The purpose of the Offences and Prosecutions part of the Employment Standards Act, 2000 is to set out the offences for which employers, including officers and directors of employers, and other individuals, such as claimants providing false information, can be prosecuted under the Provincial Offences Act, R.S.O. 1990, c. P.33.

Section 131 - Offence to keep false records

Offence to keep false records - s. 131(1)

This provision is substantially the same as the corresponding section (s. 77(1)) of the former Employment Standards Act. Section 131(1) prohibits any person from making, keeping or producing false or deceptive records, or other documents required to be kept under the Employment Standards Act, 2000 and regulations. It also prohibits any person from having a hand in the making, keeping or production of such records, whether such participation is active (e.g., actually making the records) or passive (e.g., agreeing to such records or having knowledge of them but not doing anything to stop the practice).

This prohibition applies to all records or other documents required to be kept by the employer as set out in ss. 15 and 16 of the Act. These sections require specified information to be kept (including a register for homeworkers) and retained for specified periods of time and made available for inspection by an employment standards officer.

In the context of s. 131(1), "produced" does not mean "made", but rather "produced for inspection, audit or examination", i.e., given over to the employment standards officer, pursuant to a demand for records. Thus, if the employer gives the officer false or deceptive records (records that are required to be kept under the Act), pursuant to a demand under ss. 91 or 102, the employer would be guilty of an offence under s. 131(1).

What if the employer gives the information voluntarily, rather than pursuant to a demand? In that case, the employer would still be guilty of making or keeping the false records in the first place, which is also an offence under s. 131(1) if those are the types of records that the employer is required to make and keep under the Act. Also, the employer may be guilty of an offence under s. 131(2) for providing false or misleading information, regardless of whether the information was supplied voluntarily or not, and regardless of whether the employer is required to keep such information.

False or misleading information - s. 131(2)

This provision is identical to the corresponding section (s. 77(2)) of the former Employment Standards Act. Section 131(2) prohibits any person from providing false or misleading information under the Act. It has a general application in prohibiting any person, whether it be an employer (including a corporate employer, since in law a corporation is considered a "person"), an employee, a director or officer or agent of an employer, or any other person, from providing false or misleading information under the Employment Standards Act, 2000. It covers situations where the information is provided voluntarily, as well as pursuant to a demand or a subpoena, and situations where the information is required to be kept by the Act, as well as those in which the information is not required to be kept.

Section 132 - General offence

This provision is similar to s. 78(1) of the former Employment Standards Act. Section 132 applies to every person, which includes a corporation and trade union, who violates a provision of the Employment Standards Act, 2000 or regulations, or disobeys a decision, requirement or order made under the Act.

Section 132 makes it an offence to violate a provision of the Act: for example, a failure to pay overtime pay, or a failure to reinstate an employee after a pregnancy or parental leave. It also makes it an offence to disobey an order, direction or requirement under the Act: for example, a failure to comply with an order to pay issued under s. 103(1)(b), a failure to comply with a compliance order under s. 108(1), or a failure to comply with a notice requiring attendance at a meeting with an officer under s. 102.

To obtain a conviction for an offence, the Crown has to prove its case beyond a reasonable doubt, which is the standard of proof in criminal and quasi-criminal cases.

Prosecutions for an offence under the Employment Standards Act, 2000 may be initiated under Part I or Part III of the Provincial Offences Act, R.S.O. 1990, c. P.33 ("POA"). A Part I prosecution can only be commenced by a person who has been appointed a provincial offences officer. Part I prosecutions are commenced by filing a certificate of offence with the Ontario Court of Justice and serving the accused with either an offence notice ("ticket") or summons. A ticket may only be used where a set fine for the offence in question has been established by the Chief Justice of the Ontario Court of Justice. Set fines have been established for many Employment Standards Act, 2000 offences. As well, abbreviated descriptions of those offences for use on the tickets have been authorized by regulation under the POA. See Schedules 4.2, 4.3 and 4.4 to R.R.O. 1990, Reg. 950.

A provincial offences officer may also use the Part I summons procedure for Employment Standards Act, 2000 offences. The POA provides that where the summons procedure is used in respect of an offence under an Act, the provisions in the Act respecting maximum fines and terms of imprisonment do not apply; instead the POA provides that the maximum fine that can be imposed on conviction is $1,000. A sentence of imprisonment cannot be imposed if the summons procedure is used.

