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Paralegal

AMPs will mean a watering down of the legal system

Ontario’s planned changes to the way provincial offences are prosecuted is an attack on the justice system and will mean that peoples’ rights will be violated because of an inability to launch a proper defence, says Toronto paralegal Marian Lippa.

“This is not a good plan and moving from a court-based system to an online one will hurt people,” she tells AdvocateDaily.com

“What about the right to present evidence? What about the right to appeal? This proposal ignores the fundamental principles of justice – basically your right to court is gone with this new system.”

Lippa, a bencher with the Law Society of Upper Canada, says there are widespread concerns about how the proposed new system would impact a person’s s. 11 Charter rights – the right to give full answer and defence.

In 2011, the LSUC's Access to Justice Committee made a report to convocation addressing its concerns and stating clearly that it is opposed to the introduction of AMPS for anything other than POA Part 2 offences, she notes.

Lippa makes the comments as the province seeks public input on a dramatically different system for dealing with infractions of provincial statutes – including traffic tickets – and municipal bylaws. 

The comment period opened March 3 and runs until April 14.

The proposed changes are outlined in a report on the Ministry of the Attorney General website.

The ministry is proposing an online dispute system (called an Administrative Monetary Penalty system – AMP) for those offences that don’t carry the potential for jail time, excluding those involving death or serious harm.

It would mean that those accused of infractions could pay online or dispute the charge through an online process. From there, a resolution process will be managed by independent hearing officers, rather than judicial officers. The person wouldn’t need to go to court.

The current process for disputing offences under the Provincial Offences Act requires people to appear in court – a system the report says involves “significant court and law enforcement resources” that could be “redirected” to other needs.

In 2014, about 1.6 million provincial offences charges were laid under provincial statues and municipal bylaws, a large proportion of which are traffic matters; these offences used about 17 per cent of all court time at the Ontario Court of Justice, says the report. 

The Ministry of the Attorney General says Ontario isn't alone in looking at this concept and points to British Columbia, which passed legislation in 2012 to set up an AMP system, which has not yet been implemented, and Alberta, which is also investigating it.

Lippa says members of the public may see the potential to save money on court costs and believe it’s a positive step without realizing the long-term implications.

She notes that while the current system involves a justice of the peace, a prosecutor and the enforcement officer who laid the charge, she says it is precisely those elements that make it possible for a person to get their day in court to mount a defence. 

She says if the government is so concerned about the public's time and the expense to request a trial, a great remedy would be to allow them to request a trial online.

Lippa says the changes, if adopted, will affect every driver in Ontario.

"An Administrative Monetary Penalty essentially allows an officer to charge a defendant with an offence and not have to provide any proof whatsoever of any offence having been committed," she says. "The court now deals with two types of offences – strict liability and absolute liability – and those speak to the type of defence that may be raised."

Lippa says no appeal can be heard on a decision where no facts are presented.

"This so-called online resolution with a hearings officer is to reduce the amount of the fine and perhaps deal with consideration of time to pay," she says. "What about an individual's Charter right to be considered innocent until proven guilty pursuant to s.11(d)? What about the rights of a defendant to face his or her accuser and put them to the test of proving the case beyond a reasonable doubt? What about giving so much power to a police officer or other designated person of power who can issue these AMPS without any proof or standard of investigation to be upheld?"

Lippa says people who work in the court system have many concerns about the proposal; they have questions about the training of the independent hearing officers who will be used instead of judicial officers.

It's worrisome that the report does not detail how such a system would operate, nor does it describe the elements of an online adjudication system and how people could dispute a charge, she says.

Lippa points to concerns about how the report is "ambiguous" and doesn't outline how a conviction will be registered. There are also questions about how one would obtain disclosure – the evidence against them – under such a system. 

"Trucking companies will face issues with their CVOR (Commercial Vehicle Operators Registration) certification when their drivers are convicted for driving infractions that directly affect the company's CVOR record and they will have no recourse," she says. "The cost of operating will surely increase to cover these costs and the consumer will again be faced with higher costs for products."

Lippa says for those charged with careless driving when they are involved in a collision, they will have no means to fight the ticket, which is issued by an officer who didn't witness the crash and relies on statements of each driver.

And if the system is simply one focused on monetary penalties, Lippa questions how  the system will handle cases involving someone who chooses to operate outside of the regulatory framework, including driving without a licence or driving without insurance.

Lippa says it’s a slippery slope, noting that these proposed changes, if they become law, would open the door to other offences being dealt with in this manner.

"It will only be a matter of time before Ontario deals with impaired driving cases in the same manner as British Columbia," she says.

In 2010, that province passed a law so that when a driver blows a "warn" or a "fail" on a roadside screening device, he or she faces automatic penalties that include a driving ban, seizure of the vehicle, and fines and fees for storage, towing, and getting the driver’s license returned. After a court challenge, the government amended the legislation so that police are requred to tell drivers they can ask for a second test on a different machine, and that they can ask for a review of the test through the Office of the Superintendent of Motor Vehicles.

In addition to the Highway Traffic Act offences, the changes would also apply to other statutes that fall under the Provincial Offences Act, including the Compulsory Automobile Insurance Act, Clean Water Act, Pesticides Act, Liquor Licence Act, Smoke Free Ontario Act, Trespass to Property Act, Family Law Act (specifically court-ordered restraining orders) and various municipal bylaws.

"And what about those people who don't have access to a computer, how will they dispute a charge – this is an access to justice issue," Lippa says.  

 

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