II. Application of the Charter of Rights and Freedoms [21] (Charter of Rights)

II. Application of the Charter of Rights and Freedoms [21] (Charter of Rights)2017-03-03T18:35:01+00:00

A.           General Principles

The application of  the Charter of Rights, a constitutional instrument which takes precedence over legislation passed by governments, to parking laws, begins with a consideration of the distinction in law between criminal or penal law  and regulatory law. One author has written that

While the distinction is not definitive, it is an important element in the contextual approach to determination of fundamental rights. The Supreme Court has repeatedly stated that rights that are fundamental in the criminal context may not be in the regulatory context or may have a more restricted ambit[22]. 

The Charter of Rights is, in short, applied rigorously to the criminal law and less so, to regulatory law. The distinguishing features of the two categories of law, criminal and regulatory are succinctly articulated in the reasons for judgment of Mr. Justice Cory in the Supreme Court of Canada’s 1991 decision in R.v Wholesale Travel Group.[23]

While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care. 

The kinds of conduct which the criminal law deals with are acts of moral turpitude such as rape, robbery and murder. Regulatory law on the other hand, does not focus on the morality of the acts themselves, but their consequences.[24] Parking infractions fall into this latter category.

Since the Wholesale Travel case, appeal courts have fleshed out the extent to which various rights protected by the Charter apply to regulatory laws.

 

B.           Security of the Person

Section 7 of the Charter of Rights provides:  

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 

It is now clear from the case of Rv. Transport Robert  (1973) Ltée (2004)[25] (the flying tire case) that so long as there is no risk of imprisonment, the stigma associated with a contravention and even the severity of the penalty may not invoke the protection of the security of the person extended under section 7 of the Charter. The Court of Appeal in the flying tire case upheld as constitutional the Ontario Highway Traffic Act[26] prohibition against the owner or operator of a commercial vehicle whose wheel became detached while on the roadway, even though the maximum penalty was a fine of $50,000, and the owner or operator was denied any defence of due diligence in avoiding or preventing the detaching of the wheel. 

Both sections 6 of the Regulation 333/07 under the Municipal Act, and the specific and virtually identical Regulation 611/06 under the City of Toronto Act, state that the amount of the AMP established by the  municipality/ City shall not be punitive in nature, shall not exceed the amount reasonably required to promote compliance with a designated by-law and must not exceed $100. Subsection 11(2) of both these Regulations  further clarify that enforcement measures taken in addition to filing a certificate of default in a competent court when an AMP is not paid on time, “shall not be punitive in nature”. As Ontario AMPS Regulations provide that certificates of default may be enforced in the same manner as an order of the court ,[27] the Superior Court of Justice could conceivably order imprisonment if there is a finding of contempt of court based on the person in default having willfully failed to attend as required in the notice of examination, or refusing to answer questions or produce records or documents.[28] The basis for the imprisonment would however,  result from a judicial finding of fault in relation to the default proceedings. As with imprisonment for default under the Provincial Offences Act, enforcement for default of payment in the civil courts would require an intervening hearing in front of a judicial officer before a period of incarceration could be imposed accompanied by the safeguards attached to such a hearing. Courts in Ontario, dealing with parking and speeding infractions under the Provincial Offences Act have concluded that because of the intervention of a judicial hearing, and a necessary finding of willfulness, the risk of imprisonment for default is not “a real possibility.”[29]  This conclusion is reinforced by language in both Regulation 333/07 under the Municipal Act, and Regulation 611/06 under the City of Toronto Act which, as indicated above, explicitly prohibit  punitive penalties and punitive supplementary enforcement measures for default , evidencing a clear legislative direction to the courts to avoid ordering imprisonment. 

Based on the authority of Robert Transport, and the parking and speeding cases dismissing the risk of imprisonment for default of payment as a very remote  possibility, the AMPS established by Regulation 333/07 under the Municipal Act, and Regulation 611/06 under the City of Toronto Act, could expressly deny vehicle owners any defence of due diligence even if the penalty was much higher than $100. The City of Vaughan By-Law has by implication [30] removed the defence of due diligence since the only grounds for cancellation or reduction of the AMP are establishing that the motor vehicle was not parked, standing or stopped as described in the penalty notice, or undue hardship.[31] The Vaughan By-Law only authorizes the Screening or Hearings Officer to cancel or reduce the AMP when the allegation in the AMP notice that the parking, standing or stopping was not in conformity with the By-Law is fully negated by the recipient of the penalty. A due diligence defence would give the recipient of the AMP the right to cancellation or reduction of the AMP even if it could not be proven that the parking, standing or stopping was not fully compliant with the By-Law, provided that the AMP recipient could demonstrate that  he/she had taken reasonable steps to avoid non-compliance with the By-Law. Since the only grounds permitted in the Vaughan By-Law for cancellation or reduction are much narrower than that, due diligence is thereby eliminated by implication. 

