R v Kinder, 2012 ABQB 382

Court of Queen ’ s Bench of Alberta Citation: R v Kinder, 2012 ABQB 382 Date: 20120611 Docket: 120063805S1 Registry: Red Deer Between: Her Majesty the Queen Crown - and - Kent Francis Kinder Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Background [ 1 ] The Appellant was convicted in absence on November 21, 2011 in Red Deerr Provincial Court for missing a first court appearance on a

Section 37(

b) Use of Highway and Rules of the Road Regulations , Alta. Reg. 304/2002 offence. On November 28, 2011, the Appellant ’ s counsel applied pursuant to

Section 38 of the Provincial Offences Procedure Act , R.S.A. 2000, c.P-34 to have the conviction set side. The Traffic Commissioner denied the application. In doing so, the Appellant argues that the Commissioner erred in law in finding that the circumstances put before him did not establish that the Appellant had a reasonable excuse. Furthermore it is submitted that the conviction in absence of the Appellant resulted in a miscarriage of justice, such that the conviction in absence ought to be set aside and the matter returned to Provincial Court for plea.

[ 2 ] On September 9, 2011 the Appellant was issued a

Part 3 violation ticket alleging that he failed to stop for a stop sign contrary to

Section 37(

b) of the Use of Highway and Rules of the Road Regulations . The violation ticket required the Appellant to appear before a Justice of the Peace on November 21, 2011 in Red Deer Provincial Court. The Appellant failed to appear on November 21, 2011 and he was convicted of the offence in his absence. [ 3 ] On November 22, 2011 the Appellant swore an Affidavit in support of his application to set aside the conviction. The Affidavit stated: – On or about September 9, 20111 received a Traffic Ticket alleging a failure to stop at a stop sign. I contacted my lawyer, John A. MacNaughton, to attend Traffic Court on November 22, 2011 to enter a not guilty plea to the Ticket and

schedule a Trial date. I am advised by Mr. MacNaughton that he attended at Traffic Court on November 22, 2011 and was advised that the first appearance in Traffic Ticket [sic] had actually been scheduled for November 21, 2011 and that a conviction in absence was registered. It has been my intention to contest the Traffic Ticket since the day it was received; as I believe I have a defence to the charge. I have hired legal counsel to assist me in my defence. As soon as I was advised that I had been convicted in absence, I instructed my lawyer to make application to Set Aside a Conviction [sic] pursuant to

section 38 of the Provincial Offenses Procedure Act. [ 4 ] The application to set aside the conviction was heard on November 28, 2011 by the Commissioner. Counsel submitted that the Appellant had contacted a lawyer before knowing that a mistake had been made, and that the Appellant had retained a lawyer before knowing that he was in any difficulty. Furthermore counsel submitted that the Appellant thought his matter was still alive, and had attempted to do something in terms of hiring a lawyer and having the matter heard.

Counsel submitted that these actions done by the Appellant distinguished this matter from a situation in which an accused simply forgets about a court appearance and then much later tries to remedy the situation after they find out they have been convicted in absence. [ 5 ] The Commissioner stated that he was not satisfied that the Appellant had a reasonable excuse in law.

The Commissioner stated that the Appellant was not paying attention to when he was supposed to appear and ruled that the conviction stood. [ 6 ] The Crown argues that the Traffic Commissioner correctly concluded that there was no reasonable excuse in the circumstances, and while the Appellant has titled his appeal as a sentence appeal, it is clear that he is not alleging that the sentence imposed was unfit. What he is alleging is that the Traffic Commissioner erred in law when he declined to set aside the Appellant ’ s conviction in absence after having received the evidence offered as a reasonable excuse.

Issues [ 7 ] The Appellant raises the issue of whether the Commissioner erred in finding that the circumstances put before him on the application to set aside conviction did not establish on a balance of probabilities a reasonable excuse in law as required under

Section 38 of the Provincial Offences Procedure Act , and/or constitutes a miscarriage of justice.

Argument [8] A question of law is to be reviewed on a standard of correctness, while a question of fact is to be reviewed on a standard ofpalpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235. A question of mixed fact and lawwith an extricable error in principle can be characterized as an error of law. An extricable error in principle is one that “can be attributedto the application of an incorrect standard, a failure to consider a required element of a legal test, or a similar error in principle”: Housenv. Nikolaisen, supra, at para. 36. [9] In R. v.

