R. v. Badhan, 2018 ONCJ 747

CITATION: R. v. Badhan , 2018 ONCJ 747 DATE: September 21, 2018 ONTARIO COURT OF JUSTICE East Region BETWEEN: Her Majesty the Queen Respondent — and — Talwinder Badhan Appellant Before Mr. Justice Allan G. Letourneau Written Reasons for Judgment released September 21, 2018 Tim Murdock (paralegal).................................................................................. for the Appellant Sarah Gareau ................................................................................................ for the Respondent A.G. Letourneau, J.: Introduction 1 On August 4, 2017 the appellant, Talwinder Badhan (“Badhan”), was charged under section 154(1)(

a) of the Highway Traffic Act (“HTA”) (unsafe motor vehicle movement between lanes, or between a lane and shoulder, or a shoulder and lane). 2 Badhan had paralegal representation throughout the

Part I proceedings. There were several adjournments that culminated in a February 13, 2018 trial date. On that date Badhan failed to appear in court and no one appeared on his behalf. Consequently, Her Worship, Justice of the Peace D. Chapelle proceeded pursuant to s. 9.1 of the Provincial Offences Act (“POA”) . Her Worship entered a conviction on the stipulated charge and imposed the set fine, with time to pay. 3 A week later Badhan filed his appeal.

The Appellant’s Position 4 The sole issue raised in the appeal (Notice of Appeal, para. 16—“Grounds” Section) is that the Certificate is not complete and regular because it contains short form wording that expired prior to the alleged offence date. This appeal was argued on the basis that if the inclusion of such wording results in the Certificate not being complete and regular then Justice of the Peace Chapelle should have quashed the Certificate by virtue of s. 9.1(3) of the POA (“9.1(3) The justice shall quash the proceeding if he or she is not able to enter a conviction”). The Respondent’s Position 5 Ms.

Gareau sees two issues: (1) what is the standard of review of the original decision; and, (2) was the Certificate, in fact, complete and regular?

6 She submits that the effect of the charging officer writing expired short form wording on the Certificate is a question of law and isjudged on the basis of correctness in this appeal. I agree. 7 The proper characterization of whether a Certificate is complete and regular involves a legal assessment based on all of theaccepted factual circumstances: … this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Araujo,2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. (R. v.

Shepherd, 2009SCC 35 , 2009 SCJ 35, para. 20.) 8 Ms. Gareau maintains that the original decision that the Certificate was not fatally flawed was legally correct. 9 There is no legal requirement to use the prescribed short form wording on the Certificate. Section 13(3) of the POA providesthat: “Where the regulations do not authorize the use of a word or expression to describe an offence in a form prescribed under clause(1.1) (a), the offence may be described in accordance with

section 25” (emphasis added in italicized bold print). 10 Given that Badhan’s Certificate did not use the prescribed short form wording, s. 25(3) of the POA provides that if a count ismissing an essential element of the charge the essential elements of the offence are deemed to be incorporated if the charge makesreference to the provision that creates the offence. 11 Badhan’s Certificate of Offence specifies that he was charged under s. 154(1)(

a) of the Highway Traffic Act. Thus, the essentialelements of the offence are deemed to be incorporated into the Certificate. 12 Ms. Gareau submits that the POA’s philosophy and objectives were consciously designed to promote adjudications based on themerits of the case and to substantially curtail petty or overly technical arguments. 13 She maintains that the ultimate issue in this appeal is whether the use of the expired short form wording prejudiced Badhan in hisdefence. She says that the expired short form wording caused him no legal prejudice. The Decision 14 When Badhan was charged the prescribed s. 154(1)(

a) short form wording was: “unsafe move—lane or shoulder”. That wordingcame into effect on August 1, 2015. 15 The two prescribed short form wordings (for a s. 154(1)(

a) offence) that immediately preceded the August 1, 2015 changesincluded the wording that the charging officer wrote on Badhan’s Certificate (“fail to drive in marked lane”) as well as “unsafe lanechange”. 16 Ontario POA Regulation 950, s. 5, lists prescribed short form wording that may be used on a Certificate. In other words, theabsence of the prescribed short form wording does not, ipso facto, make the Certificate incomplete or irregular. Nevertheless, I agreewith Justice S.N. Latimer’s remarks in R. v.