Since Chicago has had some 20 years of experience with an administrative penalty system for parking infractions, it is useful as guidance, rather than as binding authority, to examine how their courts have applied their constitutional protections to AMPS, specifically in the area of streamlining the procedure for conducting hearings. The streamlined procedure in Chicago is part of an overall regulatory objective to create greater efficiencies in the enforcement of minor infractions and that appears to be a key objective in the introduction of AMPS for parking infractions in Ontario.  In R.v Fitzpatrick.[32] the Supreme Court of Canada outlined  how both the Canadian and U.S. Supreme Courts had similarly found their procedural fairness protections under their respective constitutions to be subject to valid regulatory schemes. More particularly, the protection against self-incrimination embedded in the U.S. Fifth Amendment and section 7 of the Canadian Charter could not be applied in either country to frustrate regulatory schemes of self-reporting. It is therefore useful to look at how American case law has applied the Fifth Amendment “due process protection” to the summary procedures adopted in Chicago for administrative penalties for parking infractions. 

In the Van Harken case, the U.S. Court of Appeals for the Seventh Circuit found that the administrative penalty system for parking offences in Chicago did not violate the due process protection even though the system permitted the ticket to speak for the enforcement officer and only required the attendance of the officer if the hearing officer subpoenaed the officer as a witness. The Court reasoned that a cost-benefit analysis justified making the enforcement officers’ attendance exceptional, because if the ticketing officer were required to attend, the number of hearings requested would undoubtedly be higher because recipients of penalties  would think it likely the officer wouldn’t show up – a frequent occurrence at hearings on moving violations. Officers would be required to take time away from issuing violation notices. More hearings officers would be required at additional cost to the City because each hearing would be longer as a result of a another live witness. Acquittals as result of the officer’s failure to appear, would undermine the deterrent efficacy of parking laws and deprive the City of revenues to which it was entitled as a matter of substantive justice.[33]

The Ontario AMPS Regulations do not require the attendance of the AMPS enforcement officer  although the City of Vaughan By-Law does require that the motor vehicle owner, AMPS enforcement officer, referred to in the Vaughan By-Law as a Municipal Law Enforcement Officer and Director of Enforcement Services be given an opportunity to be heard before a Hearings Officer makes a decision to affirm, cancel, reduce or extend the time of payment of the AMP.[34]  The recipient of the penalty is at somewhat of a disadvantage at the initial review stage with the Screening Officer, since the Screening Officer has no power to summons the AMPS enforcement officer to appear before the Officer and under the Vaughan By-Law in particular, the recipient bears the onus of proving on a balance of probabilities the grounds for cancellation or reduction of the penalty. It would be frustrating for the recipient of the penalty to meet this burden of proof before the Screening Officer without the attendance of the AMPS enforcement officer.  Hearings Officers on the other hand, are already empowered under the Statutory Powers Procedure Act to summon any persons to appear before them if it would help resolve the matter before them[35], since the AMPS Regulations under both the Municipal Act and the City of Toronto Act  require the Hearings Officers to apply the Statutory Powers Procedure Act.[36]  Other AMP schemes have recognized the efficacy in conferring a summons power on the reviewing officer. The power to summons any relevant witnesses  has for example, been conferred on the Chief Review Officer under the Canadian Environmental Protection Act[37] (C.E.P.A.) who will, if the Environmental Violations Administrative Monetary Penalties Act[38] comes into effect, be empowered by that Act, to review AMPS under federal environmental laws.

 

C.           Presumption of Innocence /Double Jeopardy

A Charter of Rights protection of particular interest in the context of AMPs is section 11. The relevant parts provide as follows:

Any person charged with an offence has the right….

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;….

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; 

Both the right to be presumed innocent and the right not to be in jeopardy a second time, only apply to persons who are charged with an “offence”. The evolution of Canadian constitutional law now strongly suggests that AMPS for parking infractions do not qualify as offences, meaning that neither of these constitutional rights would apply to such infractions, even if the Regulations permitted concurrent prosecution under the Provincial Offences Act. 

