Contraventions Act Fund for Implementation of Language Obligations Evaluation

2. SUBJECT OF THE EVALUATION

The Implementation Fund is the subject of the evaluation. It is closely tied with the Contraventions Act. This section first includes a short profile of this legislation and then describes the logic underlying the Implementation Fund.

2.1. The Contraventions Act

In 1992, Parliament passed the Contraventions Act (hereinafter referred to as the Act) to recognize the distinction between criminal offences and regulatory offences and to establish a more effective framework to process those regulatory offences. The Act benefits Canadians and their justice system by authorizing voluntary payment and exempting guilty pleas from appearing in court. The court system can thereby invest resources in just holding trials. The Act also limits the legal consequences further to convictions pertaining to regulatory offences designated as contraventions. As section 4 of the Act states:

“4. The purposes of this Act are:

  • (a) to provide a procedure for the prosecution of contraventions that reflects the distinction between criminal offences and regulatory offences and that is in addition to the procedures set out in the Criminal Code for the prosecution of contraventions and other offences; and
  • (b) to alter or abolish the consequences in law of being convicted of a contravention, in light of that distinction.”

The federal government looked at two options for making prosecution of regulatory offences more effective: implement the procedure set out by the Contraventions Act and develop an administrative system to support its new scheme or use the provinces’ offence scheme, both the offence conviction procedure and their administrative system. It is the latter option that the federal government selected and that is reflected in the amendment to the Act in 1996. As a result, a federal regulatory offence designated as a contravention, such as using a pleasure craft with an insufficient number of life jackets, is prosecuted the same way as a provincial offence, such as driving a car without wearing a seatbelt. In both cases, the individual receives a ticket stating the options available: plead guilty and pay the fine or request a trial. Offenders who do not act on the ticket are subject to a default judgment.

The Contraventions Act provides for the following procedures:

  • The Governor in Council sets out in the Contraventions Regulations which federal regulatory offences are designated as “contraventions”;
  • The Act establishes a simpler prosecution scheme for regulatory offences designated as contraventions than the one provided for by the summary scheme included in the Criminal Code.

One of the central objectives of the Contraventions Act is to remove the impact of having a criminal record for individuals who are found guilty of certain regulatory offences designated as contraventions. The Act recognizes the distinction between regulatory offences and criminal offences and provides “to alter or abolish the consequences in law of being convicted of a contravention, in light of that distinction”. It is on this basis that the Contraventions Act states that, apart from exceptional circumstances, “a person who has been convicted of a contravention has not been convicted of a criminal offence” and that “a contravention does not constitute an offence for the purpose of the Criminal Records Act[4] except in convictions by indictment. This is a significant change, given the impact that a criminal record can have on an individual’s ability to practice certain professions, find a job or even travel.

2.2. Relevant Language Obligations

In 2001, the Federal Court was asked to clarify the extent of language rights applicable to federal contraventions.[5] That case involved Ontario, the first province to implement the Contraventions Act. To date, that decision is still the only one dealing with this issue.

According to the Court, the federal government may use provincial offence schemes to prosecute federal contraventions, but in doing so, it must ensure that all judicial activities and extra-judicial services relating to federal contraventions are provided in accordance with the language rights of Canadians contained in the Canadian Charter of Rights and Freedoms, the Criminal Code and the Official Languages Act.

After reviewing the existing structure in Ontario in 1997 for implementing the Contraventions Act, the Federal Court concluded that “in the measures that they have taken in enacting and applying the CA [Contraventions Act], the respondents [the federal government] violated the statutory language rights in the OLA [Official Languages Act], and the provisions of the Charter, with respect to the status and use of the two official languages in the province of Ontario”.[6]

The Court concluded that the federal government “must ensure that the quasi-constitutional language rights of all Canadian citizens are guaranteed by any measure taken to arrange for the implementation of the CA [Contraventions Act].”.[7] More specifically, the Federal Court ordered the following:

  • that the federal government “take the necessary measures, whether legislative, regulatory or otherwise, to ensure that the quasi-constitutional language 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 administering the prosecution of federal contraventions”;[8]
  • that any agreements signed between the federal government and the Ontario government include “a clear reference to the quasi-constitutional language rights provided in sections 530 and 530.1 of the Criminal Code and part IV of the OLA [Official Languages Act]”.[9]

Further to the Federal Court ruling, the Department of Justice initiated the process of modifying its Contraventions Act agreements to include new provisions addressing language rights requirements identified in the decision. To support this process, the Department received funding to establish the Implementation Fund, which is the subject of this evaluation.

2.3. Implementation Fund Logic

The logic of the Implementation Fund is shown in figure 1.A detailed description of it is as follows.

