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Lawyers not fond of Courtenay push to bypass judges for bylaw disputes

City looking to send such disputes to expedited adjudication system used by many local governments
A police officer and a man stand on 6th Street. The City of Courtenay may adopt a new bylaw ticket system as council approved investment on Feb. 14. (Connor McDowell/Comox Valley Record)

It may become easier to dispute minor tickets in Courtenay, but there are varying opinions as to the merit of the proposed program.

Courtenay council voted to invest in a new bylaw system, called the Bylaw Dispute Adjudication System. It would take select tickets away from judges and send them to be disputed in non-judicial hearings. This would apply to some tickets under $500.

City manager Geoff Garbutt told the Record council asked for the switch as early as 2021. It would save the city money as lawyers would no longer be needed in disputes. Also, tickets would be settled faster leading to more efficient bylaw enforcement in Courtenay.

Lawyer and former mayor of Comox Paul Ives said the system is fair.

“I think it’s an appropriate mechanism for bylaw enforcement,” said Ives. “It’s important to let municipalities deal with stuff on their own unless they show bad faith or make a big mistake.”

Vancouver criminal lawyer Sarah Leamon sees some red flags with the program.

“I’m very skeptical any time the government takes matters of dispute outside of the courts,” she said. “There are, I think, real concerns about where these things will go.”

The program the city is pursuing allows it to informally prosecute tickets. This would take place outside of court, in an administrative hearing.

People who dispute a ticket in the new system would no longer go in front of a judge. Instead, they would be heard by an “adjudicator” appointed by the Province of B.C.

The system would change the way Courtenay enforces some bylaws.

For affected offences, people who do not respond to a ticket within a time period (to be determined, but at least 14 days) would be considered to have pleaded guilty. The city would no longer have to establish proof beyond a reasonable doubt to win a dispute, and tickets could be mailed to citizens or left on their windshields rather than needing to be served in person.

Retired criminal and constitutional lawyer Anthony Managh told the Record the changes Courtenay is proposing to streamline bylaw enforcement are inappropriate.

“The judicial process is not about saving the local municipality money,” said Managh. “Your rights to a full and fair hearing with all of the protections of the law are not designed to save the city money.”

In the new system, the rules for a hearing would change. The only thing that could be admissible as a defence for a citizen are arguments that they didn’t do what the city is accusing them of.

Adjudicators are not judges. So with them as the presiding authority, the hearing could not tread into legal matters. All that would be up for debate is whether or not the bylaw offence occurred as alleged.

“It limits … your available defences,” said Managh. “If you’re in front of a provincial court judge, you can … challenge the legislation as opposed to defending yourself against what they’re saying.”

Challenging the bylaw would not be possible inside the non-judicial hearings. However, the city could accept some defences ahead of time.

The City of Courtenay would have “screening officers.” These staff members would listen to a citizen’s concerns and maintain the power to erase the ticket. This phase would happen before a hearing.

Corporate services director Kate O’Connell provided an example of how this might look. In the case where a person was unable to refill a parking meter at the hospital because of an appointment, a screening officer could take this into consideration and cancel the ticket.

“So there are definitely life circumstances that can be considered in the screening process,” said O’Connell. She saw this while working in other cities that used the program.

Managh criticized the idea.

“If (the ticket) is going to another person at the city, what independence does that person have?,” said Managh. “They work for the prosecution. They work for the same outfit that’s doing the prosecuting.

“What they’re doing is lowering their responsibilities to prosecute the public,” he said. “They’re trying to get rid of the courts. They’re trying to get rid of people who can tell them, ‘No, you can’t do that,’ or, ‘This case isn’t made out,’ or, ‘You haven’t followed the proper procedures.’”

After their hearing, citizens would be able escalate their dispute to the Supreme Court if they believe they were wronged in a significant way. Managh called the proposed system that would replace provincial courts “rinky dink.”

In an interview with the Record, spokesperson for the office of the Attorney General of British Columbia Matthew Jackson rebutted the idea that adjudicators are inappropriate.

“I don’t agree with that characterization of ‘rinky dink’,” he said. “The general intent is that these are simple matters that can be dealt with in a half hour or less. By the adjudicators that we have assessed as competent to do so.”

