Court File and Parties
COURT FILE NO.: CV-16-0162 DATE: 2016-07-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE CORPORATION OF THE CITY OF THUNDER BAY Mr. Peter Hollinger, for the Applicant Applicant
- and -
IAN MICHAEL MATZOV, LORNE W. MARTIN, JULIE JOANNE HURD and ANDRE DELAROSBIL Ms. Julie Hurd, personally Respondents
HEARD: June 30, 2016, at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons on Application for Certiorari
Introduction
[1] The applicant, Corporation of the City of Thunder Bay, applies pursuant to s. 140 of the Provincial Offences Act, R.S.O. 1990, c. P.33 for an order for certiorari in respect of the decision of His Worship M. Donio on March 14, 2016, to quash four certificates of offence issued to the respondents for offences alleged to have been committed contrary to the Highway Traffic Act, R.S.O. 1990, ch. H.8. The applicant, who prosecuted the offences, submits that by quashing the certificates, the Justice of the Peace exceeded his jurisdiction.
[2] The applicant also cites Rule 68 of the Rules of Civil Procedure in support of its application. As the Provincial Offences Act constitutes a complete code for relief under the Act, Rule 68 has no application to this case.
[3] The applications were mailed to Mr. Matzov and Mr. Delarosbil at their last known addresses on the certificates of offence. Section 87(2) of the Provincial Offences Act, deems this sufficient service in the absence of a rebuttable presumption. Matzov and Delarosbil do not appear and there is no rebuttable presumption. Therefore service of the application is deemed sufficient.
[4] Mr. Martin was served with the application. He wrote to advise the court that he does not wish to appear at the application and wishes to pay the set fine on the certificate of offence issued to him.
[5] Ms. J. Hurd appears personally to resist the application. She submits that the learned Justice of the Peace did not err in quashing the certificates.
The Facts
[6] The certificate of offence issued to Mr. Matzov alleges that on January 1, 2016, at Highway 11-17 in the District of Thunder Bay, he committed the offence of disobeying a sign, contrary to s. 182(2) of the Highway Traffic Act. The issuing officer certified that he personally served the certificate on the person charged on the offence date. By inference, I conclude that the certificate was served at the time of the roadside stop.
[7] As Mr. Martin wishes to pay the fine, I will not deal with the facts that apply to his case.
[8] The certificate of offence issued to Ms. Hurd alleges that on January 27, 2016, at Highway 11-17 in the District of Thunder Bay, she committed the offence of speeding at 106 km/hr. in a posted 90 km/hr. zone, contrary to s. 128 of the Highway Traffic Act. The issuing officer certified that he personally served the certificate on Ms. Hurd on the offence date. Ms. Hurd conceded that the officer handed her the offence certificate when she was stopped on the highway. Therefore the place of the alleged offence was within her knowledge. She did not indicate how she might have been prejudiced at trial by the lack of more specific information about where the offence allegedly occurred.
[9] Finally, the certificate of offence issued to Mr. Delarosbil alleges that on January 27, 2016, at Highway 17 in the District of Thunder Bay, he committed the offence of driving a motor vehicle with no licence, contrary to s. 32(7) of the Highway Traffic Act. Like the others. The officer certified that he personally served Mr. Delarosbil with the certificate of offence. Also by inference, I conclude that the certificate of offence was served at the time of the roadside stop.
[10] None of the individuals charged exercised their options under the Provincial Offences Act to request a trial (s. 5); plead guilty with submissions (s. 7); or pay the set fine (s. 8). Taking no steps within fifteen days after service of the offence notice triggered s. 9(1) of the Act, which deems that the person does not dispute the charge. In these four cases, this is what happened. The respondents did not respond; therefore they are deemed not to dispute the charge.
[11] Pursuant to s. 9(2) of the Act, where a person charged is deemed not to dispute the charge, a Justice of the Peace is required to examine the certificate of offence. The Justice of the Peace must:
(a) where the certificate of offence is complete and regular on its face, enter a conviction in the defendant’s absence, without a hearing, and impose the set fine; or
(b) where the certificate of offence is not complete and regular on its face, quash the proceeding.
[12] The four certificates cited above were quashed on the grounds they were either “too vague” or “not specific.” The issue that arises in this application is whether the certificates were complete and regular on their face. Because of the ex parte nature of the review of the certificates, the presiding Justice of the Peace does not have the assistance of counsel with respect to case law on this issue.
The Procedure and Standard of Review
[13] The jurisdiction of a Justice of the Peace is contained in the statute. It must therefore be exercised within the parameters of the Act. If the learned Justice of the Peace exceeded his jurisdiction or committed an error of law in quashing the certificates for failure to comply with the formal requirements of a charging document, certiorari is the appropriate remedy. The Court of Appeal considered the nature of the remedy when a proceeding is quashed under s. 9(1) of the Act at para. 48 of London (City) v. Young, 2008 ONCA 429, 91 O.R. (3d) 215 and observed:
In my view, it accords with the scheme of the [Provincial Offences] 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….
