Parking tickets - the 75 days thing.

[Jason]

Hello Marc

I've found your writings while searching for more information about the the parts of the Provincial Offenses Act that specify that a trial may be commenced if it's done within 75 days of the infraction. I wish to use this to help a friend, who has picked the trial open and waited over 3 months now with no court date. What is my procedure for verifying that proceedings have not been commenced, and if that's the case, having the ticket thrown out?

Any help you could offer would be appreciated, if nothing more than pointing me to some relevant information.

Thanks.

[Max]

Hello Jason.

Here's my post from the Northern Life that I think you were referring too. I'll reread the act and tell you what I think you should do in the next few days. This is friendly free advice and not legal advice. I am not a lawyer or a para-legal, thus I am not licenced to provide legal advice.


Any ticket older than seventy-five days after the day on which the alleged infraction occurred does not need to be paid.

When you did not pay the ticket sections 17 and 18 of the Provincial Offences Act are triggered. Both sections are similar in content.

Failure to respond

18. (1) The person designated by the regulations may give the defendant a notice of impending conviction if,

(a) at least fifteen days and no more than thirty-five days have elapsed since the alleged infraction occurred;

(b) the defendant has not paid the fine; and

(c) a notice of intention to appear has not been received


Every Provincial statue is subject to the Interpretation Act.

Under the Imperative and permissive forms of the Interpretation Act, section 29 (2) states;

(2) In the English version of an Act, the word “shall” shall be construed as imperative and the word “may” as permissive.

In other words, Shall = must - you must do it.

May = may - you may do it but do not have to do it.

Under section 18. (1) of the Provincial Offences Act, the city could've (the word may is used) sent you a notice of impending conviction no later than 35 after the ticket was issued.

The defendant then may (you did not have to do it) issue a notice to appear to enter a plea under section 18.1 (1)of the Provincial Offences Act.

Section 18.1 (1) states;

Intention to appear

18.1 (1) A defendant who receives a notice of impending conviction may give notice of intention to appear in court for the purpose of entering a plea and having a trial of the matter by so indicating on the notice of impending conviction and delivering the notice to the place specified in it.

Proceeding commenced

(2) If a defendant gives notice of an intention to appear after a notice of impending conviction has been given, a proceeding may be commenced in respect of the charge if it is done within seventy-five days after the day on which the alleged infraction occurred.


If the defendant was given notice of impending conviction and failed to give notice that they intended to enter a not guilty plea, then, under section 18.2, the defendant shall be deemed to not dispute the charge.

Section 18.2 (1) states;

No response to impending conviction notice

18.2 (1) A defendant who has been given a notice of impending conviction shall be deemed not to dispute the charge if fifteen days have elapsed since the defendant was given the notice, the fine has not been paid and a notice of intention to appear has not been received.


However, the Act cannot give you a right to not do something, as section 18.1 (1) does, and then take that right away from you as section 18.2 (1) does. Thus, section 18.2 (1) has no effect. By not paying the ticket and by not issuing a notice to enter a plea, which you were under no obligation to do, by law, you had entered a plea of not guilty, as evidence in section 45. (3)

Section 45. (3) states;

Refusal to plead

(3) Where the defendant refuses to plead or does not answer directly, the court shall enter a plea of not guilty.


The burden then shifts to the city to hold a trial within a reasonable amount of time.


"Everyone" in Canada (whether you're a legally landed person or not) has legal Rights under the Canadian Charter of Rights and Freedoms.

Section 11 (b) states;

Any person charged with an offence has the right to be tried within a reasonable time.

The city failed to hold a trail within a reason time and your section 11(b) charter rights have been violated if they now proceed to try and acquire a conviction.

The city has the ticket issuing officer, the clerk, a huge staff, and an entire legal department overseeing the city's duties and obligations. There is no credible excuse they can advance to justify not proceeding with the matter within a reasonable time.

