R. ex rel. City of Toronto v. Arcos-Nava, 2012 ONCJ 773

COURT FILE No. Toronto Citation: R. ex rel. City of Toronto v. Arcos-Nava , 2012 ONCJ 773 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ex rel THE CITY OF TORONTO ) Ms. S. Bauman for the Respondent (Respondent) ) ) — AND — ) ) MAGDALENA ARCOS-NAVA ) (Appellant) ) Mr. J. Sturch ) for the Appellant ) ) Heard: November 26, 2012 ) ) NAKATSURU J.: [ 1 ] The appellant appeals her convictions for two offences under the Highway Traffic Act, R.S.O. 1990, c. H.8. It is agreed by the parties that the appeal of conviction for the offence of failing to surrender her insurance card should be dismissed.

However, the appellant argues that the appeal of her conviction for careless driving should be allowed and the certificate of offence quashed. [ 2 ] For the following reasons the appeal is dismissed. INTRODUCTION [ 3 ] In this case, the appellant did not attend at the trial she had requested. Instead, the justice of the peace entered a conviction after resorting to the default proceedings under s. 9.1 of the Provincial Offences Act , R.S.O. 1990 c. P. 33.

On the certificate of offence that was before the justice of the peace for examination, the set fine for the offence of careless driving is indicated to be $400. This amount is correct. However, on the same certificate of offence, the total payable box which includes the victim fine surcharge and costs is indicated to be $485. This amount is incorrect. It should have been $490 consisting of costs of $5 and a victim fine surcharge of $85.

Nonetheless, the justice of the peace who reviewed the certificate of offence on the default proceeding found that the certificate of offence was complete and regular on its face and entered a conviction. [ 4 ] The appellant argues that the justice of the peace should have quashed the certificate of offence since on its face, it was not complete and regular because the total payable amount was wrong. In the case of City of London v.

Young (2008), 91 O.R. (2d) 215 (C.A.) the majority of the court held that where the set fine in the certificate of offence is wrong, the justice of the peace must quash the certificate pursuant to s. 9(2)(b). For the same reasons, the appellant submits that where the total payable is wrong, the certificate of offence must be quashed. ANALYSIS [ 5 ] As in City of London v. Young , resolution of this appeal turns on the issue of statutory

interpretation. For ease of reference, I will set out the relevant statutory provisions: 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 intention to appear under

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

section 5.1 and did not plead guilty under

section 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 with the 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. 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.

(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.

(3) The justice shall quash the proceeding if he or she is not able to enter a conviction. [ 6 ] The issue of

interpretation is whether “complete and regular on its face” within the meaning of ss. 9(2)(

b) and 9.1(2) requires the total payable amount on the certificate of offence to be correct. It is now authoritatively settled that the set fine on the certificate of offence must be accurate. A“set fine” is an amount set by the Chief Justice of the Ontario Court of Justice: see ss. 1 and 3(2) (

b) of the Provincial Offences Act . The “total payable” includes the set fine, the victim surcharge, and costs; the latter two items are prescribed by regulation: see ss. 60 and 60.1 of the Provincial Offences Act and O. Reg. 945 and O. Reg. 161/00 . [ 7 ] In City of London v. Young , Feldman J.A. for the majority held that for a certificate of offence to be complete and regular on its face, the set fine amount had to be correct. Since the justice of the peace had no power to amend the certificate in a s. 9(1) proceeding, the justice was obliged to quash the certificate. [ 8 ] As I read Her Honour’s reasoning, there were three key factors that informed her

interpretation. First of all, where the officer chooses to proceed by way of an offence notice rather than a summons, s. 3(2) of the Provincial Offences Act expressly requires that the amount of the set fine appear on the certificate of offence. Therefore, this supported the

interpretation that failure to put the correct amount on the certificate meant that the certificate was not complete and regular on its face. Secondly, Feldman J.A. held that a justice of the peace conducting an examination under s. 9(2) must determine whether the defendant received effective notice of all the information needed in deciding whether to default. The set fine was one such necessary piece of information. Given that the offence notice was merely a copy of the certificate of offence, the offence notice provided to the defendant would contain any error regarding the set fine.

