Regulations Amending the Contraventions Regulations (Schedule XVIII): SOR/2023-137

Canada Gazette, Part II, Volume 157, Number 14

Registration
SOR/2023-137 June 19, 2023

CONTRAVENTIONS ACT

P.C. 2023-584 June 16, 2023

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, makes the annexed Regulations Amending the Contraventions Regulations (Schedule XVIII) under section 8footnote a of the Contraventions Act.footnote b

Regulations Amending the Contraventions Regulations (Schedule XVIII)

Amendment

1 The Contraventions Regulations footnote 1 are amended by adding after Schedule XVII the Schedule XVIII set out in the schedule to these Regulations.

Coming into Force

2 These Regulations come into force on the day on which they are registered.

SCHEDULE

(Section 1)

SCHEDULE XVIII

(Sections 1 to 4)

Motor Vehicle Transport Act

Commercial Vehicle Drivers Hours of Service Regulations
Item

Column I

Provision of Commercial Vehicle Drivers Hours of Service Regulations

Column II

Short-Form Description

Column III

Fine ($)
1 4(b) (a) Drive when likely to jeopardize safety or health 1000
(b) Request, require or allow driver to drive when likely to jeopardize safety or health 2000
2 4(c) (a) Drive when subject of out-of-service declaration 1000
(b) Request, require or allow driver to drive when subject of out-of-service declaration 2000
3 4(d) Request, require or allow driver to drive when not in compliance with the Regulations 2000
4 12(1) (a) Drive after accumulating 13 hours driving time in a day 1000
(b) Request, require or allow driver to drive after accumulating 13 hours driving time in a day 2000
5 12(2) (a) Drive after accumulating 14 hours on-duty time in a day 1000
(b) Request, require or allow driver to drive after accumulating 14 hours on-duty time in a day 2000
6 13(1) (a) Drive without required off-duty time 1000
(b) Request, require or allow driver to drive without required off-duty time 2000
7 13(2) (a) Drive without required off-duty time 1000
(b) Request, require or allow driver to drive without required off-duty time 2000
8 13(3) (a) Drive after 16 hours have elapsed between two periods of required off-duty time 1000
(b) Request, require or allow driver to drive after 16 hours have elapsed between two periods of required off-duty time 2000
9 14(1) (a) Failure to take at least 10 hours off-duty time in a day 500
(b) Failure to ensure driver takes at least 10 hours off-duty time in a day 1000
10 24 (a) Failure to follow either cycle 1 or cycle 2 500
(b) Failure to require driver to follow either cycle 1 or cycle 2 1000
11 25 (a) Drive without taking required off-duty time 500
(b) Request, require or allow driver to drive without taking required off-duty time 1000
12 26 (a) Drive while failing to follow cycle 1 requirements 500
(b) Request, require or allow driver to drive while failing to follow cycle 1 requirements 1000
13 27 (a) Drive while failing to follow cycle 2 requirements 500
(b) Request, require or allow driver to drive while failing to follow cycle 2 requirements 1000
14 29(1) (a) Switch cycle without taking off-duty time 500
(b) Request, require or allow driver to switch cycle without taking off-duty time 1000
15 39(1) (a) Drive without taking required off-duty time 1000
(b) Request, require or allow driver to drive without taking required off-duty time 2000
16 39(2) (a) Drive after more than 20 hours between two periods of required off-duty time 1000
(b) Request, require or allow driver to drive after more than 20 hours between two periods of required off-duty time 2000
17 49 (a) Failure to follow either cycle 1 or cycle 2 500
(b) Failure to require driver to follow either cycle 1 or cycle 2 1000
18 50 (a) Drive without taking required off-duty time 500
(b) Request, require or allow driver to drive without taking required off-duty time 1000
19 51 (a) Drive while failing to follow cycle 1 requirements 500
(b) Request, require or allow driver to drive while failing to follow cycle 1 requirements 1000
20 52 (a) Drive while failing to follow cycle 2 requirements 500
(b) Request, require or allow driver to drive while failing to follow cycle 2 requirements 1000
21 54(1) (a) Switch cycle without taking off-duty time 500
(b) Request, require or allow driver to switch cycle without taking off-duty time 1000
22 77(1) Failure to ensure commercial vehicle is equipped with ELD as required 1000
23 77(2) (a) Failure to record information associated with record of duty status as required 500
(b) Failure to require driver to record information associated with record of duty status as required 1000
24 77(4) Failure to ensure ELD is configured to allow authorized driver to indicate yard moves 600
25 77(5) Failure to manually input or verify required information in ELD 500
26 77(6) (a) Use more than one ELD at same time 1000
(b) Request, require or allow driver to use more than one ELD at same time 2000
27 77(7) Failure to ensure commercial vehicle carries ELD information packet 600
28 77(8) (a) Failure to record information related to record of duty status in complete and accurate manner 500
(b) Failure to ensure that driver records information related to record of duty status in complete and accurate manner 1000
29 78(1) Failure to ensure ELD operates in good working order and is calibrated and maintained 1000
30 78(2) Failure to notify motor carrier ELD is displaying malfunction or data diagnostic code 500
31 78(3) Failure to record required information 500
32 78(4) Failure to record malfunction or data diagnostic code as required 500
33 78(5) Failure to repair or replace ELD within required time period 1000
34 78(6) Failure to maintain register containing the required information 600
35 78(7) Failure to retain required information for each ELD for required time period 600
36 78.1 Failure to create and maintain system of accounts for ELDs 1000
37 78.2 Failure to certify accuracy of record of duty status immediately after recording last entry for a day 500
38 78.3(1) Failure to verify accuracy of certified records of duty status or require necessary changes 1000
39 78.3(2) Failure to make necessary changes to, certify accuracy of, and forward, amended records of duty status 500
40 81(1) (a) Failure to fill out record of duty status as required 500
(b) Failure to require driver to fill out record of duty status as required 1000
41 82(1) (a) Failure to enter information in record of duty status at beginning of each day 500
(b) Failure to require driver to enter information in record of duty status at beginning of each day 1000
42 82(2) (a) Failure to record information as required in record of duty status 500
(b) Failure to require driver to record information as required in record of duty status 1000
43 82(4) Failure to record required information 300
44 82(6) (a) Failure to record required information and certify its accuracy 500
(b) Failure to require driver to record required information and certify its accuracy 1000
45 84 (a) Drive without possession of required records of duty status and documents 1000
(b) Request, require or allow driver to drive without required records of duty status and documents 2000
46 85(1) (a) Failure to forward record of duty status and documents within required time period 500
(b) Failure to ensure driver forwards record of duty status and documents within required time period 1000
47 85(2) (a) Failure to forward records of duty status and documents within time period 500
(b) Failure to ensure driver forwards records of duty status and documents within required time period 1000
48 85(3)(a) Failure to deposit records of duty status and documents within required time period 1000
49 85(3)(b) Failure to keep records of duty status and documents in chronological order for each driver for required time period 1000
50 86(1) (a) Keep more than one record of duty status in respect of any day 1000
(b) Request, require or allow a driver to keep more than one record of duty status in respect of any day 2000
51 86(2) (a) Enter inaccurate information into or falsify, alter or destroy a record or document 1000
(b) Request, require or allow person to enter inaccurate information into or falsify, alter or destroy a record or document 2000
52 86(3) (a) Tamper with ELD 1000
(b) Request, require or allow person to tamper with ELD 2000
53 87(1) Failure to monitor driver’s compliance with the Regulations 2000
54 87(2) Failure to take remedial action and record required information 2000
55 97.1 Obstruct, hinder or knowingly make false or misleading statements to inspector 1000
56 98(1) Failure to produce requested records of duty status, documents or permit 1000
57 98(2) Failure to produce requested electronic records of duty status or to transmit them as required 1000
58 98(3) Failure to give permit or copy of record of duty status and documents 1000
59 99(1) Failure to produce requested documents during business hours 2000
60 99(2) Failure to transmit electronic records of duty status as required 2000

