ONTARIO COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
------AND------
ALAN CYR
PRE – TRIAL APPLICATION TO QUASH PART I CERTIFICATE
BEFORE Justice of the Peace Mangesh S. Duggal
Pre Trial Application Heard: Feb. 12, 2013
Ruling on Pre-Trial Motion Released: February 22, 2013
Provincial Offences Court – Mississauga, Ontario
M. Dunlop……………………………………………………………………………………………………………… for the Prosecutor
C. Walpole…………………………………………………………………………………………………………… Legal Representative
RULING ON PRE-TRIAL MOTION
INTRODUCTION
Alan Cyr is charged that on June 7, 2012 at Dixie Road south of Swanson Drive failed to yield from a Private Driveway contrary to s. 139(1) of the Highway Traffic Act. The offence is a Part I Certificate under the Provincial Offences Act(‘hereafter POA”). The municipality is missing on the Certificate of Offence.
Mr. Walpole, paralegal for the defendant, argues the omission relating to municipality is a jurisdictional defect that cannot be amended. Ms. Dunlop, Prosecutor for the City of Mississauga, disagrees and argues the defect is not fatal, does not affect the Court’s jurisdiction and can be fixed through amendment.
The offence date is June 7, 2012. A Notice of Trial was issued by the Provincial Offences Office and Mr. Walpole attended on his client’s behalf on the trial date. The trial date was Feb. 15, 2013 at the Ontario Court of Justice at 950 Burnhamthorpe Road West, Courtroom M-4, Mississauga. After hearing oral argument, the matter was adjourned to February 22, 2013 for the Court to give a ruling.
After meeting with the Prosecutor, Mr. Walpole, directed the Court’s attention to the certificate and the omission. Mr. Cyr has not been arraigned. Ms. Dunlop provided this Court with a copy of Durham (Regional Municipality) v. Busu [2012] O.J. No. 5823. In Busu, supra, Justice DeFreitas dealt with a circumstance where on a fail to respond docket, the Provincial Offences Court quashed the certificate pursuant to s.9 (1) of the POA. Although the facts are different, Mr. Cyr is neither in s. 9 (Fail to Respond Docket)nor s. 9.1 (Deemed Not to Dispute Docket) scenarios, Justice DeFreitas concluded that the omission of a municipality on a Part I certificate did not render it a nullity.
In R v. Wilson, [2001] O.J. No. 4907, Justice Livingstone dealt with whether a certificate of offence was complete and regular on its face on an FTR or deemed not to dispute docket. Justice Livingston concluded the following in the context of whether certificates were clear and proper on their face. An informant’s name must be present on the certificate; however, it is not necessary that the total payable or the driver’s licence be on the certificate. The Wilson decision, infra, is factually distinguishable as that was a review in the context of FTR or deemed not to dispute dockets. Such is not the case before this Court as this matter was on a trial list
However, Justice Livingstone at paragraph 21 specifically refers to what is required for a certificate 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
The narrow issue in this case is what is meant by where and when the allegation arose. Justice DeFreitas concluded in Basu, supra, at page 3 that the defendant was not prejudiced as the information recited all the facts and related them to a definite offence. The offence was identified by the relevant section of the Code and it was impossible for the accused to be misled. In arriving at that conclusion, Justice DeFrietas adopted Justice DeGrandpre’s reasoning from the Supreme Court of Canada in R v. Cote, 1977 1 (SCC), 1978 1 SCR 8.
QUASHING A CERTIFICATE ON S. 9 (1)VERSUS QUASHING AT TRIAL
Where a person does not attend for the trial on a Part I certificate, the Court conducts a paper review under s. 9(1) of the POA to ensure the certificate is “proper” before the Court - that means if the certificate is complete and regular on its face. If the certificate is complete and regular, a conviction must (emphasis is mine) follow. If a certificate is not clear and regular on certain portions, then the Court must quash the certificate. The Provincial Offences Act provides no authority to amend a certificate under either s. 9; it is simply a disjunctive either or decision.
POWERS TO AMEND ARE BROAD AND TO BE INTERPRETED LIBERALLY AND PURPOSIVELY
Such is not the case at trial. The relevant sections of the POA are set out in sections 34 to 36 and read as follows:
Amendment of information or certificate
- (1) The court may, at any stage of the proceeding (emphasis is mine), 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 (emphasis is mine), 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.
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
(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); 1993, c. 27, Sched.
Particulars
- The court may, before or during trial (emphasis is mine), if it is satisfied that it is necessary for a fair trial, order that a particular, further describing any matter relevant to the proceeding, be furnished to the defendant. R.S.O. 1990, c. P.33, s. 35.
Motion to quash information or certificate
- (1) An objection to an information or certificate for a defect apparent on its face shall be taken by motion to quash the information or certificate before the defendant has pleaded, and thereafter only by leave of the court.
Grounds for quashing
(2) The court shall not quash (emphasis is mine) an information or certificate unless an amendment or particulars under section 33, 34 or 35 would fail to satisfy the ends of justice. R.S.O. 1990, c. P.33, s. 36.
ANALYSIS OF STATUTORY FRAMEWORK
The amending provisions are to be given a broad and purposive analysis. Section 36(2) says as much and mandates the Court to consider an amendment under sections 33, 34 or 35 before quashing a certificate. In terms of timing, the Court may amend the certificate at any stage of the proceedings. Secondly, the Court may order particulars specifying any relevant matter be furnished to the defendant at any stage of the proceedings. As Justice Libman noted in R.v. Khoshael [2001] O.J. No. 21110:
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 default conviction divisions under section 9.1 of the Act.
POSSIBLE PREJUDICE TO THE DEFENDANT
In R. v. Devau, [2006] O.J.No. 3312 (Ont.C.J.), Justice Halikowski overturned a decision where a trial justice quashed a certificate which specified the intersection at which the offence allegedly occurred but failed to note the municipality. Justice Hailikowski, at paragraph 6, noted the mandatory nature of s. 36 (2) of the POA. At paragraph 8, Justice Halikowski concluded there was no prejudice as the amendment was descriptive in nature, did not amount to a new charge nor did it prejudice the Defendant in his defence.
I find Deveau, supra, binding on this Court for three reasons. The procedural facts are similar: both cases involve matters set for trial. Second, the proposed amendment involves setting out a municipality. Finally, the analysis of prejudice is applicable to the facts in this case.
This is not a circumstance where the proposed amendment creates a new offence in law. The proposed amendment amplifies the broader location at Dixie Road south of Swanson Drive. As such the exact municipality is descriptive rather than substantive. The location of the offence has been set out.
The proposed amendment is not jurisdictional and the pre-trial motion to quash the certificate is denied.
Dated February 22, 2013 at the City of Mississauga.
Justice of the Peace M. Duggal