Thus, the defendant would be denied important information in making the decision whether to default. Finally, given that there was no power to amend a certificate of offence under s. 9, the justice of the peace would have to impose the erroneous set fine on the certificate. This result could not have been intended by the legislature. Therefore, the only reasonable option available was the quashing of the certificate of offence. [ 9 ] In my opinion, these factors that informed the

interpretation of whether a certificate of offence is complete and regular on its face do not have similar application when it comes to the total payable amount. When it came to the set fine, the legislature intended that the defendant have accurate and effective notice of that amount. If the defendant did not, the legislature intended that the defendant not be convicted in a default proceeding. This was the balance struck between the streamlined procedure contained in

Part I of the Provincial Offences Act and fairness to the defendant. This same balance does not extend to errors in the total payable amount. [ 10 ] In reaching this conclusion, the overall context of the Provincial Offences Act must be considered. When a peace officer resorts to

Part I, he or she has a number of options in commencing the proceedings against the defendant as outlined in s. 3: 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.

(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. [ 11 ] Section 3(2)(

b) states that the offence notice must contain the set fine on it. As Feldman J.A. concluded, the legislature intended that this information be present on the offence notice for it to constitute adequate notice. An erroneous set fine, in whatever amount whether it be lower or higher than the actual set fine, would not serve the purpose of notice.

However, missing from this notice requirement is any indication that the total payable which includes costs and victim fine surcharge, be present to constitute adequate notice. [ 12 ] Once notice has been given, on a default proceeding under ss. 9 or 9.1 , if satisfied that the certificate of offence is complete and regular on its face, the justice of the peace must impose the set fine. As Feldman J.A. held, given that there is no power to amend the certificate of offence, the justice of the peace must impose the set fine on the certificate. This would undermine the notice requirement in s. 3(2) (

b) in that the legislature expressly required that the set fine be a fundamental part of the notice. As Feldman J.A. noted, in the default context, an accurate set fine is information that the defendant “requires in order to decide whether to default and thereby forgo the right to be presumed innocent and to have a hearing (at para. 33).” This effective notice requirement in turn informs the role played by the justice of the peace in the default proceeding. If the justice of the peace is not satisfied that effective notice has been given, the certificate of offence is not complete and regular on its face and the certificate must be quashed.

[13] It is this interplay between the notice requirement in s. 3(2)(

b) and the efficient and inexpensive procedure as found in ss. 9and 9.1, that led Feldman J.A. to conclude that the phrase “complete and regular on its face” required the set fine to be correct. In otherwords, in striking the appropriate balance, the legislature required at a minimum that the set fine be correct.

This is demonstrated by theexplicit reference to the requirement of the set fine in the notice and the limit on the power of the justice of the peace to impose only theset fine in ss. 9 and 9.1. [14] In my opinion, the lack of reference to the total payable amount in this statutory interplay is not without significance. Thatbeing said, I do not deny that in order to constitute adequate notice, there must be other information on the certificate of offence such asthe who, what, and where of the offence: see R. v. Wilson, [2001] O.J. No. 4970 (C.J.); R. v. Khoshael, [2001] O.J. No. 2110 (C.J.).

Themere fact that the statute does not refer to certain information does not mean it is not required for there to be adequate notice. Secondly, Ifurther appreciate that the form used for the certificate of offence and the offence notice is one that is prescribed by regulation. At thesame time, these forms have changed over time while the relevant provisions regarding the issue under consideration have notfundamentally changed. At certain times, the forms did not include the total payable amount: see Reg. 817, R.R.O. 1980, s. 1, form 101;O. Reg. 458/86, s. 2, form 101; Reg. 950, R.R.O. 1990, form 101; O.

Reg. 495/94, form 1; O. Reg. 259/08, form 1. After taking all theseaspects into careful consideration, I have concluded that when interpreting the phrase “complete and regular on its face”, the lack of anyreference to a total payable amount in the relevant provisions, leads me to a different result after considering the purpose and context ofthe Provincial Offences Act: see Bell Express Vu Limited Partnership v.

Rex, 2002 SCC 42 , [2002] 2 S.C.R. 559 at para. 26. [15] That purpose and context was succinctly and persuasively stated by Associate Chief Justice McKinnon decades ago incomments that remain true to this day. In R. v. Jamieson (1981), (ON CA), 64 C.C.C. (2d) 550 at 551-552 affirmed(1982), (ON CA), 66 C.C.C. (2d) 576 (Ont. C.A.), the learned Associate Chief Justice stated in a chambers judgment: The Provincial Offences Act was intended to establish a speedy, efficient, and convenient method of dealing with offences under Acts ofthe Legislature and under Regulations or by-laws made under the authority of the

an Act of the Legislature….The Provincial OffencesAct is not intended as a trap for the unskilled or unwary but rather, as already stated, as an inexpensive and efficient way of dealing with,for the most part, minor offences. While natural justice and fairness to the defendant can never be overlooked, given this context and purpose, generally speaking, technicalobjections should not be allowed to unduly impede a decision on the merits. In this regard, I am in agreement with the dissentingdecision of Doherty J.A. in City of London v. Young at para. 81.

