Bill 24 - An Act to Amend the Provincial Offences Procedure Act

BILL 24

An Act to Amend the Provincial Offences Procedure Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Subsection 1(1) of the Provincial Offences Procedure Act, chapter P-22.1 of the Acts of New Brunswick, 1987, is amended

(a) in the definition “document” by striking out “a ticket” and substituting “a ticket, a violation ticket”;

(b) by adding the following definition in alphabetical order:

“ticket reviewer” means a person appointed under section 16.1; (examinateur de billets)

2 The Act is amended by adding after section 16 the following:

Violation Ticket Procedure

Ticket reviewer

16.1( 1) Subject to the regulations, if any, the Lieutenant-Governor in Council may appoint ticket reviewers.

16.1( 2) A ticket reviewer shall carry out the functions or duties given to him or her under this Act or the regulations.

16.1( 3) A ticket reviewer shall act in accordance with any general or specific directives issued by the Minister of Justice and Public Safety, or a delegate of that Minister, in carrying out his or her functions and duties.

Violation ticket for prescribed offences

16.2 A police officer or authorized person who believes, on reasonable and probable grounds, that a person has committed a prescribed offence may serve that person with a violation ticket in prescribed form.

Contents of violation ticket

16.3( 1) A violation ticket shall

(a) be directed to the defendant,

(b) set out the offence with which the defendant is charged,

(c) state that the defendant may dispute the charge set out in the violation ticket by filing a notice of dispute within the period prescribed under section 16.7, in which case a time and place will be fixed at which the defendant will appear in court in order to be dealt with according to law,

(d) state where the notice of dispute has to be filed, as well as the form and manner of its filing,

(e) state that the defendant has the right to choose the official language in which the proceedings will be conducted,

(f) state that the defendant has the right to retain and instruct counsel,

(g) state that if the defendant does not wish to dispute the charge, the defendant may pay a fixed penalty within the period prescribed under section 16.7, in which case the defendant is deemed to have been convicted of the offence,

(h) state the amount of the fixed penalty and the place and manner of payment,

(i) state that if the defendant fails to respond to the violation ticket in a manner referred to in paragraph (c) or (g) within the time set out, the defendant will be deemed to have been convicted of the offence, and

(j) include a certificate in prescribed form certifying that the person signing the certificate delivered personally the violation ticket to the defendant.

16.3( 2) For the purposes of paragraph (1)(b), the offence to which the defendant is charged shall be set out in the violation ticket

(a) using words that are prescribed by regulation,

(b) using any words that describe the general nature of the offence, or

Service of a violation ticket

16.4( 1) A violation ticket shall be served by delivering it to the defendant personally.

16.4( 2) The person who serves the violation ticket shall sign the certificate referred to in paragraph 16.3(1)(j).

16.4( 3) The lack of a defendant’s signature or other form of acknowledgement of receipt shall not invalidate the violation ticket or form the basis of an objection to it or to service of the violation ticket.

Filing a violation ticket

16.5 Unless payment of a fixed penalty is made in accordance with section 16.8 or a notice of dispute is filed in accordance with section 16.9 within the period prescribed under section 16.7, a copy of the violation ticket shall be filed with the ticket reviewer within 15 days following the period prescribed under section 16.7.

Electronic violation ticket

16.6( 1) A violation ticket may be created, completed and signed electronically if it is created, completed and signed in compliance with the requirements prescribed by regulation.

16.6( 2) For the purposes of section 16.4, a violation ticket that is created, completed and signed electronically shall be reproduced by printing a copy of the ticket in accordance with the requirements prescribed by regulation, and delivered to the defendant personally.

16.6( 3) A violation ticket that is created, completed and signed electronically may be provided to the office of the court electronically or recorded and entered in a computer network approved by the Minister of Justice and Public Safety, or reproduced by printing it or by reconverting it to electronic form, in so far as the providing, recording, entering, printing and reconverting comply with the requirements prescribed by regulation.

16.6( 4) For the purposes of section 16.5, a violation ticket that is provided to the office of the court electronically or recorded and entered in a computer network approved by the Minister of Justice and Public Safety is deemed to have been filed with the ticket reviewer.

16.6( 5) A violation ticket that is provided to the office of the court electronically or recorded and entered in a computer network approved by the Minister of Justice and Public Safety, or that is reproduced by printing it or by reconverting it to electronic form, shall be admissible in evidence without proof of the appointment, authority or signature of the person referred to in subsection 16.4(2) purporting to have served it.

