Dennis Baker and Samuel Mosonyi.
The City of Guelph is currently in the process of drafting a new public nuisance bylaw to provide bylaw and police officers “with tools to address minor, unwanted behaviour or activities on city-owned property and, in certain limited cases on private land, without laying criminal charges.”
According to the report of the city’s operations, transit and emergency services committee, Guelph has had a number of incidents and “undesirable gatherings” on both public and private land, and staff do not have sufficient tools at their disposal to protect the interests of the city.
Guelph’s proposal is part of a rash of municipal bylaws enacted across the country that seek to supplement the federal Criminal Code by establishing minor penalties (typically fines) for misconduct deemed too minimal to attract criminal prosecution.
Edmonton, for example, recently passed a bylaw that prohibited “public fighting” (which might otherwise constitute the criminal offense of “assault”) to address scuffles that have plagued the city’s nightlife.
Since municipalities are, constitutionally speaking, creations of the provinces, provinces can and have delegated some of their authority to the cities. Among these are the powers over “property and civil rights” and “local works and undertakings,” which include streets and sidewalks. For those provisions that interfere with another person’s reasonable enjoyment of city property, Guelph’s bylaw can be upheld as valid under the Constitution’s provincial property rights clause.
However, some provisions of the bylaw clearly duplicate offences already covered by the Criminal Code of Canada. Section 8 of the bylaw, for example, overlaps with existing criminal provisions when it prohibits “riotous, violent, threatening, or illegal conduct” (subsection (a)), public fighting (subsection (c)), possession of a weapon (subsection (j)) and any activity that endangers or injures another person (subsection (b)).
The criminal nature of these offences raises a number of concerns.
It is arguably unconstitutional for the provinces to legislate in the area of criminal law since the federal government possesses that power exclusively. As Justice John Sopinka of the Supreme Court of Canada noted, “the province may not invade the criminal field by attempting to stiffen, supplement or replace the criminal law … or to fill perceived defects or gaps therein.”
Lower courts have upheld similar bylaws — such as Edmonton’s — but Guelph would be legislating in an unsettled and controversial area of law.
Although proponents tout the more efficient powers the law would give to deal with issues raised by citizens, the municipal buttressing of criminal law can undermine the due process protections we normally associate with formal criminal procedure.
For example, the method of determining guilt for a municipal offence is much lower than for a criminal offence. For a provincial or municipal offence, a “civil standard” is used, meaning that it need only be proven, on the balance of probabilities, that the accused likely committed the offence; 51 per cent certainty is enough to secure a conviction. For a criminal offence, the prosecution must prove guilt beyond a reasonable doubt, a much higher evidentiary burden.
By duplicating criminal offences in bylaw form, law enforcement officers will be given a choice to proceed with either a criminal charge or a bylaw infraction, even though the behaviour in question might be identical. Thus, for the same offence, some citizens may be charged criminally with assault, while others may receive tickets for public fighting. Such discretionary authority will require careful observation to ensure it does not result in abuse and unfairness.
While we should trust the police to use this discretion wisely, we might also be troubled by the notion that an officer who is short on evidence can nevertheless impose a fine as consolation.
These concerns might be answered — at least in part — by reference to the fines themselves. After all, criminal law penalties include the stiffest of them all — imprisonment — whereas this bylaw merely imposes fines.
The draft dylaw, however, sets the maximum penalty for a first conviction at a whopping $10,000; for subsequent convictions, the maximum is $25,000.
While the city’s overview document states that the typical ticket amount would “probably be relatively low,” there is nothing specific in the bylaw to ensure such limits on enforcement. There are some, perhaps, who might prefer the criminal law outcomes — which might include diversion, community service or perhaps even a lesser fine — to the $10,000 penalty possible under Guelph’s proposed bylaw.
The possibility of a tougher sentence for a conviction based on less evidence and with less procedural protection is reason enough for the City of Guelph to rethink the details of its bylaw proposal.