I further observe that Feldman J.A. did not disagree about the generalpurpose of the Act in her decision at para. 34. [16] In the same vein, I find Doherty J.A. most persuasive when he reasoned that the s. 9(1)(

b) inquiry was a limited one. In hisview, Doherty J.A. held that it was not a part of the justice of the peace’s inquiry to determine whether the choice made by the defendantto default or not was a wise or a fully informed one. Thus, the legislative scheme did not require the defendant to receive effective oraccurate notice of all the information needed to decide which of the various available options to pursue. In his opinion, s. 9(1)(

b) wasdesigned to ensure that the defendant had been properly served with the notice and that the certificate contained the informationnecessary for a proper allegation of an offence. On this point, he parted company with the majority decision of Feldman J.A. Where anyprejudice arose due to an erroneous set fine, Doherty J.A. held that resort to the appeal process provided the defendant a simple andexpeditious remedy. [17] Obviously, I appreciate that Doherty J.A. did not carry the court. Feldman J.A. along with Armstrong J.A. held that theproper

interpretation of these sections did require the set fine to be correct. However, in my opinion, it is not necessary to extend thatreasoning to the total payable amount. The legislature has not made it a requirement of finding the certificate of offence complete andregular on its face, either expressly in the provisions or implicitly with reference to context and purpose. While I agree the correctpayable amount is information that could be useful to the defendant in deciding whether to default or not, that is not the question thatneeds to be answered.

The key question is whether the legislature intended that the defendant have that information before a convictioncould be entered in a default proceeding. I find that in this instance, the balance dictates a different outcome than in City of London v.Young; an outcome more in line with the dissent of Doherty J.A. I view that the total payable amount which includes costs and the victimfine surcharge, an amount which is just a small percentage of the set fine, is less likely to create significant prejudice to the defendantthan an erroneous set fine amount.

Thus, the importance of accuracy in the total payable amount is diminished compared to the set fine. This supports my

interpretation of what should fall within the phrase “complete and regular on its face.” This is so particularly in light ofthe absence of any reference to “total payable” in ss. 3, 9 or 9.1. [18] With regards to the set fine, Feldman J.A. held that the justice of the peace was required to impose the set fine as indicatedon the certificate of the offence. This was another reason why she came to the conclusion that she did. However, in my opinion, thesame is not true with the total payable amount. Even if the total payable amount is incorrect on the certificate of offence, the justice ofthe peace can and should impose the correct amount upon conviction. Sections 9(2)(

a) and 9.1(2) mandates that a justice of the peaceimpose the set fine upon conviction. This limits the authority of the court in doing anything else but quashing the certificate if the setfine is incorrect given the lack of jurisdiction to amend the certificate. On the other hand, the sections say nothing about the totalpayable. The sections do not require the court to impose the total payable amount indicated on the certificate of offence. In addition, ss.60 and 60.1 of the Provincial Offences Act provides for the imposition of costs and the victim fine surcharge only after conviction.

Ajustice of the peace enters a conviction only after finding the certificate of offence complete and regular. It is only at this point the totalpayable amount is calculated and imposed. If the total payable amount is incorrect on the certificate, the justice of peace is not requiredto impose that amount. The correct total payable amount should be calculated and imposed after conviction. This process is differentfrom the scheme outlined for the set fine.

Thus, if the set fine is correct on the certificate, it is the responsibility of the justice of thepeace to ensure that the costs and victim fine surcharge are accurately calculated and imposed. Under this statutory scheme, there shouldbe few if any appeals based upon incorrect total payable amounts written by the peace officer since any miscalculation should becorrected by the justice of the peace. [19] The last consideration supporting my

interpretation is the jurisprudence on this point of law. Although there are no bindingdecisions, the authorities have predominantly found that a mistake in the total payable amount on a certificate of offence does not resultin the quashing of the certificate: see R. v. Galeazza, [2010] O.J. No. 6054 (C.J.); R. v. Gandhi, [2011] O.J. No. 2542 (C.J.); R. v.

Montone, 2007 ONCJ 251 , [2007] O.J. No. 2230 (C.J.); R. v. Wilson, supra; R. v. Monahan, [2009] O.J. No. 2696 (C.J.); cf. R.v. Khoshael, supra; R. v. Batra, [2008] O.J. No. 5818 (C.J.). [20] For these reasons the conviction appeal is dismissed. Released: December 21, 2012. Signed: