Traffic Law in Ontario by Charles Mwewa

DEFENDING TRAFFIC TICKETS: SAFETY OBJECTIVE OR PROFIT MOTIVATION?

Defending traffic tickets may sound like an oxymoron as the phrase itself suggests that allegedly traffic offenders are let out of their cuffs. However, when one considers the extent to which the Province of Ontario hankers for traffic revenue the argument ends. Consider, for example, a report from the National Post of December 5th, 2014 in the case of the City of Toronto:

Drivers in Toronto are receiving a lot fewer traffic tickets, and city hall can’t quite figure out why, although theories abound from police and politicians. The numbers, disclosed at a meeting of Friday’s executive committee, are striking: Toronto police are projected to issue 218,000 tickets for traffic violations this year, more than a third less than the 341,000 issued in 2013. It means the city will collect almost $30-million less than it expected. Declining revenues and tickets actually began in 2013, the same year the city froze the police’s nearly billion-dollar budget.[1]

The report highlights a symbiotic relationship between the traffic law violations and the revenues the City relies upon to carry out various governmental functions. In this clip, it is obvious that reduction in traffic law violations is good for the safety of the residents. But it is not so for the generation of revenue. In other words, government (municipal or provincial) relies and depends on the fact that a good percentage of the road users will violate its laws and by-laws. 

However, having said so, there is a real reason why defending of traffic tickets is warranted.  The police service may not always, “write tickets based on revenue decisions, we write based on public safety issues,” but the blunt reality is that they do. Police officers are under pressure to issue a certain number of tickets.[2] Take the case of Winnipeg as an example, where in 2011 the police issued 57,000 tickets and City Hall “asked the police to increase their revenue from tickets by $1.4 million.”[3]

Municipal police forces 'share' the revenue with the Ontario government (Ontario Province Police, OPP). Speeding alone amounts to over ninety percent of all the traffic revenues accrued. For example, in 2011, total OPP traffic violations were: Speeding 263,777, Impaired 11,138, and Seatbelt 36,502.[4] 

And the argument still remains, is the traffic industry about safety or profit? According to the National Motorists Association, “Traffic tickets are a multi-billion industry. They have virtually nothing to do with highway safety, but they have everything to do with money.”[5] The same argument goes for the insurance industry which claims risk as the mondus for increasing premiums for speeding traffic violations. Note, “Realistically, there is no connection between receiving an occasional traffic ticket and the likelihood of being in an accident. So, there is no justification for charging a person more for auto insurance because they were convicted for a random traffic violation. The purpose of insurance is to cover unusual risk. The act of exceeding an unreasonably low limit is hardly an ‘unusual risk.’ That means speeding ticket surcharges are pure profit for the insurance industry.”[6] 

The traffic industry is overregulated. A quick glimpse at the Highway Traffic Act[7] will validate this point. Suffice to mention that it is bulky as it is magnanimous in proscribing numerous traffic acts. There are several reasons why some quarters argue against the morality of over-regulation of traffic law. The profit argument topples the safety space. The justification for this is based on a number of observations. First, enough laws are passed in order to stop anybody at any time and be given a ticket for a traffic violation. Second, the effects of various traffic violations are overtly blown out of proportion as a means to justify the stops or parking infractions. For example, most of the speeding tickets do not result in fatalities. They pose a danger to the public, but there is no justification for the enormous revenues they generate which is deemed essential to the management of government affairs. And third, the assumption that traffic tickets are only given to bad drivers is questionable. A report by a CTV News investigation revealed that 61 Toronto police vehicles were captured going through red lights while they were not on an emergency call over a period of 18 months. A Freedom of Information [Act] request revealed that between January 2014 and July 2015 there were 61 instances of police running red lights. Some of the police vehicles were caught entering the intersection more than 30 seconds after the traffic light had turned red.[8]

There is also an unpalatable assumption that traffic ticket prices are kept below the pain threshold that would compel motorists to aggressively contest traffic citations in court. The truth is that it makes bad business for the government for many of these ticket charges to wind up at trials. It is, therefore, more profitable to keep fines as low as possible in order to dissuade people from exercising their rights to trial and thereby denying the enforcers the much needed profit. The same argument can be leveled against why many, if not, all traffic violations are categorized under either strict liability or absolute liability offences. In law, these two categories, though they may have mitigating elements and due diligent partial defenses, they do not have full legal defenses.

Then it is the untendered inference that the police enforce laws that result in direct benefits to police agencies and personnel. Judges hear cases in which a ‘guilty’ verdict would have tangible financial rewards for the court and courthouse personnel. No other class of offences is as profitable for provincial and municipal governments as is that of traffic tickets. It is fair and reasonable to see how the relationship between the prosecutions of traffic ticket violation is linked to the welfare of the courts and its personnel which depends on traffic fines. These fines, surcharges and costs are mostly utilized in government services and to reward government employees.