Payment of a fixed penalty and filing the notice of dispute

16.7 Within the period prescribed by regulation, the defendant may respond to a violation ticket by

(a) paying the fixed penalty in accordance with section 16.8 if the defendant does not wish to dispute the charge set out in the violation ticket, or

(b) filing a notice of dispute in accordance with section 16.9 if the defendant wishes to dispute the charge set out in the violation ticket.

Payment of a fixed penalty

16.8( 1) A defendant who does not wish to dispute the charge set out in a violation ticket may pay, within the period prescribed under section 16.7, the fixed penalty

(a) at any address or office of Service New Brunswick,

(b) electronically on the Internet site maintained by Service New Brunswick, or

16.8( 2) Despite subsection (1),

(a) the person who served the violation ticket may accept payment of a fixed penalty when the ticket is served, and

(b) a peace officer may accept payment of a fixed penalty later than the period prescribed under section 16.7 if a copy of the violation ticket has not been filed with the ticket reviewer.

16.8( 3) The amount of the fixed penalty payable shall be the sum of

(a) the minimum fine set for the offence charged,

(b) any other additional fine or money penalty required to be imposed under an Act,

(d) the administrative fee prescribed by regulation.

16.8( 4) Payment of the fixed penalty by the defendant in accordance with this section relieves the defendant of the duty to appear in court.

16.8( 5) When a fixed penalty has been paid, the defendant shall be deemed for all purposes

(a) to have been convicted of the offence charged in the violation ticket,

(b) to have been fined the amount set out in the violation ticket, and

Notice of dispute of the charge

16.9( 1) The notice of dispute set out in the violation ticket shall be in prescribed form and filed with the office of the court.

16.9( 2) If a defendant files a notice of dispute, the defendant is deemed to have pleaded not guilty to the charge.

16.9( 3) The proceedings with respect to which the defendant is charged are commenced when the notice of dispute is filed with the office of the court.

16.9( 4) The defendant shall notify the office of the court of any change in address of the defendant.

16.9( 5) Despite sections 22 and 24, when the office of the court receives the notice of dispute, a time and place is fixed for the defendant’s appearance in court and a notice of trial forwarded to the defendant.

16.9( 6) A copy of the violation ticket shall be filed with the judge no later than the date fixed for trial.

16.9( 7) When the defendant does not appear in court at the time and place fixed for trial, the judge shall examine the copy of the violation ticket and, if the copy contains the certificate referred to in paragraph 16.3(1)(j), the judge shall, subject to subsection (9), convict the defendant and impose a fine in the amount of the fixed penalty set out in the violation ticket.

16.9( 8) When the defendant appears in court at the time and place for trial, the proceedings shall be disposed of as though an information has been laid and a summons has been issued and served.

16.9( 9) The judge shall not convict the defendant if

(a) the judge has reason to believe that the certificate on the violation ticket is inaccurate, or

(b) the violation ticket contains a defect and the defect cannot be cured under section 106.

Conviction on default

16.91 Subject to section 16.92, when the defendant has not paid the fixed penalty and does not file a notice of dispute within the period prescribed under section 16.7, the defendant is deemed to have been

(a) convicted of the offence charged in the violation ticket, and

(b) fined the amount set out in the ticket.

Review of violation ticket

16.92( 1) A ticket reviewer shall examine the copy of the violation ticket filed with the ticket reviewer and ensure

(a) the certificate referred to in paragraph 16.3(1)(j) is signed by the person that delivered the violation ticket,

(b) the defendant is identified with reasonable clarity,

(d) the date on which the offence is alleged to have occurred is specified, and

(e) the place at or near which the offence is alleged to have occurred is specified.

16.92( 2) If a ticket reviewer determines that the conditions referred to in subsection (1) have been fulfilled, the ticket reviewer shall endorse in the record of disposition in prescribed form the fact that the conditions are fulfilled, and forward the record of disposition to the defendant.

16.92( 3) If a ticket reviewer determines that one or more of the conditions referred to in subsection (1) have not been fulfilled, the ticket reviewer shall cancel the violation ticket and, when cancelled, the conviction to which the offence relates is deemed not to have taken place.

