2013 ONSC 7903, 2013 ONSC 7903

CITATION : Corporation (City of Guelph) v. Louws, 2013 ONSC 7903 COURT FILE NO.: 485/13 DATE: 2013 12 20 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) THE CORPORATION OF THE CITY OF GUELPH ) ) ) Scott Worsfold, for the Applicant ) Applicant ) ) - and - ) ) ) MICHAEL F. LOUWS ) ) ) Edwin Boeve, for the Respondent ) Respondent ) ) ) ) HEARD: October 21, 2013 in Guelph REASONS FOR JUDGMENT Seppi J. [ 1 ] The respondent, Michael Louws, was involved in a motor vehicle accident on April 21, 2012, following which he was charged with careless driving pursuant to

section 130 of the Highway Traffic Act . A summons was served and proceedings held under

Part 1 of the Provincial Offences Act ( POA ). After a number of adjournments the trial proceeded on April 30, 2013. [ 2 ] Though the respondent was in the courthouse the day of the trial he was not in the court room during the hearing. He was represented by an agent. After the Crown’s witnesses had completed their testimony Mr. Louws’ agent brought a motion for nonsuit, arguing the essential element of identity had not been proven. [ 3 ] The prosecutor argued

section 48.1(1) of the POA permits the proof of identity upon the filing of the certified information in the certificate of offence, which he sought to file. The Justice of the Peace ruled this case was within the exception to such proof by certificate of offence under

section 48.1(2). She held the prosecutor could not rely on the certificate of offence if viva voce evidence was called.

[4] In this case the prosecutor had called two civilian witnesses to prove the offence. She indicated the civilian witness was in aposition to identify the respondent, had he been in the court room. In the absence of the applicant the prosecution sought to file thecertificate of offence, on the issue of identity which, pursuant to

section 48.1(1) of the POA, is “admissible in evidence as proof, in theabsence of evidence to the contrary, of the facts stated therein.” [5] The Justice of the Peace held that because the applicant had engaged a licenced paralegal to represent him and had representationwhen the matter was set for trial he “clearly fits within the exception under

section 48.1(2) of the POA”. [6] Rather than ruling on the applicant’s nonsuit motion, however, the Justice of the Peace declared a mistrial, before hearing anydefence evidence. Her reasons indicated that: Due to the manner in which both the prosecution and the defence have conducted themselves in this trial, I have concluded that there is areasonable apprehension that neither party will have a fair trial if the current trial continues. However, a fair trial would be possible if thetrial were to begin afresh before another judicial officer.

It is necessary that not only should justice be done, justice should also appear to be done. There exists in my mind a reasonableapprehension of bias towards both parties. I clearly was troubled by the fact that Ms. Whalen [defence agent] appeared to have blindsidedthe prosecutor by essentially having the defendant remain outside the courtroom while the prosecutor was putting in her case and onlyhaving him appear beside her after the prosecution closed her case.

It made the court conclude that this was a deliberate act on her part tothwart the identity issue, which she then promptly raised in her motion for nonsuit. Equally troubling for the court is the prosecutor’s presumption that she could have it both ways.

That is, call viva voce evidence in a trialand at the same time seek to rely on certificate evidence which is not available to her when the defendant has appeared by agent pursuantto section 50(1) of the Provincial Offences Act. [7] As there has been no decision on the merits in this case by way of an acquittal or conviction, the prosecution applies for an orderof mandamus with certiorari in aid, quashing the mistrial order and directing Her Worship to decide the merits upon all the evidence,including the certificate of offence filed at the trial. The Issues [8] The issues are:

(1) Whether the Justice of Peace committed a jurisdictional error in declaring a mistrial upon the defence motion for nonsuit?

(2) Whether the Justice of the Peace erred in law in holding the exception in

section 48.1(2) of the POA applies to prevent usingboth the certificate of offence and viva voce evidence at trial? Issue One [9] This issue is not in dispute. Both the prosecution and defence agree the order directing mistrial was an error in jurisdiction. TheJustice of Peace had all of the evidence from the prosecution, that she was accepting.

Upon the motion for nonsuit she was required toeither grant the motion and dismiss the case, or dismiss the motion for nonsuit and continue the trial. [10] There was no “fatal wounding of the trial process” to justify a mistrial, as reasoned by Pardu J., as she then was, in R. v. SaultSte. Marie, [2007] O.J. No. 4356, at para. 41. A ruling on the nonsuit motion was required, and the Justice of the Peace declined to act inaccordance with her jurisdiction. [11] As stated by the Ontario Court of Appeal at para. 9 and 10 of R. v. Toutissani, 2007 ONCA 773 , [2007] O.J.

No. 4364: … the declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort, in the clearest of cases and where noremedy short of that relief will adequately redress the actual harm occasioned. [12] The Justice of the Peace erred in declaring a mistrial in the circumstances of this case rather than ruling on the motion beforeher. The fact that she was of the view that the prosecution had been blindsided by the deliberate absence of the respondent was notgrounds for declaring a mistrial.

Issue Two [ 13 ] The second issue gives rise to the central question on this application, which is, whether

section 48.1(1) of the POA applies to permit the filing of the certificate of offence to prove an essential element of the offence such as identity in cases where the prosecution has also called viva voce evidence. The certificate of offence incorporates the issuing officer’s certificate of service on the person charged. [ 14 ] Section 140(1) of the POA gives this court the power to grant relief “in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus , prohibition or certiorari.” [ 15 ]

Section 48.1(1) and (2) state as follows: 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). [ 16 ] Sections 5.2, 11(3), 18.1.2 and 19(3) of the Act , which are referenced in s. 48.1(2) above, state: 5.2

(1) A defendant who gives notice of an intention to appear in court for the purpose of entering a plea and having a trial of the matter shall indicate on the notice of intention to appear or offence notice if the defendant intends to challenge the evidence of the provincial offences officer. 11

(3) If the justice strikes out the conviction, the justice shall, (

a) proceed under

section 7, if the offence notice does not require the notice of intention to appear to be filed in person and the defendant wishes to proceed under that section; (

b) direct the clerk of the court to give notice to the defendant and the prosecutor of the time and place of their meeting under subsection 5.1 (3), if the offence notice requires the notice of intention to appear to be filed in person and the defendant wishes to proceed under that section; or (

c) direct the clerk of the court to give notice to the defendant and the prosecutor of the time and place of the trial. 18.1.2

(1) A defendant who gives notice of an intention to appear under subsection 17 (1), 17.1 (3), 18.1 (1) or 18.1.1 (3) shall indicate on the notice of intention to appear or parking infraction notice if the defendant intends to challenge the evidence of the provincial offences officer who completed the certificate of parking infraction. 19(3) If the justice strikes out the conviction, the justice shall, (

a) if the defendant enters a plea of guilty, accept the plea and impose the set fine; or

(

b) direct the clerk of the court to give notice to the defendant and the prosecutor of the time and place of the trial. [ 17 ] Section 3(3) of the POA requires personal service of an offence notice, or summons. The latter was personally served in this case. The respondent argues that

section 48.1(1) of the POA requires the service on the defendant of a

Part 1 notice and not a summons. There is no provision in the POA to that effect. The argument, therefore, fails. [ 18 ] Alternatively he submits that from a reading of the exceptions it is clear that once the defendant indicates his intention to challenge the evidence of the investigating officer and proceed to trial,

section 48.1(1) does not apply. He submits there is no authority allowing the prosecution to rely upon a certificate of offence and certified statements in circumstances where an accused sets the matter for trial, except where such an accused has explicitly indicated that there is no such challenge to the officer’s evidence. He notes the purpose of

section 48.1 of the POA is to provide a streamline procedure for convictions to be secured without oral testimony where matters are undefended. [ 19 ] The applicant argues that none of the exceptions listed in

section 48.1(2) apply in the circumstances of this case. He submits

section 48.1(2) does not state the certificate evidence is inadmissible if the charge is disputed. It is only so if the defendant has given notice of his intention to dispute the evidence of the officer as specifically stated in s. 48.1(2). In the case at bar the applicant has not indicated under any of the sections enumerated that he intends to challenge the evidence of the officer who completed the certificate. The respondent concedes no written notice of an intention to dispute the officer’s evidence was ever given. [ 20 ] The applicant further submits that if a certified statement could not be admitted if the charge itself were disputed it would render this

section of the Act meaningless. It would mean that a prosecutor could never rely on certified evidence if a “not guilty” plea were entered and the defendant fails to appear. He submits the exceptions in

section 48.1(2) were clearly intended to only exclude the use of certified evidence if the defendant indicates under specific sections of the Act that he intends to challenge the officer’s evidence. There is no provision in the Act which prohibits the use of certified evidence if the defendant disputes the charge and pleads not guilty, nor is it prohibited if he calls viva voce evidence. [ 21 ] In the case at bar there was no notice filed by the defendant that he intends to challenge the evidence of the officer.

Both sections 5.2 and 18.12 apply when there is a notice of intention to appear filed by the defendant. In such cases the defendant must give notice whether or not he intends to challenge the officer’s evidence. It is only if he gives notice of an intention to challenge the officer’s evidence that the exception of

section 48.1(2) would apply. This procedure is facilitated by Form 8, which requires the defendant to indicate in writing whether or not he intends to challenge the provincial offences officer’s evidence in cases where he submits a notice of intention to appear. [ 22 ] In this case the defendant was served a summons. The summons includes a certificate of offence and certification that the provincial offences officer personally served the defendant charged, on the offence date. The charge was laid and the proceeding was commenced under

Part 1 of the POA . There was no notice of intention to appear filed. The defendant was by the summons required to appear in court on 12/05/25 at 10:00 a.m. Upon his appearance the defendant entered a plea of not guilty. There was no notice given or required, that he intended to dispute the evidence of the officer. He was requesting a trial and putting the prosecution to its proof. [ 23 ] The defendant was personally served.

The officer’s certificate of service of the summons “shall be received in evidence and is proof of personal service in the absence of evidence to the contrary” pursuant to section 3(7) of the POA . The prosecution is entitled to rely on these certificates of offence and service in its evidence to establish identity. [ 24 ] The Justice of the Peace held it would be a “huge leap” to accept the Certificate on the issue of identity and that “certificate evidence is only used in the absence of no [sic] defendant” (underline added), and when the “court isn’t hearing from witnesses”.

There is, however, no authority to support such a conclusion. The certificate is evidence. It is relevant to the issue of identity as the officer has certified personal service on the day of the offence on the defendant named. The Justice of the Peace erred in law by refusing to accept relevant evidence, and erred in her finding that the prosecution could not lead both viva voce and certificate evidence at the trial.

There is no provision in the POA which prohibits the use of the certificate of offence as evidence just because the defendant has chosen to defend and appear by an agent, as was reasoned by the Justice of the Peace in her decision to declare a mistrial. Result [ 25 ] In the result the application of the prosecution is allowed and the order of Her Worship A. M.

Rodney, declaring a mistrial, is hereby quashed by way of certiorari. [ 26 ] An order of mandamus shall issue requiring Her Worship to admit the evidence tendered by the prosecution by way of certificate of offence, to continue the trial, and decide the merits of this action on the basis of all the evidence before her, including the certificate evidence and the viva voce evidence as presented at trial. [ 27 ] Order accordingly. ___________________________ Seppi J.

Released: December 20, 2013 CITATION : Corporation (City of Guelph) v. Louws, 2013 ONSC 7903 COURT FILE NO.: 485/13 DATE: 2013 12 20 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: THE CORPORATION OF THE CITY OF GUELPH Applicant - and – MICHAEL F. LOUWS Respondent REASONS FOR JUDGMENT Seppi J. Released: December 20, 2013