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.
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.
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. 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) (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 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 , 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. 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.” 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  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. 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. 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.
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. 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, 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. 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 (C.E.P.A.) who will, if the Environmental Violations Administrative Monetary Penalties Act 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.