Contraventions Act Fund for Implementation of Language Obligations Evaluation

4. MAIN EVALUATION FINDINGS

This section describes the main findings from the evaluation. The information is grouped by the topics of the relevance, effectiveness, and efficiency and economy of the Implementation Fund.

4.1. Relevance

The relevance of the Implementation Fund is inseparably linked to the more general relevance of implementing the Contraventions Act in the provinces. In fact, the only reason why the Implementation Fund exists is to support the implementation of the Contraventions Act across Canada, in partnership with the provinces.

4.1.1. Supporting an Accessible, Efficient and Fair System of Justice

Ensuring that the Canadian justice system is accessible is an objective requiring the active involvement of several institutions in Canada, including the courts, the provincial and territorial governments and, obviously, the Department of Justice. In fact, one component of the Department’s mission is to “support the Minister of Justice in working to ensure that Canada is a just and law-abiding society with an accessible, efficient and fair system of justice”.[12] The Department also actively promotes rights under the Canadian constitution, which is based on the fundamental principle of the rule of law.

These objectives appear in the Department’s Program Activity Architecture (PAA). As such, the first strategic outcome of the PAA is to maintain “a fair, relevant, and accessible justice system that reflects Canadian values”, from which stems the activity covering “justice policies, laws and programs”, including those specifically dealing with access to justice. The Department’s planning for the current fiscal year regarding access to justice also includes a commitment to “continue to work with provincial/territorial governments to ensure successful implementation of the Contraventions Act.[13]

The Department of Justice has been working at implementing the Contraventions Act for a number of years now. The experience acquired and documented to date, especially through the evaluation of this legislation which the Department completed in 2010 (Department of Justice Canada, 2010), deepens the understanding of the importance of the procedure associated with federal contraventions to ensure that the Canadian justice system is fair and efficient:

  • Being unable to issue tickets, many law enforcement officers are hesitant to proceed with a prosecution through the summary conviction process, since the latter appears out of proportion to the nature of the offence. The enforcement officer may then issue the offender a warning, which has no legal value, or simply disregard the offence. However, it is important, for the sake of the rule of law, that the statutes and regulations passed by Canadian Parliament be systematically implemented;
  • For the offender, ending up with a criminal record for committing a regulatory offence again seems out of proportion. The Contraventions Act removes all doubt in this connection by eliminating this consequence;
  • For the justice system, only having to try cases where a contravention is contested enables it to make better use of these limited resources.

4.1.2. Why Use the Provincial Schemes?

In order to implement a system of transcripts for the application of federal contraventions, the Act provides for two possibilities: the establishment of a new federal structure, or the use of existing provincial prosecution schemes. Parliament chose the second of these, and amended the Act in 1996 to empower the federal government to use provincial structures.

Using the provinces’ prosecution schemes is a much more efficient approach for implementing the Contraventions Act than the other option provided for by the Act, which assumes that an independent federal scheme is established in parallel with the one in place for provincial offences. As stated in the Contraventions Act evaluation, establishing a separate system for federal contraventions would result in considerable costs, in addition to creating confusion, especially among offenders and enforcement officers.[14]

The reason why the federal government had to promote the Implementation Fund stems from its decision to exercise the option set out in the Contraventions Act to use the provincial governments’ prosecution schemes. Thus, the fact that the provincial governments act on behalf of the federal government obliges them to respect the language rights that apply in this context.

4.1.3. Fulfilling the Language Obligations Associated with the Ticketing Scheme

In its 2001 decision, the Federal Court left no room for doubt: if unable to fulfill the language obligations set out in the Criminal Code and the Official Languages Act, the government should end its existing strategy for implementing the Contraventions Act. Should it fail to follow these instructions, the federal government would no longer be able to use the provincial schemes and would have to set up a new federal structure, which would not be an efficient way of processing federal tickets. It is therefore in the government’s interest to do what is necessary for the provincial governments to be able to process tickets in a way that fulfills the language obligations applicable to a federal prosecution scheme. It is to this end that the Department provides provisions in the agreements that it signs with the provincial governments describing those obligations and financially supporting measures for fulfilling those obligations.

Since its sole object is the language obligations connected with implementing the Contraventions Act, its reason therefore is, first and foremost, to enable the federal government to implement its prosecution scheme provided for in the Contraventions Act in partnership with the provinces. As such, the Implementation Fund is intrinsically linked with the Contraventions Act. From a practical perspective, the Department of Justice has little choice but to keep the Implementation Fund for as long as it intends to keep the Act in its current implementation framework in the provinces. Thus, by extension, if the Contraventions Act were to be repealed, then there would no longer be a rationale for the Implementation Fund.

4.2. Effectiveness

Overall, the Implementation Fund has proven to be an effective tool for respecting the Contraventions Act language rights. The Implementation Fund’s financial resources were allocated to funding recipients based on the obligations identified by the federal government and the admissibility of the measures they identified. Those investments helped carry out activities for ensuring that language rights are respected in judicial and extra-judicial services relating to the Contraventions Act. This subsection outlines the results in more detail.

4.2.1. Implementation of the Contraventions Act

As mentioned in subsection 2.2, further to a Federal Court decision in 2001, the Department changed the Contraventions Act agreements with the provinces to include provisions on the language rights requirements stated in the decision. At the time of this evaluation, seven provinces (Prince Edward Island, Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba and British Columbia) were prosecuting and processing federal contraventions through their respective prosecution schemes, while complying with the Contraventions Act language obligations. Although those provinces are fulfilling these language obligations, some of them are not using the resources provided for by the Implementation Fund. First, New Brunswick, being the only officially bilingual Canadian province, already respects the constitutional language rights that apply to federal contraventions. Quebec has a bilingual penal system which is applied to the language obligations under the Contraventions Act without drawing on the Implementation Fund. In the other jurisdictions (Newfoundland and Labrador, Saskatchewan, Alberta, Yukon, Northwest Territories and Nunavut), the summary conviction scheme is still the only way to prosecute federal contraventions. Table 2 summarizes this situation in Canada.

The challenge facing the Department is extending the implementation of the Contraventions Act prosecution scheme to these other jurisdictions. At the time of the evaluation, steps in this direction had been taken. Discussions are under way with the governments of Newfoundland and Labrador, Saskatchewan and the Northwest Territories, although no agreement in principle has been signed to date. The data gathered in the context of this evaluation indicate that some of these governments have still not been able to mobilize the resources required to negotiate an agreement under the Contraventions Act.

The implementation of the Contraventions Act itself is beyond the scope of this evaluation. This was covered in a separate evaluation in 2010. However, partial implementation of the Contraventions Act will not likely be permanently sustainable, since that it could be subject to legal risks associated with non-uniform application of federal law. This is why the Department is continuing actions with the other jurisdictions where the Act is still not enforced. As these negotiations progress, the Department of Justice will need to resort to the Implementation Fund to finance the respect of linguistic rights. Indeed, it will be necessary to provide to provincial and territorial governments with which agreements still have to be signed, the opportunity to provide services in both official languages, on behalf of the federal government.

Table 2: Implementation of the Contraventions Act and support of the Implementation Fund
Components NL PEI[15] NS NB QC ONT MB SK AB BC YK NT NU
Activities supported by the Implementation Fund   X X     X X     X      
Contraventions Act applicable   X X X X X X     X      
Summary conviction scheme is still the only way to prosecute federal contraventions X             X X   X X X

Source: administrative documents.

It should be noted that the Department of Justice also signed a contribution agreement with the municipality of Mississauga for activities implemented at Toronto Pearson International Airport. The provisions of the Implementation Fund agreements are intended to ensure that the Contraventions Act language rights are respected in the processing of parking infractions.

4.2.2. Measures Proposed by the Provinces

A province’s capacity to provide, on behalf of the federal government, bilingual services specifically connected with the Contraventions Act requirements varies from one region to another. To determine which activities will be covered under a contribution agreement with the federal government, each provincial government conducts its own needs analysis.

