The issue of fine levels associated with commercial motor vehicles is a matter that is raised continually
The issue of fine levels associated with commercial motor vehicles is a matter that is raised continually, more so when the charge is laid by way of an Information under Part 3 of the Provincial Offences Act rather than an offence notice that carries a set fine.
Just to refresh, the Part 3 offences are those such as “operate or drive unsafe vehicle” that carry potential fines of up to $20,000, whereas the more commonly issued roadside offence notices such as speeding and other moving violations carry set fines noted on the face of the offence notice.
A question was recently posed to me from a US-based operator, who along with his driver received inordinately high fines where convictions were registered. They involved unsafe vehicle charges. At their request, I won’t divulge the fine level nor the Court involved. While I wasn’t directly involved with this matter, I did receive information and detail about the case. Based on that, it was my view that the fines given were simply “over the top”, far beyond what could even be considered reasonable under the circumstances, not the least of which was the satisfactory status of their CVOR and their record of infractions in the province.
I suggested that they appeal both. The reply was a terse “no”, that the company and their driver were disgusted with the fines levied and would not pay another dime for anything in the province. Neither the company nor driver, it was pointed out, could care less if they ever came to Ontario again, and then proceeded to ask if there were any ramifications if they simply did not pay. After all, it was noted, the company fine would virtually wipe out their profit margin associated with Ontario business for the prior year and in the case of the driver it represented a considerable chunk of his net pay.
With respect to consequences of non-payment, I checked with a lawyer who noted that there would be no consequence so long as one of their trucks did not re-enter Ontario. They were happy with that, and will gladly pass over their limited freight traffic that they have to another carrier, wishing them luck to boot. That was the end of it. There were no winners in this scenario.
They simply felt “ripped off” as they put it, especially after my telling them that the minimum fine for this offence is $400.00 while theirs was many times this figure. And when they were told that a 20% “victim surcharge” would be added on top of the fine, there followed some colourful wording, with the comment that they considered themselves the victim of a cash-grab.
There is provision in the Provincial Offences Act for the Court to consider a number of factors in sentencing, one of which is the financial circumstances of the defendant. Specifically, the section “exceptional circumstances…. that would be unduly oppressive or otherwise not in the interest of justice”. I would note that in the case I cited above, neither the operator nor the driver utilized this section of the Act in speaking to the penalties sought by the Crown. But the caller did point out that given what he termed the “prevailing attitude” in this particular Court, he suspected that in doing so it would have likely done little in any event.
The best example perhaps where this provision of the Act is routinely used is for those persons charged with operating a motor vehicle with no insurance. The minimum fine for a conviction of this offence is $5000.00, but it is commonplace in the courts to have these fines reduced based on the financial circumstances of the defendant. And I note that while the minimum fine for operating/driving and unsafe vehicle is $400.00 the fines given on conviction are far in excess of the minimum.
As a general rule the “model” best used to get the point across is one with plenty of detail, and substantiated where possible with appropriate documents. For an individual this would include a detailed statement of all gross and net income. On the expenses side detail all monthly expenses. Expenses for example would include rent/mortgage payments, costs of dependants, food, utilities, fuel, property tax, entertainment, loan payments, etc. This should be presented in an organized fashion with a copy given to both the Crown and the Court in speaking to the penalty. For the relatively small amount of time it takes to pull together this detail, it can pay off in spades when the penalty sought is in the thousands.
In seeking relief under this section of the Provincial Offences Act, I would also suggest that it is beneficial that the defendant be in Court rather than have the reasons read out or spoken to by his or her representative. It’s much more effective when the presiding Justice can see the “whites of their eyes”, and certainly if there are questions to be posed from the Court with respect to numbers, clarification, etc.
Blair Gough is a consultant to the trucking industry and can be reached at 905-689-2727.