R. v. Hands, 2013 ONCJ 682

COURT FILE No.: Halton, Central West Region, 1823404B-00 Citation: R. v. Hands , 2013 ONCJ 682 ONTARIO COURT OF JUSTICE IN THE MATTER OF an appeal under 135 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — CHARLENE HANDS Appellant Before Justice Alan D. Cooper Heard on September 20, 2013 Reasons for Judgment released on December 6, 2013 Stephen H. Parker [Paralegal] for the Appellant Janice P.

Stewart [Paralegal Prosecutor-Halton Court Services] for the Respondent On appeal by Charlene Hands from the conviction imposed by His Worship Justice of the Peace Denis Lee on February 3, 2013. Case History [ 1 ] On December 20, 2012, Charlene Hands was served with a Certificate of Offence which charged her with the offence of careless driving under

section 130 of the Highway Traffic Act of Ontario, R.S.O. 1990, c. H 8 . A Certificate of Offence [ see Appendix “A”, post ] is the charge document for

Part I offences in the Provincial Offences Act , R.S.O. 1990, c. P 33 , which deals with offences less serious than those in

Part II and

Part III. [ 2 ] A trial was scheduled for February 3, 2013, but Ms. Hands did not appear. His Worship Justice of the Peace D. Lee entered a

conviction and imposed a set fine of $400.00 with a total payable of $490.00. [3] Charlene Hands, through her agent Mr. Parker, has appealed against conviction on the ground that the Certificate of Offence was deficient in failing to set out exactly where the offence is alleged to have occurred. The certificate only describes the place of offence as “Wyecroft Rd., E. of Burloak Drive,” without mentioning a city or town or municipality of any sort. Analysis [4] The question which arises is whether or not this omission is of any legal consequence. Under

section 9.1 of the Provincial OffencesAct, where the person charge fails to appear, the presiding Justice must examine the Certificate of Offence to see if it is complete andregular on its face. If it is, a conviction must be entered, but if not, the justice shall quash the proceeding. There is no power ofamendment provided for. This

section provides as follows: 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 oftrial and fails to appear at the time and place appointed for the trial. 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 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. Quashing proceeding

(3) The justice shall quash the proceeding if he or she is not able to enter a conviction [5] This court cannot take judicial notice that “Wyecroft Rd., E. of Burloak Drive” is in any particular municipality. [6] In London (City) v. Young, 2008 ONCA 429 , [2008] O. J. No. 2118 (C.A.), Feldman J.A., for the majority of the court,held that an incorrect set fine amount in a Certificate of Offence was fatal, and since the certificate was not complete and regular on itsface, it must be quashed.

The court stated as follows: 24 The appellant's third argument is that this court should endorse the decision of the Superior Court of Justice in York (RegionalMunicipality) v. Wilson (2005), (ON SC), 27 M.V.R. (5th) 153. That case involved a motion brought by theprosecuting authority under s. 140(1) of the Act to challenge the justice of the peace's decision to quash a certificate under s. 9(1) becausethe set fine was incorrect. Boyko J. concluded that because s. 3(2)(

a) of the Act requires the set fine to be on the offence notice and nosection requires it to be on the certificate, the set fine is not a component of the certificate that is required for it to be considered"complete and regular on its face". Rather, she held that the amount of the set fine is mere surplusage. The court further held that wherethe set fine entered by the officer is incorrect, the justice is obliged to impose the correct set fine. 25 In reaching this conclusion, the court specifically rejected the decision of the Ontario Court of Justice in R. v. Khoshael, [2001]O.J. No. 2110 as wrong.

In that decision, Libman J. succinctly discussed the special default procedure under s. 9.1 of the Act, which isidentical to the procedure under s. 9(1), stating at paras. 8-13: The Provincial Offences Act strikes a balance between inferring from the failure of defendants to act, such that theyare taken to have waived their right to be presumed innocent and their right to a hearing, thereby consenting to aconviction, while placing an overriding requirement on the Justice, as the independent judicial officer put in place as asafeguard, the task of examining the charge document which has initiated the proceeding, so as to prevent injusticesfrom occurring.

In this light, the power of the Justice to refuse to enter a conviction and quash the proceeding where the ticket orcharge document has not been delivered to the defendant in accordance with the Act, or where there are irregularitieson its face such that it is not complete and regular, constitutes an integral part of this pervasive regime in respect ofregulatory infractions. Different considerations apply where the defendant appears at trial and the Act's broad amendment powers under s. 34may 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.] 26 Libman J. acknowledged that not every irregularity will result in a quashing order. He referred to a recent case where the words "of Ontario" were not included in the reference to the Highway Traffic Act as an example of words that were not necessary but mere surplusage.

However, he concluded that the proper amount of the set fine was not mere surplusage, but rather, was necessary in order for the certificate to be complete and regular on its face. It forms part of the basis used by the defendant to decide whether to default. [ 7 ] At para 34, Feldman J.A. also said the following: 34 I conclude that the approach advocated by the appellant and the intervenor does not accord with the purpose or scheme of

Part I of the Act, which is to facilitate an inexpensive and expeditious procedure for dealing with a large volume of less serious offences. The default procedure put in place by the Act is intended to be inexpensive and expeditious for defendants who wish to acknowledge the offence and pay the fine. This procedure also saves the cost to the government of holding trials in cases where people are content to be found guilty of a relatively minor offence and pay a disclosed set fine.

However, the trade-off for these savings is that where the default procedure is used, the certificate of offence must be "complete and regular on its face". If it does not comply, it cannot be amended and must be quashed. [ 8 ] Another case of relevance is R. v. Wilson , [2001] O.J. No. 4907 (O.C.J.) , where Livingstone J. concluded that the absence of the name of the informant on the certificate was a fatal defect, and the conviction was quashed.

The court made an important and helpful conclusion, as set out below: 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. [ Emphasis added ] [ 9 ] A more recent reported case in which the omission of a municipality on the certificate was held not to be fatal, and found to be complete and regular on its face, is that of Regional Municipality of Durham, and Mihal V. Busu , [2012] O.J. No. 5823 (O.C.J.) .

DeFreitas J. found that the person charged could not have been prejudiced or misled by the omission, and that there was nothing on the face of the ticket to lead to the conclusion that it was not complete and regular on its face. At the conclusion of paragraph 3 of his decision, DeFreitas J. states the following: “In the end, applying the purpose of analysis, it seems to me that the accused in this case could not have been prejudiced or misled by the failure of the words ‘Durham’ on his ticket.

He would have known, as he was entitled to know, the offence with which he was charged, the amount of the fine he was liable to pay, and in those cirumstances was able or in a position to make a reasoned and informed decision as to whether or not to decide to dispute the charge. He decided not to.” [ 10 ] Where a person fails to appear for trial,

section 9.1 of the Provincial Offences Act [supra] makes no reference to a consideration of whether or not a defendant could have

been prejudiced or misled by a defect in the Certificate. However, if a defendant does appear and complains of such a defect, the Justice has the power of amendment. One of the factors to be considered is whether the defendant has been misled or prejudiced.

Section 34 of the Provincial Offences Act [supra], sets out the following: Amendment of information or certificate 34.--

(1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate, (

a) fails to state or states defectively anything that is requisite to charge the offence; (

b) does not negative an exception that should be negatived; or (

c) is in any way defective in substance or in form. Idem

(2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial. Variances between charge and evidence

(3) A variance between the information or certificate and the evidence taken on the trial is not material with respect to, (

a) the time when the offence is alleged to have been committed, if it is proved that the information was laid or certificate issued within the prescribed period of limitation; or (

b) the place where the subject-matter of the proceeding is alleged to have arisen, except in an issue as to the jurisdiction of the court. [ emphasis added ] Considerations on amendment

(4) The court shall, in considering whether or not an amendment should be made, consider, (

a) the evidence taken on the trial, if any; (

b) the circumstances of the case; (

c) whether the defendant has been misled or prejudiced in the defendant's defence by a variance, error or omission ; and [ emphasis added] (

d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done. Amendment , question of law

(5) The question whether an order to amend an information or certificate should be granted or refused is a question of law. R.S.O. 1990, c. P.33, s. 34 (1-5). Endorsement of order to amend

(6) An order to amend an information or certificate shall be endorsed on the information or certificate as part of the record and the trial shall proceed as if the information or certificate had been originally laid as amended. R.S.O. 1990, c. P.33, s. 34 (6) . [ 11 ] It is my view that I must respectfully disagree with my brother DeFreitas in Regional Municipality of Durham, and Mihal V. Busu [supra]. It is my opinion that Livingstone J. in R. v.

Wilson [supra] was correct in stating that “where” an allegation arose is a matter of substance, so that a certificate which does not set out a municipality is not complete and regular on its face. With great respect, it is my conclusion that it is of no import that Ms. Hands was not prejudiced or misled by the omission. [ 12 ] By failing to state the municipality in which the careless driving of Charlene Hands is alleged to have occurred, the Certificate of Offence is not complete and regular on its face, and ought to have been quashed by the Justice.

Conclusion [ 13 ] The appeal is allowed and the conviction is quashed. Released: December 6, 2013 ___________________________ Signed: “Justice Alan D. Cooper” APPENDIX “A” [see below]