Law Times

Page 6 JUNe 8, 2015 • LaW TIMeS www.lawtimesnews.com COMMENT A window for justice reform mong the many recommendations from the Truth and Reconciliation Commission last week were proposals aimed at the justice system. The suggestions ranged from a call on the Federation of Law Societies of Canada to ensure lawyers receive cultural com- petency training that includes the history and legacy of residential schools to a recommendation that law schools should require all stu- dents to take a course in aboriginal people and the law. In addition, it wants all governments to commit to eliminating the overrepresenta- tion of aboriginal people in custody over the next decade with annu- al reports on the progress so far. Another recommendation — allow- ing trial judges to depart from mandatory minimum sentences and restrictions on the use of conditional sentences — would go some way to dealing with the overrepresentation issue. Canada's political culture has struggled with the overrepresenta- tion issue for some time. On the one hand, we have rulings like R. v. Gladue and calls from politicians, the courts, and civil society to deal with the issue while at the same time we see the continued expansion of mandatory minimum sentences that work against addressing it. Fortunately, we have answers from groups like the Canadian Bar Association that have been calling for a so-called safety valve to a llow for some discretion to depart from mandatory minimum Trimming costs by cutting due process raises alarm ould political expediency undo a concept rooted in the Magna Carta? For the Ontario Liberals, ev- erything from the sale of Hydro One to a cap on carbon emissions is on the table, including, it seems, due process. While the big focus of the justice sys- tem is on criminal trials, family court, estates, commercial litigation, and other civil matters, the area of justice that touches most people's lives is the Pro- vincial Offences Act. These traffic tickets and bylaw of- fences take up about 17 per cent of Ontario court resources. But for some critics, that's just too many resources dedicated to inconsequential matters in which many people don't have counsel. In 2011, the Law Commission of On- tario released a report on modernizing the act. The discussion around how to reduce that complexity seems prudent. But it was the recommendation to purge the process of justices of the peace pre- siding over Part 1 and Part 2 trials that has triggered some serious concerns as it percolates to the political level. What's on the table is a system of ad- ministrative monetary penalties as an alternative to the court process in which, according to the Ministry of the Attorney General, "the person receiving a penalty notice . . . would still have the option to pay or dispute the penalty, but through an online process. The ministry would ensure that any new system is fair, effective, and maintains the principles of procedural fairness, including the right to be heard before an unbiased decision-maker." It would be a faster, more convenient process to pay tickets and resolve disputes, the ministry claims. For some, however, the idea of an online system in which a faceless salaried bureaucrat anon- ymously issues a finding of guilt or inno- cence and a fine somehow seems wrong. Further, we just don't know enough about how this would work, what it would cover, and what checks and bal- ances it would include. As with the car- bon cap, Hydro One, and the looming Ontario pension scheme, there are more questions than answers. The ripple effects are palpable, says John Papadakis, of the Ontario AMPS Opposition Task Force, a coalition of paralegals, taxi drivers, truckers, and even car club enthusiasts who fear the new system will have a dramatic impact on their livelihoods or interests. It's a critical justice issue, he says, calling the proposal a cash grab by the province to feed its spending habit. "First, we're not really buy- ing that the courts are bogged down with [the act]," he says. "The government is the one who cancelled night courts. Second, we've offered all kinds of suggestions for streamlining and simplifying the process, but no one is listening." The biggest beneficiaries from administrative monetary penalties, aside from government coffers as more fines f low to the treasury at both the provincial and municipal levels, are the insurance companies that would be able to raise premiums even higher, Papadakis suggests. "One of the reasons the courts are busy is because it's worth it for people to take tickets to court," he says. "Just a simple conviction can raise rates by thousands of dollars." Papadakis notes drivers will face fines and demerit points with no recourse. A conviction could be devastating for those who drive for a living and could mean jail for those who need to drive to get to their jobs. "The province says it won't be ap- plied in cases where jail time could result," says Papadakis. "But if someone doesn't pay a fine or loses points and can't afford insurance and they drive anyway, they could end up in jail." Papadakis isn't alone in raising ques- tions. The Law Society of Upper Canada says it supports greater access to justice but noted it just doesn't have enough in- formation to assess "any impact on indi- viduals rights [or] public safety." The Ontario Bar Association called the proposal intriguing but said "we also note there is a significant range of infractions the ministry might interpret as falling within the consultation paper's description of 'less complex, straightfor- ward,' 'not criminal,' and 'excluding very serious offences.'" It also wants more consultations to detail which offences would come under a regime of administrative monetary penalties and is asking whether there would be a fast-track system to "present due diligence defences, have tickets can- celled if issued in error, have early reso- lution hearings." Despite the concerns, political expe- diency — the need for cash savings and cash f low — may yet guide this issue. LT uIan Harvey has been a journalist for more than 35 years writing about a di- verse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. ©2015 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com- pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. 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But with everyone now talking about conciliation and a federal elec- tion looming, there's a window to get the idea on the table. If the federal parties are truly serious about con- ciliation, they should be talking about justice sys- tem reforms this fall. — Glenn Kauth Queen's Park Ian Harvey C A

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