CITY OF TORONTO Respondent v. WAYNE BRAGANZA, 2011 ONCJ 657

Citation : City of Toronto v. Braganza , 2011 ONCJ 657 ONTARIO COURT OF JUSTICE BETWEEN: CITY OF TORONTO Respondent and WAYNE BRAGANZA Appellant J U D G M E N T Justice B. Knazan December 2, 2011 In Person Wayne Braganza Counsel for the Respondent Amanda Ross Counsel for the Attorney General Intervenor Hart Schwartz Introduction These are two appeals under s.135 of the Provincial Offences Act (POA) against convictions registered against Mr. Braganza, the appellant, for failing to display a receipt on his windshield while parked in a place and at a time that required him to pay for parking.

The City of Toronto, under the authority of the POA has a system for enforcing parking by-laws that puts the onus on the person receiving a parking ticket to request a trial or risk being convicted.

Mr. Braganza received his two parking tickets in June 2009, did not request a trial for either and was found guilty of both. He appeals, alleging four reasons why he should not have been convicted, and while one of his grounds is a familiar one, three appear to have never been dealt with before. He submits that though his objections may seem technical, he is arguing that he has been found guilty under a process that is unfair. The Four Grounds of Appeal 1 . The tickets were not complete and regular on their face as required by s.18.2(2) (

a) of the POA as they did not contain the correct set fine for the offence and therefore the pre-requisite for entering a default conviction without any appearance or trial was not met. This is the familiar ground. 2 . The case proceeded from step to step without the City complying with the prerequisites in the POA for registering convictions when there is no response to the ticket; in particular, the City did not allow the minimum time periods to elapse before registering the conviction. 3 .

The parking signs on the street and the charging documents were not in the French language, and did not comply with either the French Languages Services Act (FLSA) or the unwritten constitutional protection of minority rights and are invalid. 4 . Neither the charging document, nor any other communication from the city informed him of the specific offence within a reasonable time, thereby violating his right under s.11(

a) of the Canadian Charter of Rights and Freedoms . The first two grounds go to the merits of the appeal and the second two raise general issues of constitutional rights and statutory

interpretation. In response to the notice served under the Courts of Justice Act, the Attorney General of Ontario appeared as an intervenor in this case and participated fully as the respondent along with counsel for the City of Toronto. Counsel for the Attorney General submits that if the case can be determined on the non-constitutional grounds, I should not deal with grounds (3) and (4). I therefore begin with the grounds that can dispose of the case without the necessity of determining whether there was a violation of s.11(

a) of the Charter or any French language rights guaranteed by the Charter , or an unwritten constitutional protection, and only proceed to those points if necessary. As none of the arguments can be appreciated without the facts of what actually occurred in this case, I begin there. Overview of Facts The statutory scheme, though introduced to simplify enforcement of alleged parking violations for the benefit of both drivers and the province and the municipalities that enforce parking rules, is complicated.

It involves many sections of the POA and the Regulations under the Act as well as certain sections of the Highway Traffic Act . I will introduce some of these sections as I relate the facts in order to make clear under what authority the City purported to act and what Mr. Braganza complains of. I will make further reference to them in relation to the appellant’s argument on each ground as well. The Two Parking Violations There is a dispute even as to the legal effect of what happened to Mr. Braganza when the officer put a parking ticket onto the windshield of a car that was ultimately connected to him. Mr.

Braganza submits that he was charged with an offence when that happened and the City and the Province submit that he was not. In common language, he received a parking ticket. The actual document is “parking infraction notice” described in s. 15(1)(

b) of the

Provincial Offences Act: Notice issued 15.--

(1) A provincial offences officer who believes from his or her personal knowledge that one or more persons have committed aparking 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. Idem

(2) The provincial offences officer shall complete and sign the certificate and notice in the form prescribed under

section 20. Municipal by-laws

(3) If the alleged infraction is under a by-law of a municipality, it is not necessary to include a reference to the number of the by-law onthe certificate or notice. Service on owner

(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. Service on operator

(5) The issuing provincial offences officer may serve the parking infraction notice on the operator of a vehicle by delivering it to theoperator personally at the time of the alleged infraction. Certificate of service

(6) The issuing provincial offences officer shall certify on the certificate of parking infraction that he or she served the parking infractionnotice on the person charged and the date and method of service. Certificate as evidence

(7) If it appears that the provincial offences officer who issued a certificate of parking infraction has certified service of the parkinginfraction notice and signed the certificate, the certificate shall be received in evidence and is proof of service unless there is evidence tothe contrary. The First Ground: The tickets were not complete and regular on their face and default convictions should not have been entered If a ticket does not correctly set out the set fine for the offence, it is not complete and regular on its face. Therefore, under s.15 (1)(

b) nodefault fine can be issued and the conviction must be quashed on appeal: City of London v. Young 2008 ONCA 429 , 233 C.C.C.(3d) 10. Although City of London dealt with a default conviction under s. 9 of the Act and not under the parking offence provisions, it isagreed that the same principle applies. The set fine on Mr. Braganza’s tickets is $30.00 in each case. Counsel for the City of Toronto produced an order of then Regional Senior Justice Lauren E. Marshall dated June 2, 2003 setting out theset fine for “Park-Fail to Display Receipt in Windshield” as By-Law 910 4-C, as $30.00.