2.3.1. Objectives of the Implementation Fund

The purpose of the Implementation Fund is essentially to enable the federal government, and the provinces on its behalf, to fulfill its language obligations in implementing the Contraventions Act. More specifically, the main goal of the Implementation Fund is “to implement, in cooperation with the provinces, territories and municipalities, measures to permit the use of French and English within the scope of proceedings instituted under the Contraventions Act.” [10]

Concretely, this refers to the obligation to ensure compliance with:

  • in the case of judicial services, the language rights set out in section 530 and 530.1 of the Criminal Code, which pertain to the language of the accused;
  • in the case of extra-judicial services, the language obligations set out under Part IV of the Official Languages Act, which deal with communications with and services to the public, including the active offer.

2.3.2. Implementation Fund Activities and Outputs

The activities in the context of the Implementation Fund are undertaken both federally and provincially.[11]

At the federal level, the Department of Justice concludes agreements for the administration of the Contraventions Act, which contain clauses specifically setting out the language rights requirements established by the Criminal Code and the Official Languages Act that fall to the federal government, but which the provinces fulfill on the latter’s behalf. To ensure that these language rights are respected, the federal government is also required to amend, based on the jurisdictions concerned, the Application of Provincial Laws Regulations (SOR/96-312).

At the provincial level, the Implementation Fund provides funding for a range of activities considered necessary for fulfilling the language obligations that the provincial governments and their courts discharge on behalf of the federal government. It is expected that the list of activities funded in each jurisdiction will vary based on identified needs, but it should, in general, contain some of the following aspects:

  • the hiring and allocation of bilingual judicial (such as Justices of the Peace and Provincial Court Judges) and extra-judicial (such as court clerks) personnel;
  • the delivery of language training for judicial and extra-judicial personnel;
  • the installation and/or modification of equipment and systems in the courts or registries to provide access to bilingual judicial and extra-judicial personnel;
  • the supply of legal documentation (such as tickets) and related information (such as brochures) in both official languages;
  • the installation of bilingual signage in the court and registry.

2.3.3. Anticipated Outcomes

It is expected that the measures adopted by the provinces contribute to the achievement of a series of immediate, intermediate and long-term outcomes:

  • The activities funded must enable recipients to provide judicial and extra-judicial services in both official languages;
  • The Implementation Fund must ensure that the languages rights set out in the Criminal Code and the Official Languages Act are respected, which, in turn, assures the Department of Justice that the court order issued by the Federal Court has been adequately addressed;
  • The Implementation Fund must allow the federal government to enforce the Contraventions Act in partnerships with the provinces;
  • Finally, the Implementation Fund must give effect to the Department’s strategic objective of making the justice system relevant, accessible and responsive to the needs of Canadians, and to provide effective stewardship of that system.

2.3.4. Management Structure

The Office of Francophonie, Justice in Official Languages and Legal Dualism and the Innovations, Analysis and Integration Directorate of the Programs Branch jointly manage the Implementation Fund. These two entities handle the negotiation of agreements with the provinces, territories and municipal jurisdictions, as applicable. They review all funding requests to ensure that they comply with the terms and conditions of the Implementation Fund. Lastly, they handle the process for establishing the relevant regulatory framework to incorporate the provincial and territorial prosecution schemes into the federal scheme.

The provincial and territorial jurisdictions (typically the Attorney General) work closely with court managers to implement the activities funded by the Implementation Fund, including:

  • the printing and distributing of tickets in both official languages;
  • the provision of trials and other related activities in the official language chosen by the offender, in accordance with the Criminal Code and the Official Languages Act;
  • the monitoring and following up on any complaint concerning non-compliance with official languages requirements.

Provincial and territorial jurisdictions are also responsible for submitting performance reports to the Department of Justice. These reports include, among other things:

  • actual expenses incurred for implementing the activities relating to language obligations;
  • the number of tickets issued for contraventions for each statute and regulations covered by the Contraventions Regulations;
  • the amount of fines imposed;
  • the total amount of fines outstanding;
  • the number of trials held, including the number of trials held in French.

2.4. Financial Resources

The federal government allocated a total of $49.4 million to the Implementation Fund, covering the five fiscal years set out in the Roadmap for Linguistic Duality. Table 1 shows the distribution of those funds.

Table 1: Financial resources allocated to the Implementation Fund
Type of Vote Annual Amount Amount over 5 years
(2008-09 to 2012-13)

Vote 5 (agreements)

$9,094,900

$45,474,500

Vote 1 (operating expenditures)

$780,860

$3,904,300

Total

$9,875,760

$49,378,800

Source: administrative documents.

Figure 1: The Logic Model of the Implementation Fund

Figure 1: The Logic Model of the Implementation Fund

Description of Figure 1


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