Mikhow, 2018 OJ 2137 CJ, that it would be best practices for the charging officer to use theprescribed short form wording. 17 In Niagara (Reg. Municipality) v. Kosyatchkov, 2013 OJ 424 SCJ, Justice Ramsay set aside the Justice of the Peace’s trial ruling(not a 9.1 proceeding) quashing the speeding Certificate for not including the short form wording—i.e. “speeding”—in the Certificate. The Certificate specifically alleged that Kosyatchkov was charged pursuant to

section 128 (i.e. speeding) of the HTA. It also alleged thathe was travelling at 120 km/h in a posted 100 km/h zone. Thus, by virtue of sections 13 and 25 of the POA, all of the essential elements

of the speeding offence were incorporated into the Certificate. Justice Ramsay held that the accused knew the case to be presentedagainst him. Consequently, the Certificate met the complete and regular requirements despite the omission of the prescribed short formwording for the offence in the Certificate. 18 Section 13(2) of the POA provides that the use of the prescribed short form wording is “sufficient for all purposes to describe theoffence designated”. 19 In Ontario (Ministry of Transportation) v.

Don’s Triple F Transport Inc. (“Don’s Triple F”), 2012 ONCA 536 , 2012OJ 3754 the Ontario Court of Appeal noted that there were two prescribed short form wordings for the subject offences under s. 68.1(1)of the HTA: “drive commercial motor vehicle not equipped with working speed-limiting system” and “permit operation of commercialmotor vehicle not equipped with working speed-limiting system”. 20 Don’s Triple F’s charging document used the “permit operation of commercial motor vehicle not equipped with working speed-limiting system” prescribed short form wording.

The trial evidence proved that the transport had a working speed-limiting system. 21 Despite the absence of any reference in the Certificate to the allegation that Don’s Triple F failed to activate the speed-limitingsystem to the 105 km/h limit prescribed by regulation, Feldman J.A. and Himel J.A. held that the charge was complete and regularbecause the prescribed short form wording was used in the Certificate.

Thus, by virtue of s. 13(2) of the POA, the short form wording issufficient for all purposes to describe the offence. 22 Although the prescribed short form wording was not entered on Badhan’s Certificate, Officer Shaw did write “Highway TrafficAct” and “section 154(1)(a)” on the Certificate. Thus, all of the essential elements of the offence are deemed to be incorporated into thecount: s. 25(3), POA. 23 Accordingly, absent a finding by this court that the Certificate was nevertheless not complete or regular, Justice of the PeaceChapelle’s conviction pursuant to the s. 9.1 POA process is legally unassailable: 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 oftrial and fails to appear at the time and place appointed for the trial.

(2) If subsection (1) applies,

section 54 does not apply, and a justice shall examine the certificate of offence and shall without a hearingenter 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.

(3) The justice shall quash the proceeding if he or she is not able to enter a conviction. 24 In Mikhow the impugned wording in the Certificate was the expired (but previously prescribed) short form wording of “unsafelane change”. In determining that the Certificate was complete and regular Justice Latimer relied on the Ontario Court of Appeal’sinterpretation in London (City) v. Young, 2008 ONCA 429, of s. 9(1) of the POA, (being “a very similar provision to 9.1”). 25

Section 9 of the POA and paragraphs 29 to 31 (all inclusive) of London (City) v. Young, supra, are reproduced: POA 9.

