OFM - TG-02-2009: Commencing Proceedings Under Part I of the Provincial Offences Act

Office of the Fire Marshal and Emergency Management

224679-1.jpg

OFMEM-TG-02-2009

O

F

M

E

M

GUIDELINE

Commencing Proceedings Under Part I of the Provincial Offences Act

June 2009

[Revised – December, 2010]
[Revised – May, 2015]

TABLE OF CONTENTS

SECTION

Abstract

1.0 Scope

2.0 Background

3.0 Provincial Offences Officers

4.0 Commencing A Proceeding Under Part I

5.0 Issuing A Summons

6.0 Provincial Offences Officer Not to Act as an Agent

7.0 The Defendant's Options

8.0 Penalty

9.0 Obtaining a Supply of Tickets

10.0 Record Retention

Appendix A – Sample Completed Certificate of Offence

Appendix B – Form 3

Appendix C – Form 4

June 2009 [Revisions: December, 2010 & May, 2015]

OFMEM Section: Field and Advisory Services 1-800-565-1842

The reproduction of this guideline for non-commercial purposes is permitted and encouraged. Permission to reproduce the guideline for commercial purposes must be obtained from the Office of the Fire Marshal and Emergency Management, Ontario.

Abstract

Assistants to the Fire Marshal have been appointed as provincial offences officers under the Provincial Offences Act. This designation authorizes them to commence proceedings under Part I of the Provincial Offences Act for offences under the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 for non-compliance with the Fire Code (O. Reg. 213/07, as amended) for which short form wording and set fines have been established.

This guideline is intended to assist these provincial offences officers by providing a step-by-step guide to follow while initiating a proceeding.

1.0 SCOPE

Only offences which have approved short form wording and set fines can be commenced by Certificate of Offence in a Part I proceeding. A set fine has been prescribed by the Chief Judge, Provincial Division for each of these offences. Alternatively, anyone can institute a proceeding for these violations under Part III of the Provincial Offences Act by swearing an information. Set fines can be found at: www.ontariocourts.on.ca.

This guideline will assist a provincial offences officer in initiating a proceeding under Part I of the Provincial Offences Act. The guideline provides a variety of steps that may be taken depending upon the circumstances (i.e. issuing an offence notice or summons on the offence date, after the offence date, on a corporation, on a person, etc.).

2.0 BACKGROUND

Prosecution for Part I offences can be initiated by a provincial offences officer under Part I of the Provincial Offences Act.

Persons designated as an inspector under the provisions of the Fire Protection and Prevention Act (FPPA) must be familiar with their authority and limits of their authority as outlined under the FPPA.

The Office of the Fire Marshal and Emergency Management has developed this guideline to assist fire departments in meeting their inspection and enforcement responsibilities. The guideline is not a complete reference for all fire safety and code enforcement issues. If you require further information or assistance, please contact the Office of the Fire Marshal and Emergency Management, Field and Advisory Services at 1-800-565-1842.

For guidance on matters relating to fire safety inspection practices and enforcement refer to your department’s operational guidelines and the following Office of the Fire Marshal and Emergency Management’s technical guidelines.

  • Fire Safety Inspections and Enforcement
  • Orders, Orders to Close and Immediate Threat to Life
  • Obtaining an Entry Warrant Under the FPPA

These technical guidelines can be accessed at: www.ofm.gov.on.ca/english/Publications/Guidelines/default.asp.

3.0 PROVINCIAL OFFENCES OFFICERS

3.1 Appointment

A provincial offences officer is defined in Section 1 of the Provincial Offences Act as:

“an officer, employee or agent of any municipality or of any local board of any municipality whose responsibilities include the enforcement of a by-law, an Act or a regulation under an Act while in the discharge of his or her duties…”

4.0 COMMENCING A PROCEEDING UNDER PART I

4.1 The Offences and Penalty

Short form wording for Fire Code offences can be found in Schedule 17.4 at:

www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900950_e.htm#BK25.

The set fine applicable to those offences can be found at:

www.ontariocourts.ca/ocj/how-do-i/set-fines/set-fines-i/

The total payable amount shown in the Certificate of Offence actually consists of three separate amounts, namely:

The approved Certificate of Offence Form 1 can be found at www.ontario.ca/laws/regulation/110108

All Ontario Statutes and Regulations can be found at www.e-laws.gov.on.ca.

4.2. Commencing a Proceeding

WHEN:

"A Provincial Offences Officer who believes that one or more persons have committed an offence…

HOW:

…may issue, by completing and signing, a certificate of offence certifying that an offence has been committed AND

a) an offence notice, OR

b) a summons" (Refer to Section 5.0 of the guideline "Issuing A Summons")

An example of a completed certificate of offence notice appears in Appendix A.

