Ladies and gentlemen, I've looked at the WAPPRIITA provisions, I've looked at the administrative monetary penalties as well, and I have a lot of concerns, far more than I can tell you in five minutes. But perhaps I can hit some of the major concerns.
People have been very concerned about the small-revenue corporation and also about the financial hardship provisions. I have a little different take on those as a former prosecutor and as a sometime defence counsel. The problem with the small-revenue corporation being sentenced separately, differently, from the large corporation is an evidentiary problem. The gentlemen in green, I suspect, are not auditors and are not accountants, and they will have a lot of difficulty trying to assemble evidence to establish whether a corporation is a small-revenue corporation or a big-revenue corporation. If they are unable, because of lack of resources, to do that.... For any privately held corporation, there's nothing publicly available in the information. There are no filings with security commissions or anything like that. Even if it's a publicly traded corporation, the annual report and the quarterly reports will give you revenue figures, but they won't give you revenue figures that take you to the year immediately preceding the offence date, which is what is required in your statute.
If the statute read differently and you could look at the revenue figures in the annual report for the preceding fiscal year for that particular corporation, then you could conveniently get that evidence for purposes of sentencing for a public corporation. For a private corporation, you need an audit team. And you're going to have some trouble, because once the conviction is entered, the judge is going to say to the prosecutor that we are now going to proceed with sentencing and will ask whether to sentence this corporation as a small-revenue corporation or not. If the prosecutor says that we're proceeding as a small-revenue corporation or the opposite, the judge will ask on what evidence he or she should proceed on that basis. And if that evidence is not before the court, then the defence will pop up and say, “You cannot proceed with sentencing. Thank you, Your Honour, and thank you Madam Prosecutor. We'll see you in due course.” It will be a big embarrassment if that is not addressed and corrected before this legislation is finalized.
That is also a problem in the case of financial hardship. If you're not financing an audit team, then your prosecutor is going to get sandbagged, because every corporation will come in with some credible-looking, smooth person who will say that this will be a terrible financial hardship for them. And in the absence of any provisions for prior disclosure of the intent of the corporation to plead that section and prior disclosure of their data and some sort of opportunity to investigate, your prosecutor is going to be barefoot and embarrassed. And you'll read about it in the paper.
Anyway, that's what I wanted to say about those particular sections.
I would like to talk to you also about some of the other sentencing provisions. In general, you are really trying to micromanage the sentencing process. I don't know if that's very respectful of the judges, but there it is. Proposed subsection 291(2) says that the court can order an offender to publish details of the offence, and if the offender doesn't, the minister can publish it and recover the cost. That's not going to happen. People are not going to be following up on that. It's simply an impractical provision.
Proposed section 287.1 lists a lot of factors that the court is required, as opposed to empowered, to consider. That places a very difficult evidentiary burden on the prosecutor. The court has to consider--it has a legal obligation to consider--and therefore the prosecutor is going to have to adduce evidence on each and every one of those criteria. If it's not there, then the court can't consider it, can't carry out its statutory obligation. I don't like the way that legislation is written for that reason.
I see that you have immunity from personal liability for the people enforcing this legislation, and that's a very good idea. I see in the notes that it is supposed to be for acts done within the scope of their authority. But nowhere does it say that the immunity is limited to acts done within the scope of their authority, and that should be picked up and addressed.
I see there's also a due diligence defence here. It says there is a due diligence defence available on these enforcement provisions, and it doesn't talk about the other great common law defences in regulatory matters, the defence of reasonable mistake of fact or officially induced error. The intent is very unclear here. Does it mean that you can't plead those defences? It should be addressed.
There are a couple of very troubling provisions on the administrative monetary penalties. The first one is that the due diligence defence and reasonable mistake of fact defences are excluded. Officially induced error is not. There is no apparent principled reason for that. You are creating absolute liability. It may or may not be unconstitutional. I should let you know that in Ontario this legislation has been on the books since 1998. It was brought in as part of the common sense revolution, but there were never any regulations brought in to make it happen. From 1998 to 2005 nothing happened. In 2005 the provisions were repealed and re-enacted, and they still haven't been used. There is a way to maybe ensure that these provisions will be used. One way to do it might be to require that there be an annual report filed with the legislatures so the legislatures will know whether the administrators are actually taking advantage of that legislation.
There are a couple of troubling provisions in proposed section 9. Ships' masters and pilots are liable for violations of a crew member or any other person on board the aircraft or ship. If the ship or plane is hijacked by terrorists and they murder somebody, the pilot gets the violation. That does not make sense at all. There is also a troubling provision in proposed section 16 of the administrative monetary penalties. It gives the chief review officer the right to cancel a violation notice at any time before a request for review. That is not a transparent process, and at some point there will be questions about why a violation notice was killed. Somebody will leak something at some point. That should be addressed. Violation notices should be posted on some public register, and if there's going to be a cancellation, it should be posted on the public register with reasons therefor. That process needs to be transparent.
I've used my five minutes. I'll stop there.