By: Ryan J. Conlin
Recent amendments to the Ontario Provincial Offences Act (“POA”) now permit court filings, trials and other court proceedings to proceed by electronic means. This update will provide a brief overview of the recent amendments as well as how certain provincial court proceedings will be impacted by the new rules.
The POA is a provincial statute that sets out rules and procedures for the prosecution of offences under other provincial legislation and regulations, in addition to some municipal by-laws. Most provincial offences are heard in the Ontario Court of Justice, including proceedings pursuant to the Highway Traffic Act and the Environmental Protection Act. For most employers, however, these amendments will have the largest impact on charges laid under Ontario’s Occupational Health and Safety Act.
Amendments to the POA and several other provincial statutes were recently passed thorough the Ontario Legislature via Bill 197, the COVID-19 Economic Recovery Act, 2020. The most significant of these amendments for the purposes of this update, are the changes to method of participation in provincial court proceedings. Unlike most other COVID-19 related amendments to various other provincial and federal statutes, the amendments to the POA are not time limited and are not tied to a particular event, such as the expiry of the province’s emergency order. We expect these changes to be permanently available to parties in provincial proceedings.
Section 83.1 of the POA now indicates that in any proceeding under the POA or any step in a proceeding under the Act, any person, including a defendant, prosecutor, witness, interpreter, justice or clerk of the court may participate by electronic method. Electronic method is defined as video conference, audio conference, telephone conference or other method determined by the regulations. In addition, this new method of proceeding electronically will also be available to parties participating in an appeal.
Note that Bill 197 refers to regulations that have not yet been published. As a result, many details regarding the operations of participating in court proceedings by way of electronic methods are currently unknown. We expect the Legislature to clarify some of the details surrounding the process, including whether certain limitations and/or exclusions will exist.
Prior to Bill 197, only certain parties including witnesses, defendants, prosecutors and interpreters were able to virtually participate in provincial proceedings. Therefore, the amendments are significant in that they allow justices and court clerks to participate electronically, meaning that entire court proceedings can now take place online. With the Bill placing no restrictions on where the justice is located with respect to where the court presides, the removal of the in-person court attendance requirement also means that more cases can be heard at a faster rate than ever possible.
In addition, prior to the amendments, a defendant in a provincial matter could refuse to consent to having a witness testify though electronic means. There is now no reference in the legislation to consent or the need to obtain approval to have a party participate electronically. However, the amendments do provide the court with the residual discretion to require that an individual appear in-person if the justice is satisfied that the interests of justice require it, or it is necessary for a fair trial. It is possible that this could result in additional steps and/or costs where disagreements arise over whether a party should participate electronically.
The amendments also make it easier for justices, witnesses and other parties to participate and/or testify, especially where those parties reside outside of the province or the jurisdiction of the court. Travel expenses and related accommodation expenses are now removed, which may pave the way for more voluntary attendance. This new method of participating may also help to put more witnesses at ease who would otherwise be uncomfortable giving in-person evidence. Of course, facilitating witness participation in this manner may make it easier for both sides, including the prosecution, to call witnesses who would otherwise not have been able to appear due to lack of resources or unwillingness to participate. Further, conducting entire proceedings online may also make it more difficult to successfully cross-examine witnesses, especially where counsel seeks to diminish a witnesses’ credibility and/or reliability as part of their strategy for the case. Testifying from behind a screen may make it easier for witnesses to appear more credible or reliable than they may have otherwise.
It remains to be seen to what extent court proceedings will be conducted electronically after the pandemic is over. We are hopeful that these changes will see the end of the practice of attending in person in Court for such routine procedural matters as setting dates. It will likely assist the Courts with the COVID-19 backlog to eliminate in person Court appearances to address matters that can easily be dealt with electronically.
For more information, please contact:
Ryan J. Conlin at [email protected] or 416-862-2566