Let’s be frank here. The provincial offences courts are not the hallowed halls of justice where most lawyers would prefer to spend their billable time.
To put it politely, they’re a zoo. Too many cases with too few resources translate into a crush of people, many of whom are acting for themselves in an atmosphere that teeters from mass confusion to utter chaos.
Part of the issue is that the province downloaded administration of provincial offences to the municipalities in 1999 with a proviso to look at streamlining procedures once the transfers were complete.
A working group was struck in 2006, and in January 2009 a consultation paper started making the rounds for comment.
The 31-page document has all kinds of recommendations, including greater use of audio and video to speed things up, an early resolution process, more licence suspensions, and increased fines.
There’s also a recommendation the Ontario Association of Chiefs of Police see as an opportunity to save a bundle of money.
It has endorsed and recently took to Queen’s Park a suggestion to change the Provincial Offences Act to allow police officers to testify via affidavit in some cases, which would negate the need and, more specifically, the cost of having them attend in person.
Marco Visentini, a lawyer and adviser to the police chiefs’ association who works for the Hamilton Police Service, says so many of the cases could count as administrative that the requirement for viva voce testimony is redundant and represents a huge drain on resources from overloaded municipal policing budgets.
“We’re talking low-level, technical offences such as speeding,” says Visentini, who notes the cumulative cost for all those officers hanging around court hallways is “in the millions of dollars.”
The association says the list of circumstances where written affidavit evidence should apply involves cases where “certified documents exist,” such as driver’s licences, graduated licensing contraventions, and permits. Further, it endorses amendments to eliminate a “challenge of the officer’s evidence.”
Instead of the officer receiving notification to appear in court, the defendant and prosecutor would show up on the first date to review the written allegations in front of a justice of the peace.
In cases in which the court finds live evidence would go further than written affidavits and “if the defence requires” the attendance of the officer, it could adjourn the matter.
Visentini says the public at large knows that taking a provincial offences summons to court is a “roll of the dice” since there’s a chance the officer involved could be sick or unavailable, thereby making the chances of a dismissal fairly good.
“With services like the Ontario Provincial Police on Highway 401, who cut across many jurisdictions, it’s a nightmare,” he notes, adding that if certified documents exist and evidence cannot be disputed, the testimony should be acceptable by affidavit.
If you see a massive red flag waving around this idea, you’re not alone.
Christopher Wayland, a criminal lawyer and civil litigator with McCarthy Tétrault LLP and vice chairman of the Ontario Bar Association’s criminal justice section, isn’t too comfortable with the concept.
“We discussed this with our OBA group, which includes crown prosecutors, and we were unanimously opposed,” he says.
While the idea seems expedient at first blush, it’s a slippery slope that brings into question where the line between indisputable evidence and administrative charges begins and ends.
Then there’s that sticky principle thing. Despite the widespread use and acceptance of photo radar and red-light cameras, it still rankles when a machine assembles and disseminates the evidence, doesn’t it?
In truth, I suspect we’ve been sliding down the slippery slope for some time. Between the cameras and the hoops the public must jump through to challenge a parking ticket or provincial offences notice, it’s been a slow but certain journey.
As Wayland quickly points out, at what point do we draw the line? Who or what test ascertains an “administrative matter,” and how long will it take for the system to address more serious matters through written evidence?
The adage that you never know what you’re going to find out until you ask the question is a golden principle in life as well as the courtroom, and defence lawyers are never shy about asking questions.
How then, asks Wayland, are defence counsel going to proceed when the evidence is on paper? Instead of streamlining the process, it will add more hurdles because in all of these cases, lawyers will have to ask for the court’s permission to call the officers in order to examine them on their written submissions.
I suppose you could say it’s a twist on letting the punishment fit the crime in that we’re supposed to tailor the process to fit the budget. But given that this is an area that touches most Ontarians’ lives directly, is this really the kind of state-controlled McJustice we want to deliver?
Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and political affairs. His e-mail address is [email protected].
