Durham (Regional Municipality) v. Verma, 2011 ONCJ 19

COURT FILE NO.: 2811 999 DATE: January 19, 2011 Citation: Durham (Regional Municipality) v. Verma , 2011 ONCJ 19 ONTARIO COURT OF JUSTICE (Central East Region) B E T W E E N: ) ) Regional Municipality of Durham ) ) ) J. Moffat, Prosecutor ) ) and ) ) ) ) Avinash Verma ) ) ) D. Petras, for the Appellant ) ) ) ) ) HEARD: December 8,2010 JUDGMENT ON APPEAL BELLEFONTAINE, J: The appellant appeals his conviction for the offence of failing to wear a complete seatbelt assembly on the basis that the learned Justice of the Peace erred in finding the certificate of offence to be “complete and regular on its face” under

Section 9.1 (2) of the Provincial Offences Act , (the “P.O.A”.) notwithstanding that the Provincial Offences officer who issued the certificate of offence failed to certify on the certificate that he served the offence notice on the appellant as required pursuant to Section 3(5). The position of the appellant is that the certificate of offence should have been quashed. For convenience sake the relevant provisions of the P.O.A. are set out below:

PART I COMMENCEMENT OF PROCEEDINGS BY CERTIFICATE OF OFFENCE Certificate of offence and offence notice 3.

(1) In addition to the procedure set out in

Part III for commencing a proceeding by laying an information, a proceeding in respect of an offence may be commenced by filing a certificate of offence alleging the offence in the office of the court. R.S.O. 1990, c. P.33, s. 3 (1) .

Issuance and service

(2) A provincial offences officer who believes that one or more persons have committed an offence may issue, by completing and signing in the form prescribed under

section 13, (

a) a certificate of offence certifying that an offence has been committed; and (

b) either an offence notice indicating the set fine for the offence or a summons. 2009, c. 33 , Sched. 4, s. 1 (2). Service

(3) The offence notice or summons shall be served personally upon the person charged within thirty days after the alleged offence occurred. R.S.O. 1990, c. P.33, s. 3 (3) .

(4) Repealed: 2009, c. 33 , Sched. 4, s. 1 (3). Certificate of service

(5) Where service is made by the provincial offences officer who issued the certificate of offence, the officer shall certify on the certificate of offence that he or she personally served the offence notice or summons on the person charged and the date of service. R.S.O. 1990, c. P.33, s. 3 (5) . Affidavit of service

(6) Where service is made by a person other than the provincial offences officer who issued the certificate of offence, he or she shall complete an affidavit of service in the prescribed form. R.S.O. 1990, c. P.33, s. 3 (6) . Certificate as evidence

(7) A certificate of service of an offence notice or summons purporting to be signed by the provincial offences officer issuing it or an affidavit of service under subsection (6) shall be received in evidence and is proof of personal service in the absence of evidence to the contrary. R.S.O. 1990, c. P.33, s. 3 (7) . . Intention to appear 5.

(1) A defendant who is served with an offence notice may give notice of intention to appear in court for the purpose of entering a plea and having a trial of the matter by so indicating on the offence notice and delivering the notice to the court office specified in it. 1993, c. 31, s. 1 (2). Notice of trial

(2) Where an offence notice is received under subsection (1), the clerk of the court shall, as soon as is practicable, give notice to the defendant and prosecutor of the time and place of the trial. R.S.O. 1990, c. P.33, s. 5 (2) . Failure to appear at trial 9.1

(1) A defendant is deemed to not wish to dispute the charge where the defendant has been issued a notice of the time and place of trial and fails to appear at the time and place appointed for the trial. 2009, c. 33 , Sched. 4, s. 1 (14). Examination by justice

(2) If subsection (1) applies,

section 54 does not apply, and a justice shall examine the certificate of offence and shall without a hearing enter a conviction in the defendant’s absence and impose the set fine for the offence if the certificate is complete and regular on its face. 1993, c. 31, s. 1 (3). Quashing proceeding

(3) The justice shall quash the proceeding if he or she is not able to enter a conviction. 1993, c. 31, s. 1 (3). Signature on notice 1 0. A signature on an offence notice or notice of intention to appear purporting to be that of the defendant is proof, in the absence of evidence to the contrary, that it is the signature of the defendant. 1993, c. 31, s. 1 (4). Reopening 11.

(1) If a defendant who has been convicted without a hearing attends at the court office during regular office hours within fifteen days of becoming aware of the conviction and appears before a justice requesting that the conviction be struck out, the justice shall strike out the conviction if he or she is satisfied by affidavit of the defendant that, through no fault of the defendant, the defendant was unable to appear for a hearing or a notice or document relating to the offence was not delivered. 1993, c. 31, s. 1 (5).

The issue on this appeal is the subject of two competing decisions in our Court which I am obligated to address. The appellant reliesupon R. v. Khoshael [2001] O.J. No. 2110 in which Justice Libman held that a certificate of offence which contains no certification ofservice by the Provincial Offences officer who issued the ticket is not complete and regular on its face even though the defendant hadfiled a notice of intention to appear to dispute the charge as would have to have been done for the matter to go on to be considered by theJustice under

Section 9.1. He granted the appeal against conviction and quashed the certificate of offence as mandated by s. 9.1 (3)when the certificate is not complete and regular on its face. The prosecution relies on a decision of Justice Thomas (now a Justice of theSuperior Court of Ontario) in R. v.

Rakesh Bhandari, Court File Number: Municipality of Chatham-Kent, 78600705(2006) who held thatin such circumstances “the appellant had notice of the proceedings and whether the issuing officer checked a box on the face of thecertificate should no longer be a concern for the judicial officer considering completeness and regularity”. He upheld the convictionentered by the Justice of the Peace notwithstanding the absence of certification of service. I consider the opposing decisions to reflect tensions within the P.O.A itself.

Is substantive compliance with the act sufficient if it reachesa level that the Justice is satisfied no injustice is being done to a defendant sufficient or must strict compliance with the wording of thestatute prevail even where the Justice is satisfied that no injustice is being done. Justice Libman articulated a number of points in favourof his position. R. v. Khoshael was an omnibus decision, for a number of related cases, in which Justice Libman dealt not only with arguments relatingto the lack of certification of service, but also situations where the set fine was in error on the certificate of offence.

Given the balance inthe P.O.A. between the inference that defendants are consenting to a conviction if they fail to act and the obligation on the Justice toensure injustice does not occur he held that where defects appear in a certificate of offence such that it cannot be said to be complete andregular on its face, the result must be a quashing order. He noted as one of the supports for his decision the prejudice to an accused that could flow from an error in the set fine and the need forstrict compliance in this regard to avoid injustice being done.

With respect to the prejudice associated with a lack of certification ofservice even when the defendant has filed a notice of intention to appear, he notes that different appeal routes will be open to anindividual depending on whether he has filed a notice of intention to appear or not.

I note from Justice Thomas’ decision that it is clearthat he feels no injustice is being done to an individual who clearly knows about the offence when service is proved by virtue of hishaving signed the notice of intention to appear as opposed to having proof of service established by way of the officer’s certification onthe Certificate of Offence.

It may be significant that the notice of intention to appear signed by the accused (or as in this case by hisagent) includes a warning which at that time read: NOTE: IF YOU FAIL TO APPEAR AT THE TIME AND PLACE SET FOR YOUR TRIAL, YOU WILL BE DEEMED NOT TODISPUTE THE CHARGE, AND A CONVICTION MAY BE ENTERED AGAINST YOU IN YOUR ABSENCE, WITHOUTFURTHER NOTICE. Further support for Justice Libman’s decision was obtained by virtue of the fact that under

Section 9.1(3) no power to amend the set fineis available to the Justice to remedy the prejudice and the only recourse upon lack of completeness or regularity of the certificate is toquash it. An important determinant of the issue is whether or not the proof of service portion of the certificate of offence may be found to besurplusage in some cases or whether it must always be completed. Justice Libman held that both proof of service and the correct amountof the set fine were not surplusage and in the absence of them properly on the Certificate of Offence, it was not “complete and regular onits face”.

With respect to the requirement for the correct set fine, Koshael was substantially approved of by the Court of Appeal inLondon (City) v. Young 2008 ONCA 429 , [2008] O.J. No. 2118. This decision was one under

Section 9 of the ProvincialOffences Act which applies when the defendant did not respond to the offence notice but is similarly worded to

Section 9.1 where anotice of intention to defend has been filed and a notice of trial has been sent to the defendant as requested by him. In London v. Young,the Court of Appeal held that where an offence notice is being used, the set fine amount cannot be seen to be surplusage as the amount ofthe fine is necessary for the defendant to make the important decision of whether to defend the matter or not.

They also considered themeaning of “regular” and relied on the Oxford English Dictionary which related one definition that appears to be relevant being“recognized as formally correct”, and went on to state “if the set fine, as in the case at bar, is incorrectly recorded on the certificate ofoffence, it simply cannot be regular on its face and must be quashed”. The Court also noted that when a matter is proceeded by way ofsummons, the certificate of offence and offence notice need not contain the set fine because the defendant does not have the option ofdefaulting or not.

In such a situation he has no need to consider options to defend or not based on the amount of the fine because he mustattend court. Accordingly whether or not the set fine is required for the certificate of offence to be formally correct for it to be found tobe complete and regular on its face, as opposed to surplusage, depends on which option the police have taken to effect service of thecertificate of offence.

In those situations where service is dealt with by way of summons the set fine need not be included in thecertificate of offence for it to be complete and regular on its face notwithstanding that portion of the form that provides for the fine to beset out. The certificate of offence does not provide a place for proof of service of the summons or service by any officer other than theone who has issued the certificate of offence. It does provide a space for a return date of the summons to be included if that mode ofservice was used which would be left blank in the normal course. In London v.

