Court Information

Court: Ontario Court of Justice Location: 70 Centre Avenue, Toronto, Ontario Date: October 24, 2013 Justice of the Peace: V. Bubrin

Parties and Representation

Prosecution: Her Majesty the Queen

• Counsel: Ms. S. Ristic, TTC Prosecutor

Defendant: Alan Rush

• Counsel: Ms. A. Rush

Charge

Section: s. 2.3(b) – TTC Bylaw Number 1 Offence: Failure To Comply With Conditions Of Use Of Fare Media

Reasons for Judgment

Facts

The facts in this case are straightforward and were, in the main, not in dispute.

On August 9, 2012, Mr. Alan Rush, the Defendant, a student at McGill University in Montreal and at the time in question also a summer student at Toronto's Princess Margaret Hospital (part of the University Health Network affiliated with the University of Toronto), entered the TTC Yorkdale subway station using a post-secondary student Metropass.

Mr. Rush was using the public transportation system at a reduced post-secondary student rate, a privilege afforded to students in Toronto by the TTC as per the TTC By-Law Number 1, together with the documents and fare media conditions derived from that By-law.

Officer's Observations

Mr. Carlos Uncao, a Provincial Offences Officer and the prosecution's witness, testified that at approximately 8:45 p.m. on August 9, 2012, he was on general patrol at Yorkdale subway station in the vicinity of the so-called "crash gate" staffed by a ticket collector. He observed the Defendant enter the paid area of the station showing a student Metropass. Mr. Uncao testified that he did not observe that the Defendant showed the collector a TTC student photo identification card.

Upon approaching the Defendant to see his TTC student ID card, he learned that the Defendant did not have one. Mr. Uncao testified that he showed the Defendant the information printed on the back of the Metropass indicating that a TTC student photo ID card must be used with the Metropass as a condition of use of the student Metropass.

Charge Issued

Mr. Uncao testified that he exercised his discretion and, instead of charging the Defendant with the offence "fail to surrender identification card" (which carries a $425.00 total fine), he issued him a Provincial Offences ticket, charging him with Fail To Comply With Conditions Of Use Of Fare Media, contrary to the TTC Bylaw Number 1, s. 2.3(b). According to the TTC By-law No. 1 Fines Table, the latter charge carries a fine of $195.00, for a total of $235.00 with applicable surcharges.

The officer further testified that he did not seize the Defendant's Metropass, that he informed the Defendant of what he had to do to obtain a Post-Secondary TTC Student Photo ID card, and that he allowed the student through in the system with the Provincial Offences ticket in the Defendant's hand.

Mr. Uncao also testified that there is signage at the collector's booth at Yorkdale station indicating what is required when someone uses a TTC Post-Secondary Student Metropass, and that there are periodic public announcements made throughout the subway system regarding the same requirement.

Cross-Examination

Under cross-examination, Mr. Uncao explained that he did not need to ask the Defendant whether or not he had a student pass from his university, because the only thing that would make the Defendant eligible to ride at the reduced post-secondary student rate was the Metropass with a Post-Secondary TTC Student Photo ID. The witness stated that the Defendant was not eligible to ride the TTC system at a reduced student fare on that date, though he admitted that his role was not to determine eligibility, but rather to make sure that there is compliance with the terms on the back of the TTC card.

The following is an excerpt from the cross-examination of Mr. Uncao by Ms. Andrea Rush:

Question: "So just for the benefit of the Court then, this is not a case about eligibility. It's about whether or not he had a pass. It's not about whether or not the TTC found Mr. Rush eligible to be riding at a reduced rate, because this is a pass. Rather, it's about whether someone is liable for a Provincial Offences if they don't produce it at the time they have it, they are requested to do so, whether or not they have it, whether or not they are a student, whether or not they have other student indicia that they can present to you. Is that correct?"

Answer: "This [i.e. the TTC Student Photo ID] must be presented when the pass is used. Unfortunately, we do have problems in the system with students who do not have these cards. They don't take it serious. They leave it at home. And because of that, we get delayed services, we get operator assaults. And so, for that reason, I myself have a pretty zero – close to zero tolerance when it comes to people not having these and showing them when they're travelling with the reduced fare."

