Office of the Fire Marshal |
OFM-TG-01-2006 |
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Commencing Proceedings Under Part I of the Provincial Offences Act |
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February 2006 |
3.1 Appointment
3.2 Limitations of Appointment
4.1 The Offences and Penalty
4.2 Commencing A Proceeding
4.3 Completing The Certificate Of Offence and Offence Notice Or Summons
4.4 Serving The Offence Notice Or Summons - On A Person On The Offence Date
4.5 Serving The Offence Notice Or Summons - On A Person After The Offence Date
By The Provincial Offences Officer Who Signed The Certificate Of Offence
4.6 Serving The Offence Notice Or Summons – On A Corporation
4.7 Service By A Provincial Offences Officer Other Than The Provincial Offences
Officer Who Signed The Certificate Of Offence
7.1 Option For A Trial
7.2 First Attendance Meeting
7.3 Plead Guilty With Representations
7.4 Plead Guilty
7.5 Fail To Respond
February 2006
OFM Section: Fire Safety Standards at (416) 325-3100
The reproduction of this guideline for non-commercial
purposes is permitted and encouraged. Permission to reproduce the guideline for
commercial purposes must be obtained from the Office of the Fire Marshal,
Ontario.
Assistants to the Fire Marshal have been appointed as provincial offences officers with limited authority under the Provincial Offences Act. This designation authorizes them to commence proceedings under Part I of the Provincial Offences Act for offences under the Ontario Fire Code (O. Reg. 388/97) for which short form wording and set fines have been established.
This guideline is intended to assist these provincial offences officers by providing a step-by-step process to follow while initiating a proceeding.
Articles 2.13.2.3., and 6.3.3.2. through 6.3.3.5 of the Ontario Fire Code may be enforced under Part I of the Provincial Offences Act by a provincial offences officer. A set fine of $200.00 (including costs) has been prescribed by the Chief Judge, Provincial Division for each of these offences. Alternatively, anyone can institute a proceeding for these violations under Part III of the Provincial Offences Act by swearing an information.
This guideline will assist a provincial offences officer in initiating a
proceeding under Part I of the Provincial Offences Act.
The guideline provides a variety of steps that may be taken depending upon the
circumstances (i.e. issuing an offence notice or summons on the offence date,
after the offence date, on a corporation, on a person, etc.).
Article 2.13.2.3. of the Fire Code requires the installation of smoke alarms
in all dwelling units, with the exception of dwelling units constructed under
the Building Code and dwelling units regulated under Part 9 of the Fire Code.
Article 6.3.3.2. requires that the owner of the property or the landlord (in the
case of a rental dwelling unit including a dwelling unit regulated under Section
9.8) maintain smoke alarms in operating condition. Article 6.3.3.3. requires
that the landlord provide a copy of the smoke alarm manufacturers' maintenance
instructions or approved alternative to the occupant of each rental dwelling
unit, including the occupant in a dwelling unit regulated under Section 9.8.
Article 6.3.3.4. prohibits anyone from intentionally disabling a smoke alarm.
Article 6.3.3.5. ensures that when smoke alarms are replaced, the installation
shall not reduce the level of detection originally required at the time of
construction (under the Building Code) or the level prescribed by municipal
by-laws in effect before this Section of the Fire Code came into force.
Prosecution for each of these offences can be initiated by a provincial offences
officer under Part I of the Provincial Offences Act.
For guidance on commencing proceedings by information under Part III of the
Provincial Offences Act, refer to the OFM technical
guideline TG-01-2000, Fire Safety Enforcement.
3.1 Appointment
A provincial offences officer is defined in Section 1 of the
Provincial Offences Act as a police officer or any
other person designated as a provincial offences officer by "a (cabinet)
minister".
The Solicitor General and Minister of Correctional Services has appointed every
Assistant to the Fire Marshal who has been designated under the
Fire Protection and Prevention Act as a provincial
offences officer for the purposes of all offences under the Fire Code (O. Reg.
388/97) which are commenced under Part I of the Provincial
Offences Act. Please refer to Appendix A for a
replica of the designation letter.
