R. v. Appiah, 2012 ONCJ 754

COURT FILE No. Toronto Citation: R. v. Appiah, 2012 ONCJ 754 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ex rel THECITY OF TORONTO ) Ms. H. Clement for the Appellant (Appellant) ) ) — AND — ) ) SAMUEL APPIAH ) (Respondent) ) No one appearing ) for the Respondent ) ) Heard: November 26, 2012 ) ) NAKATSURU J.: [1] The respondent pleaded guilty before the justice of the peace on February 27, 2012, at Old City Hall, Toronto to theoffence of speeding 45 kilometres per hour in a 30 kilometre per hour zone contrary to

section 128 of the Highway Traffic Act R.S.O.1990 c. H.8. The Crown appeals the fine imposed by the justice of the peace. [2] The issue on appeal is a narrow one. Does the justice of the peace have the authority to impose a set fine under theProvincial Offences Act R.S.O. 1990 c. P. 33 rather than the statutory fine under section 128(14) of the Highway Traffic Act? [3] In my view, there is no such authority. The appeal will be allowed and the sentence will be varied to a fine of $45.00along with costs and victim fine surcharge payable within 120 days.

THE REASONS OF THE JUSTICE OF THE PEACE [4] After the respondent entered his plea, the justice of peace stated that he was going to impose a reduced fine, the set fine,in the amount of $37.50. The prosecutor objected and reminded the court that the statutory penalty for speeding 15 kilometres per hourover the speed limit was $45.00. In a very brief oral exchange, the justice of the peace stated that he understood this to be the case butgiven that the respondent had taken time out to come to court to deal with the matter, he was going to impose the reduced fine.

In a finaleffort to persuade His Worship to change his mind, the prosecutor alluded to the case of R. v. Winlow (2009), 2009 ONCA 643 ,99 O.R. (3d) 337 (Ont. C.A.) as binding on the court. The justice of the peace declined to follow the case and imposed the set fine of$37.50 as that was his normal practice to do so. [5] While no one can deny His Worship’s good intentions, he erred in failing to fine the respondent $45.00 for thefollowing reasons.

ANALYSIS [6] Under the Provincial Offences Act an individual who receives a certificate of offence, a speeding ticket, from a policeofficer can pay a “set fine” which is an amount set by the Chief Justice of the Ontario Court of Justice: see

section 1 and subsection3(2)(

b) of the Provincial Offences Act. The amount of the set fine is written on the speeding ticket. If the individual does not wish todispute the ticket, he or she can pay the set fine and applicable costs and surcharges either in person, by mail, or online. This thusconcludes the individual’s brief involvement in what was likely an unpleasant but relatively speaking benign interaction with the law: see

section 8 of the Provincial Offences Act. This is described as a payment made out of court. [7] However, if the individual chooses to have a trial, as the respondent did, and he or she is found guilty at court, then thepayable fine is different. It is the statutory penalty governed by subsection 128 (14) of the Highway Traffic Act. This penalty is higher. No doubt deliberately so in order to encourage out of court settlements to avoid unnecessary use of judicial resources.

Theaforementioned provisions of the Provincial Offences Act no longer apply once the matter gets before a justice of the peace. [8] This has been made clear by the case of R. v. Winlow. Laskin J.A. held that the fine for speeding was fixed bysubsection 128 (14) of the Highway Traffic Act and that there was no discretion in the court to reduce the fine. This was a matter ofstatutory

interpretation. Laskin J.A. referred to a number of contextual factors and the legislative purpose in coming to this conclusion.

As a result, the fines are fixed by that statute and are derived simply by multiplying the number of kilometers per hour over the speedlimit by the appropriate dollar figure. [9] While it is true that R. v. Winlow did not specifically deal with set fines under the Provincial Offences Act, thisdistinction is irrelevant. The result is the same. A set fine which is an out of court payment is simply a figure that amounts to a reducedfine. The justice of peace has no authority to reduce the penalty in this fashion. (Parenthetically, I do observe that recourse to

section 59 of the Provincial Offences Act may be available but that issue does not arise here: see City of Toronto v. Doroz (2011), 16 M.V.R. (6th)156 (Ont. C.J.)) [10] Earlier than R. v. Winlow, Lampkin J. held in the case of R. v. Weber (2003), (ON SC), 64 O.R. (3d)126 (Ont. C.J.), directly on point to the case at bar, that when a defendant opts to go trial on a speeding offence and is found guilty, it issubsection 128(14) of the Highway Traffic Act that governs the penalty and not the provisions of the Provincial Offences Act dealingwith set fines.

He too held that there was no discretion to impose a lesser fine. Laskin J.A. referred to R. v. Weber in R. v. Winlow whenhe outlined the controversy and divergent lines of authority on the issue of whether there was discretion on the part of the trial judge toreduce the fine. That controversy was settled when Laskin J.A. held that there was not. [11] Thus, in my view, the decision of the learned justice of the peace cannot stand. The appeal as to sentence is allowed andthe order will go accordingly. Released: December 5, 2012. Signed: