“Honey, I Shrunk the People’s Constitutional Rights!”

Rosemary Frei

Chris Weisdorf was penalized for parking improperly in December 2017 and he decided to fight the fine. But he slammed up against legal structures that give virtually unchecked power to untold numbers of administrators around the world who oversee and enforce everything from parking regulations to public-health edicts.

The parking-ticket system in Toronto, Ontario — where Weisdorf had committed his offense – had been replaced with an Administrative Penalty System (APS). The bylaw creating APS was billed as streamlining the court system. After very little public consultation and notice it was approved overwhelmingly by Toronto city council in July 2017 (there appears to no longer be a record online of the council vote).

The bylaw contains Orwellian redefinitions designed to wriggle traffic- and parking-law violations out of the category of what the Supreme Court of Canada views as criminal offenses and into the administrative category — and along with that, defendants out of the purview of the Charter of Rights and Freedoms, which is the core of the Canadian constitution.

The bylaw’s redefinitions include calling offenses ‘infractions,’ defendants ‘customers’ and parking tickets ‘parking violation notices.’ And in what Weisdorf calls “a legal oxymoron for the ages,” monetary penalties are deemed to be ‘not punitive.’

Another aspect of Toronto’s APS is that court hearings have been eliminated. In their place are Administrative Penalty Tribunal hearings. There, defendants essentially are seen as guilty unless they can prove themselves to be innocent. Moreover, tribunal officials aren’t required to have legal training. And the city staff who issue parking penalties aren’t obligated to attend hearings; as a result, it seems, none have ever shown up.

(Also, parking violation notices are issued via email or snail mail, eliminating the requirement for them to be affixed to vehicles’ windshields. That alone makes it much more difficult for the vehicles’ drivers to prove that, for example, they weren’t parked illegally at a particular place and time.)

This yields the double whammy of the waiving of defendants’ constitutional rights to fully air their side of events in hearings and to cross-examine the people who accused them of the offenses.

Aghast at all this, Weisdorf undertook a constitutional challenge of Toronto’s APS. He isn’t a lawyer (he works in the financial industry) and couldn’t find one to represent him. So he argued his case himself, first at a Superior Court in 2018.

He lost, but appealed the decision and had a virtual hearing on June 16, 2020, before the highest court in Ontario, the Court of Appeal. The three-judge panel unanimously ruled against Weisdorf on June 22, 2020, deeming Toronto’s APS and the accompanying waiving of defendants’ constitutional rights to be perfectly legal. (All the materials for the case are here. Most of Weisdorf’s documents are on the main page; click the ‘Case Law’ and ‘City’ tabs to see the rest of his and the City of Toronto’s materials.)

Kirkor Apel, a criminal, civil and family lawyer in the Toronto area who has read Weisdorf’s legal arguments, said his case is solid.

“He fought well and he argued well. It’s just that sometimes Goliath wins,” Apel said in a telephone interview with this journalist. “And the problem is it’s a slippery slope, because five years from now, or fifty years from now, the next step is going to happen and they’ll say, ‘Why don’t we waive the right to a trial [for other offenses]? Or [even waive] the right to a hearing?’”

Toronto first attempted to put the APS in place in 2015, but a group of paralegals stopped it. John Papadakis, who was a member of that group, explained in an April 2015 interview with the Toronto Star the profound changes inherent in the APS. He used as an illustrative example someone driving through an amber light but being stopped by a police officer and fined for running a red.

“Currently, you have the right to challenge the officer’s evidence, to obtain that evidence, to go before an impartial judge in a court,” the Toronto Star article quoted Papadakis as saying. “[But if the APS is implemented then y]ou are no longer innocent until proven guilty as guaranteed by the Charter of Rights and Freedoms…. You will go before a municipal employee [at a tribunal hearing], who is clearly going to be biased [because the city receives revenue from fines levied under the APS]. [And] you will make your argument not on your innocence or guilt; you will make your argument on how much penalty you will pay, because [under the APS] you are already guilty.”

But in July 2017 the city of Toronto was able to push forward with the implementation of its APS. Weisdorf challenged it and lost.

Unbeknownst to the vast majority of people, administrative penalty systems are commonplace in North America, the UK and elsewhere. So are civil-asset-forfeiture regimes. And they’re all overseen by the executive branch of power, which now has more muscle than the legislative and judicial branches.

As the coup de grace, under the cover of COVID-19 this administrative creep has reached warp speed, with the legislative and judicial branches bowing before it. And shredding billions of peoples’ constitutional and civil rights in the process.

Today, public-health officials’ edicts ranging from social distancing to self-isolation are virtually unassailable, no matter the economy- and life-crushing consequences. And let’s not forget the vast numbers of contact tracers and quarantine-enforcers, another cadre of administrators who appear legally untouchable.

Just one example of their new power is the legal challenge by a San Diego church of California governor Gavin Newsom’s order temporarily stopping in-person church services. The US Supreme Court’s chilling six-page decision in this case, which hinged on asymptomatic transmission, is a must-read.

Weisdorf observed in an interview with the author:

One hundred percent medical opinion — not fact, not peer review — was enough for the US’s highest court to rule against the church and cancel the First Amendment indefinitely,”

Another chilling read is the UK Supreme Court’s 2012 decision granting Sweden’s request to UK officials to arrest and extradite Julian Assange. The court determined that the Swedish prosecutor who issued the European Arrest Warrant for Assange fit the European Union’s interpretation of a ‘judicial authority’ who is allowed to issue such a warrant. Thus it consented to a single individual from another country being not merely a prosecutor, but also essentially a judge over a UK resident (Assange).

“This type of thinking pervades the legal realm even more today. And many people in government are licking their chops at the prospect of expanding administrative tribunals and closing the courts. That’s why I went to the lengths that I did to fight Toronto’s APS and challenge the bylaw that enacted it,” said Weisdorf, who welcomes the use of his legal arguments by others to challenge the system and hopefully win.

One clue as to why this is occurring is that traffic and parking fines and civil forfeiture are cash cows. And the draconian COVID-19-containment measures have left tens of thousands of municipalities, states and provinces teetering on the edge of bankruptcy, and therefore eager to exploit all possible revenue streams.

Another clue is in the city of Toronto’s rebuttal to Weisdorf’s constitutional challenge of the APS. The city’s legal representatives repeatedly called residents’ constitutional rights “loopholes.”

“The administrators see our rights as inconvenient, a hindrance to efficiency and easily removable. And I’m sure various medical ‘authorities’ see them exactly the same way,” concluded Weisdorf.

As if to hammer this home, on July 21 the Ontario government under Premier Doug Ford enacted legislation that allows it to extend the province’s COVID-19 state of emergency every month for up to one year without a vote of the legislature.

Under Bill 195,‘The Reopening Ontario Act,’ they also can then continue the state of emergency for an indefinite number of years one year at a time by a vote of the legislature, in which Ford’s Progressive Conservative Party has a majority.

The Canadian Civil Liberties Association described this as allowing Ford’s administration to “maintain the existing emergency powers while freeing the executive branch of effective democratic oversight.” Ontario is the only province or state in North America with such a law.

Rosemary Frei has an MSc in molecular biology from the Faculty of Medicine at the University of Calgary, was a freelance medical writer and journalist for 22 years and now is an independent investigative journalist. You can watch her June 15 interview on The Corbett Report, read her other Off-Guardian articles and follow her on Twitter.