Choudry, 2009 ABQB 973 Watson J., as he then was, stated at paras. 35-37 that a Commissioner’s ruling thatforgetting about an appearance is not a reasonable excuse was reviewable as a matter of law on the standard of correctness:– Returning then to what the issues are which are before me, they turn, as I mentioned before, on the subject of standard review of theCommissioner’s decision. I do agree then with the point that in fact the Traffic Court Commissioner has stated a proposition of law whenhe said I do not think that forgetting about it or a mistake is a good enough excuse.

It does seem to me that the Traffic Court Commissioner in that particular regard was guiding himself to think that it is necessary for aperson who is issued a violation ticket which is clear on its face to do a little bit more due diligence in relation to the answer to thatmatter by appearing in Court. In that particular regard, as a question of pure law, the correctness standard would apply to the situation. It would not be a situation wherehe would get the benefit of unreasonableness or patent unreasonableness as a standard that might apply to a question of fact.

Thistherefore distinguishes the case cited by Counsel for the Crown in relation to this particular matter. [10] The Crown submits that Choudry correctly stated the law with respect to what constitutes a “reasonable excuse” at para. 51,52 and 55:– [51] I return then again to the question of whether in law “reasonable excuse” under

Section 38 of the Provincial Offences ProceduresAct is risen to by simply stating, I forgot and I made a mistake on the date.

As I mentioned to Counsel for the Appellant that is theexplanation which presumably is part of everyone’s explanation for why they did not appear in Court. [52] If that were an explanation sufficient in and of itself to make the point, then in fact there would never be any reason not toreverse these convictions unless the Commissioner reached the point where he concluded that in fact the affidavit in support wasperjury... [55] It seems to me that as a matter of law I cannot find error on the part of the Commissioner to do that.

It seems to me that theCommissioner was right in law to say that to simply say you forgot is not good enough. [11] The Crown submits that given that the Appellant must have read his violation ticket (if he did not then he would certainlyhave no reasonable excuse for failing to appear) it follows that he must have forgotten that the date was November 21, 2011 – that datehaving been in his mind at least once when he read the ticket. The Traffic Commissioner observed that the ticket was clearly legible.There was no evidence that the Appellant could not read the ticket.

It is submitted that there should not be a critical distinction mademerely on the basis of making an error versus forgetting, because forgetting is part of making the error. Further Choudry made nodistinction between forgetting the date and getting it wrong. [12] The Crown also submits that having a serious intention to defend the case is not an excuse to fail to attend. In Choudry theappellant had taken concrete steps as well. Choudry had entered the court date in his electronic daytimer in order to keep track of it, andthen checked it because he remembered the ticket and intended to offer a defence.

Justice Watson found that the Commissioner in that

case was correct in finding no reasonable excuse and declining to set aside Choudry ’ s ticket. [ 13 ] The Crown argues the fact that the Appellant in the case at bar retained counsel in his defence should not make any difference either at it would be poor public policy for the Court to hold that the defendant who takes steps to retain counsel has a reasonable excuse to fail to appear on the court date, but the defendant who intends to represent himself and has taken steps in that regard does not.

To do so would be to foster a two-tiered justice system in which those able to retain counsel have an advantage by virtue of that mere fact alone, over those who are not so able. What the Appellant is really submitting is that the test for setting aside a conviction should be whether or not the defendant had taken significant steps to prepare his defence – but that is not the test. The test is whether the defendant had a reasonable excuse to fail to appear.

Furthermore taking action on a “ timely ” basis cannot mean taking action after the court date. [ 14 ] The Crown submits that the potential impact of allowing applications to set aside on evidence of mistaken date would result in the “ reasonable excuse requirement ” to become almost meaningless. [ 15 ] The Crown submits that the Appellant cannot now argue that the Traffic Commissioner should have set aside the conviction due to a miscarriage of justice since it was not argued before the Traffic Commissioner. [ 16 ] The Crown submits that the deemed guilty plea of the Appellant was valid.