Due to the type of judicial activities and extra-judicial services that are to be provided in implementing the Contraventions Act, needs normally fall into the following areas:

  • Salary-related and travel expenses of Justices of the Peace or Provincial Court Judges, who are responsible for presiding over trials connected with federal contraventions;
  • Salary-related and travel expenses of court support staff, such as clerks or stenographers;[16]
  • Language training for justice professionals (judges, clerks, etc.) and extra-judicial personnel (court registries, etc.) called upon to serve individuals who have received a ticket for a federal contravention;
  • The technological equipment or services supporting the judicial activities and extra-judicial services offered for the purpose of the Contraventions Act. This may include changes to provincial data banks to be able to fully document the services provided in both official languages in connection with federal contraventions, such as the number of trials conducted in French;
  • Bilingual signage and document translation.

These types of activities are directly reflected in the terms and conditions of the Implementation Fund, which specifically authorize recipients to submit expenses of this nature. The Department reviews all funding requests to ensure that they comply with the terms and conditions of the Implementation Fund and the spirit of implementing the ticketing scheme. In fact, the data gathered in the context of this evaluation confirm that the activities funded by the Implementation Fund do comply with these terms and conditions. Moreover, the provincial governments consulted as part of this evaluation indicated that the terms and conditions of the Implementation Fund enable them to adequately meet their needs.

4.2.3. Allocation of Resources

Allocation of the financial resources associated with the Implementation Fund has historically presented certain challenges for the Department of Justice:

  • First, the Contraventions Act is an exceptional statutory regime in that there is no precedent for accurately estimating the costs connected with fulfilling the language obligations associated with it. In many respects, stakeholders have had to acquire some experience before being able to estimate, with some degree of accuracy, the resources that would prove necessary for achieving the intended outcomes of the Federal Court ruling.
  • Also, the Implementation Fund has a base budget that needs to cover the activities connected with the language obligations of all provinces and territories. However, at the time of this evaluation, the Department of Justice was funding activities in five provinces. Assuming that Quebec and New Brunswick will not need financial support for fulfilling all the Contraventions Act language obligations, there are still three other provinces and three territories where the Act has still not been implemented. Financial resources will necessarily be required to support these other jurisdictions so that they are able to respect, while acting on behalf of the federal government, the applicable language obligations.

As Table 3 shows, of the $45.5 million allocated to Vote 5 for agreements with the provinces during the five years covered by the Roadmap for Linguistic Duality, the Department of Justice committed $24.2 million through the six agreements in place, leaving $21.2 million unallocated. It is through these surpluses that prospective agreements with the provinces and territories will be funded.

Table 3: Allocation of the Implementation Fund (vote 5 only)
Fiscal Year Amounts Allocated (Roadmap) Amounts Committed (6 agreements)* Actual Spending
* The amounts include the recent agreement with Prince Edward Island
2008-09 $9,094,900 $4,768,480 $2,892,455
2009-10 $9,094,900 $4,773,439 $3,156,589
2010-11 $9,094,900 $4,795,055 not available
2011-12 $9,094,900 $4,929,750 not available
2012-13 $9,094,900 $5,015,434 not available
Total $45,474,500 $24,282,158  

Source: administrative data, signed agreements and activity reports.

As Table 4 shows, another challenge arising from the findings previously outlined is the fact that the actual spending of some provinces that signed an agreement is considerably less than what had been provided for in their agreement:

  • Ontario, in particular, spent roughly 60% of the amount provided for in its agreement during the first two fiscal years covered by this evaluation (2008-09 and 2009-10);  
  • Nova Scotia’s, Manitoba’s and British Columbia’s actual spending largely reflected the amounts provided for in their respective agreements.

Table 4: Anticipated and actual spending

Ontario
  2008-09 2009-10
Amount provided for in the agreement $2,800,000 $2,800,000
Actual spending $1,592,071 $1,678,088
Difference $1,207,929 $1,121,912
Nova Scotia
  2008-09 2009-10
Amount provided for in the agreement $912 900 $915,100
Actual spending $753,300[17] $621,158
Difference $159,600 $293,942
Manitoba
  2008-09 2009-10
Amount provided for in the agreement $300,000 $300,000
Actual spending $235,047 $273,086
Difference $64,953 $26,914
British Columbia
  2008-09 2009-10
Amount provided for in the agreement $600,100 $663,600
Actual spending $492,203 $545,000[18]
Difference $107,897 $118,600

Source: administrative data and signed agreements.

