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Paralegal Licenscing Exam > Provincial Offences Act > Flashcards

Provincial Offences Act Flashcards

1
Q

The Provincial Offences Act creates

A

a procedural Code for the administration, prosecution and enforcement of provincial laws and municipal bylaws

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2
Q

Part 1 of the POA applies to

A

all provincial offences that are commenced by filing a CERTIFICATE of offence. Generally minor or less serious prov offences

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3
Q

Part II of the POA applies to

A

parking infractions

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4
Q

Part III of the POA applies to

A

the same offences as Part I in situations where the circumstances of the offence are more serious/issues are more complex. Prosecution is commenced by way of an INFORMATION

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5
Q

What are the 7 offences created by the POA?

A
  • failure to attend in court
  • breach of a probation order
  • being a party to an offence
  • counselling an offence
  • making a false statement
  • contempt of court
  • publishing the identity of a young person
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6
Q

What are the three categories of POA offences?

A
  • full mens rea
  • strict liability
  • absolute liability
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7
Q

A strict mens rea offence must

A

be proven beyond a reasonable doubt that the defendant has committed the prohibited act and also that they had a particular state of mind.

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8
Q

A strict liability offence must

A

be proven beyond a reasonable doubt that the defendant committed the prohibited act. If proven, the burden shifts to the defendant to prove due diligence on a balance of probabilities

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9
Q

Absolute liability offences must be proven

A

beyond a reasonable doubt, that the defendant committed the act, without consideration of the defendant’s mental state.

There are limited defences for these offences, but a defendant cannot be sentenced to imprisonment for an absolute liability offence.

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10
Q

What is a certificate of offence (Part 1)?

A

A certificate that alleges that the defendant committed a particular offence. Generally Form 1, but if made by automated evidence, Form 2, 2.1 or 2.2

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11
Q

How is a person notified that they are the subject of a Part 1 prosecution?

A

by being served with either a summons or an offence notice

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12
Q

What is a summons?

A

A document that advises the defendant that their matter will be addressed in court on a particular date and time. If served, you are required to appear in court. and can then either plead guilty or dispute the charge and book a trial date

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13
Q

What is an offence notice?

A

An offence notice must indicate the set fine for the offence, and will give the defendant a number of options (IE speeding ticket.)

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14
Q

What is the timeline for responding to an offence notice?

A
  • the defendant must exercise one of their options within 15 calendar days, per R v Hicks
  • if they do not, they are deemed to not dispute the charge
  • If no response, and the offence notice is complete and regular, court clerk will order a conviction and set a fine
  • if notice not complete or somehow irregular, court clerk will quash
  • a defendant convicted in this manner may apply to a justice to strike the conviction within 15 days of becoming aware of it
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15
Q

If the defendant in a Part I offence is not served with the proper documentation at the time of charging, they must be served

A

personally with an offence notice or summons within 30 days of the date of the alleged offence

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16
Q

For Part 1 offences, the certificate of offence must be filed in the court

A

as soon as practicable, but no later than 7 days after the defendant has been served

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17
Q

What is the maximum conviction available for Part 1 offences?

A

the lesser of either $1,000 or the maximum fine prescribed for the particular offence under the charging Act

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18
Q

What is never permitted for Part 1 offences?

A

probation or imprisonment

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19
Q

The charging document for a Part II offence is

A

a certificate of parking infraction

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20
Q

The _____ is served on the defendant for Part II offences and indicates what?

A

Parking infraction notice (PIN) indicates the set fine for the alleged infraction

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21
Q

Once the PIN has been served, the defendant has

A

15 days to respond either by paying the ticket or completing a notice of intention to appear (requesting a trial)

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22
Q

If the defendant of a Part II offence does not respond within the prescribed time frame, the prosecuting may

A

provide the defendant with a notice of impending conviction indicating
- the amt of the set fine
- that a conviction will be registered unless the defendant responds by paying the fine or requesting a trial

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23
Q

If the defendant in a Part II offence does not respond after the prosecutions attemps to reach them, the prosecution may

A

file a certificate requesting a conviction within 75 days of the alleged infraction

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24
Q

The charging document for Part III offences is

A

the information

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25
Q

What is the information?

