Provincial Offences Act Part III Charges. Lands & Waters Aggregate & Petroleum Resources March 15, 2006

Transcription

1 Subject: Internal Procedure No.: New: Ministry of Natural Resources Ministère des Richesses naturelles Provincial Offences Act Part III Charges A.R NO Compiled by Branch: Section: Date Issued: Lands & Waters Aggregate & Petroleum Resources March 15, 2006 Internal Procedure Step 1 When a charge is being considered as a result of a contravention of the Act, the regulations, the site plan or conditions of the licence/permit, the following information must be documented in an enforcement notebook: a) Date and time of contravention; b) Names of all people or companies involved, including witnesses; c) Contravention description, sketches, measurements, etc.; d) Section of Act or regulations (Provincial Standards) being contravened; e) Synopsis of what was said by all parties involved; and f) Photographs of the contravention, where applicable. Note: Caution (as described below) any person involved when it has been determined that a contravention has occurred and the information is being collected to support a charge. In situations where the Aggregate Inspector is proceeding with charges and has left the site and has to return, a search warrant must be obtained. Therefore, the charges must be discussed with the Enforcement Supervisor prior to entering the site and the collection of evidence. In cases such as illegal operations, the Aggregate Inspector will request the assistance of the Enforcement Supervisor or a Conservation Officer. Caution: You are charged (will be charged) with.. Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Step 2 a) Discuss the case with: i) Area Supervisor; ii) District Enforcement Supervisor; and iii) Aggregate and Petroleum Resources Section, where policy interpretation is required. b) Prepare an Information Form 105 (see attachment) to initiate charges under Part III of the Provincial Offences Act (POA). Particular attention must be paid to the following: Who to charge? In most situations it is advisable to charge all involved; companies, landowners and contractors. This may be done jointly or on separate Informations. In some situations, it may be appropriate to charge a specific person (e.g. an equipment operator who disobeyed clear corporate direction). Internal Procedure A.R Page 1 of 8

2 Where the most appropriate culprit is not clear, the Enforcement Supervisor or Legal Services Branch should be consulted. Only legal entities (e.g. incorporated companies) or individuals can be charged. Corporate searches must be carried out to confirm correct corporate name and parties. Carefully consider which section of the Act and/or the regulations has been contravened. The wording on the Information (see attached example) must describe the offence, which sections of the Act and/or the regulations are in violation, and the offence section (i.e. section 57). The District Enforcement Supervisor must be consulted when preparing the Information Form 105. The Information Form 105 is available in a snapset with the summons attached and also as a separate form often used for joinder of counts or joinder of parties. If a separate form is used, the summons must also be made out on Form 106 (see attached). Step 3 Step 4 When the necessary forms are completed by the Aggregate Inspector or Conservation Officer, they are required to swear that the information is correct, to the best of their knowledge, in front of a Justice of the Peace or Judge. Serve the summons on the defendant(s). Aggregate Inspectors are Provincial Offences Officers and can serve the summons, or the summons may also be served by a Conservation Officer or police officer. An Affidavit of Service (on the back of the summons) must be completed by the person who served the summons and sworn before a Commissioner of Oaths or Justice of the Peace. The original summons and affidavit should be filed with the Court for inclusion in the case file, and a duplicate copy of the summons and affidavit should placed on the licence/permit file. The summons shall be served by delivering it personally to the person to whom it is directed or if that person cannot conveniently be found, by leaving it for the person at the person s last known or usual place of abode/residence with an inmate thereof who appears to be at least sixteen years of age. Where the person to whom a summons is directed does not reside in Ontario, the summons shall be deemed to have been duly served seven days after it has been sent by registered mail to the person's last known or usual place of abode. Service of a summons on a corporation may be effected by delivering the summons personally, a) in the case of a municipal corporation, to the mayor, warden, reeve or other chief officer of the corporation or to the clerk of the corporation; or b) in the case of any other corporation, i) to the manager, secretary or other executive officer of the corporation or person apparently in charge of a branch office thereof, or Internal Procedure A.R Page 2 of 8

