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<< back to all ArticlesSpecified Penalties in Municipal Bylaws: Obligation, or Mere Suggestion?
Municipal bylaws regulate various conduct and subject matter, from parking to pet ownership. Regulation is achieved through prohibitions and penalties: bylaws must identify the prohibited conduct and prescribe penalties to be imposed when the prohibition is breached. This is frequently done by way of “specified penalties” – that is, fines in fixed amounts that correspond with particular offences, usually found in a schedule at the end of the bylaw.
Specified penalties promote fairness and the rule of law by ensuring a level of consistency and predictability in the enforcement of municipal legislation. Municipal residents can look to the bylaw and know what conduct is prohibited and exactly what the penalty will be if they are convicted of violating that prohibition. Nevertheless, case law from the Alberta Court of Queen’s Bench (as it was formerly known) indicates that the fine amounts set out in specified penalties may not be binding in all circumstances.
In R v Ochotta, 2004 ABQB 552, the accused was convicted of a red light violation under the Use of Highway and Rules of the Road Regulation. Despite the Regulation setting out a specified penalty for this offence, the Commissioner imposed a lesser fine. The Crown appealed the sentence, arguing that the Commissioner was required to impose the specified penalty.
The Court rejected the Crown’s appeal, noting that the definition of “specified penalty” in the Provincial Offences Procedure Act (“POPA”) – the legislation that governs provincial offences as well as bylaw offences – does not directly state that the penalty must be imposed on conviction after a trial. POPA is clear that the specified penalty must be imposed in certain circumstances, such as:
- the defendant pleads “not guilty” but fails to appear for trial;
- the defendant pleads “guilty” via the voluntary payment option;
- the defendant does not respond to the offence notice;
However, POPA does not explicitly state that the specified penalty must be imposed when the accused pleads “not guilty”, proceeds to trial, and is convicted. The Court reasoned that this was a deliberate choice of the legislature, meant to leave open the possibility of imposing some other penalty after conviction at trial.
The reasoning in R v Ochotta was again affirmed in a subsequent Alberta Court of Queen’s Bench case, R v Kenwell, 2012 ABQB 179. That said, other case law from the Court of Queen’s Bench seems to reach the opposite conclusion. In R v Jones, 2000 ABQB 396, Justice Lee wrote:
“The case authority clearly states that where the legislature has sought to impose a statutory based specified penalty, deviating from this penalty would create unfairness of its own, and bring into issue the potential of vastly different sentences being imposed in similar circumstances between cases depending on which judge is presiding.”
This observation highlights a problematic consequence flowing from the Ochotta and Kenwell decisions, namely, the risk of undermining the predictability and consistency specified penalties provide. (Furthermore, these cases do not actually identify any source of statutory authority to issue a penalty other than the one explicitly set out in the bylaw or regulation, and it is not entirely clear where such authority might come from.) In any event, to avoid the possibility of unexpected lenience being granted to bylaw offenders, municipalities may wish to enact a general “minimum penalty” in addition to the specified penalties for each offence. While this may not fully ensure perfect consistency in applying penalties to persons convicted of bylaw offences, it is an additional measure that may be taken to impose meaningful consequences for violating municipal legislation.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
