R. v. Tizzard, 2011 ONCJ 821

Information No. 6027433A-00 Citation: R. v. Tizzard , 2011 ONCJ 821 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. RONALD TIZZARD REASONS FOR JUDGMENT Before THE HONOURABLE JUSTICE P.L. BELLEFONTAINE on November 23, 2011 at OSHAWA, Ontario APPEARANCES : N. Benron Counsel for the Crown L. Smart Counsel for Ronald Tizzard WEDNESDAY, NOVEMBER 23, 2011 : UPON RESUMING: REASONS FOR JUDGMENT

BELLEFONTAINE, J. (Orally): The defendant appeals from his conviction for speeding by a justice dealing with the matter under Section 9(2) of the ProvincialOffences Act as a result of his being deemed not to dispute the charge. It is admitted that he did not respond to his offence notice torequest a trial and that the Certificate of Offence before the justice for examination was complete and regular on its face.

It is submittedthat the conviction should be overturned and the Certificate quashed on the basis that the Certificate of Offence was amended after itsCompanion Offence notice was served on the defendant and before it was filed with the court. At issue is whether an officer cansubstantively amend or make additions to the Certificate of Offence prior to filing it with the court and secondly, whether a trial shouldbe ordered rather than quashing the Certificate.

The Certificate of Offence which is filed with the court and its Companion Offencenotice which is provided to a defendant are part of a carbon form snap set which results in identical information being included in therelevant parts of both of the forms. As initially completed by the officer, the forms read did commit the offence of “speeding-blank in a 100 kilometre per hour zone” contrary to the Highway TrafficAct,

Section 128. The prosecution accepts that the absence of a specific rate of speed on the Certificate of Offence is an omission that isfatal to it being complete and regular on its face, such that the examining justice would be required to quash the information underSection 9(2) of the Provincial Offences Act. In the absence of that information, the justice would not be able to determine if the set fineamount was correct, which is an essential component to determining whether the Certificate is regular.

Prior to filing the Certificate andwithout notice to the defendant, the officer added to the Certificate of Offence by adding the number “130” into the phrase did committhe offence of “speeding-130 in a posted 100 kilometre per hour zone”, contrary to the Highway Traffic Act

Section 128. The appeal hasbeen argued on the basis that the Certificate of Offence as filed was complete and regular on its face given that additional numericalspeed and that the conviction by the justice reviewing it was proper on the face of the Certificate. The defence submission is on thebasis of R. v. John McGonigal [1990] O.J. No. 3400, a decision of Justice Wolder who dealt with this issue and held in his reasons forjudgment as follows: “This court is of the view that there is a provision under part one which allows certain offences to be commenced by way of Certificate ofOffence. This is really a

summary procedure to avoid necessity of having to swear a formal information and issue a summons as iscontemplated under part three of the Provincial Offences Act. However, it’s a statutory requirement that requires strict compliance. There is no provision under the Provincial Offences Act to amend an original document after execution or acceptance of service by theaccused. This is a matter that should have been done by motion. It is the view of this Court that the officer having chosen to amend theoriginal documents without authority, in fact, has nullified these proceedings. The officer had an option.

The option was to then issue asummons under part three with the consent of the Attorney General. The officer failed to do that. He took a short cut. There is noprovision in the Act for such a short cut, and I am, therefore, going to quash the information.” Further support for that same proposition can be found in the case of R. v. Koza [1995] O.J. No. 4278 where Smith Provincial CourtJudge very succinctly stated in the entirety of his decision, “The conviction is quashed, document changed after delivery to the defendant. Conviction quashed.” Additionally, in R. v. Sonda [2000] O.J.

No. 4324 a decision of Megginson, J. and as well, a decision of Justice Quon in R. v. Gwynne[2001] O.J. No. 331 at paragraph 41 to 43 where some support can be seen for this same proposition. The prosecution has respondedwith the decision of Justice Lampkin in R. v. Aristidou 2007 ONCJ 250 , [2007] O.J. No. 2229 in which Justice Lampkin heldthat it was open to a Provincial Offences Officer to amend the Certificate.

