Provincial Offences:
Provincial & By-Law Offences
What type of offences are under the Provincial Offences Act and procedures related to defending such cases?
Provincial offences are quasi-criminal offences and are considered to be minor and less serious as compared to those offences found in the Criminal Code of Canada. Many of those offences are serious and carry a period of incarceration and hefty monetary fines. There is a common misconception some people have that conviction of an offence under the Highway Traffic Act Municipal By-law could affect their criminal record under the Criminal Records Act and may further affect their immigration status, this is not true. However, various government departments and Ministries maintain their record of convictions for people charged under provincial laws. Ministry of Transportation maintains records of convictions related to the Highway Traffic Act, Compulsory Automobile Insurance Act, and convictions related to driving under the Criminal Code of Canada such as impaired driving and dangerous driving. A record of any conviction under the Municipal By-law is normally maintained by the relevant city’s legal services branch. And if the person re-offends, the City’s prosecutor may use a copy of the certified record of previous conviction to seek a stiffer penalty. There are many offences under the Highway Traffic Act that have a stiffer penalty on subsequent convictions and record of previous convictions then play a very important role in determining the proportionality of sentence.
Ticket vs. Summons
Under the Provincial Offences Act, charges can be laid in two different ways: 1). Part I Offences are laid by issuing a certificate of offence (i.e. Traffic Ticket) that has a set fine on the ticket, and 2). Part III Summons is issued for more serious offences and compels the defendant to appear in court on the date noted on the summons. The extent of the penalty is decided by the Justice of the Peace based on several factors. The Part I offences are prosecuted by municipal prosecutors and Part III summons are prosecuted by the provincial prosecutor from the relevant region’s Crown Attorney’s Office.
Options for Defendants
A certificate of offence (Ticket) that has set fine on it in most jurisdictions will have three options for the defendant to select from those listed on the back of the ticket. The defendant must elect one of the three options within 15 calendar days from the offence date. If the defendant does not elect either of the three options within 15 days, the court will consider the defendant deems not to dispute the charge and enter a conviction and will issue a Notice of Fine and Due Date for the defendant asking to pay the fine. Failure to pay the fine will result in the suspension of one’s driver’s licence for non-payment of fine.
If the defendant pays the fine shown on the offence notice (Ticket), it means the defendant agrees with the offence and accepts responsibility. As a result, a conviction is entered and the case ends. The second option is available in most jurisdictions in Ontario that allows the defendant to schedule an Early Resolution Meeting with the prosecutor to discuss a potential resolution of the matter. If the Defendant agrees with the proposed resolution, the prosecutor and the defendant will appear in front of the Justice of the Peace to enter the plea as agreed. The third option allows the defendant to request a trial of the matter by filing a Notice of Intention to Appear at the courthouse listed on the back of the ticket. Once the Notice is filed, the court will schedule a trial date and issue a notice to the defendant to attend his or her trial. The police officer will also be requested to appear as a witness by the prosecution office. The defendant may negotiate a resolution and if agreeable then proceed to enter his or her plea. Alternatively, the defendant may enter a plea not guilty and proceed with his or her trial.
Seeking Legal Advice
Convictions under provincial offences can have serious and far-reaching consequences. Hence, if someone is new to the legal system and not aware of his or her legal rights then it is highly recommended that one should seek independent legal advice before making an informed decision as to pleading guilty to a charge. The prosecutor or Crown cannot give you legal advice, you must consult a paralegal or lawyer to seek legal advice.
Disclosure or Officer’s Notes
Disclosure or notes of the charging police officer is information that forms the basis of the prosecutor’s case. The prosecutor must disclose all disclosure records that are going to be used by the prosecutor at a trial upon the written request of the defendant. You must make a written request at the prosecution’s office in a timely fashion to access a copy of the disclosure. In some cases, there is video or audio recording available which also becomes part of the disclosure. In an accident-related matter, accident reconstructionist's report and police collision report is also part of the disclosure record which should be provided to the defendant upon request.
Trials
The trials of both Part I (Ticket) and Part III (Summons) are procedurally identical. The prosecution must prove all elements of the offence beyond a reasonable doubt. Most of the provincial offences do not require the prosecutor to prove the mental intent of the defendant for establishing the guilt. In a speeding ticket offence, the prosecutor must prove that the defendant was the one who was caught speeding above the posted speed limit on the day in question. The prosecutor does not need to prove whether the defendant had any intention to commit the offence of speeding. If the defendant is self-represented, the Justice of the Peace may assist the defendant with the procedure of the trial but will not give any legal advice or any assistance asking what question the defendant should ask the prosecution’s witness. It is the defendant’s constitutional right not to give evidence in his or her trial, nor can the court or the prosecutor compel the defendant to testify at the trial. It is the sole discretion of the defendant to make such a decision. The burden of proving the guilt is always on the defendant. However, the defendant must be aware that if he or she decides to give evidence in his trial then should be ready to answer the prosecution’s questions. Once prosecution and defence have closed their case, the Justice of the Peace will review his or her notes and render the judgement. If the prosecution has proven its case beyond a reasonable doubt, the Justice of the Peace will enter a conviction and if not, the case will be dismissed.
Appeals
All provincial offences appeals are filed at the Provincial Offences Appeal Court (Ontario Court of Justice) in the same territorial jurisdiction where the trial was held. The procedure of filing the appeal of Part I and Part III offences is almost the same. However, they are handled by two different prosecutors, municipal and provincial. The Appellant may file an appeal against his or her conviction, a variation of the sentence (Monetary Fine or Jail Term), or set aside the conviction and order a new trial. The Appeals are heard by a Provincial Judge and not the Justice of the Peace.