Importantly, even if you were issued a notice of impending conviction under section 18.(1), and even if you failed to issue a notice of intention to appear in court for the purpose of entering a plea under section 18.1(1), and despite being deemed not to dispute the charge under section 18.2 (1), the city can still not collect because under section 18.2 (5) they failed to commence a proceeding to collect within 75 days of the infraction.

Section 18.2 (5) states;

Proceeding commenced

(5) A proceeding may be commenced in respect of the charge by filing the certificate requesting a conviction in the office of the court, but only if the certificate is filed within seventy-five days after the alleged infraction occurred.


No judge has the authority to now issue a conviction as YOUR rights have now been breached.


Any conviction when an error is made by the municipality MUST be struck out by a judge. The word shall is used in 18.5 (2).

Section 18.5 (1) and (2) states;

Error by municipality

18.5 (1) A municipality or other body may apply to a justice requesting that a conviction respecting a parking infraction be struck out if the defendant was convicted because of an error made by the municipality or other body.

Idem

(2) On an application by a municipality or other body, if a justice is satisfied that an error was made, the justice shall strike out the conviction.


What the city is doing is simply a deliberate abuse of authority and YOU should now file a claim for restitution plus interest for the ticket that you paid when you had no obligation to pay it.

You now have a six month Statue of Limitation to file your claim.


For the person who paid the ticket when he claims it wasn't even his truck, you are entitled to your money back, plus interest, plus 25 $ in costs from the city.

Section 18.3 (1) and (2) states;

Application where ticket defective

18.3 (1) A defendant who is convicted of a parking infraction under section 18.2 may, within fifteen days after becoming aware of the conviction, apply to a justice requesting that the conviction be struck out for the reason that the parking infraction notice is defective on its face.

Idem

(2) On an application by the defendant, if a justice is satisfied that the parking infraction notice is defective on its face, the justice shall strike out the conviction and shall order that the municipality or other body that issued the certificate requesting a conviction pay $25 in costs to the defendant.

[Max]

Jason, please tell me the date of the ticket and the sections cited on the ticket.

Also, be aware that when the term "days" are used in a statue they do not include weekends or holidays. They are business days.

Thus 75 days from the infraction date would mean 95 calandar days, or whatever it actually is. If a holiday falls within the 75 day period it would mean 96 calandar days.

In other words, if you got a ticket today, Novemeber 22, the 75 day period would expire sometime in March due to all the weekends and holidays in December and January 1.

[Max]

Jason, I would also be interested in knowing what court / conviction related information is stated on the ticket itself.

If you can post the info, please do.

[Jason]

Hello Marc.

Yes it was the post on Northern Life I ran across.

I don't have a copy of the ticket with me. I believe the ticket was from August 1st of this year, so we should be good even if it's actually 95+ days. My friend waited 14 days before checking the trial option box and taking the ticket in, because even then our plan was to see if we could use this 75 day thing to our advantage.

I'm sorry, I don't know any more details about the ticket. We were going to photocopy it before dropping it off, but forgot. The lady at the counter there said we'd have to wait a year for the trial anyway (it's in waterloo region).

But, seeing as it's been more than the 75 working days, is there something we can do? I mean, can we get it thrown out now or do we bring up the 75 day thing at trial?

Thanks!

[Max]

There are several things to consider. The ticket could be defective on its face, meaning a mistake may’ve been made by the issuing officers. They may not have signed it, just initialed it, the wrong form may’ve been used, he may not have certified how it was served, on the person or just left it on the car, etc. If this were the case you would need to bring a motion to dismiss it on these grounds prior to entering a plea. You haven’t entered a plea yet, you only indicated you want a trial.

You don’t have a copy of the ticket though, so we don’t know if mistakes were made.

You correctly complied with section 17.1 of the Provincial Offenses Act by sending the ticket in to give notice of your intention to appear in court for the purpose of entering a plea and having a trial of the matter.

