So your on the train and you were for some reason unable to pay the fare (debit machine failed, you only have bills and the machines don't accept them etc.) I AM NOT ENDORSING THE BEHAVIOR OF FARE DODGING SO PLEASE DO NOT MISREPRESENT THIS INFORMATION. Suddenly you board the train since you are in a hurry to get to your destination and shortly after Transit Peace Officers board the train and ask you to produce ticket, pass or transfers.
You are unable to produce the requested item because of any of the above circumstances and the officer asks you to produce identification and a name so they can issue a violation ticket for City of Calgary Bylaw 4M81 are they entitled to do so? Currently...NO because this bylaw is in breach of the basic human rights under the Charter of Rights and Freedoms in Canada, here's the sections in question and the reason why they pose a breach of the charter:
8.
No person shall board, ride upon or otherwise use a
light rail transit vehicle of the City unless he has on his person at such time
a valid ticket, transfer, permit or pass. (B/L 62M81, 1981 December 15)
9.
Any person who is found:
.
(a) Boarding or using a light rail transit
vehicle of the City; or
.
(b) Entering or within a Restricted Fare
Area;
10.
and who fails to produce to a Peace Officer upon
demand a valid ticket, transfer, permit or pass is guilty of an offence.
Now in a natural situation you would be compelled to comply with their request for identification to issue you a ticket. Do you have the right to refuse this?
YES...you have been found by a Peace Officer committing a said offence (part 10 of the above) which states "who fails to produce to a Peace Officer upon
demand a valid ticket, transfer, permit or pass is guilty of an offence. " But now let's compare this with the Charter of Rights (The supreme law that cannot be superseded by any other particularly a municipal bylaw)
11.
Any person charged with an offence has the right
(d) to be presumed innocent until proven
guilty according to law in a fair and public hearing by an independent
and impartial tribunal;
Let's examine this: How can a municipal bylaw legislate that a person is found guilty of an offence solely upon the suggestion of their peace officers who would not be impartial (BIASED) and how can you be found guilty if you have not had a fair and public hearing (court date and a decision by a judge who is impartial). The Charter in this case wins, as the bylaw does not comply with section 11 (D) of the Charter.
This is how it should have been written..." One who fails to produce to a Peace Officer upon demand a Valid ticket, transfer, permit or pass is presumed to be guilty of an offence and may be subject to penalty under this bylaw if found guilty of such an offence."
By wording this way, the assumption of guilt is negated and you are now innocent until proven guilty.
Also you advised the peace officer that you were unable to pay the fare because of the debit failure or the lack of bill acceptors you have demonstrated INTENT TO COMPLY with the bylaw in question. A person who shows INTENT TO COMPLY with a prescribed law is NOT GUILTY.
Let's analyze another section of the same bylaw and compare it to a completely different section of the Charter of Rights as this will emphasize my point about this bylaw.
14. (1)
No person shall, in or upon any transit vehicle, passenger shelter, transit
station, 7th Avenue transit corridor, or any other property owned or occupied
by The City for the purposes of Calgary Transit:
(c) use profane, insulting or obscene language;
(c) use profane, insulting or obscene language;
Please understand that I do endorse that as a courtesy to others I would myself not condone this type of language but because this bylaw prescribes a monetary fine of $100 for an offence of this nature it again does not adhere to the Charter which states:
2.
Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Let's face it...curse words and profane language are defined whether we like it or not as part of the english language which is used as a form of EXPRESSION so...to write a bylaw that prohibits one from using such language and to issue a violation ticket for use of this language is...UNCONSTITUTIONAL.
Unfortunately due to profane language being a part of the English language there is no possible way for the City Of Calgary to even amend this bylaw without breaching this section of the constitution and would be obligated to remove it from existence within the bylaw completely.
I hope that this has enlightened you I know it has for me. Email us if you would like to petition the City of Calgary to amend this bylaw. The full PDF Version can be found here
The PDF will download automatically when you click the link.
The PDF will download automatically when you click the link.
"1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set
ReplyDeleteout in it SUBJECT ONLY TO SUCH REASONABLE LIMITS PRESCRIBED BY LAW as can be demonstrably
justified in a free and democratic society" (from http://laws.justice.gc.ca/eng/charter/CHART_E.PDF, Emphasis Added). The obscenity bylaw certainly falls under this clause... and the first mentioned bylaw may as well. Really, considering how many people likely claim that equipment is not working when it really is (I work in customer service, and people try this sort of stuff all the time to save a few bucks), and that issues with the equipment are often due in part to poor debit/credit card magnetic strips (again, I see this often where a particular card will not work with a particular machine, and sometimes it is hit or miss as to whether it will work) I cannot imagine that there is an effective way to ascertain who is trying to scam the system, and who genuinely intends to pay. If it is not already this way, I imagine that such an amendment as you have suggested would result in a traffic ticket like system, in which you receive a ticket (for which you would have to produce ID, lest it be unenforceable) that you can go to court to challenge. If I am interpreting the charter correctly, since the maximum penalty is well under 5 years, one challenging such a ticket would not have the option of having a jury. Anyway, that is my 10 cents on the matter.
