Bylawpedia

Long Form Information

(Offence Act Prosecution)

Author: Michael Tillmann

Published: March 17, 2024

Last Updated: March 23, 2024

Introduction

A long form information is one of several methods used for bylaw enforcement in the province of British Columbia. The name refers to a document, called an information, which is used in the court system to begin the prosecution of a person alleged to have committed a bylaw violation. Prosecutions commenced in this way are conducted under the provincial statute known as the Offence Act (1996), and thus they are also referred to as Offence Act prosecutions (Government of British Columbia, 2023).

These sorts of prosecutions were the original method for enforcing bylaws and, until the late 1980's when the municipal ticket information was introduced (Howieson, 2008, pp. 8-9), were more or less the only enforcement method available to local governments in British Columbia[1]. They are modeled on the way prosecutions for criminal offences are handled under the federal Criminal Code (1985), with some adjustments specified by the Offence Act (Howieson, 2008, p. 6).

Although prosecutions conducted by long form information under the Offence Act are not truly criminal prosecutions, they are what is known as quasi-criminal. This means there are similarities between them and traditional criminal prosecutions. They are dealt with in the criminal court system - the Provincial Court of British Columbia to be specific - and the criminal standard of proof is used, that being 'proof beyond reasonable doubt' (District of West Vancouver v. Morshedian, 2017, pars. 94-104; R. v. Morshedian and Janani, 2016, par. 1). Consequently, if a person is prosecuted for a bylaw violation by long form information, they will receive a trial in Provincial Court where a prosecutor will need to present evidence that satisfies the judge beyond reasonable doubt that the person committed the violation, or else be found not guilty.

History

As already mentioned, the long form information was the original means for local governments to enforce their bylaws until the provincial government implemented the municipal ticket information. The prosecution of bylaw violations was handled in the courts, alongside and in the same manner as the prosecution of criminal offences. Crown attorneys working for the provincial government who prosecuted crimes were also responsible for prosecuting these bylaw violations (Howieson, 2008, p. 8).

As time went on, there was a perception amongst local governments that Crown attorneys were not prioritizing the prosecution of bylaw violations and it was becoming increasingly difficult for local governments to pursue enforcement through the traditional prosecution method. Consequently, an alternative way of beginning a prosecution in court was introduced in 1989. With the creation of the municipal ticket information, a bylaw enforcement officer could now fill out the ticket and that would be, with a few differences, considered equivalent to laying an information (hence the name municipal ticket information) and starting a prosecution in the traditional manner (Howieson, 2008, pp. 8-9).

Even though a new form of enforcement was now available, it didn't mean the long form information disappeared though. Local governments still have the option of starting a prosecution in Provincial Court by long form information and there are a number of occasions where it may be preferable to using a municipal ticket information.

One of the most obvious situations where it may be preferable would be if a local government wishes to take enforcement action for a more serious bylaw violation where a substantial penalty may be appropriate. In contrast with a bylaw violation dealt with by a ticket such as a municipal ticket information or bylaw notice, the penalties available to a person who is prosecuted in court by long form information are considerably greater. Local governments are allowed to enact bylaws that allow for a bylaw violator who is prosecuted by long form information, and convicted, to be subject to fines of up to $50,000, imprisonment for up to 6 months, or both (Government of British Columbia, 2023).

Fines and Imprisonment

Provincial legislation sets out the an upper limit for the fines and prison terms which may be applied to persons who are prosecuted by long form information for bylaw violations. A municipality or regional district is authorized to decide on what penalties they wish to implement for their bylaw violations, up to this maximum limit set in provincial law. This limit is currently set at a fine of up to $50,000, or imprisonment for up to 6 months, or both. Additionally, the law permits local governments to design their bylaws so that each day a bylaw violation continues may be considered a separate bylaw violation, and thus subject to a separate penalty (Community Charter, 2003, s. 263; Local Government Act, 2015, s. 416).