There is no dispute that this is the by-law underwhich Mr. Braganza was convicted, although his Charter argument is that he was not given notice of it. Justice Marshall’s order contains a column containing a different lesser amount for voluntary payments, an option which no longer existsand which did not exist in 2009 when the appellant received his tickets. The authority of the Chief Justice to set fines has been delegated to the Regional Senior Justice.

With the consent of the parties, the courtmade its own inquiries in order to determine if there had been any orders more recent than Justice Marshall’s and learned that there were

none. The discontinuance of the lower voluntary payment does not impact in any way on the set fine. It is $30.00 which is the set fine specified in both of the appellant’s parking tickets. Therefore the ticket is complete and regular on its face and the person entering the conviction did not err in entering a default conviction in the circumstance. This ground of appeal fails. The Second Ground: The City did not comply with statutory pre-requisites that must be met before a conviction can be registered.

In order to understand the appellant’s ground alleging that the mandatory time requirements were not complied with, I must review the governing legislation in some more detail. This will also assist with understanding the alleged violation of s.11(

a) of the Charter , if this ground on the actual merits fails, and show the complexity of the process that the legislature has established to give context to any discussion of the Charter . I will call the appellant’s two tickets infraction 1 (#AH138142) or ticket 1 and infraction 2 (#AG898717) or ticket 2. The offence date of infraction 1 is June 12, 2009 and infraction 2 is June 19, 2009 . Under the legislative scheme, a person receiving an infraction must respond to the notice. If the person does not intend to dispute the notice he may make a payment out of court under s.16 of the Provincial Offences Act : 16.

A defendant who does not wish to dispute the charge may deliver the notice and amount of the set fine to the place shown on the notice. If a defendant does wish to dispute the charge, he may give notice of intention to appear for the purpose of entering a plea under s.17, which reads: 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. 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. 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. 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. Rescheduling time of trial

(4.1) The clerk of the court may, for administrative reasons, reschedule the time of the trial by giving a revised notice to the defendant and the prosecutor within 21 days of giving the notice referred to subsection (4). Certificate not invalid without by-law number

(5) A certificate of parking infraction issued for an infraction under a by-law of a municipality is not insufficient or irregular by reason only that it does not identify the by-law that creates the offence if the notice of trial given to the defendant identifies the by-law.

If no response is received the Act provides that a designated person may give the defendant a pending notice of conviction. Specifically, s. 18 provides: 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.

(2) The notice shall be in the form prescribed under s. 20 (3) The notice shall, (

a) indicate the set fine for the infraction; and (

b) indicate that a conviction will be registered against the defendant unless the defendant pays the set fine or gives notice of an intention to appear in court for the purpose of entering a plea and having a trial of the matter. The appellant alleges that he was not given the 15 days to respond that he submits s.18(1)(

a) requires before a notice of impending conviction can be given. He further submits that because of this, the notices of pending conviction he received were invalid and so are the two convictions that followed. Before setting out the dates and the counting on which he relies and the respondent’s dates and counting, I set out for completeness, s.18.2 of the POA, which permits the entering of the conviction if there is no response to the pending notice of conviction. Particularly relevant is s.18.2(1) and 18.2(2)(

d) which require that the person entering the conviction be satisfied that the defendant was given a notice of impending conviction at least fifteen days before the certificate requesting a conviction is filed. 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. Request for conviction

(1.1) If subsection (1) applies, the person designated by the regulations may prepare and sign a certificate requesting a conviction in the form prescribed under

section 20. S.O. 1993, c. 31, s. 1 (15), in force August 15, 1994. Idem

(2) The certificate requesting a conviction shall state, (

a) that the certificate of parking infraction is complete and regular on its face; (

b) if the defendant is liable as owner, that the person is satisfied that the defendant is the owner; (

c) that there is valid legal authority for charging the defendant with the parking infraction; (

d) that the defendant was given a notice of impending conviction at least fifteen days before the certificate requesting a conviction is filed; (

e) that the alleged infraction occurred less than seventy-five days before the certificate requesting a conviction is filed; and (

f) the prescribed information. S.O. 1992, c. 20, s. 1 (1), in force September 1, 1993 . Idem

(3) If the certificate of parking infraction was issued for an infraction under a by-law of a municipality, the certificate requesting a conviction shall also state, (

a) that payment of the set fine has not been made; and (

b) that the defendant has not given notice of intention to appear in court for the purpose of entering a plea and having a trial of the matter.

S.O. 1992, c. 20, s. 1 (1); S.O. 1993, c. 31, s. 1 (16), in force August 15, 1994. Idem

(4) A certificate requesting a conviction purporting to be signed by the person authorized to prepare it shall be received in evidence and is proof, in the absence of evidence to the contrary, of the facts contained in it. 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. S.O. 1992, c. 20, s. 1 (1), in force September 1, 1993 . Recording of conviction

(6) Upon receiving a certificate requesting a conviction, the clerk of the court shall record a conviction and the defendant is then liable to pay the set fine for the offence. In order to relate the events that followed the appellant receiving his ticket to the statute and the evidence, it will assist to give a time line. Ticket 1 Date Event June 12, 2009 Infraction notice (ticket) place on car June 29, 2009 City produces notice of impending conviction July 15, 2009 Mr.