Provincial Regulation 333/07 under the Municipal Act and Regulation 611/06 under The City of Toronto Act each provide a right of review of the AMP by a Screening Officer appointed by the municipality/City.[39]The Screening Officer is given the power to cancel, affirm or vary the penalty,” upon such grounds as are set out in the administrative penalty by-law.”[40]  The recipient of the AMP has a right to have the Screening Officer’s decision reviewed by the Hearings Officer also appointed by the municipality/City , who must provide the person requesting the review with an opportunity to be heard.[41]  Since no similar opportunity is expressly conferred during the initial review before the Screening Officer, it may be inferred that the right to be heard at the original review has not been recognized. The Hearing Officer may also cancel, affirm or vary the penalty ,”upon such grounds as are set out in the administrative penalty by-law.”[42] The Hearing Officer’s decision is final.[43]  

The City of Vaughan By-Law, elaborates on the procedures applicable to AMPS. It requires that the Screening Officer hold a ‘meeting’ with the vehicle owner before deciding on a request to review the AMP.[44] As yet, there are no rules for how the meeting is to be conducted.  The By-Law, however, does require the Hearings Officer to conduct a hearing where the vehicle owner, the Municipal Law Enforcement Officer and the Director of Enforcement Services are given an opportunity to be heard. Both the Regulations implementing the Municipal Act and City of Toronto Act relating to AMPS for parking and the Vaughan By-Law require that the hearing before the Hearings Officer be conducted in accordance with the Statutory Powers Procedure Act.[45] 

The Vaughan By-Law goes further than Provincial Regulation 333/07 under the Municipal Act and Regulation 611/06 under The City of Toronto Act by reversing the burden of proof on vehicle owners. Screening or Hearings Officers may cancel, reduce or extend the time for payment of the AMP where the vehicle owner establishes “on a balance of probabilities that the motor vehicle was not parked, standing or stopped as described in the penalty notice.”[46]  

Provincial Regulation 333/07 under the Municipal Act and Regulation 611/06 under The  City of Toronto Act prohibit the issuance of parking tickets, once the AMPS by-law is enacted for parking by denying the application of the Provincial Offences Act, even though  environmental  legislation both in Ontario[47]  and in the United States[48] do provide for concurrent AMPS and prosecution.

 

In R.v Wigglesworth Madame Justice Wilson characterized minor traffic violations as offences coming within the ambit of s.11 of the Charter of Rights.  Nevertheless, she went  on to state that: 

Proceedings of an administrative nature instituted for the protection of the public in accordance with the policy of a statute are also not the sort of ‘offence’ proceedings to which s.11 is applicable.[49] 

The case of Martineau v. Canada (Minister of National Revenue)[50] has since set down three criteria for distinguishing offence proceedings from administrative proceedings , the latter not being subject to Charter scrutiny for infringements of the presumption of innocence, or the protection against  double jeopardy . These criteria are : (1) the objectives of the enabling legislation and the AMP in particular;   (2) the purpose of the sanction; and (3) the process leading to imposition of the sanction.[51] Martineau involved an appeal of a forfeiture order of $315,000, the deemed value of goods which had been exported contrary to the Customs Act. The Minister of National Revenue had applied to examine Martineau for discovery and he challenged the application as a violation of his right against self-incrimination under subsection 11(c) of the Charter of Rights. As with the right to be presumed innocent and to be protected from double jeopardy, the right against self-incrimination, at least under section 11 of the Charter, depended upon whether Martineau was charged with an offence. The Supreme Court of Canada concluded that Martineau had no section 11 Charter protection because he was not charged with an offence, but was involved in an administrative proceeding.

Turning to the first criterion, the Supreme Court in Martineau established for distinguishing an offence from an administrative proceeding i.e. the legislative objective, the stated purpose of AMPS as expressed in the Regulation “shall be to assist the municipality (or “City” in the case of Toronto) in regulating the flow of traffic and use of land, including highways, by promoting compliance with its by-laws respecting the parking, standing or stopping of motor vehicles.”[52] It is immediately apparent that this expression of legislative purpose is consistent with the profile of regulatory, as opposed to criminal law.[53] The emphasis is on preventing future harmful consequences rather than denouncing actions which are morally reprehensible. The legislative objective of compliance and prevention does not begin to assume the character of criminal law just because it includes an element of deterrence. Mr. Justice Fish in Martineau considered the fact that the ascertained forfeiture was intended to produce a deterrent effect irrelevant to the determination of the nature of the proceeding.[54] Indeed, subsequent decisions affirm that general deterrence is a legitimate objective of AMPS.[55]  

Turning to the purpose of the sanction itself, the objective of AMPS, like the objective of the forfeiture order upheld in Martineau, is to facilitate compliance by creating a less costly and efficient  procedure for enforcing infractions of the law. Within the $100 cap set for the AMP under the Regulations, the actual monetary penalty is set by the municipality/City [56]. This distinguishes the AMPS from Part II parking tickets under the Provincial Offences Act (Part II) Under Part II, the set fine is the responsibility of the Chief Justice of the Ontario Court of Justice.[57] This enables the administrative penalty to more closely reflect the changing needs of the municipality/City. 