Ms. Rush further questioned:

Question: "The reason why I am emphasizing this point, sir, is because I wanted to make sure that this is an issue about zero tolerance, about presenting the TTC photo ID and no other photo ID with the Metropass simultaneously, despite being eligible, despite having it. That's my question to you, so that we can frame the parameters before we actually look at R. v. Sault Ste. Marie, because we will be looking at the defences as well, which are indicated in that case. So I wanted to frame the facts clearly, with fairness to all, before we went on to (a) construction of the fine, construction of the by-law, and then the construction of the case itself. Because it is, after all, a Provincial Offences Act."

And further:

Question: "You check whether someone – you look at whether they are a student or not a student? Is that your job? Or is it just to enforce the bylaw and be at the station with respect to student Metropasses?"

Answer: "My job is to do the enforcement and make sure everyone that's using a reduced fare, make sure that they're in compliance with the proper documentation."

Defendant's Testimony

In his own testimony, the Defendant stated that when he got home after receiving the ticket, he called the TTC to find out whether he was eligible. He testified that he was instructed to go down to Sherbourne Station to present his identification documents to see if he was eligible.

Mr. Rush testified that he went to Sherbourne Station the very next day, presented his documents and student documents, and was issued a TTC photo ID, displaying his eligibility.

Mr. Rush also testified that later in May (after he received the ticket but before the trial), he found himself at the same Yorkdale Station and bought a bus ticket for a trip up north at a student rate, which he was able to get simply by presenting his McGill University student card.

Though the above may have caused some confusion in the Defendant's mind regarding different rules applying at the same station, the bus he was taking to travel up north was not a TTC bus and the TTC rules may not apply, as they may not apply to GO train system riders, for which there is also signage at the same Yorkdale station.

Legal Analysis

Competing Arguments: Eligibility vs. Compliance

In the Court's opinion, two competing arguments arise in the circumstances of this case, one focusing on eligibility, and the other on compliance. As understood from the defence argument, if Mr. Rush was eligible, which the evidence shows that he was, he should be considered to have also been in compliance when entering the TTC subway using a post-secondary student Metropass.

The prosecutor's position is that, while Mr. Rush may have been eligible, he did not qualify for the reduced student rate without the TTC student photo ID in his possession.

TTC Bylaw Provisions

Section 2.3 of the TTC By-law Number 1 states as follows:

"Fare media shall be: (a) valid for the period as indicated on the fare media; and

(b) shall be valid in accordance with the conditions of use of the fare media and as set out in this by-law."

In Section 1, the Definitions section of the by-law, the following is stated in subsections (e) and (g) respectively:

"(e) 'conditions of use' means the information printed on fare media, an identification card, a photo identification card and an electronic fare card and includes but is not limited to information electronically stored or encoded on the electronic fare card;" and

"(g) 'fare media' means any ticket, token, pass, transfer or other fare media issued by and acceptable to the TTC, and includes, without limitation, an electronic fare card, any single or multi ride ticket, a day pass, a family pass, a weekly pass, a monthly pass, a U pass, or any period pass."

In the case at hand, the fare media is the Post-Secondary Student Metropass, which the Defendant had in his possession on the date and time in question. Subsection 1(e) directs us to the conditions of use printed on that fare media, and those conditions read as follows:

Post-Secondary Student Metropass

Post-Secondary Students: Valid only with a TTC Post-Secondary Student Photo ID.

Must be: (a) in possession of the customer at all times during the trip; (b) clearly displayed to TTC employees when used together with the appropriate photo ID; (c) surrendered for inspection to TTC employees upon request together with the appropriate photo ID when on TTC property.

Conditions of use set out on the TTC Post-Secondary Student Photo ID cover the same ground, more or less, in the three bullet points on the back of that card:

• "This card can only be used with a Post-Secondary Student Metropass."
• "This card must be shown to TTC employees when using a Post-Secondary Student Metropass."
• "The card is only valid if the student is enrolled full-time in a recognized Degree or Diploma program, as determined in accordance with TTC policy, (referred to as 'Post-Secondary School'), and the institution is located in the City of Toronto."

Distinction Between Eligibility and Compliance

The Court accepts that both eligibility and compliance are addressed in the above-cited passages from the TTC By-law and the TTC-issued Metropass and Student Photo ID, even though eligibility and compliance are distinguishable. In the Court's opinion, eligibility is a matter of qualifying or being qualified for the reduced student fare, while compliance is a question of conforming to what is required.