Jackson works as a director involved with hiring, training and assigning adjudicators to oversee disputes in B.C. When it comes to adjudicators, he said the strong majority are lawyers — roughly 80 per cent. Only the best candidates are selected, and they fulfill a list of requirements.

“It’s a rigorous process … I think there should be public confidence that the adjudicators that are selected are highly qualified to do these types of hearings.”

Adjudicators must have at least a year of experience. They also must show proof of training in adjudication above the high-school level, and complete ongoing training as required. Jackson said many have decades of legal experience.

Garbutt had a similar outlook.

“There is no difference in due process,” said Garbutt. “People have procedural fairness and the hearings are adjudicated. We provide information. People provide information. The adjudicator asks questions. In no way is there any change in due process.

“Some of the things that are happening in Courtenay that the community wants reasonably addressed, you have to figure out ways to do it efficiently,” he said. “The process can take a long time for people who make complaints. And we find that to have been the case.”

Garbutt mentioned parking, property and noise issues.

Courtenay would be joining the Town of Comox and the Comox Valley Regional District in using the new dispute system. Comox bylaw enforcement officer Tim Hautzinger described how burden of proof changed for an affected dog bylaw in Comox.

RELATED: CVRD uses new system

“Before I’d have to see your dog leave waste, and I’d have to see that you never made any attempt to clean up,” said Hautzinger. “Now, if I just approach somebody and there’s a fresh pile of waste on the ground, I can assume their dog did it and issue them a ticket.”

Hautzinger was not saying officers do this, but provided the example to illustrate how the conditions changed for the city to win a new dispute. On the flip side he said it would be easier for citizens to file a dispute.

“They don’t have to appear. They can phone it in. They can email it in. Whatever they are comfortable with,” said Hautzinger. “It’s cost-effective to them because they don’t have to drive to a courthouse in Nanaimo (for example). They don’t have to take a day off work. There’s money saved in all areas of the process.

“It’s very cost-effective to the municipality. It’s cost-effective to the alleged offender. It’s also cost-effective to the province. It doesn’t tie the courts up. It’s cost-effective to everybody involved.”

In Ives’s opinion, the system is a fair evolution for minor tickets in Courtenay. He emphasized that the current system is faulty — it might cost thousands of dollars for the city to prosecute a $500 ticket.

It’s also time-consuming.

“You go there (to court)… And then they say, ‘OK, well, the criminal stuff we’re dealing with first. Then the family stuff. And then we’ll deal with your stuff if we have time at the end of the day.”

This can happen after waiting months — and hearings might be rescheduled to another day. Ives believes the new system fulfils the need to speed up the process, but still ensure people get a hearing.

Like Jackson, he pointed out that it would only apply for minor tickets.

Leamon sees it differently.

“There are built-in safeguards and I don’t think we should be doing away with them,” said Leamon. Of course, our law is something that needs to adapt and evolve. But we have to ensure that there’s not an erosion on individual rights and liberties.”

Managh agreed.

“Just because they can’t get into court to have a go at you, because they’ve got to go through some hoops, doesn’t mean you get rid of the hoops,” said Managh. “At the end of the day, who is it that suffers from this thing going sideways?”

Managh added that even while the system would exclusively deal with minor tickets, it has big implications.

If citizens don’t pay the ticket for whatever reason — perhaps they never learn it was mailed to the wrong address — the ticket could impact their credit rating. And so people’s access to services like mortgages could be stymied by tickets they either didn’t know about or were ordered to pay in non-judicial hearings.

“We need to be skeptical when we see governments eroding these things because we need to ask, what is next?,” said Leamon.

A source within bylaw enforcement in Comox Valley told the Record they believe the province will be looking at expanding the bylaw system above a limit of $500 tickets. If this happened, the non-judicial system would be an option for cities to informally prosecute larger offences across B.C.

A spokesperson at the attorney general’s office told the Record 65 per cent of local governments in B.C. have onboarded to use the new system. It has been available since 2005.

To date, Comox has placed more than 200 offences under the new program. Offences include failure to mow grass, contamination inside one’s garbage or recycling or organics carts, failure to provide access to garbage carts, tag not attached to dog’s collar, beach or campground fire not supervised by a competent person, and failure to remove or dispose of dog excrement.

Courtenay council will decide at a later date a list of bylaw offences to include in the new system.

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