An important part of the Court’s determination in Martineau that the penalty was regulatory as opposed to criminal, was the finding that the forfeiture order was arrived at not by a discretionary judgment made by an adjudicator  after taking into account the nature of the reprehensible act, general and  specific deterrence, rehabilitation, remorse, a previous record and other mitigating and aggravating factors normally considered by sentencing court, but was the product of a simple mathematical calculation imposed in advance by the legislation itself [58] This ‘slide rule’ penalty determination has been adopted in Ontario’s 2007 Environmental Penalty Regulation,[59] companion Guideline for Implementing Environmental Penalties and the Procedure for the Calculation of Monetary Penalties.[60]  It operates as follows: A base penalty is modified upwards or downwards by a fixed percentile, depending upon a number of factors set out in the Regulation and accompanying Regulatory Guide and Procedure. Environmental contraventions tend to be more varied and complicated than parking infractions, so the number of factors which may affect the base penalty , such as the nature of the contravention, and the efforts to effect remediation, abatement and prevention are quite extensive  and largely inapplicable to parking infractions. Nevertheless, some of the factors could be incorporated into the determination of the appropriate parking penalty. These could include the history of compliance [61] and the reasons for non-compliance.[62]  Neither the AMP Regulations for the municipalities or the City of Toronto, nor the Vaughan By-Law, give any indication of how the actual penalty is arrived at, though as mentioned earlier, the Vaughan By-Law limits the grounds for adjusting or cancelling the penalty to circumstances where the recipient of the penalty can establish on a balance of probabilities that the vehicle was not parked, standing or stopped and undue hardship. 

Imposing less discretion in the calculation of the penalty, while at the same time opening up the grounds to account for mitigating circumstances, should however, allow for local variations in available service within the Province. For example, in the City of Vaughan parking enforcement officers are not equipped with computers in their vehicles to perform searches of previous non-compliances.[63]  One would hope that they could phone in to a central location and readily obtain this information, but the efficiency of that alternative may vary between cities. Practically, issuing the AMP anywhere but at the time and at the scene of the parking infraction would pose the risk that parking enforcement would be less effective. Vaughan for example, recently experimented with serving AMPS on the registered owner of a vehicle after the infraction was concluded and the results were unsatisfactory because some of the owners were out of town, while others were numbered companies, with addresses but no one present to receive service when it was attempted.[64]  

With respect to reducing the base penalty by a defined percentile, as with increasing the base penalty for non-compliance history, the municipal by-law would be a better instrument for defining whether a percentile reduction is warranted and if so what the quantum should be. Enforcement tools and purely local characteristics will vary from municipality to municipality. The number and type of enforcement tools and local characteristics could very well demand a different percentile of reduction from one municipality to the next, or in some cases, no reduction at all. The City of Vaughan for example, does not have parking meters or paid parking lots, though it might need to introduce these features as the population grows.[65] Vaughan needs the flexibility to introduce reductions should the need and their service increase, but perhaps at the moment they may not require much in the way of reductions given the relatively small number of legitimate excuses for parking illegally as compared to a bigger city such as Toronto. 

The third and last criterion for distinguishing offence and administrative proceedings identified in the Martineau case is the process leading to imposition of the sanction. The process set out in the AMPS Regulations for parking infractions is to substitute administrative officers for courts as the reviewing authority and restricts further appeals from the Hearings Officer’s decisions.[66] As mentioned earlier, AMPS do not expressly provide the recipient of the penalty with any opportunity to be heard at the initial stage of review by the screening officer, only at the second stage when the Screening Officer’s decision is reviewed by the Hearing Officer.[67] The Vaughan By-Law, in providing an opportunity for a meeting at the initial review with the Screening Officer, creates a mediation-like process and indeed some Screening officers are receiving mediation training.[68]  At the second review, the Hearings Officer must conduct proceedings in accordance with the Statutory Powers Procedure Act. This Act applies to administrative tribunals rather than courts.[69] Significantly, unlike courts, tribunals may admit into evidence oral testimony, even when it is not given under oath or affirmation as well as all relevant documentation, unless the testimony or documentation is inadmissible by reason of a legal privilege or under statute.[70] This less formal process at the second review, would allow the introduction for example, of opinion and hearsay which would be inadmissible in a court of law. 

