R. v. Mikhow, 2018 ONCJ 248

CITATION: R. v. Mikhow , 2018 ONCJ 248 DATE: March 20, 2018 INFORMATION NUMBER: 4611-999-00-8083970B-00 ONTARIO COURT OF JUSTICE (PROVINCIAL OFFENCES COURT) BETWEEN: HER MAJESTY THE QUEEN Respondent v. JUSTIN MIKHOW Appellant R U L I N G O N P R O V I N C I A L O F F E N C E S A C T A P P E A L by the Honourable Justice S. N. Latimer, at Guelph, on March 20th, 2018. APPEARANCES: P. Cassata - Prosecutor for Respondent C. Lawson - Agent for the Appellant. ONTARIO COURT OF JUSTICE (PROVINCIAL OFFENCES COURT) (

i) Table of Contents Ruling on Appeal Page 1 Transcript Ordered: April 5th, 2018. Transcript Completed: April 14th, 2018. TUESDAY, MARCH 20TH, 2018 . R E A S O N S F O R R U L I N G O N A P P E A L Latimer, J. (Orally): Introduction

This is a

Part I matter. Justin Mikhow has appealed pursuant to section 135(1) of the Provincial Offences Act from a conviction entered by a Justice of the Peace, pursuant to s. 9.1(1) of the Act. Mr. Mikhow, it appears, did not attend at a notified time of trial. The sitting Justice deemed him not to dispute the charge, pursuant to s. 9.1(1), presumably after examining the certificate and determining it was complete and regular on its face. The set fine of $85 was imposed, plus a related surcharge.

The appellant submits before me that the Justice of the Peace erred in entering the conviction, as the certificate is in fact not “complete and regular on its face”. He should have instead quashed the certificate, pursuant to s. 9.1(3) of the Act. This result was required, it is submitted, because of the language employed by the officer on the certificate, “unsafe lane change” to describe the offence committed.

Regulation 950, a regulation associated with the Provincial Offences Act, sets out words or expressions that may be used in a certificate of offence, and includes a lengthy list of such “words or expressions”: See s. 5.(1) of Regulation 950, RRO 1990. As it relates to the particular issue on this appeal, this regulation was amended in 2015 to change “fail to drive in marked lane” and “unsafe lane change” to “unsafe move - lane or shoulder”. In effect, it appears the officer was using outdated short-form language, at least in the eyes of the regulation, to describe the alleged offence on the certificate.

It is argued that this short form error invalidates the certificate, rendering it not complete and regular on its face. The respondent municipality submits there is no ambiguity and the individual has sufficient notice of the offence alleged. I am grateful for material filed and submissions made on behalf of the appellant. I note in particular that my colleague, Justice Agro, recently decided this very issue it appears in the manner suggested by the appellant: See R. v. Baeta , (July 4, 2017) unreported. As I understand that ruling, while the

section number was correct, and that alone would have made the certificate complete and regular, the inclusion of the words “unsafe lane change”, which were described as unauthorized language, invalidated the certificate. The appeal in Baeta was allowed and the certificate quashed. While I appreciate the utility in courts of coordinate jurisdiction reaching similar conclusions, I regrettably cannot agree with the conclusions reached by the court in Baeta. Analysis I am guided by the Court of Appeal’s judgment in London (City) v. Young, 2008 ONCA 429 , 233 CCC (3d) 10, para. 29 .

Justice Feldman, writing the majority opinion, states the following with regard to section 9(1) of the P.O.A., a very similar provision to 9.1: [ 29 ] When the offence notice is served and no response is received from the defendant within fifteen days, the justice must examine the certificate under s. 9(1) in order to determine whether it is "complete and regular on its face". In doing so, the justice is effectively determining whether the defendant received effective notice of all the information needed to decide whether to default... The term “effective notice”, in the

Part I context, requires an individual understand and be given notice of the offence alleged against him or her: See s. 3(1), 3(3), and 3(5) of the Act. In this case, the certificate referred to the correct offence

section and subsection, (s.154(1)(

a) of the H.T.A.) , the correct set fine ($85), and further described the offence as “unsafe lane change”. I note the full text of 154(1)(a): 154(1) Where a highway has been divided into clearly marked lanes for traffic,

(

a) a vehicle shall not be driven from one lane to another lane or to the shoulder or from the shoulder to a lane unless the driver first ascertains that it can be done safely; Having looked at that section, referring to it as “unsafe lane change”, in my view, effectively identifies the alleged offence and provides “effective notice”, when coupled with the relevant H.T.A .

section and the appropriate set fine, to permit someone like Mr. Mikhow to make an informed decision about whether to default on the certificate of offence. I note and rely upon as well the Court of Appeal’s language and conclusion in R. v. Lemieux , 1982 CanLII 3677 (ON CA) , [1982], OJ No. 84, 68 CCC (2d) 189, para. 9 . I note that

section 5.(1) of Regulation 950 refers to “words or expressions” that “may” be used. The use of the word “may” clearly indicates that the suggested language needn’t always be included on a certificate of offence. While it is certainly a best practice for officers to do so, in the circumstances of this particular case I am not satisfied that use of the expression “unsafe lane change” created any uncertainly or ambiguity about what offence was alleged, or otherwise rendered the certificate incomplete or irregular. I take comfort in this regard from the Ontario

Interpretation Act ,

section 28(d), which reads: 28(

d) where a form is prescribed, deviations therefrom not affecting the substance or calculated to mislead do not vitiate it. If there was something contradictory or conflicting about “unsafe lane change” in the context of this case I would entirely accept the appellant’s position: see, e.g., R. v. Stuparayk , 2009, ONCJ 394 ; R. v. Farah , 2013 ONCA 362 , at para. 23 , per Gillese J.A. in chambers. But, as I hope is clear by this point, I see nothing of the kind presently.

The language employed on the certificate, coupled with the inclusion of the correct offence section, met the “effective notice” requirement from paragraph 29 of London v. Young . The Justice of the Peace was correct to deem the certificate complete and regular on its face. DISPOSITION The appeal is dismissed. ***************************** FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) CANADA EVIDENCE ACT I, Barbara E. McCrae, certify that this document is a true and accurate transcript from the recording of R. v.

Justin Mikhow, in the Ontario Court of Justice (Provincial Offences Court), 36 Wyndham Street, Guelph, Ontario, N1H 7J5, taken from File No. 4611- Laptop1-20180320-085300-6-LATIMESC.dcr, which has been certified in Form 1. April 14th, 2018. _____________ Barbara McCrae, Certified Court Reporter and Ontario Authorized Court Transcriptionist#9445116863, barbara.mccrae@rogers.com