It should be remembered that these penalties are only imposed after the person has been tried and convicted in the Provincial Court. As well, the court will have discretion as to what sentence to pass[3] and may not impose the maximum penalty.

Limitations

There are two significant limitations on the ability of bylaw violations to be prosecuted by long form information that one should be aware of. As with the issuance of tickets such as the municipal ticket information and the bylaw notice, there is a time limitation. A prosecution under the Offence Act may not be commenced against a person more than 6 months after the day on which the bylaw violation occurred (Offence Act, 1996, s. 3).

Additionally, as with municipal ticket informations, British Columbia legislation prohibits persons being prosecuted by long form information for any bylaw violations committed when under the age of 12 years (Youth Justice Act, 2003, s. 2).

Laying an Information

The process of prosecuting an alleged bylaw violator by long form information begins with a person, usually a bylaw enforcement officer, making a formal allegation against the individual in question. This is done by the person, known in law as the 'informant', writing down the reasons they have for believing the alleged violator has committed the bylaw violation in a document, known in law as the 'information.' This document must be in a specific format, laid out in Form 2 of the Offence Act; and it is this form which is called a 'long form information' (Offence Act, 1996, Form 2).

Once filled out, the information is then taken to a justice of the peace or Provincial Court judge by the informant, who will swear an oath or make an affirmation as to the accuracy and truthfulness of the document's contents. If satisfied that the reasons set out in the information are adequate, the justice or judge may then issue a legal instrument known as a 'summons' and the prosecution will have formally begun (Offence Act, 1996, ss. 11-13 & 25-27).

Summons

Once a person lays an information before a justice of the peace or judge, and a summons has been issued by that justice or judge, a formal prosecution of a person by long form information has begun.

A summons is a legal document issued by a judicial official which requires the person named in the document - known as the defendant - to appear in court at a specific time to answer to a charge. It is used to legally compel the appearance of the defendant at a certain time and place so that the charges against the individual can be dealt with (B.C. Reg. 422/90, Form B; Cambridge University Press & Assessment, n.d.).

It must be noted that, although the court issues the summons to a defendant for a bylaw violation, it does not deliver the summons to the defendant. Under the law, a summons must be delivered to the defendant in a specific manner, known as 'serving' the summons (People's Law School, n.d.). To be precise, a peace officer or enforcement officer[2] must either directly hand the summons to the defendant or must leave it at the defendant's residence with an occupant who is at least 16 years old (Offence Act, 1996, s. 28). It will be the responsibility of the local government to ensure this process is completed so that the prosecution can continue.

Initial Appearance & Arraignment

Following an alleged bylaw violator (defendant) being served with a summons, the person will then need to show up in the Provincial Court at the time and place specified in the document. This first attendance in court is known as the 'initial appearance.' At this point, no trial will be held. Instead, the charges against the defendant will be read out, the prosecutor will provide the defendant with copies of evidence relevant to the case that the prosecutor possesses - which is a process known as 'disclosure' - and a date and time will be set for the next hearing, known as the 'arraignment hearing', when the defendant must return (Howieson, 2008, p. 8; Provincial Court of British Columbia Criminal Caseflow Management Rules, 1999, Rule 5). Sometimes, the defendant will be asked at an initial appearance to enter a plea of guilty or not guilty, but often the court will put this off until the next hearing, to give the defendant time to consider options (Office of the Chief Judge, Provincial Court of British Columbia, 2021).

At the next step in the pre-trial process, the arraignment hearing, the charges against the defendant will be gone over again and the court will now ask the defendant to enter a plea of guilty or not guilty. If a guilty plea is entered, the court may proceed immediately to sentencing or may schedule a hearing for another day to pass sentence. If a not guilty plea is entered, the court will hand the case to a judicial case manager to schedule a date for the trial and there may be additional hearings held to decide on a trial date (Howieson, 2008, p. 8; Office of the Chief Judge, Provincial Court of British Columbia, 2020a; Provincial Court of British Columbia Criminal Caseflow Management Rules, 1999, Rule 8).