Braganza receives notice of impending conviction July 21, 2009 Due date marked on notice of pending conviction August 13, 2009 Certificate requesting conviction filed August 21, 2009 Conviction registered Ticket 2 Date Event June 19, 2009 Infraction notice (ticket) place on car July 7, 2009 City produces notice of impending conviction July 20, 2009 Mr. Braganza receives notice of impending conviction July 29, 2009 Due date marked on notice of pending conviction August 20, 2009 Certificate requesting conviction filed August 25, 2009 Conviction registered For infraction number 1, the offence date was June 12, 2009.

The appellant correctly submits that since under s.4(4) of the Rules of the Ontario Court of Justice, neither the first or last day is counted when the term “at least” is used in legislation. So, neither the day the offence notice was issued, June 12, 2009 , nor the last day of fifteen days counted from June 13 are to be considered in determining whether at least 15 days elapsed before a notice of impending conviction could be given under s. 18(1)(

a) set out above. At the time that the appellant set out his grounds of appeal, and wrote his factum, he did not have the date that his notice of impending conviction was given. On his application for disclosure, I ordered that all documents that were before the person entering the conviction be produced to this court so that I could consider the appellant’s argument. (Unreported reasons for judgment, City of Toronto v. Braganza , July 29, 2011) In response to my order, the City of Toronto produced the documents relating to the processing of the appellant’s conviction.

The City further filed these documents as exhibits to the affidavit of Anthony Fabrizi, Manager of Utility Billing and Parking Operations in the Revenue Services Division of the City of Toronto. The appellant did not request cross-examination of Mr. Fabrizi on his affidavit. With reference to Infraction 1, the computer printout respecting the parking tag number on the offence notice (the ticket) shows that the notice of impending conviction under s. 18 was produced on June 29, 2009 . This is more than 15 days within the meaning of the section, even on the appellant’s count.

So there is complete compliance with the first 15 day period in s. 18(1)(a).

The notice of impending conviction with respect to Offence 1 contains a due date of July 21, 2009. This is obviously a reference to s. 18.2(1) of the Act which deems the person not to be disputing the charge if fifteen days have elapsed since the defendant was given notice of impending conviction. In his affidavit, Mr. Fabrizi explains that the date is calculated from the date that the notice of impending conviction is produced by adding seven days for mailing to the date of mailing, and then adding a further fifteen days. In calculating this further fifteen days, the last day is included. As the wording of s.18.2(1) (

d) contains no reference to “at least”, but rather says, “if fifteen days have elapsed”, Mr. Fabrizi’s position is justified in law. However, the actual date of mailing for offence 1 was July 2, 2009 and therefore it was deemed to be delivered on the seventh day following, July 9, 2009, under s. 5 of the Rules of the Court. However, s. 5 of the rules only deems a document to have been delivered within 7 days of mailing unless the contrary is shown. On consent, the appellant filed an affidavit, which was prepared previous to the appeal hearing and sworn afterward.

Counsel for both the City and the Attorney General intervening, agreed that the affidavit could form part of the record. In it, he swears that he received the Notice of Impending Conviction on July 15, 2009 and not July 9, 2009 when it was deemed to be delivered under the rules. In the circumstances, I take this to be the contrary being shown and determine that the notice was given on July 15, 2009 , for the purpose of s. 18.2(1) and s.18.2(2)(

d) of the Act. It remains to be seen if this actual state of facts, as opposed to the deemed state of facts, has any effect on the legality of the conviction. It turns out that it does not. In his affidavit Mr. Fabrizi affirms that the certificate requesting conviction for infraction number 1 was signed August 12, 2009 and filed on August 13, and produces the certificate. So even accepting that the notice of impending conviction was actually given to Mr. Braganza on July 15 th when he says he received it, the statement in the certificate complying with s.18.2(2)(

d) is correct, namely the defendant was given a notice of impending conviction at least fifteen days before the filing of the certificate requesting conviction. It is also correct, as the certificate states, that the alleged infraction occurred less than 75 days before the certificate requesting conviction is filed: sections 18.2(5) and 18.2(2)(e). June 12 to August 13 is 62 days.

Therefore there was no failure to comply with the time requirements even though the appellant perceived that he did not have enough time between receiving the notice of pending conviction and the due date, and could not know that the Act had been complied with until he received the certificate requesting conviction as disclosure on his appeal. I do not propose to set out the dates and counting for offence 2. Although they are different from offence 1, I have performed the exercise and Mr.

Fabrizi’s affidavit demonstrates that all time requirements were complied with even though the appellant did not receive his notice for infraction 2 until July 20, 2009 . This ground of appeal fails. Neither the parking signs nor the charging documents were in French The appellant contends that as neither the street signs specifying that pay parking is enforced and instructing drivers to place purchased ticket on dash, nor the parking infraction notices (the tickets) are in French, they do not comply with The French Language Services Act (FLSA) and The Provincial Offences Act, and are void. On a basic statutory

interpretation level, the appellant is not correct. Under s.1 of the FLSA, “service” means any service or procedure that is provided to the public by a government agency or institution of the Legislature and includes all communications for the purpose. Under Regulation 615 of the Highway Traffic Act , a lengthy regulation with 52 sections, there is repeated reference to the FLSA and the designated areas to which that Act refers in

section 1. Some parking signs are included in the regulation and if such a sign is erected in an area designated under the FLSA, it must be in French and English as for example s. 25 which specifies that a sign prohibiting parking 9AM - 4PM Monday to Friday, must read LUN-VEN as well as MON-FRI.