If a prosecution is commenced under Part III of the POA, the section 132 provisions regarding maximum fines and (in the case of an individual) maximum terms of imprisonment would apply.

Under s. 132, an individual who is found guilty of an offence is liable to a fine of not more than $50,000 or 12 months in jail, or both. The maximum jail term is increased in the Employment Standards Act, 2000 from six months under the former Act to 12 months.

A corporation that is found guilty of an offence is liable to a fine of not more than $100,000 for a first conviction, $250,000 for a second conviction, and $500,000 for a third or subsequent conviction. These escalating monetary penalties for corporations are a new deterrence provision in the Employment Standards Act, 2000.

Appeals from decisions of a justice of the peace are to a judge of the Ontario Court of Justice, from which a further appeal to the Court of Appeal may be made with the leave of that Court. Appeals from the decision of a provincial judge are to the Superior Court of Justice, from which a further appeal to the Court of Appeal may be made with the leave of that Court.

Section 133 – Additional orders

Additional orders – s. 133(1)

This provision was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, effective November 6, 2009 to include references to contraventions under Part XVIII.1.

Section 133(1) applies if:

  1. An employer is convicted of an offence under s. 132 for contravening the reprisal provisions in ESA Part XVIII, s. 74, or the prohibitions against temporary help agencies in paragraph 4, 6, 7 or 10 of ESA Part XVIII.1, s. 74.8(1); or
  2. A client is convicted of an offence under s. 132 for contravening the prohibition against reprisal by clients in ESA Part XVIII.1, s. 74.12.

If either of the conditions above is met, the justice of the peace or the provincial judge making the conviction shall, in addition to the fine or term of imprisonment, order specific action that the convicted person must take or refrain from taking in order to remedy the contravention. This provision should be read in conjunction with s. 133(2) which discusses the types of orders that may be made by the court.

In R v. Hartro Office Systems the employer was convicted under the predecessor to s. 132, since the only logical explanation of the reason for the employee's dismissal was that he filed a complaint under the Employment Standards Act, 2000. The employer was fined $8,000. However, in R v. Marconi, the defendant was acquitted on the grounds that the evidence showed the employee was dismissed prior to the defendant becoming aware that the employee had filed a complaint under the Act.

Same – s. 133(2)

Section 133(2) was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009 effective November 6, 2009 to include a reference to a contravention of ESA Part XVIII.1, s. 74.12.

In addition to the powers granted to the court under s. 133(1), if an employer is convicted of contravening ESA Part XVIII.1, s. 74 or paragraph 4, 6, 7 or 10 of ESA Part XVIII.1, s. 74.8(1), s. 133(2) authorizes, but does not require, the court to order that the employee be paid any wages that are owing to the employee and/or that the employee be compensated for any loss incurred as a result of the contravention. Where the employer has been convicted for violating s. 74, the court may also order that the person be reinstated.

Note that for convictions relating to contraventions of sections other than s. 74 or paragraphs 4, 6, 7, or 10 of s. 74.8(1), the court is required to order the employer to pay any amount owing to the employee with respect to the contravention pursuant to ESA Part XXV, s. 135(1).

In addition to the powers granted to the court under s. 133(1), if a client is convicted of contravening s. 74.12, s. 133(2) authorizes, but does not require, the court to order that the assignment employee be paid any wages that are owing, be compensated for any loss incurred by them, and/or be reinstated.

For a discussion of the meaning of the term "client" when used in relation to a temporary help agency, see ESA Part I, s. 1(1).

Part XVI – s. 133(3)

Section 133(3) provides that if a conviction is obtained under ESA Part XXV, s. 132 in relation to a contravention of the lie detector provisions of the Employment Standards Act, 2000 and the contravention concerned an applicant for employment or an applicant to be a police officer, the court could order the employer to hire the applicant and or/compensate them for the violation.

Section 134 - Offence re: Order for reinstatement

Section 134 was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, effective November 6, 2009.

