Court and Parties

DATE: June 19, 2024 ONTARIO COURT OF JUSTICE

BETWEEN:

THE CITY OF BURLINGTON Respondent

— and —

SYNDEE ESHED Applicant

RULING ON s. 11(b) CHARTER MOTION

Before: Justice of the Peace T.J. Howard

Motion heard: April 23, 2024, in Burlington, Ontario Ruling and reasons released: June 19, 2024, in Burlington, Ontario

Counsel: Mr. Zenko, C. ........................................................................................ for the Respondent Ms. Eshed S. ......................................................................................... (self) the Applicant

Background

JUSTICE OF THE PEACE T.J. HOWARD

1The applicant, Ms. Syndee Eshed is charged with a single count of owner fail to stop red-light (red-light camera system), contrary to s. 144(18.1) and pursuant to s. 207 of the Highway Traffic Act, R.S.O. 1990 c. H.8. (HTA). It is alleged that the applicant committed the offence on March 26, 2022, in the City of Burlington. Proceedings were commenced via a red-light camera system certificate of offence under part I of the Provincial Offences Act, R.S.O. 1990, c. P 33 (POA). The applicant served a notice of constitutional application on February 28, 2024, alleging a breach of her right to be tried within a reasonable time guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms (the Charter), and seeking a stay of proceedings pursuant to s. 24(1).

2The respondent, Mr. Christopher Zenko, for the City of Burlington, filed a factum in response on March 15, 2024, arguing that s. 11(b) of the Charter does not apply and that the delay was reasonable. I heard the matter on April 23, 2024, in Burlington. I allowed both parties to provide oral submissions to supplement their written materials. I then directed that the trial proceeds, indicating that I would render a decision on the motion, and if need be, on the trial on a subsequent date. The date of June 19, 2024, was selected for judgement.

3For the reasons contained herein, I find that s. 11(b) does apply, but the applicant’s right to be tried within a reasonable time was not violated. Thus, the application is dismissed.

Position of the Parties

4The applicant argues that her right to be tried within a reasonable time guaranteed under s. 11(b) of the Charter was violated, because the 18-month presumptive ceiling established in Jordan [1] was exceeded. The applicant claims that the period from the laying of the charge to the trial date on January 31, 2024, is approximately 23 months.

5The applicant concedes that some “discount” of time is justified due to the impacts of the COVID-19 pandemic, but stops short of specifying what that period ought to be. The applicant argues that the Court had at least 10 months of “lead time” to adapt to virtual proceedings, which ought to have led to an earlier trial. She references a memo from the Ontario Court of Appeal highlighting that “Zoom” proceedings in that Court began on July 6, 2020, and were fully underway in May 2021.

6The respondent makes two central arguments. First, that Charter protection is not available to the defendant, because as a vehicle owner charged with a red-light camera system offence she does not fit within the definition of “a person charged with an offence”, as contemplated by s. 11 of the Charter. Second, that the net delay falls below the 18-month presumptive ceiling. The respondent asks that I dismiss the application on one, or both grounds.

7The respondent points to the analysis in Wigglesworth [2], and reasons that red-light camera system and automated speed enforcement offences are akin to “administrative penalty regimes”, and are therefore neither “criminal in nature”, nor result in “true penal consequences”.

8The respondent submits that in some jurisdictions, pursuant to Ontario Regulation 355/22 under the HTA, these proceedings are being downloaded to municipal Administrative Monetary Penalties (AMPs) systems, similar in fashion to parking offences, and ought to be viewed as such.

9Further, the respondent submits that the purpose of the penalties associated with these offences differ from that of other offences in the HTA. The respondent argues that the penalties associated to owner liability red-light camera system and automated speed enforcement offences are designed to achieve compliance with an administrative program, targeting a limited scope of activity, rather than designed to be punitive and to promote public order, as is the case with penal consequences.

10Importantly, the respondent is not arguing that Charter protection is unavailable to all defendants charged under part I of the POA. Instead, the respondent argues – in essence – that owner liability red-light camera system and automated speed enforcement offences ought to be distinguished from other offences based on the two grounds set out above: i) the nature of the proceedings, and ii) the type of consequences available.

