Regulations Amending the Contraventions Regulations (Schedule XVI): SOR/2021-107
Canada Gazette, Part II, Volume 155, Extra Number 4
SOR/2021-107 May 21, 2021
P.C. 2021-422 May 21, 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 (Schedule XVI).
Regulations Amending the Contraventions Regulations (Schedule XVI)
1 The portion of item 7 of Schedule XVI to the Contraventions Regulations footnote 1 in column III is replaced by the following:
Coming into Force
2 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.)
In response to the COVID-19 coronavirus pandemic, the Government of Canada has made numerous emergency orders under the Quarantine Act designed to slow and prevent the spread of COVID-19, by restricting entry into Canada or subjecting persons entering Canada to certain conditions, notably requiring any person returning from travelling abroad to self-isolate for 14 days. In April 2020, certain Quarantine Act offences were designated as contraventions (SOR/2020-86) in order to provide enforcement authorities with an additional enforcement tool to improve compliance with the Quarantine Act and the emergency orders made under that Act. The offences designated as contraventions pertain to obligations imposed on individual travellers with respect to international travel requirements and mandatory isolation upon arriving in Canada. The ticketing scheme established by the Contraventions Act, known as the Contraventions Regime, provides another option for enforcing certain federal offences of a regulatory nature as the offender can choose to plead guilty and pay a fine without having to appear in court.
The fine amounts set under the Contraventions Regulations were increased in February 2021 (SOR/2021-13), in response to the growing concern that Canadians continued to engage in non-essential travel and in light of the emerging new and more contagious variants of COVID-19, travellers who contravene the Quarantine Act upon return to Canada posed a serious and heightened threat to public health. The Public Health Agency of Canada (PHAC) determined that the previously set fine amounts were not perceived by Canadians as being sufficiently high to deter them from engaging in non-essential travel and to urge them to comply with Quarantine Act’s obligations.
PHAC remains concerned as Canadians continue to engage in non-essential travel and neglect to comply with several measures of the emergency orders made under the Quarantine Act. There are reports that some travellers are choosing to pay fines rather than comply with the quarantine measures in place, such as the obligation to isolate in a designated government-authorized accommodation and pay for the stay, determining that being issued a contraventions ticket could be less costly than fulfilling their obligations. An increased fine amount is therefore required for the existing contravention listed under item 7 of Schedule XVI to the Contraventions Regulations which relates to the failure of complying with emergency orders prohibiting or subjecting to any condition, the entry of a traveller into Canada. This is to re-emphasize to Canadians the seriousness of contravening these offences while striking an appropriate and strengthened deterrence approach. The increased fine amount also enables PHAC to reinforce its leadership role in the context of an unprecedented pandemic that continues to persist, to firmly reiterate its concise, unequivocal, and strong message to Canadians about the importance of the measures in place.
The COVID-19 coronavirus disease outbreak is a global issue and has been declared a pandemic by the World Health Organization. It has been demonstrated that the virus can cause severe, life-threatening respiratory disease. Human-to-human transmission remains the predominant route of transmission of the current outbreak of this disease.
The purpose of the Quarantine Act is to prevent the introduction and spread of communicable diseases such as COVID-19. It is applicable to persons and conveyances arriving in or in the process of departing from Canada. It provides measures for the screening, health assessment and medical examination of travellers to determine if they have a communicable disease and control measures to prevent the introduction and spread of communicable diseases.
The Quarantine Act authorizes the Governor in Council to make emergency orders prohibiting any class of persons who have been in a foreign country from entering Canada, or subjecting their entry into Canada to any conditions. In the context of the Government of Canada’s response to COVID-19, numerous emergency orders have been made since early February 2020. As an additional measure, a ticketing scheme for contravening the Quarantine Act was put in place in April 2020 under the Contraventions Act.
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 the federal offences designated as contraventions, provide the short-form description of these offences 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.
In April 2020, 10 offences of the Quarantine Act were designated as contraventions under Schedule XVI to the Contraventions Regulations with associated fine amounts (SOR/2020-86). In February 2021, fine amounts were increased, as they revealed to be insufficiently high to impact the behaviour of Canadians when they engage in non-essential travel. Subsection 34(2) of the Quarantine Act, requiring that vessel operators declare real or suspected illness onboard their vessels prior to arriving in Canada, was also designated as a contravention (SOR/2021-13).
Canadians engaging in non-essential travel remains a critical concern during this pandemic. Further concerns include reports that some travellers are choosing to pay fines rather than comply with the quarantine measures in place, determining that being issued a contraventions ticket could be less costly than fulfilling their obligations.
This amendment to the Contraventions Regulations directly supports the Government of Canada’s response to COVID-19 and contributes to its continued efforts to prevent or reduce risks to the health of Canadians. Furthermore, this amendment is part of ongoing efforts to ensure compliance through the use of an efficient and consistent enforcement tool. The increased fine amount, now more proportionate to the seriousness of the offence, is meant to discourage any traveller from choosing to pay the fine in lieu of fulfilling their obligations under the Quarantine Act and emergency orders made thereunder. For those reasons, this amendment is made on an expedited basis.
