Corporation of the City of London v. Young et al.

[Indexed as: London (City) v. Young]

91 O.R. (3d) 215

Court of Appeal for Ontario,

Doherty, Feldman and Armstrong JJ.A.

May 30, 2008

Criminal law -- Provincial offences -- Default proceedings -- Certificate of offence -- Set fine being one of components of certificate of offence that must be accurately completed in order for certificate to [page216] be "complete and regular on its face" -- Justice having no power to amend defective certificate in default proceeding under s. 9(1) of Provincial Offences Act -- Justice of the peace not erring in quashing proceeding under s. 9(1)(b) of Act where incorrect fine was set out on certificate of offence -- Challenge to decision of justice to quash proceeding under s. 9(1) of Act should be by prerogative remedy under s. 140 of Act and not by appeal under s. 135(1) of Act -- Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 9(1), 135(1), 140.

Each defendant was charged with a provincial offence under Part I of the Provincial Offences Act. None of them made any response within 15 days of being served with the offence notice. As a result, the certificates of offence were placed before a justice of the peace to be considered under s. 9(1) of the Act, which provides that "where the certificate of offence is complete and regular on its face, the justice shall enter a conviction in the defendant's absence ... and impose the set fine for the offence", and that "where the certificate of offence is not complete and regular on its face, the justice shall quash the proceeding". The justice quashed the proceeding in each case on the basis that the certificate was not "proper on its face" as the amount indicated for the set fine was incorrect. The City brought an application for an order in the nature of mandamus requiring the justice to enter convictions on the certificates. The application judge declined to make the mandamus order on the basis that the City should have appealed the decisions to quash under s. 135(1) of the Act. The City appealed that decision.

Held, the appeal should be dismissed.

Per Feldman J.A. (Armstrong J.A. concurring): The set fine is one of the components of the certificate of offence that must be accurately completed in order for the certificate to be "complete and regular on its face". The justice has no power to amend a defective certificate in a s. 9(1) default proceeding, and is obliged to quash the proceeding.

A decision quashing the proceeding under s. 9(1) should be challenged by way of an application for a prerogative remedy under s. 140 of the Act, and not by way of appeal under s. 135(1) of the Act. However, a mandamus order should not be made in this case as the justice was correct in finding that the errors in the set fines required her to quash the cetificates of offence.

Per Doherty J.A. (dissenting): An error in the set fine amount on a certificate of offence does not mean that persons who have chosen to do nothing in response to the charge and are thereby deemed to not dispute the charge should escape conviction and the appropriate penalty because of an error that may well have been of no consequence to them. The right of appeal to the Ontario Court of Justice provides a straightforward, inexpensive means of protecting those who may suffer any potential injustice caused by a mistake on the offence notice as to the amount of the set fine. Interpreting the Act in a manner that allows for convictions where the error is inconsequential and permits successful appeals in those circumstances where the error is of some consequence promotes the due administration of justice by producing results that have more to do with the merits of the allegation and the fairness of the process, and less to do with the provincial offences officer's ability to correctly fill in boxes on a form.

APPEAL from a decision of an application judge dismissing an application for mandamus.

