Important Substantive and Procedural Decision from the Court of Appeal in Provincial Offences Act Cases
Today’s important Court of Appeal decision in
The case raises both a substantive and a procedural issue.
The substantive issue is whether the “set fine” must be accurately indicated on a provincial certificate of offence in order to allow a justice of the peace to enter a conviction rather than quash the proceeding under s. 9(1) of the Provincial Offences Act, when the person charged has not responded to the offence notice.
The procedural issue is the correct route for the prosecuting authority to challenge a decision by a justice of the peace to quash a proceeding under s. 9(1): whether by appeal under s. 135(1) of the Act, or by application for a prerogative remedy under s. 140 of the Act.
The Court, with a strong dissent, found as follows:
(1) Is the set fine one of the components of the certificate of offence that must be accurately completed in order for the certificate to be “complete and regular on its face”?
Yes
(2) In order to challenge the decision of a justice of the peace to quash a proceeding under s. 9(1) of the Act, may the prosecuting authority appeal that decision under s. 135(1) or must it seek an order in the nature of mandamus under s. 140(1) of the Act?
Mandamus is required
The Court’s analysis follows:
Analysis
Issue 1: Is the set fine mere surplusage on the certificate of offence?
[9] The certificate of offence is part of the streamlined procedure contained in Part I of the Act. In their text on the Act, Murray D. Segal and Rick Libman describe the mode of procedure under Part I as less serious than laying an information under Part III: The 2007 Annotated Ontario Provincial Offences Act at p. 30. Where a certificate of offence is used, service can be effected in one of two ways: either with an offence notice or a summons. When an offence notice is used, the defendant has several out-of-court options for resolving the charges, including default pursuant to s. 9(1). However, when a summons is used, the defendant is required to appear and these out-of-court options are not available.
[10] Section 3 of the Act describes the requirements for a certificate of offence and an offence notice or summons. It provides:
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.
(2) A provincial offences officer who believes that one or more persons have committed an offence may issue, by completing and signing, a certificate of offence certifying that an offence has been committed and,
(a) an offence notice indicating the set fine for the offence; or
(b) a summons,
in the form prescribed under s. 13.
[11] The “set fine” referred to in s. 3(2)(a) is defined in s. 1 of the Act as “the amount of fine set by the Chief Justice of the Ontario Court of Justice for the purpose of proceedings commenced under Part I or II.”
[12] Section 13 of the Act authorizes the Lieutenant Governor in Council to make regulations prescribing the forms for the certificate of offence, offence notice and summons. Ontario Regulation 950, R.R.O. 1990, as amended, prescribes the forms for the three documents. The prescribed forms for the certificate of offence and the offence notice include one box for the set fine, including costs and the total payable, configured as follows:
| SET FINE OF/L’AMENDE FIXÉE DE $ $ | TOTAL PAYABLE |
| (INCLUDING COSTS) IS INCLUDED IN THE TOTAL PAYABLE ALONG WITH THE APPLICABLE VICTIM FINE SURCHARGE (INCLUTANT LES FRAIS) ET LA SURAMENDE COMPENSATOIRE APPLICABLE SONT COMPRISES DANS LE MONTANT TOTAL A PAYER | $ $ MONTANT TOTAL EXIGIBLE |
[13] However, the forms currently in use for the certificate of offence and the offence notice have been changed from the prescribed forms with respect to the set fine box.[1] It was these forms that were used for the certificates at issue in this appeal. A copy of a blank form in the current format is attached as Appendix “A” to these reasons. It includes two boxes for the set fine and total payable configured as follows:
| SET FINE OF L’AMENDE FIXEE DE $ $ | TOTAL PAYABLE $ $ MONTANT TOTAL EXIGIBLE | TOTAL PAYBLE INCLUDES COSTS AND APPLICABLE VICTIM FINE SURCHARGE LE MONTANT TOTAL EXIGIBLE COMPREND LES FRAIS ET LA SURAMENDE COMPENSATOIRE QUI S’APPLIQUE |
[14] Sections 60 and 60.1 of the Act impose costs and a victim fine surcharge that are deemed to be part of the fine payable upon conviction. Section 60 provides that upon conviction, the defendant is liable to pay an amount of costs that is fixed by Regulation 945, R.R.O. 1990, as amended. The sum of $5.00 is added for service of the offence notice. Section 60.1 was added to the Act in 1995 and imposes a victim fine surcharge for convictions under Parts I and III where a fine is imposed. The surcharge is calculated based on the amount of the fine (exclusive of costs) in accordance with O. Reg. 161/00.