Section 134 sets out the fine for a failure to comply with an order of a court made under ESA Part XXV, s. 133. For example, if the court, on conviction, orders an employer to reinstate an employee, with compensation for lost wages and benefits, and the employer fails to comply, the court may further order the employer, if an individual, to pay a fine of up to $2,000 for each day that the employer failed to comply with the order of the court. If the employer is a corporation, the court could order that the employer pay a fine of up to $4,000 for each day the employer failed to comply with the court's order.

For example, if the employer was ordered to reinstate the employee by March 1, 2002, and the employee did not do so until April 1, 2002, the employer could be fined up to $124,000, if a corporation, or $62,000, if an individual, for the failure to comply in a timely manner with the order of the court. This fine would also apply where the employer had not complied in a timely manner with an order of the court to pay compensation to the employee. The fine under s. 134 would be in addition to any fine and/or imprisonment imposed pursuant to ESA Part XXV, s. 132 with respect to the prohibited reprisal. This provision also applies with respect to clients, as defined in ESA Part I, s. 1(1) who fail to comply with an order issued under ESA Part XXV, s. 133.

Section 135 - Additional orders re: Other contraventions

Additional Orders re: Other contraventions - s. 135(1)

This provision was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, effective November 6, 2009 to specifically exclude convictions for contraventions of paragraphs 4, 6, 7 or 10 of s. 74.8(1). References to paragraphs 4, 6, 7 and 10 of s. 74.8.1 were added to s. 133(1) of the Employment Standards Act, 2000. For a discussion of s. 133, see ESA Part XXV, s. 133.

Section 135(1) indicates that where an employer is convicted of an offence under s. 132, other than a conviction for a violation of s. 74 (reprisal) or paragraph 4, 6, 7, or 10 of s. 74.8(1) (temporary help agency prohibitions), the court is required to assess the amount owing to the employees by the employer as a result of the employer's contravention of the Act, and to order the employer to pay the amount involved, in addition to any other penalty (i.e., fine and/or term of imprisonment) ordered. For example, where the employer had not paid an order to pay and accordingly committed an offence that resulted in a conviction under s. 132, the court is required (in addition to any fine or jail sentence that may be ordered,) to assess the amount owing and to order the employer to pay the amount owing to the Director of Employment Standards in trust, who in turn then pays the amounts owing to the affected employee(s).

Under s. 135(1), the court could not order the employer to pay the 10 per cent administration costs portion of the order to pay, since the section refer specifically to an "amount owing to an employee". However, the court's assessment of the amount owed to the employee could include interest.

Collection by director - s. 135(2)

Section 135(2) provides that the Director of Employment Standards must attempt to collect any money that is ordered to be paid under s. 135(1) and pay it to the employee.

Enforcement of order, s. 135(3)

This provision is substantially the same as the corresponding section (s. 78(3)) of the former Employment Standards Act. Section 135(3) provides that the Director, for enforcement purposes, may file an order issued by the court under s. 135(1) in a court of competent jurisdiction. The order then becomes enforceable as an order of the court for purposes of enforcement. This means, for example, that a writ of seizure and sale could be obtained so that the Director could seize the defaulting employer's assets and property and sell them in order to satisfy the amounts owing.

Section 136 - Offence re: Directors' liability

Offence re: Directors' liability - s. 136(1)

This provision was first introduced by the Employment Standards Act, 2000. It provides that a director of a corporation is guilty of an offence where he or she fails to comply with an order of an employment standards officer made under ss. 106 or 107, and has not applied for a review of the order, or fails to comply with such an order that has been affirmed by the Ontario Labour Relations Board or with a new order issued by the Board.

Penalty - s. 136(2)

This provision was first introduced by the Employment Standards Act, 2000. It provides that a director convicted under s. 136(1) is liable to a fine of not more than $50,000. Note that directors convicted under s. 136(1) are not liable to imprisonment.

Section 137 - Offence re: Permitting offence by corporation

Offence re: Permitting offence by corporation - s. 137(1); Same - s. 137(2)

These provisions are substantially the same as the corresponding section (s. 79(1)) of the former Employment Standards Act. Section 137(1) provides that where a corporation contravenes any provision of the Act or the regulations, an officer, director or agent of the corporation, (or a person acting or claiming to act in such a role), who participates in such a contravention, is a party to, and guilty of, the offence, and is liable on conviction to the penalty provided for the offence, i.e., a maximum of $50,000 fine and/or 12 months' imprisonment. This applies whether such a person participates actively, e.g., by authorizing it, or passively by knowing of it, but failing to take steps to prevent it.