The Provincial Offences Procedures Act reads: –

Section 37 - If an offence notice has not been delivered in accordance with

section 33 or 36 and a plea of guilty has not been accepted under

section 35

a) the offender is deemed not to wish to dispute the charge,

b) a conviction for the offence charged shall be entered against the defendant, and

c) the specified penalty for the offence charges shall be imposed on the defendant. [ 17 ]

Section 33 applies where the defendant enters a not guilty plea by mail.

Section 36 applies where the defendant pays the ticket.

Section 35 applies where the defendant appears in court and enters a guilty plea but makes representations as to fit sentence. None of those scenarios took place in this case, therefore the deemed guilty pleas were valid in law. [ 18 ] The Crown argues that there was no miscarriage of justice in that the Appellant was involuntarily deemed to have pled guilty.

The Appellant was informed that he could be convicted in his absence by the following words on the ticket: – If you fail to respond to this Offence Notice as required by law by the appearance date indicated above, or if you plead not guilty and fail to appear in court in person or by agent on your trial date, you will be deemed not to dispute the charge and you may be convicted in your absence without a hearing. [ 19 ] The Crown submits that the intention of the Appellant was not communicated to the Court could not invalidate the proper application of the conviction in absence provisions of the Provincial Offences Procedures Act . [ 20 ] The Crown submits that this belief of the Appellant that he had a defence to the charge was not communicated to the Court either therefore it could not invalidate the proper application of the conviction in absence provisions of the Provincial Offences Procedures Act . [ 21 ] In the case at bar the Appellant was given unambiguous and legible written notice at the time he received his violation ticket

on September 9, 2011 that the court date was November 21, 2011 at the Provincial Court at 4909 - 48 Avenue in Red Deer at 9:30 a.m. and that if he failed to respond as required by law he would be deemed not to dispute the charge and may be convicted of the offence in his absence without a hearing. [ 22 ] The Crown submits that the Appellant has not been treated unfairly by the Court, in being convicted in his absence, or in the Traffic Commissioner declining to find that he had called evidence of a reasonable excuse. Conclusion [ 23 ]

Section 38 of the Provincial Offences Procedures Act provides for a conviction in absence to be set aside: – Where a defendant has an excuse for failing to dispute the charge or in person or by agent at a trial, the defendant or the defendant ’ s agent may, if not more than 15 days have elapsed since the conviction first came to the attention of the defendant, appear before a justice and the justice on being satisfied by affidavit that the defendant has established on a balance of probabilities that the defendant ’ s excuse is reasonable shall set aside the conviction and (

a) give the person appearing a notice of trial in accordance with

section 33, or (

b) proceed in accordance with

section 35. [ 24 ] I conclude that the learned Traffic Commissioner focussed on the issue of the Appellant ’ s forgetfulness and did not fully consider the affidavit evidence before him. The Commissioner stated: – I - - I appreciate and I agree it is a bit of a distinction, but it still doesn ’ t cure his carelessness in the first place. When he gets a ticket, Mr.

MacNaughton, I am of the view that he ’ s obliged to know when he is supposed to go to court and take care of that and then to say I simply forgot, or I didn ’ t pay enough attention, or I got the date wrong, or I was mixed up, or somebody didn ’ t tell me again doesn ’ t amount to reasonable excuse even on a balance of probabilities which is the test that I use these days.

So without more, the fact that what he did afterwards, that he was quick to do it, doesn ’ t cure that he paid no attention or not enough attention in the first place to get here on the day that he was suppose to be here and he wouldn ’ t have had any difficulty whatsoever. [ 25 ] However as stated in the Affidavit and represented by counsel at the hearing, the Appellant had actually taken proactive steps and this was not simply a matter of forgetfulness: – I contacted my lawyer, John A. MacNaughton, to attend Traffic Court on November 22, 2011 to enter a not guilty plea to the Ticket and

schedule a Trial date. [ 26 ] In R. v. Sehn , 2005 ABCA 203 Fraser, C.J.A. for the Court stated in obiter that an applicant must establish a reasonable excuse for failing to appear or dispute the charge on a timely basis: – 11 Of course, any offender intent on challenging a conviction in absence must still meet the requirement under s. 38 to establish a reasonable excuse for failing to dispute the charge or failing to appear in court for trial on a timely basis. [ 27 ] I conclude that the Appellant took action on a timely basis by hiring a lawyer to attend court and dispute the charge.