Mr. Rush has shown that he may have been eligible for a reduced student fare on August 9, 2012. This eligibility was determined when the TTC issued him the TTC Student Photo ID when he attended at Sherbourne Station on August 10, 2012, the day after he received the ticket at Yorkdale Station. However, without the TTC-issued student photo ID in hand, a condition of use, as per the stipulations on the back of the media fare, derived from the authority of the TTC By-Law Number 1, he was not in compliance when he passed the collector's crash gate on August 9, 2012, at Yorkdale Station.

Classification of Offence: Strict Liability vs. Absolute Liability

This brings the Court to the issue on which the disposition of this case rests: Is failure to comply with conditions of the use of fare media under the TTC By-Law a strict or an absolute liability offence?

If it is determined that it is a strict liability offence, which was the position of the defence, the Defendant's due diligence would need to be considered. This would include the Defendant's mistaken understanding of facts; his mindset at Yorkdale Station with multiple transit systems under the same roof, each with its own signage; the reasonableness of the Defendant's understanding that he qualified for a reduced rate on the basis of his having in his hand a student Metropass and a McGill University student card; and other similar defences. Mr. Rush testified extensively on all these points.

R v. Sault Ste. Marie Framework

In her submissions, Ms. Rush emphasized the principles set out in the Supreme Court of Canada decision R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, particularly relevant in public welfare offences, such as the one at hand, being tried under the Ontario Provincial Offences Act. References were made to various sections of the Supreme Court of Canada decision, all in support of categorizing the offence at trial here as a strict liability offence.

From the introductory part of the decision on page 2, which summarizes the justification of the Court's dismissal of the appeal and cross-appeal, describing the three categories of offences:

"The correct approach in public welfare offences is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheries, [1971] S.C.R. 5, and to the virtual impossibility in most regulatory cases of proving wrongful intention, and also in rejecting absolute liability, admitting the defence of reasonable care. This leaves it open to the defendant to prove that all due care has been taken. Thus, while the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the Defendant need only establish on the balance of probabilities his defence of reasonable care.

Three categories of offences are therefore recognized (first) offences in which mens rea must be established, (second) offences of 'strict liability' in which mens rea need not be established, but where the defence of reasonable belief in a mistaken set of facts or the defence of reasonable care is available, and (third) offences of 'absolute liability' where it is not open to the accused to exculpate himself by showing that he was free of fault.

Offences which are criminal are in the first category. Public welfare offences are prima facie in the second category. Absolute liability offences would arise where the legislature has made it clear that guilt would follow on mere proof of the prescribed act."

The focus in R. v. Sault Ste. Marie is primarily on the second category, strict liability, the "half-way house" as it was described in the hierarchy of the offences. This is how the relatively new doctrine at that time is described, a doctrine that now binds our Courts in appropriate cases.

From pages eight and nine:

"The doctrine [of strict liability] proceeds on the assumption that the defendant could have avoided a prima facie offence through the exercise of reasonable care, and he is given the opportunity of establishing, if he can, that he did in fact exercise such care."

And further:

"This case, and several others like it, speak of the defence as being that of reasonable mistaken fact. The reason is that the offences in question have generally turned on the possession by a person or place of an unlawful status, and the accused's defence was that he reasonably did not know of his status: e.g. permitting an unlicensed person to drive or lacking a valid licence oneself, or being the owner of property in a dangerous condition. In such cases, negligence consists of an unreasonable failure to know the facts which constitute the offence. It is clear, however, that in the principle, the defence is that all reasonable care was taken. In other circumstances, the issue will be whether the accused's behaviour was negligent in bringing about the forbidden event when he knew the relevant facts. Once the defence of reasonable mistake of fact is accepted, there is no barrier to acceptance of the other constituent part of an offence of due diligence."

However, the introduction of the strict liability offences category, with a new set of possible defences available to the defendant in appropriate circumstances, does not replace or displace the other two categories of offences, mens rea and absolute liability offences. This is clearly set out in the very conclusion in R. v. Sault Ste. Marie.

From page 14 of R. v. Sault Ste. Marie:

"I conclude, for the reasons which I have sought to express, that there are three compelling grounds for the recognition of three categories of offences, rather than the traditional two."