[14] Pursuant to s. 140 of the Act, applications for prerogative remedies lie to the Superior Court of Justice. The standard of review, in these circumstances, is correctness. See: R. v. Kramer, [2007] O.J. No. 308, paras. 24 – 25.
Discussion
[15] Ms. Hurd argued that where a township or municipality is not indicated on the certificate of offence, there can be no administrative mechanism for knowing which municipality is entitled to receive the fine collected. In that respect, she argued, the township or municipality where the offence was alleged to have taken place should be shown on the certificate.
[16] The applicant pointed to a by-law encompassing seventeen surrounding municipalities, towns and townships as to the distribution of revenues from fines. Even if there were no by-law or agreement, I am of the view that Ms. Hurd does not have standing to make this argument, inasmuch as she does not represent any of the municipalities, towns or townships involved.
[17] Nor can there be any prejudice to the individuals charged at trial, as the certificate of offence was issued to the accused person at the roadside. The place of the alleged offence is therefore within the knowledge of the person charged.
[18] The courts have previously considered the issue of specificity of location of an alleged offence on a certificate of offence.
[19] In York (Regional Municipality) v. Abadehee, [2004] O.J. No. 918, (Ont. Sup. Ct.) paras. 6 and 22, the Justice of the Peace quashed a certificate of parking infraction because it did not set out the municipality in which the offence occurred. The Superior Court intervened. It held that the certificate was complete on its face as the court could infer from the face of the certificate as well as the other documents in the court record that the offence had taken place in the Town of Richmond Hill.
[20] In York (Regional Municipality) v. Scarcelli, [2010] O.J. No. 5026 (Ont. Sup. Ct.), a certificate of offence for failing to stop at a red light was quashed. The certificate indicated the street location where the alleged offence occurred but did not specify the town.
[21] At para. 7, the reviewing judge cited R. v. Salim et al, [2000] O.J. No. 507 (Ont. Sup. Ct.) which determined that “the overall philosophy of the POA is to ensure that technical objections do not impede an impartial verdict on the merits” (para. 7). The court also concluded that, had the prosecutor sought an amendment at trial to state the place of the alleged offence, the court would have been compelled to grant it, unless the amendment went to the jurisdiction of the court. The court concluded that the name of the municipality did not go to the jurisdiction of the Justice of the Peace: para. 9. Certiorari was therefore granted and the certificate of offence was reinstated.
[22] An order for certiorari was also granted in York (Regional Municipality) v. Datoo, [2014] O.J. No. 3469 (Ont. Sup. Ct.) where the Justice of the Peace quashed a certificate of offence for speeding which did not name the municipality where the alleged offence took place. The court held that the certificate should not have been quashed in the absence of an application to quash, and allowed the prosecution to amend the certificate.
[23] Finally, in York (Regional Municipality) v. Di Vito, [2014] O.J. No. 4598 (Ont. Sup. Ct.) the accused was charged with driving while operating a handheld device. The certificate of offence alleged the offence occurred in the “Region of York”. The accused did not respond to the charge. The reviewing court held that the identification of a municipality was not necessary when the accused did not respond. The court also noted that the certificate was complete and regular on its face even if the municipality was not named, as the “Region of York” was an acceptable term in referencing the Regional Municipality of York. See paras. 15 and 17.
[24] In my view, the learned Justice of the Peace was incorrect in quashing the certificates of offence for the following reasons:
the accused did not respond to the certificates of offence within fifteen days and were therefore deemed not to dispute the charges;
the location of the alleged offences, indicating the highway number and the district, sufficiently identified the location of the alleged offences;
even if the accused wished to dispute the charges, they could be left in no doubt as to the place of the alleged offences as the certificates were served at the roadside where the alleged offences occurred;
it was, in any event, open to the prosecution to seek an amendment of the certificates at trial; and
there was no application to quash the charges.
[25] Accordingly, the application for review in the nature of certiorari is granted and the orders of the Justice of the Peace dated March 14, 2016, quashing the certificates of offence issued to the respondents are set aside.
[26] Certificates of offence number 6638650B relating to Mr. Matzov; number 5775026B relating to Ms. Hurd; and number 6218531B relating to Mr. Delarosbil are to be placed in front of the presiding Justice of the Peace in a Fail to Respond docket in Intake Court to be reviewed, along with a copy of these reasons.
[27] Further, certificate of offence number 5775027B relating to Lorne W. Martin shall be placed in front of the presiding Justice of the Peace at Intake Court, together with a copy of Exhibit 1 in this application, being Mr. Martin’s plea of guilt with a fine of $115 for disposition.
“original signed by” The Hon. Madam Justice H.M. Pierce
Released: July 11, 2016