As submitted by his counsel before the Commissioner, this action was taken before the appellant was even aware of a problem.

He had contacted a lawyer before knowing that a mistake was made. That he ’ s retained that lawyer. That he ’ s acted with the most expedience that there is available to him to rectify that mistake and it all being done within a day of when a mistake occurred and wants - - wants the merits of the matter to be heard. [ 28 ] In R. v. Alexandruk , 2011 ABQB 475 my colleague Justice Shelley at paras. 10 - 11 stated by virtue of

Section 3 of the Provincial Offences Procedure Act a conviction may be struck if there has been a miscarriage of justice: – 10 By virtue of s. 3 of the Provincial Offences Procedure Act , R.S.A. 2000, c. P-34 ( POPA ), all provisions of the Criminal Code of Canada , R.S.C. 1985, c. C-46 ( Criminal Code ) that are applicable to

summary convictions and related proceedings apply to the matters covered by the POPA unless those provisions are inconsistent with the POPA . Section 686(1) (

a) of the Criminal Code , which applies to

summary conviction proceedings by virtue of section 822(1) of the Criminal Code , provides that a

summary conviction appeal court may allow an appeal in three instances: (

i) where the verdict is unreasonable or unsupported by the evidence (s.s. 686 (1)(a)(i)); (ii) where the trial judge has wrongly decided a question of law (s.s. 686 (1)(a)(ii)); or (iii) where on any ground there was a miscarriage of justice (s. 686 (1)(a)(iii)). 11 The Alberta Court of Appeal has directed that, "[w]here the guilty plea results in a miscarriage of justice the plea should be permitted to be withdrawn or set aside. A miscarriage of justice may be found when a guilty plea was not valid or when the accused suffered prejudice as a result of the plea" ( R. v.

Hoang , 2003 ABCA 251 , 339 A.R. 291 at para. 27 ). Therefore, Mr. Alexandruk has the burden of proving that his guilty plea is invalid or that he was prejudiced by his plea. If he does so, it is open to me to allow his appeal and order a new trial on the grounds that there has been a miscarriage of justice under s. 686(1) (a)(iii) of the Criminal Code . [ 29 ] I conclude that the Appellant always wanted to dispute the charge, as he stated in his Affidavit: It has been my intention to contest the Traffic Ticket since the day it was received; as I believe I have a defence to the charge.

I have hired legal counsel to assist me in my defence. As soon as I was advised that I had been convicted in absence, I instructed my lawyer to make application to Set Aside a Conviction [sic] pursuant to

section 38 of the Provincial Offenses Procedure Act [emphasis added]. [ 30 ] R v Alexandruk at para. 13 cited R v Gillis , 2003 ABQB 713 which outlined the principles for the withdrawal of a guilty plea as follows: – 13 In R. v. Gillis , 2003 ABQB 713 at para. 25 , Veit, J. summarized the general principles governing the withdrawal of guilty pleas in Alberta:

a) The court has the jurisdiction to allow an accused to withdraw a guilty plea.

b) The court's discretion in exercising its jurisdiction must be exercised judicially.

c) The onus or burden of this application is on the defence. Although there are some decisions that hold that the onus on the accused is a heavy one, particularly where he was represented by a lawyer when he pleaded guilty and when the facts were read out in court, the Supreme Court of Canada has not sanctioned that characterization of the onus.

d) The nature of the burden on the accused is "to satisfy the court" ... "that there are valid grounds for his being permitted to do so":Adgey. Some of the circumstances that might justify the Court in permitting a change of plea include, but are not limited to, a situationwhere the applicant did not appreciate the nature of the charge or did not intend to admit that he was guilty of it, or that hemisapprehended the effect of a guilty plea, or that, upon the admitted facts, he could not in law have been convicted of the offencecharged.

