Law Times

LaW TIMeS • DeCeMBeR 7, 2015 Page 7 www.lawtimesnews.com COMMENT Proposed traffic reforms a step backward for justice BY SHANE O'HERLIHY For Law Times espite public outcry from several sectors of the traffic court community, the Ontario government is still considering implementing a radical new system for adjudicating traffic offences under the Provincial Offences Act, known as the Administrative Monetary Penalty System. Under proposals by the Ministry of the Attorney General, mil- lions of parking and moving violations issued under the Highway Traffic Act will no longer be adjudicated in the courts but rather by municipal officials under a regula- tory regime. Consequently, defendants will no longer be able to rely on the usual rules of evidence, the consti- tutional right to full and fair disclosure, or having their cases decided by impartial judicial officers. Many critics argue that the AMPS presumes that an accused traffic violator is already guilty and the only is- sue to resolve is the amount of the fine to be paid. This criticism ignores the fact that the current system already presumes that most defendants are showing up to traf- fic court with a guilty conscience. It is not unusual to see up to 30 trials on the docket. This system, which is seemingly ludicrous on its face, however, usually works out. The lion's share of the docket is dealt with through plea bargains, consent adjournments, or cases being dismissed because the police officers don't show up. The law also provides that defendants must be given a full and clear description of the ramifications of their decision-making by both the prosecutor and the Jus- tice of the Peace before pleading guilty to any offence in traffic court. As a result, easily less than 10 per cent of defendants actually proceed to trial. Although it is not a perfect system, does it really need such fundamental change? The ministry's consultation paper provides few details about how the new regula- tory system would actually work. For example, it is si- lent as to whether police officers need to show up as wit- nesses at hearings or if defendants can challenge their accusers. The City of Vaughan has an administrative system in place for parking tickets only. A reduction of the fine is usually offered at the screening stage. If the deal is not ac- cepted, the person then has the right to a formal hearing, which is subsequently scheduled with a hearing officer. In other words, a two-tiered process exists in Vaughan for adjudicating the simplest provincial offence matters on the books. However, the current system in all of Ontario for moving violations under the Highway Traffic Act doesn't demand this complexity. Instead, it currently al- lows for literally dozens of cases to be adjudicated, usually fairly, within a matter of minutes on adjudication day. It is unclear how the AMPS would improve on this, especially when defendants request full disclosure. Perhaps the bigger problem with the proposed AMPS is the lack of clarity about how disclosure would actually work. The government's current attitude to disclosure under the AMPS suggests that it will only disclose what it believes is relevant, regardless of what a defendant may think. Such positioning puts a defendant at a significant disadvantage, especially in the City of Toronto. Over the years, the Toronto police service has progressively be- come a less community-oriented and more militarized force, equipping its officers with in-car dash cameras, audio recording devices, and body-camera technology. Although perhaps not implemented with this purpose in mind, these advances in technology in recent years have created a new category of relevant and producible evidence as guaranteed under s. 11(d) of the Charter of Rights and Freedoms. Traditionally, prosecutors in traffic matters have been reluctant to produce video and audio evidence generated by the Toronto police. Defendants usually need to bring Charter motions before such evidence is produced. In many instances, the audio or video depicting a police officer's conduct during a traffic stop can be shocking, offensive, and, frankly, embarrassing. Production of this evidence alone often inspires a prosecutor to drop an oth- erwise promising case. Furthermore, knowing that dis- closure of these types of evidence is always a possibility in any Highway Traffic Act case, the police may be further engendered to treat potential traffic violators with more dignity and respect on a day-to-day basis when per- forming traffic stops. The AMPS as currently described by the On- tario government provides no guarantees that audio or video evidence generated by the Toronto police would ever be preserved or produced in the appropriate case. The government's March 3, 2015 proposal paper makes no reference to Charter motions and only makes f leeting reference to the importance of full and fair dis- closure. It is essential in our free and democratic society that the right to full disclosure not be undermined, no matter how much discomfort such disclosure may cause to the prosecution or the state's investigative police forces. Unfortunately, reverting Highway Traffic Act matters to an administrative forum could cause the first step back- ward in the development of s. 11(d) jurisprudence since the Charter's advent in 1982. There are more reasons why the AMPS seems like a defeatist measure for justice. Traffic court often repre- sents a young person's or a recent immigrant's first op- portunity to learn about the Canadian judicial system. Challenging a parking ticket or, say, a police officer's evidence on a speeding charge represents an excellent opportunity for an individual — with or without the as- sistance of counsel — to learn about the rule of law and how a defendant's rights and the interests of the state are balanced. Defendants can also participate in this system without worrying about the stigma of acquiring a subse- quent criminal record or losing their liberty. Unfortunately, transferring traffic matters to the AMPS will deny these individuals the chance to become better and more informed citizens through exercising their rights to use a judicial forum, which will not jeop- ardize their standing in the community should they lose. In conclusion, the province's radical yet misguided philosophical proposal in how traffic court matters are to be adjudicated could actually cost the province more money in the long run while diluting the legal system and contributing to the ruination of the lives of a dispropor- tionate number of poorer people in the process. LT uShane O'Herlihy practises provincial offences law in Toronto. He can be reached at shane_herl@hotmail.com. u SPEAKER'S CORNER New McGuinty book 'mildly interesting' s we saw in the recent federal election, it's all too easy to dislike or even hate someone when all you know is what is projected by the media and critics. So it is with Dalton McGuinty. Few shed tears when he resigned as Ontario Premier Oct. 23, 2012, nine years after being sworn in when the Ontario Liberals won the gen- eral election. In all, he served 23 years as an MPP, 16 as leader, seven in opposition. History is never initially kind to politi- cians, much less prime ministers or pre- miers when they leave office. A deeper ap- preciation often comes with greater hind- sight. Most Ontarians will likely remember Dalton James Patrick McGuinty Jr. for the botched eHealth Ontario debacle, lax over- sight at the Ontario Lottery and Gaming Corporation and Ornge, the $1.2-billion cost of cancelling the gas power plants for political gain, sneaking in a health care tax, and the disastrously expensive Green Ener- gy Act. Add in the prof ligate spending and deficit financing and it is hard to find some- thing positive. As such, the arrival of his autobiography, Making a Difference (Dundurn, 2015) is a first step in setting out his version of history. No doubt, there will be other versions of events from other perspectives to come. If you're looking for dirt and payback, don't bother. McGuinty's too nice to play that game. In fact, reading through his early years, it's hard not to like the guy. One of 10 kids of an Ottawa Eng- lish professor and francophone nurse, he grew up in a hectic household where there was al- ways something to do and re- sponsibilities to meet. Ironically, he fell into law after being rejected by medical school, enrolling in the Univer- sity of Ottawa in 1978, and he confesses: "I found law pretty dry. But looking back now, I can say that my legal training was in- dispensable in developing my critical think- ing…that would serve me well in politics." Still, he writes, while commercial con- tracts and tax weren't appealing, litigation and criminal law were "fascinating." A longtime party member and activist, his dad, Dalton McGuinty Sr., was MPP for Ottawa South between 1987 and 1990, when he collapsed and died while shovel- ling snow on his back deck. For the kids who grew up listening to recordings of former U.S. president John F. Kennedy's speeches, there was never any question a McGuinty would run for the seat, but only a matter of who. Thus, it fell to Dalton Jr. when a gathering of the clan adjudged him to be best positioned to take the shot. McGuinty doesn't comment on the cur- rent regime under activist Premier Kathleen Wynne directly, but he does make a curious point of describing his father's frustrations as a backbencher under former premier David Peterson. "Having been overlooked for cabinet, he became a bit of a thorn in the side of Premier David Peterson and his gov- ernment," he writes. "It was an activist government, but my father saw that many of its measures were unpopular with Ontarians. He coined a phrase for it — 'operation alienation' — which he used frequently in caucus. It turned out that he was prescient." He doesn't directly address his spend- thrift budgeting either, one that has played the greatest role in running the provincial debt close to $300 billion and shrugs it off, writing: "I have come to prize a strong econ- omy that creates good jobs and the wealth needed to support great schools and health care. But for me, a strong economy is not the end. It's not the call to arms that stirs my blood." Strange he would say that when it came back to bite him in the pants. Part of that spending went to public service unions such as teachers, but it won him no loyalty when it came time to cut spending. "The toughest opposition came from the teachers. This took me by surprise. I assumed our good working relationship… would put me in good stead with teachers. "Elementary school teachers saw their pay rise from about $40,000 if they started in 2003 to just over $80,000 nine years later. I had hoped that my demonstrated respect for teachers, indeed my championing of teachers and teaching, would have earned me their support in my quest to constrain public-sector wages for a limited time in the aftermath of a terrible recession. But such was not the case." Imagine that. They were only in it for the money, not education. Sucka! He also skirts around how he caved on the proposed changes to the sex education curriculum in 2010, and in facing down Kathleen Wynne at the cabinet table who disagreed with his change of face. Still, given his father's vehement opposition to access to abortion and his own Catholic conservative social outlook, it's not a surprise. Nor is it a surprise to learn he opposed mandatory gay-straight alliances in school or same-sex rights while in opposition during the NDP government. Politically correct to the end in hind- sight, however, he allows, "We didn't get this one right." The book is mildly interesting, but it re- ally lacks an inside look at the cut and thrust of real politics and the view from inside the game. As McGuinty himself might note, 'We didn't get this one right.' Maybe next time he will. LT uIan Harvey has been a journalist for more than 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. D A Queen's Park Ian Harvey

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