Casual Legal: Specified penalties – requirement or suggestion?

By Taylor Thiesen
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

In many municipal bylaws, penalties for violation of the bylaw are set out as “specified penalties” – fixed fines corresponding with specific offences.

Specified penalties promote fairness, consistency and predictability. Residents can read the bylaw and know exactly what the consequences are for a given offence.

However, a 2004 case from the Alberta Court of Queen’s Bench (R v Ochotta) introduces some uncertainty in bylaw prosecutions. In this case, the accused was convicted of a red light violation under provincial highway regulations. Despite the regulations 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 issue the specified penalty.

The court rejected the Crown’s appeal, noting that the definition of “specified penalty” in the Provincial Offences Procedure Act (“POPA”) – which applies to both provincial and municipal offences – does not directly state that the penalty must be imposed when the accused pleads “not guilty” and is convicted after holding a trial.

This contrasts with other situations where POPA does state that the specified penalty must be imposed, when the accused:

• Pleads “not guilty” but fails to appear for trial
• Pleads “guilty” via the voluntary payment option
• Does not respond to the offence notice.

While the Ochotta case cannot be ignored, other case law from the same court has seemingly reached a different conclusion. “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 highlights a problematic consequence of the reasoning in Ochotta: if a Commissioner can choose to disregard specified penalties in a bylaw, it may undermine the predictability and consistency specified penalties are meant to provide. (Also, it is not clear what statutory authority exists to impose a penalty other than the one set out in the bylaw or regulation.)

To avoid the possibility of unexpected lenience being granted to bylaw offenders, municipalities may wish to consider enacting a general “minimum penalty”, in addition to the specified penalties set out in the schedule. While the hope is that Commissioners will simply apply the specified penalty as intended, a minimum penalty creates a second line of defence to ensure that the offender will not escape consequences entirely.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.