e) Alberta courts have outlined some additional situations in which a court might be persuaded that a guilty plea could bewithdrawn. For example, the following list of situations outlined by the Appeal Division of the Alberta Supreme Court in 1968 wasrecently quoted with approval by Sullivan, J. in the R. v. Kambeitz decision, [1997] A.J. No. 1213: Evidence could be led, however, to show that the defendant was "a person aggrieved" notwithstanding a plea of guilty because the pleawas based on: (

a) A lack of understanding because of illiteracy: Rex v. Olney (BC CA), [1926] 3 W.W.R. 273, 37B.C.R. 329, 46 C.C.C. 196 (C.A.); (

b) A qualified plea where an essential ingredient of the offence was denied before the

summaryconviction court: Rex v. Richmond (AB CA), [1917] 2 W.W.R. 1200, 12 Alta. L.R. 133, 29 C.C.C. 89 (App. Div); (c)An inducement held out by officers of the crown: Rex v. Stone (1932) (NS SC), 4 M.P.R. 455, 58 C.C.C. 262 (N.S.C.A.); (

d) Lack of understanding because of unfamiliarity with our language: Rex v. Ah Tom (1928) (NS SC), 60N.S.R. 1, 49 C.C.C. 204 (C.A.); (

e) Inducement by threats: Reg. v. Sanders (No. 1) (1953) (BC CA), 8 W.W.R. (NS)676, 16 C.R. 378, 106 C.C.C. 76 (B.C. C.A.); Reg v. Sanders (No.2) (1953 (BC SC), 10 W.W.R. (NS) 372, 17 C.R.354, 107 C.C.C. 317 (B.C.). I also note the case of R. v Hughes (1987) 1987 ABCA 69 , 76 A.R. 294 (Alta. C.A.) where Mr. Justice McClung speaking forthe court said (at p. 296): The appellant must go further and show that the plea is wrong and that it would be unjust to maintain it.

f) Dissatisfaction with the sentence is not a basis on which a guilty plea can be withdrawn.

g) A misapprehension about the collateral financial effects of a guilty plea, such as an increase in insurance rates, is not a basis onwhich a guilty plea can be withdrawn: Kambeitz. [31] I conclude that maintaining the conviction in absence based on the Appellant’s absolute liability as a result of his non-appearance on the day in question also would be a miscarriage of justice because he is entitled to his day in Court. The Appellant’sultimate deemed plea was not voluntary or informed, he intended on challenging the charge from the beginning, and he believed that hehad a defence to the charge. [32] In R v.

Hanna, 2001 ABQB 141 at paras. 7 to 8, I permitted facts and circumstances not contained in the Appellants Noticeof Appeal to be raised in oral argument and I placed reliance on those matters in ruling the Appellant was not at fault in failing toparticipate in the process which resulted in the conviction being entered. [33] The Appellant also appeared before me on the hearing of this appeal. Counsel advised amongst other things that theAppellant is a mature individual who runs a highly successful million dollar business, who in the course of his very busy

schedule mis-read and mis-diarized his Court appearance date for trial. I am satisfied that the Appellant always intended to dispute the charge from thetime he was given his Ticket, and simply by error and inadvertence missed the trial date by one day. This constitutes in thecircumstances on a balance of probabilities a “reasonable excuse” for failing to appear in Court to dispute the charge under

Section 38 ofthe Provincial Offences Procedures Act. [34] The Crown draws distinctions between the law as it relates to criminal offences as compared to traffic offences. The realityhowever is in my respectful opinion that Traffic Offences in addition to carrying significant fines also have some penal consequences forthe accused. These penal consequences include significantly increased vehicle insurance rates, demerit points, license suspensions,driving prohibitions, and even imprisonment. By definition prejudice occurs where a party suffers unfairly. These penal consequences, inaddition to the fine(

s) which can be significant, result in prejudice to the accused and a miscarriage of justice occurs in thesecircumstances presently before me.

Disposition [ 35 ] I conclude that the appeal should be allowed, the conviction in absence quashed, and the matter remitted to Provincial Court for plea. Heard on the 4 th day of June, 2012. Dated at the City of Red Deer, Alberta this 8 th day of June, 2012. Donald Lee J.C.Q.B.A. Appearances: Anders Quist Crown Prosecutor ’ s Office for the Crown John MacNaughton Sproule MacNaughton for the Accused