4.2.4. Activity Reports

The five jurisdictions that, at the time of the evaluation, had been Implementation Fund recipients essentially carried out the activities set out in their contribution agreements:

  • At the time of the evaluation, Nova Scotia, Manitoba, British Columbia and the municipality of Mississauga had submitted their activity reports for the first three years of the Roadmap (2008-09, 2009-10 and 2010-11);
  • At the time of the evaluation, Ontario submitted only the first two activity reports for the 2008-09 and 2009-10 fiscal years. The 2010-11 report was presented to the Department on March 5, 2012. However, the information report could not be taken into consideration for the present evaluation.

The activity reports presented to date are complete and include data on the quantity of tickets issued, the federal laws and regulations they are connected with, as well as the quantity of tickets contested in court, including the number of trials in either official language. These reports also confirm that the bilingual positions for the judicial activities and extra-judicial services connected with federal contraventions have been filled, that the language training has been given, and that the other supporting activities described in each enforcement agreement have been carried out. The consultations held with the provincial governments also revealed that they had no substantial hurdles to overcome in carrying out their activities.

4.2.5. Provision of Services in Both Official Languages

At the time of the evaluation, each of the recipient provincial governments of the Implementation Fund had established the framework required by the Contraventions Act language obligations:

  • The Application of Provincial Laws Regulations includes, for each province, a direct reference to the language obligations set out in section 530 and paragraphs 530.1(a) to (h) of the Criminal Code;
  • The signed agreements between the federal government and the provincial governments specifically define the language obligations pertaining to the judicial activities and extra-judicial services that must be provided in both official languages.

Based on the identified obligations, the provincial governments undertook, through the Implementation Fund, to implement some activities for ensuring that they have the capacity to provide bilingual services under the implementation of the Contraventions Act.

The activities funded to date by the Implementation Fund cover the two types of services presented earlier: judicial services and extra-judicial services. Judicial services involve the language of the accused during activities in Court; whereas extra-judicial services involve communication with and services offered to the public, including the active offer. The provinces are expected to have these two types of activity comply with the Contraventions Act language obligations.

In Nova Scotia, in the case of judicial services, the Implementation Fund helped keep a bilingual Provincial Court Judge, a Justice of the Peace and a stenographer in place. In the case of extra-judicial services, six bilingual provincial court client service positions were funded (Halifax, Dartmouth, Digby, Yarmouth, Port Hawkesbury and one service coordination position in French). Bilingual signs were also installed in five justice centres and in three satellite courts. The Implementation Fund also supported language training initiatives for bilingual court officials and judicial support staff.

In Ontario, the salary-related and travel expenses of judicial personnel and judicial support personnel were funded by the Implementation Fund. The latter also helped provide language training for those personnel. Specifically, these initiatives were implemented at the Central Office of the Attorney General of Ontario (Toronto) and in seven municipalities (Brampton, Burlington, Whitby, Newmarket, Orangeville, St. Thomas and Kitchener). 

In Manitoba, the Implementation Fund also covered the salary-related and travel expenses of judicial personnel and judicial support personnel. In particular, one bilingual judicial services generalist position is in place at the St. Pierre-Jolys service centre. The Implementation Fund also helps maintain video links to the St. Pierre-Jolys service centre. This technology tool, specific to Manitoba, makes it possible to appear remotely before a Justice of the Peace to plead guilty and explain extenuating circumstances.

In British Columbia, judicial and extra-judicial service positions were maintained. Language training was also given. In addition to bilingual signage installation and Website management, the Implementation Fund helped maintain a toll-free phone line and produce bilingual forms.

In Mississauga, the Implementation Fund helps fund a bilingual position at the first attendance facility and another at the administrative offices responsible for enforcing parking regulations. These positions essentially prepare correspondence and answer phone calls regarding parking infractions at Toronto Pearson International Airport. 