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

In order to allow for the enforcement of existing regulatory offences contained in the Commercial Vehicle Drivers Hours of Service Regulations (the HOS Regulations) through the ticketing procedure established under the Contraventions Act, the offences must be included in the Contraventions Regulations (the CR).

The ticketing procedure established under the Contraventions Act, known as the Contraventions Regime, provides a way to enforce minor offences without having to appear in court. Making use of this regime for minor offences saves valuable time for the court and for the enforcement agencies (provincial and federal), which can be dedicated to the prosecution of more serious offences. It is therefore a more reasonable and efficient method of enforcement.

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 focused 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 CR identifies which federal offences are designated as contraventions, provides a short-form description and prescribes the amount of the fine for each of these contraventions. The short-form description is reproduced on the ticket given to the offender. The CR is amended when a federal department proposes to designate a given regulatory offence under its jurisdiction as a “contravention” to enable the prosecution of these matters by means of the Contraventions Regime.

The 2017 Evaluation of the Contraventions Act Program found that leaving enforcement officers with no other option than to enforce certain federal offences by way of summary conviction creates strong disincentives to actually enforce these offences. The summary conviction procedure is inadequate in many scenarios involving relatively minor federal offences, as it involves steps, costs and consequences that may be disproportionate to the nature of these offences. Enforcement officers interviewed as part of the evaluation have stated that, in the absence of a ticketing regime, they would routinely elect not to enforce many offences or turn to warnings, which have no legal strength.

As detailed in the 2021 Evaluation of the Contraventions Act Program, designating certain offences under the Quarantine Act — a pivotal tool in managing the COVID-19 pandemic — as contraventions demonstrated the importance and relevance of the Contraventions Regime. The Department of Justice Canada collaborated with all key stakeholders to ensure that enforcement officers could use a ticketing system to enforce a number of offences under this legislation, such as failing to answer questions asked by screening officers, failing to disclose information concerning communicable diseases, or failing to comply with an order prohibiting the entry into Canada. These are informative examples where proceeding with a summary conviction process would prove highly inefficient. During interviews, enforcement officers emphasized the importance of having such offences covered under the Contraventions Act to ensure that immediate action can be taken to change the behaviour of those who fail to comply with these requirements.

Driver fatigue is recognized in Canada and internationally as a critical risk factor associated with motor vehicle crashes. Fatigue in commercial drivers is especially important given that crashes involving large trucks and buses can cause more severe injuries and more frequent fatalities than private passenger vehicle crashes. Commercial motor vehicle drivers are particularly at risk because of the monotonous nature of their work, extended workdays, irregular schedules, and poor sleep hygiene. Driver fatigue results in reduced vigilance and alertness, lower situational awareness, slower reaction times, and judgment errors that can lead to performance failure resulting in critical safety events and crashes. For federally regulated commercial motor carriers and their drivers, the federal government has established the HOS Regulations to limit a driver’s on-duty and driving times and require minimum periods of rest or off-duty time in order to reduce fatigue-related crashes, injuries, and fatalities. The HOS Regulations are intended to help normalize the driver’s natural sleep rhythms and to provide opportunities for daily rest to help drivers recover from the effects of fatigue, while accommodating the efficient and economic movement of goods and passengers. The HOS Regulations contain offences for motor carriers and drivers (e.g. not require or allow a driver to drive if driving would jeopardize safety, the requirement to self-report on-duty and off-duty driving times); however, these had not previously been designated as contraventions. Designating these offences as contraventions provides enforcement officers the flexibility to use the Contraventions Regime as an enforcement tool.

Objective

These amendments to the CR are made to designate certain provisions of the HOS Regulations as contraventions, providing enforcement officers with an appropriate enforcement tool to promote compliance. The amendments are expected to enhance the ability of the respective jurisdictions to enforce federal regulations, thereby contributing to the protection of commercial driving and, in effect, all drivers on Canadian roads.

Description

The amendments add a new Schedule (Schedule XVIII) to the CR related to the HOS Regulations. Schedule XVIII designates approximately 60 provisions of the HOS Regulations as contraventions. The types of contraventions added relate to offences involving driving hours and off-duty time between work periods as well as administrative requirements involving the preparation of reports or the regular presentation of information (e.g. failure to keep records, failure to provide the specified information).

The amendments contain three tiers of fines, which are, in order of their severity:

The fines range from $300–$1000 for commercial vehicle drivers, and from $600–$2000 for motor carriers, depending on the respective tier.

The following are examples of offences now designated as contraventions, along with their short-form description and set fine amount:

Regulatory development

Consultation

Motor carrier safety in Canada is a joint responsibility between the federal government and the provinces and territories. The federal government is responsible for inter-provincial and international truck and bus transport; however, under the Motor Vehicle Transport Act, the provinces and territories enforce federal regulations for inter-provincial and international carriers on behalf of the federal government and have sole responsibility for intra-provincial operations.

In February 2022, Transport Canada (TC) consulted the provinces and territories on these amendments, including their respective law enforcement agencies responsible for administering the tickets. TC proposed a three-tiered approach with the following fines: Tier 1 – fines up to $300; Tier 2 – fines up to $500; and Tier 3 – fines up to $1000. Jurisdictions agreed with the tiered approach but recommended that fines be double for each tier, and that fines be higher for motor carriers than for drivers. TC adopted those changes, which generated a consensus from the jurisdictions.

TC also conducted a 20-day public consultation on its online consultation website to solicit feedback from industry and the Canadian public on these amendments. The consultation explicitly referenced the provisions of the HOS Regulations being proposed as contraventions, along with the respective fine amount for both the driver and the motor carrier. The responses received from professional organizations within the commercial driving industry were generally in support of the proposed amendments.

These amendments to the CR do not create new offences nor do they impose any new restrictions or burdens. They designate existing offences as contraventions in order to allow enforcement officers to use the Contraventions Regime as an enforcement tool. Therefore, these amendments were not prepublished in Part I of the Canada Gazette.

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 have these offences enforced through the Contraventions Regime and to allow enforcement officers to issue contraventions tickets for these offences, they must be designated as contraventions and included in the CR. Therefore, no non-regulatory options were considered.