[15] Once an offence notice has been served, the defendant has five options:
(1) The defendant may give notice of intent to appear, plead and have a trial (s. 5);
(2) The defendant may dispute the charge in writing. If the dispute does not raise an issue that may constitute a defence, the justice shall convict the defendant and impose the set fine. If the dispute does raise an issue that may constitute a defence, the justice may direct a hearing held in the absence of the defendant, and may then acquit the defendant or convict and impose either the set fine or such lesser fine as may be permitted by law (s. 6);
(3) The defendant may appear to plead guilty but dispute the penalty, in which case the justice may impose the set fine or such lesser fine as may be permitted by law (s.7);
(4) The defendant may sign the offence notice signifying a plea of guilty and deliver it with the amount of the set fine to the court office (s. 8);
(5) The defendant may elect not to respond at all, in which case s. 9(1) of the Act applies. Or, if the defendant has given notice of an intention to appear but does not appear for the hearing, the defendant is deemed by s. 9.1 not to dispute the charge and the justice proceeds as under s. 9(1) to convict or quash based on a review of the certificate for completeness and regularity on its face.
[16] There is no evidence in the record as to why the officers in these sixteen cases each wrote an incorrect amount for the set fine. The officer may have added the $5 service cost to the prescribed set fine amount in accordance with the old form, but this does not account for the discrepancy in all of the cases. In some of the cases, the total amount payable for the set fine, costs and victim surcharge is correct despite the set fine amount itself being incorrect, although the parties do not agree on how many cases are correct. In other cases, the total amount payable is either too high or too low by anywhere from $5 to $75.
[17] The appellant makes three arguments in support of the proposition that the certificates at issue should not have been quashed. The first is that the proper approach to be taken by a justice when reviewing a certificate of offence under s. 9(1) to determine whether it is “complete and regular on its face” is to correct any defect in substance or form, particularly technical deficiencies such as an error in the set fine amount, rather than quash the proceeding. The appellant points to sections of the Act that favour amendment of deficiencies rather than quashing of proceedings. For example, s. 34(1) allows the court “at any stage of a proceeding” to amend the information or certificate that is defective in substance or form in any way. The appellant also points to s. 36(2), which states that the court shall not quash an information or certificate unless an amendment “would fail to satisfy the ends of justice”.
[18] In my view, it is clear that these sections were not intended to apply when a justice is exercising the special powers and procedure conferred by s. 9(1) of the Act. The provisions cited by the appellant, ss. 34(1) and 36(2), are found in Part IV of the Act, titled “Trial and Sentencing”. Although the opening words of s. 34(1) state that “the court may at any stage of the proceeding amend …” [emphasis added], it is clear from reading the entire section that it is intended to apply in the context of a proceeding on an information or certificate that has moved forward to the hearing stage. Furthermore, s. 36(2) must be read together with s. 36(1), which requires that an objection to an information or certificate for a defect on its face must be made by motion to quash, either before the defendant has entered a plea or after with leave of the court. Subsection (2) directs the court that it is in responding to such a motion that the court is to amend the information or certificate if possible rather than quash. This section does not apply to the s. 9(1) in-office default procedure, where there are no motions to quash made and no plea is taken.
[19] This distinction can be seen in this court’s decision in R. v. Singh (2004), 9 M.V.R. (5th) 195. In that case, as the defendant had appeared to plead, s. 9(1) did not apply. The justice presiding at the hearing quashed the certificate because it contained an incorrect set fine. This court upheld the reviewing judge’s conclusion that the justice erred by failing to amend the certificate under s. 34(1), even though she would have been obliged to quash it under s. 9(1) had the defendant not appeared.