(1) A defendant is deemed to not wish to dispute the charge where, (

a) at least 15 days have elapsed after the defendant was served with the offence notice and the defendant did not give notice of intentionto appear under

section 5, did not request a meeting with the prosecutor in accordance with

section 5.1 and did not plead guilty undersection 7 or 8; (

b) the defendant requested a meeting with the prosecutor in accordance with

section 5.1 but did not attend the scheduled meeting withthe prosecutor; or (

c) the defendant reached an agreement with the prosecutor under subsection 5.1 (7) but did not appear at a sentencing hearing with a

justice under subsection 5.1 (8).

(2) Where a defendant is deemed to not wish to dispute the charge, a justice shall examine the certificate of offence and shall, (

a) where the certificate of offence is complete and regular on its face, enter a conviction in the defendant's absence and without a hearing and impose the set fine for the offence; or (

b) where the certificate of offence is not complete and regular on its face, quash the proceeding.

(3) Where the offence is in respect of an offence under a by-law of a municipality, the justice shall enter a conviction under clause (2) (

a) without proof of the by-law that creates the offence if the certificate of offence is complete and regular on its face. London (City) v. Young 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 set fine is one of those required pieces of information. As noted above, s. 3(2)(

a) requires it to be included on the offence notice, which is a carbon copy of the certificate. Therefore, the set fine is also required to be on the certificate or else it can be inferred that it was not on the notice, which is not before the justice. [emphasis added in italicized bold font] 30 The Oxford English Dictionary, Second Edition, Vol. XIII at p. 523 contains a number of

definitions or meanings of the word "regular". One definition that appears to be relevant is "recognized as formally correct". If the set fine, as in the case at bar, is incorrectly recorded on the certificate, it simply cannot be regular on its face and must be quashed. 31 Because the justice has no power to amend the certificate under s. 9(1) , the requirement in s. 9(1)(

a) that the justice impose the set fine upon conviction must mean the set fine as shown on the certificate. If that amount is incorrect, the justice cannot impose it, as it is not the statutorily defined set fine. The justice is obliged to quash the proceeding under s. 9(1)(b). 26 I agree with Justice Livingstone ( R. v.

Wilson , 2001 OJ 4907 CJ, paras. 18 & 19 ) that, as I am sitting as an appeal court in this matter, I am required to accept that Justice of the Peace Chapelle scrutinized the Certificate and concluded that it was complete and regular in the sense that the Certificate contained “all of the essential information” required to support a conviction. 27 Madam Justice P.H.M. Agro’s unreported oral decision of R. v. Baeta dated July 4, 2017 was the only case that Badhan relied on in this appeal. 28 Mr. Baeta’s s. 154(1)(

a) HTA charge used the same expired short form wording that was used in Badhan’s charge: “fail[ed] to drive in marked lane”. In accepting Baeta’s argument that the charge was not complete and regular Justice Agro stated that the charging officer could have chosen not to enter any wording on the Certificate concerning a short description of the offence alleged. However, “he chose to use language that is no longer authorized by regulation and for that reason the appeal will be allowed”.

Consequently, the conviction at first instance was overturned. 29 Regrettably, like Justice Latimer in Mikhow , I am unable to follow the Baeta decision given that I am convinced that it is wrong in law. To be fair to Justice Agro, Baeta’s counsel and the respondent’s counsel argued the case in a hurried fashion. 30 More importantly, when Justice Agro inquired about provisions in the POA concerning the use of the short form wording the respondent’s counsel took a minute to review the POA and then said “Nope.

