Regulations Amending the Contraventions Regulations: SOR/2021-132
Canada Gazette, Part II, Volume 155, Number 13
Registration
SOR/2021-132 June 10, 2021
CONTRAVENTIONS ACT
P.C. 2021-529 June 10, 2021
His Excellency the Administrator of the Government of Canada in Council, on the recommendation of the Minister of Justice, pursuant to section 8 footnote a of the Contraventions Act footnote b, makes the annexed Regulations Amending the Contraventions Regulations.
Regulations Amending the Contraventions Regulations
Amendments
1 The portion of item 3 of Part I.2 of Schedule I.1 to the Contraventions Regulations footnote 1 in column II is replaced by the following:
| Item | Column II Short-Form Description |
|---|---|
| 3 | Operating power-driven vessel or electrically propelled vessel that has an aggregate maximum power greater than 7.5 kW where prohibited |
| Item | Column III Fine ($) |
|---|---|
| 1 | 500 |
| 2 | 750 |
Coming into Force
3 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
Unlawful interference with railway property, systems, and infrastructure can have major impacts on public safety, the environment, and the economy.
In recent years, there have been an increasing number of reported incidents relating to sabotage, tampering, and vandalism, as well as other related incidents (interference, suspicious activity, and trespassing). While there have not yet been fatalities linked to these events, these incidents create risks for the safety of the travelling public, critical infrastructure, surrounding neighbourhoods, railway staff and even to those persons conducting the infractions.
Increased fine amounts are required for the existing two offences under the Railway Safety Act that are currently designated as contraventions under Schedule X to the Contraventions Regulations in order to effectively deter these actions and encourage compliance by Canadians.
Further, a technical amendment to Schedule I.1 of the Contraventions Regulations is required to update and align its short-form description of the offence set out in subsection 2(3) of the Vessel Operation Restriction Regulations following a recent regulatory amendment to that provision.
Background
Enacted in 1992, the Contraventions Act provides an alternative to the summary conviction procedure set out in the Criminal Code for the prosecution of certain federal offences. This procedure reflects the distinction between criminal offences and regulatory offences. It allows enforcement authorities to commence the prosecution of a contravention by means of a ticket with the option of voluntary payment of the prescribed fine, therefore avoiding the longer and more costly summary conviction procedure set out in the Criminal Code. This spares the offender from the legal ramifications of a Criminal Code conviction (such as a criminal record) while ensuring that court and criminal justice resources can be focussed on the prosecution of more serious offences. This ticketing procedure is a more reasonable and effective approach for relatively minor infractions, and provides for fines that are more proportionate to the seriousness of these offences.
Made under section 8 of the Contraventions Act, the Contraventions Regulations identify which federal offences are designated as contraventions, provide a short-form description and prescribe the amount of the fine for each of these contraventions. The short-form description is reproduced on the ticket given to the offender.
Railway Safety Act
Two offences in the Railway Safety Act have been designated as contraventions under Schedule X of the Contraventions Regulations. The offence under section 26.1 of the Railway Safety Act was designated in 1996 with a fine set to $100, and the offence under section 26.2 was designated in 2006 with a fine set to $150, which was consistent with fines applicable to similar provincial highway offences at the time.
Despite the Government's ongoing railway security initiatives, securing the rail system remains difficult. The inherent openness, as well as the volume of goods and passengers that it carries, makes it an attractive target for attacks and unlawful interference. Transport Canada continues to strengthen the rail security program at the legislative, regulatory and program levels in order to address identified gaps and emerging security concerns. This includes measures to address trespassing and the interference with the safe operation of the railway system, given the recent increase of such incidents. Transport Canada has determined that the current fine amounts, set 15 and 25 years ago, are not sufficiently significant to deter potential trespassers or to deter those who intentionally impede the safe flow of a train. An increase in fines under the Contraventions Regulations is a key component of this strategy.
Vessel Operation Restriction Regulations
The offence set out in subsection 2(3) of the Vessel Operation Restriction Regulations was designated as a contravention in 2009 under Schedule I.1 of the Contraventions Regulations. Subsection 2(3) of the Vessel Operation Restriction Regulations restricts the use of power-driven vessels in specified waters, and was amended in 2020 to add a restriction on the use of electrically propelled vessels with aggregate maximum power greater than 7.5 kW (SOR/2020-252).