Section 137(2) indicates that the individual officer, director or agent may be convicted under this subsection, even though the corporate employer has not been prosecuted or convicted. Thus, a corporate director could be prosecuted under s. 137, even though a prosecution had not been commenced against the corporate employer under s. 132, or if it was, even though it did not result in a conviction.

The key to s. 137 is that the officer, director or agent of the corporation must be a person who "authorizes or permits. . . or acquiesces" in a contravention of the Employment Standards Act, 2000 or regulations by the corporate employer.

The predecessor section to s. 137 was considered by the trial court in R v. Lark Manufacturing Inc. and court's decision was upheld by the Ontario Court of Appeal. In that case, the trial court stated that the directors would not be liable under s. 79 of the former Employment Standards Act (now s. 137) if they proved, on a balance of probabilities, that they were duly diligent. In this regard, the trial court noted several points. Section 137 is a strict liability and not a full mens rea offence. The latter type of offence is one in which the accused must have had the intention to commit the act or omission that constitutes the offence or crime in question.

A strict liability offence, on the other hand, is one in which it is not necessary to show intent, but merely that the act or omission occurred, except that the accused can usually be acquitted by showing that he or she was duly diligent (i.e., took all reasonable precautions in the circumstances to prevent the violation from taking place). An absolute liability offence is one in which it is not necessary to show intent, and the accused cannot be acquitted, even if he or she demonstrates due diligence. Therefore, a strict liability offence lies somewhere between a full mens rea offence and an absolute liability offence as far as the issue of due diligence is concerned.

The court in R v. Lark also noted that corporate directors have the authority to run the company and the ultimate responsibilities for the actions of its employees unless the directors can show that in spite of all reasonable precautions being taken, the employees acted outside their instructions.

The court further noted that Supreme Court of Canada authority indicates that the reverse onus clause in the predecessor clause to s. 137(3) is not contrary to the Canadian Charter of Rights and Freedoms.

The trial judge in R v. Lark Manufacturing Inc. found the directors guilty of an offence pursuant to s. 79 of the former Employment Standards Act (now s. 137) in that they did not prove, on a balance of probabilities, that they did not participate (actively or passively) in the corporation's failure to pay wages, vacation pay and termination pay to the employees. The court found that the directors foresaw or ought to have foreseen the closing of the business by the bank, and were aware of and contributed to the decision that was made to terminate the employees without proper notice as the business situation deteriorated. The trial court pointed to a number of pieces of evidence in this regard, including the fact that the defendants, in advance of the closure of Lark, were engaged in setting up a new business to perform the same work as Lark did.

On appeal, the Ontario Court (General Division) (now the Superior Court of Justice) reversed the conviction of the directors by the trial judge, finding that there was no evidence that the defendant directors knew in advance of the bank's intention to close the business, and no evidence that they knew in advance or concurrently that the bank would withhold the last payroll cheques. The Crown then appealed to the Ontario Court of Appeal, which restored the convictions imposed by the trial judge on the basis that the findings made by the trial judge were supported by evidence and should have been accepted by the judge on appeal, especially given the onus placed on the respondent directors by s. 137(3).

One of the issues that arose in the Lark case was whether or not the defendants were directors at the relevant times. The directors claimed to have resigned one week before the business closed and were therefore arguing that they were not responsible for the resulting failure of the employer to pay the employees. The trial court noted that s. 121(2) of the Business Corporations Act, R.S.O. 1990, c. B.16 requires that a notice of resignation by a director is not effective until such time as it is received by the corporation, and there was no evidence that the alleged notice of resignation was received by the corporation.

It is interesting to note that s. 137(2) states that an individual liable under the section may be an officer, director or agent of the corporation, or a person acting or claiming to act in such a capacity. This would cover individuals, for example, who were acting in the capacity of directors, and were holding themselves out as such, but who were technically, due to some defect in their appointment, not directors of the company. It would also cover situations such as where persons were not authorized to be agents of a company with regards to certain matters, but took it upon themselves to do so anyway, and in that unauthorized capacity participated in the contravention of the Act by the company.

