Commencement of Proceedings, Part III

Any offence under provincial statute or municipal by-law may be enforced under the Part Ill procedures. However, unlike Part I procedures a defendant cannot pay a set fine and avoid appearing in court. A proceeding commenced under Part Ill must be resolved in court by way of guilty plea, trial, or withdrawal of the charge by the prosecutor. Offences are most laid under Part III in more serious circumstances where the public interest calls for a court appearance and possibly higher penalties upon conviction.

There is a general maximum penalty of $5,000 under s.61 of the POA. This is subject to any penalty provision that may be contained in the offence-creating statute.

Other penalties may include incarceration, probation, seizure of property, court-ordered driver's licence suspensions, and closures.

6-month time limit

Where a time limit is not otherwise prescribed, proceedings must be commenced within six months of the commission of the offence.

Commencement of proceedings

The commencement of proceedings under Part Ill of the Act is a two-step process. It requires that:

1. the informant attend before a justice of the peace to swear an information; and

2. that the defendant be served with a summons.

This process may occur in one of two ways under s.22 or s.23 of the POA:

1. Summons before information laid, POA section 22:

The officer must have reasonable and probable grounds to believe the offence has been committed and must have found the defendant "at or near the place where the offence has been committed". The procedure allows the officer to avoid the risk of not being able to locate the defendant at a later time in order to serve him with a summons. If the information is not sworn following service of the summons, there is no charge to which the defendant must answer.

The officer completes the summons by writing in the areas provided for the defendant's name, address, date, time, and location of the alleged offence, the statute and section number breached, and the date, time and location of the court hearing.

The officer then gives the defendant a copy of the summons, thereby effecting service. The summons must be directed to the defendant, briefly describe the alleged offence and require the defendant to attend court at the time and place specified.

Once service has been effected the officer should then prepare an Information and a prosecution file. Once this is all completed the officer or informant will take the complete package (summons and information) to a JP and have the information sworn. The JP may require receiving some additional evidence prior to swearing the information. This may include hearing witness testimony or as simple as the reading the synopsis. The information must satisfy the justice that the process they have commenced by serving the individual should proceed forward to the courtroom.

Swearing an Information before a justice commences proceedings under Part III. Subsection 23(1) of the Act provides that any person may lay an information in the prescribed form. The person who wishes to lay the charge is known as the informant. Under Part Ill proceedings, an informant may be a private citizen, a police officer, or a provincial offences officer.

The information is now ready to be filed with the court administration.

2. Laying an information, POA section 23:

An Information is the charging document that names the defendant and describes the offence with which they are charged. Section 24 outlines the process for laying an information.

The informant who wishes to lay a charge brings the prepared Information before a

JP.

Although the JP is required to receive the Information, this does not mean that the justice is required to sign it or authorize service of a summons. A JP may choose to hear a detailed account of the allegations. Those allegations are made in the absence of the defendant and may be done orally, by affidavit or by calling witnesses. The informant must demonstrate reasonable and probable grounds to believe that the person named in the information committed an offence and swear under oath to the facts contained in the information.

A provincial offences officer uses the second process where the investigation of the matter continues after the commission of the offence, or where the offence only becomes know after the thirty-day time limit for proceedings under Part I have expired. If a person who is not a provincial offences officer wishes to lay a charge, only the Part Ill process can be used.

If the justice is satisfied that the complaint is justified, the justice signs the Information. At this point, proceedings are commenced, and there is a charge to which the defendant must answer. If the defendant has not already been served with a summons by a provincial offences officer, the justice will confirm the summons by so indicating on the summons. Confirmation of the summons must be endorsed on the summons but does not have to be endorsed bn the Information.

If the justice is not satisfied that a case is made out, the justice endorses the Information to reflect that fact and will order that no summons shall be issued to the defendant. If the defendant has already been served with a summons, the justice will cancel the summons by endorsing it, and order notification to the defendant of the cancellation.

Service of any Part III summons must be done by a provincial offence officer, pursuant to s.26(2) of the POA. Therefore, if the informant is a private citizen, he cannot serve the defendant. Service is to be effected personally upon the defendant, but if the defendant cannot be found, the summons may be left at the defendant's last known or usual place of abode with someone who is apparently over the age of sixteen.

Subsection 26(4) of the POA describes how service of a summons is to be effected on a corporation. If done personally, the summons can only be left with a corporate executive of the company, whether it be a private or a public corporation. If service is not done personally, there is provision for registered mail with service being deemed seven days after mailing.

Once the defendant has been served with the summons, the officer swears an affidavit to that effect and is sworn or affirmed before a justice or a commissioner of oaths. The summons is then delivered to the court office to be matched with the information.