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Thursday, December 16, 2004

A day in court 

Thursday was a funny day. At the risk of stealing Rebecca's thunder, it ranged from the ridiculous to the sublime.

We got a late start to the day, and accompanied our hosts Sandy and Eddie to traffic court, where they sought to fight Ottawa's arcane and mutable "interfering with snow removal" parking bylaw.

I have worked my way through the pettier ends of the court system many times, fighting moving violations, parking violations, and in one memorable case, suing a towing company in small-claims court (we settled out of court with terms highly in my favour). As such, I gave Sandy and Eddie considerable unsolicited advice regarding their ticket, of greater or lesser utility, but which probably went far in increasing their anxiety. After all, I was suggesting a Charter of Rights defence on a parking ticket.

No, really. I don't know what Ontario precedents are like, but in BC the precedents suggest any traffic ticket older than 18 months will usually be tossed, if you assert your right to a speedy trial has been violated (I got this down to such a science the last time I fought a photo-radar ticket that I didn't even have to show up at court; a call to the crown prosecutor took care of things).

In Sandy and Eddie's case, they were towed to a nearby street in March, 2003, after their car was deemed to be in the way of a snow-clearing operation. Normally, they post little plastic signs in the snow when they are about to do this, but there were none. The bylaw is somewhat vague on what exactly is required of the city, notification-wise, in these cases. Eddie probably gave up more money by taking the time off from work than he stood to recoup by fighting a $65 parking ticket, but there was a principle at stake, and I think they both wanted some sort of clarification in front of the courts as to what the expectations were of them.

So, I looked over the law and prepared a rather impromptu point-form defense of their case, starting with the Charter defence and ending with an outline of how they hadn't violated the snow-clearance bylaw. For her part, Sandy was nervous, and both Sandy and Eddie agreed they didn't really want to fight the case on Charter grounds, because they really were here to find out how to obey the law. That said, my legal advice was probably worth what it cost.

In case you have any doubt, never go to the court seeking vindication. The best any court can do, on its best day, is justice, and courts don't always have good days. The court docket we saw was filled with defendants deserving and otherwise, and the presiding justice was fair and consistent, and took several opportunities to create teachable moments using the shabby material of many defendants. It was a delightfully educational process, occasionally entertaining, and yet vindication was rare.

If you are going to court, it should be to beat the charge, or to get the penalty reduced. If the former, it's okay to be guilty, but it helps a lot if you aren't. In the latter case, keep in mind that in some crimes judicial discretion has been legislated away, as it was with photo-radar fines (and presumably red-light camera fines) in B.C.

I think few defendants on this day felt vindicated, a few felt burned, one was in the wrong venue, Sandy and Eddie definitely didn't get vindication, and I'll let you decide whether they got justice.

These court sessions are always cleared in order of quickest to slowest, so first was the brief matter of removing cases where the defendant had already paid or settled with the prosecution. Then came the long line of people pleading "guilty with an explanation," by far the majority of cases on the day. In such a case, the defendant waives his or her right to a trial, admits guilt, and gets to work up their best excuse for their transgression in front of the judge. The dispensation of these cases was quite interesting. In a few cases, the circumstance were so extenuating that the judge discharged the defendants. One of these was a gentleman with a cane and a disabled parking permit who had parked in a place that wasn't quite legal for him (some special privileges in certain No Parking zones are apparently extended to disabled permit vehicles), but there was some confusion about whether this had been legal, and he made an honest case for his confusion.

Most cases got a reduction in the fine. The judge was most hard on those parked in designated handicapped spots, except for one elderly lady who got her fine reduced by 50%, based on her semi-reasonable excuse and maybe because she had mobility issues that suggested she was nearly able to get a disabled permit herself. No pity was extended to the woman who used such a spot because she had to pee, or the woman who parked in one of these spots because she had some issue with her child (a diaper emergency, I think). The fine in Ottawa is $300 for handicapped spot violations, vastly more than any other parking crime. When in doubt, park in a No Parking zone instead. It's a lot cheaper.

Some of the defendants were just stupid. A student came up fighting two tickets issued for the same illegal parking job over the course of a few hours, and admitted that in parking there he had "gambled and lost." Never admit that to a judge, even if it's true. Result was half off of the second ticket, but only because he was a full-time student (it's common for people of reduced means to get fine reductions, and students are a favourite for this). Another, having heard the judge discourse earlier on the "mob mentality" (if other cars are parked illegally, maybe I can park there too), brought this up thinking it was a defense. The judge eventually convinced him to come up with a better excuse, and he got a reduction of his fine.

The strangest, most entertaining case was an older Chinese guy who, as his explanation, read a long and discursive statement describing how the no-stopping zone he had parked in was much larger than it needed to be, was probably a cash cow for the city, and described bylaw enforcement officers as "nitwits." The statement went on for some time, and was a bit repetitive, but no less amusing for the sheer force of it.

The judge, I think gaining some entertainment (and trying visibly not to laugh) let the man say his peace, and then pointed out that technically, the court did not generally permit prepared statements to be read out. I believe he indulged this one as a moment of levity, for the educational value, and because he hoped it would give the man a sense of vindication. Then he pointed out that the entirety of the statement gave no excuse that mitigated the offense, and that the man's complaints were properly directed at city council (to which the defendant replied that that would be "too much trouble." But it might work! Unlike what he actually did...). No reduction in fine, and a not-very-expensive lesson in civics dispensed as well.

But a smaller version of this disease seemed present in other people in the courtroom, Sandy and Eddie included: the sense that they were there so that the court could make right whatever injustice existed in the law. The court can't. Except in the very exceptional cases of a law that violates the Charter, the court isn't going to change the law. The misunderstanding of where the creation of the law ends and the administration of the law begins seemed to be a cause of a certain amount of sorrow in the room. Here's the quick summary: elected officials make laws, cops enforce laws, judges administer the proper enforcement of the law.

Moving on, the strangest case was a woman who pleaded not guilty, but there was a technical issue as she hadn't requested the presence of the officer. The case itself dated to 1996, if I didn't mis-hear, and she claimed not to have owned a car then or now. That case had to be adjourned to another day.

Then came the persons wanting to have a trial, Sandy and Eddie included. First, pleas were entered, and cases where the officer was present were held over for trial (which would commence right after these pleas). But in cases where the officer wasn't present, the prosecutor simply said "no prosecution," and the defendant was free to go.

And that's what happened to Sandy, to her disappointment. That was it. No chance to speak to the charges, just a 90-minute wait to stand up, say "not guilty," and go.

We eventually convinced Sandy that this was for the best. There can be many reasons for a failure to prosecute, but the most common are that the enforcement officer had something better to do, or recognized a technical issue with the ticket which made it impossible to prosecute. So it goes, and no, you don't get a hearing. Given the facts, a just outcome, but not one with much vindication.

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