The Issues – Part A: Whether the Defendant is a Person Charged

Is an owner liability red-light camera system proceeding criminal in nature?

11The respondent argues at para. 39 of his factum that these proceedings are not criminal in nature, because a conviction carries no stigma and there is no culpable conduct of a vehicle owner who is charged pursuant to s. 207 of the HTA. The respondent likens these proceedings to AMPs proceedings for parking tickets, which do not merit Charter protection under s. 7 or s. 11. [3]

12The respondent highlights the criminal-administrative distinction and argues that red-light camera system and automated speed enforcement offences fall on the administrative side. Respectfully, I do not view the analyses in Wigglesworth and in subsequent relevant cases to support this position.

13In Wigglesworth, the Supreme Court was tasked with determining whether a police officer’s conviction of a “major service offence” (an assault on a prisoner) under the Royal Canadian Mounted Police Act precluded subsequent criminal proceedings for a charge of assault under the Criminal Code, on the ground that such proceedings would violate the accused’s rights under s. 11(h) of the Charter [4].

14To resolve the issue, Wilson J. explored the meaning of “a person charged with an offence” contained in s. 11 and described two branches upon which a person might be considered charged with an offence:

“While it is easy to state that those involved in a criminal or penal matter are to enjoy the rights guaranteed by s. 11, it is difficult to formulate a precise test to be applied in determining whether specific proceedings are proceedings in respect of a criminal or penal matter so as to fall within the ambit of the section. The phrase "criminal and penal matters" which appears in the marginal note would seem to suggest that a matter could fall within s. 11 either because by its very nature it is a criminal proceeding or because a conviction in respect of the offence may lead to a true penal consequence. I believe that a matter could fall within s. 11 under either branch.” [5] (emphasis added)

15In the very next paragraph, Wilson J. considers the types of proceedings that are criminal in nature:

“There are many examples of offences which are criminal in nature but which carry relatively minor consequences following conviction. Proceedings in respect of these offences would nevertheless be subject to the protections of s. 11 of the Charter. It cannot be seriously contended, that just because a minor traffic offence leads to a very slight consequence, perhaps only a small fine, that offence does not fall within s. 11. It is a criminal or quasi-criminal proceeding. It is the sort of offence which by its very nature must fall within s. 11.” [6] (emphasis added)

Here the Court is clear that quasi-criminal, regulatory proceedings are the same as criminal proceedings with respect to s. 11 Charter protection, because of their nature.

16The Court went on in subsequent decisions to expand on the meaning of each of these two thresholds [7]. For instance, in Shubley [8] the Court clarified that the “criminal in nature” test focuses squarely on the nature of the proceedings (the process), not on the nature of the act. Furthermore, in Martineau [9] and similarly in Guindon [10], the Court found that only proceedings that lack the indicia of criminal prosecutions can be considered administrative. Such indicia include, but are not limited to, a summons, an arrest, an information, or a trial in a court of criminal jurisdiction.

17The reasoning in Guindon with respect to the nature of quasi-criminal regulatory proceedings is the same as in Wigglesworth:

“But whether a proceeding is criminal by nature does not depend on the actual penalty imposed. For example, parking tickets can involve relatively small fines, but where they are imposed in conformity with the general criminal process (e.g. pleading guilty or contesting the fine before a judge, prosecution by a Crown attorney), s. 11 rights apply: Wigglesworth, at para. 559. Offences in the Criminal Code, the Youth Criminal Justice Act, S.C. 2002, c. 1, the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and quasi-criminal offences under provincial legislation are the type of proceedings which are criminal in nature: see the Constitution Act, 1867, s. 92(15); Wigglesworth, at p. 560; Martineau, at para. 21.” [11] (emphasis added)

18Importantly, the terms classically associated with criminal proceedings – and contained in s. 11 of the Charter – show up equally in proceedings for owner liability red-light camera system and automated speed enforcement, and in all other proceedings under part I of the POA. Whether speaking about a charge of failing to report a workplace accident under the Occupational Health and Safety Act, or owner operate a vehicle with no insurance under the Compulsory Automobile Insurance Act, or owner fail to stop red-light under the HTA, the following terms apply: tried, innocent until proven guilty, found guilty of the offence, sentenced for the offence, etc.