3 Section 19 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

19( 1) When the official language in which the proceedings are to be conducted is not the official language in which the information has been sworn or the notice of prosecution or violation ticket completed, the judge shall inform the defendant that if the defendant so chooses a translation of the information, notice of prosecution or violation ticket by an Official Translator under the Official Languages Act will be provided.

(b) in subsection (2) by striking out “the information or notice of prosecution” and substituting “the information, the notice of prosecution or the violation ticket”.

4 Subsection 21(1) of the Act is amended

(a) by repealing paragraph (b) and substituting the following:

(b) cause the information, the notice of prosecution or the violation ticket, as the case may be, to be read to the defendant,

(b) in paragraph (c) by striking out “the information or the notice of prosecution” and substituting “the information, the notice of prosecution or the violation ticket”.

5 Paragraph 25(a) of the Act is amended by striking out “or notice of prosecution” and substituting “, notice of prosecution or violation ticket”.

6 Subsection 29(1.1) of the Act is amended

(a) in the portion preceding paragraph (a) by striking out “notice of prosecution” and substituting “notice of prosecution or notice of dispute”;

(b) by repealing paragraph (a) and substituting the following:

(a) on motion by the prosecutor, convict the defendant and impose a fine in the amount of the fixed penalty set out in the ticket or the violation ticket to which the notice of prosecution or the copy of the violation ticket corresponds if it appears to the judge that it would not be contrary to the interest of justice to do so, or

7 Section 42 of the Act is amended by striking out “or notice of prosecution” and substituting “, notice of prosecution or violation ticket”.

8 Section 46 of the Act is amended

(a) by repealing paragraph (1)(c.1) and substituting the following:

(c.1) if the proceedings were commenced by the filing of a notice of prosecution or notice of dispute and a fine is imposed, add the administrative fee referred to in subsection (1.1) to the combined total of the fine and the surcharge, if any, payable under the Victims Services Act, and

(b) in subsection (1.1) by striking out “notice of prosecution” and substituting “notice of prosecution or notice of dispute”;

46( 3) Paragraphs (1)(c) and (c.1) and subsection (1.1) do not apply if a judge acting under subsection 16(1) or 16.9(7) or paragraph 29(1.1)(a) convicts a defendant on whom a ticket or violation ticket has been served and imposes a fine in the amount of the fixed penalty established under subsection 14(5) or 16.8(3), as the case may be.

9 Subsection 47(3) of the Act is amended

(a) by repealing subparagraph (a)(i) and substituting the following:

( i) included in the fixed penalty under paragraph 14(5)(c) or 16.8(3)(c), or

(b) by repealing subparagraph (b)(i) and substituting the following:

( i) included in the fixed penalty under paragraph 14(5)(d) or 16.8(3)(d), or

10 The Act is amended by adding the following after section 80.1:

Payment of fine re violation ticket

80.2 Despite section 81, if a defendant is deemed to have been convicted of an offence under section 16.91, a fine imposed on a defendant shall be paid to the office of the court

(a) if the amount of the fine is less than $1,200, within 90 days after the date he or she was deemed convicted, or

(b) if the amount of the fine is $1,200 or more, within 180 days after the date he or she was deemed convicted.

11 Paragraph 83(a) of the Act is repealed and the following is substituted:

(a) if under paragraph 15(3)(b) or 117.1(4)(b) the fixed penalty is applied towards discharge of the fine, or

12 Subsection 85(8) of the Act is repealed and the following is substituted:

85( 8) For greater certainty, a surcharge imposed under the Victims Services Act, whether included in the fixed penalty under paragraph 14(5)(c) or 16.8(3)(c) or calculated by the judge under paragraph 46(1)(c), shall not be discharged under a fine-option program.

13 Section 86 of the Act is amended by striking out “within the time set by section 81” and substituting “within the time set by section 80.2 or 81”.

14 The Act is amended by adding the following after section 87:

Enforcement of fine for deemed conviction

87.1 Despite section 87, if a defendant is deemed to have been convicted of an offence under section 16.91, the following means may be used to enforce payment of the fine:

(a) an order for seizure and sale in accordance with section 88 if the defendant is a corporation, and

(b) a payment order in accordance with section 89 if the defendant is not a corporation.

15 Subsection 91(1.1) of the Act is repealed and the following is substituted:

91( 1.1) A warrant of committal shall not be issued under subsection (1) as a result of default of payment of a fine in respect of a ticket or violation ticket.

