Issuance of Process Under Provincial Offences Act

Today's Court of Appeal decision in R. v. Alrifai, 2008 ONCA 564 deals with the issuance of process by a Justice of the Peace under the Provincial Offences Act. The issuance of process follows the same basic approach as the laying of a private information under the Criminal Code.

Broadly put the decision says that s. 23 of the POA imposes on a Justice a duty to receive an information from a person with the requisite state of belief that an offence has occurred. The duty to receive and information is not discretionary; of course receiving an information does not mean process will issue.

This general rule may be set aside by specific provisions requiring, for example, a consent before a prosecution is initiated.

The Court held:

[8] Section 23(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33 (POA) describes the authority to lay an information and the correlative duty of a justice of the peace to receive the information laid by an informant:

23. (1) Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence, may lay an information in the prescribed form and under oath before a justice alleging the offence and the justice shall receive the information.

[9] Section 24(1) of the POA sets out the obligations of the justice who receives an information laid under s. 23. The obligations are these:

24. (1) A justice who receives an information laid under section 23 shall consider the information and, where he or she considers it desirable to do so, hear and consider in the absence of the defendant the allegations of the informant and the evidence of witnesses and,

(a) where he or she considers that a case for doing so is made out,

(i) confirm the summons served under section 22, if any,

(ii) issue a summons in the prescribed form, or

(iii) where the arrest is authorized by statute and where the allegations of the informant or the evidence satisfy the justice on reasonable and probable grounds that it is necessary in the public interest to do so, issue a warrant for the arrest of the defendant; or

(b) where he or she considers that a case for issuing process is not made out,

(i) so endorse the information, and

(ii) where a summons was served under section 22, cancel it and cause the defendant to be so notified.

...

[17] Section 23(1) of the POA entitles anyone who has the required state of belief to lay an information in the prescribed form and under oath before a justice. The section imposes a correlative duty on the justice to receive the information compliant with the section. In other words, s. 23(1) creates a right (for the informant) and a duty (for the justice).

[18] Section 23(1) is a provision of general application, predictably silent about the right of an informant to lay an information and the duty of a justice to receive it where the statute allegedly contravened requires consent to the institution of a prosecution. Further, neither s. 23(1) nor any other provision of the POA to which we have been referred defines or otherwise elucidates the meaning to be assigned to the introductory words "no prosecution shall be instituted", as the limitation appears in s. 39.1(9) of the HTA and elsewhere in the catalogue of provincial statutes.

[19] In R. v. Linamar Holdings Inc., [2007] O.J. No. 4859, this court considered the meaning to be assigned to the provisions of s. 69 of the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1, which provides that no "prosecution … shall be instituted" more than one year after the last act upon which the prosecution is based occurred. Linamar argued, as the appellant does here, that a prosecution is not instituted until an information is laid and a summons or warrant issued.