April 22, 2020
Hon. Doug DowneyAttorney General of Ontario11th Floor, 720 Bay StreetToronto, ON M7A 2S9
Hon. Sylvia JonesSolicitor General of Ontario25 Grosvenor StreetToronto, ON M7A 1Y6
Hon. Steve ClarkMinister of Municipal Affairs and Housing17th Floor, 777 Bay StreetToronto, ON M5G 2E5
RE: Emerg Mngt Order Needed for POA Due Process
I am writing on behalf of the Canadian Civil Liberties Association (CCLA) to request that you take urgent action to protect the due process rights of all people in Ontario. In particular, we ask that the province pass a Regulation pursuant to the Emergency Management and Civil Protection Act that establishes in clear and unequivocal terms that individuals who have been charged under the Provincial Offences Act (for violating an emergency order or by-law, or any other infraction) do not need to take any steps in relation to their tickets until the current emergency orders are no longer in effect.
Moreover, the province must require compliance and notice by all municipalities to anyone charged of this procedure. Unfortunately, in the rush to pass and enforce emergency orders and by-laws, the province and municipalities have failed to ensure that procedures are in place for individuals charged under these orders. Instead of establishing a COVID offence process first, after which enforcement took place, municipalities and provincial officials did the opposite. With the administration of justice all but frozen by COVID, charging and ticketing people means they have no due process, no fundamental justice. This requires urgent correction, none of which will rectify those charges rendered unconstitutional by the Province’s failure to get the horse before the cart.
Currently, under section 9 of the Provincial Offences Act, an individual is deemed not to wish to dispute the charge if at least 15 days have elapsed after they were served with the offence notice and they have not given notice of an intention to appear, requested a meeting with the prosecutor or pled guilty. However, in many cases the means by which an individual must give notice of their intention to appear is by delivering the notice to a court office. Currently, almost all of these offices are closed, and your government continues to urge people to self-isolate at home. The tickets that are being given out by police and by-law officers do not contain any information about how to contest a ticket in light of current circumstances. This is resulting in confusion and frustration for those who do wish to appear to contest their tickets and has prejudiced those who have paid their tickets fearing the consequences of delay.
We have heard from many individuals who received a ticket even though they were engaged in social distancing and were not in proximity to anyone outside of their household. The fines for violations are severe for most, particularly at a time when many Ontarians are struggling to meet their basic needs. Innocent people may be paying fines to avoid unknown consequences. Wrongful POA convictions are likely taking place as we speak.
We appreciate that the province took steps early on to extend limitation periods in the province and that Ontario Regulation 73/20 also purports to suspend “any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding”. Unfortunately, people are not advised of this when they receive a ticket, which itself contradicts that regulation. Nor has the Premier or any Minister sought to highlight this important fact publicly, amid all the talk about policing new COVID orders. Besides not educating the public, the ticket information is often incorrect, as well as information on some municipality websites about the need to attend in person within 15 days to contest a ticket. The confusion and frustration that many people are experiencing is understandable. The result is that these charges may be voidable.
Steps must be taken to clarify and confirm that those wishing to dispute their tickets do not need to take any steps to do so until after the current emergency declarations are no longer in force. In particular, we urge the province to pass a Regulation that clarifies this or to amend Regulation 73/20 so that the 15-day period to give notice of an intention to appear does not begin to run until the day after the emergency declarations are no longer in force.
We also urge the Minister of Municipal Affairs and Housing and the Solicitor General to take steps so that municipalities, police officers and by-law enforcement officers are all aware that the time for contesting a ticket does not begin to run until the emergency orders are no longer in place and suggest processes for making this clear to residents. For example, tickets should be accompanied with a notice that explains the process for contesting a ticket and emphasizes that no steps need to be taken until after the emergency declarations have expired. Municipal websites should also be updated to reflect this.
While some municipalities have taken steps to do this, most have not, and there are inconsistencies in approach. The City of Ottawa has only recently noted on its website that trial requests are not currently available due to closures, but also states that those who would like to request a trial date for when the court offices open should complete an online Notice of Intention to Appear form. It is unclear if a failure to complete this online form (at all or within a specified period) will mean that an individual is deemed not to contest a ticket. The City of Toronto’s website states that if you wish to request a trial, all time limits are extended, people should hold on to their tickets and continue to check the website, and that people can attend at the court location on their ticket when the court offices re-open. It is unclear if an individual must attend immediately on the first day the court office opens, or if this is when time starts to run.
Our province has seen the rapid and unprecedented passage of many new laws and regulations in the last few weeks, The vast majority of Ontarians are doing their part to help stop the spread of COVID-19, but many residents are, understandably, having trouble keeping up with all of the new rules they are required to follow. At a minimum, the province should have ensured that a fair and clear process was in place before enforcement action began. Since this did not happen, the province must take steps now so that those who wish to contest their tickets are made aware of the means by which they can do so, and the Attorney General must consider the legal status of those charges laid, those tickets issued, where no due process was available.
We would welcome the opportunity to discuss this matter further.
Cara Faith ZwibelDirector, Fundamental Freedoms Program
Back to all updates