He stated at paragraph 20, “But what if the provincial offences officer discovers an error prior to filing the certificate in the office of the court or the laying of aninformation and proceeds to correct the error before filing the certificate or laying the information? The error may be as simple as themisspelling of a name. In my opinion the officer is entitled to make the correction before the proceeding has been commenced by filingthe certificate or laying of the information.” Having considered these opposing cases, I am of the opinion that the decision of Justice Wolder in R. v.

McGonigal is to be preferredand I would hold that the Certificate of Offence cannot be substantively altered after the service of the Offence Notice and prior to itsfiling. I note in this regard that Part One and Two provides for a streamlined process to deal with a large volume of less seriousProvincial Offence matters. The streamlined process is to reduce the number of matters being dealt with in court and the streamlinedprocess allows defendant’s to plead guilty and make other decisions and accept responsibility if they choose too, without an unnecessaryattendance in court.

Their simple options are set out on the back of the offence notice that is provided to them giving them the option toplead guilty, to plead guilty with an explanation or to request a trial. By implication as well flowing from

Section 9 of the ProvincialOffences Act, there is the option that if they do nothing, the matter will be reviewed by a justice of the peace and a conviction will beentered subject to the requirement that the justice examined the Certificate of Offence on its face to ensure that it is substantiallycomplete. In my view, in order to make an informed decision to enter a plea a defendant needs to know what they are pleading to orwhat they will be convicted of if they refuse to act.

As well significantly, given the administrative consequences of many of the offencesbefore the Provincial Offences Court, in my view they need to be in a position to assess the administrative consequences of their plea aswell. Allowing a post service amendment to the certificate of offence where that amendment is substantive, deprives the defendant ofthat ability to make an informed decision whether to plead guilty, to have a trial or to ignore the matter.

To require and permit adefendant to plead under those circumstances, in my view substantially undermines the efficacy of the streamlined regime that has beenset up in these matters. The prosecution submits further that as an amendment can only be made in court under

Section 34 and

proceedings are not commenced until filed as defined in

Section 3 with the court, that some pre-filing amendment power is implicit in the legislation. I interpret, however, rule 15(1) of the Rules of the Ontario Court, Provincial Division, in Provincial Offences proceedings which is Ontario Regulation 200, which reads, “The following matter shall be dealt with only in court; ...2. Amending --- a certificate of offence”, to be a prohibition on the amendment being made outside of the court process. In my view, it’s not necessary to have a pre-filing amendment step or option.

The appellant has noted that there are other options available to the police if these circumstances arise, such as laying a Part Three information or serving a new Certificate of Offence and Offence Notice on the defendant with the proper information. I consider the Offence Notice in these circumstances to be more than just a document compelling a defendants involvement in the court process, as a summons would be-where less particularity might be acceptable, as an information is going to be ultimately provided to the defendant and available for him at court.

In my view, the notice of the offence implicit in an Offence Notice is simply that, a notice of the offence itself and is designed to holistically include the information necessary for the individual to decide whether to plead guilty to the offence or not. Accordingly, I considered an amendment to the Certificate of Offence to not be permitted and that under Section 9(1) of the Provincial Offences Act , it would have been appropriately quashed by the reviewing Justice of the Peace.

The prosecution has submitted further, however, that I should order a new trial rather than quash the certificate and allow the matter to be dealt with in the fair trial processes provided for, which would include the right to amend the certificate under

Section 34 to overcome this deficiency. They submit that do otherwise allows the defence to employ the strategy of hiding the defect from the Justice of the Peace dealing with the matter under Section 9(1) and from reviewing the matter at that time until a point where it cannot be corrected by the courts. In my view, this option is available to the defence given the streamlined process and I see no miscarriage of justice flowing from this. Indeed, it is a very similar situation to R. v. Koshail dealt with by Justice Libman where these types of defects are matters which cannot survive Section 9(1).

Although, I certainly appreciate that defects appearing on the face may be slightly different from this type of situation, in my view, the result is the same that it is an approach that the defence are entitled to take to avoid the effects of

Section 34 of the Provincial Offences Act . Accordingly, the conviction in this matter will be overturned and the Certificate of Offence quashed. ******** COURT ADJOURNED