Casual Legal: What's a reasonable excuse?

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated. 

By Shauna Finlay 

Reynolds Mirth Richards Farmer LLP 

Alberta Municipalities Casual Legal Service Provider 

Bylaw prosecutions are governed by the Provincial Offences Procedure Act (“POPA”). Under this legislation, s. 38(1) provides for the setting aside of a conviction if a defendant has a reasonable excuse for failing to dispute the charge or appear in person at the trial.   

What constitutes a reasonable excuse under s. 38(1) was recently considered by the Court of King’s Bench. In a recent case, a party was appealing a conviction for the offence of parking in a disabled parking space outside the Law Courts building in a municipality, contrary to a municipal bylaw. The offence carried a fine of $250. The Appellant claimed he mistakenly recorded the court date for disputing the charge in the wrong part of his calendar, leading to his absence at trial.   

The Justice of the Peace convicted the individual and he appealed his conviction to the Court of King’s Bench. The court found that the honest mistake of recording the wrong date in his calendar was not a reasonable excuse under s. 38(1) that met the standard required of the statute.   

What constitutes a reasonable excuse under s. 38(1) was summarized by the Court in R. v. Dahmer, 2015 ABCA 294.  Essentially, a person has a reasonable excuse if: 

(a) the person formed a fixed intention to contest the charge before the court convicted the person in absentia, and 

(b) the person retained counsel to attend court on the person’s behalf and counsel failed to attend court and dispute the charge for a reason other than the person’s carelessness, or 

(c) a responsible person confronting the same situation as the person did, could or would not have attended court on the return date to dispute the charge. 

In terms of (c), a responsible person could or would not attend court and dispute the charge in the following situations: 

• the person’s physical or mental health substantially interfered with the person’s ability to attend court and dispute the charge.
• the person encountered unanticipated conditions and was unable to attend court on the return date and dispute the charge.
• the person encountered unanticipated conditions and, acting reasonably and responsibly, chose to pursue a course of action which prevented the person from attending court on the return date and dispute the charge.
• any other situation which would prevent a responsible person from attending court and disputing the charge. 

Unless a circumstance fits into one of the foregoing categories, it is unlikely they have a reasonable excuse for failing to dispute a charge under POPA. 

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or email casuallegal [at] abmunis.ca (casuallegal[at]abmunis[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] abmunis.ca (riskcontrol[at]abmunis[dot]ca), or call 310-MUNI (6864) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.