16 Subsection 98(2) of the Act is repealed and the following is substituted:

98( 2) If the judge before whom the information was laid, the judge with whom the notice of prosecution or copy of the violation ticket was filed or the judge by whom the plea of the defendant was taken has not begun to hear evidence, another judge may try the defendant.

17 Subsection 101(3) of the Act is amended by striking out “a ticket” and substituting “a ticket, a violation ticket”.

18 Section 115 of the Act is amended

(a) in subsection (4) in the portion preceding paragraph (a) by striking out “paragraph 14(5)(d)” and substituting “paragraph 14(5)(d) or 16.8(3)(d)”;

(b) in subsection (5)

( i) in paragraph (a) by striking out “paragraph 14(5)(d)” and substituting “paragraph 14(5)(d) or 16.8(3)(d)”;

( ii) in paragraph (b) by striking out “paragraph 14(5)(d)” and substituting “paragraph 14(5)(d) or 16.8(3)(d)”.

19 Section 117 of the Act is amended

(a) in subsection (1) by repealing the portion preceding paragraph (a) and substituting the following:

117( 1) When a judge, acting under subsection 16(1), 16.9(7), paragraph 28(1)(a) or (b) or subsection 29(1) or (1.1), convicts a defendant in the defendant’s absence, the judge may

(b) in subsection (2) by striking out “Where a conviction is set aside under subsection (1) or (1.1)” and substituting “When a conviction is set aside under subsection (1) or (1.1) or subsection 117.1(1) or (5)”.

20 The Act is amended by adding after section 117 the following:

Setting aside a deemed conviction

117.1( 1) A judge may set aside a deemed conviction if

(a) a ticket reviewer endorses in the record of disposition under subsection 16.92(2) the fact that the conditions are fulfilled, or

(b) the defendant has paid the fixed penalty under section 16.8.

117.1( 2) Subsection (1) only applies if

(a) the defendant applies no later than 45 days after

( i) the day the fixed penalty referred to in section 16.8 is paid, or

( ii) the day the ticket reviewer endorses in the record of disposition under subsection 16.92(2) the fact that the conditions are fulfilled; and

(b) the judge is satisfied that the defendant’s failure to contest the alleged offence occurred through no fault of the defendant.

117.1( 3) If leave is granted,

(a) a notice of dispute is filed with the office of the court, in which case section 16.9 applies with the necessary modifications, and

(b) the amount of the fixed penalty paid by the defendant shall be deposited with the office of the court and retained until the proceedings are concluded.

117.1( 4) When the proceedings are concluded, the amount of the fixed penalty retained under paragraph (3)(b) shall

(a) be returned to the defendant if the defendant is acquitted, or

(b) be applied towards discharge of the fine if the defendant is convicted.

117.1( 5) A judge may set aside the conviction of a defendant who has been deemed to have been convicted of an offence under section 16.91 if the copy of the violation ticket was filed with the ticket reviewer after payment of the fixed penalty set out in the violation ticket.

21 Subsection 123(2) of the Act is amended by striking out “a ticket” and substituting “a ticket, a violation ticket”.

22 Section 124 of the Act is amended

(a) in subsection (3) by striking out “or a ticket” and substituting “, a ticket or a violation ticket”;

(b) in subsection (5) in the portion preceding paragraph (a) by striking out “or a ticket” and substituting “, a ticket or a violation ticket”.

23 Paragraph 126(1)(b) of the Act is repealed and the following is substituted:

(b) a ticket or a violation ticket has not been served,

24 Subsection 132(1) of the Act is amended by striking out “ticket” and substituting “ticket, violation ticket”.

25 Subsection 146(1) of the Act is amended

(a) by repealing paragraph (b) and substituting the following:

(b) specifying offences to be prescribed offences for the purposes of section 9;

(b) by adding after paragraph (b) the following:

(b.1) prescribing for the purposes of subsection 16.1(1) the classes of persons entitled to be appointed ticket reviewers;

(b.2) prescribing for the purposes of subsection 16.1(2) the functions or duties to be carried out by a ticket reviewer;

(b.3) specifying offences to be prescribed offences for the purposes of section 16.2;

(e.01) prescribing for the purposes of paragraph 16.3(2)(a) the wording which may be used in a violation ticket to describe the offence with which a defendant is charged;

(e.02) respecting the requirements, for the purposes of section 16.6, for the creation, completion, signature, provision, recording or entering of a violation ticket that is created, completed or signed electronically or for its reproduction by printing or reconversion to electronic form;