The specific municipal signs on the street where the appellant parked are not set out in the regulation, but the appellant argues that the municipality as a creature of the legislature is also bound by the FLSA and that its services and communications must be provided in French pursuant to s. 5 of the FLSA which reads: A person has the right in accordance with this Act to communicate in French with, and to receive available services in French from, any head or central office of a government agency or institution of the Legislature, and has the same right in respect of any other office of such agency or institution that is located in or serves an area designated in the Schedule.

As he states in his factum: The City of Toronto is applying provincial statutes within its delegated authority. Accused persons are entitled to expect the same language rights guarantees as if it were the Attorney General of Ontario administering the Provincial Offences Act. But the FLSA , which is after all

an Act of the Legislature, specifically addresses the issue of the provision of French language services in municipalities in s. 14 which provides;

14(1) The council of a municipality that is in an area designated in the

Schedule may pass a by-law providing that the administration of the municipality shall be conducted in both English and French and that all or specified municipal services to the public shall be made available in both languages.

(2) When a by-law referred to in subsection (1) is in effect, a person has the right to communicate in English or French with any office of the municipality, and to receive available services to which the by-law applies, in either language. The City of Toronto is an area designated in the Schedule. However, s.52 of Regulation 615 of the Highway Traffic Act provides as follows: A municipality situated in an area designated by the French Language Services Act is not required to comply with the sign requirements for such areas unless it has passed a by-law under

section 14 of that Act. At least with respect to the appellant’s argument that the signs should be in French in Toronto, the statutory scheme leads to the result that they need not be. This is exactly what Justice Laskin concluded in written reasons dismissing a motion for leave to appeal a decision of this Court in R .v. Petruzzo , 11 M.V.R. (6 th ) 201 where he held: The City of Toronto is designated in the

Schedule to the Act as a bilingual area, and under s.14 may pass a by-law providing that the administration of a municipality shall be conducted in both official languages and that all or specified services shall be available in English and French. However, the City of Toronto has not passed such a by-law. Because it has not done so, s.52 of Regulation 615 applies and forecloses the need for bilingual traffic signs. This is conclusive of the issue as far as the parking signs go.

Although there is no case like Petruzzo dealing with the appellant’s argument that the certificates of parking infraction (the tickets) must be in French, the statutory provisions are parallel to those dealt with in Petruzzo . Regulation 949 of the Provincial Offences Act Regulations , which governs forms for parking infractions under the POA, provides that: 8. Forms referred to in this regulation may be in English or French or both English and French. The appellant submits that this

section of the Regulation 949 is ultra vires the legislature and void and of no force or effect because it conflicts with s. 8(

c) of the FLSA . That

section reads: The Lieutenant Governor in Council may make regulations, (

c) exempting services from the application of sections 2 and 5 where, in the opinion of the Lieutenant Governor in Council, it is reasonable and necessary to do so and where the exemption does not derogate from the general purpose and intent of this Act . There can be no conflict between a regulation in the POA that permits forms to be in English or French and a

section in the FLSA that permits exemptions. The appellant is submitting that as the FLSA applies to municipalities as acting on behalf of the Province when prosecuting parking violations under the POA, the only exemptions to the requirement in the FLSA that services be in French is that found in s.8(c). Therefore, presumably, according to the appellant, if there has been no exemption passed, the forms must be in French and s. 8 of Regulation 949 of the POA is not valid. The appellant submits that the municipality is acting on behalf of the Province for the purposes of

Part II and I accept this proposition for the purpose of argument,

section 175 of the POA specifically provides for agreements between the Municipalities and the Province for enforcement of among other things,

Part II of the Act, and such a memorandum of understanding has been signed. That the legislature contemplated that the municipalities would enforce parking infractions is implicit in s. 15(3) of the Act, entitled municipal by-laws, and which reads: If the alleged infraction is under a by-law of a municipality, it is not necessary to include a reference to the number of the by-law on the certificate of notice. But, if the municipalities are acting on behalf of the Province, then they are subject to provincial legislation. This is obvious as the POA

gives them the responsibility for parking; this is the very basis of the appellant’s argument. But the POA is provincial legislation that applies to the municipalities as much as the FLSA , and s.8 of Regulation 949 is a valid regulation made under the regulation making powers of the POA. It actually promotes the French language by permitting a municipality to use French only forms. And, although it is only a regulation, it neither violates nor conflicts with the guarantee in s. 5 of the FLSA that the Province provides services in French. A fundamental principle of statutory

interpretation is that the statutory scheme is to be read as a whole. The regulation under the POA which allows English only forms, must be read as if the Governor in Council knew of the existence of s. 5 of the FLSA . It is presumed the legislature did not intend to make or empower the making of contradictory enactments: Sullivan on the Construction of Statutes 5 th Edition, Lexis Nexis 2008, page 325. Although not as explicit as Regulation 615 that Justice Laskin dealt with in Petruzzo, s.8 of Regulation 949, is still clear authority to the municipalities to issue English only forms for parking Infractions. The appellant, in the statutory

interpretation part of his attack on his English parking tickets urges the same predominance for the FLSA that he submits the POA regulation should not have. All of the legislation must be read as a whole and absent a constitutional right to all services in French in Ontario, or a quasi-constitutional status for the FLSA,

section 8 of Regulation 949 of the POA is valid. The appellant also relies on an unwritten constitutional right to French language services in Ontario and to that I now turn. An unwritten constitutional right to service in French The appellant, before the hearing of the appeal, gave notice that he wished to challenge the constitutionality of the English only parking signs and the English only tickets that he received.