4.3 Completing the Certificate of Offence and Offence Notice or Summons

a) If not completed properly, it may be a nullity (i.e. something invalid, without legal force) and may be quashed by the court.

b) Defects that may render it a nullity include:

  • no informant’s name,
  • no date,
  • no defendant named,
  • no location named,
  • no offence named,
  • no legislation named, (FPPA)
  • no signature of provincial offences officer,
  • no set fine stated or incorrect total payable indicated on an offence notice.

c) Minor errors (i.e. incorrect spelling of defendant's name, incorrect date of birth) do not render the certificate of offence a nullity.

4.4 Serving the Offence Notice or Summons – On a Person on the Offence Date

a) The offence notice contains the same information that the provincial offences officer printed on the certificate of offence. All applicable portions of the offence notice and certificate of offence must be completed.

b) The provincial offences officer must sign the certificate of offence certifying that an offence has been committed and that service of the Office Notice or Summons has occurred.

c) The provincial offences officer must give the defendant the offence notice or Part I summons.

The certificate of offence must be filed in the office of the court within seven days after service. (Provincial Offences Act, R.S.O. 1990, c. P.33)

4.5 Serving the Offence Notice or Summons – On a Person after the Offence Date by the Provincial Offences Officer Who Signed the Certificate of Offence

a) The offence notice must be served personally upon the defendant within 30 days of the date of offence. Please refer to subsection 3.(3) of the Provincial Offences Act.

b) The provincial offences officer must sign the certificate of offence. If service is made at the time of issuing the certificate of offence, it is not necessary to do anything other signing. If the certificate of offence is served on a day other than the day it is issued, then the officer must check off the box "or other service date of" and enter the date of service in the space provided.

c) Give the defendant the offence notice.

File the certificate of offence in the office of the court within 7 calendar days from the date the offence notice was serviced.

4.6 Serving the Offence Notice(s) or Summons – On a Corporation

a) An offence notice may be served on

(i) in the case of a municipal corporation, to the mayor, warden, reeve or other chief officer of the corporation or to the clerk of the corporation; or

(ii) in the case of any other corporation, to the manager, secretary or other executive officer of the corporation or person apparently in charge of a branch office thereof,

[Provincial Offences Act, R.S.O. 1990, c. P.33, s. 26(4). A part I proceeding must be served personally and the POA is silent as to service by registered mail on a corporation if it is a part I proceeding.]

b) If you do not have this information, obtain a Corporation Search prior to serving the offence notice.

c) The provincial offences officer must complete the affidavit of service on the reverse of the certificate of offence, and

  • service must be sworn before a or a Commissioner of Oaths, and
  • the certificate of offence must be filed as soon as practicable after service of the offence notice or summons (within 7 calendar days).

4.7 Service by a Provincial Offences Officer Other Than the Provincial Offences Officer Who Signed the Certificate Of Offence

a) Give the person the offence notice.

b) The provincial offences officer must complete the affidavit of service on the reverse of the certificate of offence, and

  • service must be sworn before a Commissioner of Oaths, and The certificate of offence must be filed within 7 calendar days after service.

5.0 ISSUING A SUMMONS

Part I of the Provincial Offences Act contains provisions for serving a summons for instances where there is short form wording and an approved set fine and where there is no established short form wording or set fine, and where it would not be appropriate for the defendant to pay out of court.

The practice of issuing a summons under Part I of the Provincial Offences Act for Fire Code violations is not a recommended practice. Instead, Part III of the Provincial Offences Act should be used. A trial of the evidence is required when a summons has been issued.

In instances where the set fine is not deemed to be appropriate (e.g. second offence), the assistant to the Fire Marshal should commence a proceeding for the violation under Part III of the Provincial Offences Act. Commencement of a proceeding under Part III of the Provincial Offences Act may result in the maximum penalty imposed under the FPPA upon conviction whereas the maximum fine for commencing a proceeding under Part I of the Provincial Offences Act s. 12(1) is limited to $1,000.00.

6.0 PROVINCIAL OFFENCES OFFICER NOT TO ACT AS AN AGENT

The provincial offences officer who serves the offence notice or summons shall not receive payment of any money in respect of a fine or receive the offence notice for delivery to the court.

7.0 THE DEFENDANT'S OPTIONS

The defendant has the option depending on the charging jurisdiction to request a meeting with the Prosecutor or set the matter for trial.

All of the options are set out in section 5 and 5.1 of the Provincial Offences Act.

