R. v. Rush, 2013 ONCJ 732

Citation: R. v. Rush , 2013 ONCJ 732 ONTARIO COURT OF JUSTICE in the matter of the provincial offences act r.s.o. 1990 HER MAJESTY THE QUEEN v. ALAN RUSH * * * * * * * * P R O C E E D I N G S A T T R I A L BEFORE HIS WORSHIP JUSTICE OF THE PEACE V. BUBRIN on October 24, 2013, at 70 Centre Avenue, TORONTO, Ontario * * * * * * * * Charge: s. 2.3(b) – TTC Bylaw Number 1 Failure To Comply With Conditions Of Use Of Fare Media * * * * * * * *

Appearances : Ms. S. Ristic TTC Prosecutor Ms. A. Rush Counsel for the Defendant ontario court of justice TABLE OF CONTENTS Exam. Cr- Re- WITNESSES : in-Ch. exam. exam. ********** EXHIBITS EXHIBIT NUMBER ENTERED ON PAGE ********** REASONS FOR JUDGMENT Page 3 **********

Transcript Ordered: _ October 24, 2013 Transcript Completed: _ December 20, 2013 Transcript Party Notified: ____________________ THURSDAY, OCTOBER 24, 2013 MS. RISTIC: For the record, R-I-S-T-I-C, initial S, prosecutor, Toronto Transit Commission. Certified true copy of the TTC bylaw for your review for this afternoon. And, Your Worship, line 10 on the docket for Al Rush. THE COURT: Good. MS. RISTIC: Come forward. THE COURT: Good afternoon, Ms. Rush. MS. RUSH: Good afternoon, Your Worship. MS. RISTIC: Your Worship, you remember this... THE COURT: Yes. MS. RISTIC: ..matter. It’s just a matter of judgment today.

THE COURT: Yes. Very good. Okay. So we’ll start with that. Okay. My decision is going to be lengthy, so I invite you just to receive it sitting down in more comfort. MS. RUSH: Thank you. THE COURT: Okay. So in the matter of R v Alan Rush – and I believe the parties have identified themselves. Ms. Andrea Rush is here on behalf of the defendant and Ms. Ristic for the prosecution. REASONS FOR JUDGMENT BUBRIN, J.P. (Orally) : The facts in this case are straightforward and they were, in the main, not in dispute. On August 9, 2012, Mr.

Alan Rush, the Defendant, a student at McGill University in Montreal and at the time in question also a summer

student at Toronto’s Princess Margaret Hospital, which, according to his testimony, is part of the University Health Network affiliated with the University of Toronto, entered the TTC Yorkdale subway station using a post-secondary student Metropass. Mr. Rush was, in essence, using the public transportation system at a reduced post-secondary student rate, a privilege afforded to students in Toronto by the TTC as per the TTC By-Law Number 1, together with the documents and fare media conditions derived from that By-law. Mr.

Carlos Uncao, a Provincial Offences Officer, and the prosecution’s witness, testified that at approximately 8:45 p.m. on August 9, 2012, he was on general patrol at Yorkdale subway station in the vicinity of the so-called “crash gate” staffed by a ticket collector, when he observed the Defendant enter the paid area of the station showing a student Metropass. Mr. Uncao testified that he did not observe that the Defendant showed the collector a TTC student photo identification card. Upon approaching the Defendant to see his TTC student ID card, he learned that the Defendant did not have one. Mr.

Uncao testified that he showed the Defendant the information printed on the back of the Metropass indicating that a TTC student photo ID card must be used with the Metropass as a condition of use of the student Metropass. Mr. Uncao testified that he exercised his discretion and, instead of charging the Defendant with the offence “fail to surrender identification card” (which the Court understands carries a $425.00 total fine), he issued him a Provincial Offences ticket, charging him with Fail To Comply With Conditions Of Use Of Fare Media, contrary to the TTC Bylaw Number 1, s. 2.3(b).

