R. v. McPherson, 2012 ONCJ 807

COURT FILE No.: Guelph Certificate Number 8237846A DATE: 2012·07·25 Citation: R. v. McPherson, 2012 ONCJ 807 ONTARIO COURT OF JUSTICE BETWEEN: R — AND — Garth McPherson Before Justice of the Peace M A Cuthbertson Heard on 7 September 2012 Reasons for Judgment released on 21 December 2012 Charge: Careless Driving, s. 130 HTA Cases cited: R. v. Beauchamp, (ON CA), [1952] O.J. No. 495 R. v. Djurcik, 2012 ONCJ 436 , [2012] O.J. No. 3211 R. v. Tovhid, [2008] O.J. No. 3143 The Greater Toronto Transit Authority v. Martin, [2009] O.J. No. 5746 Statutes cited: O.

Reg. 200, Rule 15 Highway Traffic Act (HTA), s. 130 Provincial Offences Act (POA) s. 1(1), 3, 5, 9, 9.1, 48.1, 54 Reference cited: Stewart on Provincial Offences Procedure in Ontario, Stewart, Sheilagh, Earlscourt Legal Press Inc, 2011 V Ballah ............................................................................................................. for the prosecution No appearance by or on behalf of Garth McPherson. JUSTICE OF THE PEACE CUTHBERTSON: 1: THE BACKGROUND [1] On 25 July 2012, the defendant was charged with Careless Driving (s. 130 HTA) by way of a

Part I Certificate of Offence. Theinvestigating officer completed the Summons Issued area at the bottom of the Certificate of Offence. [2] Mr McPherson did not attend court on 7 September 2012. Ms Ballah proceeded pursuant to s. 54(1)(

a) of the POA. [3] Once the arraignment had been done, the Court entered a plea of ‘Not Guilty’ on behalf of the absent defendant. Ms Ballah thenrelied on the contents of the Certificate of Offence as ‘Certificate Evidence’ as permitted under s. 48.1of the POA. She further relied

upon R. v. Tovhid, [2008] O.J. No. 3143 , as appellate court case law authority to proceed in this fashion. [ 4 ] The prosecution called no witnesses. 2: ISSUES BEFORE THE COURT 2.1 Was a proceeding under s. 54(1)(

a) proper? If not what was the proper procedure? 2.2 Can the short form wording of ‘Careless Driving contrary to The Highway Traffic Act,

section 130’ on the Certificate of Offence, admitted as a certified statement under s. 48.1 of the POA, support a conviction? 3: THE LAW [ 5 ]

Section 3 of the POA states: 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) . [ 6 ]

Section 5 of the POA states: Having a trial 5.

(1) A defendant who is served with an offence notice may give notice of intention to appear in court for the purpose of entering a plea and having a trial of the matter. 2009, c. 33 , Sched. 4, s. 1 (5). Notice of intention to appear in offence notice

(2) If the offence notice includes a part with a notice of intention to appear, the defendant must give notice of intention to appear by, (

a) completing the notice of intention to appear part of the offence notice; and (

b) delivering the offence notice to the court office specified in it in the manner provided in the offence notice. 2009, c. 33 , Sched. 4, s. 1 (5). Notice of intention to appear to be filed in person

(3) If the offence notice requires the notice of intention to appear to be filed in person, the defendant must give the notice of intention to appear by, (

a) attending in person or by representative at the court office specified in the offence notice at the time or times specified in the offence notice; and (

b) filing a notice of intention to appear in the form prescribed under

section 13 with the clerk of the court. 2009, c. 33 , Sched. 4, s. 1 (5). Specified court office

(4) A notice of intention to appear under subsection (3) is not valid if the defendant files the notice of intention to appear at a court office other than the one specified on the offence notice. 2009, c. 33 , Sched. 4, s. 1 (5). Notice of trial

