Court of Appeal for Ontario

Date: 2018-06-01 Docket: C64832

Judges: Feldman, MacPherson and Rouleau JJ.A.

Between

Her Majesty the Queen Respondent

and

Harjit Singh Appellant

Counsel

Arjun Vishwanth, for the appellant Katie Doherty, for the respondent

Heard: May 28, 2018

Appeal

On appeal from the order of Justice Leonard Ricchetti of the Superior Court of Justice, dated December 19, 2017, quashing the decision of His Worship Alston A. Gunness of the Ontario Court of Justice, dated June 1, 2017.

Reasons for Decision

Background

[1] On November 18, 2016, the appellant's truck hit another vehicle, killing the passenger in that vehicle. He was charged with driving at 83 km/hr in a 50 km/hr zone, contrary to s. 128 of the Highway Traffic Act, R.S.O. 1990, c. H.8. On the first appearance on June 1, 2017, the justice of the peace noticed that the information stated the date of the offence as November 18, 2017 (rather than 2016) and quashed the information of his own initiative. The following is a recitation of the exchange between the Crown, the justice of the peace, and the agent for the appellant that occurred:

Court: The information is no good. The information is no good. This is for the month of – we're in the month of June 2017, the offence is for the 18th of November 2017. No, we haven't – we didn't reach – Madam Clerk, it's not the 18th of November 2017. We didn't reach that date yet, the offence date.

Crown: It should be 2016, Your Worship.

Court: No, this matter went before a justice of the peace. Just – I don't have jurisdiction on that. No jurisdiction.

Crown: The 18th of November 2016.

Court: No, but the information was sworn. Someone went and swear an information before the justice of the peace.

Crown: Court's indulgence, Your Worship

Court: That's what the court's record …

Agent: Your Worship, in this instance I will not be attorning to this matter.

Court: No jurisdiction.

Agent: My apologies, I did not realize the error.

Crown: Well, Your Worship, this – this matter is up for the first time to be spoken to today. It does seem that this is – this is an MCB matter.

Court: I have no jurisdiction to deal with that ma'am, okay?

Crown: Your Worship, Ms. Whalen is in fact in the building. Perhaps I could ask her to come down and speak to this directly.

Court: I've already made a decision on that.

Crown: You're already made a decision on that?

Court: Yes.

Crown: There's no jurisdiction.

Court: Yeah, yeah, the matter went before a justice of the peace and the matter- gave life to an information so it's improper today.

Crown: There is a problem before the Court.

Court: Yes.

Crown: Thank you, [agent].

Agent: Thank you, Your Worship. Thank you, my friend.

Crown: We cannot proceed on this.

Court: It's unfortunate.

[2] On a certiorari application brought by the Crown before a judge of the Superior Court of Justice, the application judge found that the justice of the peace had no jurisdiction to quash the information and that a miscarriage of justice had thereby occurred. The information was referred back to the provincial offences court to be dealt with in accordance with the Provincial Offences Act, R.S.O. 1990, c. P.33.

Issue on the Appeal

[3] Did the justice of the peace commit jurisdictional error by quashing the information without reference to ss. 34 and 36 of the Provincial Offences Act and without granting the Crown an opportunity to make submissions?

Discussion

[4] The appellant submits that the circumstances of this case are analogous to what occurred in London (City) v. Young, 2008 ONCA 429, 91 O.R. (3d) 215, and that the justice of the peace had the same jurisdiction to quash as in that case. He also submits that the court in London v. Young suggested that ss. 34 and 36 did not apply to a first court appearance but only later in a trial proceeding. Finally, he argues that the Crown was not prevented from putting its position on the record during the first appearance before the justice of the peace.

[5] We reject each of these submissions.

[6] London v. Young concerned the operation of s. 9 under Part I of the Provincial Offences Act, where a charge is laid using a certificate, not an information, and the charged person chooses not to respond. In those circumstances, there is no appearance by the defendant, and s. 9(1) obliges the justice to either convict if the certificate is regular, or to quash where the certificate "is not complete and regular on its face".

[7] In this case, an information was laid, summoning the accused to appear on the set date. Section 9 has no application to an information. Rather, Part III provides for the commencement of proceedings by laying an information. Part IV then deals with proceedings that go to trial and sentencing. Sections 34 and 36 are contained in Part IV. Section 34 provides the power to amend an information. Subsection 34(4) sets out the factors the court is to consider when deciding whether to amend. It provides:

The court may, at any stage of the proceeding, 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.

[8] Section 36 is the only section that gives the court the power to quash an information based on a defect on the face of the information. The procedure to quash an information requires a motion, which may be brought without leave before the defendant has pleaded, and thereafter only with leave of the court. Subsection 36(2) precludes the court from quashing an information "unless an amendment or particulars under section 33, 34 or 35 would fail to satisfy the ends of justice."

[9] The appellant submits that these sections do not apply on a first appearance and that there is a gap in the legislation that allowed the justice of the peace to decline jurisdiction over this information and to quash it.

[10] We reject this submission. Subsection 34(1) provides that the court may amend the information "at any stage of the proceedings". That clearly includes the first appearance. Under s. 36, a motion to quash can be brought without leave of the court only before the defendant has pleaded, which would of course include the first appearance.

[11] A motion to quash could have been brought before the justice of the peace on the first appearance date, and he could have proceeded to address the issue of amendment as required. The statement that the appellant relies on at para. 18 of London v. Young regarding s. 34 that "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" is an explanation of the difference between the s. 9 default proceeding where there is no appearance by the defendant, and any other proceeding under the Act, where the defendant is ordered to appear.

[12] We agree with the application judge that the justice of the peace also committed jurisdictional error by failing to accord the Crown the opportunity to make submissions before quashing the information of his own motion.

[13] Subsection 141(4) of the Provincial Offences Act requires a court to find that a substantial wrong or miscarriage of justice has occurred before granting relief by way of certiorari. We agree with the application judge that quashing the information without considering whether to amend it in accordance with the requirements in ss. 34 and 36 of the Act resulted in a miscarriage of justice, because it prevented the charge being considered on its merits.

Result

[14] The appeal is dismissed.

"K. Feldman J.A."

"J.C. MacPherson J.A."

"Paul Rouleau J.A."