Policy 16.11 - Violation Ticketing

Effective Date: 01-Sept-01
Updated: September-05
Responsible Branch: Compliance and Enforcement Branch

Resource Management Volume Table of Contents | Amendment Log

Scope

This policy describes the process of issuing, the criteria for issuing and the administration of violation tickets issued by those staff within the Ministry of Forests who perform a Compliance and Enforcement [C&E] function.

Purpose

To ensure that ticket issuance under the Violation Ticket Administration and Fines Regulation [VTAFR] is conducted in a fair, professional and legally defensible manner.

To ensure that the issuing of Warning and Violation Tickets by those Ministry staff with the delegated authority to do so serves the public interest by supporting the impartial administration of justice with the fair, reasonable and consistent application of provincial forestry legislation.

Definitions

For the purposes of this policy:

"Acts" means the Range Act, the Forest Act, the Forest and Range Practices Act [FRPA], Forest Practices Code of BC Act, the Wildfire Act and their Regulations.

"CEB" means Compliance and Enforcement Branch.

"C&E Leader" means a District Compliance Leader, the Regional Compliance and Enforcement Manager, and or the Fire Centre Compliance and Enforcement Leader.

"ERA" means the Enforcement Action, Administrative Review and Appeal System.

"MOFR" means the Ministry of Forests and Range.

"responsibility centre" means a district or regional office, a fire centre, or a branch office.

"VTAFR" means Violation Ticket and Administrative Fines Regulation.

Background

Violation Tickets for offences under regulatory legislation such as the Acts are an instrument of the law designed to act as a record, a penalty and a deterrent.

Policy

It is Ministry policy that:

A person must be designated as a Forest Officer or an Official prior to being issued a ticket book or issuing any violation ticket.

Only those persons designated as a Forest Officer may issue tickets for offences against the Forest Act and its Regulations.

Only those persons designated as an Official may issue tickets for offences against the Forest and Range Practices Act, the Forest Practices Code Act, the Wildfire Act or their Regulations.

Forest Officers and Officials may also issue tickets for selected offences under the Environmental Management Act.

MOFR staff may only issue violation tickets for violations expressly provided for in the VTAF Regulation.

Minimum Training

All personnel authorized to issue violation tickets will have completed the Ministry Basic Law course.

A C&E Leader may determine if a person within the C&E program has the appropriate training and experience necessary to issue Violation Tickets.

No person may be issued a ticket book prior to having completed the above training or without the approval of the C&E Leader.

Ticketing as an Appropriate Enforcement Option

Ticketing is one of several enforcement actions available to deal with contraventions. It is not appropriate to issue tickets in every situation, regardless of whether there is a provision to do so.

Warning Tickets:

Within the range of enforcement options, Warning Tickets are more formal than compliance notices and less formal than Violation Tickets. Warning Tickets are not a replacement for compliance notices.

Warning Tickets may only be issued for offences for which the authority to issue Violation Tickets has been granted.

It may be appropriate to issue a Warning Ticket where:

• The situation is comparatively minor or trivial in nature.
• There is little to no environmental impact [real or potential] as a result of the alleged offence.
• A compliance action is a more suitable response than an enforcement action.

An enforcement action rather than a compliance action will normally be appropriate where the actions that led to the offence:

• were contrary to previously documented advice, or
• were intentional, or
• were reckless, or
• there have been previously documented similar reckless or non-compliant actions, or
• where the action or incident was intentionally hidden or covered up, or
• where the person responsible was uncooperative in providing information relative to the investigation, or
• where the person responsible made no genuine attempt at voluntary containment or mitigation of the damage or potential damage.

Violation Tickets:

In making a determination of whether or not to issue a Violation Ticket, the Forest Officer/ Official will first determine:

• That the contravention is an offence and is ticketable under the provisions of the VTAF Regulation, and second
• That issuance of a ticket is the most appropriate enforcement option for the circumstances.

In making a determination of whether or not a violation ticket is the most appropriate enforcement option for the circumstances, the Forest Officer/ Official will consider the following:

• Within the context of the standard of proof being "beyond a reasonable doubt", does the evidence support a reasonable likelihood of conviction?
• Does the public interest require legal proceedings but not a public hearing such as an OTBH or criminal trial?
• Is the set fine adequate for the offence?
• Is there little potential or actual damage to the environment?
• Will the ticket serve the public interest by its ability to act as a specific and/ or general deterrent?
• Is the person responsible willing to attempt to correct and/or mitigate the contravention?

After giving due consideration to the above, a ticket may be the appropriate enforcement option. However, in making a determination of whether or not a violation ticket is the most appropriate enforcement option for the circumstances, the Forest Officer/ Official will also consider the following:

• Has the person responsible been previously issued a ticket for a similar or the same offence?
• Is there the potential for significant environmental or public harm arising from the actions of the person responsible?
• Has the contravention been repeated or has it been continuous despite the person responsible knowing of the contravention?
• Was the contravention deliberate despite a reasonable conclusion that the person responsible knew they were acting contrary to law?
• Was the person responsible knowingly flaunting the law for the purpose of economic gain?
• Will issuing a ticket remove the option of an administrative penalty that may be more appropriate in the circumstances?
• Do any of statutory defences apply: Due Diligence, Reasonable Mistake of Fact, or Officially Induced Error.
• Is further investigation required to obtain complete answers to the above questions?

If the answer to any one of the above is yes, it may not be appropriate to use a Violation Ticket as an enforcement option.

The decision making process will also consider the amount of evidence and number of witnesses required to defend a ticket.

When in doubt as to the appropriateness of issuing a ticket, MOFR staff will consult with their colleagues, their supervisor and/or their C&E Leader.