He argues that there is a constitutional right to the use of the French Language in Ontario that binds the legislature and prevents it from transferring the decision as to whether or not to provide services in French to the municipalities, as I have just reviewed above. The appellant structures his argument as follows and this is in reference to both the parking signs and the parking tickets. The FLSA is not an ordinary statute but reflects both the Constitution of the country and the social and political compromise out of which language rights arose.

Since it reflects the recognition of the two official languages in Canada, it must be interpreted as the Charter is interpreted and therefore becomes a quasi-constitutional document in the light of which the Highway Traffic Act and the Provincial Offences Act and the regulations under those Acts must be interpreted. I agree with the Attorney General, that in this part of his appeal, the appellant is using the Charter , which specifically does not establish Ontario as a bilingual province, to argue that it should be. Sections 16 to 20 of the Charter read as follows: 16.

(1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. Official languages of New Brunswick

(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick. Advancement of status and use

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French. 16.1

(1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities. Role of the legislature and government of New Brunswick

(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed. 17.

(1) Everyone has the right to use English or French in any debates and other proceedings of Parliament. Proceedings of New Brunswick legislature

(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick. 18.

(1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative. New Brunswick statutes and records

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative 19.

(1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.

Proceedings in New Brunswick courts

(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick. 20.

(1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head orcentral office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to anyother office of any such institution where (

a) there is a significant demand for communications with and services from that office in such language; or (

b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both Englishand French. Communications by public with New Brunswick institutions

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office ofan institution of the legislature or government of New Brunswick in English or French. These provisions demonstrate that while New Brunswick has the same bilingual status as Canada, the other provinces and territories donot. In Lalonde v.

Ontario (Commission de restructuration des services de santé), (ON CA), 56 O.R. (3d) 505, a case onwhich both the appellant and the Attorney General rely, the Court of Appeal recognized and confirmed that the Charter gives bilingualstatus to Canada and New Brunswick. It follows that it explicitly does not create that status in Ontario, as the appellant recognizes:paragraph 87. The Court also discusses s. 16(3) of the Charter and holds that it contemplates the advancement of equality of status of English andFrench by all provincial legislatures and that it applies to Ontario, paragraph 89.

However, importantly, the Court explains what s.16(3) does and does not do. At paragraph 92, Justices Weiler and Sharpe write: We are not persuaded that s. 16(3) includes a "ratchet" principle that clothes measures taken to advance linguistic equality withconstitutional protection. Section 16(3) builds on the principle established in Jones v. New Brunswick (Attorney General) (1974), (SCC), [1975] 2 S.C.R. 182, 45 D.L.R. (3d) 583 that the Constitution's language guarantees are a "floor" and not a "ceiling"and reflects an aspirational element of advancement toward substantive equality.

The aspirational element of s. 16(3) is not withoutsignificance when it comes to interpreting legislation. However, it seems to us undeniable that the effect of this provision is to protect,not constitutionalize, measures to advance linguistic equality. The operative legal effect of s. 16(3) is determined and limited by itsopening words: "Nothing in this Charter limits the authority of Parliament or a legislature." Section 16(3) is not a rights-conferringprovision. There is, as the appellant contends, an unwritten constitutional principle of respect for and protection of minorities: Lalonde, paragraph160.

But contrary to the appellant’s submission, the unwritten constitutional principle of respect and protection for minorities does not create aright to services in French in Ontario beyond that which prevails over the clear constitutional language that Ontario is not bilingual andthat the advancement of linguistic equality is protected but not constitutionalized, as the Court of Appeal has held.

There is no issue that the appellant who made thoughtful written and oral argument, and obviously does not personally require thatparking signs or his parking tickets be in French, has standing to challenge the legislative scheme. But what is missing from the appellant’s challenge is any evidentiary basis for concluding that parking signs in French in Toronto orparking tickets in French in Toronto are services that the Province is required to provide in French in order to comply with the purposeand the provisions of the FLSA.

In Lalonde, paragraph 148, the Court of Appeal explained its own decision to uphold the Divisional Court’s quashing of the decision ofthe Health Services Restructuring Commission to substantially reduce health services provided by Montfort Hospital, a hospital thatprovided care in the French language in the Ottawa area. There the court stated in relation to the FLSA:

Section 2 requires the Government of Ontario to ensure that services are provided in French in accordance with the Act. The FLSA doesnot impose a requirement of institutional bilingualism across the province. Instead, it provides a measured policy that varies with thecircumstances. Thus our decision is a contextual one.

This is not a ruling about every hypothetical situation that might arise concerningminority French language rights in the province. emphasis added When relying on Lalonde to argue the quasi-constitutional status of the FLSA as the appellant does, it is important to recall what was atstake and what evidence was before the Court.

The case involved not only the provision of health care services to the predominantlyFrench speaking community in their first language but also the issue of whether there would be a French language teaching hospital thatcould assure the continuous training of health care professionals who would be able to provide French language health care in the future.