Trial

The trial of a bylaw violation in the Provincial Court will be conducted in more or less the same manner as a criminal trial. The alleged bylaw violator (defendant) will enjoy the same protections and rights to which an accused person in a criminal trial is entitled. This includes the right to be presumed innocent until proven guilty; i.e. the prosecutor will need to present evidence that proves the defendant's guilt beyond reasonable doubt, or else the defendant must be found not guilty (District of West Vancouver v. Morshedian, 2017, pars. 94-104; R. v. Morshedian and Janani, 2016, par. 1.). It also includes the ability for the defendant to call witnesses and present evidence, although a defendant is not required to do either of these things and also is not required to testify; these are optional, not mandatory (Office of the Chief Judge, Provincial Court of British Columbia, 2020b).

Defendants will have the option to be represented by a lawyer or to represent themselves at a trial of a long form information, just as accused persons in criminal trials do. It should be noted though that, unlike with some criminal trials, defendants who can't afford a lawyer will probably not qualify to receive free legal representation from the government or the Legal Aid Society (Alberta Civil Liberties Research Centre, n.d.; Legal Services Society, n.d.).

As is the case for the prosecution of minor crimes, a trial for a bylaw violation in Provincial Court will not have a jury. The trial will be presided over by either a judicial justice of the peace or a Provincial Court judge, who will decide the guilt or innocence of the defendant (Howieson, 2008, p. 7; Office of the Chief Judge, Provincial Court of British Columbia, 2020b).

Once a person is convicted after a trial, the court will move on to sentencing the person. The passing of sentence may be postponed to another day to allow the court to deliberate on the matter first.

Appeals

Either the prosecutor or defendant may appeal the outcome of a trial in the Provincial Court. Both the verdict (the finding that the defendant was guilty or not guilty) and the sentence can be appealed. These appeals are filed and dealt with in the Supreme Court of British Columbia (Offence Act, 1996, s. 102; Office of the Chief Judge, Provincial Court of British Columbia, n.d.).

When making an appeal to the Supreme Court of British Columbia, there are time limits prescribed by provincial legislation and the court rules. The applicable time limit for filing an appeal of the outcome of an Offence Act prosecution is found in the Criminal Rules of the Supreme Court of British Columbia and it requires that the appeal be submitted within 30 days of the Provincial Court reaching its decision (SI/97-140, ss. 6(2)-6(3); Offence Act, 1996, s. 104).

END NOTES:

[1] Some local governments did use a sort of ticketing before the municipal ticket information was introduced in British Columbia in 1989. However, unlike the municipal ticket information or the bylaw notice, which are explicitly authorized by provincial statute, this old form of ticketing did not impose mandatory fines or monetary penalties. Instead, they only created voluntary monetary penalties; much like the more modern notice of bylaw infraction does.

These tickets were in effect demand notices, requesting that a voluntary penalty be paid by an alleged bylaw violator or else a local government may choose to initiate a prosecution of the person. An example of one of these kinds of tickets can be found in the Traffic By-law of the City of Fort St. John, which was written in 1979 before the municipal ticket information became available for use in British Columbia. It allows for a form of a ticket to be placed on illegally parked vehicles and sets out a design for it (City of Fort St. John Traffic By-Law No. 720, 1979, Schedule A). In the text of the bylaw, when discussing these tickets, it refers to a 'voluntary penalty' to be paid to 'avoid prosecution', just as a notice of bylaw infraction talks about paying a voluntary penalty to avoid legal proceedings (City of Fort St. John Traffic By-Law No. 720, 1979, ss. 13(2)(a) & 13(2)(c)).

[2] The Offence Act stipulates that a summons must be served by a peace officer or enforcement officer (Offence Act, 1996, s. 28(1)). One then has to research further to determine how those terms are defined.