A

A sworn document that sets out the charges against the defendant. Any person, but often a provincial offences officer, may lay an information

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26
Q

How does one lay an information?

A

by swearing an oath before a justice that the person believes on reasonable and probable grounds that the defendant has committed an offence

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27
Q

Unless the charging Act says otherwise, the information must be laid within

A

6 months after the date on which the offence was alleged to have been committed

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28
Q

Are there set fines for Part III offences?

A

No, the justice who hears the case in court will determine the appropriate penalty. May include
- imprisonment
- probation
- penalties contemplated by the charging act

29
Q

What is the role of the provincial offences officer?

A

investigating the alleged offence, preparing the charging documentation, and where necessary, providing evidence at trial

30
Q

What is the role of the prosecutor in POA offences?

A

represents the Ministry of the AG or other branch of gov, like MTO.

The prosecutor’s role is to fairly state and present the case against the defendant

31
Q

What is the role of the defence in POA cases?

A

to advocate vigorously for the defendant, by challenging the prosecution’s evidence, present any applicable defences, and if necessary, argue the least restrictive penalty

32
Q

A justice is to be addressed as

A

Your Worship

33
Q

A judge is to be addressed as

A

Your Honour

34
Q

Disclosure is triggered by

A

written request by the defence, as soon as practicable after the charge is laid

35
Q

What is a Crown pre-trial?

A

An informal meeting bw the prosecutor and defence to discuss the case and the issues it raises.

36
Q

What is a judicial pre-trial?

A

may be conducted before a judge/justice, meeting bw prosecutor and defence to
- consider the matters that would be better decided before the start of a proceeding, to promote a fair and expeditious trial, and
- make arrangements for decisions on those matters

37
Q

What are included offences?

A

Any offences the defendant commits in the commission of the offence charged

38
Q

What are jurisdictional offences?

A

Where the defence challenges the ability of the court to hear a provincial offences case, made by
- territorial argument
- arguments that the proceedings were not brough properly (by improper service)

39
Q

When were limitations periods suspended due to Covid?

A

March 16th 2020-September 13th, 2020

40
Q

The POA is designed to reduce as many technical arguments as possible, and therefore enjoys broad

A

ammendment powers to cure procedural and substantive deficiencies in the charging documentation

41
Q

What kinds of defects are not curable in a charging document?

A
  • where an information is not signed by a justice or informant
  • where the charging document does not name the defendant
  • where the charging document does not indicate an offence known to law
42
Q

When must objections to an information be made?

A

before the defendant has pleaded, and afterwards only be leave of the court

43
Q

What must the court ensure before accepting a guilty plea? (known as the plea inquiry)

A
  • that the defendant is making the plea voluntarily
  • the defendant understands that the plea is an admission of the essential elements of the offence
  • the defendant understands the nature and consequences of the plea
  • the defendant understands that the court is not bound by an agreement made between the defendant and the prosecutor
44
Q

Where there is sufficient factual nexus, a POA trial can be combined with a

A

summary conviction criminal trial

45
Q

If the Crown brings an application to join a POA and criminal trial and the defendant objects, the court will decidde by applying the Clunas test:

A
  • requires that the offences have a sufficient factual nexus that they could initially have been jointly charged
  • that a joint trial is in the interests of justice (R v Sciascia)
46
Q

How does the EA differ from the Canada Evidence Act in regards to the admissibility of business records?

A

The CA sets a higher threshold for admissibility, given that it requires that the record be created:
- in the usual and ordinary course of business AND
- that it be in the usual and ordinary course of business to create the record
- requires seven days’ notice as a precondition to admissibility

47
Q

What happens if the defendant does not appear at trial for Part I, Part II and Part III offences?