This whole attack on the City of Toronto’s unilingual parking signs and parking tickets is based on a general right to be provided servicesin both English and French in Ontario that Parliament explicitly did not create in the Charter, and which the legislature has so far seen fitto allow municipalities to not require, while the Legislature pursues the desirability of guaranteeing the use of the French languagecontemplated in the

preamble to the FLSA. There is no evidentiary basis for concluding that parking “involves a situation with profound implications for Ontario’s francophonecommunity that engages the principle of respect for and protection of communities”, Lalonde, supra so as to engage any unwrittenconstitutional right. The appellant did not have the benefit of either counsel or the aid or intervention of organizations representing Ontario’s francophonecommunity.

If it were to be shown that the legislature’s authorizing municipalities to not provide parking signs or parking tickets inFrench really struck at the heart of the acknowledged importance of the right to live in French in Ontario, then that might be a differentcase. However, the appellant has not persuaded me that either the parking signs or the parking tickets are in any way not authorized bystatute or unconstitutional. This ground of appeal fails.

Ground Four - Neither the charging document, nor any other communication from the City informed him of the specific offence within areasonable time, thereby violating his right under s.11(

a) of the Canadian Charter of Rights and Freedoms. That brings me to the appellant’s main attack on the tickets that he received, and that is that they violate his right under s.11 (

a) of theCharter. The facts are simple. The tickets do not give the by-law number. They both state the same thing: PARK-FAIL TO DISPLAY RECEIPTIN WINDSHIELD

Section 11(

a) of the Charter reads: Any person charged with an offence has the right to be informed without unreasonable delay of the specific offence. Section 15(3) of the POA which I set out again, provides:

(3) If the alleged infraction is under a by-law of a municipality, it is not necessary to include a reference to the number of the by-law onthe certificate or notice. Section 17(5) of the POA provides:

(5) A certificate of parking infraction issued for an infraction under a by-law of a municipality is not insufficient or irregular by reasononly that it does not identify the by-law that creates the offence if the notice of trial given to the defendant indentifies the by-law. Therefore s.15(3) directly addresses the issue of whether the by-law number is necessary on the ticket; it is not. S.17(5) may appear to be irrelevant as there was no trial requested in this case which proceeded to conviction when the appellant did notrespond.

However it does become relevant to the appellant’s argument that he cannot meaningfully exercise his right to elect a trial orpay the ticket because he does not have sufficient information. The appellant submits that both sections 15(3) and 17(5) infringe his right under s.11(

a) and are therefore of no force and effect and thathis parking tickets are invalid. s. 11(

a) of the Charter, applying as it does to anyone charged with an offence applies to someone charged with a parking offence. The

section like any

section of the Charter must be interpreted in a purposeful manner. The purpose of s. 11(

a) in the context of criminalcharges has been held to be to give the accused sufficient knowledge of what he is charged with in order to conduct his defence. In R. v.Cancor Corp., (ON CA), 58 C.C.C. (3d) 53 Justice McKinley held in relation to s.11(

a) that: It merely requires that once a charge is laid, the accused must be provided without unreasonable delay with the information necessary toenable him to proceed appropriately with his defence. Page 61 In order to apply s.11(

a) of the Charter to this case and in particular to the impugned provisions of the POA, I must first determine atwhich point the appellant was charged with the offences of Park-Fail to Display Receipt in Windshield. The Attorney General submits that the issuing of the parking infraction notice (the ticket) does not mean that the recipient is yet chargedwith a parking offence.

He submits that the parking infraction notice is only a notification that a potential charge is pending. Since the officer placing the ticketon the windshield is required at the same time to fill out a certificate of parking infraction certifying that the notice was served, thatcertificate is evidence of the infraction, and the notice being served, but there is not yet any charge.

The Attorney General further submits that since the person receiving the ticket can deal with it by making a pre-charge payment or byattending at an office to discuss it that the ticket is more a notice of a civil dispute, than a charge. It is, with respect, difficult to see how the Attorney General can maintain this position. In support of the submission that the out of courtpayment is settlement of a civil dispute he cites s.16 of the POA. But that

section uses the word “charge’ thus undermining the argumentthat a person receiving a parking ticket is not charged. There are other reasons for holding that a person receiving a ticket is charged, buts.16 is conclusive. Once it is determined that the ticket is a charging document, the two components of s.11(

a) must be examined - that is, 1) does theparking ticket, without the by-law number, advise the appellant of the specific offence and 2) if so, is it without unreasonable delay. At this point, the analysis becomes more difficult because of the special legislative scheme for parking infractions. Even if the parking ticket does not advise a recipient of the specific offence because the by-law number is not included, s. 17(5) requiresthat the notice of trial given to the defendant contain the by-law. This suggests that something more than the words of the offence maybe needed for a person to defend themselves.

But the appellant’s very complaint is that he was never advised of the specific offence because he was convicted for not respondingunder the provisions of s.17. There was no trial. He submits in effect and obviously quite persuasively that never cannot be a reasonabletime within the meaning of s.11(a). And his real complaint is that because he was never given the by-law number, he was notsufficiently advised of the specific offence in time to make an informed decision as to whether to request a trial or not.