19Beyond just the terminology, an examination of the Ontario Court of Justice process related to owner red-light camera system and automated speed enforcement proceedings reveals little to no distinctions from other part I POA proceedings: i) a charge is laid via a certificate of offence, ii) a defendant wishing to dispute a charge is provided a court date, iii) a defendant is arraigned and can enter a plea of guilty or not guilty, iv) a not guilty plea leads to a trial presided over by a justice of the peace, v) the prosecution must prove the case beyond a reasonable doubt, vi) formal rules of evidence apply, vii) both parties can present evidence including witnesses, viii) both parties can cross-examine witnesses, ix) a defendant can present a defense, x) a finding of guilt can be made or a charge can be dismissed, xi) a trier of fact determines a fit sentence after hearing submissions, and considering sentencing principles and factors, and finally, xii) an appeal of a decision is heard by a judge of the Ontario Court of Justice.

20Conversely, O. Reg. 355/22: Administrative Penalties for Contraventions Detected Using Camera Systems under the HTA, which permits AMPs systems for certain HTA offences (including red-light camera systems and automated speed enforcement) contains distinct terms and distinct processes. The processes related to screenings, reviews, appeals, and decisions are laid out at s. 11 to s. 14 of the regulation and contrast starkly from the Ontario Court of Justice process (see appendix A for the relevant excerpts of O.Reg. 355/22). Obviously lacking from these processes are the indicia of a criminal or quasi-criminal prosecution referenced in Martineau, which properly distinguishes the AMPs system.

21Ultimately, in my view, if owner liability red-light camera system and automated speed enforcement proceedings are prosecuted under the POA in the Ontario Court of Justice, those proceedings are criminal in nature (being quasi-criminal). The Ontario Court of Justice for provincial offences cannot embed a separate and distinct AMPs-style administrative process within its quasi-criminal mandate. This would effectively create a two-tiered system, with differing levels of procedural protections. It would also render moot the purpose of O. Reg. 355/22 and the function of municipal AMPs systems.

Are the penalties associated with owner liability red-light camera offences true penal consequences?

22At para. 39 of his factum the respondent argues that the consequences associated with owner red-light camera system proceedings are not penal in nature, because the imposition of a fine is not subject to “any sentencing principles, but rather a regulated monetary regime”.

23In the rarest of cases, where the two branches of the Wigglesworth test conflict, Wilson J. found that, “the ‘by nature’ test must give way to the ‘true penal consequence’ test, because penal consequences demand procedural protections.” [12] In this case, having found that the proceedings are criminal in nature, it is not necessary for me to determine whether the associated penalties are penal in nature.

24On its face however, with respect to the nature and purpose of available penalties, I see no true distinction between owner liability red-light camera system or automated speed enforcement offences and other traffic offences prosecuted under part I of the POA (demerit points, drivers’ abstracts, and insurance implications are not penalties imposed by a Court). Clearly, red-light camera system and automated speed enforcement offences are public welfare offences, designed to promote safe driving and protect the public. Sentencing in these cases must seek to deter owners and drivers from permitting or engaging in the prohibited activities.

25Notably, the penalties associated with owner liability red-light camera system offences are the same as those facing drivers charged in the traditional fashion (by police observation). Section 144(18.3) of the HTA states that a person charged via red-light camera system evidence is deemed to be charged under s. 144(18), which is the traditional offence section. A defendant charged in either manner faces the penalties under s. 144(31.2.1): a fine of not less than $200 and not more than $1000.

26The only impact of charging a person as the owner of the vehicle as opposed to the driver of the vehicle pursuant to s. 207 of the HTA is a prohibition on imposing a sentence of probation or incarceration. I note that in any event, under part I of the POA, these forms of sentence are not permitted, even if the offence-creating statute provides for it.