Young the court did not comment on or express any reservations about the analysis for the lack of certification of servicethat was expressed in R. v. Koshael, and paralleled the incorrect fine issue that they approved of. R. v. Koshael is in my view entitled tosome added deference by virtue of the Court of Appeals reference to it. The Court of Appeal did however expressly overrule York (Regional Municipality) v. Wilson, (2005), (ON SC), 27 M.V.R.(5th) 153. which was referenced by Justice Thomasin R. v. Bhandari. I do not consider however that this affects the ratio of R. v.

Bhandari that having filed the notice of intention to appearthe defendant should be found to have had notice of the proceedings. With respect to those who take a contrary view, I prefer Justice Thomas’s conclusion in R. v. Bhandari for the following reasons:

1)I cannot see how the absence of completion of the certificate with respect to service can be a defect such that the certificate is not complete and regular on its face when it is required in some situations and not in others. The P.O.A. permits service to be effected in different ways.

Service can be proved not only by the certification of the officer who issued the certificate of offence on the certificate, but, pursuant to s.3(6) , could also be made by a person other than the provincial offences officer who issued the certificate of offence who would then complete an affidavit of service in the prescribed form [s.3(7)], in which case the certification on the certificate would be blank as it is in this case.

Similarly, the P.O.A. allows for service by summons in which case again the boxes for certification of service would properly be left blank and recourse would have to be had to the affidavit of service, a document external to the certificate of offence, to ensure that service had been made. Just as a Justice applying London v. Young would be able to look at external documents to determine what the nature of service was to determine if the set fine was required to be set out, so to the Justice considering the matter under

Section 9.1 should equally be able to look to external sources being the Affidavit of Service to determine whether or not service has been affected to determine whether the certification of service on the certificate of offence is required.

As an extension of such circumstances I can see little difference as to whether the source of the proof that service has been effected comes from the Affidavit of Service of the serving individual or the admission of service by the defendant which comes by way of the necessary implication flowing from his having signed the notice of intention to appear. 2 )Ignoring lawful proof of service of certificates of offence by way of affidavit under s.3 (7) would effectively make that

section redundant if it could not be used in the absence of the defendant. As the boxes for certification of service will not be completed in such circumstances they would be surplusage where affidavits of service are lawfully used. 3 )A defendant who files a notice of intention to appear does lose the benefit of the expedited re-opening appeal process. However I do not feel that the difference in appeal routes is so significant as to create a prejudice to an accused or an injustice that would require the Certificate to include the certification of service as opposed to allowing other valid proofs of service.

The substantive injustice that a Justice must guard against, when reviewing proof of service, is whether the defendant is aware of the proceedings so that he can defend them if he chooses. That injustice can be prevented without taking a narrow view of the statutory requirement that the certificate be complete and regular on its face. 4 )The lack of amendment power under s.9.1, which supports the conclusions arrived at in R. v. Koshael and London v. Young is not relevant to the certification of service issue.

While this does provide support in the context of an error in the amount of the set fine, I do not see this argument to be applicable to the requirement for certification of proof of service. 5 )Ignoring valid proofs of service not on the face of the certificate such as the statutorily authorized affidavit of service or the statutorily authorized notice of intention to appear leads to an unacceptable result. Applying the strict test in R. v.

Koshael , every defendant who has been lawfully served with a summons or a certificate of offence by a person other than the issuing officer can file a notice of intention to defend, ignore the notice of trial he requested, intentionally fail to appear for his trial and the Justice will be required to quash the certificate based on the lack of certification of service on the face of the certificate even though those other lawful proofs of service are before him or her and are not properly included on the certificate of offence. An

interpretation of the act that provides an automatic technical defence to all defendants in that group is inconsistent with the intention of the P.O.A. and should be avoided. 6 )The Court of Appeals

interpretation of “complete and regular on its face” for the purpose of determining whether the set fine must be included in the certificate of offence in London v.Young allows for some flexibility in considering documents external to the certificate of offence to determine what boxes are surplusage on the form. 7 )Given that a large majority of charges will result in the issuing officer serving the certificate on the defendant at the scene I view the option given of certifying service on the face of the certificate of offence as opposed to requiring a separately sworn affidavit of service to be done for convenience and efficiency.

I do not consider this part of the form to be fundamental to the charge when alternatives are available to establish service. I am mindful of the need for a balance in the application of the P.O.A. given the significant procedural advantages it gives to the prosecution and accordingly the need for careful scrutiny by a Justice to ensure that no injustice is done to a defendant. However I consider it to be an unnecessarily and overly strict

interpretation of the P.O.A. to require proof of service to be established only by completion of certification of service on the face of the certificate of offence. Such certification is appropriately considered surplusage when the documentation before the reviewing Justice otherwise establishes service has been effected. Accordingly the appeal in this matter will be dismissed. P.L. Bellefontaine, Justice