R v Varkki, 2016 ABQB 443

Court of Queen ’ s Bench of Alberta Citation: R v Varkki, 2016 ABQB 443 Date: 20160810 Docket: 160503819S1 Registry: Edmonton Between: Her Majesty the Queen Crown/respondent - and - Philip Varkki Appellant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] On Sunday, January 31, 2016, the City of Edmonton issued a $250.00 parking ticket to Mr. Varkki for parking without a placard in a disabled zone adjacent to a church. Mr. Varkki did not pay the ticket and did not appear on April 13 th , the date set for his hearing on the ticket. On April 18 th , Mr.

Varkki did appear; he explained to the Traffic Commissioner that he had parked in the disabled spot because his young daughter was hampered by mobility restrictions as a result of an injury suffered in early January and this parking spot, which is only reserved for disabled parking on Sunday, allowed him to facilitate his daughter’s access to the church for participation in a service. Mr.

Varkki, who is self-represented, explained that he hadn’t appeared on April 13 th because, although he had, on two occasions in February 2016, requested a letter from the surgeon who had treated his daughter, he had not yet received the letter

from the physician on the date set for the hearing. Mr. Varkki appeals the denial of his application to set aside the conviction registeredin his absence thereby allowing him to have a trial. [2] The City of Edmonton responds that, in Dahmer, Alberta’s Court of Appeal established the only “reasonable excuses” fornot attending court to set a trial date and that Mr. Varkki’s excuse is not one of those. [3] Mr. Varkki’s appeal is allowed: Dahmer does not restrict the concept of “reasonable excuse” to the examples set out in thatdecision. Cases and authority cited [4] By the respondent, City of Edmonton: R. v Dahmer 20154 ABCA 294; R. v Transport Robert

(1973) Ltee (ON CA), 2003 O.J. No. 4306 (C.A.); R. v Richard [1996] 1 S.C.R. 525; R. v Choudry 2005 ABQB 973. [5] By the court: R. v Sehn 2005 ABCA 203; R. v Moser (ON CA), [1992] O.J. 602 (C.A.). 1. Background

a) Factual [6] It is not disputed that, on January 31, 2016, Mr. Varkki received a $250.00 parking ticket for having parked in a locationidentified as being for the use of person with disabilities without a valid disabled placard and while being used for the transportation of aperson with a disability. [7] Mr. Varkki asserts that the parking spot in question is angle parking and is used for public parking 6 days a week; theparking spaces in question are marked as disabled parking only on Sundays. That may be true, but it is irrelevant. Mr.

Varkki does notdeny that, on the day in question, he did not have a disabled placard. Nor does he deny that the parking ticket required him to be in courton April 13, 2016. [8] However, Mr. Varkki asserts that his daughter, who is approximately 11 years old, dislocated the patella of her right kneewhile playing at school on January 6, 2016. On Sunday, January 31, 2016, when he took his family – including his daughter - to church,which church is located on 96 Street in Edmonton, he parked as close to the church as possible to allow his daughter easier access to thechurch.

There was no other parking spot available close to the church. After he received the ticket, specifically on February 23, 2016,Mr. Varkki wrote to Alberta Health Services. After giving the dates of the accident, the dates on which his daughter had braces put onher right leg and received crutches to help in her mobility, Mr. Varkki continued: I got into trouble with the bylaw ticketing people who did not allow my parking there.

I have requested Dr. ----- for a letter from hisoffice stating that I have permission in park in Disabled/Handicapped parking during January till today so that I can defend myselfagainst the parking ticket; he asked me to get in touch with you at his office for the requested letter. [9] Mr. Varkki asserts that, despite repeated requests to the surgeon, because of the surgeon’s busy schedule, the orthopedic surgeon was only able to send Mr. Varkki a letter on April 17th.The letter from the surgeon, dated April 17, 2016 states: This letter confirms that [Mr.

Varkki’s daughter] suffered an injury to her right knee on January 6, 2016. She was placed in a brace andhas had limited mobility since her injury. [10] On April 18, 2016, Mr. Varkki brought the letter to court to ask for what he described as compassionate relief. [11] At the hearing on April 18, 2016, the presiding Traffic Commissioner denied Mr. Varkki’s application for relief. He said: And if I understand correctly, you then, rather than showing up in court, you went to see a doctor to get a letter from a doctor? Mr. Varkki responded: . . . And I requested a letter from the doctor.

She was injured in January, but the letter arrived late. So I wasn’t able to come and showthat. I have the letter with me now. The Commissioner concluded: It is definitely not going to be cancelled here today. If you feel that you have got enough evidence for a trial - - you know what, not eventhat. You should have come on the day it was set for court, sir. Then you could have set it down for a trial or made your representationsthen. So I am declining or denying your application and the conviction stands.

b) Legislative [12] The pertinent provisions of the Provincial Offences Procedure Act read: Appeals 18(1) . . . a defendant or a person affected by a judgment, order or sentence to which this Act applies may appeal a judgment, order orsentence of a justice to the Court of Queen’s Bench at the judicial centre closest to the place where the trial was held. . . . Plea of guilty with representations

35(1) If an offence notice is served on a defendant and the defendant does not wish to dispute the charge but wishes to make submissions as to the penalty, including the extension of time for payment, the defendant may attend at the time and the place specified in the notice for that purpose and may appear before a justice for the purpose of pleading guilty to the offence and making submissions as to the penalty.

(2) The justice may require submissions under subsection (1) to be made under oath, either orally or by affidavit.

(3) On accepting a guilty plea under subsection (1), the justice shall enter a conviction and impose a fine equal to the specified penalty or a lesser fine permitted by law and indicate the amount of any applicable surcharge. . . .

Conviction set aside 38 Where a defendant has an excuse for failing to dispute the charge or failing to appear in person or by agent at a trial, the defendant or the defendant’s agent may, if not more than 15 days have elapsed since the conviction first came to the attention of the defendant, appear before a justice and the justice on being satisfied by affidavit that the defendant has established on a balance of probabilities that the defendant’s excuse is reasonable shall set aside the conviction and (

a) give the person appearing a notice of trial in accordance with

section 33, or (

b) proceed in accordance with

section 35. 2. Standard of review [ 13 ] Dahmer is authority for the proposition that whether a person has a reasonable excuse for his failure to contest a parking ticket is a question of law. The applicable standard of review on appeal is, therefore, correctness. 3. The Traffic Commissioner erred in law when he failed to consider whether Mr.

Varkki’s explanation for having failed to attend was, on a balance of probabilities, reasonable [ 14 ] With respect, the City of Edmonton errs when it urges this court to find that the Alberta Court of Appeal’s decision in Dahmer limits the “reasonable excuses” to those set out in the decision. This would have the effect of creating an absolute liability offence if one of the described excuses was not available.

There is no suggestion in the decision of any intention to create that type of a situation. [ 15 ] On a purely technical analysis, it might be argued that Wakeling J.A.’s comments in that decision were merely obiter : the issue before him was not the issue which the Q.B. judge had to address, i.e. reasonableness of the excuse, but was, rather, the separate issue of whether there was a question of law which justified a further appeal. [ 16 ] Assuming that the comments concerning the reasonableness of an excuse were not mere obiter , then the examples which Wakeling J.A. summarized and grouped in his decision are exactly that: examples rather than a closed list.

Indeed, Wakeling J.A.’s reasons are of assistance to judicial officers who must decide whether excuses are “reasonable”; his reasons identify the types of conduct which have been considered in reported cases and the judicial analysis of reasonableness in those situations.

I have no doubt that Wakeling J.A.’s compendium is of great daily assistance to traffic commissioners who presumably must, on a daily basis, assess a great many excuses. [ 17 ] However, in relation to the specific case before him, Wakeling J.A. held: 33 The law on the benchmarks of what constitutes a reasonable excuse under s. 38 of the Provincial Offences Procedure Act is clear. A defendant whose explanation for his or her failure to appear and dispute the charges against him or her is simple forgetfulness does not have a reasonable excuse.

Justice Sisson's decision under appeal is consistent with the case law. [ 18 ] As Watson J., as he then was, stated in Choudhry , the concept of "reasonable excuse" is "not unfamiliar" in Canadian law. In Moser , Doherty J.A. discussed the objective and subjective components of the concept of reasonable excuse and concluded: 62 I have reached my conclusion independently of the case law.

Despite the plethora of cases dealing with the meaning of "reasonable excuse" in s. 254(5) and its English equivalent in s. 8(7) of the Road Traffic Act, 1972, c. 20 , no case presents a factual situation which is even close to this one. [ 19 ] The fact situation on this appeal is, of course, quite different from that in Dahmer ; Mr. Varkki did not forget to appear.

On the contrary, he provided an explanation which, from his perspective, established that, after having taken reasonable steps, in a timely way, to obtain evidence for a trial in a situation where producing the evidence was beyond his control, he waited until he knew that the evidence was available to set a trial date. [ 20 ] As the appeal court also held in Sehn : 11 Of course, any offender intent on challenging a conviction in absence must still meet the requirement under s. 38 to establish a reasonable excuse for failing to dispute the charge or failing to appear in court for trial on a timely basis. [ 21 ] The Traffic Commissioner in this case did not consider whether Mr.

Varkki’s excuse was reasonable; rather, the Commissioner appears to have concluded that, no matter what, the appellant should have come to court on April 13. The Traffic Commissioner did not consider whether Mr. Varkki had, from the date on which he received the ticket, and on an ongoing basis, the intention to request a trial. Indeed, the Commissioner appears to have misunderstood the facts by concluding that the appellant had gone to get a letter from a doctor on April 13 rather than coming to court on that day. Nor was this a “one line excuse” being dealt with by

“one line reasons” situation although I do not find it necessary to consider in this decision whether the reasons given by the Traffic Commissioner for not finding the excuse reasonable met the functional standard for reviewability set by the Supreme Court of Canada. [ 22 ] The City of Edmonton says that Mr. Varkki should have come to court on April 13; the traffic ticket told him that if he wanted to plead not guilty he could do so in person or by registered mail and, if he appeared in person, a trial date would be set. Mr.

Varkki is unrepresented; it is not unreasonable to suggest that he does not understand the procedures which were explained on the back of the ticket. Moreover, as Mr. Varkki establishes, it was not possible for Mr. Varkki to predict when the surgeon in question would provide him with the required evidence: a second request towards the end of February was answered in mid-April. Therefore, it might even be thought that Mr. Varkki was reasonably trying to avoid one unnecessary appearance. [ 23 ] In

summary, the court concludes that the Traffic Commissioner failed to appreciate what Mr. Varkki’s excuse was and failed to consider whether that excuse was reasonable; that was an error of law. Therefore, the court grants the appeal and strikes the conviction registered in Mr. Varkki’s absence on April 13 th . 4. The most this court can do is to allow the appeal, strike the conviction, and send the matter back to set a trial date [ 24 ] I agree with the City of Edmonton’s position that this court does not have the jurisdiction to cancel the conviction or to decrease the fine on compassionate grounds.

All this court can do, and does, is to allow the appeal, strike the conviction, and send the matter back to the traffic ticket administration to set a trial date. Heard on the 4 th day of August, 2016. Dated at the City of Edmonton, Alberta this 9 th day of August, 2016. J.B. Veit J.C.Q.B.A. Appearances: Philip Varkki, on his own behalf Rina . Urish, City of Edmonton Law Branch for the Respondent