Telling the STM to Stuff It: Why the Montreal Municipal Court Found Fines on Public Transit Unconstitutional

Courts and judges are professional puzzle solvers. Upon request of private parties or the government, their job is to examine all the pieces of a case comprising of facts, laws, arguments, interpretations, and personal accounts, examine them all carefully, and then put them together to create one cohesive picture. Rarely do all parties in a case like the picture the courts come up with, but all have to either accept it, or try and convince another, more well-regarded puzzle solver – a higher court, to look over the pieces again and try and come up with a better picture.

The case of a bunch of Montreal public transit users versus the Société de Transport de Montréal (STM, Montreal’s public transit service) is a perfect example. Both parties asked a question and presented their arguments, and on September 7, 2016 the Municipal Court of Montreal liked those of the transit users better and used them to create the final picture, thus ruling in their favour.

The STM is now saying they plan to appeal the decision, but their chances of winning on appeal are poor at best.

Here’s what happened.

In 2009, 2010, and 2011, three people, Jean-Philippe Joubert, Nathaniel Bell-Roy, and Monique Khalil, were stopped by STM inspectors – the people who look like and act like cops, except, as one transit user described, when someone is being savagely beaten in the subways. These inspectors demanded to see their transfers, which they had either lost or discarded. Unable to show them the transfer, the inspectors wrote them each tickets for a hundred and fifty dollars, which, with the added sixty-four-dollar fee, came to a total of a two hundred and fourteen dollars.

These people had paid their fares and felt that STM inspectors violated their right to be presumed innocent until proven guilty and the right against being arbitrarily detained as per The Canadian Charter of Rights and Freedoms.

They challenged their tickets and together took the STM to court.

At the time these people were ticketed, the conduct of STM inspectors was legal. They were enforcing articles six and nine of By-law R-105, which is a law setting out the terms and conditions for the possession and use of public transit fares in Montreal. Article six of the bylaw says anyone using the public transit system has to pay a fare, which is fair. It’s article nine that’s problematic because it says that a person has to carry proof that they paid their fare and that STM inspectors can stop and check if a person has done so. Failure to do so can result in a person being charged the same fine -a fine that can range between a hundred and fifty and three hundred dollars plus fees – as someone who skipped out on paying the transit fares.

On the surface, article nine of R-105 looks legit. People who want to take public transit should pay the corresponding fares, and anyone who doesn’t pay a fare and takes the bus or metro should pay a fine. When you take a closer look the way Judge Randall Richmond of Montreal’s Municipal Court did, article nine is unconstitutional.

Article nine violates the presumption of innocence guaranteed by the constitution because it makes the assumption that anyone who cannot provide proof that they paid transit fares during a random stop by inspectors must not have paid. It violates the presumption of innocence because it states that there is only one way to prove that you paid: by showing inspectors your transfer. If you don’t have a transfer, you must be guilty. As Judge Richmond points out in his judgment, witness accounts by those who saw a person pay the fare and circumstantial evidence are not admissible as per article nine. It’s the transfer or nothing, and if you don’t have it, you pay a fine.

The STM claimed that the random stops by inspectors and the fines are meant to prevent commuter fraud, but they never presented any proof at trial that the practice actually deters it. As Richard Beaulieu, a public transit user who was in the courtroom on the final day of the trial points out, inspectors overwhelmingly target blacks and young people. Older people are rarely stopped and ticketed.

The court agreed that the behaviour of STM inspectors violated the constitutional protection against arbitrary detention. The STM argued that the inspectors weren’t arresting people, but case law has said time and time again that once someone is legally stopped and forced to obey a command that deprives them of their liberty, it constitutes arbitrary detention. Being stopped by someone in uniform who won’t let you leave – they way it happened to Jean-Philippe Joubert and his wife in 2009 – constitutes an arrest.

The goal of the arbitrary stops by inspectors and the fines could not be saved by article one of the Canadian Charter that allows some laws to remain in force regardless provided they are justifiable in a free and democratic society. The court put that article of the bylaw through the same constitutional test all other laws go through when their legality is questioned and found the article lacking. The STM is planning to appeal but they’d be better off – like many of their drivers do when faced with someone who can’t pay – letting this one go.

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  • Article 6 is the provision that undermines the presumption of innocence. Article 9 is the provision that mandates mandatory detentions. The heart of the case is: Is using public transit an activity regulated to the point that users expect to be detained? That is, a person opens a restaurant, and gets into a regulated activity knowingly and as part of the bargain expects random intrusions by inspectors. A person goes hunting, and likewise expects that game wardens may interfere. A person is licenced to drive a car and expects police may want to make sure all is in order… only that when the case of random stops to stop drunk driving happened back in the day, the courts held that this was an arbitrary detention but was legitimate under the Waterfield Test on the grounds that it corresponded to a common law power and was justified as a means to prevent people from being killed on the roads. As such, provisions permitting random road stops for highway safety were passed. During final arguments, counsel for the defence reminded the proceedings that in that case, the need to save lives was cited as a justification. There is no such justification here, and Judge Richmond held that this was true. Taking public transit is barely more regulated than walking on the sidewalk where there are regulations as to “Peace and order” on the public domain, as to cleanliness on the public domain, etc, and even the Highway Safety Code. Richmond concluded that taking public transit is a RIGHT and is not regulated to the point where people using it are to be expected to be randomly stopped. I expect the STM is going to turn around and say this is a highly regulated activity and a privilege which justifies these intrusions. A Superior Court judge five years ago recently held that owning a dog is not an activity regulated to the point so as to justify invasions by inspectors of homes… something to think about.

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