That said, it is still important to insist that the safety objective of traffic regulation should offset the profit motivation. This is essentially important for two reasons. First, no matter the motive of the enforcers, profit or otherwise, the effects of traffic violations may result in accidents which affect everyone, including government. Second, a safe and secure traffic system is a plus for all – people should know that they will be “punished” for violating traffic laws. Hence, there ought to be a balance between the protection of people’s safety needs and the generation of revenue essential for the running of governments. Either way, defending of alleged traffic ticket violations is justified in a free and democratic society.

DEFENDING YOUR TRAFFIC TICKET IN ONTARIO

Provincial Offenses fall under a branch of law known as Regulatory Offenses. These are laws that have been enacted to regulate behavior in society. Such offenses are charged under a Charging Act, or a piece of legislation under which a person is charged. A good example of a Charging Act can be the Highway Traffic Act. In Ontario the statute which sets out the procedures for the administration and prosecution of charges laid under provincial statutes, municipal bylaws, and certain federal statutes is the Provincial Offences Act, (POA).[9] This piece of legislation covers Regulatory Offences. The POA is, thus, a procedural act.

In Ontario, statutes that are governed by the POA are the following: Highway Traffic Act,[10] Compulsory Automobile Insurance Act (C.A.I.A),[11] Liquor License Act,[12] Occupation Health and Safety Act,[13] Environmental Protection Act,[14] Trespass to Property Act,[15]  Blind Persons’ Rights Act,[16] Dog Owners’ Liability Act (DOLA),[17]  Municipal Act,[18] Canadian Environmental Protection Act,[19] Canada Shipping Act,[20] and Fisheries Act.[21] 

In Ontario, although there is a hierarchy of charges that are common charged (and will be discussed here), it is not uncommon, too, that some other charges may be laid from time to time. The rule of thumb is normally that the procedural statute has more power that the charging acts. However, there are special circumstances when a charging act may override the procedural act. As a good example, the limitation under POA is six months for laying charges; however, in C.A.I.A, it is three years for driving without insurance!

The commonest regulatory charges include: Traffic violation charges brought under the HTA. Such charges may include speeding, improper stop, fail to surrender insurance, failure to wear seatbelt, careless driving, and etc. it is important to always review the actual wording of the charges to prepare for defence.

All offenses in pursuance of the POA are the quasi-criminal offenses. These are offences that bear a resemblance to criminal matters because the procedure for dealing with them is similar to the criminal process. Conviction, however, does not result in a criminal record.[22] Like under the Criminal Code,[23] a defendant is usually charged for breaking the law, and the defendant has a right to trial.

POA – BREAKDOWN

The Provincial Offences Act (POA) is divided into ten (10) parts, numbered from I, II & III up to X. Part I is concerned with minor offences commenced by Certificate of Offence or Summons. Part II is concerned with parking charges commenced by Certificate of Parking Infraction. And Part III deals with serious infractions commenced by Summons or Information.

· Part IV – VIII: general provisions applicable to parts I, II and III hearings

· Part IV: trials and sentencing

· Part V: general provisions

· Part VI: applies to young offenders

· Part VII: appeals and reviews

· Part VIII: arrests, bail and search warrants

· Part IX: other statutes authorizing action over POA

· Part X: municipal transfer agreements under the POA

POA – Regulations

They contain the rules or principles that are enacted under the authority of the POA. There are nine (9) regulations under the POA.

1. Costs, R.R.O. 1990, Reg. 945 – sets out, in chart format, the costs that may be applicable under ss.60(1) and 60(2)

2. Electronic Documents, O. Reg. 67/12 – defines and sets out procedures for the use of electronic documents

3. Extension of Prescribed Times, R.R.O. 1990, Reg. 946 – permits the courts to extend time periods in the event of mail strike

4. Fee for Late Payment of Fines, O. Reg. 697/92 – establishes the administrative fee payable for fines in default

5. Fine Option Program, R.R.O. 1990, Reg. 948 – establishes a program to permit the payment of fines in default by means of credit for work performed

6. Forms, O. Reg. 108/11 – provides information about provincial offences forms and sets out, in chart form, a table of forms

7. Parking Infractions, R.R.O. 1990, Reg. 949 – provide specific information and designated forms to be used for parking infraction

8. Proceedings Commenced by Certificate of Offence, R.R.O. 1990, Reg. 950 – format to be used for Certificate of Offence and other court forms, and provides the short-form wording that can be used on the Certificate of Offence

9. Victim Fine Surcharge, O. Reg. 161/00 – sets out, in chart format, the victim fine surcharge that are added to every offence

Regulations provide more specific information about designated topics in the Act. The POA works alongside the Courts of Justice Act (CJA) which deals with both the Ontario Courts of Justice (OCJ) and Superior Courts of Justice. Sections 38 and 39 of CJA stipulate that OCJ has jurisdiction to perform any function assigned to it by or under the POA; and grants power for a judge to preside in the OCJ and for Justices of the Peace (JPs) to provide in the OCJ in a proceeding under the POA.