A

Part I: def deemed not to dispute charge, judge will examine the cert of offence and if complete, will impose a fine

Part II: same as above

Part III: the court will enter a not guilty plea on behalf of the defendant, matter may proceed to trial in the absence of the defendant, OR the court may issue a summons/warrant to secure the defendant’s appearance in court

48
Q

The POA defines a young person as

A

12 or older, but younger than 16

49
Q

Pursuant to R v Jordan and R v Nguyen, the presumptive ceiling for POA offences is

A

18 months

50
Q

When calculating the presumptive ceiling to argue a section 11(b) motion for Part I offences, time is calculated from

A

the date that the information is SWORN

51
Q

Notice of a constitutional question under section 24(1) of the Charter must be served

A

at least 15 days before the day on which the question is to be argued, unless the court orders otherwise

52
Q

A justice may issue a warrant under Part VIII of the POA if they are satisfied:

A

that there is in the place the be searched
- anything on or in respect of which an offence has been or is suspected of being committed

  • anything that there is reasonable grounds to believe will afford evidence as to the commission of the offence
53
Q

What powers of arrest are available through the POA?

A
  • arrest with warrant
  • arrest without a warrant
54
Q

When might a police officer arrest someone without a warrant under the POA?

A

Where they have reasonable and probable grounds to believe that the individual has committed a provincial offence and is escaping and freshly pursued by a police officer who has lawful authority to arrest that person, per section 145

55
Q

What is the max penalty under the POA?

A

max fine of $5,000 unless a higher fine is expressly provided for by the charging Act

56
Q

Does a finding of guilt under the POA count as a criminal record?

A

No, but regulators and ministries keep track of conictions, which can impact sentencing in future convictions

57
Q

where a minimum penalty is in place, the POA grants a justice discretion in limited circumstances to

A

impose a lesser fine or suspend the passing of a sentence where, in the opinion of the court, exceptional circumstances exist (per section 59(2))

58
Q

When does the 59(2) sentencing exception apply?

A

in exceptional circumstances where the imposition of the minimum fine would be unduly oppressive or otherwise not in the interests of justice, and the defendant must present the court with evidence about the defendant’s ability to pay in order to justify a reduction in the minimum fine. In addition, the court has the discretion to decline to impose a minimum penalty of imprisonment and instead ordering a fine of not more than $5000 in lieu of imprisonment.

59
Q

when is a POA fine due and payable?

A

15 days after its imposition. Where it remains outstanding, will be enforced through civil enforcement, where the clerk completes a certificate specifying the imposition of the fine and the outstanding balance

60
Q

Non payment of a POA fine may lead to

A
  • suspension or non-renewal of any permit, license, registration, or privilege in respect of which a suspension/renewal is authorized under any Act bc of non-payment of fines
  • imprisonment, as permitted in some limited circumstances
61
Q

Imprisonment under the POA is only available where

A
  • the proceeding was commenced by an information (is Part III)
  • and the charging Act provides for imprisonment upon conviction
62
Q

Can you receive a discharge under the POA?

A

adults, no
youth, yes

63
Q

What is a POA appeal?

A

A review of the trial court record

64
Q

Parts I and II appeals are governed by

A

Section 135 POA, and made to the ONCJ

65
Q

What is the procedure of appeal for Section 135 appeals?

A
  • NOA filed in 30 days after the making of the decision appealed from
  • service on respondent is not required
66
Q

For Part III appeals, they are governed by

A

Section 116 of the POA

67
Q

What is the process for S116 appeals?

A
  • service of NOA upon opposing party within 30 days after the decision is made
  • where the appellant received a fine, must provide proof of payment upon serving the NOA
  • ## transcripts are not required unless judge requests them
68
Q

What is the AMP system?

A

an alternative forum in which to administer certain provincial offences, where an appointedregulator imposes a fine upon the contravention of an Act, and the person charged may dispute within a given period of time

Paralegal Licenscing Exam (51 decks)

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