Objective
The amendments to Schedule X of the Contraventions Regulations are made to serve as a more effective deterrent and to assist in reducing incidents of trespassing and impeding of rail lines, as well as reducing incidents of tampering and sabotage, by including more meaningful fines. It is anticipated that these amendments will contribute towards a strengthened rail security regime and to the Government's objective of protecting the railway infrastructure in Canada, which in turn, will positively impact public safety, the environment, and the economy.
The amendment to Schedule I.1 of the Contraventions Regulations preserves the integrity of the contraventions ticketing regime by ensuring that the short-form description, which is reproduced by enforcement officers on the contraventions ticket, reflects the amendment to the offence set out in subsection 2(3) of the Vessel Operation Restriction Regulations.
Description
The amendments to the Contraventions Regulations do not create new offences nor do they impose new restrictions or burdens on individuals or businesses.
Railway Safety Act
The amendments increase fine amounts for the following contraventions of the Railway Safety Act currently listed under Schedule X to the Contraventions Regulations:
- Enter on land on which a line work is situated (section 26.1): the fine is increased from $100 to $500; and
- Fail to give way to railway equipment at a road crossing (section 26.2): the fine is increased from $150 to $750.
Vessel Operation Restriction Regulations
The amendments also update the short-form description for the contravention currently listed under item 3 of Part I.2 of Schedule I.1 of the Contraventions Regulations to reflect the new wording of subsection 2(3) of the Vessel Operation Restriction Regulations, which was amended in 2020 to include a restriction on the use of electrically propelled vessel with aggregate maximum power greater than 7.5 kW. The former short-form description was worded as “Operating power-driven vessel where prohibited”. The new short-form description now reads as the following:
- Operating power-driven vessel or electrically propelled vessel that has an aggregate maximum power greater than 7.5 kW where prohibited.
Regulatory development
Consultation
Transport Canada had been consulting on the proposal to amend Schedule X of the Contraventions Regulations (Railway Safety Act) as of December 2020 at meetings with the Rail Security Working Group, which consists of freight and passenger railway companies, railway police, selected police organizations, the Royal Canadian Mounted Police, and the Privy Council Office. Feedback at these meetings has been positive and attendees concur that fine increases would be helpful in increasing rail security.
In addition, Transport Canada conducted consultations with the public from February 19 to March 31, 2021, through “Let's Talk Transportation,” the departmental online consultation portal. While limited feedback was provided and various respondents have different opinions in terms of the fine levels (e.g. some believe the proposed levels are too high while others think they are too low compared to the fine levels of some provinces), all submissions indicated support to the Department's effort to increase the fines to make them a more effective deterrent. The Department has carefully reviewed the comments and taken them into consideration.
No public consultation was conducted regarding the amendment to Schedule I.1 of the Contraventions Regulations, as it is a technical amendment to ensure that a short-form description in the Contraventions Regulations accurately reflects the provision of the Vessel Operation Restriction Regulations to which it refers. However, Transport Canada conducted public consultation regarding the 2020 amendment to subsection 2(3) of the Vessel Operation Restriction Regulations. The amendment was discussed in 2018 and 2019 at meetings of the Canadian Marine Advisory Council and the National Recreational Boating Advisory Council. It was published in the Canada Gazette, Part I, on March 7, 2020, which indicated that violations of the Vessel Operation Restriction Regulations would continue to be enforced under the Contraventions Act ticketing regime. No comments were received from stakeholders following the public consultations nor during the Canada Gazette comment period that ended on July 3, 2020.
The amendments to the Contraventions Regulations do not create new offences nor do they impose new restrictions or burdens on individuals or businesses. They increase existing fine amounts for offences contained in the Railway Safety Act and update the existing short-form description for an offence contained in the Vessel Operation Restriction Regulations. Therefore, these amendments were not prepublished in the Canada Gazette, Part I.
Modern treaty obligations and Indigenous engagement and consultation
An initial assessment of modern treaties was undertaken. The assessment did not identify any modern treaty implications or obligations.
Instrument choice
In order to improve the impact of existing contraventions through increases to fine amounts, and to reflect amendments made to substantive regulations, amendments to the Contraventions Regulations are required. Therefore, no non-regulatory options were considered.
Regulatory analysis
Benefits and costs
The increase of existing contraventions fine amounts provides enforcement officers with an improved enforcement tool to better enforce the provisions of the Railway Safety Act. The fine increases are expected to assist in deterring trespassers, as well as sabotage and interferences, while encouraging compliance with the provisions of the Railway Safety Act.
Increasing fine amounts also enables Transport Canada to send a clear message regarding its commitment to protect Canada's rail transportation system by enhancing the security program within Canada, which in turn is expected to have a positive impact on public safety, the economy and the environment.
While there is no data from which one can draw a comparison, there is consensus among all key players (federal institutions, enforcement authorities, the courts and the public) that prosecutions by way of ticketing results in savings to the entire justice system as it provides the offenders, law enforcement and courts with a quick and convenient process for handling designated offences. Ticketing, to a large extent, is intended to divert designated offences from the courts, resulting in savings for the government in terms of prosecution costs, and enabling the courts to focus on matters that require judicial consideration. Ticketing also frees up a great amount of enforcement officer's time. Less time in the office preparing for court means more dedicated time for monitoring and control efforts. Furthermore, offenders will be subject to a process that can be more appropriate and proportionate to the nature of the offence. The offender can pay the fine and avoid the burden of having to appear in court or, should they choose to plead not guilty, the ticket can be contested in court.
Costs incurred by the provinces in the administration of federal contraventions are covered by the revenues generated by the payment of fines, making the contraventions regime cost neutral. The surplus fine revenues are shared equally between the federal and provincial governments. The agreements signed with the provinces include clauses to that effect.
Generally, issuing contraventions tickets is more costly than relying on warnings or simply not enforcing the offences. However, those are not meaningful alternatives to the contraventions regime. The Contraventions Act provides enforcement officers with a quick and convenient process to lay charges by means of tickets. As a court appearance is not required where the accused voluntarily pays the set fine, the result is savings in terms of prosecution costs and time spent by enforcement officers preparing for court. The actual payment of fines is not considered a cost since individuals whose activities are contrary to prevailing laws and regulations do not have standing (i.e. whether the costs should count) in this context.
Training on the contraventions regime is provided by the Department of Justice in collaboration with client departments, provincial court services counterparts and the Public Prosecution Service of Canada at the request of client departments on an as-needed basis. The costs associated with this training are integral to ongoing activities and are generally not dependent on any one specific amendment to the Contraventions Regulations.
Small business lens
Analysis under the small business lens concluded that the proposal will not impact Canadian small businesses.
One-for-one rule
The one-for-one rule does not apply to this initiative, as there is no incremental change in administrative burden on business.
Regulatory cooperation and alignment
These amendments are not related to a work plan or commitment under a formal regulatory cooperation forum.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus (GBA+)
No differential impacts are expected on the basis of gender or other identity factors as these amendments do not create new requirements or burdens on individuals; they increase existing contraventions fine amounts and merely update a short-form description of an existing contravention to align with its substantive regulation.
Rationale
The amendments to the Contraventions Regulations involving the increased fine amounts for the Railway Safety Act offences are meant to ensure a higher level of compliance as the Government aims to further protect the railway infrastructure in Canada and to promote a safe, secure, efficient and environmentally responsible transportation system.
The new fine amounts are aligned with other transport-related schedules outlined within the Contraventions Regulations.
Further, the fine amount of $750 for section 26.2 (failure to give way to railroad equipment at a road crossing) is commensurate with the more serious offence of blocking a rail line. Impeding the safe operation of a train, which may not be able to stop in a timely manner, could lead to a crash or derailment, could cause injury or death and could have significant impact on the surrounding area. An example of this type of impediment would be the placement of furniture or barriers on the railway tracks.
The amendment to Schedule I.1 is a technical amendment that ensures that the short-form description reproduced by enforcement officers on contravention tickets for violations of subsection 2(3) of the Vessel Operation Restriction Regulations reflects the updated wording of that provision.
Implementation, compliance and enforcement, and service standards
Implementation
These regulations will come into force on the day on which they are registered.
Compliance and enforcement
The amendments to the Contraventions Regulations give enforcement officers an appropriate enforcement measure with fine amounts that are consistent with other similar transport-related fines under the Contraventions Regulations, allowing them to fulfil their mandate effectively and promote legislative compliance.
Contact
Amy-Lyne Gauthier
Counsel
Legal Services Division
Programs Branch
Policy Sector
Department of Justice Canada
284 Wellington Street
Ottawa, Ontario
K1A 0H8
Telephone: 343‑998‑7392