Cases referred to York (Regional Municipality) v. Wilson, 2005 47712 (ON SC), [2005] O.J. No. 5392, [2005] O.T.C. 1090, 27 M.V.R. (5th) 153, 68 W.C.B. (2d) 362 (S.C.J.), not folld [page217] R. v. Moore, 1988 43 (SCC), [1988] 1 S.C.R. 1097, [1988] S.C.J. No. 58, 85 N.R. 195, [1988] 5 W.W.R. 1, J.E. 88-849, 29 B.C.L.R. (2d) 1, 41 C.C.C. (3d) 289, 65 C.R. (3d) 1, 4 W.C.B. (2d) 228, consd Other cases referred to Cheyenne Realty Ltd. v. Thompson, 1974 4 (SCC), [1975] 1 S.C.R. 87, [1974] S.C.J. No. 42, 42 D.L.R. (3d) 733, 1 N.R. 273, 15 C.C.C. (2d) 49; Kipp v. Ontario (Attorney-General), 1964 20 (SCC), [1965] S.C.R. 57, [1964] S.C.J. No. 52, [1965] 2 C.C.C. 133, 45 C.R. 1; R. v. B & B Stone Ltd. (No. 2), 1977 2093 (ON CA), [1977] O.J. No. 409, 34 C.C.C. (2d) 464 (C.A.); R. v. Beason (1983), 1983 1873 (ON CA), 43 O.R. (2d) 65, [1983] O.J. No. 3151, 1 D.L.R. (4th) 218, 7 C.C.C. (3d) 20, 36 C.R. (3d) 73, 7 C.R.R. 65, 10 W.C.B. 285 (C.A.); R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128, [1985] S.C.J. No. 53, 20 D.L.R. (4th) 651, 61 N.R. 159, [1985] 6 W.W.R. 127, J.E. 85-916, 21 C.C.C. (3d) 7, 47 C.R. (3d) 193, 15 W.C.B. 2; R. v. Khoshael, [2001] O.J. No. 2110, 50 W.C.B. (2d) 165 (C.J.); R. v. Singh, [2004] O.J. No. 2066, 9 M.P.L.R. (4th) 138, 9 M.V.R. (5th) 195, 62 W.C.B. (2d) 26 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(b) Criminal Code, R.S.C. 1985, c. C-46, ss. 605(1)(a), (c), 762 Highway Traffic Act, R.S.O. 1990, c. H.8 Provincial Offences Act, R.S.O. 1990, c. P.33, Parts I, III, IV, V, ss. 1 [as am.], 3, 4, 5 [as am.], 6 [as am.], 7 [as am.], 8 [as am.], 9, 9.1 [as am.], 13 [as am.], 34(1), 36(1), (2), 60, 60.1 [as am.], 66(5), 90(1), (2), 135(1) [as am.], 140 Rules and regulations referred to Proceedings Commenced by Certificate of Offence, R.R.O. 1990, Reg. 950 Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200, rule 15(1) [as am.] Victim Fine Surcharges, O. Reg. 161/00 Authorities referred to Segal, Murray D., and Rick Libman, The 2007 Annotated Ontario Provincial Offences Act (Toronto: Carswell, 2007)

David G. Cribbs, for appellant. Adam Little, as amicus curiae on behalf of respondents. Joseph Perfetto, for intervenor, the Attorney General of Canada

[1] FELDMAN J.A. (ARMSTRONG J.A. concurring): -- This case concerns provincial offence tickets and what happens when a person who is served with one does nothing. The case raises both a substantive and a procedural issue. The substantive issue is whether the "set fine" must be accurately indicated on a provincial certificate of offence in order to allow a justice of the peace to enter a conviction rather than quash the proceeding under s. 9(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, [page218] when the person charged has not responded to the offence notice. The procedural issue is the correct route for the prosecuting authority to challenge a decision by a justice of the peace to quash a proceeding under s. 9(1): whether by appeal under s. 135(1) of the Act, or by application for a prerogative remedy under s. 140 of the Act.

Facts

[2] Between April 10, 2006 and April 15, 2006, each of the 16 respondents to this appeal was charged with a provincial offence under Part I of the Act. These offences included driving offences such as speeding, failing to yield, and driving without a licence, as well as by-law infractions such as making noise in the street and causing a disturbance. In each case, a carbon copy ticket form was completed by a provincial offences officer. The top copy of the form is the certificate of offence. The second copy is the offence notice. Two other copies are marked for administrative and record- keeping purposes. The contents of each copy of the form are the same. They contain boxes for the officer to fill in the name of the officer, the name and address of the person charged, vehicle and licence information, the address where the offence occurred, the nature of the offence, the statutory provision that governs the offence and the amount of the set fine. They also contain information for the person charged about options for responding to the offence notice, including default judgment if no response is made within 15 days.