27In my view, the available scale of fines noted above indicates that for a fit sentence to be determined the trier of fact must consider the goals and principles of sentencing, as well as mitigating and aggravating factors (speed, traffic, timing of lights, etc.), on a case-by-case basis. Otherwise, there would be little rationale for moving up or down the scale. This process is distinct from the imposition of penalties under the AMPs system, which involves fixed administrative penalties (see s. 6 of O. Reg. 355/22 in appendix A).

28For all these reasons, I find that the defendant is clearly “a person charged with an offence” and is entitled to the rights guaranteed by s. 11(b) of the Charter, which apply to all part 1 POA proceedings. [13]

The Issues – Part B: The Jordan Calculation

29The 18-month presumptive ceiling established in Jordan applies to all part I POA proceedings [14]. The applicant bears the onus to prove on a balance of probabilities that her right to trial within a reasonable time guaranteed under s. 11(b) of the Charter was breached [15]. In cases where “the evidence does not establish whether or not the appellant’s rights were infringed, the court must conclude that they were not.” [16]

30The applicant lays out “factual grounds” on pg. 2 of her application, which claims a period of 23 months from the laying of the charge to the date of January 31, 2024 (first trial date after reopening). Accompanying the application is a sworn general affidavit stating that the application was served on the Attorney General of Canada, the Attorney General of Ontario, and the prosecution’s office. Importantly, the applicant does not swear to the truth and accuracy of the timelines claimed, nor any actions taken.

31Furthermore, the remaining materials supporting the application do little to prove a Charter violation. These include: an unsworn letter explaining missing transcripts, the transcript order form, the proof of payment for transcripts, a printout of the Ontario Court of Appeal “Zoom notice”, a copy of the evidence package from the red-light camera system and the provincial offences officer, and a copy of the “notice to defendant” under the Ontario Evidence Act. The applicant provided no testimony to support the application.

32The transcripts provided only shed light on the period between January 31, 2024, and April 23, 2024. The transcripts reveal that on January 31, 2024, the applicant was unsure if she wanted a trial or to plead guilty. The sitting justice of the peace explained her options thoroughly, but decided that there was insufficient time for a trial. The justice of the peace left it open to the applicant to enter a plea of guilty on that day if she chose to do so. Ultimately, the applicant chose to set another trial date and the matter was adjourned to March 18, 2024, for trial.

33On March 18, 2024, the Court did not have time for a trial, due to combined dockets. A new date was selected for trial, and there was mention of a potential Charter motion being filed. April 23, 2024, was set for trial.

34To understand what took place between the filing of the certificate and the January 31, 2024, court date, I look to the charging document and associated court documents.

35These documents reveal the following: i) offence number 1260-997-22-20180168-00 was captured on March 26, 2022, ii) notice was mailed out to the applicant on April 5, 2022, and filed with the court on April 14, 2022, iii) a conviction in absentia occurred on May, 26, 2022, iv) a reopening application was filed on June 14, 2022, which stated, “I’d like to speak with someone, because I just got the first notice after conviction”, v) the reopening was approved on June 15, 2022, and an early resolution meeting notice was ordered, vi) an early resolution meeting was set for October 24, 2023, and a notice was sent to the applicant, vii) on October 24, 2023, the applicant opted to set a trial date, and viii) a trial date was set for January 31, 2024, and a notice of trial was sent to the applicant.

36The framework to calculate delay comes from Coulter [17]. The evidence in this case leads me to conclude the following: i) the total delay from filing of the certificate on April 14, 2022, to the anticipated end of the trial on April 23, 2024, is 741 days, or 24 months and 10 days, ii) the period between the reopening on June 15, 2022, and the early resolution meeting on October 24, 2023, is defense delay (a total of 497 days, or 16 months and 10 days), iii) the net delay is therefore, 244 days or approximately 8 months, and thus, iv) the net delay falls below the 18-month presumptive ceiling.

