r v. DANIEL SMAJOVITS, 2016 QCCM 98

Montreal (City of) c. Smajovits 2016 QCCM 98 MUNICIPAL COURT of MONTRÉAL CANADA PROVINCE of QUeBEC DISTRICT of MONTReAL FILE: 400-866-583 DATE: MAY 11 th , 2016 PRESIDED by the HONOuRABLE RANDALL RICHMOND, J.M.C.M. city of montreal Prosecutor v. DANIEL SMAJOVITS Defendant J U d G M E N T (amended May 18, 2016) 1.

OV Erview [ 1 ] The word “tolerance” is often confused with the word “toleration”─ particularly when it comes to street parking. [ 2 ] The words “tolerance” and “toleration” are both associated with the verb “tolerate”, but they differ in meaning. “Toleration” is the act of allowing or putting up with unapproved actions. “Tolerance” is the state or quality of being willing to let others think, live or worship according to their own beliefs and to refrain from judging harshly or with blind prejudice. See: the Gage Canadian Dictionary (1983).

[ 3 ] Although linguistic purists maintain that the two words do not have the same meaning, common usage makes the words almost interchangeable. The fact that both words translate into French as “ tolérance ” makes the confusion inevitable in a place like Montreal. Consequently, Montrealers frequently contest parking tickets by pleading “tolerance”. [ 4 ] Daniel Smajovits is contesting a parking ticket that he says he received during Rosh Hashanah (the Jewish New Year).

He pleads that there has been a long-standing policy of “tolerance” applied by the City to streets near synagogues during Jewish holidays. [ 5 ] Technically, “tolerance” is not a defence. Nonetheless, for the reasons that follow, I find him not guilty. 2.

The facts [ 6 ] The statement of offence (parking ticket) indicates that at 1:01 p.m. on the 23 rd of September 2014, a Honda Accord was parked on the east side of Trans-Island Avenue, north of Queen-Mary Road, in the Borough of Côte-des-Neiges─Notre-Dame-de-Grâce, and that a sign prohibited parking there on Tuesdays from 12:30 p.m. to 2:30 p.m. for the purpose of maintenance. [ 7 ] The owner of the ticketed vehicle, Daniel Smajovits claims that when he left his vehicle at that location, the no-parking signs on that street were covered up.

He assumed that this had been done by the local authorities in application of a long-standing policy of “tolerance” during Jewish High Holidays. [ 8 ] He went there to attend Jewish New Year services at his synagogue, and he left his car in that location before the beginning of a three-day period during which his religious beliefs forbade him from using it. [ 9 ] Upon returning to his car, Mr.

Smajovits was surprised to find the ticket on his windshield and to see that the covers had been removed from the no-parking signs. [ 10 ] In his testimony, he put it this way: The 23 rd of September fell during the Jewish High Holidays and the cities Côte St-Luc, Hampstead, N.D.G., Snowdon, ― all those boroughs and cities ― they have a parking tolerance. So they let you park your car overnight because when we go to synagogue, we park our car in the evening and we don’t move it for three or four days.

And usually the tolerance goes for about ten days in September and another ten days in April when these holidays fall. So I as well as others parked our car on Trans-Island and Queen-Mary which is right near a synagogue, so we can park and walk to synagogue. We can’t drive afterwards. So it’s parked there for a period of three days. And at the end of that, I noticed that there is a parking ticket on my car... as well as others had parking tickets on their cars. We were all shocked because it’s not the first time we’re doing this. I’ve been going to that synagogue since I was a little kid.

My parents had tickets on their cars and my wife had... and we didn’t know what was happening. So, after doing some research ― I have pictures here ― it looked like, in that borough and other parts of the city, people had either removed ― like they cover up the no-parking signs with like just plastic ― some people had removed it. Some people had spray painted some anti-Semitic words over it and they had to replace them.

