1 Response to the Attorney General s paper on: Exploring an online Administrative Monetary Penalty system for infractions of provincial statutes and municipal by-laws in Ontario Prepared by: Ontario Paralegal Association LSUC & Government Relations Committee April 28, 2015
2 Page1 Table of Contents EXECUTIVE SUMMARY 2 THE ONTARIO PARALEGAL ASSOCIATION 4 BACKGROUND AMPS AND PROVINCIAL OFFENCES 5 An Administrative Monetary Penalty System 5 POA Offences 6 Some Key Statistics POA Part I and III Matters that go to Trial 7 KEY CONCERNS FOR PARALEGALS 8 LIMITATIONS OF THE CONSULTATION PAPER AND PROCESS 8 SUBSTANTIVE CONCERNS ABOUT AN AMPS SYSTEM RIGHT TO FAIR AND DUE PROCESS 10 Right to an Unbiased, Impartial Decision Maker 11 Ability to Question Witnesses 11 Opportunity to Address Errors in law 12 Risk of Bias in Laying Charges ACCESS TO JUSTICE ECONOMIC IMPACTS AND UNINTENDED CONSEQUENCES 16 Economic Impacts 16 Laying of Charges by Municipal Employees 17 RECOMMENDATIONS 19
3 Page2 EXECUTIVE SUMMARY The Ontario Paralegal Association (OPA) represents the interests of over 700 paralegals across the province. Paralegals practise in Small Claims Court, in the Ontario Court of Justice under the Provincial Offences Act (POA), summary conviction offences under the Criminal Code of Canada, and, before administrative tribunals. The OPA has many serious concerns about the government s proposal to implement an Administrative Monetary Penalty (AMP) system for Parts I, II and III POA offences. In addition to removing the right to an individual s day in court, there are a number of issues that would impact an individual s fundamental rights to fair, impartial adjudication of matters that carry significant fines and other consequences. The OPA is concerned about the impact an AMP system would have on the paralegal profession and on the public s access to justice. We appreciate the opportunity to respond to the Ministry of Attorney General s consultation paper. In light of the direct consequences of the proposal for POA offences, we want to ensure that the OPA will have the opportunity to address these issues directly with the Ministry and to be an integral part of the further consultation and policy development process. OPA has significant concerns with the tone of the Consultation Paper, limited public awareness of the consultation exercise, the lack of details about the scope of the system, and the lack of sufficient information on risks for the public to make informed comment. We believe this should be only a starting point for consultation not a prelude to implementation. Paralegals have identified real risks with the idea of an AMP system for Highway Traffic Act offences and other Part I and Part III POA offences, relating particularly to: 1. Right to fair and due process, including right to unbiased impartial decision maker 2. Access to justice 3. Economic impacts and unintended consequences With respect to the proposal for an online Administrative Monetary Penalty system, the Ontario Paralegal Association recommends that the Province of Ontario should: 1. Treat the Consultation Paper exercise as only the first step in a much more thorough exercise in public education and solicitation of feedback from legal experts, stakeholders and average citizens that must proceed any consideration of radical changes to the justice system with repect to POA offences.
4 Page3 2. Consider province-wide implementation of an AMP system for Part II parking offices, subject to the appropriate balanced protections to ensure unbiased, neutral adjudicators, that certain rights are maintained (e.g., some form of appeal) and that the adjudicators have the right to provide absolution. 3. Not move forward with an AMP system for Part I and Part III offences given the substantial risks of the denial of fundamental rights to citizens facing significant financial penalties and other consequences arising from these charges. 4. Implement alternative methods to minimize the burden of Part I and II charges on the court system that would: a) Permit the public to request a trial or early resolution by mail or online. This would allow citizens to pay fines if they do not intend to defend their actions. b) Increase set fines for all HTA offences and impose court costs after a trial to an amount greater than the current $5.00. c) Create a stronger, sustainable solution to the collection of outstanding fines for all categories of offences.