Looking for a definition of 'enforcement officer', one finds the Offence Act declares a person to be such an officer if they have been designated by the provincial government in a regulation, and this does not include bylaw enforcement officers (B.C. Reg. 89/97; Offence Act, 1996, s. 1). As for the term 'peace officer', the Offence Act specifically mentions that bylaw enforcement officers appointed under the Police Act are peace officers and thus qualified to serve a summons (Offence Act, 1996, s. 28(2); Police Act, 1996, s. 36), but this does not apply to the majority of bylaw enforcement officers in British Columbia, who are instead appointed under the authority of the Community Charter (2003, s. 264(1)(b)). So, are these other bylaw enforcement officers qualified to serve a summons or not?

If one looks outside the Offence Act to the Interpretation Act, there is another definition of peace officer (1996, s. 29). Here the term is defined in a way similar to the federal Criminal Code (1985, s. 2). Therefore, based on how the courts have interpreted the Criminal Code definition in other cases (R. v. Dennis Lawrence Harrison, 2021; R. v. Turko, 2000; Woodward v. Capital Regional District, 2005), one might argue that a bylaw enforcement officer would be included in this definition of peace officer and, as a consequence, a bylaw enforcement officer could serve a summons.

As far as I can tell though this particular point of whether a bylaw enforcement officer (not appointed under the Police Act) is legally entitled to serve a summons has never been litigated and so it is not possible to predict with certainty what a court would find. They might potentially rule that a bylaw enforcement officer doesn't qualify as a peace officer in these circumstances and cannot serve a summons. I am aware of a lawyer specializing in municipal law who is of that opinion, so it a strong possibility.

These potential problems of invalid service by a bylaw enforcement officer can be avoided by a local government making use of a special appointment power found in the Offence Act. There is a clause in the Act which authorizes a municipal council or regional district board to appoint a person, or persons, to serve summonses related to bylaw violations. Any person so appointed is then considered equivalent to a peace officer under the Act when serving such a summons (Offence Act, 1996, s. 28(3)).

[3] Under normal circumstances, a court has discretion to decide what penalty to impose on a person who is convicted of violating a law, up to the maximum penalty the law allows. Sometimes though a government will establish a 'minimum punishment' or 'mandatory minimum penalty' for breaking a law. This is meant to limit the discretion of courts by directing them not to impose a sentence that is below this minimum level (Elliot & Coady, 2016, p. 4). Local governments also have the ability to set these minimum punishments for the violation of their bylaws (Community Charter, 2003, s. 263(1)(a); Local Government Act, 2015, s. 416(1.1)(a)).

Sometimes a court will disregard a minimum punishment if they believe it is legally justified. For example, there have been a number of cases where courts have found that a minimum punishment is a violation of a person's rights under the Canadian Charter of Rights and Freedoms (The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982) and struck it down as unconstitutional (Elliot & Coady, 2016, p. 8).

REFERENCES:

Alberta Civil Liberties Research Centre. (n.d.). Access to Justice as a Right. Alberta Civil Liberties Research Centre. Retrieved March 23, 2024 from https://www.aclrc.com/new-page

B.C. Reg. 89/97. https://www.bclaws.gov.bc.ca/civix/document/id/crbc/crbc/89_97_multi

B.C. Reg. 422/90. https://canlii.ca/t/55hd4

Cambridge University Press & Assessment. (n.d.). Summons. In Cambridge dictionary. Retrieved March 17, 2024 from https://dictionary.cambridge.org/dictionary/english/summons

City of Fort St. John Traffic By-Law No. 720, 1979. https://www.fortstjohn.ca/assets/Documents/Bylaws/Bylaw~Enforcement/Traffic-Bylaw.pdf

Community Charter, SBC 2003, c. 26. https://canlii.ca/t/5660d

Criminal Code, RSC 1985, c. C-46. https://canlii.ca/t/56690

District of West Vancouver v. Morshedian, 2017 BCSC 408 (CanLII). https://canlii.ca/t/h1rrf