I’m not seeing anything in the Act itself regarding the use of the short form wording other than the regulation that I’ve set out, the Regulation 950”. Had the respondent’s counsel alerted Justice Agro to sections 13 and 25 of the POA , it is likely that Justice Agro would not have quashed the conviction. 31 R. v. Wilson, supra , is the leading authority on the meaning of “complete and regular” as it pertains to a Certificate of Offence issued under

Part 1 of the POA . The most salient portions of the decision (for our purposes) are reproduced: 13 [12]

Section 9.1 of the Provincial Offences Act creates unique procedures in relation to certificates of offence issued under

Part I, since the defendant may be convicted in his or her absence. 14 Specifically, the defendant's failure to appear at trial is taken to represent that he or she "shall be deemed not to dispute the charge". (s. 9.1(1))

15 The effect of this section, therefore, is to confer exceptional power on the justice of the peace who may convict without any hearing at all. 16 However, s. 9.1 also creates a premium on the "form" of the document which the justice of the peace reviews. 17 Once the justice of the peace has concluded that the defendant has been "deemed not to dispute the charge" (s. 9.1(1)) he or she must do three things: Firstly, he or she must review the certificate of offence to determine if it is "complete and regular on its face".

If the conclusion is that the certificate has survived such scrutiny - a conviction must follow. (s. 9.1(2)) If the justice of the peace concludes the certificate is not complete and regular on its face, he or she must quash the proceeding. ( s. 9.1(3) ) 18 On all of these appeals, since convictions occurred, this court accepts that each justice of the peace involved must have concluded, after the examination of the certificate, that it was "complete and regular". 19 And since the exceptional power of the justice of the peace under s. 9.1(2) is to enter a conviction without a hearing after the certificate is scrutinized, as an appeal court justice I must accept that each justice of the peace must have concluded that each certificate of offence relevant to these appeals contained all of the essential information required for a conviction to be registered. 20 The phrase "regular on its face" is defined in Black's Law Dictionary (Revised Fourth Edition 1968) as follows: Process is "regular on its face" when it proceeds from a court, officer, or body having authority of law to issue process of that nature, and is legal in form and contains nothing to notify or fairly apprise anyone that it is issued without authority. 21 From that definition, I conclude that the certificate of offence, to be "regular on its face" must set out: who is commencing the process - an informant; who is charged under the process - name of the defendant; what the process is - statute name and

section number; where and when the allegation arose; and what the result will be from a conviction from the process - set fine amount. 22 Applying these requirements to the form of the certificate of offence under

Part I, in my view, the justice of the peace engaged in a

section 9.1(2) scrutiny would satisfy himself or herself that all of these elements appear on the face of the certificate. 23 An omission of any of these elements from the certificate would, in my view, prevent the justice of the peace from concluding the certificate was "regular on its face". The only procedure then available to the justice is to quash the certificate. (s. 9.1(3)) … 27

Section 9.1(2) uses the phrase "complete and regular on its face". 28 The ordinary meaning of "complete", as taken from Webster's Dictionary (1987), is "with nothing missing"; the definition from Black's Law Dictionary is "full, entire, including every item or element of the thing spoken of without omissions or deficiencies". 29 Does the inclusion of the word "complete" in

section 9.1(2) then require the certificate of offence to have every box and space on it filled in with the relevant information? 30 In my view, the simple answer is no. 31 The power given to the justice of the peace in

section 9 is to determine whether the certificate provides "complete and regular" information setting out the elements required to enter a conviction. 32 If those elements are missing - he or she must quash the certificate. 33 But, as Justice Daudlin stated at page 3 of R. v. Baldasare (supra) some of the information, for which there are boxes to be completed on the certificate of offence, is surplusage which "... in no way confuses or in any manner raises the issue of the notice being inappropriate, incomplete, or in any manner failing to meet the necessities of the legislation".

32 In an unreported oral decision, R. v. Dany Roberge, in Napanee on May 30, 2018 His Worship, Justice of the Peace Jack Chiangoutlined the reasons for the 2015 changes to s. 154(1)(

a) of the HTA and the prescribed short form wording to describe that offencesection. The HTA

section was changed to specifically include motor vehicle travel to and from shoulders of roadways, in addition tomotor vehicle travel between roadway lanes. Consequently, the prescribed short form wording established by regulation was changed tomore accurately describe the HTA offence provision. 33 Roberge involved the same charge (as Badhan) and the same complaint regarding the use of expired short form wording on theCertificate. 34 In finding that Roberge’s Certificate was complete and regular Justice of the Peace Chiang relied on the incorporation of all of theessential elements of the offence due to the inclusion of the applicable

section and statute (HTA) on the Certificate. J.P. Chiang alsofound that the inclusion of the expired short form wording on the Certificate—“unsafe lane change”—did not mislead Roberge regardingthe nature of the charge. An unsafe lane change is an unsafe move. Accordingly, Roberge was convicted. 35 On July 10, 2018 His Worship, Justice of the Peace J. Desjardins, at Kingston, gave an oral decision (R. v. Runnings) on the sameissue—the use of expired short form wording (“unsafe lane change”) on a s. 154(1)(

a) Certificate. J.P. Desjardins held that Runningswas not misled in regards to the nature of the offence allegation by the charging officer’s use of the expired short form wording. Consequently, he found the Certificate to be complete and regular and Runnings was convicted of the offence. 36 As noted, the current POA regime prioritizes substance over highly technical issues concerning the legal process: R. v. Doukas,1996 OJ 1705 Prov. Div., August J..

That is consistent with the Supreme Court of Canada’s jurisprudence that has signaled “a majorshift in philosophy regarding extreme technicality in criminal and quasi-criminal law” (R. v. Cote, (SCC), [1978] 40CRNS 308; R. v. Sault Ste Marie (1978), (SCC), 3 CR 30; R. v. Moore, (1988) (SCC), 41 CCC 3d 289: Doukas, supra, para. 22). 37 Defective Informations and Certificates are not to be quashed except in unusual circumstances. Rather, the broad curative powersof the POA are to be utilized to promote a hearing on the merits of the evidence: Doukas, supra, para. 21. 38 In R. v.

Tait, 2001 OJ 2948, Justice of the Peace Quon described and summarized the modern philosophy and principles that nowinform POA proceedings: 52 When the defence wishes to attack the validity of any summons or the charging document itself on a procedural or technical error,the purpose and aim of the Provincial Offences Act, R.S.O. 1990, c. P.33, that governs the procedure for provincial offences must befirst considered. No longer are charges routinely dismissed or quashed when "the i's are not dotted or the t's are not crossed". That era nolonger exists. In R. v. Gwynne [2001] O.J.

No. 331, at para. 28 to 31, I reviewed the raison d'être of the P.O.A. and its underlyingprinciples: The starting point in any analysis of a request to quash a proceeding, based on a technical deficiency, is to note the underlying ideologyof the P.O.A. This can be summed up best in a commentary made by Dickson J., as he was then, in a provincial offences case. In writingfor the Supreme Court of Canada in R. v. Sault Ste. Marie, (1978), (SCC), 3 C.R. (3d) 30 (S.C.C.) at pages 38-39 heobserved: That age has passed.

Parliament has made it abundantly clear in those sections of the Criminal Code having to do with the form ofindictments and informations that the punctilio of an earlier age is no longer to bind us. We must look for substance and not pettyformalities. This theme is affirmed by MacDougall J. in the unreported decision of R. v. Discovery Place Limited et al., [1996] O.J. No. 690, (Ont.Ct. (Gen.

Div.)) (Feb. 15, 1996), File No. 68342/95 at Peterborough in which he pronounces: The overall philosophy of the Provincial Offences Act is to ensure that technical objections do not impede the arrival of a verdict on themerits. The Act provides broad curative provisions ensuring that the jurisdiction over the information is not lost because of any failure ofa court to exercise its jurisdiction at any particular time. Authors Hutchison, Rose and Downes in their tome, The Law of Traffic Offences (2d ed.) (Carswell, Toronto: 1998) at page 37 confirmthat formal defects should not be fatal to the charging document:

It is important to remember that the central purpose of the modern procedural statues like the Provincial Offences Act has been to eliminate unnecessary procedural "technicalities" from regulatory prosecutions. It was not intended that a purely formal defect should be fatal to a charging document. The main consideration in these cases is to be the effect of the defect on the parties and their rights under the procedures available under the Act.