[3] None of the respondents made any response within 15 days of being served with the offence notice. As a result, the certificates of offence were placed before a justice of the peace in London, Ontario to be considered in accordance with s. 9(1) of the Act, which provides:

9(1) Where at least fifteen days have elapsed after the defendant was served with the offence notice and the offence notice has not been delivered in accordance with section 6 or 8 and a plea of guilty has not been accepted under section 7, the defendant shall be deemed to not wish to dispute the charge and a justice shall examine the certificate of offence and, (a) where the certificate of offence is complete and regular on its face, the justice shall enter a conviction in the defendant's absence and without a hearing and impose the set fine for the offence; or (b) where the certificate of offence is not complete and regular on its face, the justice shall quash the proceeding.

[4] On May 30 and 31, 2006, Justice of the Peace Levitt quashed all 16 certificates of offence under s. 9(1)(b) of the Act. The reason given by the justice for her decision to quash in each [page219] case was that the certificate was "not proper on its face" because the amount indicated for the set fine was incorrect.

[5] The Corporation of the City of London brought an application in the Superior Court of Justice under s. 140(1) of the Act for an order in the nature of mandamus directing the justice of the peace to enter convictions on the certificates on the basis that the set fine indicated on the certificate was mere "surplusage" which did not affect either the completeness or the regularity of the certificate.

[6] The application judge declined to make the mandamus order on the basis that the City should have appealed the decisions to quash under s. 135(1) of the Act. Sections 135(1) and 140 of the Act provide:

135(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. . . . . .

140(1) On application, the Superior Court of Justice may by order grant any relief in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari.

(2) Notice of an application under this section shall be served on, (a) the person whose act or omission gives rise to the application; (b) any person who is a party to a proceeding that gives rise to the application; and (c) the Attorney General.

[7] The City appeals the application judge's decision to this court. The Attorney General is a party to the appeal as intervenor. None of the respondents appeared, but their position is represented by counsel appointed as amicus curiae.

Issues

[8] The parties raise the following issues on appeal:

(1) Is the set fine one of the components of the certificate of offence that must be accurately completed in order for the certificate to be "complete and regular on its face"?

(2) In order to challenge the decision of a justice of the peace to quash a proceeding under s. 9(1) of the Act, may the prosecuting authority appeal that decision under s. 135(1) or must it seek an order in the nature of mandamus under s. 140(1) of the Act? [page220]

Analysis

Issue 1: Is the set fine mere surplusage on the certificate of offence?

[9] The certificate of offence is part of the streamlined procedure contained in Part I of the Act. In their text on the Act, Murray D. Segal and Rick Libman describe the mode of procedure under Part I as less serious than laying an information under Part III: The 2007 Annotated Ontario Provincial Offences Act, at p. 30. Where a certificate of offence is used, service can be effected in one of two ways: either with an offence notice or a summons. When an offence notice is used, the defendant has several out-of-court options for resolving the charges, including default pursuant to s. 9(1). However, when a summons is used, the defendant is required to appear and these out-of-court options are not available.

[10] Section 3 of the Act describes the requirements for a certificate of offence and an offence notice or summons. It provides:

3(1) In addition to the procedure set out in Part III for commencing a proceeding by laying an information, a proceeding in respect of an offence may be commenced by filing a certificate of offence alleging the offence in the office of the court.

(2) A provincial offences officer who believes that one or more persons have committed an offence may issue, by completing and signing, a certificate of offence certifying that an offence has been committed and, (a) an offence notice indicating the set fine for the offence; or (b) a summons,

in the form prescribed under s. 13.

[11] The "set fine" referred to in s. 3(2)(a) is defined in s. 1 of the Act as "the amount of fine set by the Chief Justice of the Ontario Court of Justice for the purpose of proceedings commenced under Part I or II".

