Contraventions Act
Components NL PE NS NB QC ONTable note ii MB SK AB BC
Prosecution scheme incorporated X X X X X X X     X
Agreement in place   X X X X X X     X
Contraventions Act operational   X X X X X X     X
Summary conviction only X             X X  

Note: The three territories are not included in this table, as this report focusses on provinces only.

Table note ii

In Ontario, the Department of Justice Canada has also signed agreements with the City of Mississauga and the City of Ottawa for the enforcement of certain offences, particularly those occurring on airport properties. In the case of the City of Mississauga, the agreement includes funds to support the provision of services in both official languages.

Return to table note ii referrer

Managing the Consequences

A fundamental goal of the Act is to limit the consequences of being convicted of a federal statutory offence. As stated in section 4, the Act aims “to alter or abolish the consequences in law of being convicted of a contravention.”

One of these consequences relates to criminal records. Currently, information relating to a person who is convicted of an indictable or hybrid criminal offence in Canada ends up in a centralized database. The Canadian Police Information Centre (CPIC), located within the RCMP, is responsible for managing this database, in accordance with federal legislation, including the Criminal Records Act. Federal statutory offences are typically hybrid offences. This means they can either be prosecuted as a summary conviction offence or as an indictable offence, depending on the circumstances related to the offence. As a result, information relating to a person who is found guilty of a federal statutory offence is recorded in the CPIC database.

The impact of having a criminal record is significant. First, it limits employment opportunities, since a number of positions will require a criminal record check.Footnote 17 Second, a criminal record limits the ability of a person to travel outside of Canada. Having been found guilty of a summary conviction offence or an indictable offence does not limit the ability of a person to obtain a Canadian passport, but certain countries have established specific requirements to limit or monitor the entry of individuals holding a criminal record.

Considering the nature of federal statutory offences designated as contraventions, the Act specifically states that “a person who has been convicted of a contravention has not been convicted of a criminal offence.”Footnote 18 Therefore, the person does not end up with a criminal record.Footnote 19

A second consequence relates to penalties. Federal statutes establishing statutory offences typically include a part or section that establishes the overall directives relating to penalties. Other statutes are more specific, establishing maximum amounts specific to an offence or a group of offences. The Act reduces the penalty associated with those federal statutory offences that have been designated as contraventions. First, in accordance with section 8 of the Act, the federal government may make regulations to lower the fine to be paid for a contravention prosecuted by way of a ticket. Equally as important, the Act specifically states that “a person who is convicted in a proceeding commenced by means of ticket is not liable to imprisonment.”Footnote 20

2.4. The Contraventions Act Fund

In a decision made in 2001, the Federal Court jeopardized the entire federal contraventions initiative. Based on a case located in Ontario, the court concluded that, as implemented at the time, the Act violated quasi-constitutional language rights established in the Criminal Code (sections 530 and 530.1) and in the Official Languages Act (Part IV). After reviewing measures taken to implement the Act in Ontario, the court concluded that the province was acting on behalf of the Government of Canada and, as such, ought to systematically and formally guarantee that any applicable federal language right is respected by the province in its dealings related to federal contraventions. Therefore, the court ordered the federal government to:

take the necessary measures, whether legislative, regulatory or otherwise, to ensure that the quasi-constitutional rights provided by sections 530 and 530.1 of the Criminal Code and Part IV of the OLA [Official Languages Act], for persons who are prosecuted for contraventions of federal statutes or regulations, are respected in any present or future regulations or agreements with other parties that relate to responsibility for administering the prosecution of federal contraventions.Footnote 21

In the absence of a satisfactory response, the federal government would no longer be in a position to use provincial ticketing schemes to prosecute federal contraventions.

To preserve the contravention initiative, the federal government responded at two levels. First, it modified the Application of Provincial Laws Regulations to include direct references to applicable language rights. Second, it established the Contraventions Act Fund, allowing the federal government to financially support measures ensuring that provincial governments deliver services related to federal contraventions in a manner consistent with applicable language rights found in the Criminal Code and the Official Languages Act. At the time of this report, the federal government had been using the Fund to support linguistic measures in Nova Scotia, Prince Edward Island, Ontario, Manitoba, and British Columbia. These activities cover both judicial and extra-judicial services.Footnote 22

The Fund has provided funding for other activities, including the design and printing of bilingual offence notice forms (tickets), the translation of websites, and the development of communication signs and products.

2.5. Management and Financial Resources

The Department of Justice invests both human and financial resources toward the ongoing implementation of the regime under the Act.

In May 2009, the Innovation, Analysis and Integration Directorate (within the Policy Sector) was given the mandate to oversee the implementation of the regime under the Act, with a particular focus on the ongoing management of Contraventions Act agreements signed between the Department and the provincial governments where the regime is operational. The Directorate also includes the Contraventions Act Implementation Management Team, which consisted, at the time of the evaluation, of two legal counsel who have been supporting the ongoing implementation and management of the Act, particularly through ongoing communications and collaborations with other federal departments (and their legal services units), and provincial and municipal partners. The Team has also been responsible for all legal aspects of the implementation, providing legal services to client-departments and partners as required. The Directorate is also responsible for the management of the Contraventions Act Fund.

It is worth noting that the Department of Justice does not provide a direct financial contribution to provincial governments to cover expenditures related to the processing of federal contraventions. Instead, current Contraventions Act agreements include clauses that allow provincial governments to retain a portion of fines collected to cover these costs. Any surplus in fines collected is shared equally between the federal and provincial governments.

Table 3 includes the total financial resources allocated to the Contraventions Act Program during the three years covered by this evaluation. The Department allocates close to $10 million annually to the Program, the majority of which is allocated to the contributions provided to participating provinces for the delivery of bilingual services in the context of federal contraventions. It is important to note that the amounts included in Table 3 represent the financial resources allocated to the Program, and not those actually spent; the latter analysis is included in sub-section 4.3 of this report.

Table 3: Financial resources allocated to the Contraventions Act Program
Financial resources 2013–14 2014–15 2015–16
Operational costsTable note iii $781,060 $827,426 $781,060
ContributionsTable note iv $9,094,900 $9,094,900 $9,094,900
Total $9,875,960 $9,922,326 $9,875,960
Table note iii

Operational costs include internal costs related to salaries and benefits, operations and maintenance, and other internal activities related to the Contraventions Act Program.

Return to table note iii referrer

Table note iv

Contributions are allocated based on agreements signed with provincial governments for the delivery of bilingual services related to federal offences designated as contraventions.

Return to table note iv referrer

Source: Administrative data