Of course this argument cannot succeed if the statement of the offence that he did receive in the ticket did amount to sufficient advisingof the specific offence within the meaning of s.11(

a) of the Charter. It is to this issue that I now turn. The pre-charter case of R. v. Coté, (SCC), [1978] 1 S.C.R. 8 is relevant for determining whether a charging documentprovides sufficient information. There, the information set out the

section number of the Criminal Code but left out the words “withoutreasonable excuse” on a charge of failing to provide a sample of breath, without reasonable excuse. The case is instructive for a numberof reasons. First of all, Justice De Grandpré stated what is required to give an accused the possibility of a full defence and a fair trial: The golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of afull defence and a fair trial. When, as in the present case, the information recites all the facts and relates them to a definite offenceidentified by the relevant

section of the Code, it is impossible for the accused to be misled. To hold otherwise would be to revert to theextreme technicality of the old procedure. Page 13 Thus the golden rule is that the accused be reasonably, and I stress reasonably, because it will be relevant when I return to the specificdistinctions in the POA parking scheme, informed of the transaction alleged against him. Although the information in Coté had the

section number, which is the very complaint that the appellant has about his ticket and the twosections of the POA, 15 and 17(5) that he says violate s. 11(a), Justice De Grandpré stated the golden rule, which has never beenquestioned, in the course of interpreting the criminal code provisions governing informations.

Included in those provisions was the then section 510(5) [now 581(5)] which provides: A count may refer to any section, subsection, paragraph or subparagraph of the enactment that creates the offence charged, and for thepurpose of determining whether a count is sufficient, consideration shall be given to any such reference. Therefore, under the Criminal Code, and the golden rule in Coté, a count may refer to the

section number but does not need to. The issueis never what the count contains in words or

section numbers but whether it meets the standard in the golden rule - whether the accusedis reasonably informed of the transaction alleged against him. Here the ticket has the words of the by-law’s title: Park-fail to display permit. Anyone receiving such a ticket can be under nomisapprehension about what he is charged with. He cannot be misled. And if he is, as 17(5) provides, all will be put right by the time ofthe trial. This leads directly to the appellant’s succinct and only point, which he makes forcefully.

Because of the specific and unusual statutoryscheme, which does not give you a trial unless you ask for it, he was not given enough information in the parking ticket to make aninformed decision as to whether or not to request a trial and defend the charge.

Since he did not receive the by-law number which would allow him to go read the by-law and determine whether or not he was guilty orhad defences, he did not have sufficient information to request the trial which would have ultimately meant that he would be providedwith the by-law number at the trial. He maintains that this is unfair. He cannot know what he is charged with to defend himself unless he makes a decision to defendhimself, armed with inadequate notice of what he is charged with. This is unusual, but the issue is, is it unreasonable or unfair.

That can only be answered in the context of the charge and proceeding. Without in anyway diminishing the appellant’s sincerity inmaking this argument, the obvious fact about this case is that these are parking tickets. In my opinion, the Attorney General’sobservation that parking tickets in common language epitomize the least serious infraction in the system of law enforcement is apt.

There is no possibility of imprisonment, there is no social stigma, the monetary penalties are not high even for persons without a greatdeal of money who are somehow connected to a motor vehicle on which a ticket is placed, even if they are not the owner and even ifthey are innocent of the parking infraction. As Justice Gonthier held in Ontario v. Canadian Pacific Limited, (SCC),[1995] 2 S.C.R. 1031 at paragraph 57: In R. v.

Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154, Cory J. held at p. 227 that, “the contextual approachrequires that regulatory and criminal offences be treated differently for the purposes of the Charter review”, with the result thatregulatory offences are subject to a lower standard of Charter scrutiny. Although the Attorney General puts forth Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154 in the event that heis required to justify sections 15(3) and 17(5) of the POA, in my view it is relevant to a determination of the breach.

If a lesser standardof Charter scrutiny applies to regulatory offences, that is relevant to what is reasonable in s.11(a). Although dealing with a different right under s. 11 of the Charter, the arguably more fundamental right under s. 11(

d) of the Charter tobe presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, thedecision of the Supreme Court in R. v. Richard (SCC), [1996] 3 S.C.R. 525 demonstrates how the context of aregulatory scheme impacts on the

interpretation of s. 11 rights. There the statutory scheme under attack was the Provincial Offences Procedure Act of New Brunswick which permitted conviction if thedefendant did not respond to a ticket, including under a by-law. Justice La Forest, rather than set out the legislation, concisely describes itin part of paragraph 11:

Section 10 of the Act specifies the information that must appear in the ticket, which must be served on the defendant by being deliveredto him or her personally (s. 11(1)). The ticket must set out in very precise terms the offence with which the defendant is charged (ss.10(1)(

b) and 10(2)) and must also state the time and place of the appearance (s. 10(1)(c)). The ticket must state that the defendant has theright to choose the official language in which the proceedings will be conducted and to retain and instruct counsel (ss. 10(1)(

d) and (e)).Section 10(1)(

g) requires that the ticket state the amount of the fixed penalty and the time, place and manner of payment. Section 10(1)(

f) provides that the defendant may pay the indicated penalty in the prescribed manner, in which case he or she will be deemed to havebeen convicted of the offence. Finally, under s. 10(1)(h), the ticket must state that if the defendant does not pay the fixed penalty anddoes not appear in court at the stated time and place, he or she may be convicted of the offence. This is similar to the procedure under s.15 and following of the POA. The court analyzed the alleged infringement of s.11(