[20] Any remaining doubt about the intent of the legislature with regard to the proper interpretation and application of these sections is resolved by rule 15(1) of the Rules in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200, as amended. This rule states that two matters can be dealt with only in a court hearing: quashing a proceeding, except under s. 9 and some other sections, and amending an information, certificate of offence, or certificate of parking infraction. This makes it clear that the legislature did not intend that a justice of the peace have the power to amend a defective certificate in a s. 9(1) default proceeding because such a proceeding takes place in-office, not in court.
[21] The appellant’s second argument is based on s. 90(1), which is found in Part V of the Act, “General Provisions”. This section states:
90. (1) The validity of any proceeding is not affected by,
(a) any irregularity or defect in the substance or form of the summons, warrant, offence notice, parking infraction notice, undertaking to appear or recognizance; or
(b) any variance between the charge set out in the summons, warrant, parking infraction notice, offence notice, undertaking to appear or recognizance and the charge set out in the information or certificate.
[22] Again, this section must be read and interpreted as a whole including subsection (2) which provides:
90. (2) Where it appears to the court that the defendant has been misled by any irregularity, defect or variance mentioned in subsection (1), the court may adjourn the hearing and may make such order as the court considers appropriate, including an order under section 60 for the payment of costs.
[23] Subsection (2) makes it clear that s. 90 applies in the context of a hearing before the court, and therefore not where the justice is proceeding on default under s. 9(1) where no hearing is held. Furthermore, s. 90(1)(b) contemplates a comparison between the certificate and the offence notice, but the offence notice is not before the justice in a s. 9(1) proceeding. In any event, a defect in the set fine on the certificate would be identical to that on the notice.
[24] The appellant’s third argument is that this court should endorse the decision of the Superior Court of Justice in
[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 is identical 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 they are taken to have waived 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.]
[26] Libman J. acknowledged that not every irregularity will result in a quashing order. He referred to a recent case where the words “of
[27] I respectfully reject the court’s conclusion in
[28] However, where an offence notice is used, the set fine is required because the defendant needs that information in order to decide whether to default and be subject to the set fine, plus costs and the victim fine surcharge. That is why s. 3(2)(a) does not require the certificate to indicate the set fine in all cases, but does require it when the officer chooses to proceed by way of offence notice.
[29] When the offence notice is served and no response is received from the defendant within fifteen days, the justice must examine the certificate under s. 9(1) in order to determine whether it is “complete and regular on its face”. In doing so, the justice is effectively determining whether the defendant received effective notice of all the information needed to decide whether to default. The set fine is one of those required pieces of information. As noted above, s. 3(2)(a) requires it to be included on the offence notice, which is a carbon copy of the certificate. Therefore, the set fine is also required to be on the certificate or else it can be inferred that it was not on the notice, which is not before the justice.
[30] The Oxford English Dictionary, Second Edition, Vol. XIII at p. 523 contains a number of definitions or meanings of the word “regular”. One definition that appears to be relevant is “recognized as formally correct”. If the set fine, as in the case at bar, is incorrectly recorded on the certificate, it simply cannot be regular on its face and must be quashed.
[31] Because the justice has no power to amend the certificate under s. 9(1), the requirement in s. 9(1)(a) that the justice impose the set fine upon conviction must mean the set fine as shown on the certificate. If that amount is incorrect, the justice cannot impose it, as it is not the statutorily defined set fine. The justice is obliged to quash the proceeding under s. 9(1)(b).
[32] In supporting the appellant, the intervenor relies on the Supreme Court of Canada’s decision in R. v. Moore (1988), 41 C.C.C. (3d) 289, in which the court held that a defective information would not be quashed as a nullity if it gave fair notice of the offence to the accused and the defect could be cured by amendment. For the reasons already discussed, the analysis in
[33] The other argument made by the intervenor is that the set fine does not affect the validity of a certificate because it is not an element of the offence. Rather, the intervenor argues that it is only relevant to sentencing. This position does not bear scrutiny when assessed in the context of the default procedure and the required notice to the defendant that that procedure entails. In the default context, the set fine is part of the information the defendant requires in order to decide whether to default and thereby forgo the right to be presumed innocent and to have a hearing.
[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.
