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Ongoing Offences Continuing Bylaw Breaching Conduct
Question: Can you be charged more than once for the same ongoing bylaw violation in Ontario?
Answer: Yes, if the bylaw offence is continuous, you can face repeat charges and fines for each day or period the violation continues rather than for a single past incident. Byfield Legal Services provides Ontario paralegal services to help you respond to repeat bylaw charges, seek resolution with the municipality, and reduce the risk of escalating penalties.
Can a Person Be Repeatedly Accused of a Bylaw Violation?
Bylaw Violations May Involve Prolonged Conduct. In Situations Where a Prolonged Bylaw Breach Occurs, Repeated Charges May Result.
Understanding the Inapplicability of the Res Judicata Principle to Continuous Bylaw Violations As Ongoing Offences
Generally, the law forbids a person from being charged twice for the same offence. The concept, informally known as double jeopardy, prevents a person from being accused of, and needing to defend against, the same offence more than once. However, although a person is protected against being charged twice for the same criminal offence or same provincial offence, in some circumstances, the offence is continuous and may result in repeated charges.
The Law
The legal doctrine of res judicata, roughly translating to "things decided" in Latin, functions to prevent the recurrence of charges against an individual for a single infraction; but, the application of the res judicata doctrine is limited to a sole specific infraction like disregarding a red traffic signal while driving rather than encompassing an ongoing offence that could arise with a bylaw violation. The R. v. Nolis, 2012 ONCJ 446, case shed light on the question of the whether the res judicata doctrine applies to ongoing bylaw offenses by stating:
[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. Despite the apparent logic, confusion can emerge when, instead of committing an offence anew, a person fails to cease the initial offence. An example would be allowing excessive noise to persist after facing an initial charge for a noise violation. The Dysart (Municipality) v. Reeve, 2000 CanLII 16841, case delved into the distinction between an ongoing bylaw violation and an offence taking place at a single moment in time, affirming that despite the res judicata doctrine, repeated charges could be applicable if an ongoing offence is occurring whereas 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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