On the topic of the Charter of Rights and Freedoms, have a listen to CBC's podcast from last summer: Know Your Rights (KYR). An excellent and informative podcast.
And once again between the facebook post and this blog the point at hand has been severely overlooked. My intended purpose and the prescribed legal reason that makes this unconstitutional (LORD FORBID ANY IDIOT SHOULD READ THE ENTIRE DAMN POST BEFORE COMMENTING) is that the way the bylaw is worded is questionable and merits a review of it's legality in correlation to the charter.
ReplyDeleteOne cannot presumably be found or named as "Guilty of an offence" If they are not given a fair trial to have the evidence heard prior to determining one's guilt. The law itself is quite okay there is nothing unconstitutional about expecting a person to pay a fare: However...the wording of the law "Where one who fails to_______IS GUILTY OF AN OFFENCE" becomes a direct breach of S. 7 where one is presumably given the right under Section 11 (D) "(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal" For the law to be worded where one's guilt is unquestionably presumed it not in correlation to the rights prescribed under this section of the charter.
As suggested in the article (should one or any other who comment choose to read it in it's entrirety) would note that a simple amendment of the bylaw to reword "guilty of an offence" to read
" One who fails to produce to a Peace Officer upon demand a Valid ticket, transfer, permit or pass is presumed to be guilty of an offence and may be subject to penalty under this bylaw if found guilty of such an offence."
Therefore negating any contradiction of one's right to be presumed innocent until proven guilty...
But thanks for the input I welcome comments but prefer that one might read the full article before making the assumption that they can comment based on a half asked effort to fully comprehend the facts presented.
Yes, I did read the whole article before replying. Again, I feel that Section 1 applies to your perceived breech of section 7. If you are caught speeding by an officer of the law with the equipment that can substantiate that(ie, radar gun), you are considered guilty of the offense on the spot. There does not need to be a tribunal. This is a reasonable limit on section 7 as prescribed by law. I would argue that the same is true of the Calgary Bylaw in question - it falls under the reasonable limits prescribed by law as prescribed by section 1 - because we cannot reasonably set up a tribunal for every little infraction of every little law.
ReplyDeleteI know this is old as hell, but I had to let you know you are misinterpreting the Charter and have ignored important statements made in the Criminal Code.
ReplyDeleteYour primary argument is completely invalid, whereby you mention that statements such as: "Where one who fails to_______IS GUILTY OF AN OFFENCE" is a breach of the Charter. Well, have you ever opened the Criminal Code of Canada? Just about every single offense in there states, "Anyone who _____ is guilty of an offense punishable on summary conviction" or indictable, etc. The Criminal Code says this ALL THE TIME. It is NOT a breach of the Charter.
Example:
266. Every one who commits an assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
What you are not understanding is that this does not mean you are found guilty of the offense from the moment the officer arrests you. You are found guilty of the offense once you please guilty to a court of suitable jurisdiction, OR you have your precious tribunal.
The only reason you are being arrested is because the officer has witnessed a crime and BELIEVES you are guilty of an offense, and is preventing you from escaping, preventing loss of evidence, protecting the public, etc. He/she is NOT arresting you because you are without a doubt GUILTY of the offense. That is ONLY for YOU to admit, OR for the COURT OF LAW to determine. You are being arrested and charged with a crime. You are not being found guilty of said crime until legal proceedings have taken place.
This is what these municipal bylaws and CRIMINAL CODE OF CANADA and every provincial statute are attempting to convey to the general public. "If you commit this crime, YOU ARE GUILTY OF AN OFFENSE......" That means, once a court has determined that you did in fact commit the offense, then you are absolutely GUILTY.
At the end of the day, you're still going to be ticketed. You're still going to be arrested. You're still going to be charged. And, if any poor sap out there uses your flawed logic in this article, they are going to lose when they go to court.
If the Criminal Code doesn't have to say, "Presumed to be guilty...." then neither does a provincial statute or a municipal bylaw.
Buy a transit pass. If you fail to do so and you get caught, pay the fine, or pay the price.
PS. Sorry if this sounds confrontational or argumentative. That is not my intent - just very very passionate about this subject. Again, I know this is old, that's why I say this.. just had to comment for any future passers-by. Please feel free to reply and comment, which I am sure you will if you are still around, and I would be happy to discuss any points I may have been mistaken on!
Cheers!