37It is appropriate in this case to “re-start” the clock after the early resolution meeting on October 24, 2023, because until that point the applicant had not made clear her intention to have a trial [18]. Having failed to respond to the initial offence notice, and having provided unclear information about her intentions on the reopening application, the applicant’s decision to have a trial was first made clear on October 24, 2023. Following that date, it appears the prosecution and the courthouse took all reasonable steps to ensure a trial date was set in a timely manner.

38The applicant provides no evidence to the contrary. The materials in support of her application, as mentioned, do nothing to clarify what took place after she received the offence notice, nor between the date of reopening and the early resolution date. Ultimately, the applicant has not met her evidentiary burden on a balance of probabilities.

39It is not necessary to address delay from the COVID-19 pandemic or the ensuing backlog.

40The application is dismissed.

T.J. HOWARD J.P.

Appendix A: Excerpt from Ontario Regulation 355/22 under the HTA

Imposing an Administrative Penalty

Persons authorized to impose administrative penalty

4. A person is prescribed as an authorized person for the purposes of subsection 21.1 (2) of the Act if they meet the following criteria:

5. The person is employed by a municipality.

6. The person has been designated as a provincial offences officer by the Minister of Transportation under subsection 1 (3) of the Provincial Offences Act for the purposes of all or any class of offences set out in one or more of the following Parts of the Highway Traffic Act: i. Part XIV.1. ii. Part XIV.2. iii. Part XIV.3. iv. Part XIV.4.

7. The designation mentioned in paragraph 2 authorizes the person to issue a certificate of offence under subsection 3 (2) of the Provincial Offences Act for a contravention of a provision prescribed under section 2 of this Regulation.

Persons on whom penalty may be imposed

5. (1) Persons who own a motor vehicle are prescribed as the class of persons for the purposes of subsection 21.1 (3) of the Act. (2) For greater certainty, if a penalty order is imposed in respect of a motor vehicle involved in a contravention of a provision mentioned in section 2, the penalty order shall be imposed on the owner of the motor vehicle whether or not the owner was the driver of the vehicle.

Amount

6. (1) The amount of the administrative penalty shall be the sum of the following amounts:

7. In respect of a contravention of subsection 128 (1) of the Act, the amount determined in accordance with the following formula,

   A × B

   in which,

   “A” is the number of kilometres per hour by which the person driving the motor vehicle exceeds the speed limit set out in subsection 128 (1) of the Act, and

   “B” is the penalty rate set out in Column 2 of Table 1 that is opposite the value of “A” described in Column 1 of Table 1.

8. In respect of a contravention of subsection 144 (18) of the Act, i. $260, if the contravention did not occur in a community safety zone, or ii. $400, if the contravention occurred in a community safety zone.

9. In respect of a contravention of subsection 166 (1) of the Act, i. $85, if the contravention did not occur in a community safety zone, or ii. $150, if the contravention occurred in a community safety zone.

10. In respect of a contravention of subsection 175 (11.1) or (12.1) of the Act, $400.

11. $8.25, to reflect costs incurred by the authorized person to access the name and most recent address of the person who is subject to the penalty order.

12. The amount determined under subsections (2) to (5) as applicable, to be credited to the victims’ justice fund account in accordance with section 19. (2) For a contravention of subsection 128 (1) of the Act, the amount mentioned in paragraph 6 of subsection (1) is, (a) if the amount determined under paragraph 1 of subsection (1) is $1000 or less, the amount set out in Column 2 of Table 2 that is opposite the amount determined under paragraph 1 of subsection (1) described in Column 1 of Table 2; or (b) if the amount determined under paragraph 1 of subsection (1) is greater than $1000, the amount that is 25 per cent of that amount. (3) For a contravention of subsection 144 (18) of the Act, the amount mentioned in paragraph 6 of subsection (1) is, (a) $60, if the contravention did not occur in a community safety zone; or (b) $85, if the contravention occurred in a community safety zone. (4) For a contravention of subsection 166 (1) of the Act, the amount mentioned in paragraph 6 of subsection (1) is, (a) $20, if the contravention did not occur in a community safety zone; or (b) $25, if the contravention occurred in a community safety zone. (5) For a contravention of subsection 175 (11.1) or (12.1) of the Act, the amount mentioned in paragraph 6 of subsection (1) is $85.