In addition, conducting the activities set out in the contribution agreements signed with the provinces under the Contraventions Act makes it possible to provide bilingual services during the key stages of ticket processing. In the provinces where agreements were signed and implemented, the following outcomes were identified:

  • offenders receive a pre-printed ticket in both official languages;
  • offenders who wish to do so can contact the relevant authorities in the language of their choice for receiving additional information about the ticket they received;
  • offenders who wish to do so can choose to plead guilty to the offence and pay the required amount. Where this option exists provincially, litigants can also appear before a bilingual Justice of the Peace or a Provincial Court Judge to plead guilty and present extenuating circumstances to reduce the prescribed fine;
  • Lastly, litigants who wish to do so can choose to plead not guilty to the ticketed infraction and appear in court, in the language of their choice.

On a more basic level, the outcomes achieved to date through the Implementation Fund have enabled the federal government to maintain a regulatory infraction prosecution scheme that provides enforcement officers with an effective instrument and that helps achieve the equity and effectiveness objectives contemplated when the Contraventions Act was passed.

4.2.6. Respecting Language Rights

The activities undertaken by the provinces aim to ensure that the Contraventions Act language rights are respected. This subsection highlighted the organizational capacity of the Implementation Fund’s funding recipients to identify their language requirements and undertake activities for meeting those needs. However, to measure the impact of those initiatives, it is important to measure the usage rate of the judicial and extra-judicial services as well as the complaints submitted by the users of those services.

Judicial services involve activities conducted in Court. During the period covered by this evaluation, contravention tickets were issued in each province receiving funding from the Implementation Fund. Two main options are available to offenders: plead guilty and pay the fine indicated on the ticket or plead not guilty and ask that a trial be held. When an offender asks for a trial, he/she has the right to its being conducted in the official language of his/her choice. At the time of this evaluation, Ontario is the only province that held bilingual trials connected with federal contraventions. Even though the need did not arise in the three other funding recipients of the Implementation Fund, their organizational capacity for providing judicial services that fulfill the Contraventions Act language obligations was sufficient for responding to such requests.

Table 5 is a summary, by province and by fiscal year, of the number of tickets issued, the number of trials held in the majority official language (English), as well as the number of trials held in the minority official language (French). 

Table 5: Number of tickets issued and number of trials held by province and by fiscal year

2008-09
  Nova Scotia Ontario Manitoba British Columbia
Contravention tickets issued 197 10,959 422 1,960
Trials held in the majority official language (English) 6 2,295 12 36
Trials held in the minority official language (French) 0 17 0 0
2009-10
  Nova Scotia Ontario Manitoba British Columbia
Contravention tickets issued 355 10,850 360 1,815
Trials held in the majority official language (English) 13 1,514 7 25
Trials held in the minority official language (French) 0 36 0 0
2010-11
  Nova Scotia Ontario Manitoba British Columbia
Contravention tickets issued 488 not available 282 2,068
Trials held in the majority official language (English) 29 not available 7 43
Trials held in the minority official language (French) 0 not available 0 0

Source: administrative data

Extra-judicial services involve all services provided out of court, such as requests for information, bilingual signage and contravention ticket payment. Given that the provincial jurisdictions do not exclusively handle federal contraventions, but also provincial offenses (the volume of which is much greater), it is difficult to predict the request for bilingual services related to federal contraventions. Although each recipient entity of the Implementation Fund is called upon for bilingual extra-judicial services, this evaluation was unable to measure the request rate for bilingual services where federal contraventions are involved.

Even so, at the time of the evaluation, no litigant complaints pertaining to the Contraventions Act language obligations, either with judicial or extra-judicial services, had been conveyed to the Department of Justice.

4.3. Efficiency and Economy

To date, the administration of the Implementation Fund has been efficient and economical. On the whole, the activities funded reflect generally recognized practices in the delivery of bilingual services in a judicial context. The terms and conditions of the Implementation Fund, the allocation of resources and the activities undertaken are consistent and aligned with generally recognized practices. These management practices have enabled the Department to invest resources in effective activities, while achieving its objectives in relation to language obligations under the Contraventions Act. Moreover, no more economical alternative was identified in the course of this evaluation. The relevant findings are presented in this subsection.

4.3.1. Generally Recognized Practices and Terms and Conditions of the Implementation Fund  

Bilingual services in a judicial context operate at two levels: judicial services (in court) and extra-judicial services (outside the court). Without repeating the detailed discussion of these two aspects presented in subsection 2.3, the generally recognized practices for the delivery of bilingual services in a judicial context relate to the hiring and language training of judicial staff, the hiring and language training of judicial support staff, and the development of bilingual tools to support judicial and extra-judicial services (such as ticket printing, signage and communication tools).

The Department established terms and conditions defining eligible expenses for the purposes of the Fund. These reflect generally recognized practices for the delivery of bilingual services in a judicial context. The Department also reviews each project application in order to ensure that resources will be used for purposes specifically associated with the Contraventions Act.

The current evaluation noted that activities funded through the Implementation Fund are closely aligned with the terms and conditions and are thus representative of generally recognized practices for the delivery of bilingual services in a judicial context. In practical terms, as outlined in subsection 4.2, the Implementation Fund has contributed in partnership with the provinces to the hiring, retention and training of judicial staff and judicial support staff and to the development of  bilingual tools to support judicial and extra-judicial services. Funding recipients have also been able to execute planned activities to strengthen their capacity to respect language rights in relation to the Contraventions Act within the budgets provided. Table 6 illustrates these findings.

Table 6:

Percentage of the annual budget spent
  NS ON MB BC
2008-09 83%[19] 57% 78% 82%
2009-10 68% 60% 91% 82%[20]
2010-11 71% n/a 89% 76%
2011-12 n/a n/a n/a n/a
2012-13 n/a n/a n/a n/a
Generally recognized practices funded
(as reflected in the terms and conditions of the Implementation Fund)
  NS ON MB BC
Hiring and language training of judicial staff X X X X
Hiring and language training of judicial support staff X X X X
Bilingual tools to support judicial and extra-judicial services X X X X
Capacity to meet language obligations under the Contraventions Act
  NS ON MB BC
Judicial services[21] X X X X
Extra-judicial services[22] X X X X

Source: administrative documents

It should be noted that the Implementation Fund terms and conditions were changed in 2010-11 to clarify them, make them easier to understand, align them with the Treasury Board Secretariat’s Policy on Transfer Payments[23] and address the various needs of recipients. The amended terms and conditions also aim to facilitate negotiations with the provincial, territorial and municipal jurisdictions.

Naturally, a provincial government’s capacity to provide bilingual services in the context of a federal contravention may, by extension, make it possible to further provide bilingual services in the context of a penal or criminal offence. This, then, is an unintended, yet positive, outcome arising from the Implementation Fund.

4.3.2. Allocated Resources

In terms of the resources allocated to funding agreements, the Department of Justice has, to date, invested only a portion of the amounts allocated under the Roadmap for Linguistic Duality. Thus, during the first two fiscal years covered by this evaluation (2008-09 and 2009-10), the provinces’ actual spending represented 33% of the total amount allocated for this purpose under the Roadmap for Linguistic Duality. This evaluation found that this investment addressed the needs of the funding recipients for ensuring their organizational capacity to provide bilingual services specifically connected with the Contraventions Act requirements.

Implementing the Contraventions Act across the country is going to require additional funding within the existing budget. Three provinces and three territories have yet to reach an agreement with the Department of Justice authorizing the implementation of the Contraventions Act. The specific level of resources required by those agreements will be known only when the latter have been negotiated. In the meantime, the Department must continue with the actions undertaken, bearing in mind that the timeframe required for signing those agreements will be largely determined by the provinces and territories.

4.3.3. Alternatives

There are no economical alternatives to the current scheme. The only plausible alternative is implementing the independent federal scheme set out in the Contraventions Act. That solution, which envisioned the development of a separate federal administrative function, would generate much greater costs than those currently connected with the Implementation Fund. It is important to remember that, apart from the Fund, the current system does not result in costs for either a provincial government or the federal government, since the revenues generated through the payment of ticket fines added to administrative fees collected by the province cover the costs incurred by the province for implementing the Contraventions Act, with the surpluses then being shared equally between the two levels of government.


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