R. v. Siguencia-Vargas, 2011 ONCJ 805

Citation: R. v. Siguencia-Vargas , 2011 ONCJ 805 Her Majesty The Queen v. Christopher Siguencia-Vargas Small, K for Prosecution Gabriel, C for Defendant Heard: December 3, 2010 Delivered: December 15, 2011 CHARGES : 1 . The Defendant is charged with the offence of red light fail to stop contrary to section 144(18) of the Highway Traffic Act. ISSUE : 2 . This is a preliminary motion being brought by the agent for the Defendant requesting that the court quash the Certificate of Offence on the basis that the set fine indicated on the Certificate is incorrect.

The issue before the court is whether or not it can grant the Defence ’ s request to quash the certificate or is the court obliged to amend the defective certificate because the Defendant has attorned to the jurisdiction of the court. ARGUMENT OF PROSECUTION : 3 . The prosecution submits that pursuant to

section 34 and 36 of the Provincial Offences Act the court has wide power to amend and correct defects on a Certificate of Offence. In essence the Prosecution's argument is that the issue of a certificate being "complete and regular on its face" is not applicable in

Part I proceedings where the Defendant has attorned to the jurisdiction of the court. 4 . In written submissions provided to the court, the Prosecution submitted that the Defendant had not suffered irreversible prejudice nor been misled by the error of the incorrect Set Fine 'such that the Certificate should be quashed' and this is required to be shown. 5 . The Prosecution further submitted that the Certificate was valid in substance and that 'substance should prevail over form' and that the 'attornment of the Defendant to the jurisdiction of the court cures any substantive defects'. 6 .

Moreover, the Prosecution takes the position that the set fine is not a component of the Certificate of Offence that is required for the certificate to be considered 'complete and regular on its face' in any event. 7 . Finally, the Prosecution contends that the incorrect set fine as set out 'on the Certificate of Offence is mere surplusage' and 'in light of the seriousness of the charge and societal interest seeing individuals charged be brought to justice' the certificate should be amended. 8 .

The court notes that this request for an amendment was not made by the Prosecution when the matter was first before the court but

rather in written submissions that were provided by the Prosecution on her own accord when only a case cited by the Prosecution was requested by the court. ARGUMENT OF DEFENCE AGENT : 9 . The agent for the Defendant made a preliminary motion in the form of a request that the court to consider quashing the Certificate of Offence on the grounds that it states an incorrect set fine. The argument presented is that on the date of the offence the set fine was not $400 as indicated on the certificate but $260.00 and consequently the certificate is not regular on its face and should be quashed by the court. LAW : 10 .

The issue of a certificate being “ regular on its face ” has been reviewed by the courts in the past fifteen years. Justice Clark in R. v. Sivaguru [2004] O.J. No. 2927 makes reference to R. v. Wilson [2001] O.J. No. 4907 whereby the court set out the standard by which a Certificate of Offence is found to be regular on its face. The certificate must set out who is commencing the process i.e. an Informant; who is charged under the process i.e. name of the defendant; what the process is i.e. the statute name and

section number; where and when the allegation arose; and what the result will be from a conviction from the process i.e. the set fine amount. Justice Clark in a review of cases of the same vintage as R. v. Wilson , supra which included R. v. Singh , a decision by Justice Duncan and R. v. Khoshael , [2001] O.J. No. 2110 stated that these decisions more accurately represent the state of the law today and are “ supportive of the line of reasoning in R. v. Wilson supra . 11 .

While the certificate that he was dealing with pertained to a fail to respond situation, Justice Clark recognized that exceptional power to convict without a hearing had been conferred on a Justice and as such ‘ a premium is created on the form of a document ’ . It was further recognized that the true conundrum created by the Provincial Offences Act lies in a situation where the matter goes to trial. At trial the court has broad power pursuant to s. 34 to amend a certificate and a certificate should be amended unless there would be prejudice or injustice created by the amendment. 12 . R. v.

Khoshael supra echoes this point in that the broad powers to amend given to the court pursuant to s. 34 of the Provincial Offences Act and the grounds for quashing are circumscribed by s. 36. 13 . Section 34(1) of the Provincial Offences Act states: The Court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate, a. fails to state or states defectively anything that is requisite to charge the offence; b. does not negative an exception that should be negatived; or c. is in any way defective in substance or in form. 14 .

Section 34(4) of the Provincial Offences Act states: The court shall, in considering whether or not an amendment should be made, consider, a. the evidence taken on the trial, if any; a. the circumstances of the case;

a. whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission; and a. whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done. 15. Section 36(2) of the Provincial Offences Act states: The court shall not quash an information or certificate unless an amendment or particulars under

section 33, 34 or 35 would fail to satisfythe ends of justice. 16. The Justice must balance the factors outlined in s. 34 before deciding to amend or quash a certificate. Justice Clark in R. v. Sivagurusupra also made reference to the point that it would be unjust to award passivity and punish the Defendant who actively contests a defectbefore the trial and that this point begs the question of whether there should be some Charter relief because ‘the Defendant who doesnothing has a better chance of having the offence quashed than the Defendant who does something’. 17.

