R. v. Djurcik, 2012 ONCJ 436

COURT FILE No.: Guelph 7558295A DATE: 2011·07·15 Citation: R. v. Djurcik, 2012 ONCJ 436 ONTARIO COURT OF JUSTICE BETWEEN: R — AND — MIHALJ DJURCIK Before Justice of the Peace M A Cuthbertson Heard on 16 January 2012 Ruling on Validity of Certificate of Offence - released on 31 May 2012 Charge: s. 130 HTA - Careless Driving Cases cited: R. v. Barber, [2000] O.J. No. 5339 R. v. Demers, [2000] O.J. No. 3826 R. v. Kapoor, (ON SC), 19 M.V.R. (2d) 219, 52 C.C.C. (3d) 41 R. v. Scott, [1995] O.J. No. 4282 R. v. Thompson, (ON SC), 12 M.V.R. 196, 61 C.C.C. (2d) 214 Statutes and Regulations cited: Highway Traffic Act, s. 130

Interpretation Act, s. 32 Legislation Act, s. 84 Provincial Offences Act, s. 3, 13,

Part I, III O. Reg. 950, Form 1, 3, 6 C Pacheco ........................................................................................................... for the prosecution No appearance by or on behalf of M Djurcik. JUSTICE OF THE PEACE CUTHBERTSON: 1: THE BACKGROUND [1] This is a matter concerning the validity of the document filed with the Provincial Offences court, whereby Officer Gordon of theGuelph Police Service charged Mr Djurcik with Careless Driving. The document filed was purported to be a Certificate of Offence. [2] Originally, the matter came before this Court to determine whether proper service existed. To that end, Officer Gordon testified that

he had served Mr Djurcik with a Summons. [ 3 ] Upon questioning by the Court, Officer Gordon advised that he had deliberately stroked out both the English and French words ‘Certificate of Offence / Proces - verbal d’infraction’ (hereafter called the ‘Title’) near the top of the document. His evidence was that he did this as he was serving a

Part I Summons on the defendant. He further advised that his practice until recently, of many years for serving a

Part I Summons “was to eliminate certain parts of the

Part I and to put a summons date at the bottom”. [ 4 ] In addition to the above, Officer Gordon had also crossed out the ‘service’ portion of the document which contains the wording “And I further certify that I served an offence notice personally upon the person charged on the offence date” (hereafter called the ‘Certification Box’).

He also crossed out all three of the boxes relating to the Set Fine, Total Payable and the explanation of what is included in the Total Payable (hereafter called the ‘Fine Boxes’). [ 5 ] When asked by the Court what basis in law there was for stroking out, in particular the Title of the document, he replied “I don’t recall sir, other than it was to change it to be a Summons and we did cross out the Certificate of Offence at the top and the set fine area as well as the service area.” 2: ISSUES BEFORE THE COURT [ 6 ] The issue is whether the stroking out of the Title and/or the Certification Box and/or the Fine Boxes invalidated the document as a Certificate of Offence. 3: THE LAW [ 7 ]

Section 3 of the Provincial Offences Act (POA) states:

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) .

Officer not to act as agent

(8) The provincial offences officer who serves an offence notice or summons under this

section shall not receive payment of any money in respect of a fine, or receive the offence notice for delivery to the court. R.S.O. 1990, c. P.33, s. 3 (8) . [ 8 ]

Section 13 of the POA states: Regulations 13.

(1) The Lieutenant Governor in Council may make regulations, (

a) Repealed: 2011, c. 1 , Sched. 1, s. 7 (1). (

b) authorizing the use in a form prescribed under clause (1.1) (

a) of any word or expression to designate an offence. (

c) Repealed: 2011, c. 1 , Sched. 1, s. 7 (3). (

d) Repealed: 2009, c. 33 , Sched. 4, s. 1 (20). R.S.O. 1990, c. P.33, s. 13 (1) ; 1993, c. 31, s. 1 (6); 2009, c. 33 , Sched. 4, s. 1 (20); 2011, c. 1 , Sched. 1, s. 7 (1-3). Same, Attorney General

(1.1) The Attorney General may make regulations, (

a) prescribing the form of certificates of offence, offence notices and summonses and such other forms as are considered necessary under this Part; (

b) respecting any matter that is considered necessary to provide for the use of the forms under this Part. 2011, c. 1 , Sched. 1, s. 7 (4). Sufficiency of abbreviated wording

(2) The use on a form prescribed under clause (1.1) (

a) of any word or expression authorized by the regulations to designate an offence is sufficient for all purposes to describe the offence designated by such word or expression. R.S.O. 1990, c. P.33, s. 13 (2) ; 2011, c. 1 , Sched. 1, s. 7 (5). Idem

(3) 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. R.S.O. 1990, c. P.33, s. 13 (3) ; 2011, c. 1 , Sched. 1, s. 7 (5). [ 9 ]

Section 84 of the Legislation Act states: Deviations from required form 84. Deviations from a form whose use is required under

an Act do not invalidate the form if, (

a) they do not affect the substance and are unlikely to mislead; and (

b) the form is organized in the same or substantially the same way as the form whose use is required. 2006, c. 21 , Sched. F, s. 84. 4: ANALYSIS [ 10 ] It would appear from Officer Gordon’s evidence that there may have been some confusion as to the proper procedure for preparing the appropriate documents for this alleged offence. Therefore, it is helpful at this point, to review those procedures. 4.1: A Police Officer’s Ticket Book and Prescribed Forms [ 11 ] A police officer’s ‘ticket book’ contains 25 snap set ‘tickets’.

Included in each of these snap sets are a Certificate of Offence, an Offence Notice, a Computer Input/Record Document, an Enforcement Agency Record and a Payment Notice Form. At the back of the ‘ticket book’ are ten Summons which are separate from the snap sets but available to the officer, when required. As well, instructions on the use of the forms are provided in the front of the ticket book. [ 12 ] The Computer Input/Record Document and Enforcement Agency Record are of no concern in this matter as they are simply administrative and/or internal documents for the police.

The Payment Notice Form is an information document for the defendant and is also not of concern, in the matter at bar. [ 13 ] It is the Certificate of Offence (Form 1), the Offence Notice (Form 3) and the Summons (Form 6) which are important for this analysis. These documents are all prescribed forms, as noted, under O. Reg 950 and pursuant to s. 13(1.1) of the POA. [ 14 ] These documents serve different purposes. The Certificate of Offence in Form 1 is the charging document and must be filed with the Provincial Offences Court in accordance with s. 3 of the POA.

By way of additional explanation, it serves a similar purpose as an Information under

Part III of the POA but it simplifies the process to lay a charge with less serious consequences, under

Part I of the POA. [ 15 ] The Offence Notice in Form 3 and the Summons in Form 6 are ‘process’ documents. ‘Process’ may be defined as “the

means by which the defendant is compelled to attend court”. A primary purpose of these documents then, is to serve the defendant withthe information she or he needs as to when and where to come to court. Additional information for the defendant, such as the chargeitself, is also on the ‘process’ document. [16] If an officer lays a charge where a Set Fine is available, she or he may choose to use an Offence Notice, as the ‘process’,This provides the defendant with several options as to how to address the charge.

One option is to plead guilty by simply paying, withoutthe need for a court appearance, a Total Payable amount (which includes the Set Fine), as noted on the Offence Notice. [17] However, if no Set Fine exists or as in the case at bar, the officer does not wish to provide an out-of-court paymentoption, then a Summons in Form 6 is the correct ‘process’ to compel the defendant to appear before the court. [18] As described in the instructions in the front of ‘ticket book’, an officer when serving a Summons must remove theOffence Notice from the snap set, insert the Summons in its place and then complete the Certificate of Offence, including the ‘Summonsissued’ section.

The appropriate information would be automatically copied onto the Summons as the snap set uses NCR paper. Theinstructions in the ticket book also advise the officer to strike out the words ’Offence Notice’, print the word ‘Summons’ and initial thechanges, in the Certification Box of the Certificate of Offence. The officer is then to sign the Certificate in the normal fashion to verifyshe or he has properly served the Summons on the defendant.

The instructions in the ticket book do not advise the officer to make anyother changes or deletions in the Certificate of Offence. [19] The use of the Certificate of Offence, Offence Notice and Summons is defined in s. 3(2) of the POA. 4.2 What are the Implications of the Changes to the Certificate of Offence? [20] Ms Pacheco helpfully provided several cases for my review. As a result, I have considered R. v. Barber, [2000] O.J. No.5339; R. v. Demers, [2000] O.J. No. 3826; R. v. Kapoor, (ON SC), 19 M.V.R. (2d) 219, 52 C.C.C. (3d) 41; R. v.Scott, [1995] O.J. No. 4282 and R. v.

