After moving the contentious kindness meter, the City of Penticton has rejected recent attempts by a panhandler and his lawyer to reach a settlement prior to their trial over eight charges related to city bylaw infractions.
Paul Braun is charged with eight counts of bylaw infractions for panhandling next to the 200-block breezeway on Main Street, which is prohibited in the Good Neighbour Bylaw. Court proceedings have been ongoing this year, with a pretrial conference in early May.
At that pretrial conference, city lawyer Troy DeSouza noted that the city had attempted to reach a settlement with Braun and his lawyer, Paul Varga, to avoid a trial on the matter. However, that settlement offer was rejected by the defence at the time.
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The tables appear to have turned, however, as Varga told the court that the defence sought a settlement with the city after the kindness meter was moved from Braun’s usual panhandling location to outside city hall. Braun had taken issue with the kindness meter, regularly suggesting it was doing the same thing he was at the same location.
The city has also moved trash and recycling bins to Braun’s typical panhandling spot at the opening of the 200-block breezeway.
“We’ve tried to re-enter negotiations,” Varga told the court Friday. “We have commitment from a mediator to do this on a pro bono basis.”
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But DeSouza said he has received instruction from the city that they would not be entering into negotiations with Braun and Varga. The city’s lawyer told the court he did not receive a response from Varga in time on both a former settlement offer and a proposed agreed statement of facts, which had city-imposed deadlines for June 12.
“June 19, I get a call from Mr. Varga suggesting we can resolve this. I said ‘please put it in writing and I will get back to you on June 20.’ End of the day, he did send a response in writing. I did flip that to my client in very detailed letter,” DeSouza said, noting he responded to Varga on Wednesday.
“The negotiations are over. We just didn’t believe that Mr. Varga’s client is serious about complying with the law. So all settlement discussions, any opportunities, any discussions are over.”
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Friday’s hearing largely surrounded the potential for shaving down on court time and the city’s 13 witnesses expected to be called in trial through an agreed statement of facts. But it became clear that there was little chance of trimming the trial — the city had sought agreement that Braun had been handed a bylaw ticket, that he had been sitting on the ground at the breezeway and that he had sign soliciting donations without consideration.
However, Varga said he could only agree to the fact that Braun had been handed a bylaw ticket at the time, stating that there “would be no need for a trial” if the defence agreed to the remainder of the facts. Varga added that he saw some facts as irrelevant to the case.
The city and defence were able to come to some agreements, however, but it did not save a lot of time.
“I think we could certainly modify the facts, and we could agree with my friend to shave off one witness, which is good,” DeSouza said.
Varga also advised the court that he would be filing a double jeopardy application, with the expectation that it would be heard at the outset of the trial. The application suggests that Braun is being punished twice by the city, having previously received tickets from the city for the same offences that have now gone to court.
However, DeSouza shot back that the city considered those initial tickets to be dead in the water, meaning the city is only pursuing one punishment against Braun, being through the courts.
“It’s only in this process that the court can actually make an order,” DeSouza said. “That’s why the city has proceeded like that.”
Judge Michelle Daneliuk questioned the double jeopardy application given DeSouza’s explanation that the tickets were no longer in effect when the city took Braun to court. Daneliuk, who will likely not preside over the trial, also appeared unfavourable toward Varga’s explanation that Braun was not aware of a secondary enforcement process, being the courts, that the city could take regarding the bylaw infractions and that the tickets were, in themselves, with or without a fine payment, punishment.
“I’m not going to tell you can’t make an argument, obviously, but i don’t see any way in which this person is in a double jeopardy situation as you term it in that they aren’t proceeding on the tickets,” Daneliuk said.