ROLES AND RESPONSIBILITIES

Under the POA, there are a number of people playing different roles and having different responsibilities who ensure the enforceability and management of the POA. We can identify at least 11 of such people in this study. These are the Defendant/Client, who is a person who has been charged with an offence under a statute governed by the POA.

Police Officer

The officer has the authority to lay charges against a defendant pursuant to s. 1(1) of POA which also defines a police officer. The Provincial Offences Officer is the third, and he or she has the authority to lay charges against a defendant for specific type of provincial offences (includes a police officer). Their powers are defined under ss. 1(1) of POA. Provincial offences officer also include the police officer, municipal law enforcement officer, bylaw enforcement officer, parking enforcement officer, and other designated individuals such as the fire prevention inspectors, environmental protection officers, employment standards and inspection officers and animal control officers.

Legal Representatives

This can either be a licensed paralegal or lawyer who is authorized to represent a defendant in a proceeding under the POA. The power of the licensed professionals to represent clients or defendant sin POA courts is contained under ss. 1(1) of POA and in the Law Society Act.[24] 

Court Administration Staff

They work within the courthouse proving information and performing various administrative duties.

Court Clerk

They ensure that POA proceedings run smoothly by proving assistance to the judge or justice.

Court Security Officer

She is a special constable who has been appointed pursuant to s. 53(2) of the Police Service Act to assist with courthouse security and attend to specific incidents that may arise.

Prosecutor

He is an agent of the Attorney General who prosecutes the charges against the defendant, see s.1(1 of POA and Rule 4.01(5.1) of the Paralegal Rules of Conduct; ensures no-one wins or loses

Justices/Judge/Justice of the Peace

Justice means a provincial judge or JP; Judge means a provincial judge and wears a red sash; and JP is a magistrate who presides over proceedings in provincial offences court appointed under Access to Justice Act and wears a green sash.

Court Interpreter

She provides translation services to defendants who do not speak English; sanctioned pursuant to s.14 of the Charter and s.125 (2) of the Courts of Justice Act (CJA). According to s.84 of the POA, any individual who is competent may be allowed to provide translation services.

Witness

He has first-hand knowledge about the matter being prosecuted. If a witness refuses to attend the trial, they may be summoned for trial by swearing a summons before a JP pursuant to s.26 of the POA and then paying the witness a fee.

Court

The Ontario Court of Justice, which includes the provincial offences court.

Proper Service

A provincial offences officer must serve the charging document upon a defendant within 30 days of the charge. Proper service, see City of London v. (Lesley) Erdesz, [2009] O.J. No. 1008.

Limitation Period

The time allowed for an officer to lay a charge against a defendant, usually within 30 days under Part I of POA, and must file the certificate of offence notice in court as soon as possible or within 7 days after service has taken place. For time calculations, see Regulation 200 of CJA.

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[1] Natalie Alcoba, “With traffic ticket revenue mysteriously down by $30M, fingers point at Toronto Police Service,” The National Post, December 5th, 2014 (online)

[2] “Are police handing out traffic tickets to meet quotas?” CTV, Saturday, January 26th, 2013

[3] Ibid.

[4] http://www.opp.ca/bplan/english/oppplanen2005.pdf (retrieved: November 10, 2015)

[5] National Motorists Association Blog, “Traffic Tickets Are Big Business,” October 12th, 2007 -  https://www.motorists.org/blog/traffic-tickets-are-big-business/#sthash.vUuQ5O2w.dpuf

[6] Ibid.

[7] R.S.O. 1990, c. H.8

[8] Natalie Johnson, Sean Davidson and Kendra Mangione, “Toronto police vehicles caught going through red lights while not on emergency calls ,” CTV Toronto, October 26th, 2015

[9] R.S.O. 1990, c. P.33

[10] R.S.O. 1990, c. H.8

[11] R.S.O. 1990, c. C.25

[12] R.S.O. 1990, c. L.19

[13] R.S.O. 1990, c. O.1

[14] R.S.O. 1990, c. E.19

[15] R.S.O. 1990, c. T.21

[16] R.S.O. 1990, c. B.7

[17] R.S.O. 1990, c. D.16

[18] 2001, S.O. 2001, c.25

[19] S.C. 1999, c.33 (federal)

[20] 2001, S.C. 2001, c.26 (federal)

[21] R.S.C. 1985, c. F-14 (federal)

[22] Although under C.A.I.A for repeated driving without insurance may lead to the loss of freedoms. This aspect will be discussed thoroughly later in this book.

[23] R.S.C., 1985, c. C-46

[24] R.S.O. 1990, c.L.8