Quite apart from the constitutional analysis, the summary review procedures for those persons who wish to contest a notice of a parking infraction must be carefully scrutinized to ensure that the imposition of AMPS and its review, accord with the principles of procedural fairness as enunciated in Baker v. Canada (Minister of Citizenship and Immigration)[75]. In this regard, consideration must be paid to the following non-exhaustive factors:
A. the proximity of the administrative process to the judicial process;
B. the nature of the legislative scheme;
C. the impact of the decision on the person affected;
D. the legitimate expectations of the person affected;
E. the deference to be paid to the decision- maker .[76]
Examining each factor in order, the following analysis and conclusions emerge:
A. The proximity of the administrative process to the judicial process
There is no doubt that the administrative process for reviewing an AMP is distinct from that which would be applied by a court in a provincial offence. As described above, the reviewing officers – that is, the Screening Officer and the Hearing Officer are not judicial officials and under the Regulations they are appointed by the municipality. The first stage of review by a Screening Officer does not require any form of hearing and the City of Vaughan has approached this Regulatory provision by allowing the recipient of the penalty to attend a meeting with the Screening Officer. Since the Enforcement Officer is not required to attend, the process is not adversarial as in a court, but more in the nature of a mediation.[77] The second stage of review according to the Regulations does require that the Hearings Officer grant the requester an opportunity to be heard. However, the rules of evidence are not those of a court and the hearings process is less formal.
One resemblance between the AMPS enacted for parking infractions in Ontario and a judicial proceeding is the apparently open-ended discretion given to the reviewing authorities in determining the penalty that is actually imposed, albeit within the very small range of up to $100. It is difficult however, to conclude that this resemblance should be determinative when there is no indication that traditional sentencing principles –i.e. specific and general deterrence, rehabilitation, the nature of the act under consideration, for example, would all be weighed to the exclusion of any other factors, as it would in a court proceeding. The authors of a 2008 discussion paper prepared by the Administrative Justice Office of the Ministry of the Attorney General for British Columbia concluded that an AMP scheme may give a statutory decision maker discretion as to whether to impose a penalty and/or a discretion about the amount of the penalty to be imposed. [78]
B. The nature of the legislative scheme
As indicated above, [79] the express legislative purpose in the Regulations implementing the AMPS is to help the municipalities to control traffic and land use by promoting compliance with parking by-laws, not to punish wrongdoing.
C. The Impact of the decision to impose the amp on the person affected
This indicator is by no means determinative of whether decision makers have any obligation to act judicially and the extent of their obligation if one exists. [80] This is exemplified by more recent cases such as Martineau [81] in which a forfeiture order of $315,000 was not sufficient to invoke the Charter protection against self-incrimination .In Lavallee[82] a maximum AMP of one million dollars as well as non-monetary sanctions such as life- time trading bans were not sufficient to invoke any obligation to apply the laws of evidence applicable to judicial proceedings. Had the criminal sanction of imprisonment been available, there would, on the other hand, have been an obligation to act judicially. [83] The AMPS for parking infractions have relatively small maximum monetary penalties as well as the potential to withhold driving privileges if the penalties are not paid. The Law Reform Commission of Saskatchewan in a Consultation Paper on Administrative Penalties in June of 2009 concluded from the case law that since stringent procedural safeguards were reserved when matters of serious import were at stake, “…close scrutiny and appeal rights may not be necessary or appropriate if the penalty is small.”[84]
D. The legitimate expectations of the person affected
There are a number of reasons why vehicle owners and operators may wish to contest an AMP .The AMP Regulations 333/07 and 611/06 leave the grounds for cancellation or reduction of the AMP to the municipal by-law.[85] The Vaughan By-Law 156-2009 includes two grounds for cancellation or reduction- negating on a balance of probabilities the allegation in the penalty notice and undue hardship.[86] The City of Brampton Committee of Council in their report earlier this year, [87] recognized that parking violations could be legitimately challenged on a number of grounds outside of the accuracy of the allegations in a penalty notice. These grounds included:
· Failure on the part of a municipality to keep a record of a valid application for an overnight parking pass ;
· Road construction forcing vehicle owners and operators, for lack of alternatives, to park in contravention of parking by-laws.
To this list one could add other legitimate reasons for reduction or cancelation which would not qualify as grounds for cancellation or penalty reduction under the Vaughan By-Law. These would include a broken parking meter which would not accept payment. The vehicle would, as the allegation in the notice alleged, be parked in a location in which a valid ticket for that time was not in effect, but there would be some extenuating circumstances explaining the non-compliance. Similarly, if someone had an injured or pregnant person in need of urgent medical attention, the last thing that the vehicle operator would be thinking about when stopping in front of a hospital or clinic would be whether he/she was stopping in compliance with the parking sign. The City of Toronto has recently placed on its website a previously confidential set of guidelines for cancelling parking tickets.[88] Some of the additional grounds for cancellation include:
1. vehicles on delivery;
2. official vehicles including city or municipal vehicles;
3. utility vehicles such as Canada Post, Bell Canada, public utilities;
4. security companies and armoured cars;
5. tour buses;
6. religious observance;
7. stolen vehicles
Legitimate expectations should include the ability to challenge AMPS for all the above grounds and because not all grounds can be anticipated in advance, a penalty recipient should be permitted to raise any grounds. If the law is applied blindly without any consideration of mitigating circumstances, drivers may lose respect for it. The challenge to the AMP however, may not deserve a full cancellation of the penalty. After all, traffic and land use control may demand that in densely populated locations if, for example, the parking meter isn’t working, or construction or maintenance of a transmission line or light fixture is underway, the driver should find an alternative location to park. The law recognizes that drivers in particular, assume additional regulatory responsibilities when they apply for their licence. This was explained by Mr. Justice Cory in the Wholesale Travel case[89], where he cited with approval an arti