Court File and Parties
Ontario Court of Justice
In the Matter of: An appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended
Between:
Her Majesty the Queen Appellant
ā And ā
Scott Benson Respondent
Before: Justice D.A. Harris
Heard on: December 8, 2017
Reasons for Judgment released on: March 28, 2018
Counsel
L. Boyd ā counsel for the prosecution
The defendant Scott Benson ā on his own behalf
Appeal Information
On appeal from a conviction by Justice of the Peace D. Lee on April 26, 2017.
Judgment
Introduction
1Scott Benson was charged by way of a Part I Offence Notice, with the offence of Fail to Signal Lane Change in contravention of s. 142(1) of the Highway Traffic Act. This was alleged to have taken place on February 10th, 2016.
2A trial was scheduled for October 7th, 2016. Mr. Benson appeared and requested an adjournment to obtain disclosure. The request for an adjournment was granted and a new trial date was scheduled for April 26th, 2017.
3On April 26th, 2017 he appeared in court and asked for a second adjournment of his trial date. The reasons given by him for this request were firstly familial responsibilities, and secondly a desire to make an undue delay application.
4The presiding Justice of the Peace exercised his judicial discretion and denied the request for the adjournment. The matter was held down and Mr. Benson left the courtroom and did not return. He was subsequently convicted pursuant to section 9.1(2) of the Provincial Offences Act.
5The Crown has appealed against this conviction on the basis that the presiding Justice of the Peace erred in law in relying on section 9.1(2).
6Mr. Benson was served with notice of this appeal but has not responded in any way.
7The first issue that came to my mind was whether I had any jurisdiction to hear a Crown appeal against conviction.
8In that regard, I note section 135 of the Provincial Offences Act which provides that:
- (1) A defendant or the prosecutor or the Attorney General by way of intervention is entitled to appeal an acquittal, conviction or sentence in a proceeding commenced by certificate under Part I or II and the appeal shall be to the Ontario Court of Justice presided over by a provincial judge.
9I am satisfied that this does allow for the Crown to appeal against a conviction.
10Mr. Benson was charged with the offence of Fail to Signal Lane Change, contrary to section 142(1) of The Highway Traffic Act on February 10th, 2016.
11A trial was scheduled for October 7th, 2016. Mr. Benson appeared and requested an adjournment to obtain disclosure.
12The request for an adjournment was granted and a new trial date was scheduled for April 26th, 2017.
13On April 26th, 2017 Mr. Benson appeared and requested a second adjournment on the basis that his wife was at home recovering from a surgical procedure and he was required to look after their children.
14The presiding Justice of the Peace denied this request for an adjournment and advised Mr. Benson that the matter was going to proceed that day.
15Mr. Benson then stated, "Can I also then just say that part of my trial defence is the fact that there's been an undue delay and I don't have the transcripts to show you that".
16The presiding Justice of the Peace replied, "The undue delay is equally at your part. I'm not getting into a Charter argument at this time. We're going to put this down to the end of the list. If you're not here for your trial, the trial will be held in absentia."
17The matter was held down and Mr. Benson left the courtroom. He never returned. When the case was called for trial, and no one appeared, the presiding Justice of the Peace entered a conviction pursuant to section 9.1(2) of the Provincial Offences Act.
18Section 9.1 states that:
(1) Failure to appear at trial- A defendant is deemed to not wish to dispute the charge where the defendant has been issued a notice of time and place of trial and fails to appear at the time and place appointed for trial.
(2) Examination by justice-If subsection (1) applies, section 54 does not apply, and a justice shall examine the certificate off offence and shall without a hearing enter 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.
(3) The justice shall quash the proceeding if he or she is not able to enter a conviction.
19Counsel for the appellant argued that the presiding Justice of the Peace ought not to have proceeded in this way in that he did not have the jurisdiction to do so.
20She argued that he should have proceeded pursuant section 54.
21I note here that Section 9.1 applies only to Part I matters. Section 54 is contained in Part IV and applies in proceedings commenced under Parts I, II or III, but pursuant to section 9.1(2), it does not apply if section 9.1(1) does apply.
22Section 54(1) reads as follows:
Conviction in the absence of the defendant-Where a defendant does not appear at the time and place appointed for a hearing and it is proved by the prosecutor, having been given a reasonable opportunity to do so, that a summons was served, a notice of trial was given under Part I or Part II, an undertaking to appear was given or a recognizance to appear was entered into, as the case may be, or where the defendant does not appear upon the resumption of a hearing that has been adjourned, the court may,
(a) Proceed to hear and determine the proceeding in the absence of the defendant; or
(b) Adjourn the hearing and, if it thinks fit, issue a summons to appear or issue a warrant in the prescribed form for the arrest of the defendant.
