May 2018
PFD | Municipal

Paying at the wrong parking meter: New grounds for defence

By Stéphanie Provost Lawyer

Imagine parking your vehicle at a meter. The snow on the ground and an entrance to a parking lot hide the parking lines from view. You pay the fee for what you believe is your parking space and go about your day.

You return to your vehicle with eight minutes left on the meter. To your surprise, there is a ticket under the wiper for parking a vehicle at an expired meter. You realize you paid the wrong meter.

Following an appeal against a municipal court judgement and the reversal of a legal trend that had endured for nearly 30 years that was confirmed by the Court of Appeal in Ville de Saint-Jérôme v. Sauvé and DPCP (2018 QCCA 234), you can now invoke a mistake of fact and be acquitted.

Indeed, bylaw 0280-000 on traffic and parking in the city of Saint-Jérôme (Règlement numéro 0280-000 concernant la circulation et le stationnement de la Ville de Saint-Jérôme) stipulates that it is prohibited to park a road vehicle in a parking space bound by painted lines without paying the meter for the duration of the parking time.

The Court of Appeal was mandated to decide whether the infraction was a strict or absolute liability offence in order to determine whether Ms. Sauvé's defence of mistake of fact was admissible.

Prior to 1978, there were two types of liability in criminal matters: mens rea and absolute liability. A Mens rea infraction requires evidence that the act was committed by the defendant and that the defendant was in a particular state of mind when committing it: intent, knowledge or recklessness. This type of infraction is chiefly found in the Criminal Code (e.g. an individual who causes the death of a human being and intended to do so, s. 229 of the Criminal Code).

An absolute liability offence (e.g. driving a road vehicle at an excessively high speed, s. 328 of the Highway Safety Code) does not require evidence that the defendant intended to commit the offence but rather the demonstration that the offence was committed by the defendant and that the defences of due diligence or mistake of fact cannot be invoked.

In 1978, in response to longstanding criticism, the Supreme Court of Canada revised the liability scheme in R. v. Sault Ste-Marie ([1978] 2 SCR 1299), creating a third type of offence - strict liability - to support the defences of due diligence and mistake of fact. This type of offence largely covers regulatory offences.

A strict liability offence requires evidence that the offence was committed without having to prove that the defendant was in a particular state of mind. However, the defendant may demonstrate that he/she had taken all necessary precautions to avoid committing the offence or that there were reasonable grounds to believe that he/she did not believe an offence was committed.

In Sault Ste-Marie, the Supreme Court explained that a strict liability offence arises when the terms used to describe the infraction do not clearly indicate an absolute liability offence or expressly require proof of mens rea (e.g. intentionally, knowingly or willfully).  

However, the text must not necessarily clearly indicate that it creates an absolute liability infraction. This indication may also stem from the overall regulatory pattern, the subject matter of the legislation or the importance of the penalty, since these factors are considered together and not in isolation (Ville de Saint-Jérôme v. Sauvé and DPCP, s. 60).

The Court of Appeal was of the opinion that the terms used in the city's bylaw (in French: "doit", "il est défendu", "nul ne peut" and "quiconque contrevient") do not point to absolute responsibility. In addition, the bylaw does not explicitly exclude a particular defence, suggesting that the city had not sought to limit the defences of due diligence or mistake of fact.

The lawyers for Ville de Saint-Jérôme and the DPCP invoked arguments including administrative efficiency: that these defences would make it very difficult to apply the regulations and that the courts would be submerged with objections.

The Court of Appeal did not accept this argument, stating that it is the responsibility of the defendant to demonstrate due diligence or error and that it was unlikely that there would be a deluge of disputes. Finally, the fact that the penalty is so minimal also leads to the conclusion that the infraction is an absolute responsibility offence. The Court affirmed that is the duty of the justice system to protect the rights of citizens, not advocate for administrative efficiency.

For these reasons, the defendant was acquitted, though the time limit to file an appeal with the Supreme Court of Canada was not yet expired at the time of writing. Even so, it is important to note that the application of the ruling will depend on the bylaws in each municipality. Indeed, a number of cities may seek to amend their bylaws to create absolute liability parking infractions. It will then be left to determine whether they will stand or not.