Engaging administrative officers and restricting the right of appeal from their decisions, conducting informal hearings where witnesses may not be required to attend and where, in any event, the rules of evidence generally won’t apply, exhibits the hallmarks of an administrative rather than a judicial process. 

Other indicia which would point away from a judicial process such as the City of Vaughan’s explicit reversal of the burden of proof should be approached with more caution. As the authors of Regulatory and Corporate Liability have pointed out, procedures should not be used to bootstrap a scheme which is outside of the protections guaranteed under the Charter of Rights .[71] . In the authors’ view, the procedures which contravene the protections guaranteed in the Charter should not be used as the basis for justifying the Charter contravention, lest legislators would be rewarded for defying the Charter of Rights. 

Nevertheless, it could equally be said that the reversal of the burden of proof warrants some favourable consideration as a means of containing the length of the review proceedings, thereby further narrowing the gap between the date of the notice of infraction and the scheduled review. If the mere request for a review of an AMP could trigger a hearing at which the municipality or the City had to demonstrate beyond a reasonable doubt a parking infraction, hearings would be extended, enforcement officers would spend more time away from the locations they need to be to monitor parking compliance and more administrative reviewing officers would have to be hired to handle the greater workload.  The situation would be much the same as it is now in the traffic courts. The Charter of Rights, to paraphrase U.S. Judge Richard Possner in the Van Harken case[72], should not become a straitjacket, preventing governments from experimenting with more efficient methods of delivering government services. A similar sentiment was expressed by the Supreme Court of Canada when it said in the Fitzpatrick case that “The Charter was not meant to tie the hands of the regulatory state.”[73] In Fitzpatrick the Court rejected an argument that the section 7 Charter right not to be denied security of the person except in accordance with principles of fundamental justice, prevented authorities from using fishermen’s logs showing how much the fishermen caught as part of a prosecution for overfishing. The logs were part of a regulatory scheme which the fishermen voluntarily agreed to comply with as a condition of their fishing licences. While the information supplied in the logs was potentially incriminating, the fish quota system would have collapsed without it.  

Fairness to the recipient of the AMP can be preserved even with a reversal of the burden of proof, because the Hearing Officer maintains the power under the Statutory Powers Procedure Act to summon the municipal enforcement officer to the hearing and with the informal procedures applicable at such a hearing, there is ample opportunity to inquire into any matter the recipient of the penalty wishes to raise. 

On balance, Ontario’s AMPS for parking infractions meets constitutional standards.  The objectives of the law are to further compliance rather than punish wrong-doing. The sanctions are meant to expedite the compliance objective  through administrative processes which confer reviewing authority to administrative rather than judicial officials, limit appeals and dispense with the formalities for  introducing evidence in courts of law. The penalties are relatively minor, there are avenues of review and an opportunity to confront the AMPS enforcement  officer at least at the second review. 

Some refinement of AMPS through the municipal by-laws themselves might bring greater efficiencies and further advance the compliance scheme while meeting public expectations for a fair process.  Municipalities could be empowered to permit the AMP enforcement officer to adjust the base penalty by a defined percentile upwards when the AMP is initially served, to recognize a previous history of non-compliance. This would better secure compliance by demonstrating that repeat infractions are dealt with more seriously, thereby making it less likely penalty recipients will take calculated risks.  Any adjustment upward at the review stages would discourage penalty recipients from challenging the penalty notice and for that reason would be fundamentally unfair. The discretion on review could also be more clearly defined by requiring a downward adjustment of the base penalty within a defined percentile to reflect factors which do not fully negate the contravention of the parking by-law and may not be fully apparent to the AMPS enforcement officer affixing the penalty notice on an empty vehicle. Setting one defined percentile reduction for any and all mitigating factors the reviewing officer accepts, would ensure that the effort to inject necessary fairness into AMPS does not overly complicate the review process. Attempting to define the mitigating factors in advance would be unrealistic since they are many and draftspersons are unlikely to capture them all. There is no need for any reduction of the base penalty at the point that the AMP is initially served, since assuming the enforcement officers have sufficient information to conclude that there are extenuating circumstances, they could exercise their discretion and withhold issuance of the AMP notice. The exercise of their discretion can be controlled through internal guidelines.[74]  

Increasing the grounds for review of the AMP should however, be accompanied by reversing the burden of proof for parking infractions throughout the province. Requiring the recipients of the penalty to prove the grounds on a balance of probabilities and requiring that the notices of penalty make it clear that the recipients have that onus if they choose to review the penalty, would discourage frivolous challenges designed to delay proceedings and undermine the orderly disposition of AMPS.

 

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