So my theory is, it’s that when they knew that all these people were in synagogue for the period of three days not using their cars, on the day that, for whatever reason, somebody removed the signs and the parking enforcement people, they didn’t realize that it was a holiday and they ticketed all the cars. [ 11 ] He then tendered a news

article and said: (...) I have an

article here that shows that since 1984, during these holidays, these boroughs, they’re tolerant and the parking laws are not in effect. Of course, fire hydrants yes, but when it says “no parking between these hours and these hours”, that doesn’t apply for these days. And usually what they do is: they cover up the signs with the plastic, so you know you can park there. But... and when we parked the cars there ― everybody on that street ― the sign with the plastic was up there.

And that’s why we were shocked when we saw the tickets on our cars two days later. [ 12 ] He explained that when he parked his car, the no-parking signs were covered up, and he insisted that this had been done by the municipality. He explained: In N.D.G., in these municipalities that are run by the City of Montreal ― the boroughs ― they cover up the signs. And in Côte St-Luc and Hampstead, where there’s no restriction during the day, they just do not... they let you park overnight because there’s no daytime restrictions for cleaning the streets and whatnot.

But in boroughs they have those signs ― “no parking Tuesdays and Thursdays” or “Mondays and Wednesdays” ― but those signs are covered up by the municipality. [ 13 ] As for the duration of the “tolerance”, he explained as follows: The tolerance usually goes from... for about a ten-day period: the evening of the first holiday (which is the Jewish New Year) and it goes until the end of the Yom Kippur (which is the last holiday) which is ten days later. And it’s that one time of the year.

And it also happens again in April ― there is another parking tolerance. [ 14 ] He went on to say that September 23 rd “was Rosh Hashanah.” 3. Position of the parties [ 15 ] The defendant pleads that he was parked legally on September 23 rd , 2014, because the no-parking sign on Trans-Island was covered when he left his car. He argues that, by covering the no-parking sign on Trans-Island, the Borough led him to believe that his

vehicle was legally parked for the duration of the Jewish holidays.

He claims that the no-parking sign was covered as part of theBorough’s practice of tolerance toward Jews who refrain from moving their motor vehicles for reasons of religious belief during theJewish holidays. [16] He also complains that this is a recurrent problem each year during Jewish High Holidays and that he is contesting the ticket as amatter of principle in the hope that this type of problem will not be repeated year after year. [17] Counsel for the City pleads that the date at which the defendant was parked preceded the beginning of the Jewish New Year in 2014.

The latter began on September 24th, 2014, whereas the defendant’s ticket was issued on September 23rd, 2014. 4. THE RElevant legislation [18] Daniel Smajovits was charged with violating paragraph 30(1) of Montreal’s By-law Concerning Traffic and Parking, R.B.C.M. c.C-4.1 (“the By-law”), by parking his car at a place and time where signs prohibited parking. [19] The relevant parts of the By-law read as follows: 4.

In addition to the other powers authorized under the charter by resolution relating to traffic or parking, the executive committee may,by resolution: (1) designate the places and determine the periods where parking must be prohibited or restricted for certain purposes by signs; ordain,for special events, for the periods and at the places it determines, that the no parking signs do not apply. 30.

No road vehicle may be parked : (1) at a place and time where signs prohibit parking; [20] At least as early as 1999, the City of Montreal’s executive committee used the power given in article 4(1) to adopt a resolution tomodify, during Jewish holidays, the signs around synagogues that prohibit parking for maintenance purposes. (See: Resolution CE9900357, dated February 24, 1999.) The Jewish New Year was specifically mentioned as one of these holidays. [21] According to the City, this power was later delegated to the borough council of Côte-des-Neiges─Notre-Dame-de-Grâce, which, in2005, delegated the power to the director of public works via Resolution RCA04 17044. [22] In any event, the tradition was continued.

But as with many religions, the dates that holidays fall on may vary from one year to thenext. Consequently, the application of the policy has to be adjusted every year. [23] In 2014, the public works department of the Borough of Côte-des-Neiges─Notre-Dame-de-Grâce directed its employees tocontinue the policy by “masking” the maintenance-related no-parking signs near synagogues with “caches panneaux” (sign covers). Awork order set out the dates and places where this was to be done.

It ordered that, for the Jewish New Year, the signs should be“covered” from September 24 to 29. [24] The work order also set out a very lengthy and detailed list of all the street sections and sides of streets where the signs were to becovered. This list included Trans-Island Avenue, but only the sections between Côte-Ste-Catherine Road and Vézina Street. This was notwhere Mr. Smajovits got his ticket. However, a

section of Westbury Avenue, just two blocks away, was included on the list. 5. AnalysIS [25] Mr. Smajovits’ first argument is that there has been a long-standing policy of “tolerance” applied by the City to streets nearsynagogues during Jewish holidays. [26] There is nothing in the By-law about tolerance during religious holidays, or about temporarily covering signs for that purpose.Indeed, there is no mention of the word “tolerance” in the By-law at all. [27] Our Superior Court recently decided that illegal parking is a strict liability offence: Sauvé c. Saint-Jérôme (Ville de), 2015QCCS 6476.

However, it also stated, in Garbeau c. Montréal (Ville de), 2015 QCCS 5246 at par. 282, that for strict liability offences,“tolérance” by a public authority does not allow a defendant to plead the defence of officially induced error : Soulignons que la tolérance d’une autorité publique à l’égard d’une activité règlementée ne permet pas de faire valoir à l’encontre d’uneinfraction de responsabilité stricte, comme en l’espèce, les moyens suivants: la préclusion promissoire, les droits acquis ou une erreurprovoquée par une personne en autorité : Immeubles Jacques Robitaille inc. c.

Québec (Ville), 2014 CSC 34. [emphasis added] [28] Indeed, at par. 25 of Immeubles Jacques Robitaille, the Supreme Court declared that no rights are created simply because amunicipal employee or elected official authorizes

an act that is contrary to a by-law : Although a municipality is not under an obligation to do everything it can to ensure compliance with its by-laws and cannot be compelledto enforce them (s. 576 of the Cities and Towns Act; Hétu and Duplessis, at para. 8.203), neither can it grant citizens a right to non-conforming uses on its territory. The authorization by a municipal employee or elected official of a use that violates a provision of a by-law cannot create rights or oust the applicable standards set out in the by-law (Hétu and Duplessis, at para. 8.207; Sainte-Barbe(Municipalité de la paroisse) v. Cadieux, (Que. Sup. Ct.), at para. 66). [emphasis added]

[29] Our Court of Appeal has applied the same principle to motor vehicle offences. In Procureur général du Québec c. Lévesque,J.E. 1992-1006 (C.A.Q.), the Court wrote : [...] une certaine tolérance (ou latitude) policière n'a pas pour effet de modifier la loi ni d'immuniser en quelque sorte les automobilistesqui y contreviennent. [emphasis added] [30] Our Court of Appeal also applied this principle to parking. In Paradis c.

Longueuil (Ville de), 2009 QCCA 506, at par. 4, JusticeLise Côté wrote that “tolérance” by police officers is not a defence to a charge of illegal parking : Le fait que les policiers tolèrent que certains véhicules soient stationnés au-delà du temps permis par la réglementation sans délivrer deconstats d’infractions ne saurait constituer une défense : (Procureur général du Québec c. Lévesque, J.E. 1992-1006 (C.A.Q.). [emphasis added] [31] It would therefore appear that “tolérance” is not a defence in law for regulatory offences, including illegal parking.

However,the word “tolérance” in the above-mentioned decisions should probably be translated as “toleration” in English. In other words,toleration by authorities does not create new rights. Toleration is not a defence. [32] However, there is nothing to prevent a municipality from exercising tolerance (in the noblest sense of the word) in the craftingof its by-laws and resolutions. Municipal authorities have full authority to decide where and when no-parking signs will be placed, andwhen they will be removed.

