This paper addresses the question of whether municipalities should be required to establish AMPS (administrative monetary penalties system) for parking offences, presently prosecuted under Part II of the Provincial Offences Act. The analysis which follows examines the constitutionality of the 2007 amendment. to Ontario’s Municipal Act, 2001 which introduced AMPS for parking infractions under the new section 102.1 of the Municipal Act. and the accompanying Ontario Regulation 333/07 which gave municipalities the option of adopting AMPS. An identical enabling amendment to the City of Toronto Act introducing AMPS and the accompanying Regulation 611/06, providing the City of Toronto with the same option of adopting AMPS, will be addressed throughout the paper as well. The Paper will further identify what, if any, key changes could be made to the AMPS system and whether the option to prosecute a violation under Part II of the POA should be retained.
A. The Problem
As the population grows, residential and industrial building expands and demand for public funds grow, new ways must be found to ensure that our cities can accommodate increasing vehicular traffic. Parking infractions, enforced through a system of monetary penalties and ultimately, the withholding of driving privileges for delinquent penalty recipients, remains a deterrent to this looming chaos, providing that the consequences of non-compliance are sufficient to motivate drivers to obey the law.
The traditional approach has been to issue parking tickets and provide court dates to those who wish to contest their tickets. This has proven expensive and inefficient. In its submission to the Standing Committee on Justice Policy respecting Bill 14, Access to Justice Act 2006, the Association of Municipal Managers, Clerks and Treasurers of Ontario noted that violators were taking advantage of the lack of court resources by demanding trials and having their matters dismissed not on the merits, but because they could not be heard within an acceptable amount of time. In the view of the Association of Managers, this circumstance in turn, undermined respect for the administration of justice as those who obeyed the law perceived that the system favoured those who sought to avoid it. Aside from law abiding motor vehicle owners losing confidence in the law in these circumstances, the cost of having parking enforcement officers attend court is punishing, because they must be paid time and a half in order to attend court while off-duty. The Director of Finance and Administration for Toronto Police Services was recently quoted as saying : ”We don’t want them to attend court while they’re on duty because then they wouldn’t be issuing tickets.” The costs are further inflated by the annual salaries and benefits of justices of the peace who typically hear trials for parking infractions. These annual salaries and benefits range from slightly over $100,000 to $178,000. Judicial officers do not even need to be lawyers, though some are. Since justices of the peace are needed for criminal bail hearings and proceedings with more significant public safety implications such as building and fire code proceedings and prosecutions of environmental and health and safety matters, relieving them of their responsibility for trying parking infractions could significantly reduce costs and backlogs in overcrowded courts, and improve the deterrent impact gained from adjudicating matters closer to the time of their occurrence.
At the same time as the threats to the integrity of the justice system and the increasing financial burdens on government are sought to be avoided, the public’s continuing expectation of fair and just treatment, requires that any legislative reform which would expedite proceedings be carefully crafted to preserve rights of review and appeal. Recently, in the United Kingdom, a majority of those surveyed on a system of administrative penalties, expressed a preference for retaining the right to review any issued AMP and a further right to appeal that review should it be unfavourable.
B. The Solution
The Province of Ontario has, as indicated above, paved the way for AMPS by enacting s.102.1 of the Municipal Act along with Regulation 333/07.Ontario Regulation 611/06 was also enacted to implement AMPS under the City of Toronto’s own enabling legislation. So far, only the City of Vaughan has implemented AMPS for parking infractions with By-Law 156-2009, which took effect in August 2009. The City of Brampton is exploring implementation opportunities and evaluating the costs and benefits of AMPS for minor parking infractions. The Committee of Council Report from Brampton noted that:
Most of the more than 100,000 parking tickets issued annually would be eligible for the administrative penalty system (ineligible tickets include accessible parking infractions and other parking infractions with fines greater than $100.00).
The establishment of a system of municipal parking administrative penalties could result in a more stream-lined, citizen-friendly process for disputing minor parking infractions and eliminate the requirement for persons to appear in court. This would in turn free up judicial resources to preside over courts hearing trials of Part I Provincial Offences Act matters to more serious Part III trials.
In terms of costs, the City of Vaughan pays their Screening and Hearings Officers a maximum of $500 to $600 a day, which, in the course of a year, works out to some $40,000 – substantially less than the $100,000 plus salaries of justices of the peace. Moreover, since AMPS was implemented in Vaughan, the percentile of contested parking by-law infractions has dropped from 3.5% to 1.5%. Officials with the City of Vaughan, interviewed for this Paper, attribute the drop in contested parking infractions to the ready availability of meetings and hearings with reviewing officers. Meetings can be arranged within a week of receiving the AMP. When recipients of notices of infractions could delay payment for six months or more by contesting the notice, the inconvenience involved in doing so paled in comparison to the reality of having to part quickly with the monetary amount affixed to the notice Reduction in the number of contested notices and any resulting increase in the time enforcement officers have on the street to enforce parking by-laws has the added benefit of controlling what is referred to as the “compliance deficit” –the failure to undertake enforcement action for known non-compliances because of a lack of resources to respond proportionately to infractions.
There is nothing revolutionary in the legislative recognition of AMPS for parking infractions. Thirty- nine years ago, New York State legislators moved parking violations in New York City out of the Criminal Court and placed them with an administrative tribunal, the Parking Violations Bureau, a unit of the New York City Transportation Administration Twenty years ago, the City of Chicago adopted an administrative system in which private lawyers hired by the City as part-time hearings officers adjudicate tickets challenged by recipients. The U.S. Court of Appeals for the Seventh Circuit, in Ada Van Harken et al v. City of Chicago, held that the City’s procedures, including treating the parking ticket as the equivalent of an affidavit and not requiring the officer who wrote the ticket to attend before the hearing officer, satisfied the due process requirements of the U.S. Constitution. In the Court’s reasons for decision, Judge Richard Posner commented that:
The traditional system, mindlessly assimilating a parking ticket to an indictment for murder, was archaic and ineffective
What follows is an analysis of how the streamlined system adopted by the Province of Ontario measures up to Canadian constitutional and administrative law standards To relieve the suspense, the conclusion reached is that the AMP legislation does meet minimum legal standards, but some amendments might provide greater clarity and efficiencies province-wide, while continuing to recognize local variations in enforcement and parking patterns.
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