According to the TTC By-law No. 1 Fines Table, the latter charge carries a fine of $195.00, for a total of $235.00 with applicable surcharges. The officer further testified that he did not seize the Defendant’s Metropass, that he informed the Defendant of what he had to do to obtain a pass, (I believe the officer meant to say how to obtain a Post-Secondary TTC Student Photo ID card), and that he allowed the student through in the system, I presume with the Provincial Offences ticket now in the Defendant’s hand. Mr.

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

Uncao explained that he did not need to ask the Defendant whether or not he had a student pass, i.e. student identification, from his university, because the only thing that would make the Defendant eligible to ride at the reduced post- secondary student rate was the Metropass with a Post-Secondary TTC Student Photo ID.

The witness stated that the Defendant was not eligible to ride the TTC system at a reduced student fare on that date, though he admitted that his role was not to determine eligibility, but rather to make sure that there is compliance with the terms on the back of the TTC card, that is, the Metropass. The following is an excerpt from the cross-examination of Mr. Uncao by Ms. Andrea Rush, who was acting for the Defendant: Question: “So just for the benefit of the Court then, this is not a case about eligibility. It’s about whether or not he had a pass. It’s not about whether or not the TTC found Mr.

Rush eligible to be riding at a reduced rate, because this is a pass. Rather, it’s about whether someone is liable for a Provincial Offences if they don’t produce it at the time they have it, they are requested to do so, whether or not they have it, whether or not they are a student, whether or not they have other student indicia that they can present to you. Is that correct? Answer: This [i.e. the TTC Student Photo ID] must be presented when the pass is used. Unfortunately, we do have problems in the system with students who do not have these cards. They don’t take it serious. They leave it at home.

And because of that, we get delayed services, we get operator assaults. And so, for that reason, I myself have a pretty zero – close to zero tolerance when it comes to people not having these and showing them when they’re travelling with the reduced fare. Question: The reason why I am emphasizing this point, sir, is because I wanted to make sure that this is an issue about zero tolerance, about presenting the TTC photo ID and no other photo ID with the Metropass simultaneously, despite being eligible, despite having it.

That’s my question to you, so that we can frame the parameters before we actually look at R. v. Sault Ste. Marie , because we will be looking at the defences as well, which are indicated in that case. So I wanted to frame the facts clearly, with fairness to all, before we went on to (

a) construction of the fine, construction of the by-law, and then the construction of the case itself. Because it is, after all, a Provincial Offences Act .” And further down in the transcript we proceed to another question to Mr. Uncao:

Question: ”You check whether someone – you look at whether they are a student or not a student? Is that your job? Or is it just to enforce the bylaw and be at the station with respect to student Metropasses? Mr. Uncao’s answer: My job is to do the enforcement and make sure everyone that’s using a reduced fare, make sure that they’re in compliance with the proper documentation.” In his own testimony, the Defendant stated that when he got home after receiving the ticket, he called the TTC to find out whether he was eligible.

He testified that he was instructed to go down to Sherbourne Station to present his identification documents to see if he was eligible. Mr. Rush testified that he went to Sherbourne Station the very next day, presented his documents, student documents, and was issued a TTC photo ID, displaying his eligibility, as he put it. Mr.

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

Though the above may have caused some confusion in the Defendant’s mind regarding different rules applying at the same station, we can agree that the bus he was taking to travel up north was not a TTC bus and the TTC rules may not apply, as they may not apply to GO train system riders, for which there is also signage at the same Yorkdale station. In the Court’s opinion, two competing arguments arise in the circumstances of this case, one focusing on eligibility, and the other on compliance. As I understand the defence argument, if Mr.

Rush was eligible, which the evidence shows that he was, he should be considered to have also been in compliance when entering the TTC subway using a post-secondary student Metropass.... [CLERK OF THE COURT: Sorry, Court's indulgence, please, Your Worship. Did you want to adjust your watch outside of the courtroom and also can you stop talking?] THE COURT: Yes, let me go over this very important part. I'm talking about two competing arguments in the circumstances of this case, one focussing on eligibility and the other on compliance. As I understand the defence argument, if Mr.

Rush was eligible, which the evidence shows that he was, he should be considered to have also been in compliance when entering the TTC subway using a post- secondary student Metropass without the TTC Post Secondary Student Photo ID. The prosecutor's position is that, while Mr. Rush may have been eligible, he did not qualify for the reduced student rate without the TTC student photo ID in his possession.

Section 2.3 of the TTC By-law Number 1 states as follows: “Fare media shall be: (

a) valid for the period as indicated on the fare media; and (

b) shall be valid in accordance with the conditions of use of the fare media and as set out in this by-law.” In S. 1, the

Definitions

section of the by-law, the following is stated in subsections (

e) and (

g) respectively: “(e) 'conditions of use' means the information printed on fare media, an identification card, a photo identification card and an electronic fare card and includes but is not limited to information electronically stored or encoded on the electronic fare card;” and “(g) 'fare media' means any ticket, token, pass, transfer or other fare media issued by and acceptable to the TTC, and includes, without limitation, an electronic fare card, any single or multi ride ticket, a day pass, a family pass, a weekly pass, a monthly pass, a U pass, or any period pass.” In the case at hand, the fare media is the Post-Secondary Student Metropass, which the Defendant had in his possession on the date and time in question.

Subsection 1(

e) directs us to the conditions of use printed on that fare media, and those conditions read as follows: “Post-Secondary Student Metropass

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

a) in possession of the customer at all times during the trip; (

b) clearly displayed to TTC employees when used together withthe appropriate photo ID; (

c) surrendered for inspection to TTC employees upon request together with the appropriate photo ID when onTTC property.” Conditions of use set out on the TTC Post-Secondary Student Photo ID cover the same ground, more or less, in the three bullet points onthe back of that card.

The first bullet point states that “this card can only be used with a Post-Secondary Student Metropass.” Thesecond bullet point, “This card must be shown to TTC employees when using a Post-Secondary Student Metropass.” And the thirdbullet point reads as follows: “The card is only valid if the student is enrolled full-time in a recognized Degree or Diploma program, asdetermined in accordance with TTC policy, (referred to as 'Post-Secondary School'), and the institution is located in the City ofToronto.” The Court accepts that both eligibility and compliance are addressed in the above-cited passages from the TTC By-law and the TTC-issued Metropass and Student Photo ID, even though eligibility and compliance are distinguishable.

In the Court's opinion, eligibility is amatter of qualifying or being qualified for the reduced student fare, while compliance is a question of conforming to what is required. Mr. Rush has shown that he may have been eligible for a reduced student fare on August 9, 2012. This eligibility was determined whenthe TTC issued him the TTC Student Photo ID when he attended at Sherbourne Station on August 10, 2012, the day after he received theticket at Yorkdale Station.

However, without the TTC-issued student photo ID in hand, a condition of use, as per the stipulations on theback of the media fare, derived from the authority of the TTC By-Law Number 1, he was not in compliance when he passed thecollector's crash gate on August 9, 2012, at Yorkdale Station. This brings me to the issue on which the disposition of this case rests. Is failure to comply with conditions of the use of fare media underthe TTC By-Law a strict or an absolute liability offence?

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

Rush testified extensively on all these points. In her submissions, Ms. Rush emphasized the principles set out in the Supreme Court of Canada decision R. v. Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299, particularly relevant in public welfare offences, such as the one at hand, being tried under theOntario Provincial Offences Act. References were made to various sections of the Supreme Court of Canada decision, all in support ofcategorizing the offence at trial here as a strict liability offence. Let me now turn briefly to the sections of R. v. Sault Ste.

Marie which the Court considers particularly relevant in the circumstances ofthe present case. I will first cite from the introductory part of the decision on page 2, which is a

summary of the justification of the Court's dismissal of theappeal and cross-appeal, describing in the process the three categories of offences. The fourth line on the second paragraph on thatsecond page reads as follows: “The correct approach in public welfare offences is to relieve the Crown of the burden of proving mens rea, having regard to PierceFisheries, (SCC), [1971] S.C.R. 5, and to the virtual impossibility in most regulatory cases of proving wrongfulintention, and also in rejecting absolute liability, admitting the defence of reasonable care.

This leaves it open to the defendant to provethat all due care has been taken. Thus, while the prosecution must prove beyond a reasonable doubt that the defendant committed theprohibited act, the Defendant need only establish on the balance of probabilities his defence of reasonable care. “Three categories of offences are therefore recognized (first) offences in which mens rea must be established, (second) offences of ‘strict

liability’ in which mens rea need not be established, but where the defence of reasonable belief in a mistaken set of facts or the defence of reasonable care is available, and (third) offences of ‘absolute liability’ where it is not open to the accused to exculpate himself by showing that he was free of fault. “Offences which are criminal are in the first category. Public welfare offences are prima facie in the second category. Absolute liability offences would arise where the legislature has made it clear that guilt would follow on mere proof of the prescribed act.” The focus in R. v. Sault Ste.

Marie is primarily on the second category, strict liability, the “half-way house,” as it was described at one point in the hierarchy of the offences. This is how the relatively new doctrine at that time is described, a doctrine that now binds our Courts in appropriate cases. On page eight and nine, and I believe these are also passages cited by Ms.

Rush, we read: “The doctrine [of strict liability] proceeds on the assumption that the defendant could have avoided a prima facie offence through the exercise of reasonable care, and he is given the opportunity of establishing, if he can, that he did in fact exercise such care.” And on page nine, the paragraphs below: “This case, and several others like it, speak of the defence as being that of reasonable mistaken fact.

The reason is that the offences in question have generally turned on the possession by a person or place of an unlawful status, and the accused's defence was that he reasonably did not know of his status: e.g. permitting an unlicensed person to drive or lacking a valid licence oneself, or being the owner of property in a dangerous condition. In such cases, negligence consists of an unreasonable failure to know the facts which constitute the offence. It is clear, however,...” this citation continues, “...that in the principle, the defence is that all reasonable care was taken.

In other circumstances, the issue will be whether the accused's behaviour was negligent in bringing about the forbidden event when he knew the relevant facts. Once the defence of reasonable mistake of fact is accepted, there is no barrier to acceptance of the other constituent part of an offence of due diligence.” However, the introduction of the strict liability offences category, with a new set of possible defences available to the defendant in appropriate circumstances, does not replace or displace the other two categories of offences, mens rea and absolute liability offences.

This is clearly set out in the very conclusion in R. v. Sault Ste. Marie . And on page 14 of R. v. Sault Ste. Marie the case states: “I conclude, for the reasons which I have sought to express, that there are three compelling grounds for the recognition of three categories of offences, rather than the traditional two.” In the first case, the mens rea is described, which does not apply, so I'm going to skip that and move to number two: “2.

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

These offences may properly be called offences of strict liability...” And “3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.” Returning to the particular circumstances of the case at hand, the Court is of the opinion that if eligibility was the only issue to be decided, this case could justifiably be categorized as a strict liability offence and the Defendant could be exculpated from liability. But, as I have pointed out earlier, Mr.

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

The rationale for this restriction is spelled out under the third bullet point on the back of the TTC Post-Secondary Student Photo ID as not every post-secondary student may be eligible. By issuing its own Post-Secondary Student Photo IDs enables the TTC to exercise control over the privilege afforded to eligible post-secondary school students for a reduced fare. Does the question of compliance fall under the category of an absolute liability offence? In the Court's opinion, it does. The basis for this conclusion is as follows.

In addition to the qualitative distinction made between eligibility and compliance in favour of the applicability of the latter, the Court notes that the language used in s. 2.3(

b) of the TTC By-law: “Fare media shall be valid in accordance with the conditions of use of the fare media.” The language at the back of the student Metropass addressed to Post- Secondary Students stipulates: “ valid only with a TTC Post Secondary Student Photo ID; must be ... used together with the appropriate Photo ID; the appropriate Photo ID card is the TTC Post-Secondary Student Photo ID. [emphases added]” On this point, R. v. Sault Ste.

Marie is, in the Court's opinion, clear, and I cite again from page 14. “Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the prescribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.” Based on the Court’s

interpretation of the wording of the TTC By-Law and the accompanying documents pertaining to the restricted use of media fare designated for post-secondary students, and especially based on the precision of the language found in the TTC By-Law and documents issued and derived from the authority under the By-Law, such as 'shall', 'must', 'only' and the definite

article 'the' ('the' not 'an' appropriate photo ID), not any photo ID but 'the' TTC issued photo ID, the Court concludes that an offence under s. 2.3(

b) of the TTC By-Law Number 1 is indeed an absolute liability offence. As such, the Court finds that it is not open to the Defendant to exculpate himself by showing that he was free of fault. For these reasons, the Court concludes that the prosecution has proven the charge against Alan Rush beyond a reasonable doubt and finds the Defendant guilty of the offence of Failing To Comply With Conditions Of Use Of Fare Media, contrary to the TTC By-Law s. 2.3(b). Court’s now prepared to hear submissions with respect to penalty. Madam Ristic, we’ll start with you. MS. RISTIC: Yes, Your Worship.

In the circumstance, I’m seeking the set fine as an appropriate amount. We’ve had a trial in this matter, we’ve had a couple of appearances, and the defendant did have many opportunities to plead to a reduced fine. And at this point I believe set fine is appropriate. THE COURT: Madam Rush. MS. RUSH: As my friend has mentioned, there have been many appearances, many opportunities, and a full trial. A lot of time spent and the first time that there’s been a decision on this point. So I’m seeking a reduction. THE COURT: Okay. And what would justify that reduction? MS.

RUSH: This was a student who was in fact eligible. THE COURT: All right. MS. RUSH: And an interesting case, which is actually going to be quite instructive. THE COURT: Okay. Now when I look at this, at the situation, there’s probably in my mind one aggravating point, and that is that Mr. Rush had in his hand a Metropass, on the back of which there were certain conditions to which he apparently did not pay attention, or to which he ought to have paid some attention.

On the other hand, mitigating circumstances were also present, from my understanding and assessment of the case. Mr. Rush accepted the ticket politely and then he went, did his research. To find out that he was eligible, he attended at Sherbourne Station and obtained a TTC-issued student photo ID. I think he has – he now understands. Even though he challenged the system, he now understands what is required. What I’m going to do is – the fact that this was a trial of several sittings and, I mean, that comes with the territory.

The Court should not penalize people for exercising their right to have their matters tried. So I’m going to exercise the Court discretion and reduce the fine to $100. Ms. Rush, how much time is needed to pay the $100? MS. RUSH: Five minutes. MS. RISTIC: There’s your form. Customer service right at the front. THE COURT: Thank you, Ms. Rush. * * * * * * FORM 2

Certificate of Transcript Evidence Act, S.S. 5(2) I, Judy Denny , certify that this document is a true and accurate transcript of the recording of Her Majesty the Queen v. Alan Rush , in the Ontario Court of Justice , Provincial Offences Court , held at 70 Centre Avenue, TORONTO, Ontario, taken from Recording No. C2 20131024-1330 , dated October 24, 2013 which has been certified in Form 1 . _December 20, 2013 __ ________________________________ (Date) (Signature of authorized person) On behalf of Durham Reporting & Mediation Services