Penalty order

7. (1) A penalty order shall include the following information:

8. A unique file number.

9. The provision contravened.

10. The date and location of the contravention.

11. An identification of the motor vehicle that is involved in the contravention.

12. The amount of the administrative penalty determined under section 6.

13. A statement that the owner of the motor vehicle must, no later than 30 days after the day the order is served on them, pay the administrative penalty unless they commence an appeal in accordance with this Regulation.

14. A statement that the owner of the motor vehicle may, no later than 30 days after the day the order is served on them, commence an appeal in accordance with this Regulation.

15. Information regarding the appeal process including the manner in which to commence an appeal. (2) For the purposes of paragraph 4 of subsection (1), a copy of a photograph or image of the motor vehicle involved in the contravention may be included in the penalty order. (3) The penalty order may include statements by the authorized person that are certified to be true in respect of the contravention or in respect of the service of the penalty order. (4) The penalty order shall be in the form specified by the municipality that employs the authorized person.

Time limit on imposition of administrative penalty

8. The time period prescribed for the purpose of subsection 21.1 (5) of the Act is the period that ends 23 days after the day on which the contravention occurred.

Service

9. (1) A penalty order may be served on the person who is subject to the order by sending the order by mail or by courier to the most recent address that appears on the Ministry’s records in respect of the holder of the plate portion of the permit for the motor vehicle involved in the contravention. (2) If the authorized person who imposed the penalty order believes that the person who is subject to the order resides outside Ontario or, in the case of a corporation, has its principal place of business outside Ontario, the penalty order may be served on the person by sending the order by mail or by courier to the address outside Ontario at which the authorized person believes the person resides or has its principal place of business. (3) The address mentioned in subsection (2) may be determined from a document obtained from the government of any province or territory of Canada or from the government of a state of the United States of America, or from a person or entity authorized by any such government to keep records of vehicle permits, number plates or other evidence of vehicle ownership in that jurisdiction. (4) Service of a penalty order mailed or couriered in accordance with this section is deemed to be effected on the seventh day following the day on which it was mailed or couriered.

Appeals

Decision-maker

10. (1) In this section,

“municipality” means the municipality in which the contravention that is the subject of a penalty order occurred.

(2) The following persons are prescribed for the purposes of subsection 21.1 (7) of the Act in respect of the stages of an appeal described in paragraphs 1 to 3 of subsection 11 (1) of this Regulation:

1. A screening officer employed by the municipality to review administrative penalties described in section 2 of Ontario Regulation 611/06 (Administrative Penalties) made under the City of Toronto Act, 2006.
2. A screening officer employed by the municipality to review administrative penalties described in section 2 of Ontario Regulation 333/07 (Administrative Penalties) made under the Municipal Act, 2001.
3. A screening officer employed by the municipality to review penalty orders.

(3) The following persons are prescribed for the purposes of subsection 21.1 (7) of the Act in respect of the stages of an appeal described in paragraphs 4 to 7 of subsection 11 (1) of this Regulation:

1. A hearing officer appointed by the municipality to review administrative penalties described in section 2 of Ontario Regulation 611/06 (Administrative Penalties) made under the City of Toronto Act, 2006.
2. A hearing officer appointed by the municipality to review administrative penalties described in section 2 of Ontario Regulation 333/07 (Administrative Penalties) made under the Municipal Act, 2001.
3. A hearing officer appointed by the municipality to review penalty orders.

Process — screening and review

11. (1) An appeal of a penalty order under subsection 21.1 (7) of the Act shall be commenced within 30 days after the date on which service of the order is deemed to have been effected under subsection 9 (4) and shall be conducted as follows:

12. A person who is subject to a penalty order may commence the first stage of an appeal by requesting, in the manner set out in the order, a review of the penalty order by a screening officer.