Section 17.1 states;

Intention to appear

17. (1) A defendant who is served with a parking infraction notice may give notice of intention to appear in court for the purpose of entering a plea and having a trial of the matter by so indicating on the parking infraction notice and delivering the notice to the place specified in it.


Upon sending in the ticket it triggered section 17.1 (2), which places the burden on the city to commence a proceeding within seventy-five days after the day on which the alleged infraction occurred. This means the court had to file in the office of the court (a) the certificate of parking infraction and (b) if the parking infraction is alleged against the defendant as owner of a vehicle, evidence of the ownership of the vehicle.

Section 17.1 (2) states;

Proceeding commenced

(2) If a defendant gives notice of an intention to appear, a proceeding may be commenced in respect of the charge if it is done within seventy-five days after the day on which the alleged infraction occurred. 1993, c. 31, s. 1 (7).

Idem

(3) The proceeding shall be commenced by filing in the office of the court,
(a) the certificate of parking infraction; and
(b) if the parking infraction is alleged against the defendant as owner of a vehicle, evidence of the ownership of the vehicle. 1992, c. 20, s. 1 (1).

The court may or may not have done this. A court employee simply verbally telling you it's going to take a year is not considered the commencement of a proceeding. If it was done right the court then has to give you written notice of the time and date of the trial.

Section 17.1 (4) states;

Notice of trial

(4) As soon as practicable after the proceeding is commenced, the clerk of the court or a person designated by the regulations shall give notice to the defendant and prosecutor of the time and place of the trial. 1992, c. 20, s. 1 (1); 1993, c. 31, s. 1 (8).

If the court failed to commence a proceeding they are now barred from proceeding with this matter.

Section 76 of the Act articulates and confirms that the city is barred from proceeding with this matter now if they didn't file in a timely manner. Under section 76 (2) the limitation period to go after you can only be extended with your consent, and clearly you’re not going to consent to that!

Section 76 states;

Limitation

76. (1) A proceeding shall not be commenced after the expiration of any limitation period prescribed by or under any Act for the offence or, where no limitation period is prescribed, after six months after the date on which the offence was, or is alleged to have been, committed.

Extension

(2) A limitation period may be extended by a justice with the consent of the defendant. R.S.O. 1990, c. P.33, s. 76.

So at this point, I would say wait another two weeks and then call or write the court and ask for copies of the filing documents and a copy of your ticket if they claim they filed for the commencement of the trial.

If the court didn’t file within 75 days you have them beat. If they did file we can examine the ticket for mistakes. If mistakes were made, and that happens, you can file a motion to dismiss the charge for the defects.

Even if the court did file correctly and there are no defects on the ticket you have a right to a trail within a reasonable time under section 11 (b) of the Charter of Rights and Freedoms. The woman has told you it may take a year. This is not reasonable, in my view. Do not tell her that when you call though.

You may want to move to Vancouver, or wherever, and you’re certainly not going to fly to Waterloo to fight a 20-30 $ ticket. You indicated you want a trial, you’re ready to attend it now, and it’s not you fault the court is busy.

I will search for some case law on what the definition of reasonable time is. I’ve read some cases before. I know two years is unreasonable. I’m not sure if one year is. To me it is.

You may want to consider not calling or writing at all. Your call might spark them into action. At this point you want this to take as long as possible so you can use the unreasonable trial timeline argument.

The 75 day argument would've worked for the guy when I orginally posted the article on the Northern Life. They came after him 10 years, or whatever it was, after the alleged infraction.

The other guy didn't even own the vehicle that was ticketed.

What do you think?

[Max]

Jason.

Sudbury has a parking by-law. Waterloo probably does as well.

A defence to a parking violation is depicted in section 428 of the Municipal Act. You would have to do some research to see if Waterloo has incorporated the following in their by-law.

In other words, if the ticket was issued when the car was in the possession of another person without the owner’s consent you don't have to pay. If your buddy is claiming someone else had his car without his permission at the time, the city would have to prove this is not true. A tough test for them to meet.