A C&E Leader may advise that a Violation Ticket is an appropriate or inappropriate enforcement option in a particular set of circumstances. He or she may direct the issuing Forest Officer/ Official to apply this policy in consideration of either withdrawing and/or issuing a Violation Ticket. If and when doing so, the C&E Leader will do so with a written rationale that will be placed on the appropriate file and recorded in ERA.

Who to Ticket

There is no provision for ticketing the provincial government such as BC Timber Sales or another agency or Ministry. Tickets can be, however, issued to the federal government, a municipal government, or a regional district.

A Violation Ticket must be issued in person.

Where the person responsible is a municipal government or regional district, the Violation Ticket may be issued to the Mayor, secretary treasurer, or the clerk of the municipal corporation.

Where the person responsible is an agreement holder, the Violation Ticket may be served to any responsible party on site or it may be served at the holder's regular place of business by serving it on a director or officer of the corporation.

A Violation Ticket may be served to the responsible party by someone other than the Officer or Official who issued the ticket.

Issuance of Tickets

When issuing a Violation Ticket and/or a Warning Ticket, the Forest Officer/ Official will ensure that:

• The name of the offender [where possible] will be written in full and spelled correctly.
• The name of the offender may be either the name of the contractor, the name of an individual or the Licensee, as circumstances dictate.
• A ticket for the same offence may be issued to a Licensee, a contractor and a person, where the legislation provides for it and where the circumstances warrant more than one ticket.
• The correct section of the Act/s and the name of the Act/s is stated,
• The wording of the contravention is exactly as stated in the VTAF Regulation, and
• The fine is the amount prescribed in the VTAFR Regulation.

All Warning Tickets and Violation Tickets must be completed in full, including the dispute location [not applicable to Warning Tickets].

The Violation Ticket provides for a maximum of [3] three offences of any single Act on one ticket. If more than [3] three offences are to be ticketed, additional Violation Tickets must be issued.

The issuing officer must document all evidence necessary to prosecute any ticket. This evidence will include, where possible, the names of any witnesses, witness statements, physical evidence, complete notes and any relevant photographs.

A Violation Ticket may be served by someone other than the issuing Officer or Official.

Challenged Tickets

Where a ticket is challenged the decision to go to trial will be a joint decision between the C&E Leader and the issuing Officer or Official.

For any ticket going to trial, the issuing Officer or Official may contact the person responsible and determine if the challenge is a not guilty plea or a dispute of the fine amount.

Where the challenge is on the amount of the fine, the issuing Officer or Official may come to an agreement with the person/s responsible over the fine amount. All such agreements will be documented in ERA with a rationale.

Where the person responsible intends to submit a not guilty plea, the issuing officer will prepare a report that will include a examination of the elements of the offence, an examination of the statutory defences, and the rationale for the ticket. The C&E Leader or delegate will review this report and the report will be recorded in ERA.

Prosecution of the ticket may be led by either the issuing Officer or Official or may be led by other more senior staff. Full consideration will be given to having two C&E program staff prosecute a ticket with the issuing Officer or Official acting as a witness and another C&E staff member performing the actual prosecution. The decision on who will lead any prosecution will be a joint decision between the issuing Officer or Official and the C&E Leader.

Where a person who is challenging a ticket is represented by legal counsel, the issuing officer/official will consult with Crown Counsel on the prosecution of the ticket.

Statute of Limitations

Section 3 (2) of the Offence Act reads as follows:

(2) If no time is specially limited for making a complaint or laying an information in the Act or law relating to the particular case, proceedings must not be instituted more than 6 months after the time when the subject matter of the proceedings arose.

The limitation period for issuing Violation Tickets under the Acts is three [3] years from discovery for the Forest Practices Code Act of BC, the FRPA , the Forest Act, the Range Act and their regulations. The limitation period for the Wildfire Act and its regulations is two [2] years.

Despite the above limitation periods under the Acts, every effort should be taken to issue violation tickets as soon as possible after the discovery of a violation. Ticketing should not normally be pursued after six months from the discovery of the violation.

Administration of Tickets

CEB is responsible for issuing violation ticket books to district and regional C&E Leaders. C&E Leaders will issue individual violation ticket books on a property transfer form and the serial numbers of these tickets will be recorded in the Forest Asset Reporting System. The stock number for violation ticket books is 7610-09-0001.

An ERA case file will be opened for each ticket issued and a copy of the ticket will be placed on the ERA file.

The first copy [white] of each Violation Ticket will be forwarded to the Violation Ticket/ Dispute Processing Unit of the Insurance Corporation of British Columbia on a weekly basis, at:

ICBC Licensing Program Box 3750 Victoria, B.C. V8W 3Y5

The second copy [blue] will be provided to the offender.

The third copy [green] will have the ERA case file number noted in the upper right hand corner. All of these copies per responsibility centre will be retained in a single file designated ORCS "23060-09/04" where 04 is the fiscal year in which the ticket was issued.

The fourth [yellow] and fifth [also white] copies will be retained in the ticket book.

All violation tickets must be accounted for. Tickets that are incorrectly filled out and not issued must have the word "VOID" written in large print on the ticket. Voided tickets must not be forwarded to ICBC, all five [5] copies must be retained in the ticket book.

All violation tickets issued must be recorded in the ERA tracking system and the name of the offender must be registered in the Ministry's electronic Client Management System. CEB is responsible for updating the status of all tickets in ERA.

References

• Forest Act,
• Range Act,
• Forest Practices Code of British Columbia Act,
• Forest and Range Practices Act,
• Wildfire Act,
• Environmental Management Act,
• The Offence Act,
• Violation Ticket Administration and Fines Regulation,
• Ministry of Forests Policy 16.1 Designation of Forest Officers,
• Ministry of Forests Policy 16.2 Authorization of Forest Officers, and
• Ministry of Forests Policy 16.3 Designation of Forest Officials.