Thompson, (ON SC), 12 M.V.R. 196, 61 C.C.C. (2d) 214. [21] These cases are all distinguishable on the facts from the matter at bar. As well, all rely on the wording of s. 32 of theformer

Interpretation Act (IA). This

section stated: Where a form is prescribed, deviations from that form, not affecting the substance or calculated to mislead, do not invalidate the formused. [22] The

Interpretation Act was replaced by the Legislation Act (LA) a few years ago. The wording of the former IA section(s. 32) has been changed in its new LA counterpart

section (s. 84). The former words of “calculated to mislead” of s. 32 of the IA havebeen replaced with “are unlikely to mislead” in s. 84 of the newer LA. This is a substantive change which further distinguishes the casesprovided by Ms Pacheco from the matter a bar, as all of those cases, relied on the wording of s. 32 of the IA. [23] The matter before this Court must be considered under s. 84 of the LA. [24] However, the concepts of the presumption of regularity (Kapoor and Scott) and form versus substance (Barber, Demersand Thompson), in my view, remain valid.

Section 84 of the Legislation Act refines these concepts as it instructs that a deviation does notinvalidate a form if it (

a) does not affect the substance and is unlikely to mislead or (

b) remains organized in the same or substantially thesame way as the prescribed form. 4.2.1 The Fine Boxes [25] As a Summons was served on the defendant the Fine Boxes became redundant since the defendant did not have theoption of paying a fine, on an out-of-court basis. Pursuant to s. 84(

a) of the LA, this did not affect the substance of the matter nor was itlikely to mislead the defendant. [26] Therefore, I find that the stroking out of the Fine Boxes did not invalidate the document. 4.2.2 The Certification Box [27] It is clear from s. 3(5) of the POA that the officer had an obligation to certify on the Certificate of Offence that he hadpersonally served the Summons on the defendant. By stroking out the Certification Box he removed his ability to certify service, on thedocument.

However, he did testify before this Court that he had served the Summons on the defendant. [28] While the officer did not follow s. 3(5) of the POA (nor for that matter, the instructions in the front of the ticket book forissuing process by way of a Summons), I find that his sworn testimony overcame the effect of striking out the Certification Box. 4.2.3 The Title [29] The striking out of the Title is more problematic. I note that despite this, the area directly above the Title on the documentstates ‘Form 1 Reg 950 Provincial Offences Act Ontario Court of Justice’ in both English and French.

The officer did not strike out thisarea. This phrase might lead an inquisitive person who wished to ascertain what the document provided to him/her by the officer was, toreview the prescribed Form 1 Certificate of Offence in O. Reg. 950. [30] However, in my view, the striking out of the Title fundamentally alters the substance of the prescribed Form 1 set out inthe regulation. Despite this being an ex-parte matter, in my opinion, the deliberate striking out of the Title is likely to mislead a person,as to what the document is, even if that person actually reviewed a Form 1 in O. Reg. 950.

The conflict between the prescribed form andthe document before this Court is obvious. [31] The removal of the Title indicates that the officer intended it not to be a Certificate of Offence. This begs the question - If

it is not a Certificate of Offence, what then might it be? The officer’s testimony (see para 5 above) is of assistance. His evidence was that he thought it was now a Summons not a Certificate of Offence. [ 32 ] The officer’s intention to alter the document to a Summons by striking out the Title, satisfies this Court that the document is no longer organized in the same or substantially the same way as a Certificate of Offence.

As a result, the presumption of regularity fails to save the document. [ 33 ] Similarly, as the striking out of the Title fundamentally alters the document, the concept that minor changes in form do not override the substance of a document (form versus substance) also fails to save the document. [ 34 ] In my view, the striking out of the Title violates s. 84 of the Legislation Act. 5: DECISION [ 35 ] Therefore, the document before this Court purporting to charge the defendant with careless driving is not a Certificate of Offence in Form 1. [ 36 ] As a result, this Court has no valid charge before it and has no jurisdiction to further proceed.

Released: “May 31, 2012” Signed: “Justice of the Peace M.A. Cuthbertson”