Offence re illegally parked vehicle

428. A by-law may provide that, where a vehicle has been left parked, stopped or standing in contravention of a by-law passed under this Act, the owner of the vehicle is guilty of an offence, even though the owner was not the driver of the vehicle at the time of the contravention of the by-law, and is liable to the applicable fine unless, at the time of the offence, the vehicle was in the possession of another person without the owner’s consent. 2006, c. 32, Sched. A, s. 184.

[Max]

Waterloo Parking By Laws

www.city.waterloo.on.ca/desktopdefault.aspx?tabid=547

[Jason]

Hi Marc.

I looked over the waterloo bylaws before, and didn't really see anything helpful.

My real peeve with waterloo is how they selectively enforce their regulations. They love to enforce the 3 hour limit near the university, where out-of-towners don't learn of the 3 hour limit until there's a ticket on their car (the signs are only posted at a few entrances to the city, miles away from the schools). It seems very predatory to me. If they truly didn't want people parking there for more than 3 hours, you'd think they'd put up some signs to that effect to warn people. But they don't, they seem to use it like a tax. They also ignore enforcing the one parking regulation that I feel is actually the most important: parking in front of a fire hydrant. So, anyway, no matter what happens I feel better knowing that giving us a $20 ticket will cost them way more than $20.

My plan right now is for us to go down later this week and see if this ticket has actually been filed with the court, then go from there.

One year certainly seems unreasonable to me. That kinda wait suggests maybe they are handing out too many tickets that they really shouldn't be. I saw a BC ruling where the judge said the severity (or lack of) of the alleged infraction doesn't factor into whether the wait is reasonable or not, but reading through that was like pulling teeth and I don't know if it would apply in Ontario anyway.

Thanks for your help.
-Jason.

[Max]

Although not a parking ticket infraction, this case was stayed due to a nine month trial delay.

www.canlii.org/en/on/oncj/doc/2007/2007oncj557/2007oncj557.html

[Jason]

Well, before I had a chance to head down to the courthouse to see if the ticket was filed, we got a letter in the mail with the court date and the filing date. The court date is in early January and the filing date was within 75 days. No luck there, I guess.

As for examining the ticket for errors, where do I find the list of things that should appear on a ticket? The provincial offenses talks a lot about tickets that are defective on their face, yet I can't seem to find exactly what that means. Very confusing. Where is this stuff?

Thanks!
-Jason.

[Jason]

Also, I found a webpage that references a case. It seems to suggest that 8 - 10 months is the limit for a reasonable delay.

R. v. Muniz, [1999] O.J. No. 312. is the case. I'm not sure if it can be looked up, but there's some quotes from it on the bottom of this page:
ask.metafilter.com/66296/help-me-bring-down-the-man-one-bike-ticket-at-a-time
Maybe it will help someone else.

[Max]

Hi Jason. I did some research and even if there are mistakes on the ticket they can correct them. I'm not saying that there is mistakes or that they corrected them. Do you now have a copy of the ticket?

[Jason]

Hello Marc.

I have a photocopy of the front of the ticket. It came with the letter telling us about the court date. There's a photocopy of something that looks like my ownership on it too (my car, friend was driving.)

The one thing I see that looks fishy is that the only mention of the offence on these papers is on the photocopied ticket, which says:

Committed the following infraction contrary to the CITY OF WATERL
By-Law 87-148 Part/Section: 4(A,C,D,F,H,I,J,K,L,

Based on other things on the ticket, it is possible to narrow down exactly which one of A,C,D,F... etc. that they nailed me for, but it still seems odd they wouldn't specify and I'm pretty sure "CITY OF WATERL" doesn't any parking bylaws.

[Max]

So it was your car and your friend was driving it and got the ticket. The ticket was left on your car and not issued to the driver, your friend, correct?

The issuing officer is required to sign the ticket, not initial it. Let me know if he signed it.

