Published in the National Post on November 28th, 2011
From the earliest days of Premier Dalton McGuinty’s reign, the voters of Ontario have come to expect that billions of dollars will be wasted on scandals and disguised or scurrilous government contracts. It’s old news that the Liberals spent billions needlessly because they could not keep track of e-health records, but now we are learning that another billion dollars has been lost on uncollected provincial fines.
A report tabled last week by the Ontario Association of Police Service Boards stated that they have lost $1 billion in unpaid traffic tickets. Provincial offences are misdemeanours, not criminal offences. Fines were originally conceived as a modest correction for behaviours that don’t cause serious harm to people or property.
Provincial offences now cover numerous everyday actions which, you may be surprised, could land you with a hefty fine. Drinking a glass of raw milk is illegal in Ontario, as is smoking in your personal work truck. You can be fined for butchering your own animals if you’re a farmer, or have your car seized at the roadside if you’re going 50km/h over the speed limit.
The facts are known but ought to be restated for clarity. In the 1970s less than $1,000 per year went unpaid in provincial fines; this amount has risen exponentially since the 1990s and last year alone mushroomed to $100 million in unpaid fines.
Contrary to the political spin that surrounds the lost money, enforcement mechanisms have also increased exponentially. Governments can now suspend drivers licences, block vehicle plate renewals, add demerit points for non-safety-related infractions such as seatbelt violations and even add provincial fines to property tax rolls and temporarily impound or permanently seize properties such as vehicles and real estate. None of these enforcement tools were available until recently.
What gets lost in the process are some basic principles. There are three fundamental requirements that all laws must conform to, and when they do, they are respected.
First, the law must be timely in its punishment. Secondly it must be applied consistently and thirdly the punishment must be proportional to the offence.
Ontario’s provincial offences often fail miserably in one or all three of these categories
Ontario fails most often in applying the law of consistently. Generally, most people speed on provincial highways or municipal roads, but few as a percentage are caught. It is clear our speed limits do not reflect people’s driving habits or sense of safety, and make offenders out of a few while the majority go unpunished. The same also applies to a host of other McGuinty pet issues – talking on cell phones, and other minor highway traffic offences.
Fines have increased dramatically and disproportionately with time, which in itself creates disrespect for the law. A prime example is the minimum $5,000 fine for failure to produce vehicle insurance certificates. For many in Ontario, the only remedy for being caught with a recently expired insurance card is to keep driving illegally, and hope that you do not get caught again. Enlightened legal reformers from the past understood that hanging a man for stealing a loaf of bread was disproportionate punishment, but there were many thieves nonetheless because there were only a few judges willing to impose the maximum punishment.
The application of law can actually create victims with their inconsistency, lack of proportionality and lack of timeliness. Potential fines of over $50,000 are mandatory for harming a bird or turtle nest, not preventing an accidental fall in the workplace, or not trimming your cattle’s hooves. For many people faced with such abusive penalties, the only recourse is to close the business; sell the farm and or seek cover from the law.
Although Ontario now has over half a million laws and more provincial offences on the books than any other province in Confederation, we’re collecting fewer fines as more people view many provincial offences as illegitimate. This is the unseen consequence when the law is used as a revenue stream rather than for preventing injustice.
If you don’t believe we’re seeing the rule of law collapse, just ask the residents of Caledonia. Meanwhile, the law is not enforced on the illegal native cigarette trade, now worth well over a billion dollars per year in Ontario alone. All the while, legitimate retailers face a myriad of provincial offences and enforcement mechanisms.
The answer is not more laws, more regulations, or more enforcement. The answer is smarter legislation, from politicians who are willing to think about both the seen and unseen consequences of the law.