23One problem that I have with the position taken by the appellant is that the wording in both sections is virtually the same. Section 9.1 applies if the defendant "fails to appear at the time and place appointed for trial". Section 54 applies if the defendant "does not appear at the time and place appointed for a hearing".
24Counsel argued that I should adopt the reasoning in the Provincial Offences Act Appeal decision of R. v. Sahadeo, where Schreck J. concluded that section 9.1 should not be interpreted to include situations where the defendant appears but subsequently leaves or declines to participate.
25The problem with this argument for the Appellant is that Justice Schreck also concluded that section 54 should also not be interpreted in that fashion.
26He decided the case before him on the basis that the agent for the defendant should have been compelled to proceed with a trial. Unfortunately, he did not say how the presiding Justice of the Peace might do this if the agent simply walked away and did not return to participate in the proceedings.
27Justice Schreck included in his reasons an analysis of section 11(d) of the Charter and presumed waiver. In that regard he said:
12 Section 11(d) of the Canadian Charter of Rights and Freedoms guarantees anybody who is charged with an offence "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". This guarantee applies to regulatory offences: R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541, at para. 22.
13 Like all Charter rights, the rights guaranteed by s. 11(d) can be waived. In the regulatory context, it is open to the legislature to statutorily permit a court to infer waiver from a defendant's failure to appear at the time and place appointed for trial. This was made clear by the Supreme Court of Canada in its consideration of a similar New Brunswick provision in R. v. Richard, 1996 CanLII 185 (SCC), [1996] 3 S.C.R. 525 at para. 8:
Contrary to the opinion expressed by the Court of Queen's Bench and the Court of Appeal, s. 16 of the Act does not infringe s. 11(d) of the Charter. In my view, an accused who fails both to pay the fine indicated in the ticket and to appear in court at the time and place stated therein waives the benefit of s. 11(d) of the Charter, and therefore the right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal", in the same way as if he or she had, for example, decided to plead guilty. Although at common law, the silence of the accused is equivalent to a plea of not guilty rather than to one of guilty and therefore in a criminal context ss. 7 and 11 (d) might require any waiver to be made only upon appearance (a question on which I express no opinion), it is entirely different in the context of regulatory offences for which imprisonment is not a possibility and which accordingly do not bring the liberty component of s. 7 into play. In such a context, I am of the view that s. 11(d) of the Charter in no way prevents the legislature from inferring from the accused's failure to act a waiver on his or her part of the right to a fair and public hearing by an independent and impartial tribunal, provided that he or she is fully aware of the consequences of failing to act and that the procedural scheme in place provides sufficient safeguards to ensure that the conduct of the accused was not due to events over which he or she had no control. That is the case here.
That the reasoning in Richard applies to s. 9.1 of the POA was made clear by the Ontario Court of Appeal in R. v. Jamieson (2013), 2013 ONCA 760 (CanLII), 118 O.R. (3d) 327 (C.A.). Thus, s. 9.1(2) of the POA is not inconsistent with s. 11(d) of the Charter because when a defendant fails to appear for trial, it can be inferred that he or she has waived the right to a trial.
28Justice Schreck concluded that the words of section 9.1 must be strictly construed. The section permits an inference of waiver, and it is well established that any waiver of a Charter right must be clear and unequivocal. While it is open to the legislature to deem that a waiver exists when certain conditions are met, those conditions must constitute clear evidence of an unequivocal waiver. If the section is interpreted too broadly, there is a risk that it will apply in situations where there has been no unequivocal waiver.
29He also noted that section 9.1 provides that those who fail to appear at the time and place appointed for trial are "deemed to not wish to dispute the charge". Ordinarily, where a defendant is aware of the time and place the trial is to take place but does chooses not to attend, it is reasonable to infer that he has no wish to dispute the charge. However, it was clear that Mr. Sahadeo did wish to dispute the charge. His adjournment application was for the purpose of obtaining disclosure that his agent stated was "crucial to his defence". It was clear that he had not clearly and unequivocally waived his right to a trial.
30That is very different from the present case.
31Mr. Benson took the steps to initiate the process and then attended twice, both times to request adjournments.
32The first request was ostensibly so that he could obtain disclosure. I do not know why he had not obtained disclosure previously but he had not. More particularly, I do not know if he had requested it in a timely fashion, or at all. If he had done this, did he follow up on his request? These are questions that I would like answered before I would conclude that Mr. Benson truly wished to dispute the charge as opposed to simply delay dealing with it.
33Another question that comes to mind is why did he need an adjournment at all to review the disclosure and prepare for a trial of his Fail to Signal Lane Change charge? Disclosure likely consisted of the police officer's notes stating that he saw Mr Benson change lanes in his motor vehicle without signaling his intention to do so.
34In any event, Mr. Benson requested and was granted an adjournment.
35Initially, he said that the second request was for personal reasons. I do not know if the reasons that he gave were true.