3.2 Limitations of Appointment
The appointment of every Assistant to the Fire Marshal as a provincial offences officer is limited by the appointment to initiating an offence under Part I of the Provincial Offences Act (i.e. this appointment does not provide authority to serve a summons under Part III of the Provincial Offences Act).
4.1 The Offences and Penalty
Fire Code Short Form Wording, Set Fine, and Victim Fine Surcharge
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Schedule 17.4 |
SET FINE | ||
| ITEM | COLUMN 1 | COLUMN 2 SECTION |
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| 1. | Fail to install smoke alarm as required | Article 2.13.2.3. | $195.00 |
| 2. | Fail to maintain smoke alarm in operating condition | Article 6.3.3.2. | $195.00 |
| 3. | Fail to provide smoke alarm maintenance instructions to occupant | Article 6.3.3.3. | $195.00 |
| 4. | Intentionally disable smoke alarm to make it inoperable | Article 6.3.3.4. | $195.00 |
| 5. | Replace smoke alarm with reduced level of detection | Article 6.3.3.5. | $195.00 |
Short form wording used to describe violations under the Fire Code, Ontario
Regulation 388/97 are outlined in Schedule 17.4 of R.R.O 1990, Reg. 950. This
schedule and the corresponding set fines are consolidated in the table above for
ease of reference.
The short form wording listed in the table must be used when describing the
contravention.
The total payable amount shown in the Certificate of Offence actually consists
of three separate amounts, namely:
The two different forms in effect for the Certificate of Offence display
these amounts differently, although the resulting total payable is the same in
both forms when used on an equivalent offence.
Depending on the type of ticket form used (form provided by regulation or a
varied form), the provincial offences officer must write $195 or $200 in the
"SET FINE" space and $235 in the "TOTAL PAYABLE" space provided on the ticket
form. Examples found in Appendix B, "Form Provided By
Regulation", and Appendix C, "Varied Form"
demonstrate how the certificate of offence is to be completed.
4.2 Commencing A Proceeding
| WHEN: | "A Provincial Offences Officer who believes that one or more persons have committed an offence… |
| HOW: | …may issue, by completing and signing, a
certificate of offence certifying that an offence has been
committed AND a) an offence notice, OR b) a summons" (Refer to Section 5.0 of the guideline "Issuing A Summons") |
4.3 Completing The Certificate Of Offence And Offence Notice Or Summons
4.4 Serving The Offence Notice Or Summons – On A Person On The Offence Date
4.5 Serving The Offence Notice Or Summons – On A Person After The Offence Date By The Provincial Offences Officer Who Signed The Certificate Of Offence
4.6 Serving The Offence Notice Or Summons – On A Corporation
4.7 Service By A Provincial Offences Officer Other Than The Provincial Offences Officer Who Signed The Certificate Of Offence
Part I of the Provincial Offences Act contains
provisions for serving a summons for instances where there is short form wording
established without a set fine, or where it would not be appropriate for the
defendant to pay out of court. Currently, less than 1% of the tickets issued by
provincial offences officers in Ontario involve a summons.
The practice of issuing a summons under Part I of the
Provincial Offences Act
for Fire Code violations is not a recommended practice.
Instead, Part III of the Provincial
Offences Act should be used.
In instances where the set fine is not deemed to be appropriate (e.g. second
offence), the Assistant to the Fire Marshal should commence a proceeding for the
violation under Part III of the Provincial Offences Act.
Commencement of a proceeding under Part III of the
Provincial Offences Act may result in the maximum penalty imposed under
the Fire Protection and Prevention Act upon
conviction whereas the maximum fine for commencing a proceeding under Part I of
the Provincial Offences Act is limited to $500.00.
The provincial offences officer who serves the offence notice or summons shall not receive payment of any money in respect of a fine or receive the offence notice for delivery to the court.
7.1 Option For A Trial
In the following regions;
a defendant may give notice of intention to appear in court for the purpose
of entering a plea and having a trial of the matter by attending in person or by
an agent at the court office specified in the offence notice at the time or
times specified in the offence notice. The defendant or agent must file a notice
of intention to appear (using the prescribed form) with the clerk of the court.
(O. Reg. 950 made under the Provincial Offences Act)
In all other regions in Ontario, a defendant may give notice of intention to
appear in court for the purposes of entering a plea and having a trial of the
matter by so indicating on the offence notice and delivering the notice to the
court office specified in it.
