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Ongoing Offences Continuing Bylaw Breaching Conduct
Question: Can someone face multiple charges for a continuous bylaw violation?
Answer: Yes, continuous bylaw violations can lead to repeated charges and aggregate fines, as the principle of res judicata typically does not apply to ongoing offences. This means that if an individual fails to address a continued infraction, such as excessive noise or unauthorized land use, they may face multiple prosecutions over time. For effective legal guidance in such matters, consider reaching out to Marketing.Legal, serving various regions like Courtice, Vaughan, and Windsor.
Can a Person Be Charged With a Bylaw Offence Over and Over Again?
Prolonged Bylaw Violations May Result In Repetitive Charges.
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 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. In the case of R. v. Nolis, 2012 ONCJ 446, the inapplicability of the res judicata doctrine to ongoing bylaw offences was addressed whereas it was said:
[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
In cases where a person fails to cease an ongoing bylaw breach or enables perpetuation of the bylaw breach, the person may be subjected to repeated charges for the violation.