Contraventions Act Evaluation, Final Report

2. Description Of The Contraventions Act

The passing of the Contraventions Act in 1992 marked an important milestone in a lengthy process to establish a clearer distinction between criminal and statutory offences. The Act establishes 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 theft or assault) 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 continuously evolves, 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:

" In principle the criminal law's concern is with seriously wrongful acts violating common standards of decency and humanity. In practice only a minority of criminal offences fall under this heading. The majority, which total more than 20,000, are not necessarily wrong in themselves but prohibited for expediency. Such acts have to do with commerce, trade, industry and other matters which must be regulated in the general interest of society; and criminal prohibition is a well-tried and useful method of regulation. The regulatory offence, therefore, is here to stay. Nor have we any objection to it. What we do object to is diluting criminal law's basic message by jumbling together wrongful acts and acts merely prohibited for convenience. Once we treat the regulatory sector as seriously as the Criminal Code, and we may end up thinking real crimes no more important than mere regulatory offences. "[2]

To redress this ill-structured system, the Commission called for a clearer distinction between criminal and regulatory 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."[3] 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 régime, violation a non-criminal régime."[4]

The federal government did not act immediately on this recommendation. A decade later, in 1986, the Commission re-iterated its concerns, recommending a formal process to establish the distinction between criminal and statutory offences. In recommending the adoption of 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 to formally classify some regulatory offences as "infractions" and to establish a separate system to process them.

"  All offences enacted by Parliament for which the penalty provided is not imprisonment, but a fine or other disability, would be termed "infractions." The term "infraction" has been adopted because it is a generally accepted term describing the "least" serious category of offences - those which are not crimes. Since it is intended that all offences in the Criminal Code be "crimes" in that they are punishable by at least some term of imprisonment, infractions would be created and governed by federal legislation other than the Criminal Code. Infractions would primarily be used to enforce federal regulatory legislation."[5]

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:

" A regime contained in a federal Infractions Procedure Act could be modeled upon legislation presently in force in Ontario and British Columbia - the Provincial Offences Act, and the Offence Act respectively. Both deal with the procedures for the disposition of provincially created offences."[6]

During that same period, the Department of Justice Canada formally 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 (such as 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 proposed 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 could be processed 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 reduce the burden on 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:

Before passage of 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."

Even in the best of circumstances, the summary conviction process systematically uses some of the court's limited time and resources. When an accused person wishes to enter a guilty plea to a summary conviction offence, he or she must proceed with a first appearance in court to enter that plea, which takes up some of the time of the judge (or justice of the peace), prosecutor and court personnel. Simply put, the summary conviction process appears disproportionate, considering the nature of many federal statutory offences.

In sum, 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.

2.3.1. Creating a federal contravention

The Act allows the federal government to make regulations designating federal statutory offences as "contraventions."[7] It is on that basis that the federal government passed the Contraventions Regulations.[8] This regulation lists all federal statutory offences that are to be treated as contraventions.

The Act also allows the federal government to establish the amount of the fine associated with a federal contravention.[9] That amount is systematically lower than the maximum fine an offender could face should the offence be prosecuted by way of summary conviction. The following example illustrates this principle. According to the Historic Canal Regulations (adopted under the Department of Transport Act), "taking off an aircraft on a navigation channel" is illegal.[10] 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, he or she 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.

It is impossible to list all federal statutory offences that have been designated as contraventions. To date, there are close to 3,000 such offences, involving more than 20 different federal laws and more than 45 sets of regulations. 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
Legislation Number of regulations Example of a contravention Fine
Canada Marine Act  3 Obstruct course of ferry $ 100
Canada National Park Act 12 Damage an archaeological site or historical resource $ 300
Canada Shipping Act  4 Operate power-driven or electrically propelled vessel with more engine power than maximum specified $ 100
Canada Wildlife Act  0 Unlawfully destroy an animal egg $ 150
Canadian Environmental Protection Act 11 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 Capital Act  3 Have a domestic animal at LeBreton Flats campground $ 150
Wild Animal and Plan Protection and Regulation of International and Interprovincial Trade Act  1 Unlawfully ship live plant by land $ 100
National Defence Act  1 Enter controlled access area without pass $ 100
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
Motor Vehicle Transport Act  1 Drive after accumulating 15 hours of on-duty time without eight consecutive hours of off-duty time $ 250
Navigable Waters Protection Act  0 Permit to deposit in prohibited waters any material or rubbish liable to sink $ 250
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

2.3.2. Enforcing a federal contravention

The Act does not modify who enforces federal statutory offences, but rather how enforcement authorities go about executing their respective mandate. 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.

2.3.3. Application of provincial laws

To use a ticketing model to enforce federal contraventions, the federal government 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.[11] 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 Alberta. 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.[12] 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
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 focuses on provinces only.

2.3.4. 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 typically 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. The list of these positions includes, but is not limited to:

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. However, 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."[14] Therefore, the person does not end up with a criminal record.

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. A common statement found in legislation listed in Table 1 would read that “every person who contravenes a provision of the Act is guilty of an offence and liable:

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. 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, and just as importantly, the Act specifically states that "a person who is convicted in a proceeding commenced by means of ticket is not liable to imprisonment (…)."[16]

2.4. The Contraventions Act Fund

A 2001 Federal Court decision jeopardized the entire federal contraventions project. 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 Federal 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 be 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 administrating the prosecution of federal contraventions."[17]

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 project, 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 initiatives that strengthen the capacity of provincial governments to 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 initiatives in Nova Scotia, Ontario, Manitoba, and British Columbia. These initiatives cover a range of activities related to, among other things, bilingual signage and communication tools, and language training.[18]

2.5. Governance and financial resources

The Department of Justice Canada invests both human and financial resources toward the ongoing implementation of 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 Act and the Fund, with a particular focus on the ongoing management of Contraventions Act agreements signed between the Department and the provincial governments where the Act is operational. The Directorate also includes the Contraventions Act Implementation Management team, which includes two legal counsel. The Directorate works in close collaboration with the Bureau of Francophonie, Justice in Official Languages and Legal Dualism.

The Department also established the Contraventions Act Fund to support the provision of services in both official languages in some of the provinces where the Act is operational. As stated in the previous subsection, Justice Canada is providing financial support to four provincial governments: Nova Scotia, Ontario, Manitoba and British Columbia.

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

All financial resources allocated to the Contraventions Act are Vote 1 (Operating Expenditures) resources, applicable to salaries, operating and other related expenditures. During the five years presented in Table 3, full-time equivalent positions have been attributed to the management of the Act. Positions were in place prior to 2005-2006 as a result of the work related to the decision rendered by the Federal Court in 2001.

Table 3: Financial resources of the Contraventions Act[19]
Vote 1 Resources 2005-2006 2006-2007 2007-2008 2008-2009 2009-2010
Full-time equivalent 3.9  3 2.2  2 2.1
Salaries $418,898 $297,643 $232,525 $218,751 $247,771
Operation and Maintenance $198,874 $332,472 $158,151 $61,138 $8,938
Total Cost $617,772 $630,115 $390,676 $279,889 $256,709

Source: administrative documents