The Court of Appeal in Re the Ministry of Labour v. NMC Canada Inc. (ON CA), [1995]O.J. No. 2545 alsostates that s. 36(2) of the Provincial Offences Act must be read together with s. 34 and that the court should not quash an Informationunless an amendment under s. 34 would fail to satisfy the ends of justice. The court was asked to extend the time for service and amendan Information to add two corporate defendants who were aware of the charges but could not be charged as the limitation period hadexpired.

Neither had failed to show that they would suffer prejudice in the event of an amendment and the court held that an amendmentwould not work an injustice. The court went on to indicate that the defendant needs to demonstrate that there is some prejudice suffered. Subsequent courts have found that absent the demonstration of prejudice the court should amend both a certificate and or an Information,if it is not an injustice to do so and in particular if it is a serious offence. On the contrary, failure to do so may constitute an injustice. 18. However, while the court in R. v. Singh [2003] O.J.

No. 4324 relied on the principles set out in Re the Ministry of Labour v. NMCCanada Inc. supra with regard to quashing versus amending an Information this case dealt specifically with an Information andamending the Information to get the proper legal description of the Defendants. In our case as was the case in R. v. Wilson, supra and R.v. Khoshael, supra we are dealing with Certificates of Offence where form is important because of the tremendous power conferred upona Justice pursuant to s. 9 to convict a Defendant without a hearing.

As a result of this section, which was incorporated into the ProvincialOffences Act after 1995, form has been made more important than was originally envisioned under the said act, by virtue of thesesections. 19. This is one important distinction between Certificates of Offence and Informations as a Defendant cannot be convicted without ahearing if he or she does not attorn to the jurisdiction of the court. In the latter instance an ex-parte hearing is conducted and uponevidence presented by the prosecution the Defendant is either convicted or the charge is dismissed.

This said distinction was notaddressed in R. v. Singh supra when it used the case of Re the Ministry of Labour v. NMC Canada Inc. supra by analogy. The analogyrefers to a case as indicated which deals with an Information and not a Certificate of Offence as was the case in R. v. Khoshael supra . 20. Yet, at trial s. 34 and 36 also confer as Justice Clark referred to a ‘broad curative and amendment powers’ and as such these sectionsshould be used with restraint and only ‘when there is no prejudice or injustice created by the amendment’.

As indicated because of thedistinction between a Certificate of Offence and an Information and the powers conferred under s. 9, the court has been placed in aconundrum when there is a defect on the face of the certificate which would be quashed pursuant to s. 9 but for which at trial anamendment is being sought pursuant to s. 34 and 36. 21. More recent case law as cited in London (City) v. Young 2008 ONCA 429 , [2008] O.J. No. 2118 acknowledges that the setfine is there so that if the Defendant wants to save the government the time of trial and pay the fine they will be found guilty.

One mayadd that they know what case they have to meet and what the penalty will be and for this reason it is important that the set fine becorrect. The trade-off so to speak is that if the certificate is not complete and regular on its face it must be quashed and cannot beamended on a fail to respond docket. 22. However, we return to the conundrum that was acknowledged by Justice Belleghem in R. v. Singh supra. A potential injustice iscreated as passivity is awarded and activity by a defendant punished. This point was highlighted in R. v. Pham and R. v. Oehlert.

Itfurther sends a message that the Defendant whose certificate is defective should not attend court or set his or her matter down for trial orshould not respond to a page of his or her name when his or her matter is to be considered under the provisions of s. 9(2) of theProvincial Offence Act when that Defendant has set the matter down for trial and has attended court. Certainly such a response was notthe intent of the legislators.

23. For this reason one may submit that Justice Clark indicated that the situation created by the legislation ‘begs the question of whetherthere should be some Charter relief because of the prejudice to the Defendant who actually pursues the matter versus the Defendant whodoes nothing and may have a better chance of having the certificate quashed’. However, as a Charter application has not been raisedbefore this court, this court is of the view that it does not have jurisdiction to deal with such an application and the issues involved.

Inobiter, it may be also echoed by this court that the inequity is ripe for a Charter application. 24. Another question that begs being asked is: can the prejudice or inequity suffered by the Defendant who attends court to address adefective certificate be characterized as ‘inferred prejudice’? Defendants rely upon the concept of inferred prejudice in applicationspursuant to the Charter of Rights when asking that a court grant an order for stay of proceedings. Can they do so when asking that acertificate be quashed?

This would need to be argued by the Defendant’s legal representatives who attend court to address the issue of adefect on the face of the certificate and by drawing to the attention of the court the said defect. 25.

It may further be suggested that prejudice may be inferred in that if the Defendant or the Defendant’s legal representative does notattend to argue the issue of the defective certificate and the Defendant is convicted because the defect is not drawn to the Justice’sattention by the prosecution as it is perceived not to be their responsibility to do so, nor is the defect observed upon a review of thecertificate by the Justice, the Defendant is left with the additional cost of an appeal thereby constituting additional prejudice to theDefendant. 26. What Regional Municipality of York v.

Talabe 2011 ONSC 955 does emphasize is that in the final analysis the Defendant, who inopen court and who makes a motion or application that the certificate be quashed, has to bring evidence of prejudice and in the absenceof such evidence the amendment should be granted. It may be suggested that the court can consider inferred prejudice but this needs tobe demonstrated too. 27. The court will briefly discuss the doctrine of Stare Decisis and the binding effect of decisions of courts of co-ordinate or superiorauthority upon inferior courts as detailed in Delta Acceptance Corporation Ltd v.

Redman (ON CA), [1966] 2 O.R. 37-52. Courts are bound by a decision provided that it enunciates a substantive rule of law. “Such judicial decisions are a source of law incases involving questions of fact which admit of being answered on principle thereby establishing a rule, which can be adopted for thefuture as a rule of law”. Justice Kozak in R. v. Brennan [2000] O.J.

No. 3257 in referring to both Laskin J.A. and Schroeder J.A. inDelta Acceptance states that ‘for a decision of a court of co-ordinate or superior authority to be binding as a legal precedent, it mustenunciate a principle or a substantive rule of law. The only thing binding upon a subsequent judge, is the principle upon which the casewas decided’. 28. Justice Schroeder stated that ‘Judicial decisions are a source of law in cases involving questions of fact which admit of beinganswered on principle, thereby establishing a rule, which can be adopted for the future as a rule of law’.

He added that 'the only thingbinding on a Judge’s decision as an authority for a subsequent Judge is the principle upon which the case was decided’. If a case turnson a pure question of fact and no rule of law it cannot be said to bind a future court. Laskin J.A. notes that a court may not be bound bythe doctrine of Stare Decisis if the earlier decision can be distinguished or otherwise explained away. He added that principle is theguiding consideration. 29. It may be submitted that R. v. Singh supra can be distinguished in that it did not examine the inherent distinction between aCertificate of Offence under

Part 1 of the Provincial Offences Act and an Information under

Part 3 of the Provincial Offences Act and thetrend with regard to recent cases dealing with the discretionary powers conferred on and exercised by a Justice under s. 34 and 36 of theProvincial Offences Act and the conundrum created by s. 9 which does not apply to Informations. The case referred to by analogy in R.v. Singh, supra, Re the Ministry of Labour v. NMC Canada Inc., supra, dealt with an amendment to an Information and not with aCertificate of Offence. ANALYSIS: 30.

The court will find that in considering whether or not the court shall amend the certificate, the court must consider sections 34(4)(c)or (d), that is whether the defendant has been misled or prejudiced in the Defendant’s defence by a variance, error or omission andwhether, having regard to the merits of the case the proposed amendment can be made without injustice being done. Pursuant to section36(2) the court shall not quash a certificate unless an amendment or particulars under

section 34, 35, 36 would fail to satisfy the ends of

justice. 31 . The court will find that as considered in R. v. Sivagaru supra, Regional Municipality of York v. Talabe supra, R. v. Singh supra, and London (City) v. Young supra that the set fine is a component of the Certificate of Offence that is required for the certificate to be considered ‘ complete and regular on its face ’ . 32 .

The set fine should not be considered mere surplusage but rather its importance lies in the fact that it is the penalty component of the charge which can impact a defendant if it is incorrect and moreover this error needs to be addressed by a justice at some stage of the proceeding be it either on a fail to respond docket, in court if a defendant does not attend where the court must address whether or not to find the defendant guilty in his/her absence, or if the Defendant either in person or through his agent attends court and draws the deficiency to the attention of the court. 33 .

If the charges are so serious in their nature that it would be an injustice to not grant an amendment as was suggested in R v. Singh supra , then why can these charges not be commenced by way of laying of an Information. Also one of the factors considered in Re the Ministry of Labour v. NMC Canada Inc. , supra was the point that the corporate Defendants were aware of the exiting charges so by amending the Information to add them to the Information after the limitation period had expired, would not be prejudicial, misleading or cause an injustice.

We do not know if the result may have been different if this were not the case. Given the nature of Certificate of Offence it may be suggested that such an approach would be difficult to take. 34 . However, for the Defendant to be successful in his application to quash the certificate, the Defendant must show prejudice which can be inferred or otherwise and that the proposed amendment can be made without an injustice being done. The onus is upon the defendant to make the arguments and support these arguments with evidence. The Defendant has not done this. 35 .

At the same time the prosecution when responding to the Defendant ’ s request in court did not make a request for the amendment but rather made reference to the amendment in written submissions. This the court will find is prejudicial to the Defendant as the Defendant does not know what the set fine may be so they could make a proper and informed determination of what approach they will take i.e. pay the fine, plead guilty or undertake the added expense of going to trial. DISPOSITION: 36 .

For the reasons set out above, the court will find that as a proper request to amend the certificate in court for both the court and the Defendant to consider was not done by the prosecution, the court will quash the certificate as it is not proper and regular on its face and that the failure to make this request would cause prejudice to the Defendant. Dated the 15th day of December, 2011 City of Toronto _ ” Joanna Opalinski____________ Joanna Opalinski J.P.