The CR have been amended multiple times in order to designate new contraventions and to reflect amendments made to acts and regulations creating the offences.

Regulatory analysis

Benefits and costs

Designating offences as contraventions provides enforcement officers with an appropriate and efficient enforcement tool to enforce the provisions of the HOS Regulations. Prior to this designation, enforcement officers could only enforce these offences by issuing a warning or proceeding under the summary conviction procedure of the Criminal Code.

Simple warnings are not always an effective tool for deterring non-compliance and using the Criminal Code summary conviction procedure to enforce minor offences may be seen as disproportionate to the nature of the offence. As highlighted in the 2021 Evaluation of the Contraventions Act Program, in the absence of alternative means such as the contraventions or Administrative Monetary Penalties (AMP) regimes, enforcement officers are likely to face some level of resistance from prosecution services or the courts, in attempting to charge individuals through the summary conviction process for offences of a statutory nature. Interviews with both prosecution services and enforcement authorities indicate that the significant burden placed on the courts, combined with the requirement to proceed with charges within a reasonable timeframe, is forcing all justice stakeholders to make decisions on the most appropriate use of the court’s limited time and resources. This places enforcement officers in a challenging position where their cases may compete with other offences of a criminal nature in attempting to get the attention of the courts.

Presently, enforcement officers only have the ability to issue a warning or lay a summary charge when enforcing the HOS Regulations. As noted in the 2017 Evaluation of the Contraventions Act Program, the administrative burden of laying a summary charge for relatively minor regulatory offences actually incentivizes enforcement officers to either not enforce the regulation or to only issue warnings that have no significant deterrent effect. Designating certain offences under the HOS Regulations as contraventions will provide enforcement officers with an additional tool — the ability to issue a ticket — as a complement to their existing enforcement options.

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 offences. Ticketing, to a large extent, is intended to divert designated offences from the courts, resulting in savings for the government in terms of prosecutions costs, and enabling the courts to focus on matters that require judicial consideration. Ticketing also frees up a great amount of enforcement officers’ time. Less time in the office preparing for court means more time dedicated for monitoring and control efforts. Furthermore, offenders will be subject to a process that is more appropriate and proportionate to the nature of the offence. The offender can pay the fine and avoid having to appear in court or, should they choose to plead not guilty, the ticket can be contested in court. The Contraventions Regime provides tangible benefits as it allows enforcement officers to use a more graduated approach to enforcement that reflects the severity of each offence.

There are also costs associated with these amendments. Nominal administrative costs result from the labour necessary to update electronic court systems with new information in the provinces where the regime is implemented. Administrative costs also include processing the federal contraventions tickets issued, collecting revenues generated by voluntary payments of fines, managing unpaid fines and scheduling disputed ticket trials. However, these costs incurred by the provinces in the administration of federal contraventions are deducted from the revenues generated by the payment of fines, making management of the Contraventions Regime on behalf of the federal government 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. The actual payment of fines is not considered a cost for cost-benefit analysis purposes, 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 courts 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 CR. Other costs to the federal government in relation to these amendments, such as changes to websites and documentation, are acknowledged but not expected to be significant.

In short, designating offences as contraventions will allow enforcement officers to issue tickets to offenders and will help enforce the HOS Regulations. Fine amounts will be tiered based on degree of offence severity, serving as a deterrent to potential offenders. If an offender receives a ticket, they will be able to plead guilty and pay the fine without needing to appear in court. This will help ease pressures on our courts and make our systems more efficient and cost-effective, as tickets are a more efficient tool for enforcement officers that allow officers to focus on other critical duties.

Small business lens

Analysis under the small business lens concluded that the amendments will not impact Canadian small businesses. Contraventions are not considered to be administrative or compliance burden for the purpose of the small business lens.

One-for-one rule

The one-for-one rule does not apply as there is no incremental change in administrative burden on businesses and no regulatory titles are repealed or introduced. Contraventions are not considered to be administrative burden for the purpose of the one-for-one rule.

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

A gender-based analysis plus (GBA+) was conducted and 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 merely designate existing offences as contraventions.

It is important to note that the purpose of the Contraventions Act is to ensure that the enforcement of offences designated as contraventions will be 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.

Rationale

The amendments to the CR enable the reasonable enforcement of the HOS Regulations while ensuring consistency of enforcement with similar types of offences.

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 CR give enforcement officers an appropriate enforcement measure, allowing them to fulfil their mandate effectively and promote legislative and regulatory compliance.

Contact

Ryan Jeffries
Legal Counsel
Programs Branch
Legal Services Division
Policy Sector
Department of Justice Canada
284 Wellington Street
Ottawa, Ontario
K1A 0H8