"2. Offences for which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability..."

"3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault."

Court's Conclusion on Classification

Returning to the particular circumstances of the case at hand, the Court is of the opinion that if eligibility was the only issue to be decided, this case could justifiably be categorized as a strict liability offence and the Defendant could be exculpated from liability.

But, as pointed out earlier, Mr. Rush was not charged because he was ineligible, because he did not qualify for a reduced fare; he was charged for not having met the requirements of compliance, that is using his student Metropass without the appropriate photo ID, specifically, the TTC Post-Secondary Student Photo ID.

The rationale for this restriction is spelled out under the third bullet point on the back of the TTC Post-Secondary Student Photo ID as not every post-secondary student may be eligible. By issuing its own Post-Secondary Student Photo IDs, the TTC enables itself to exercise control over the privilege afforded to eligible post-secondary school students for a reduced fare.

Does the question of compliance fall under the category of an absolute liability offence? In the Court's opinion, it does.

The basis for this conclusion is as follows. In addition to the qualitative distinction made between eligibility and compliance in favour of the applicability of the latter, the Court notes that the language used in s. 2.3(b) of the TTC By-law: "Fare media shall be valid in accordance with the conditions of use of the fare media." The language at the back of the student Metropass addressed to Post-Secondary Students stipulates: "valid only with a TTC Post Secondary Student Photo ID; must be ... used together with the appropriate Photo ID; the appropriate Photo ID card is the TTC Post-Secondary Student Photo ID."

On this point, R. v. Sault Ste. Marie is, in the Court's opinion, clear. From page 14:

"Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the prescribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category."

Based on the Court's interpretation of the wording of the TTC By-Law and the accompanying documents pertaining to the restricted use of media fare designated for post-secondary students, and especially based on the precision of the language found in the TTC By-Law and documents issued and derived from the authority under the By-Law, such as 'shall', 'must', 'only' and the definite article 'the' ('the' not 'an' appropriate photo ID), not any photo ID but 'the' TTC issued photo ID, the Court concludes that an offence under s. 2.3(b) of the TTC By-Law Number 1 is indeed an absolute liability offence.

As such, the Court finds that it is not open to the Defendant to exculpate himself by showing that he was free of fault.

Verdict

For these reasons, the Court concludes that the prosecution has proven the charge against Alan Rush beyond a reasonable doubt and finds the Defendant guilty of the offence of Failing To Comply With Conditions Of Use Of Fare Media, contrary to the TTC By-Law s. 2.3(b).

Sentencing

Prosecution Submissions

Ms. Ristic sought the set fine as an appropriate amount. She noted that there had been a trial in the matter with a couple of appearances, and the defendant had many opportunities to plead to a reduced fine. She submitted that the set fine was appropriate.

Defence Submissions

Ms. Rush sought a reduction in the fine. She emphasized that there had been many appearances and opportunities, and a full trial with a lot of time spent. She noted that this was the first time there had been a decision on this point. She argued that Mr. Rush was a student who was in fact eligible and that the case was interesting and instructive.

Court's Reasoning on Penalty

The Court identified one aggravating point: that Mr. Rush had in his hand a Metropass, on the back of which there were certain conditions to which he apparently did not pay attention, or to which he ought to have paid some attention.

However, the Court also identified mitigating circumstances:

• Mr. Rush accepted the ticket politely
• He then did his research to find out that he was eligible
• He attended at Sherbourne Station and obtained a TTC-issued student photo ID
• He now understands what is required
• Even though he challenged the system, he now understands the requirements

The Court noted that the fact that this was a trial of several sittings comes with the territory, and that the Court should not penalize people for exercising their right to have their matters tried.

Sentence

The Court exercised its discretion and reduced the fine to $100, taking into account the mitigating circumstances present in the case.

Ms. Rush was given five minutes to pay the fine at customer service at the front of the courthouse.

Certificate of Transcript

I, Judy Denny, certify that this document is a true and accurate transcript of the recording of Her Majesty the Queen v. Alan Rush, in the Ontario Court of Justice, Provincial Offences Court, held at 70 Centre Avenue, TORONTO, Ontario, taken from Recording No. C2 20131024-1330, dated October 24, 2013 which has been certified in Form 1.

Date: December 20, 2013

Certified by: Durham Reporting & Mediation Services