(e.03) prescribing the period under section 16.7;

(d) by repealing paragraph (e.1) and substituting the following:

(e.1) prescribing an administrative fee for the purposes of paragraph 14(5)(d) or 16.8(3)(d) or subsection 46(1.1);

CONSEQUENTIAL AMENDMENTS, CONDITIONAL AMENDMENT AND COMMENCEMENT

Provincial Offences Procedure for Young Persons Act

26 Subsection 6(8) of the Provincial Offences Procedure for Young Persons Act, chapter P-22.2 of the Acts of New Brunswick, 1987, is repealed and the following is substituted:

6( 8) Sections 16.1 to 16.92 and 27.1 of the Provincial Offences Procedure Act do not apply in relation to a young person.

Victims Services Act

27 Section 15 of the Victims Services Act, chapter 113 of the Revised Statutes, 2016, is amended

(a) by repealing paragraph (1)(c) and substituting the following:

(c) who makes a payment in accordance with subsection 14(1) or (2) or 16.8(1) or (2) of the Provincial Offences Procedure Act in respect of an offence charged in a ticket or violation ticket served on the person under that Act.

(b) by repealing subsection (4) and substituting the following:

15( 4) If a person is convicted in accordance with subsection 16(1) or 16.9(7) or paragraph 29(1.1)(a) of the Provincial Offences Procedure Act, the surcharge payable shall be the amount included in the fixed penalty in accordance with paragraph 14(5)(c) or 16.8(3)(c) of that Act and no additional surcharge shall be imposed in respect of the conviction.

Motor Vehicle Act

28( 1) Section 1 of the Motor Vehicle Act, chapter M-17 of the Revised Statutes, 1973, is amended by adding the following definition in alphabetical order:

“ticket reviewer” means a ticket reviewer appointed under section 16.1 of the Provincial Offences Procedure Act; (examinateur de billets)

28( 2) Section 264 of the Act is amended by striking out “Every judge” and substituting “Every judge and every ticket reviewer”.

28( 3) Section 265 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

265( 1) Subject to subsection (2.01), within ten days after a ticket reviewer sends a notice referred to in subsection 347.1(1) or within ten days after conviction or forfeiture of bail of a person on a charge for an offence under this Act or other law regulating the operation of vehicles on highways or for a criminal offence in the commission of which a vehicle was used, or after an order directing a discharge under subsection 255(5) of the Criminal Code (Canada), every ticket reviewer who sends a notice and every judge or clerk of the Court of record in which the conviction was had, bail was forfeited or discharge was directed shall prepare and forward to the Registrar an abstract of the record of that Court covering the case, which abstract shall be certified by the person required to prepare it to be true and correct.

(b) in subsection (2.01)

( i) in the portion preceding paragraph (a) by striking out “Where a ticket” and substituting “When a ticket or violation ticket”;

( ii) by repealing paragraph (b) and substituting the following:

(b) if the conviction is under subsection 14(8) or 16.8(5) of the Provincial Offences Procedure Act, but is not in relation to a breach of a municipal or rural community by-law, the fixed penalty paid or accepted under section 14 or 16.8 of that Act, excluding any administrative fee referred to in paragraph 14(5)(d) or 16.8(3)(d) of that Act that is required to be retained by Service New Brunswick under section 115 of that Act.

28( 4) Subsection 347.1(1) of the Act is amended by striking out “the judge or the clerk of the Court” and substituting “the judge, the ticket reviewer or the clerk of the Court”.

Conditional amendment

29 If subsection 103(3) of An Act Respecting Local Governance and Community Planning, chapter 20 of the Acts of New Brunswick, 2017, comes into force before subparagraph 28(3)(b)(ii) of this Amending Act, subparagraph 28(3)(b)(ii) of this Amending Act is repealed and the following is substituted:

( ii) by repealing paragraph (b) and substituting the following:

(b) if the conviction is under subsection 14(8) or 16.8(5) of the Provincial Offences Procedure Act, but is not in relation to a breach of a local government by-law, the fixed penalty paid or accepted under section 14 or 16.8 of that Act, excluding any administrative fee referred to in paragraph 14(5)(d) or 16.8(3)(d) of that Act that is required to be retained by Service New Brunswick under section 115 of that Act.

Commencement

30 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.