I have issues with them allowing the car owner to be ticketed when someone else is driving the car. I believe this is unconsitutional. It's like you're having a house party and dozens of people are there. Someone is murdered and everyone leaves the house. The police show up and can't find the killer because he left so they charge the homeowner with murder.

This is what they are doing with parking tickets. You friend is responsible but since they didn't wait for the driver to return they charged you, the owner of the car.

In my view, you are not responsible for what your friend did. It is not illegal for you to lend you car. Lending your car does not make you responsible for the wrongs committed by the driver.

Another example. You lend your car, which is legal to do, your friend gets in an accident, a hit and run. He takes off on foot and leaves the car at the scene. They can't find the driver, so they charge the owner of the car.

They'd never win convictions against the homeowner or car owner under these situations.

Part of the reason photo radar is no longer used is because they were charging owners of the car with speeding infractions when the owner was not speeding, the driver was. You cannot be convicted of something you never did. The Prosecutor must prove that you're guilty. The fact that they know it was your car, because they have your licence plate number, and from that they got a copy of your ownership, doesn't prove you were driving the car when the parking ticket was issued.

However, I'm sure someone tried to argue this before, but maybe not.

Since you're challenging this ticket already, if I were you I would argue that the sections of the Provincial Offence Act that allows them you charge you, as the owner of the car, for the wrong committed by others, the driver responsible for illegally parking the car, are unconstitutional.

If your friend is willing to show up in court and say he was driving and responsible for illegally parking the car, you cannot be found guilty, in my view. By January, it'll be too late for them to now charge your friend ... I think.

Parking tickets begin under section 14 of the Act. Section 15 states:

Certificate and notice of parking infraction

15. (1) A provincial offences officer who believes from his or her personal knowledge that one or more "PERSONS" have committed a parking infraction may issue,

(a) a certificate of parking infraction certifying that a parking infraction has been committed; and

(b) a parking infraction notice indicating the set fine for the infraction.


...


Service on owner

15 (4) The issuing provincial offences officer may serve the parking infraction notice on the owner of the vehicle identified in the notice,

(a) by affixing it to the vehicle in a conspicuous place at the time of the alleged infraction; or

(b) by delivering it personally to the person having care and control of the vehicle at the time of the alleged infraction.



Section 15. (1) only allows the issuing officer to ticket "PERSONS" WHO HAVE COMMITTED a parking infraction.

It doesn not say they can ticket OWNERS of cars if the guilty PERSONS are not around to receive the ticket. Car owners do not commit parking infractions; a person driving the car does.

Sectioin 15 (4) only discussing how the ticket can be served.


As the owner of the car, you are still not guilty of something you didn't do.


So your friend is guilty, not you. The officer left the ticket for him on your car. You asked your friend to pay it. He said no, because the ticket for which he admits responsibility was not correctly issued to him. It was issued to you, instead of him.

The evidence the court has is your ownership. Big deal. This proves nothing more than that you own the car, which you admit. This does not prove you were driving and illegally parked the car.


You can only be found guilty of an offence YOU committed. Lending your car is not illegal.

Section 11 of the Charter of Rights and Freedoms states;

11. 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;

...

g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;


Case closed, in my view.

Under section 11 (d) you are innocent until proven guilty ACCORDING TO LAW...

There is no law in Canada, not even the Provincial Offence Act, that allows them to convict an innocent person. They can only convict the guilty, i.e., the driver, not the car owner.

Section 11 (g) states you are not to be found guilty on account of any act or omission...

The issuing officer act of issuing the ticket to the wrong person means you cannot be found guilty because the act of lending your car does not constituted an offence under Canadian or international law nor was criminal according to the general principles of law recognized by the community of nations;



The issuing officer had choices. Under section 15 (4)(b), he could've waited around for the driver to return to serve him properly. He could've had the car towed to force the owner to contact him to acquire information on who was driving the car when the offence ocurred so he could issue the ticket to the proper GUILTY PERSON.