5 Page4 THE ONTARIO PARALEGAL ASSOCIATION The Ontario Paralegal Association (OPA) represents the interests of over 700 paralegals across the province. OPA provides Certified Professional Development seminars and workshops to its members and offers mentorship to newly licensed members. Paralegals were first licensed in 2008 by the Law Society of Upper Canada to provide legal services within a permitted scope of practice as part of the government s broader policy to enhance access to justice. Paralegals practise in Small Claims Court, in the Ontario Court of Justice under the Provincial Offences Act (POA), summary conviction offences under the Criminal Code of Canada, and before administrative tribunals. Most paralegals do represent or have represented the individuals in Provincial Offence Act and/or Highway Traffic Act (HTA) offences. In 2012, close to 40 percent of services provided by paralegals was in traffic court 1. The OPA is pleased to respond to the consultation on the use of an online Administrative Monetary Penalty System for infractions of provincial statutes and municipal bylaws in Ontario from the Ministry of the Attorney General (MAG). In light of the direct consequences of the proposal for POA offences, we want to ensure that the OPA will have the opportunity to address these issues directly with the Ministry and to be part an integral part of further consultations and the policy development process. The OPA is very concerned about the government s proposal to implement an AMP system for Parts I, II and III POA offences. In addition to removing the right to an individual s day in court, there are a number of issues that would impact an individual s fundamental rights to fair, impartial adjudication of matters that carry significant fines and other consequences. It is unclear from the consultation documents how issues such as judicial independence, presumption of innocence and due process would be addressed. The consultation document does not provide any details about the proposed online system and what offences would be transferred to such a system, raising further issues and concerns about the proposed AMP system. The removal of Provincial Offences from the court system into an administrative process presents many risks, including diminished access to justice, over simplifying the dispute process, denial of Charter Rights, public safety, potential for abuse and lack of independent and impartial screenings and hearings officers. 1 Report to the Attorney General of Ontario: Pursuant to Section 63.1 of the Law Society Act, June 2012, p. 19 Chart 5
6 Page5 The OPA is concerned about the impact an AMP system would have on the paralegal profession and on the public s access to justice. The Attorney General tasked the Law Society with regulating paralegals. The Law Society Act was amended to allow paralegals to provide legal services in advocacy roles, to improve access to justice for the public. This proposed AMP system undermines the very legislation and licensing framework established to regulate paralegals providing legal services for the benefit of the public in Provincial Offences matters. BACKGROUND AMPS AND PROVINCIAL OFFENCES On March 3, 2015, the Ministry released its consultation document on an alternative approach to resolving POA offences through the implementation of an online Administrative Monetary Penalties (AMPs) or Administrative Penalties (AP) in Ontario (the Consultation Paper. ) 2 The Consultation Paper in fact suggests two major reforms to the justice system in Ontario: a shift to an online adjudication rather than in-person court process; and an administrative penalty system to replace convictions under the current justice system (a civil versus quasi-criminal mechanism, in the somewhat biased language of the paper.) An Administrative Monetary Penalty System An AMP system is a civil penalty regime that secures compliance with legislation and regulatory requirements through the application of monetary penalties. The report by the Law Commission of Ontario in 2011 gave a more thorough review of the meaning and implication of AMPs than the Consultation Paper. A brief extract summarizes some of the most important elements: Administrative Monetary Penalty(ies) (AMP or AMPS) systems allow for monetary penalties to be imposed by a regulator for a contravention of an Act, regulation or bylaw. The regulator issues an AMP upon discovering that an unlawful event occurred, and it is due and payable subject only to any rights of review that may be available under the AMP scheme. A fine may be distinguished from an administrative penalty in that a fine denotes a criminal or quasi-criminal monetary penalty payable only after an admission of guilt or finding of guilt by a court. An AMP, on the other hand, does not contain a 2 Exploring an online Administrative Monetary Penalty System for infractions of provincial statutes and municipal bylaws in Ontario, March 3, 2015, Ministry of the Attorney General.[ Consultation Paper ]