Elliot, K. & Coady, K. (2016, March). Mandatory Minimum Penalties in Canada: Analysis and Annotated Bibliography. Department of Justice, Canada. Retrieved March 17, 2024 from https://www.justice.gc.ca/eng/rp-pr/jr/mmp-pmo/mmp-pmo.pdf

Government of British Columbia. (2023, December 7). Offence Act prosecutions. Province of British Columbia. https://www2.gov.bc.ca/gov/content/governments/local-governments/governance-powers/bylaws/bylaw-enforcement/offence-act-prosecutions

Howieson, D. (2008, November 28). Investigating and Enforcing Bylaws [Seminar Paper]. Young, Anderson Barristers & Solicitors. https://www.younganderson.ca/images/seminar_blogs/Investigating_and_Enforcing_Bylaws.pdf

Howieson, D. (2009, November 27). The Appointment and Powers of a Bylaw Enforcement Officer [Seminar Paper]. Young, Anderson Barristers & Solicitors. https://www.younganderson.ca/images/seminar_blogs/Appointment_and_Powers_of_Bylaw_Enforcement_Officers-DH.pdf

Interpretation Act, RSBC 1996, c. 238. https://canlii.ca/t/5656s

Legal Services Society. (n.d.). Legal representation by a lawyer. Legal Aid BC. Retrieved March 21, 2024 from https://legalaid.bc.ca/services/legal-representation

Offence Act, RSBC 1996, c. 338. https://canlii.ca/t/54cb4

Office of the Chief Judge, Provincial Court of British Columbia. (n.d.). Appeals. Provincial Court of British Columbia. Retrieved March 2, 2024 from https://www.provincialcourt.bc.ca/complaints-and-appeals/appeals

Office of the Chief Judge, Provincial Court of British Columbia. (2020a, February). Arraignment Hearing. Provincial Court of British Columbia. Retrieved March 17, 2024 from https://www.provincialcourt.bc.ca/types-of-cases/criminal-and-youth/arraignment-hearing

Office of the Chief Judge, Provincial Court of British Columbia. (2020b, February). Provincial Court Trial. Provincial Court of British Columbia. Retrieved March 17, 2024 from https://www.provincialcourt.bc.ca/types-of-cases/criminal-and-youth/provincial-court-trial

Office of the Chief Judge, Provincial Court of British Columbia. (2021, November). Initial Appearance. Provincial Court of British Columbia. Retrieved March 17, 2024 from https://www.provincialcourt.bc.ca/types-of-cases/criminal-and-youth/initial-appearance

People's Law School. (n.d.). If you receive an appearance notice or summons. Dial-A-Law. Retrieved March 17, 2024 from https://dialalaw.peopleslawschool.ca/appearance-notice-or-summons/

Police Act, RSBC 1996, c. 367. https://canlii.ca/t/5660

Provincial Court of British Columbia Criminal Caseflow Management Rules, SI/99-104. https://canlii.ca/t/5257q

R. v. Dennis Lawrence Harrison (2021, April 29), Vernon 53553-1 (BCPC). https://www.bylawbc.ca/docs/218282.apr_29_21.rfj638125688387323832.pdf

R. v. Morshedian and Janani, 2016 BCPC 80 (CanLII). https://canlii.ca/t/gp4fm

R. v. Turko (2000, November 20), Victoria (BCPC). https://www.bylawbc.ca/docs/turko_case_law.pdf

SI/97-140. https://laws-lois.justice.gc.ca/eng/regulations/SI-97-140/FullText.html?wbdisable=false

The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11. https://canlii.ca/t/ldsx

Woodward v. Capital Regional District (2005, February 9), Victoria C02-0723 (BCPC). https://www.bylawbc.ca/docs/woodward_case_law.pdf

Youth Justice Act, SBC 2003, c. 85. https://canlii.ca/t/564tt