36I do know that after that failed to get him an adjournment, and only then, he indicated that he wished to bring a Charter application alleging undue delay, but that he had not taken any of the steps to bring such an application. The inference I take from this was that he wanted an adjournment then so that he could take the necessary steps.
37I have no information explaining why he had not taken those steps.
38He never explained why he had asked for an adjournment for personal reasons if he was planning to subsequently claim that he had been denied his right to be tried within a reasonable time. It strikes me that if both claims were true, he would have mentioned both together when he first requested the adjournment.
39I note further that following his conviction, Mr. Benson did not subsequently apply for a reopening pursuant to section 11 of the Provincial Offences Act. I am not suggesting that this would have been successful. I suspect strongly that it would not, but he did not even try to present anything to a court later to show why he did not stay around for his trial and why he should not have been convicted. It certainly would have provided some support for a conclusion that he really did wish to dispute the charge.
40He did not appeal the decision. He has not participated in this appeal at all.
41The only plausible inference I can draw from all of this is that Mr. Benson simply wished to defer the outcome of this case as long as possible rather than to have his day in court.
42He was very different from Mr. Sahadeo in that regard.
43I have found only one other case in which these issues have been addressed.
44The same issues were discussed, but from the opposite perspective in R. v. Wei.
45In that case, the defendant was convicted following a trial that was held in his absence pursuant to section 54.
46This was appealed on the basis that the court should have entered a conviction pursuant to section 9.1(1), which would have preserved the appellant's right to pursue the simplified route of a reopening.
47Ghosh J. held that Justice Schreck's analysis in R. v. Sahadeo, supra, was dispositive of this ground and that these circumstances cannot establish that the appellant "failed to appear... for trial" as required by section 9.1(1).
48Justice Ghosh went on to discuss how section 54 was also problematic.
49He wrote the following:
29 Both s. 9.1 and s. 54, however, only permit a conviction in absentia where the defendant does not "appear" for trial. The POA does not seem to contemplate a scenario where the defendant "appears" for trial by way of an agent who later withdraws after being denied an adjournment. This unfortunate practice is more prevalent in POA courts than it should be and merits comment.
30 The defence cannot by its conduct thwart the court's direction that a POA trial will proceed as scheduled. The appellant was placed on notice by no less than three justices of the peace that the trial would proceed in November. When the adjournment application was denied in October, the defence was expected to enter its plea on the trial date.
31 In sending an agent without instructions to enter a guilty plea or to defend the trial, the defence by its conduct endeavoured to subvert the explicit direction of the court. Once the adjournment was denied, the defence ought to have been fixed with the expectation of arraignment. If there was any intention to defend the charge, the defence should have attended the second trial date prepared to do so.
50He went on to conclude that the presiding Justice of the Peace employed the correct procedure in conducting an ex parte trial pursuant to section 54. In reaching this decision, he relied upon section 146 of the Courts of Justice Act which reads as follows:
Jurisdiction conferred on a court, a judge or a justice of the peace shall, in the absence of express provision for procedures for its exercise in any Act, regulation or rule, be exercised in any manner consistent with the due administration of justice.
51Justice Ghosh concluded that section 54 afforded the absent defendant an appropriate measure of procedural fairness. The prosecution was required to prove the defendant was notified or compelled to attend trial. Evidence was led to satisfy the standard of proof. The procedure employed was fair and consistent with the due administration of justice.
52I am satisfied that the same could be said of the presiding Justice of the Peace's actions in this case.
53The presiding Justice of the Peace called the case for trial. It was open to him to treat that precise moment as the time and place appointed for trial. At that time, Mr. Benson failed to appear. I am satisfied that despite his earlier appearances, it was open to the presiding Justice of the Peace to conclude that section 9.1(1) was applicable. If that was so, it was not open to him to proceed with an ex parte trial.
54I need not determine whether it might somehow have been open to the presiding Justice of the Peace to have proceeded pursuant to section 54 and either:
(a) Proceeded to hear and determine the proceeding in the absence of the defendant; or
(b) Adjourned the hearing and issued a summons to appear or a warrant for the arrest of the defendant.
55He did not choose such an option. He exercised his discretion and chose to proceed under section 9.1.
56In light of section 9(2) that is clearly the preferred course for Part I offences.
57I am satisfied that he did not err in doing so.
58I am further satisfied that if I were to rule otherwise, it would defeat both the purpose and the substance of section 9.1(1). It is clearly intended to reduce the number of trials and concentrate court resources on those cases where the defendant truly desires to have a trial. It should not be possible for someone to defeat this simply by making one appearance and then leaving the court or declining to participate further.
Conclusion
59For the above reasons, the appeal is dismissed.
One Final Observation
60In light of the fact that three different judges have addressed this issue and reached three different conclusions, it would not displease me at all if this decision were appealed so that the Ontario Court of Appeal might clarify the law here.
Released: March 28, 2018
Signed: Justice D.A. Harris