Even a substantive error may be allowed if it is possible for the court to correct the error without depriving the defendant of his right to know and defend the charge against him. Most such statutes provide broad powers to amend a charge to cure defects which are merely formal in nature. ... In R. v. Pham; R. v. Oehlert [1996] O.J.

No. 4366 , I extensively examined academic writings and judicial ruminations on this topic and wrote at para. 20: The trial court's decision to quash a certificate or to amend a certificate, as a question of law, has been examined and reviewed numerous times by the Provincial Offences Appeal Court. The Appeal Court's judgments have looked at

section 36 of the P.O.A. and have ruled that, in general, a defective certificate of offence should not be quashed but amended. The Appeal Court has decided, ordinarily, a certificate of offence should be considered on its merits, and not to be quashed on a technical defect. They have adopted the philosophy of "substance over formality". 53 Furthermore, s. 2 of the P.O.A. states the purpose of the Act: 2.

(1) The purpose of this Act is to replace the

summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code (Canada) , with a procedure that reflects the distinction between provincial offences and criminal offences. 54 Ergo, the underlying principle in analyzing the validity of the charging document or the summonses under the P.O.A. is that "substance prevails over form, purpose prevails over procedure, and merit prevails over technicalities". In addition, that theme is reflected in s. 90 of the P.O.A. That

section addresses the situation arising when there is a defect or error relating to summonses, offence notices or process documents. 39 Returning to Badhan, his Certificate complied with the “regular” requirements. It identified the informant—Officer Shaw. It also identified the appellant—“Talwinder Singh Badhan”—as the defendant. As noted, the Certificate identified the statute—“Highway Traffic Act”—and the section, “154(1)(a)”. It also identified where the offence occurred—“Highway 401 City of Kingston” and the date —“2017 08 04”, being August 4, 2017—at “6:20 P M”.

It also identified the set fine—“$85”—with the total payable being “$110.00”. 40 For the reasons noted, I find that the Certificate is regular. 41 Furthermore, Badhan has not challenged the legitimacy and authenticity of the Certificate of Offence other than in regards to the inclusion of expired short form wording in the Certificate. 42 In my view, Badhan’s Certificate also satisfies the “complete” requirement. As noted, the failure to use the prescribed short form wording does not, ipso facto , make the Certificate incomplete.

The Certificate provided Badhan with sufficient information to enable him to understand the nature of the offence allegation and to decide whether, and how, to challenge the charge. He was not misled or prejudiced in his defence by the entry of the expired short form wording on the Certificate. 43 In oral submissions Mr.

Murdoch argued that the expired short form wording entry on Badhan’s Certificate resulted in Badhan not knowing whether the charge was based on the allegation that he moved in an unsafe manner from one lane to another lane, from a shoulder to a lane, or from a lane to a shoulder. 44 I reject that argument.

Had Officer Shaw used the prescribed short form wording—“ unsafe move—lane or shoulder”—Badhan would be in no better position to know which of the three scenarios was alleged to have happened simply by reference to the prescribed short form wording on the Certificate. 45 As noted, all of the essential elements of the Badhan’s offence are deemed to be incorporated into the count by virtue of the

“Highway Traffic Act” and “s. 154(1)(a)” entries in the Certificate: POA , s. 25(3). Furthermore, the Certificate did contain all of the essential elements of the offence notwithstanding the absence of the prescribed short form wording. 46 For the reasons noted, the Certificate is complete. 47 The inclusion of the expired short form wording did not mislead Badhan nor prejudice his ability to attempt to make full answer and defence. 48 Justice of the Peace D. Chapelle did not err in law in entering a conviction for the offence. Accordingly, Badhan’s appeal is dismissed. Dated: September 21, 2018 Justice Allan G. Letourneau