3 ii) by mailing the summons by registered mail to the corporation at an address held out by the corporation to be its address, in which case the summons shall be deemed to have been duly served seven days after the day of mailing. Step 5 Step 6 The District Enforcement Supervisor shall determine if a Crown prosecutor is available or if the case should be referred to MNR Legal Services. Pre-court preparation includes preparing a Crown brief, Notice of Intention (required under the Ontario Evidence Act), witness statements and discussing the case with the prosecutor, if required. A complete discussion of these preparations and court proceedings is contained in the MNR Enforcement Training Manual (Part VI). If there is to be a plea bargain to avoid a trial or to agree on the fine between the defendant and the Crown prosecutor, the Crown prosecutor will usually discuss this with the investigative team (e.g. Aggregate Inspector, Conservation Officer and Enforcement Supervisor). Aggregate Inspectors and Conservation Officers must be prepared to assist the Crown by providing sufficient information to allow them to make informed decisions. Aggregate Inspectors and Conservation Officers shall not negotiate plea bargains without the knowledge and consent of the Crown prosecutor. Step 7 Where the defendant pleads guilty with or without a plea bargain, the Aggregate Inspector or Conservation Officer may have to provide their evidence or partial evidence through their will-say statement when the plea is entered in court to determine the amount of fine that MNR recommends. Note: The only time the evidence will go into the record from a Crown brief will be if the Crown reads in the facts in issue that have been agreed to by the defendant. A plea bargain will generally result in a joint submission between Crown and defendant that will include a recommended penalty. While the Crown will need some background to justify the fine if the Justice of the Peace asks, the Crown will not read a complete will-say statement into the record. Proceed to Step 9 Step 8 Step 9 If the defendant pleads not guilty and elects to go to trial and the court finds the defendant guilty, the ministry will be expected to make a submission regarding the sentence. Staff should ensure that a detailed submission has been prepared for the Crown outlining monetary benefits and/or what they believe is required to obtain compliance. Ensure that any order under section 59 includes a detailed description of what is required and by when. Aggregate and Petroleum Resources Section must be kept informed of the results of legal action for province-wide monitoring. The Aggregate Inspector or Conservation Officer responsible for the case shall prepare a case synopsis to be kept on file for future reference. This synopsis shall include the following information: a) Defendant(s); b) Location; Internal Procedure A.R Page 3 of 8

4 c) Infraction (i.e. the charge); d) Offence date; e) Court date; f) Plea; g) Outcome; h) Sentence; and i) Discussion of pertinent facts, reasons for the outcome, any inadequacies or problems that may have affected the outcome and could have been handled in a different manner next time. Conservation Officers shall enter the case information into Compliance Activity and Violation Reporting System (CAVRS) or other enforcement database. Enforcement Branch shall provide ARA enforcement data to the Aggregate and Petroleum Resources Section upon request. A copy of the Information Form 105, with the conviction information entered on the form by the Justice of the Peace, and the Crown brief should be included in this information package. Note: Courts administration will not want to produce minute of convictions for each and every ARA conviction. MNR should only ask for one if there is the likelihood of repeat offending. If there is to be an appeal of the sentence by either party then a copy of the court transcript will also be required. Step 10 Step 11 A News Release shall be prepared by the District Information Officer and a copy forwarded to the Aggregate and Petroleum Resources Section. If the court issues an order under section 59, the Aggregate Inspector/ Conservation Officer will need to verify that the order has been complied with and advise the courts accordingly. Internal Procedure A.R Page 4 of 8

5 Internal Procedure A.R Attachment: Sample Page 5 of 8 Information (Form 105)

6 Internal Procedure A.R Attachment: Sample Page 6 of 8 Information (Form 105)

7 Internal Procedure A.R Attachment: Sample Page 7 of 8 Affidavit of Service of Summons

8 Internal Procedure A.R Attachment: Sample Page 8 of 8 Affidavit of Service of Summons