The clerk of the court will then set a trial date and send a notice to the
defendant and the prosecutor of the time and place of the trial. In instances
where the defendant indicates an intention to challenge the officer's evidence,
the clerk of the court shall notify the provincial offences officer as well.
7.2 First Attendance Meeting
In the regions listed above, when the defendant attends the court to request a
trial, (or calls the court office) the clerk of the court will ask the defendant
if he/she wants a first attendance meeting with the prosecutor. If so, the clerk
of the court schedules a first attendance meeting and issues a first attendance
notice to the defendant and prosecutor. When the prosecutor is served with a
copy of the first attendance notice, he or she will obtain the information from
the provincial offences officer who laid the charge. At a first attendance
meeting, the prosecutor using the same threshold test used at a trial, will
consider whether or not there is reasonable prospect of conviction if the case
were to go to trial and whether or not it is in the public interest to accept a
plea to a lesser offence or a reduction in sentence, taking into consideration
all of the circumstances of the particular case.
If the defendant fails to attend the first attendance meeting, a default
conviction may be registered against the defendant.
If the first attendance meeting results in an agreement between the prosecutor
and the defendant, both will appear before Justice, at which time the plea will
be entered to either the original charge, a substituted offence, or the charge
will be withdrawn.
If the first attendance meeting does not result in resolution, the prosecutor
will advise the defendant to complete a notice of intention to appear in court
and file it with the clerk of the court.
7.3 Plead Guilty With Representations
The defendant may plead guilty with representations where there is no dispute as
to the charge but the defendant wishes to make submissions as to penalty and/or
extensions of time for payment. This is an informal, unrecorded proceeding which
takes place before a justice in the court specified on the offence notice
without a prosecutor. The justice, after hearing representations, may impose the
set fine or such lesser fine as is permitted by law.
7.4 Plead Guilty
The defendant may simply plead guilty by signing the offence notice and
delivering the total payable amount (with the signed offence notice) to the
court office.
7.5 Fail To Respond
The defendant may do nothing in which case, after 15 days have elapsed after the
defendant has been served, he/she will be deemed not to wish to dispute the
charge. A justice will then inspect the certificate of offence and either enter
a conviction and impose the set fine or, where
the certificate of offence is incomplete or irregular, the justice shall quash
the certificate. The justice is required to keep a separate record of all
quashed certificates of offence and the corresponding reasons for that action.
The prosecutor is entitled to inspect that record. If the defendant has done
nothing and a conviction has been entered, the defendant may be able to re-open
the case. Section 11 of the Act allows the case to be re-opened where, through
no fault of the defendant, necessary notice or documents never reached the
defendant's attention.
Under Part I proceedings the maximum penalty is either $500 or the maximum
penalty specified in the Act creating the offence
WHICHEVER IS THE LESSER.
Under Part I proceedings, no provision for imprisonment applies.
If the proceeding is initiated by an offence notice (as opposed to a Part I
summons):
Tickets may be obtained from the local Provincial Government Court Office
where the tickets would normally be returned to. The fire department official
requesting a supply of tickets would have to contact the Manager of Court
Operations to order the desired number of tickets that would be expected to be
used within a 6 month to one year period. There is no cost for the tickets.
In some instances, a supply of tickets may not be readily available for
immediate pick-up.
It is essential to establish a record retention system to facilitate
retrieval of all original records should a case involve a first attendance
meeting, a trial, or if the case is re-opened or there is an appeal.
Pursuant to subsection 1(3) of the Provincial Offences Act, R.S.O. 1990, c.P.33,
I hereby designate,
all Assistants to the Fire Marshal pursuant to subsection 11(1) of the Fire
Protection and Prevention Act, 1997, S.O. 1997, c. 4,
as Provincial Offences Officers for the purposes of all offences under the Fire
Code (Ontario Regulation 388/97 made under the Fire Protection and Prevention
Act, 1997) which are commenced under Part I of the Provincial Offences Act.
Dated at Toronto this 15th day of July, 1998.
Original Signed by Jim Flaherty
Jim Flaherty
Solicitor General and
Minister of Correctional Services
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