And that is exactly what the borough council of Côte-des-Neiges─Notre-Dame-de-Grâce did by resolutionin 2014. The process was legal and transparent. Everything was in writing. [33] The Borough applied its policy by covering the no-parking signs for the duration of Jewish holidays. This is not “toleration” ofillegal or unapproved activity. Rather, it is a reasoned and transparent democratic decision to make parking rules that the borough’sresidents want. [34] Mr. Smajovits claims that the sign prohibiting parking on the

section of Trans-Island Avenue where he parked his car wascovered up by city authorities before he parked his car there. [35] In Sauvé c. Saint-Jérôme, the Superior Court decided that because illegal parking is a strict liability offence, it is possible toraise against it the defences of reasonable diligence or mistake of fact (the reasonable belief in a state of facts that, if it had existed, wouldhave made the act or omission innocent). [36] Both of these defences are available in view of the evidence presented in the case at bar. [37] Mr.

Smajovits can claim that he was reasonably diligent because, when he parked his car, he looked and saw that the no-parking sign was covered, he knew it was in the Jewish holiday period, and he reasonably concluded that the sign had been covered bythe City in application of the long-standing practice that he had personally witnessed since childhood. [38] He can also plead the defence of mistake of fact because, for the next two or three days, he continued to believe that the signremained covered.

He can argue that this was a reasonable belief in a state of facts that, if it had existed, would have made the act oromission innocent. [39] But for both of these defences, the burden of persuasion is on the defendant. He must prove either defence on a balance ofprobabilities: R. v.

Wholesale Travel Group inc., (SCC), [1991] 3 S.C.R. 154. [40] The prosecutor correctly pointed out that the Borough had no stated policy of covering parking signs either on the day the ticketwas issued or in the specific place where the defendant’s vehicle was parked. [41] First of all, the date on which the ticket was issued fell outside the period foreseen by Borough officials for the covering of signs during religious holidays.

Indeed, the ticket was issued on September 23rd, 2014, whereas it was the Borough’s policy to cover parking signs with sign covers only as of September 24th, 2014. [42] Secondly, the place where the defendant’s car was parked did not fall within a zone foreseen by the Borough for the covering ofsigns. No-parking signs on Trans-Island were only to be covered North of Côte-Sainte-Catherine Road, whereas the defendant wasparked much further South, on Trans-Island near Queen-Mary. [43] Nevertheless, there are good reasons to believe Mr.

Smajovits’ affirmation that the parking signs were covered up when heparked his car. [44] First, I find that, in his testimony, the defendant was sincerely and honestly trying to inform the Court. He lost a half day incourt to contest a 40$ ticket.

As he pointed out, he did this not for the money, but as a matter of principle. [45] It is reasonably possible that public works employees mistakenly covered parking signs on Trans-Island below Côte-Sainte- Catherine on September 23rd, 2014, and then removed them without notice. [46] It is also possible that these particular parking signs were covered for a reason completely unrelated to the Jewish New Year. Inthe absence of any official markings on the parking sign covers, it is impossible to know how long they will remain in place. [47] It should be remembered that the Supreme Court of Canada stated in R. v.

Lohnes, (SCC), [1992] 1 S.C.R. 167at p. 180, that one of the principles of fundamental justice is “the principle of legality, which affirms the entitlement of every person to

know in advance whether their conduct is illegal.” [ 48 ] If the Borough chooses to regulate street parking by covering and uncovering signs, it would be helpful if the Borough would make more information available to the public as to the place and duration of the covering. This might reduce the chances of having cars ticketed on streets where signs are covered and then uncovered without notice. It would be helpful if sign covers were clearly identified as being placed by the Borough and if they included information about when they are to be removed.

In the absence of clear indications, blank covers on street signs make it difficult for people to know with certainty when their car will become illegally parked. [ 49 ] I find that there is a reasonable probability that the nearby no-parking signs were covered at the time that Mr. Smajovits left his vehicle on Trans-Island on September 23 rd , 2014. I accept the defendant’s testimony as honest and truthful. He has therefore proven on a balance of probability the defences of due diligence and mistake of fact. 6.

CONCLUSION [ 50 ] Consequently, I find the defendant not guilty. ___________________________ RANDALL RICHMOND, J.M.C.M. Mtre Alex Dalp é and Mtre Louise Pelaprat, for the prosecution Mr. Daniel Smajovits, on his own behalf [This judgment was amended on May 18, 2016, to remove a word erroneously added to par. 43.]