[35] My colleague Doherty J.A. suggests that where the set fine is wrong on the offence notice (and the certificate), and where the person chooses to default and is convicted and a higher set fine is imposed, that person has the remedy of an appeal. However, in my view, this approach is inconsistent with the intent of the default procedure. First, it removes the incentive for peace officers to be accurate when completing the “set fine” on certificates of offence and places the burden of correcting an error on the citizen, rather than the state, whose error it is. Second, if the set fine is inaccurate on the offence notice, the notice will not comply with the requirements of s. 3(2)(a) of the Act, and an appeal would likely be successful, while the cost and time required for such appeals both for the citizen and the system would undermine the intent of the default procedure to be efficient and inexpensive.
[36] There is no evidence before this court to suggest that there is a widespread problem with incorrect set fines, or that requiring the set fine to be correct would result in a massive number of quashed proceedings. There is also no reason to suspect that that would be the case. The material filed by the amicus contains an internal memorandum from the Office of the Chief Justice, Ontario Court of Justice explaining the reasons for historical confusion over the correct way to complete the set fine portion of the form. However, with the new form and new schedules of set fines, this historical problem should no longer be an issue.
[37] I would accordingly reject this ground of appeal.
Issue 2: Should the appellant have challenged the order quashing the proceeding by way of appeal under s. 135(1), or by way of application for an order in the nature of mandamus under s. 140?
[38] Both the appellant and the intervenor submit that the application judge erred in holding that the appellant should have appealed the order quashing the certificates rather than seeking mandamus under s. 140 of the Act. The amicus curiae submits that the application judge was correct in holding that an order quashing the proceedings is tantamount to an acquittal and therefore should have been appealed under s. 135(1) of the Act.
[39] The issue of the prosecution’s ability to appeal or to seek a prerogative remedy after charges have been quashed or stayed has been discussed extensively in the criminal law context. In Kipp v.
[40] The issue arose again in the Supreme Court but in the context of a summary conviction offence in Cheyenne Realty Ltd. v. Thompson (1974), 15 C.C.C. (2d) 49. In that case, the appellant pled not guilty to a charge of breaching a city by-law, then moved for an order that the by-law was invalid. The trial judge agreed that the by-law was inoperative and held that the court had no jurisdiction to hear the matter. The respondent moved for mandamus. The Supreme Court distinguished Kipp on the basis that in that case, it was the form of the indictment that precluded the judge from proceeding, while in Cheyenne, the judge’s conclusion that the by-law was inoperative was a decision on the merits amounting to an acquittal. The judge effectively decided that there had been no breach of the by-law by the accused by deciding that there was no by-law to breach. That finding amounted to a verdict of acquittal and therefore should have been appealed by way of stated case under s. 762 of the Criminal Code, which provided for such an appeal in summary conviction matters.
[41] The issue of when the Crown may appeal by way of stated case under s. 762 rather than move for mandamus when an information is quashed was discussed by this court in R. v. B & B Stone Ltd.(No. 2) (1977), 34 C.C.C. (2d) 464. In that case, the information was quashed for duplicity. Arnup J.A. explained that where an information is duplicitous, it is not void. Therefore when it is quashed, it is not a declining of jurisdiction, but a decision that can be appealed. He further explained that cases such as Kipp, which dealt with motions to quash indictments rather than informations, had to be assessed differently because the right of appeal for indictments under the Criminal Code was quite different from s. 762 for summary conviction matters, and only allowed the Crown to appeal from “a judgment or verdict of acquittal of a trial court”.
[42] In R. v. Beason (1983), 7 C.C.C. (3d) 20 (Ont.
It seems that the rule that mandamus cannot be invoked where an appeal lies is not so much an inflexible rule of law, as a rule regulating the discretion of the courts in granting mandamus. …
[43] This case was an early Charter decision where new procedural issues were arising for determination in the Charter context. In the end, the court held that mandamus was available in the circumstances, although an appeal would be the preferable remedy in similar circumstances in the future.[2] However, in discussing the history of the debate over when mandamus properly lies, Martin J.A stated at p. 28:
It is well established that where it is alleged that a trial judge has erroneously quashed an indictment for defects in the indictment such as duplicity, failure to allege a material averment and the like or on the ground of failure to comply with technical procedural requirements, no appeal lies from the order quashing the indictment. Such an order is not tantamount to an acquittal and does not preclude the preferring of another indictment. It has been authoritatively decided that where an indictment has been quashed for technical or procedural irregularities mandamus is the appropriate remedy to challenge that decision. The question to be decided on mandamus in those circumstances is not whether the trial judge had jurisdiction to quash the indictment, but whether he erred in law in quashing the indictment.