13. The screening officer may confirm, vary or set aside the penalty order and shall do so as soon as practical after the review is complete.

14. The screening officer shall send a copy of the decision to the appellant by mail, courier or electronic means as soon as practical after the decision is made.

15. An appellant may commence the second stage of an appeal by requesting a review of the screening officer’s decision by a hearing officer.

16. A request under paragraph 4 shall be made within 30 days after the date of the decision of the screening officer.

17. The hearing officer may confirm, vary or set aside the decision of the screening officer and shall do so as soon as practical after the review is complete.

18. The hearing officer shall send a copy of the decision to the appellant by mail, courier or electronic means as soon as practical after the decision is made.

(2) If a screening officer considers it fair and appropriate in the circumstances, the officer may extend the 30-day period to commence an appeal and the extension may be made even after the 30-day period has expired. (3) If a hearing officer considers it fair and appropriate in the circumstances, the officer may extend the 30-day period mentioned in paragraph 5 of subsection (1) to request a review and the extension may be made even after the 30-day period has expired.

Conduct of an appeal

12. (1) A screening officer or hearing officer shall determine whether the stage of the appeal for which they are responsible is to be conducted orally, electronically or in writing and shall ensure that the appellant is informed of the determination. (2) If a date and time is set for an appellant to make submissions in respect of any stage of an appeal, the appellant shall attend at the set date and time. (3) A screening officer or hearing officer, as the case may be, shall not decide whether to confirm, vary or set aside a penalty order unless the appellant has been given an opportunity to make submissions in the same manner in which the appeal is to be conducted. (4) A hearing officer shall not decide whether to confirm, vary or set aside a penalty order unless a representative of the municipality in which the contravention that is the subject of a penalty order occurred has been given an opportunity to make submissions in the same manner in which the appeal is to be conducted. (5) No witnesses shall be called in an appeal.

Determination of an appeal

13. (1) In deciding whether to confirm, vary or set aside a penalty order, a screening officer shall determine whether it was reasonable for the authorized person to impose the penalty order. (2) In deciding whether to confirm, vary or set aside a penalty order, a hearing officer shall determine whether the decision of the screening officer was reasonable. (3) In making a determination mentioned in subsection (1) or (2), the screening officer or hearing officer, as the case may be, may consider the following information, if available:

14. Photographs or images taken by the camera system or enforcement system, as applicable.

15. Statements, including certified statements, made by the authorized person who imposed the penalty order.

16. Documents, including certified documents, setting out the name and address of the person who is subject to the order, a description of the permit and the number plate of the motor vehicle.

17. Statements by the appellant made either in writing or in the manner in which the appeal is conducted.

18. Statements by or on behalf of the municipality in which the contravention that is the subject of the penalty order occurred, made either in writing or in the manner in which the appeal is conducted.

19. Any other information, materials or submissions that the screening officer or hearing officer considers to be credible or trustworthy in the circumstances.

Decisions

14. (1) A screening officer or hearing officer, as the case may be, does not have jurisdiction to consider questions relating to the validity of a statute, regulation or by-law or the constitutional applicability or operability of any statute, regulation or by-law. (2) If a screening officer or hearing officer, as the case may be, decides to vary the amount of an administrative penalty determined under section 6, they shall vary the amount in accordance with the following rules:

15. If the total amount of a penalty is decreased, the amount to be credited to the victims’ justice fund account under section 19 is the amount mentioned in paragraph 6 of subsection 6 (1) that has been reduced proportionally to the decrease in the total penalty amount.

16. For greater certainty, if the total amount of a penalty is decreased to zero, the amount mentioned in paragraph 6 of subsection 6 (1) is zero.

17. If the appellant failed to attend any stage of an appeal in accordance with subsection 12 (2), the amount of the penalty shall be increased by $60.

18. For greater certainty, an increase made under paragraph 3 does not affect the amount mentioned in paragraph 6 of subsection 6 (1).

19. The amount of the penalty shall not be increased other than in accordance with paragraph 3.

(3) The decision of a hearing officer is final.