Court File and Parties

Court File No.: 140878 Ontario Court of Justice

Between: Her Majesty the Queen — and — Andrea Pereira

Before: Justice P.T. Bishop

Trial Heard: August 22, 2013 Reasons for Judgment Released: April 14, 2014

Counsel:

• Al Farrer for the Prosecution
• R. Noel for the Defendant

Reasons for Judgment

Bishop J.:

Introduction

[1] This matter comes before me by way of an appeal by the Crown wherein Justice of the Peace T. Logan acquitted Ms. Pereira on August 22, 2013 on a charge of Park in Excess Time on Meter contrary to Section 5.4 of the City of Kenora Traffic Bylaw 127-2001, Park in Excess Time on Meter.

Trial Judge's Decision

[2] In his reasons for judgement, Justice of the Peace T. Logan stated as follows:

"It's conceded that Ms. Pereira was a certified holder of the permit for the vehicle in question that was parked at 11:05 a.m. on April 10th in front of this court house at 216 Water Street. Now I accept that the defence of due diligence is open to her. One arm of it outlines-speaks to-did she have reasonable belief in the set of facts or circumstances that if found to be true would leave her blameless or, and this is the one that applies, did she take all steps reasonable in the circumstances to avoid the offence. She testified to the effect that she has had numerous times, to lug heavy equipment. In her words "it is extremely difficult, especially in the winter" and she does park at a different location. She has given money to people to – as has been termed – "plug the meter." She hopes for a break so she can go put more money in the meter. She is not in control of the timing of breaks. Then she raised the issue of her fear for her safety if she encounters people that have seen her face in court and she, in that, she has a special circumstance because of her position here. Her face would be known to people who are in the court house and she fears encountering them on an extended walk outside."

So in sum, the court finds that on a balance she has shown that she took all reasonable steps in the circumstances to avoid the offence. That defense is open to her and accordingly the case is dismissed.

Appellate Court's Analysis

Error in Law

[3] With the greatest respect, I find that the learned Justice of the Peace committed an error in law in determining that this is a strict liability offence when in reality the offence is one of absolute liability.

The Bylaw Provision

[4] In reviewing the By-law, paragraph 5.4 states that "no person shall park a vehicle or allow a vehicle to remain parked in a parking meter zone when the meter for the parking space shows the time for parking has expired"

a) Parking meters will be equipped with a clock mechanism that will show the amount of time purchased in conjunction with the amount of coin deposited. The clock mechanism in the parking meter will not show more time than the time limit shown on the meter;

b) A driver when parking at a metered stall will deposit coins in the parking meter that controls the parking stall that is occupied. Payment for time shall be set out as Schedule "G" of this By-law;

c) The meter showing violation "will be deemed to be in contravention of this By-law."

Absolute Liability Principle

[5] The wording of the By-law is clear. To quote Justice Arbour in R v. Nickel City Transport (Sudbury) Limited, 82 C.C.C. (3d) 541 (Ont.C.A.) at p. 568:

"I attach little significance to the fact that legislation allows for exceptions to be enacted by regulation. Absolute liability means liability without proof of fault. It does not mean that prescribed conduct can suffer no legislated exception. It means that those not excepted have no excuse for failing to comply."

Application to the Facts

[6] In this case, it was conceded there was nothing wrong with the meter and obviously her time just ran out. She also knew that there was a two hour time limit on that meter and that she had no exemption from her not putting money in the meter.

[7] Ms. Pereira justifies her actions by stating that she couldn't get a break from her job as a clerk/monitor to put money in the meter and she did not arrange for anyone else to do that on that particular day. The fact that she may feel uncomfortable facing members of the public coming before the court is of no moment. That is a consequence of the job.

[8] It may be inconvenient for Ms. Pereira to park in someplace other than right in front of the court house but it is also no justification or excuse for not complying with the By-law. In these circumstances, she is in no different position that any lawyer, witness, police officer or anyone else who may come to the court. She gets no special status as an employee of the Ministry of the Attorney General.

[9] I have a great deal of empathy for Ms. Pereira but due diligence is not applicable and further there was no evidence that she met any people from the court on that day that caused her distress or that she was going to Northern court and even if those facts were admitted, it is still not a defence to this offence. This court house was built in the last century when the mode of transportation was horse and carriage. It may be that the Attorney General will provide parking spaces at some other location and Ms. Pereira and other individuals may park there but that has not happened and she must comply with this By-law.

[10] I am specifically finding that the due diligence defence did not apply.

Decision

[11] For all of those reasons, I allow the appeal, enter a conviction and apply the set fine of $20.00 plus costs with thirty days' time to pay.

Released: April 14, 2014

Signed: Justice P.T. Bishop