7 Page6 criminal element and is intended to merely reflect the violation of a law or rule that carries with it a monetary sanction. 258 It is a regulatory penalty imposed to promote compliance with a given regulatory scheme, and it is not considered to be a criminal punishment, because it is primarily imposed in order to compensate the state for harm done to it, rather than as a means of punishing the wrongful activity [emphasis added] The bolded element is critically important, as this is one of the clear distinctions between an AMP system and a court-based justice system: an AMP is a penalty due based on the mere detection of an infraction, while a fine in the justice system can only be imposed once a defendant has pleaded guilty to an offence or the court has convicted the defendant. POA Offences The POA came into force in According to the Act: The purpose of the Act is to replace the summary conviction procedure for the prosecution of provincial offences., with a procedure that reflects the distinction between provincial offences and criminal offences. The Provincial Offences Act divides charges into three categories: Part I - Minor offences such as speeding, drinking in public, trespassing, etc., commenced by way of a certificate of offence, typically with a set fine not exceeding $1,000. Imprisonment is not a permitted penalty. The defendant s options include paying the fine, disputing the penalty or requesting a trial. Part II - Parking infractions Part III - Offences that are more serious and complex in nature and that must be brought to the courts for resolution. The POA provides different procedures for how charges under the three Parts of the act are laid and dealt with by the courts. POA offences arise from violations of a wide range of statutes and by-laws, including: Highway Traffic Act Compulsory Automobile Insurance Act Environmental Protection Act, Clean Water Act, Pesticides Act and other environmental statutes Liquor Licence Act 3 Modernization of the Provincial Offences Act, Final Report, August 2011, Law Commission of Ontario, page 50. Footnote citations in original: 258. Amanda Tait (prepared by the Public Interest Advocacy Centre), The Use of Administrative Monetary Penalties in Consumer Protection (May 2007) at 9. Online: Public Interest Advocacy Centre Tait, note 258 at 9
8 Page7 Smoke-Free Ontario Act Trespass to Property Act Occupational Health and Safety Act Dog Owners Liability Act Family Law Act Fire Protection and Prevention Act Safe Streets Act Provincial Parks Act Municipal by-law violations for o Noise o Animal care o Traffic by-laws o Parking by-laws While this is not an exhaustive list, it illustrates the wide range of regulatory concerns covered by the POA, with implications large and small; failure to have a tag on a cat, breach of a restraining order, large-scale pollution of a waterway, failure to douse a fire in a park, or driving without a licence, for example. Like the Law Society of Upper Canada and other groups involved in the justice system, the OPA sees a clear distinction between Part II offences, i.e. simple parking tickets, and the wide range of infractions covered under Parts I and III of the POA. We do not object to the implementation of an AMP system for Part II offences; indeed, it is already operating in a number of municipalities around the province. However, that does not suggest the same principles apply to the offences under Parts I and III. Parking at an expired meter is a very different offence than driving above the speed limit, not least because the latter carries both real risks to public safety and potential for serious consequences to the defendant (demerit points, inclusion of a driving record, insurance impacts, etc.) The OPA understands that it is important to seek positive evolutionary ways to further modernize the court system for greater efficiencies and to provide initiatives that enhance access to justice while protecting fundamental rights to due process. The OPA believes that it could support AMPs for parking tickets, for example, with the appropriate balanced protections that would ensure unbiased, neutral adjudicators and that certain rights are maintained (e.g., some form of appeal). The OPA also understands how AMPs could have a role in the continuum of dispute resolution. The OPA, however, does not support AMPs for Parts I and III Provincial Offences Act offences
9 Page8 Therefore, the remainder of this paper will focus on Part I and III offences exclusively. OPA does not contest a move to an AMP system for Part II matters, subject to the appropriate accountability framework. Some Key Statistics POA Part I and III Matters that go to Trial Every year, more than 1.7 million Part I and III charges are laid in Ontario. 