Onus of proof - s. 137(3)

This provision is similar to s. 79(2) of the former Employment Standards Act. Section 137(3) is a reverse onus provision. It states that in a prosecution under s. 137, the onus is on the director, officer or agent to prove that he or she did not participate, actively or passively, in the corporation's contravention of the Act and regulations. The individual does not have to prove this beyond a reasonable doubt. He or she need only prove it on a balance of probabilities. If he or she fails to prove this on a balance of probabilities, then a conviction would be entered by the Court provided that the Crown had proved beyond a reasonable doubt the other elements of the case, e.g., that the corporation violated the Act or regulations.

There is authority from the Supreme Court of Canada that such reverse onus clauses do not violate the Charter of Rights and Freedoms. See, for example, R v. Wholesale Travel Group Inc., [1991] 3 SCR 154, 1991 CanLII 39 (SCC).

Additional penalty - s. 137(4); Collection by director - s. 137(5)

These provisions are similar in effect to the corresponding section (s. 79(3)) of the former Employment Standards Act. Sections 137(4) and (5) indicate that where an individual is convicted of an offence under s. 137, the court may, in addition to any other penalty, assess the amount owed by the corporation in regards to the employee(s), and may order the individual to pay the amount assessed to the Director of Employment Standards in trust, who would distribute to the employee(s) the amounts owed. Please note that unlike section 135(1) this section does not require the court to make an assessment and order the payment of wages to the Director upon the conviction of an individual.

Section 79(3) of the former Employment Standards Act was used by the Crown in the R v. Lark Manufacturing Inc. case to obtain a court order for three directors of the company to pay approximately $500,000 in unpaid wages, vacation pay and termination pay to the Director of Employment Standards in trust for distribution to the employees. Note that the court's order against a director may exceed the maximum liability for wages and vacation pay in Part XX (Liability of Director) and may also include termination and severance pay. The limitations on directors' liabilities set out in Part XX do not apply where the director has been prosecuted and convicted of an office under s. 137.

It should be noted that under s. 79(3) of the former Employment Standards Act it was possible for the court to include in the order against the directors amounts for interest as well as the 10 per cent administration costs portion of the order to pay against the employer (although that was not done in R v. Lark Manufacturing Inc). Under s. 137 of the Employment Standards Act, 2000, the court could not order the employer to pay the 10 per cent administration costs portion of the order to pay, since s. 137(4) refers specifically to an "amount owing to an employee". However, the court's assessment of the amount owed to the employee could include interest.

Furthermore, no fine or imprisonment was ordered by the Court in R v. Lark Manufacturing Inc., presumably because the Court was of the view that the requirement for the directors personally to pay about $500,000 in employee entitlements was a sufficient deterrent on its own.

Finally, it should be noted that in s. 137 prosecutions (as in s. 79 prosecutions under the former Employment Standards Act) the court could put the convicted director on probation and make such probation conditional on payment of the monies ordered to be paid to the Director of Employment Standards in trust. In other words, if the convicted director does not pay as ordered by the court, that individual would have his or her probation revoked and would be liable to a jail sentence. However, such a conditional probation order, although asked for by the Crown in the Lark case, was not given by the trial Court, although a simple probation order was given, requiring the convicted individuals "to keep the peace and to be of good behaviour", meaning that the probation could be revoked if further violations of the law occurred.

No prosecution without consent - s. 137(6)

This provision read together with s. 137(7) is substantially the same as the corresponding section (s. 79(4)) of the former Employment Standards Act. Section 137(6) provides that a prosecution under s. 137 of an officer, director or agent (or person acting or claiming to act in such a capacity) of a corporation that has contravened the Act or regulations can only be commenced with the consent of the Director of Employment Standards. This power has been delegated under s. 88 of the Act. See Delegation of Powers for further information.

Proof of consent - s. 137(7)

Section 137(7) provides that a document that appears to be the consent of the Director (or his delegate pursuant to s. 88 of the Act) to prosecute under s. 137 is admissible as evidence of the Director's consent.