[12] Section 13 of the Act authorizes the Lieutenant Governor in Council to make regulations prescribing the forms for the certificate of offence, offence notice and summons. Proceedings Commenced by Certificate of Offence, R.R.O. 1990, Reg. 950, as amended, prescribes the forms for the three documents. The prescribed forms for the certificate of offence and the offence notice include one box for the set fine, including costs and the total payable, configured as follows: [page221]

SET FINE OF/L'AMENDE FIXÉE DE $ $ TOTAL PAYABLE

(INCLUDING COSTS) IS INCLUDED IN $ $ THE TOTAL PAYABLE ALONG WITH THE APPLICABLE VICTIM FINE SURCHARGE MONTANT TOTAL EXIGIBLE (INCLUTANT LES FRAIS) ET LA SURAMENDE COMPENSATOIRE APPLICABLE SONT COMPRISES DANS LE MONTANT TOTAL A PAYER

[13] However, the forms currently in use for the certificate of offence and the offence notice have been changed from the prescribed forms with respect to the set fine box. [See Note 1 below] It was these forms that were used for the certificates at issue in this appeal. A copy of a blank form in the current format is attached as Appendix "A" to these reasons. It includes two boxes for the set fine and total payable configured as follows:

[QL:GRAPHIC NAME="91OR3d215-1.jpg"/]

[14] Sections 60 and 60.1 of the Act impose costs and a victim fine surcharge that are deemed to be part of the fine payable upon conviction. Section 60 provides that upon conviction, the defendant is liable to pay an amount of costs that is fixed by Proceedings Commenced by Certificate of Offence, R.R.O. 1990, Reg. 945, as amended. The sum of $5 is added for service of the offence notice. Section 60.1 was added to the Act in 1995 and imposes a victim fine surcharge for convictions under Parts I and III where a fine is imposed. The surcharge is calculated based on the amount of the fine (exclusive of costs) in accordance with Victim Fine Surcharges, O. Reg. 161/00.

[15] Once an offence notice has been served, the defendant has five options:

(1) The defendant may give notice of intent to appear, plead and have a trial (s. 5); [page222]

(2) the defendant may dispute the charge in writing. If the dispute does not raise an issue that may constitute a defence, the justice shall convict the defendant and impose the set fine. If the dispute does raise an issue that may constitute a defence, the justice may direct a hearing held in the absence of the defendant, and may then acquit the defendant or convict and impose either the set fine or such lesser fine as may be permitted by law (s. 6);

(3) the defendant may appear to plead guilty but dispute the penalty, in which case the justice may impose the set fine or such lesser fine as may be permitted by law (s. 7);

(4) the defendant may sign the offence notice signifying a plea of guilty and deliver it with the amount of the set fine to the court office (s. 8); [and]

(5) the defendant may elect not to respond at all, in which case s. 9(1) of the Act applies. Or, if the defendant has given notice of an intention to appear but does not appear for the hearing, the defendant is deemed by s. 9.1 not to dispute the charge and the justice proceeds as under s. 9(1) to convict or quash based on a review of the certificate for completeness and regularity on its face.

[16] There is no evidence in the record as to why the officers in these 16 cases each wrote an incorrect amount for the set fine. The officer may have added the $5 service cost to the prescribed set fine amount in accordance with the old form, but this does not account for the discrepancy in all of the cases. In some of the cases, the total amount payable for the set fine, costs and victim surcharge is correct despite the set fine amount itself being incorrect, although the parties do not agree on how many cases are correct. In other cases, the total amount payable is either too high or too low by anywhere from $5 to $75.

[17] The appellant makes three arguments in support of the proposition that the certificates at issue should not have been quashed. The first is that the proper approach to be taken by a justice when reviewing a certificate of offence under s. 9(1) to determine whether it is "complete and regular on its face" is to correct any defect in substance or form, particularly technical deficiencies such as an error in the set fine amount, rather than quash the proceeding. The appellant points to sections of the Act that favour amendment of deficiencies rather than quashing of proceedings. For example, s. 34(1) allows the court "at any stage of a proceeding" to amend the information [page223] or certificate that is defective in substance or form in any way. The appellant also points to s. 36(2), which states that the court shall not quash an information or certificate unless an amendment "would fail to satisfy the ends of justice".