(5) Where a notice of intention to appear is received under subsection (2) or (3), the clerk of the court shall, as soon as is practicable, give notice to the defendant and the prosecutor of the time and place of the trial. 2009, c. 33 , Sched. 4, s. 1 (5). Rescheduling time of trial

(6) The clerk of the court may, for administrative reasons, reschedule the time of the trial by giving a revised notice to the defendant and the prosecutor within 21 days of giving the notice referred to in subsection (5). 2009, c. 33 , Sched. 4, s. 1 (5). [ 7 ]

Section 9 of the POA states: Deemed not to dispute charge 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). 2009, c. 33 , Sched. 4, s. 1 (13). Action by justice

(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. 2009, c. 33 , Sched. 4, s. 1 (13). Conviction without proof of by-law

(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. 2009, c. 33 , Sched. 4, s. 1 (13). [ 8 ]

Section 9.1 of the POA states: Failure to appear at trial 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. 2009, c. 33 , Sched. 4, s. 1 (14). Examination by justice

(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. 1993, c. 31, s. 1 (3).

Quashing proceeding

(3) The justice shall quash the proceeding if he or she is not able to enter a conviction. 1993, c. 31, s. 1 (3). [ 9 ]

Section 48.1 of the POA states: Certificate evidence 48.1

(1) The certified statements in a certificate of offence or certificate of parking infraction are admissible in evidence as proof, in the absence of evidence to the contrary, of the facts stated therein. 1993, c. 31, s. 1 (22). Exception (2) Subsection (1) does not apply if the defendant has indicated under

section 5.2, subsection 11 (3),

section 18.1.2 or subsection 19 (3) that the defendant intends to challenge the evidence of the provincial offences officer who completed the certificate. 1993, c. 31, s. 1 (22). [ 10 ]

Section 54 of the POA states: Conviction in the absence of the defendant 54.

(1) Where a defendant does not appear at the time and place appointed for a hearing and it is proved by the prosecutor, having been given a reasonable opportunity to do so, that a summons was served, a notice of trial was given under

Part I or II, an undertaking to appear was given or a recognizance to appear was entered into, as the case may be, or where the defendant does not appear upon the resumption of a hearing that has been adjourned, the court may, (

a) proceed to hear and determine the proceeding in the absence of the defendant; or (

b) adjourn the hearing and, if it thinks fit, issue a summons to appear or issue a warrant in the prescribed form for the arrest of the defendant. 2009, c. 33 , Sched. 4, s. 1 (43). Proceeding arising from failure to appear

(2) Where the court proceeds under clause (1) (

a) or adjourns the hearing under clause (1) (

b) without issuing a summons or warrant, no proceeding arising out of the failure of the defendant to appear at the time and place appointed for the hearing or for the resumption of the hearing shall be instituted, or if instituted shall be proceeded with, except with the consent of the Attorney General or his or her agent. 2009, c. 33 , Sched. 4, s. 1 (43). [ 11 ] Rule 15 of O. Reg. 200 states:

(1) The following matters shall be dealt with only in court: 1. Quashing a proceeding, except under

section 9, 18.3 or 18.5 of the Act or under

section 205.7 or 205.19 of the Highway Traffic Act . 2. Amending an information, a certificate of offence or a certificate of parking infraction. O. Reg. 498/94, s. 10; O. Reg. 567/00, s. 2.

(2) A justice may dispose of an application under

section 18.3 of the Act on the basis of the parking infraction notice and the form of application presented by the applicant. O. Reg. 505/93, s. 5.

(3) A justice may dispose of an application under

section 18.5 of the Act on the basis of the form of application presented by the applicant, together with any oral submission the applicant wishes to make or the justice wishes to hear. O. Reg. 505/93, s. 5.