The objective of this amendment is to pursue additional efforts to prevent the spread of COVID-19 among Canadians by including a meaningful and more persuasive fine in order to improve and maintain compliance with the Quarantine Act and related emergency orders made under that Act. The purpose is to ensure better deterrence of non-compliance and to send a clearer and stronger message on the severity associated with non-compliance.
The increase of the fine amount for this existing contravention is intended to provide enforcement authorities with a useful and additional enforcement tool to improve compliance with the Quarantine Act. The intended benefits of using the Contraventions Regime are a more efficient and standardized enforcement regime.
The amendment increases the fine amount for the contravention of the Quarantine Act currently listed as item 7 under Schedule XVI to the Contraventions Regulations. The fine is increased from $3,000 to $5,000.
This contravention (section 58 of the Quarantine Act) pertains to the obligation of a traveller to comply with an emergency order prohibiting or subjecting to any condition the entry of the traveller into Canada. This includes pre- and post-arrival testing requirements, the mandatory three-day stay at government-authorized accommodation when arriving by air, and the requirement to quarantine for 14 days or to enter isolation if symptomatic.
The amendment to the Contraventions Regulations continues to support the Government of Canada’s efforts to prevent risks to the health of Canadians in the context of the challenging third wave of the COVID-19 pandemic. As it has been made on an expedited basis, no formal public consultations were undertaken.
The amendment to the Contraventions Regulations increases an existing fine amount and does not create new offences nor does it impose new restrictions or burdens on individuals or businesses. As such, this amendment was 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.
In order to improve the impact of the existing contravention related to section 58 of the Quarantine Act, the fine amount must be increased and an amendment to the Contraventions Regulations is required. Therefore, no non-regulatory options were considered.
Benefits and costs
The previous fine amount for the contravention of section 58 of the Quarantine Act was insufficient to significantly impact the behaviours of travellers. In some instances, travellers can find it more cost-effective to pay the fine rather than comply with the measures in place through the emergency orders.
Increasing the fine amount for this existing contravention enables PHAC to send a clearer message about the severity of non-compliance which undermines governmental efforts to prevent and ultimately eradicate the spread of COVID-19. More importantly, from a costs and benefits perspective, the new fine amount contributes to efforts to avoid overwhelming governmental quarantine facilities, front-line hospitals and long-term care homes. As a consequence, this amendment promotes compliance with improved measures implemented to curtail the spread of COVID-19.
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 prosecutions costs and time spent by enforcement officers preparing for court. Though 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 Services of Canada at the request of client departments on a need basis. The costs associated with this training is integral to ongoing activities and is generally not dependent on any one specific amendment to the Contraventions Regulations.
Small business lens
Analysis under the small business lens concluded that the amendment will not impact Canadian small businesses.
The one-for-one rule does not apply to this amendment, as there is no incremental change in administrative burden on businesses.
Regulatory cooperation and alignment
This amendment is 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 this amendment does not create new requirements or burdens on individuals; it increases the fine amount for an existing contravention.
It is important to note that the purpose of the Contraventions Act is to ensure that the enforcement of offences designated as contraventions is less onerous on the offender and more proportionate and appropriate to the seriousness of the offence when compared to the procedure set out in the Criminal Code.
It is also important to note that COVID-19 has been demonstrated to more severely affect a vulnerable subpopulation of persons, specifically older adults with comorbidities, as well as those who are immunocompromised. The Government of Canada is supporting efforts to address this serious risk to these vulnerable populations by enabling a ticketing regime to enforce requirements under the Quarantine Act.
In general, the Contraventions Regulations enable reasonable enforcement of regulations and statutes while ensuring consistency of enforcement with similar types of offences.
The amendment to the Contraventions Regulations is meant to remedy non-compliance as the government is coping with a persistent and challenging third wave of COVID-19.
The Government of Canada has determined that a fine increase is needed in order to firmly reiterate to Canadians the seriousness of the domestic COVID-19 situation and to further deter individuals from violating the emergency orders under the Quarantine Act.
The increased fine amount, which is solely meant to be imposed on individuals, namely travellers, was determined in light of the reassessment performed by PHAC of this offence’s degree of seriousness. In the context of emerging new and more contagious variants of COVID-19, travellers who contravene the Quarantine Act upon returning to Canada pose a serious and heightened threat to public health. The increased fine amount reinforces the importance of the Quarantine Act measures and is to impress upon travellers the need to take their obligations seriously. The fine amount is at the highest level possible under the Contraventions Regime where the maximum fine amount that can be contemplated for a contravention, in the absence of any specific provisions within the primary statute, is $5,000 (corresponding to the maximum fine under the Criminal Code’s summary conviction procedure) and serves as a greater deterrent for violating the obligations under the emergency orders under the Quarantine Act.
Implementation and compliance and enforcement
These Regulations come into force on the day on which they are registered.
Compliance and enforcement
The amendments to the Contraventions Regulations provide enforcement officers with an appropriate enforcement measure, allowing them to fulfill their mandate effectively and promote legislative and regulatory compliance.
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