Barrie (City of) v. Dalton, 2011 ONCJ 867

COURT FILE No.: Central East 3860 2499567A for Neal Dalton Central East – 3860 3195706A for Rory Webster DATE: 2011·11·15 Citation: Barrie (City of) v. Dalton , 2011 ONCJ 867 ONTARIO COURT OF JUSTICE IN THE MATTER OF an appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: THE CORPORATION OF THE CITY OF BARRIE Respondent — AND — NEAL DALTON Appellant AND: THE CORPORATION OF THE CITY OF BARRIE Respondent — AND — RORY WEBSTER Appellant Before Justice Glenn D. Krelove Heard on February 1, 2011 Reasons for Judgment released on November 15, 2011 Mr.

Michael Skof ........................................................................................... for the Respondent Mr. Randy Porter .......................................................................... for the Appellant Neal Dalton Ms. Stephanie Herns ................................................................. for the Appellant Rory Webster The Dalton matter is on appeal from the conviction by Justice of the Peace B. Norton dated March 31, 2010. The Webster matter is on appeal from the conviction by Justice of the Peace G. Forrest dated July 7, 2010.

KRELOVE J.: Introduction [ 1 ] These appeals were heard together as they involve the same legal issues. This judgment will apply to both. [ 2 ] The appeals are pursuant to s. 135 of the Provincial Offences Act (“the Act ”) . Both appeal their convictions on charges of speeding contrary to s. 128 of the Highway Traffic Act . Background

[3] The appellant Dalton was issued and served with an offence notice on January 15, 2010 for the charge of speeding. OnJanuary 19, 2010, the appellant Dalton, through his agent, requested a trial by filing a notice of intention to appear. On April 16, 2010 anotice of trial was sent to the appellant Dalton at the address he provided on the notice of intention to appear. The trial date set out wasMay 31, 2010. The appellant Dalton failed to attend at his trial and was deemed not to dispute the charge and was convicted in hisabsence pursuant to s. 9.1 of the Act.

A fine of $108.00 was imposed. [4] The appellant Webster was issued and served with an offence notice on October 25, 2009 for the offence of speeding. The appellant Webster requested a trial by filing a notice of intention to appear within the proper time. A notice of trial was sent to theappellant Webster. The trial set out was July 7, 2010. The appellant Webster failed to attend at his trial and was deemed not to disputethe charge and was convicted in his absence pursuant to s. 9.1 of the Act.

A fine of $210.00 was imposed together with $5.00 in costs. [5] It is agreed by all that the set fine amount on each of the certificates of offence is incorrect. The respondent concedesthat each of the certificates of offence was not “complete and regular on its face” and that I should allow the appeals and send the mattersback to trial rather than quashing the certificates of offence. The appellants request that I quash the certificates of offence.

Issue [6] The issues in these appeals are whether I should send these matters back before a justice of the peace for a new trial andwhether a justice of the peace has the power or authority to amend a set fine defect on a certificate of offence when a defendant files anotice of intention to appear but subsequently does not attend at his trial. Analysis [7] Section 9(1) and s. 9.1 of the Act are special provisions which permit for charges to be dealt with expeditiously incertain situations. [8]

Section 9 reads: 9.

(1) Failure to respond to offence notice - Where at least fifteen days have elapsed after the defendant was served with the offencenotice and the offence notice has not been delivered in accordance with

section 6 or 8 and a plea of guilty has not been accepted undersection 7, the defendant shall be deemed to not wish to dispute the charge and a justice shall examine the certificate of offence and, (

a) where the certificate of offence is complete and regular on its face, the justice shall enter a conviction in the defendant’s absence andwithout 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, the justice shall quash the proceeding. R.S.O. 1990, c. P.33,s. 9 (1).

(2) Where conviction without proof of by-law - Where a defendant is deemed to not wish to dispute a charge under subsection (1)in respect of an offence under a by-law of a municipality, the justice shall enter a conviction under clause (1) (

a) without proof of the by-law that creates the offence if the certificate of offence is complete and regular on its face. R.S.O. 1990, c. P.33, s. 9 (2). [9] This provision provides that where a defendant does not file a notice of intention to appear (s. 5) within the requiredfifteen days or does not enter a plea of guilty with representations (s. 7) he or she shall be deemed not to dispute the charge and a justiceshall examine the certificate of offence. If the certificate of offence is complete and regular on its face, the justice shall enter aconviction without a hearing and impose the set fine.

If the certificate is not complete and regular on its face, the justice must quash thecharge. It is clear from London (City) v. Young, 2008 ONCA 429 , [2008] O.J. No. 2118 (O.C.A.) that a justice has no authorityto amend the certificate of offence when he is exercising his authority pursuant to s. 9(1). [10]

Section 9.1 reads: 9.1

(1) Failure to appear at trial – A defendant is deemed to not wish to dispute the charge where the defendant has been issued anotice of the time and place of trial and fails to appear at the time and place appointed for the trial.

(2) Examination by justice – If subsection (1) applies,

section 54 does not apply, and a justice shall examine the certificate of offenceand shall without a hearing enter a conviction in the defendant’s absence and impose the set fine for the offence if the certificate iscomplete and regular on its face.

(3) Quashing proceeding – The justice shall quash the proceeding if he or she is not able to enter a conviction. [11] This provision provides for an expeditious process where the defendant has requested a trial but does not attend at histrial. Rather than proceeding with an ex parte trial (s. 54) the justice shall examine the certificate of offence and shall enter a convictionand impose the set fine if the certificate is complete and regular on its face. If the certificate is not complete and regular on its face, thejustice shall quash the charge.

Section 9.1(2) specifically provides that the examination of the certificate of offence shall occur without ahearing. Therefore, it is strictly an administrative-type process to be undertaken by the justice. [12] Justice Libman dealt with the default procedure under s. 9.1 of the Act in R. v. Khoshael, [2001] O.J. No. 2110 (O.C.J.)and stated in paragraphs 8 – 13 as follows: The Provincial Offences Act strikes a balance between inferring from the failure of defendants to act, such that they are taken to havewaived their right to be presumed innocent and their right to a hearing, thereby consenting to a conviction, while placing an overriding

requirement on the Justice, as the independent judicial officer put in place as a safeguard, the task of examining the charge document which has initiated the proceeding, so as to prevent injustices from occurring. In this light, the power of the Justice to refuse to enter a conviction and quash the proceeding where the ticket or charge document has not been delivered to the defendant in accordance with the Act , or where there are irregularities on its face such that it is not complete and regular, constitutes an integral part of this pervasive regime in respect of regulatory infractions.

Different considerations apply where the defendant appears at trial and the Act ’s broad amendment powers under s. 34 may be invoked and the grounds for quashing are circumscribed by s. 36 . Technical objections, it has been stated, ought not to impede an impartial trial on the merits, contrary to the spirit of the Act which requires courts to look at substance, and not procedural irregularities.

I see nothing inconsistent in the statement of principles which applies to the disposition of technical deficiencies arising in the course of the trial setting, as opposed to those in respect of the “default conviction” provisions under s. 9.1 of the Act . Defects which arise in respect of the latter, that is, involving a certificate of offence or charge document which is the subject of examination under s. 9.1 , go to the very jurisdiction of the Court to conduct a hearing in the defendant’s absence and enter a conviction, the defendant having been deemed not to dispute the charge.

Hence, a premium is rightly placed on the form of the document, since matters of substance are not engaged by s. 9.1. The absence of an amendment power while providing for one of quashing under s. 9.1(3), whereas s. 36(2) provides for both powers at trial, confirms, in my respectful opinion, this distinction. [Citations omitted.] [ 13 ] It is interesting to note that the Court of Appeal referred to R. v. Khoshael with approval in London (City) v. Young . [ 14 ]

Section 9.1 makes it clear that there is no power to amend a certificate of offence when a justice is examining it. This examination process does not involve a hearing. Therefore, there is no opportunity for the prosecutor to request an amendment to a defective certificate. “Hearing” is not defined in the Act but it is clear that a motion or application by the prosecutor for an amendment pursuant to s. 34 of the Act or otherwise would require some form of a hearing. [ 15 ] Section 34(1) of the Act does provide that the “court may, at any stage of the proceeding, amend the information or certificate …”.

However, this amendment power does not apply during the s. 9.1 examination process undertaken by a justice. [ 16 ] The Respondent submits that by filing a notice of intention to appear pursuant to s. 5 of the Act , the appellants have subjected themselves to the amendment powers set out in the Act even though they chose not to attend for their trial.

However, s. 9.1 is a complete answer to this submission as it does not provide for an amendment power even in a situation where the defendant has filed a notice of intention to appear but chooses not to appear on his trial date. [ 17 ] It is understandable that a defendant may choose to file a notice of intention to appear and decide to not appear for trial. For example, I am advised by the parties in these appeals that a defendant is required to file a notice before he is entitled to obtain his disclosure from the prosecutor.

Obviously, after receiving and reviewing such disclosure, the defendant may decide to not attend at his trial. [ 18 ] The Respondent also submits that an unfair and anomalous situation arises when a defective certificate of offence can be amended if a defendant attends at his trial but cannot be amended if the defendant does not attend at his trial. While this does appear to be the case, the situation arises because of the operation of s. 9.1 of the Act . This inherent unfairness was recognized in R. v. Singh (2004), 9 M.V.R. (5 th ) 195 (O.C.A.) approving [2003] O.J. No. 4324 (Sup.

Ct.) . [ 19 ] In dealing with this apparent unfairness, Justice Healey stated in York (Municipality) v. Talabe [2011] O.J. No. 654 (Ont. Sup. Ct) .: 15. The tension created under P.O.A., then, is that a defendant who fails to appear is in a much more favourable position than is a defendant who answers to the charge, even though both may have identical errors on the certificates issued to them. This is due to the fact that when a defendant appears at trial, or sends an agent on his or her behalf, the provisions of

Part IV of the P.O.A. apply. Prior to quashing a certificate, the justice is required to consider first, whether an amendment is appropriate, and then to only quash the certificate if an amendment “would fail to satisfy the ends of justice”. [ 20 ] The result that there may be a different situation for a defendant appearing at his trial, does not detract from the clear requirements of a justice dealing with a non-appearing defendant pursuant to s. 9.1. [ 21 ] In both of these appeals, the justice of the peace was required by s. 9.1(3) to quash the certificate of offence.

There is no reason to order a new trial and send these matters back to a justice of the peace. This appeal court has jurisdiction to quash each of the certificates of offence pursuant to s. 138 of the Act . Conclusion [ 22 ] Each of these appeals is allowed, the conviction set aside and the certificate of offence is quashed. If a fine has been paid by either appellant, it shall be returned. [ 23 ] I would like to thank Mr. Porter, Ms. Herns and Mr. Skof for their very able and extensive submissions in this matter. Released: November 15, 2011

Signed: “ Justice Glenn Krelove” ________________________ Justice Glenn Krelove, O.C.J.