Her Majesty the Queen - v. -, 2011 SKPC 115

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 115 Date: August 3, 2011 Information: 7270028 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sean Tyler Kergan Appearing: Corporal D. Oleniuk For the Crown In Person For the Accused DECISION ON APPLICATION TO SET ASIDE CONVICTION D.J. KOVATCH, J BACKGROUND [ 1 ] The accused, Sean Tyler Kergan, was charged that on September 12, 2010, he disobeyed a red light at an intersection. On that day, Constable Jessica Forrester issued an offence notice ticket to Mr. Kergan, pursuant to the provisions of The

Summary Offences Procedure Act . The ticket was in the usual form in that it provided the accused could voluntarily pay $230.00, failing which he was required to appear in Provincial Court on November 10, 2010, at 1:30 p.m. No voluntary payment was made, and the accused appeared in Court on November 10, 2010, at which time he entered a not guilty plea and the matter was set for trial to be held on May 18, 2011, at 2:30 p.m. [ 2 ] At 2:30 p.m. on May 18, 2011, the Crown advised it was ready to proceed but Mr. Kergan was not present.

The Crown asked for leave to proceed with the trial ex parte , which leave was granted. The trial proceeded ex parte , and at the conclusion of the trial I found Mr. Kergan guilty of the charge. Some trials for other individuals, under The Traffic Safety Act , then proceeded. While those matters were in process, Mr. Kergan appeared before the Court.

[ 3 ] I was aware that in certain situations the Court has jurisdiction to set aside a default conviction. I was not sure as to whether those provisions applied in this case. I advised Mr. Kergan that on Wednesday, June 1, 2011, at 2:30 p.m. I would hear argument on his application to me to set aside the conviction and set a new trial date. On June 1, 2011, Mr. Kergan made that application. For the Crown, Corporal Oleniuk argued that the sections regarding the setting aside of default convictions were not applicable to this case.

Further, that with the Court having conducted an ex parte trial and having issued a conviction, I was now “ functus officio ” and could not grant Mr. Kergan’s application. I then adjourned to August 3, 2011, and reserved my decision on whether to grant Mr. Kergan’s application. ANALYSIS [ 4 ] Under s. 10(2) of The

Summary Offences Procedure Act, 1990 , where a Defendant has been issued an offence notice ticket, he may make a voluntary payment of the specified penalty. This constitutes a guilty plea, and the matter is then concluded. If this does not happen, then

Part IV of the Act , sections 17 to 23 applies. Pursuant to s. 19, a Defendant may enter a not guilty plea, in writing, prior to the Court date, and the clerk will set a time for trial. While not specifically stated in this part of the Act, obviously an individual may appear in Court on the date indicated on the offence notice ticket, and personally enter a plea to the charge. If the plea is not guilty, a trial date will immediately be given. [ 5 ] Section 20(1)(2) and (3) of the Act read as follows: 20(1) If: (

a) a defendant pleads not guilty pursuant to

section 19 but fails to appear in court in person or by an agent on the trial date; and (

b) service pursuant to subsection 19(2) of the notice on the defendant is proved; the justice: (

c) if the certificate of offence is complete and regular on its fact, shall: (

i) proceed to conduct the trial in the absence of the defendant; (ii) on application by a prosecutor: (

A) adjourn the proceedings; (

B) set a new trial date; and (

C) direct that the defendant be notified of the new trial date; or (iii) issue a warrant for the arrest of the defendant to bring the defendant before the justice; or (

d) if the certificate of offence is not complete and regular on its face, may: (

i) quash the proceedings; or (ii) on application by a prosecutor, allow the defects, if minor, to be corrected, and conduct the trial in the defendant’s absence.

(2) If a defendant fails to appear in court for his or her trial set pursuant to paragraph (1)(c)(ii)(B), the justice shall proceed to conduct the trial in the absence of the defendant.

(3) If an offender is convicted pursuant to procedures set forth in this section, a clerk shall give notice to the offender of: (

a) the conviction; (

b) the amount of the fine imposed; and (

c) the time allowed for payment. [ 6 ] It must be noted that when a not guilty plea has been entered and the accused then fails to appear for trial, it is not open to the Court to simply issue a default conviction. It is open to the Court to hear the trial in the absence of the Defendant, and then issue a conviction.

[ 7 ]

Section 22 of the Act then deals with default convictions. It reads as follows: Default Conviction 22(1) A defendant who : (

a) has been served with an offence notice; and (

b) has not responded in the manner provided for pursuant to

section 10, 19 or 21; is deemed not to wish to dispute the charge. (emphasis added)

(2) In the circumstances described in subsection (1), a justice: (

a) shall examine: (

i) the certificate of offence; and (ii) the certificate of service or the affidavit of service; and (

b) if the certificates mentioned in clause (

a) are: (

i) complete and regular on their face, may, without a hearing, enter a conviction in the defendant’s absence and impose the specified penalty sum; or (ii) not complete and regular on their face, may: (

A) quash the proceedings; or (

B) on application by a prosecutor, allow any defects, if minor, to be corrected, enter a conviction and impose the specified penalty sum.

(2.1) If the certificates mentioned in clause (2)(

a) are complete and regular on their face and the justice does not enter a conviction, the justice shall provide written reasons for the decision.

(3) The clerk shall give written notice to the offender of: (

a) the conviction; (

b) the imposition of the specified penalty sum as the amount of the fine; and (

c) the time allowed for payment of the fine. [ 8 ] With respect to this section, it must be noted that the accused has appeared in Court under s. 19, and has entered a not guilty plea. The trial then proceeded under s. 20(1)(c). This causes me to conclude that an ex parte trial and conviction under s. 20(1)(

c) is not a default conviction under s. 22. [ 9 ] This

section applies where an accused has not made a voluntary payment or entered a plea, in writing, and has not appeared in Court on the date specified for plea. In this situation, the accused “Is deemed not to wish to dispute the charge” and if the ticket is regular on its face, the accused is convicted of the charge. The Court does not hear any evidence per se and as a result this default conviction is qualitatively different than the conviction under s. 20 where the Court hears the evidence in the absence of the accused.

Pursuant to s. 22(3), the clerk of the Court then gives written notice of the conviction to the accused. [ 10 ] The very next section, s. 23, reads as follows: Application for Hearing. 23(1) If not more than 15 days have elapsed since the conviction first came to the attention of the offender, the offender may appear before a justice to request a hearing on the grounds that the offender did not have an opportunity: (

a) to dispute the charge; or (

b) to appear in person or by agent at the trial.

(2) If: (

a) an offender makes an appearance pursuant to subsection (1); and (

b) after hearing any evidence of the offender, the justice is satisfied that the offender did not have an opportunity to dispute the charge or appear in person or by agent at the trial and that it would be equitable to do so; the justice shall: (

c) set aside the conviction; and (

d) either: (

i) give the defendant a notice of trial in accordance with

section 19; or (ii) enter a conviction and proceed in accordance with

section 21. [ 11 ] Mr. Kergan has applied under this

section to set aside the conviction and to receive a new date for trial. The issue is whether s. 23 applies to all convictions by the Court, and in particular, applies to a conviction issued under s. 20(2) of this Act , or whether s. 23 only applies to a default conviction issued under s. 22 of the Act. For the following reasons, I am of the view that s. 23 only applies to the setting aside of a default conviction issued under s. 22 of the Act. Firstly, s. 23 speaks of the offender not having an opportunity to dispute the charge or appear in person or by an agent at trial.

Arguably at least, these conditions have not been met here. The accused has been given an opportunity to dispute the charge. In fact, he appeared and entered a not guilty plea. He was then given a date for trial and did not appear on that date. Secondly, under subsection (2), if the justice sets aside the conviction, he can then “give the Defendant a notice of trial in accordance with

section 19”. But that is exactly what has already happened here. Mr. Kergan was given a trial date under s. 19. When Mr. Kergan did not appear for the trial, the trial proceeded in his absence, pursuant to s. 20(2) and the conviction was issued. If Mr. Kergan can utilize s. 23 to set aside this conviction and obtain a new trial date, then in theory he could fail to appear for the next trial and again use s. 23 to set aside the conviction. The process could go on indefinitely and he could be tried an indefinite number of times. It seems to me that this would be a most unreasonable

interpretation of the legislation and a most unreasonable state of affairs. [ 12 ] I arrive at the same result by application of the maxim functus officio . Black’s Law Dictionary, Seventh Edition defines functus officio as follows: Functus officio. A task performed. ... Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority.

Applied to an officer whose term has expired and who has consequently no further official authority; and also to an instrument, power, agency, etc., which has fulfilled the purpose of its creation, and is therefore of no further virtue or effect. [ 13 ] Most often in legal proceedings, after a judge has heard a matter and rendered a decision or order, it is said that the judge is functus officio . In other words, the judge had performed his or her official task of hearing the matter and rendering an order, and the judge therefore has no further jurisdiction or power to deal with the matter.

In this case, I have heard the Crown’s evidence and made a legal determination convicting Mr. Kergan of the charge. I have assessed penalty. As a result, I believe I am functus officio and can no longer or further deal with this matter. [ 14 ] Going back to the legislation for a moment, s. 23 of The

Summary Offences Procedure Act allows the Court to set aside a default conviction. However, the default conviction issued under s. 22 is not based upon any hearing or determination of the evidence by the Court. It is based simply upon an evaluation of the offence notice ticket, a determination that the ticket is regular on its face, and the determination that the accused person has not taken any steps to indicate any opposition or dispute with the ticket. I believe my

interpretation of s. 23, as not being applicable to a conviction issued after an ex parte trial is consistent with the doctrine of functus officio as it has been applied by the Courts following a trial of the matter. [ 15 ] For all of the above mentioned reasons, it is my conclusion that the Court is functus officio and can no longer deal with this matter. Further, that s. 23 is not applicable to a conviction issued after an ex parte trial. For this reason, I cannot utilize s. 23 of the Act to set aside the conviction, and the conviction must stand. Mr. Kergan’s only possible remedy is by way of appeal.

In the interest of fairness, I extend the time during which Mr. Kergan may appeal my conviction of him and/or the terms of this order for thirty days to September 2, 2011. Dated at Moose Jaw, Saskatchewan, this 3 rd day of August, 2011.

____________________________________________ D.J. Kovatch, J