Section 137.1 - Prosecution of Employment Standards Officer

Prosecution of Employment Standards Officer - s. 137.1(1)

Section 137.1(1) provides that a prosecution of an employment standards officer for a failure to follow policy as established by the Director, as required by s. 89(2), may only be commenced if consented to by the Deputy Attorney General. For further discussion of s. 89(2) of the Employment Standards Act, 2000, see ESA Part XXI, s. 89(2).

Proof of consent - s. 137.1(2)

Section 137.1(2) provides that a document that appears to be the consent of the Deputy Attorney General to prosecute an employment standards officer is admissible as evidence of his or her consent. Prosecution of Employment Standards Officer, s. 137.1(1) Proof of Consent, s. 137.1(2)

Section 138 - Where prosecution may be heard

These provisions are similar to the corresponding section (s. 81) of the former Employment Standards Act. Section 138 provides that the prosecutor can choose, by giving notice to the clerk of the court, to have the prosecution of an offence conducted in the area where the accused resides or carried on business, rather than where the offence occurred. In addition, the Attorney General or his or her agent may request the matter to be heard by a judge rather than a justice of the peace.

For example, if the accused is a director of a corporation and resides in Toronto, the Crown may have the case heard by the Ontario Court of Justice in Toronto, even though the company carried on business in Hamilton.

Section 138.1 - Publication re: Convictions

This provision was first introduced by the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004, S.O 2004, c. 21, effective March 1, 2005.

Where a person has been convicted of an offence under the Employment Standards Act, 2000, this provision authorizes the Director to publish or otherwise make available to the public - including publication on the Internet - the name of the convicted person, a description of the offence, the date of the conviction, and the sentence received by the person.

Subsection (3) deems any disclosure made under subsection (1) to be in compliance with s. 42(e) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31. That section reads:

Section 139 - Limitation period

This provision is similar in effect to the corresponding section (s. 82) of the former Employment Standards Act, except that the two-year period in the former Employment Standards Act commenced with the date on which the facts upon which the prosecution was based first came to the knowledge of the Director. Section 139 provides that no prosecution can be commenced under the Act more than two years after the date on which the offence was committed or alleged to have been committed.

The date on which an offence has been committed or is alleged to have been committed is determined by the nature of the offence. For example, a contravention of the Employment Standards Act, 2000's requirements concerning the payment of wages (e.g., regular wages, overtime pay etc.) occurs on the date such wages were due under the Act. A contravention of s. 74 (Reprisal) may occur on the date the employer penalized the employee for exercising or attempting to exercise a right under the Act (e.g., the date the employee was suspended for having refused to agree to work excess hours). Finally, an offence may be committed when the employer (or other person) has failed to comply with an order, requirement or direction under this Act.

As an example, consider a case where an employer fails to pay overtime pay due on the employee's regular pay day on November 15, 2001 (for hours worked on November 1). The employee files a claim related to this contravention on February 1, 2002. An employment standards officer issues and serves an order to pay on May 1, 2002, and the employer neither pays the money required to be paid under the order nor files an appeal by May 31, 2002 (within 30 days of the order being served as required under s. 116(4)).

In this example, the Ministry at its discretion may prosecute the employer for failure to pay overtime, in which case prosecution must commence with two years of November 15, 2001, or the ministry may elect to prosecute for failure to comply with the order to pay, in which case the prosecution must commence within two years of the date the order was served, May 31, 2002.

Given that there is more time to commence a prosecution if the prosecution is for failure to comply with an order to pay, rather than where it is for failure to pay the wages on the regular pay day as required by the Act, why would the Crown ever be required to proceed within the latter period? The answer is that if the Crown wishes to prosecute the directors of the corporation under s. 137(1) of the Act for authorizing, permitting or acquiescing in the violation by the corporation, it may, in some situations, be more appropriate if the violation, which is the foundation of the prosecution, is considered to be the employer's failure to pay the wages on the regular pay day, rather than the subsequent failure to comply with the order to pay. This might be because the directors were no longer associated with the corporation at the time the order was served, but had been associated with the corporation at the time the wages first became owed to the employee.

See ESA Part XXII, s. 114 for further discussion of limitation periods for orders and notices.

A prosecution under Part III of the Provincial Offences Act, R.S.O. 1990, c. P.33 is generally considered to commence when a document called an "information" is laid under oath before a provincial judge or a justice of the peace.