7.1 Option For A Trial

In certain Regions, a defendant may give notice of intention to appear in court for the purpose of entering a plea and having a trial of the matter by attending in person or by an agent at the court office specified in the offence notice at the time or times specified in the offence notice. The defendant or agent must file a notice of intention to appear (using the prescribed form) with the clerk of the court. (O. Reg. 950 made under the Provincial Offences Act) In those parts of Ontario designated above, the offence notice shall be in Form 4. (Refer to Appendix C)

In all other regions in Ontario, a defendant may give notice of intention to appear in court for the purposes of entering a plea and having a trial of the matter by so indicating on the offence notice and delivering the notice to the court office specified in it. In these regions, the offence notice shall be a Form 3. (Refer to Appendix B)

The clerk of the court will then set a trial date and send a notice to the defendant and the prosecutor of the time and place of the trial. In instances where the defendant indicates an intention to challenge the officer's evidence, the clerk of the court shall notify the provincial offences officer as well.

7.2 First Attendance Meeting

In jurisdictions where the offence notice requires the notice of intention to appear to be filed in person, a defendant may request a meeting with the prosecutor to discuss the resolution of the offence pursuant to 5.1(2) of the Provincial Offences Act. If so, the clerk of the court schedules a first attendance meeting and issues a first attendance notice to the defendant and prosecutor. When the prosecutor is served with a copy of the first attendance notice, he or she will obtain the information from the provincial offences officer who laid the charge. At a first attendance meeting, the prosecutor using the same threshold test used at a trial, will consider whether or not there is reasonable prospect of conviction if the case were to go to trial and whether or not it is in the public interest to accept a plea to a lesser offence or a reduction in sentence, taking into consideration all of the circumstances of the particular case.

If the defendant fails to attend the first attendance meeting, a default conviction may be registered against the defendant pursuant to s. 9.(1).

If the first attendance meeting results in an agreement between the prosecutor and the defendant, both will appear before the Justice, at which time the plea will be entered to the original charge, a substituted offence or, the charge will be withdrawn.

If the first attendance meeting does not result in resolution, the prosecutor will advise the defendant to complete a notice of intention to appear in court and file it with the clerk of the court.

7.3 Plead Guilty With Representations

The defendant may plead guilty with representations where there is no dispute as to the charge but the defendant wishes to make submissions as to penalty and/or extensions of time for payment. This is an informal, recorded proceeding which takes place before a justice of the peace at the court specified on the offence notice without a prosecutor. The justice of the peace, after hearing representations, may impose the set fine or such lesser fine as is permitted by law. The Justice of the Peace does not have the authority to amend the charge at this stage of a proceeding.

7.4 Plead Guilty

The defendant may simply plead guilty by signing the offence notice and delivering the total payable amount (with the signed offence notice) to the court office.

7.5 Fail to Respond

The defendant may do nothing in which case, after 15 days have elapsed after the defendant has been served, he/she will be deemed not to wish to dispute the charge. A justice will then inspect the certificate of offence and either enter a conviction and impose the set fine or, where the certificate of offence is incomplete or irregular, the justice shall quash the certificate. [Provincial Offences Act, s. 9.(1)] The justice is required to keep a separate record of all quashed certificates of offence and the corresponding reasons for that action. The prosecutor is entitled to inspect that record. If the defendant has done nothing and a conviction has been entered, the defendant may be able to re-open the case. Section 11 of the Provincial Offences Act allows the case to be re-opened where, through no fault of the defendant, necessary notice or documents never reached the defendant's attention.

8.0 PENALTY

Under Part I proceedings the maximum penalty is $1,000.

Under Part I proceedings, no provision for imprisonment applies.

9.0 OBTAINING A SUPPLY OF TICKETS

Tickets may be obtained from the local Provincial Offences Court Office where the tickets would normally be returned to. The fire department official requesting a supply of tickets would have to contact the Manager of Court Operations to order the desired number of tickets that would be expected to be used within a 6 month to one year period. There is no cost for the tickets.

In some instances, a supply of tickets may not be readily available for immediate pick-up.

10.0 RECORD RETENTION

It is essential to establish a record retention system to facilitate retrieval of all original records should a case involve a first attendance meeting, a trial, or if the case is re-opened or there is an appeal.

APPENDIX A

FORM 1

224679-2.jpg

APPENDIX B

FORM 3

224679-3.jpg

APPENDIX B

FORM 3 (CONTINUED)

224679-4.jpg

APPENDIX C

FORM 4

itle: APPENDIX C FORM 4

APPENDIX C

FORM 4 (CONTINUED)

224679-6.jpg