[44] In R. v. Jewitt (1985), 21 C.C.C. (3d) 7, the Supreme Court considered whether a judicially-entered stay of proceedings for entrapment was a “judgment or verdict of acquittal” for the purposes of an appeal under s. 605(1)(a) of the Criminal Code. After reviewing the case law, the court concluded at p. 18:
From this review, it can be concluded that quashing an indictment is tantamount to an acquittal where (a) the decision to quash is not based on defects in the indictment or technical procedural irregularities, and (b) the decision is a final decision resting on a question of law alone, such that if the accused were charged subsequently with the same offence he or she could plead autrefois acquit.
[45] The distinctions drawn in the case law discussed above, developed under the Criminal Code, must be considered in the context of the Act, and in particular, in the context of the default procedure under s. 9(1) and the specific appeal and prerogative remedy provisions of ss. 135(1) and 140.
[46] Under s. 135(1), there is an appeal against acquittal, conviction, and sentence in a proceeding commenced under Part I. Had the legislature intended to allow the prosecuting authority or the Attorney General to appeal when a proceeding is quashed under s. 9(1), it could have specifically provided for an appeal in that event.
[47] Furthermore, s. 9(1) accords with the jurisprudence under the Criminal Code regarding when a quashed proceeding is effectively an acquittal. By giving a justice the ability to quash but not to acquit, the legislature has made it clear that the decision to quash is not a verdict on the merits tantamount to an acquittal, but rather is a recognition that irregularities on the face of the certificate do not allow for default conviction. The legislature has made the decision to balance the use of the expeditious default procedure with the need to protect the integrity of the system by sacrificing convictions on default where the officer makes an error that affects the completeness or regularity of the certificate.
[48] In my view, it accords with the scheme of the Act that no regular avenue of appeal is provided where a proceeding is quashed under s. 9(1). The procedure established by s. 9(1) requires the justice to make a decision without the benefit of any input from either side. If the prosecuting authority or the Attorney General believe a justice has misconstrued what constitutes an error going to the regularity or completeness of the certificate, a prerogative remedy can be sought. However, one would expect such cases to be relatively rare.
[49] The clear wording of ss. 135(1) and 9(1) also suggests that the legislature did not intend that courts proceed on the basis that a proceeding quashed under s. 9(1) is “tantamount to an acquittal”. This approach would effectively accord a right of appeal where the legislature chose not to provide one. It would also be inconsistent with the legislature’s decision not to give a justice the power to acquit under s. 9(1). In my view, based on the wording of the Act, as well as its intent to provide an efficient and cost-effective default procedure, expanding the right of appeal beyond what is specifically provided for in the Act would constitute an error in law.
[50] Finally, I wish to address the issue that arises from the jurisprudence regarding whether a quashed certificate is a nullity or an irregularity. Traditionally, only a constating document that is a nullity deprives the court of jurisdiction to proceed based on that document. However, the default scheme under s. 9(1) of the Act is differently constructed: the jurisdiction accorded to a justice is to either convict or quash. The latter is within the justice’s jurisdiction where the certificate is incomplete or irregular on its face. Viewed another way, the incompleteness or irregularity deprives the justice of the ability to convict based on the certificate, and as discussed above, the justice has no authority under the Act to amend a defective certificate when proceeding under s. 9(1) following default. In that way, although the certificate is only incomplete or irregular on its face, it has the effect of a nullity.
[51] I conclude that the nullity/irregularity distinction does not fit easily into the s. 9(1) default procedure. However, regardless of whether the irregular or incomplete certificate is a nullity or an irregularity, the Act does not provide for an appeal where the certificate is quashed.
James Morton
Steinberg Morton Hope &
M2N 6P4
416 225 2777
Blog: http://jmortonmusings.blogspot.com/
5 comments:
i dont know if you can read this, but i have recently been stricken with a ticket. however under the highway traffic act the set fine is set incorrectly. would i still be able to gain acquittal from the fatal error?
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