A few weeks ago, I had the “happiness” to go back to basics by appearing in Municipal Court to challenge a parking ticket. My offense: having indicated the letter “O” rather than the number “0” when entering my license plate number.
I must admit that while listening to the “dangerous” defendants preceding me and the varied conclusions of the judge, I realized that my fate, which seemed obvious to me at the start, was becoming less and less certain.
Accused noh 1: Mr. had displayed his – paid – parking permit in his rear-view mirror, but it was only visible from the side and not from the front window. Nothing in the rules indicated where his sticker should be visible. Guilty.
Accused noh 2 and noh 3: In both cases, the ladies had paid for a parking permit. They had parked in a space where it was indicated “Limocar”. According to the judge, Limocar did not invest enough in its posters to indicate “no parking”. Not guilty.
Accused noh 4: Mr. had lent his car to his spouse. The latter, a student, had purchased a parking sticker from the university. Madame is new to Canada. She believes that the number to enter to obtain this sticker is the number that appears on her registration certificate, which in fact corresponds to her plate number, but followed by an additional letter. The University nevertheless issues him a parking permit. Guilty (of gross negligence, according to the prosecutor present).
My turn came, I told the judge that nothing allowed me to know that the letter “O” was prohibited and, on reading my plate, nothing suggested that it was not an “O”. “.
The judge pointed out to me that it was not up to him to tell the SAAQ that it had to better inform citizens and make its license plates less prone to confusion (but, on the other hand, Limocar had to review its posters…). Verdict: guilty.
The error is human
In 2018, the Quebec Court of Appeal, in Ville de Saint-Jérôme v. Sauvé, marked a significant shift in the way parking violations were handled, recognizing that to err is human and that the defense of due diligence or mistake of fact must be admissible.
This decision raised eyebrows for some who saw a significant potential for clogging up the courts (compared to a conviction without the possibility of raising the defense of due diligence). In its judgment, however, the Quebec Court of Appeal rejected the argument of administrative efficiency. Quoting author Don Stuart, the Court noted that “fear that the defense of due diligence will bog down the courts betrays a lack of confidence in the common sense of triers of fact”.
My $150 “investment” allowed me to see that, unfortunately, this means of defence, although it is a step in the right direction, nevertheless contributes not only to the backlog of the courts in Quebec, but also maintaining social inequities.
I can afford to pay this amount. Also, as a law professor, that afternoon gave me the opportunity to engage in experiential research on our judicial system. So I didn’t waste my time, even though I would have preferred not to have to pay for my “training session”.
The immigrant student, convicted of gross neglect, contacted me. The sum of $150 represents for her three days of part-time work. A job necessary to pay for his studies.
The three other defendants, all people on the labor market, were obliged to take time off to defend their case.
None of the defendants had the training to support their defense with the relevant case law and doctrine. I hadn’t even prepared myself for this hearing and I realized how vulnerable people are when they appear in court without a lawyer.
Admittedly, the law is an essential tool for maintaining social order (for example, we do not want everyone to park just anywhere). But beyond that, the law and its interpretation must fit into a societal context where it is expected that they promote what appears to be fair for the community in a contemporary context.
Moreover, the Quebec Court of Appeal in its judgment indicates that “it is repugnant […] both to the fundamental principles of criminal law and to those of constitutional law, to punish the morally innocent”.
It is important not to forget these teachings.
The due diligence defense now permitted for parking violations is a societal advance. Greater consistency in the courts’ assessment of due diligence, which takes these teachings into account, would, on the other hand, be welcome.
In order to limit the congestion of the courts, it would also be wise not to summon before the court the citizens who produce in writing proof of payment and an acceptable defence.
We also seem to have forgotten that the “Teams” tool now exists. Already, the use of this technology would avoid the loss of precious working days for citizens. A policeman is also present in the room, sitting in his chair in silence, all afternoon. The latter could be released, so that his services can be better used. Finally, in the room, computers and cell phones cannot be used. It is therefore impossible to advance for those who can work remotely. I would dare to say that I have experienced a destabilizing setback.
I come out of this experience wondering about our training in law. More and more, it seems important to me that the courses in sociology of law, history of law and foundations of law (understanding and thinking about law), so little valued by our students in search of positive law (this what does the law say… ChatGPT does a pretty good job in this regard), occupy a prominent place so that future lawyers and judges become real agents of change.