[18] In my view, it is clear that these sections were not intended to apply when a justice is exercising the special powers and procedure conferred by s. 9(1) of the Act. The provisions cited by the appellant, ss. 34(1) and 36(2), are found in Part IV of the Act, titled "Trial and Sentencing". Although the opening words of s. 34(1) state that "the court may at any stage of the proceeding amend . . ." (emphasis added), 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. Furthermore, s. 36(2) must be read together with s. 36(1), which requires that an objection to an information or certificate for a defect on its face must be made by motion to quash, either before the defendant has entered a plea or after with leave of the court. Subsection (2) directs the court that it is in responding to such a motion that the court is to amend the information or certificate if possible rather than quash. This section does not apply to the s. 9(1) in-office default procedure, where there are no motions to quash made and no plea is taken.

[19] This distinction can be seen in this court's decision in R. v. Singh, [2004] O.J. No. 2066, 9 M.V.R. (5th) 195 (C.A.). In that case, as the defendant had appeared to plead, s. 9(1) did not apply. The justice presiding at the hearing quashed the certificate because it contained an incorrect set fine. This court upheld the reviewing judge's conclusion that the justice erred by failing to amend the certificate under s. 34(1), even though she would have been obliged to quash it under s. 9(1) had the defendant not appeared.

[20] Any remaining doubt about the intent of the legislature with regard to the proper interpretation and application of these sections is resolved by rule 15(1) of the Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200, as amended. This rule states that two matters can be dealt with only in a court hearing: quashing a proceeding, except under s. 9 and some other sections, and amending an information, certificate of offence or certificate of parking infraction. This makes it clear that the legislature did not intend that a justice of the peace have the power to amend a defective certificate in a s. 9(1) default proceeding because such a proceeding takes place in-office, not in court. [page224]

[21] The appellant's second argument is based on s. 90(1), which is found in Part V of the Act, "General Provisions". This section states:

90(1) The validity of any proceeding is not affected by, (a) any irregularity or defect in the substance or form of the summons, warrant, offence notice, parking infraction notice, undertaking to appear or recognizance; or (b) any variance between the charge set out in the summons, warrant, parking infraction notice, offence notice, undertaking to appear or recognizance and the charge set out in the information or certificate.

[22] Again, this section must be read and interpreted as a whole including subsection (2) which provides:

90(2) Where it appears to the court that the defendant has been misled by any irregularity, defect or variance mentioned in subsection (1), the court may adjourn the hearing and may make such order as the court considers appropriate, including an order under section 60 for the payment of costs.

[23] Subsection (2) makes it clear that s. 90 applies in the context of a hearing before the court, and therefore not where the justice is proceeding on default under s. 9(1) where no hearing is held. Furthermore, s. 90(1)(b) contemplates a comparison between the certificate and the offence notice, but the offence notice is not before the justice in a s. 9(1) proceeding. In any event, a defect in the set fine on the certificate would be identical to that on the notice.

[24] The appellant's third argument is that this court should endorse the decision of the Superior Court of Justice in York (Regional Municipality) v. Wilson, 2005 47712 (ON SC), [2005] O.J. No. 5392, 27 M.V.R. (5th) 153 (S.C.J.). That case involved a motion brought by the prosecuting authority under s. 140(1) of the Act to challenge the justice of the peace's decision to quash a certificate under s. 9(1) because the set fine was incorrect. Boyko J. concluded [at para. 11] that because s. 3(2)(a) of the Act requires the set fine to be on the offence notice and no section requires it to be on the certificate, the set fine is not a component of the certificate that is required for it to be considered "complete and regular on its face". Rather, she held that the amount of the set fine is mere surplusage. The court further held that where the set fine entered by the officer is incorrect, the justice is obliged to impose the correct set fine.

[25] In reaching this conclusion, the court specifically rejected the decision of the Ontario Court of Justice in R. v. Khoshael, [2001] O.J. No. 2110, 50 W.C.B. (2d) 165 (C.J.) as wrong. In that [page225] decision, Libman J. succinctly discussed the special default procedure under s. 9.1 of the Act, which is identical to the procedure under s. 9(1), stating, at paras. 8-13:

The Provincial Offences Act strikes a balance between inferring from the failure of defendants to act, such that they are taken to have waived their right to be presumed innocent and their right to a hearing, thereby consenting to a conviction, while placing an overriding requirement on the Justice, as the independent judicial officer put in place as a safeguard, the task of examining the charge document which has initiated the proceeding, so as to prevent injustices from occurring.