(4) A justice may dispose of an application under

section 19 of the Act on the basis of the notice of fine and due date and the affidavit of the applicant. O. Reg. 505/93, s. 5. [ 12 ]

Section 130 of the HTA states: Careless driving 130. Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years. 2009, c. 5, s. 41 . 4: ANALYSIS 4.1 Was a proceeding under s. 54(1)(

a) proper? If not what was the proper procedure? [ 13 ] Information from the Certificate of Offence is helpful in considering this issue. In addition to the Summons portion at the bottom of the Certificate of Offence being completed, the Set Fine and Total Payable boxes were stroked through. Put another way, there

is no Set Fine or Total Payable enumerated. [14] However, the area immediately above the officer’s signature (for ease of reference, I’ll call it the ‘Certification Box’) onthe Certificate of Offence, contains the wording "And I further certify that I served an offence notice personally upon the person chargedon the offence date". The officer did not stroke out the words ‘offence notice’ and replace them with the word ‘summons’ in theCertification Box, which according to police procedures is required to be done, when an officer chooses to proceed by way of aSummons instead of an Offence Notice (see para 18, R. v.

Djurcik, 2012 ONCJ 436 , [2012] O.J. No. 3211). [15] In my view, clarity as to what process the Officer was using to compel the attendance of the defendant, be it by OffenceNotice or Summons, is a necessity, as the implications to the defendant and the prosecutor are significant. To illustrate the importance ofclarity on this issue, I note the following: (

a) If the matter was proceeding by way of an Offence Notice, then the prosecutor could not proceed, under s. 54(1)(

a) rather she wouldhave had to proceed under s. 9.1 of the POA, assuming that the defendant had filed a Notice of Intention to Appear and a Notice of Trialhad been sent to the defendant, as per s. 5 of the POA. (

b) If the matter was proceeding by way of an Offence Notice and no Notice of Intention to Appear was filed by the defendant, then aNotice of Trial would not be generated, pursuant to s. 5 POA. In that circumstance and assuming the defendant took no other actions asset out in the POA, then s. 9 of the POA would apply and the Certificate of Offence would be placed on what is commonly called a ‘FailTo Respond’ docket for consideration by a justice of the peace. (

c) If the matter proceeded under either s. 9 or 9.1, then a justice of the peace has an obligation to consider the correctness of the SetFine as one factor in determining whether the Certificate is complete and regular on its face. If the Set Fine is incorrect or missing, thenthe Certificate of Offence must be quashed. (

d) If the matter proceeded by way of a Summons, then s. 54(1)(

a) applies. If a conviction was registered, the prosecutor could seekmuch more significant penalties, as permitted under s. 130 of the HTA, than only the Set Fine of $400.

Obviously, this would have apotentially significant impact on the defendant. [16] As only certificate evidence was provided to the Court, I must consider the information available on and associated withthe Certificate of Offence, as well as the law to determine whether an Offence Notice or Summons was issued by the Officer. [17] As no Notice of Trial was attached to the Certificate of Offence, this suggests that the defendant did not file a Notice ofIntention to Appear, which would have caused the administration to generate a Notice of Trial.

This suggests a Summons was issued.This is consistent with the information having been completed in the ‘Summons Issued’

section of the Certificate of Offence indicatingthat the defendant was to attend court on 7 September 2012, in courtroom 1 at 10 AM at 59 Carden St, Guelph. The striking out of theSet Fine and Total Payable boxes is also consistent with the process for a Summons to be issued. [18] Sections 3(2)(a)&(

b) of the POA are of further guidance. These sections set out that an officer may issue a Certificate ofOffence but must complete and sign it to certify an offence has been committed and she/he has issued either an Offence Notice includingthe Set Fine or a Summons. The use of the word ‘or’ in s. 3(2)(

b) satisfies this Court that the issuing officer must be precise on theCertificate of Offence as to whether an Offence Notice or a Summons was issued.

Hence the police procedure referenced above, by thisCourt in Djurcik. [19] The wording of s. 3(2) and the certification by the Officer in the Certification Box that an Offence Notice was served aredefinitive in my mind and outweigh the uncertified information on the bottom of the Certificate of Offence that a Summons was issued. [20] Similarly, the striking out of the Set Fine and Total Payable boxes is outweighed by the certification by the Officer thatan Offence Notice was used which would indicate that a Set Fine was required. [21] Having accepted that an Offence Notice was issued, I now consider under what

section of the matter should have comebefore a Court. As no Notice of Intention to Appear was submitted as part of the certificate evidence, I conclude that the matter had toproceed under s. 9 not under s. 54 of the POA. [22] While s. 9 POA matters are normally considered on Fail-To-Respond dockets outside of the courtroom, I see nothing in s.9 which precludes this Court from considering this matter as part of these proceedings. In the circumstances, I find that the conditions setout under s. 9(1)(

a) have been met. Therefore the defendant is ‘deemed to not wish to dispute the charge’. [23] Further, I have examined the Certificate of Offence pursuant to s. 9(2). As the Certificate of Offence lacks a Set Fine, Ifind pursuant to s. 9(2)(

b) that it is ‘not complete and regular on its face’ and it must be quashed. [24] I note as well that Rule 15 of O. Reg. 200 permits `quashing` in a courtroom. 4.2 Can the short form wording of ‘Careless Driving contrary to The Highway Traffic Act,

section 130’ on the Certificateof Offence, admitted as a certified statement under s. 48.1 of the POA, support a conviction? [25] Sheilagh Stewart on page 16 of Stewart on Provincial Offences Procedure in Ontario, made the following comments: If the

Part 1 summons is issued, s. 48.1 of the Act applies and the officer may complete a certified statement which may be relied upon attrial in lieu of the officer attending to give evidence in court. [26] In R. v. Tohvid, [2008] O.J. No. 3143, Lampkin J. sitting as an appellate court accepted that the prosecution has the

unfettered right under s. 48.1 of the POA to tender certificate evidence without the need to call witnesses (see paras 8 & 9), if it sochooses. As noted by the prosecutor himself in Tohvid, the prosecution must still prove beyond a reasonable doubt the essential elementsof the offence with its certificate evidence, else the prosecutor’s case will fail. [27] In Tohvid the defendant was facing a charge under a Regional Municipality of York By-law not a charge under s. 130 ofthe HTA. [28] The essential elements of a s. 130 HTA charge are:

a) The defendant must be driving a vehicle or street car, and

b) on a highway, and

c) without due care and attention or without reasonable consideration for other persons using the highway [29] From the Certificate of Offence, I accept that Mr McPherson was driving a vehicle from both the licence plate number of261LYR and the wording of the charge itself - ‘Careless Driving’. [30] I also accept from the Certificate of Offence that he was driving on #6 Highway (Hanlon), which is a highway as definedunder s. 1(1) of the HTA. [31] However, if it was the prosecutor`s intention to rely on the words `Careless Driving` from the Certificate of Offence toprove that the defendant was driving `without due care and attention or without reasonable consideration for other persons using thehighway`, then I respectfully disagree. [32] Of assistance are the standards set out by the Ontario Court of Appeal in R. v.

Beauchamp, (ON CA),[1952] O.J. No. 495 for a conviction of careless driving. In paragraph 18, the Court held: The standard of care and skill to be applied has been long established and is not that of perfection. It is, I think, correctly stated inMazengarb, op cit., at pp. 176-7, as follows: "The law does not require of any driver that he should exhibit perfect nerve and presence of mind, enabling him to do the best thingpossible.' It does not expect men to be more than ordinary men.

Drivers of vehicles cannot be required to regulate their driving as if inconstant fear that other drivers who are under observation, and apparently acting reasonably and properly, may possibly act at acritical moment in disregard of the safety of themselves and other users of the road. "But the law does insist upon a reasonable amount of skill in the handling of a vehicle which is a potential source of danger to otherusers of the road. ...

The question always is What would an ordinary prudent person in the position of the plaintiff have done in relationto the event complained of?'" (Pollock on Torts uses the term "average man".) In paragraph 19, the Court stated: It must also be borne in mind that the test, where an accident has occurred, is not whether, if the accused had used greater care or skill,the accident would not have happened.

It is whether it is proved beyond reasonable doubt that this accused, in the light of existingcircumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care andattention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in thecircumstances.

The use of the term "due care", which means care owing in the circumstances, makes it quite clear that, while the legalstandard of care remains the same in the sense that it is what the average careful man would have done in like circumstances, the factualstandard is a constantly shifting one, depending on road, visibility, weather conditions, traffic conditions that exist or may reasonably beexpected, and any other conditions that ordinary prudent drivers would take into consideration. It is a question of fact, depending on thecircumstances in each case.

The Court continued in paragraph 21: There is a further important element that must also be considered, namely, that the conduct must be of such a nature that it can beconsidered a breach of duty to the public and deserving of punishment. [33] Nothing on the Certificate of Offence allows this Court to determine what ‘road, visibility, weather conditions’ or ‘trafficconditions’ or ‘any other conditions’ existed such that Mr McPherson was driving without ‘due care’ in a manner inconsistent with thatof an ‘ordinary prudent person’.

Nor can I determine whether his conduct was ‘of such a nature that it can be considered a breach ofduty to the public and deserving of punishment’. [34] In

summary. the words `Careless Driving` set out a generality but provide no specific actions or the circumstances for thisCourt to assess, as to how the defendant drove ‘without due care and attention or without reasonable consideration for other personsusing the highway`. [35] I have also considered The Greater Toronto Transit Authority v. Martin, [2009] O.J. No. 5746. Tetley J, in this appellatedecision held that a Certificate of Offence contained sufficient information for a conviction to be registered under a municipal By-lawwhich stated: "When requested to do so by a proper authority, a person travelling on the transit system shall immediately surrender for inspection the

valid ticket under which the person is travelling." [ 36 ] In paragraph 22, Justice Tetley stated: The certified statements and the certificate of offence are proof of the offence itself in the absence of evidence to the contrary. And the fact that the offence notice, or certificate of offence itself, may not contain all of the particulars of the by-law, it seems to me is not determinative of whether a conviction ought flow in circumstances like those before the Justice of the Peace in this case. In paragraph 24, the Court continued: I am not certain what - what more information might be produced.

The Justice of the Peace seems to be concerned that the statement within the certificate of offence itself didn't disclose sufficient information, but the certificate of offence references the

section number, which details the manner in which the offence is committed. And I think one might reasonably presume that the certificate of offence therefore contains all of the necessary prerequisites to confirm violation of the applicable By-law. [ 37 ] From the above paragraphs in Martin , it is clear that the Court could and did conclude from the certified statement that the prosecution had proven the essential elements, set out in the charging section, beyond a reasonable doubt. The Court could and did conclude from the certified statement and charging

section that the defendant didn’t surrender his ticket for inspection when asked, which breached the By-law. [ 38 ] In the matter before this Court not only is the s. 130 HTA charge significantly different than the By-law charge in Martin but as per Beauchamp, the actions of the driver required to prove a Careless Driving charge are not fully conveyed by the wording of the certified statement and the charging section. Unlike Martin , more information needed to be produced by the prosecution than that provided in its certificate evidence, for the offence of Careless Driving to be proven beyond a reasonable doubt.

Therefore, Martin is distinguishable from the case at bar. 5: DECISION [ 39 ] The prosecutor could not proceed under s. 54(1)(

a) rather s. 9 of the POA was the proper

section as an Offence Notice was issued by the Officer. Pursuant to s. 9(2)(

b) the Certificate of Offence is quashed. However, if I am in error on this point then I rely on the finding below. [ 40 ] The certificate evidence provided by the prosecution under s. 48.1 of the POA did not prove the essential elements of the offence of Careless Driving beyond a reasonable doubt. Therefore, the charge is dismissed. Released: December 21, 2012 Signed: “Justice of the Peace M.A. Cuthbertson”