Thursday, December 19, 2013

POA failure to appear at trial hence convicted is constitutional

R. v. Jamieson, 2013 ONCA 760 holds that s. 9.1(1) of the Provincial Offences Act, allowing a conviction where an accused has been "issued a notice of the time and place of trial" and failed to appear is constitutional:

[47]       In considering the application of these principles to the POA, I note that the NIA option in the offence notice clearly warns a defendant that failing to appear at the trial will result in a conviction. The defendant must exercise the option to appear on the offence notice and deliver it to the court office, so he or she does not retain a copy. But, in order to make an intelligent choice among the options provided, a defendant who chooses the option of appearing, like the appellant, must have read, understood, and signed the NIA, which includes the warning.

[48]       If, as in this case, the defendant opts to file a NIA, then, for the purpose of entering a plea and having a trial, a NT containing the time and place of the trial is issued. As noted, it contains a second clear warning of the consequences of failing to appear at trial.

[49]       In my view, the POA forms are clear. They fully informed the appellant of the consequences of failing to appear at trial, as required by Richard.

[50]       LaForest J. also pointed out, at para. 34 of Richard, that the system was designed to make it relatively easy for accused persons to revive the case if "their failure to appear was not their fault". This was adequate to show the "voluntary nature of the waiver by the accused of the benefit of s. 11(d)" (emphasis in original).

[51]       In my view, the appeal routes in the POA do the same. As the fresh evidence shows, the route to re-opening under s. 11 is often accessed and is frequently successful, quite apart from the fairly open-ended appeal right in s. 35 of the POA.

[52]       In my view, there is no systemic flaw in the scheme under the POA and particularly, in the operation of s. 9.1, that offends the standard set by the Supreme Court in Richard. The scheme carefully balances the relevant factors, as found by this court in London (City) v. Young, 2008 ONCA 429, at para. 25.


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