4 Given the potential for error or bias in laying charges, the size of fines involved and other consequences of conviction (insurance implications, reputation, etc.) it is not surprising that a large number of charges are disputed at court. Disposition of Part I & III Charges Type of Charge Number of Charges Laid Number of Charges disposed in court Percentage disposed at court Days to disposition at trial Part I 1,525, , % 145 Part III 144,813 69, % 366 The vast majority of Part I charges that go to court every year are related to Highway Traffic Act (~80%) or Compulsory Auto Insurance Act (~6%) charges. More than 20% of Part I offences and close to 50% of Part III actually go to court, demonstrating that for many defendants, the right to dispute a charge at trial is fundamental. KEY CONCERNS FOR PARALEGALS LIMITATIONS OF THE CONSULTATION PAPER AND PROCESS Prior to the release of the Ministry s paper, there had been little public or political discussion about this idea. The 2011 Law Commission report was virtually unknown outside of specialized legal circles. The Consultation Paper itself has had very limited public promotion. Indeed, even 4 All data in this section from: Provincial Offences Court Activity, Ontario Court of Justice, Provincial Overview, January 2013 to December 2014,
10 Page9 most MPPs and Ministers canvased by OPA on this issue in recent weeks were unaware of the AMP proposal, and media discussion has been sparse. Given the major change to our system of justice that an AMP system represents, and in light of the limited details and public policy considerations contained in the document, the concepts raised in the government s paper require far more study and public debate. Therefore, the Consultation Paper exercise should, in the OPA s view, be an initial step, not a final round of consultation. The OPA has concerns with the key questions probed in the Ministry s Consultation Paper. The Ministry has not provided a policy analysis of the pros and cons of AMPs for POA offences. The Ministry s consultation questions do not get to the root of the significant public policy issues and the potential direct and indirect impacts that adopting an AMP system would have on an individual s fundamental rights. The language in the Consultation Paper is clearly intended to skew support for an AMP system. The Consultation Paper highlights some of the conveniences of an AMP system such as a faster, cost-effective and more flexible process for payment, appeal and collection of penalties, without exploring the serious risks related to the inability to dispute a charge. Some fundamental issues are virtually ignored in the Paper. Notably, the question of how or whether demerit points would continue to be administered in an AMP system receives but a single line: While monetary penalties do not lead to convictions or pose a risk of imprisonment, administrative decisions may still be made (demerit points, driver license suspensions). 5 Yet this issue is critical to assessing the ability of an AMP system to fairly deal with HTA matters. If demerit points were to no longer apply under a new system, or are were used for a much more restricted class of charges, both public safety and fundamental justice would be at risk. For example, those with financial means would be free to speed at will, since payment of fines would be of minimal consequence to them. Assuming the limited statement in the Paper can be taken at face value, and demerit points would be applied in some way, then drivers would face the risk of demerit points being imposed without recourse to questioning the officer involved, disputing the charge, or offering mitigating evidence. Given the consequences of demerit points on a driving record, including increased insurance costs, potential license suspension, and employment risks for those for whom driving is a necessary part of work, this would represent a deprivation of rights. 5 MAG, Consultation paper, p. 2.
11 Page10 There is simply far too little information in the Consultation Paper for it to be anything other than a mere starting point for discussion. The suggestion on page 1 that details about how the system would operate would be worked out by the Ministry with technological and subject matter experts throughout the development process is far from reassuring. Indeed, it is an affront to all citizens to suggest that all matters beyond the scope of the Consultation Paper are merely technical details. SUBSTANTIVE CONCERNS ABOUT AN AMPS SYSTEM The Ontario Paralegal Association (OPA) is fundamentally opposed to the proposal of the Ontario Government for Part I and III POA offences. Our position is based on deep concerns in three areas: 1. Right to fair and due process 2. Access to justice 3. Economic impacts and unintended consequences 1. RIGHT TO FAIR AND DUE PROCESS The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision. 6 The AMP process does not permit an accused/charged to contest the matter before the Ontario Court of Justice, as is currently the case. The only option provided for is an online meeting with a hearings officer to determine the quantum of the financial penalty. The process proposed offers only the right to dispute the amount of a fine online before a hearing officer. In this way, an AMP system would strip the individual charged with an offence of the right to a trial and the right to question evidence as guaranteed in the Charter of Rights. The right to be innocent until proven guilty, under s. 11(d) of the Canadian Charter of Rights and Freedoms, would be denied. Moving to an AMP system in the way it has been proposed would represent a denial of access to fair and equitable justice. 6 Baker v. Canada (Minister of Citizenship and Immigration)  2 SCR 817 p. 28
12 Page11 Right to an Unbiased, Impartial Decision Maker Under an AMP system the hearing or screening officers would be employees of the municipality as opposed to independent judicial officers, further exacerbating the OPA s key concerns regarding the loss of the right to due process. It is difficult to imagine that we can go from a process where we are entitled to a trial to a system where the only person to whom we can take a disputed charge, is employed by the very organization that stands to benefit from the fine that is being imposed, and may not even be available in person. This goes against the most fundamental rights of due process. In some AMP systems now, the person charged has the right, within a limited time, to dispute the penalty by requesting a Screening Review meeting and the accused has a limited period after the Screening Officer s decision to appeal the outcome of the Screening Review meeting to a Hearing Review Meeting; following which, the Hearing Officer s decision is final. The Justice System has to be fair, accessible, and efficient. It becomes unfair and inaccessible when one is not provided the option to be considered innocent until proven guilty. The viability of the justice system requires efficiencies, not stripping individuals of their right to defend themselves and prove their innocence before an independent, impartial decision maker. One of the basic principles of the justice system is, to quote S.71(a) of the Access to Justice Act, to maintain the independence of the judiciary as a separate branch of government. An AMP system does precisely the opposite, placing the responsibility for laying charges and adjudicating them under one authority, with all the risk of abuse that entails. Moreover, by replacing Justices of the Peace with municipal administrators (screening and hearing officers) the level of legal training on the bench is greatly diluted. To ensure fair process, there absolutely must be a legally-educated, unbiased decision maker, able to sift through the evidence and testimony to come to a decision based in law, not conjecture. Ability to Question Witnesses In the current judicial system the police are most often witnesses for the Crown. Either someone reports an offence to the police, or the police lay the charge. If someone reports an incident to the police, the police will follow up by visiting the scene, or by interviewing the witness. Both the officer(s) involved and the witness who reports the offence become witnesses for the Crown. Under an AMP system, there is no charge and there is no prosecutor. Citizens lose the right to challenge the recollection and perception of both the police and the witness. This is an important aspect in any decision regarding the implementation. Given the economic and social consequences of demerits or other penalties imposed under an AMP system (even if these are
13 Page12 not convictions in the legal sense) it is essential that the accused have the right to question the basis on which he or she is accused of having breached a regulation. It is important to consider that even the most confident of witnesses can be wrong. In many cases, the information written in an officer s notebook in not based only on what they have perceived or visualized but on what they have been told by a potential witness. Courts in Canada and outside have often found witness testimony to be to be unreliable or contradictory. The most confident eye witness can be wrong when they identify someone as the person who committed a crime. The history of our criminal courts is littered with wrongful convictions of men and women who were incorrectly identified by eye witnesses who were one hundred percent sure that they were right. 7 Evidence shows that there is no difference between officers and civilians on identification accuracy. Police officers (and municipal by law enforcement officers or others who can lay charges under various statues) are as fallible as any humans. Memories can be faulty, notebook entries sometimes incomplete or contradictory, or observation on the scene in error, and it is fundamental that the accused have to right to question these factors. Opportunity to Address Errors in Law Just as errors can occur in observation or memory, which must be subject to challenge, so too can an accused be at risk as a result of errors in law. One could not find a better case to use to highlight the importance of minor offences being kept under the protection of the justice system than the case of R. v. Duncan, 2013 ONCJ 160 (CanLII). Had this case been treated as an AMP infraction, the original HTA charge would have remained, and as a result, the defendant would have been guilty of all the charges as laid by the police. The police however made a mistake in interpreting or understanding the law. It is imperative these types of issues remain as offences, so that the public has the right to present a defence and question the evidence, and in this case, the officers. Mr. Duncan was stopped by police at 3 a.m. as he turned into the parking lot of his apartment building. The police requested identification and Mr. Duncan allegedly refused. This led to an attempt to arrest him, which led to a struggle. Mr. Duncan was placed under arrest for allegedly assaulting a police officer. The struggle had been captured on a poor quality mobile phone video. 7 US v. White, Slip Copy, 2007 WL (E. D. Va.) June 15, 2007
14 Page13 The testimony that describes the incident was primarily the same from both officers until the point of the altercation. One officer described resistance to the arrest while the other described a more aggressive assault by the accused. The judge states that: 23. It is self-evident that a charge of assault to resist arrest requires proof of a lawful arrest. This is not a Charter issue; it is a fundamental element of the offence. If an arrest is unlawful, resistance to that arrest is not unlawful. There are relatively few offences under the Highway Traffic Act for which the police have a power of arrest. In the present case, the purported underlying, arrestable offence committed by Mr. Duncan was his failure to identify himself under the Highway Traffic Act. In turn, his obligation to identify himself must be based on a lawful exercise of police power, in this case under the Highway Traffic Act. 24. The problem with the Crown s case is that it is not an offence merely to make a turn or lane-change without signalling. That is not what the Highway Traffic Act says. Rather, the Highway Traffic Act provides a materially narrower offence as follows: 142. (1) The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement. R.S.O. 1990, c. H.8, s. 142 (1) [emphasis added] 27. On the evidence led and articulated before me in Mr. Duncan s trial, there is absolutely no basis for me to conclude that the operation of any other vehicle might have been affected by Mr. Duncan s allegedly un-signalled turn 28. If no lawful basis for the stop has been articulated, there was no lawful basis for the demand for identification. If there was no lawful demand for identification, the arrest for the alleged failure to identify was unlawful. If the arrest was unlawful, assuming that Mr. Duncan resisted as described, he was entitled to do so. 8 This case provides a clear example of the risks of the potential impact of AMPs. Under an AMP system, Mr. Duncan would have been considered to have committed the infraction under the 8 R. v. Duncan 2013, ONCJ 160 CanLII, para
15 Page14 Highway Traffic Act. The criminal case would have likely also been upheld because the original arrest was lawful. One reason that a learned legal professional is required to adjudicate, and assistance should be available to clients through lawyers and paralegals, is to protect the public from mistakes by charging officers. It is imperative, when having been charged with an infraction, that the public have a true and thorough method of vetting the information. There must be an option for the public to take their case to trial. Risk of Bias in Laying Charges Stephen Lewis Report to the Premier on Racism in Ontario in 1992 stated that not only does the issue of negative police/visible minority relations exist; but, the likelihood was high that particularly African Canadians experienced discrimination in policing. In its 2003 report, the Ontario Human Rights Commission stated: It is the Commission s view that previous inquiries have considered this [racial profiling] and have found that it does occur. Moreover racial profiling is a form of racial stereotyping. As racial stereotyping and discrimination exists in society, it also exists in institutions such as law enforcement agencies, the education system, the criminal justice system etc., which are a microcosm of broader society. 9 It is particularly important to note, that in an AMP system, the citizen would have very limited ways to protect themselves from racial profiling. With an AMP, the word of the officer would be the law. As soon as a charge had been made the accused s only avenue would be to negotiate the fine, as they could not assert their innocence, and therefore the ability to raise questions of bias would be lost. The risk of one individual being targeted based on race, perceived religion or cultural affiliation, style of dress, would be substantially increased absent a court-based system. While it is understood that even an independent judiciary can exhibit behaviour that one might consider discrimination, it is an open process, which requires decisions to be based on the law. There is an appeals process through the courts as well as a formal complaints process for raising issues about a Judge or Justice of the Peace. On March 5, 2015 the Ontario Human Rights Commission released a statement regarding progress in addressing racial profiling in policing: Racial profiling is a longstanding and deeply troubling concern of the African Canadian community, other affected racialized communities, and of the Ontario Human Rights 9 Paying the Price: The Human Cost of Racial Profiling, Enquiry report, October 21, 2003, Ontario Human Rights Commission, p. 8.