d) on the basis of waiver, while noting that this was essentially the same as arguingthat there was no violation of the right in s.11(

d) as there was full opportunity to have a trial by choosing to respond. At paragraph 32,Justice La Forest held: In my view, in a context in which litigants cannot be imprisoned for offences of a regulatory nature, it is open to both the provinciallegislatures and Parliament to infer from the failure of those litigants to act that they have waived their right to be presumed innocent andtheir right to a fair hearing and at the same time to have consented to a conviction made against them, provided that under the procedural

scheme applicable to them, they are fully informed of the consequences of failing to act and there are sufficient safeguards to preventinjustices from occurring. This passage applies directly to this case. Since it is open to the Ontario Legislature to pass a scheme in which it can be inferred frominaction that the defendant does not intend to defend the parking ticket, all that is needed is enough information in that parking ticket tomake that decision. With this context, I return to whether the words on the ticket are reasonably sufficient.

The requirement that a defendant respond to a ticket before obtaining the right to a trial, does impose an obligation on a person receivinga parking ticket different from that imposed on a person charged with an offence and given a trial date. They have to act and choose atrial. And, because of s.15 of the POA, if they do not they will never be given the by-law number, just as the appellant never was. So there are two parts to the analysis of whether the appellant is informed of the specific offence without delay within the meaning ofs.11(a).

One is whether, as the Attorney General argues, the words on the ticket meet the golden rule and the second is whether it isunreasonable to require an appellant to respond to the ticket, the original charging document, in order to learn the by-law number. But, since the appellant’s complaint is that he does not have enough information to decide whether to respond or not, in my opinion, inthis very particular statutory context, the two go together. The words on the parking ticket PARK-FAIL TO DISPLAY RECEIPT IN WINDSHIELD convey substantial information.

Indeed as The Attorney General argues, the by-law would add little even if the appellant had the number on the ticket. By-Law 910-4Creads: The receipt issued by the parking machine shall be placed inside the windshield of the vehicle while the vehicle is parked in or on theparking space in a position that the writing and markings on the receipt face outward, so as to be easily seen from outside the vehicle.

Although this does give a defendant more information regarding the elements of the charge, the important point is not whether thedefendant can defend himself with the information on the ticket but whether he can make an informed decision whether to respond ornot. Given the Supreme Court’s approval of the statutory scheme in Richard, and the lower constitutional scrutiny for minor regulatoryoffences with small monetary penalties, I hold that it is reasonable for the legislature to require a person receiving a ticket to make adecision based on the wording of the offence without the by-law number.

I note in this regard that in R. v. Miller, 2010 BCCA 39, [2010] B.C.J. 121, the British Columbia Court of Appeal recently applied Richard in holding that not advising a motorist ofpossible demerit points, on a traffic ticket, did not mean that the motorist was not aware of the consequences of not disputing a ticket. Reference to s. 10 of the New Brunswick Provincial Offences Procedure Act that the Supreme Court of Canada considered in Richardsupports the conclusion I have reached as to the sufficiency of the information contained in the parking ticket issued to the appellant.Justice La Forest did not set out the

section in his judgment, but I will repeat what he said in paragraph 11: “The ticket must set out invery precise terms the offence with which the defendant is charged (ss.10(1)(

b) and 10(2)...” I now set out

section 10 of the New Brunswick Provincial Offences Procedure Act, because it demonstrates what the Supreme Courtfound was sufficient information that appears in the ticket to permit the legislature to require a person to respond to a ticket or be taken towaive his rights.

10(1) A ticket shall (

a) be directed to the defendant, (

b) set out the offence with which the defendant is charged, (

c) state the time and place at which the defendant is to appear in court in order to be dealt with according to law, (

d) state that the defendant has the right to choose the official language in which the proceedings will be conducted, (

e) state that the defendant has the right to retain and instruct counsel, (

f) state that the defendant may pay a fixed penalty instead of appearing in court at the time and place stated in the ticket but that a defendant who makes such a payment shall be deemed to have been convicted of the offence, (

g) state the amount of the fixed penalty and the time, place and manner of payment, and (

h) state that if the defendant does not pay the fixed penalty and does not appear in court at the time and place stated in the ticket, the defendant may be convicted of the offence. 10(2) For the purposes of paragraph (1)(

b) the offence with which the defendant is charged shall be set out in the ticket (

a) using words that are prescribed by regulation, (

b) using any words that describe the general nature of the offence, or (

c) using words that identify a provision of

an Act and charge the defendant with a violation of that provision. 1990, c.18, s.4; 1991, c.29, s.3. The effect of s.10(2) is the same as s.15 and s.17(5) of the POA along with the golden rule in Coté . A ticket can contain the

section of the Act, either in words or numbers, but it need not. It is sufficient if it uses words that describe the general nature of the offence. And, that was found by the Supreme Court to be sufficient to require a person to respond or risk being deemed to have waived his right to trial, the very situation that the appellant complains of here. Therefore I find that s. 17(5) and 15 (3) of the POA do not infringe s. 11(

a) of the Charter . Conclusion The appeals are dismissed. _________________________ Brent Knazan Ontario Court of Justice December 2, 2011