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Ongoing Offences Continuing Bylaw Breaching Conduct
Question: Can you be charged more than once in Ontario for the same bylaw violation if the problem keeps continuing?
Answer: Yes, repeated charges can be laid when a bylaw breach is an ongoing or continuous offence rather than a one-time event, even though double jeopardy and issue estoppel can limit re-litigation of the same concluded matter. MuskokaCriminal.Law™ is an Ontario Criminal Defence Team that helps people respond to repeated bylaw charges, manage court process and fines exposure, and build a practical strategy to bring the alleged ongoing non-compliance to an end.
Can a Person Be Repeatedly Charged With a Bylaw Violation?
Continuous Bylaw Violations May Lead to Repeated Charges and Aggregate Fines.
Understanding the Inapplicability of the Res Judicata Principle to Continuous Bylaw Violations As Ongoing Offences
Typically the law will disallow a person from being prosecuted twice for the same occurrence of misconduct. The principle, commonly termed double jeopardy, prevents a person from charged for the same misconduct repeatedly. Be that as it may, even though a person is protected from repeated prosecution for the same misconduct, in certain circumstances, where the misconduct is perpetual, repeated charges may arise.
The Law
The legal principle formally known as res judicata, which is loose Latin meaning "things decided", generally applies to prevent a person from being charged repeatedly for the same offence; however, such is only applicable to the same singular offence, such as failing to stop at a red light while driving, rather than being applicable for a continuous offence as may occur with a bylaw violation. The R. v. Nolis, 2012 ONCJ 446, case tackled the issue of the res judicata principle being predominately inapplicable to ongoing bylaw violations where it was stated:
[57] In Re EnerNorth Industries Inc., 96 O.R. (3d) 1, [2009] O.J. No. 2815, 2009 ONCA 536 (O.C.A.), R. A. Blair J.A., in delivering the judgment for the court, describes the doctrine of res judicata, starting at paragraph 53:
The doctrine of res judicata is a common law doctrine that prevents the re-litigation of issues already decided. It is founded on two central policy concerns: finality (it is in the interest of the public that an end be put to litigation); and fairness (no one should be twice vexed by the same cause). The doctrine is part of the general law of estoppel and is said to have two central branches, namely, "cause of action estoppel" and "issue estoppel."
Cause of action estoppel refers to the determination of the cause or causes of action before the court. The applicable form of res judicata in this case, however, is issue estoppel. Issue estoppel prevents a litigant from re-litigating an issue that has been clearly decided by a court of competent jurisdiction in a previous proceeding between the same parties or their privies even if the new litigation involves a different cause of action.
[58] In the matter before me, the applicable form of res judicata is issue estoppel. For issue estoppel to be successfully invoked, three conditions must be met: (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their privies (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44, at para. 25, per Binnie J.).
Drawing from the Nolis case, the res judicata principle, as is also known as issue estoppel, pertains to a particular legal matter that was already resolved by the judicial system. This leads to the examination of the question regarding what was previously resolved by the courts. To simplify, when an person commits a singular violation, like driving through a red traffic light, the person could face a charge for this act only once; however, if the person repeats the violation on a subsequent day, the person could be subject to a charge for committing the violation a second time. While this seems logically to most people, confusion can arise when instead of committing an offence for the second time, a person fails to cease the first offence such as allowing excessive noise to continue after being initially charged with a noise violation. The case of Dysart (Municipality) v. Reeve, 2000 CanLII 16841, addressed a continuous bylaw violation versus an offence that occurs at a single moment in time by confirming that despite the res judicata principle, repeated charges may apply where an ongoing offence occurs. Specifically, in Dysart it was said:
[22] ... Multiple prosecutions of an accused or a defendant may well, at some point, justify a stay. See, for example, R. v. Jack (1997), 1997 CanLII 356 (SCC), 117 C.C.C. (3d) 43 (S.C.C.) and R. v. Mitchelson (1992), 1992 CanLII 4018 (MB CA), 71 C.C.C. (3d) 471 (Man. C.A.). But the context is important. These defendants were charged not with a Criminal Code offence, but with regulatory offences, with violating the municipality’s land use requirements. The offences are not alleged to have occurred at a discrete point in time but to be ongoing violations. The practical effect of a stay would be to give the defendants a legal non-conforming use by court order without the merits of their position ever having been adjudicated. Viewed in this way, it seems to me the community’s tolerance for successive prosecutions is greater than it might be in other kinds of cases. At least for now, the community’s interest in enforcing its land use requirements outweighs any unfairness in prosecuting the defendants again.
Summary Comment
A person who fails to cease a bylaw breach or otherwise allows a bylaw breach to continue in an ongoing manner may be charged repeatedly with an offence for doing so.
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