In this light, the power of the Justice to refuse to enter a conviction and quash the proceeding where the ticket or charge document has not been delivered to the defendant in accordance with the Act, or where there are irregularities on its face such that it is not complete and regular, constitutes an integral part of this pervasive regime in respect of regulatory infractions. . . . . . . . .

Different considerations apply where the defendant appears at trial and the Act's broad amendment powers under s. 34 may be invoked and the grounds for quashing are circumscribed by s. 36. 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 the "default conviction" provisions under s. 9.1 of the Act.

Defects which arise in respect of the latter, that is, involving a certificate of offence or charge document which is the subject of examination under s. 9.1, go to the very jurisdiction of the Court to conduct a hearing in the defendant's absence and enter a conviction, the defendant having been deemed not to dispute the charge. Hence, a premium is rightly placed on the form of the document, since matters of substance are not engaged by s. 9.1. The absence of an amendment power while providing for one of quashing under s. 9.1(3), whereas s. 36(2) provides for both powers at trial, confirms, in my respectful opinion, this distinction. (Citations omitted)

[26] Libman J. acknowledged that not every irregularity will result in a quashing order. He referred to a recent case where the words "of Ontario" were not included in the reference to the Highway Traffic Act, R.S.O. 1990, c. H.8 as an example of words that were not necessary but mere surplusage. However, he concluded that the proper amount of the set fine was not mere surplusage, but rather, was necessary in order for the certificate to be complete and regular on its face. It forms part of the basis used by the defendant to decide whether to default. [page226]

[27] I respectfully reject the court's conclusion in York (Regional Municipality) v. Wilson. While it is true that s. 3(2)(a) of the Act only requires the set fine to be indicated on the offence notice and not on the certificate, this is because the certificate can be used in conjunction with either a summons or an offence notice. When the officer completes the carbon copy ticket form, the top copy of which is the certificate of offence, the officer is required to fill in the box for the set fine and total payable when proceeding by way of offence notice, but not when proceeding by way of summons. The certificate does not need to contain the set fine when a summons is used because the defendant does not have the option of defaulting. The defendant must appear for a hearing of the charge regardless of the amount of the set fine.

[28] However, where an offence notice is used, the set fine is required because the defendant needs that information in order to decide whether to default and be subject to the set fine, plus costs and the victim fine surcharge. That is why s. 3(2)(a) does not require the certificate to indicate the set fine in all cases, but does require it when the officer chooses to proceed by way of offence notice.

[29] When the offence notice is served and no response is received from the defendant within days, the justice must examine the certificate under s. 9(1) in order to determine whether it is "complete and regular on its face". In doing so, the justice is effectively determining whether the defendant received effective notice of all the information needed to decide whether to default. The set fine is one of those required pieces of information. As noted above, s. 3(2)(a) requires it to be included on the offence notice, which is a carbon copy of the certificate. Therefore, the set fine is also required to be on the certificate or else it can be inferred that it was not on the notice, which is not before the justice.

[30] The Oxford English Dictionary, 2nd ed., Vol. XIII, at p. 523, contains a number of definitions or meanings of the word "regular". One definition that appears to be relevant is "recognized as formally correct". If the set fine, as in the case at bar, is incorrectly recorded on the certificate, it simply cannot be regular on its face and must be quashed.

[31] Because the justice has no power to amend the certificate under s. 9(1), the requirement in s. 9(1)(a) that the justice impose the set fine upon conviction must mean the set fine as shown on the certificate. If that amount is incorrect, the justice cannot impose it, as it is not the statutorily defined set fine. The justice is obliged to quash the proceeding under s. 9(1)(b). [page227]

[32] In supporting the appellant, the intervenor relies on the Supreme Court of Canada's decision in R. v. Moore, 1988 43 (SCC), [1988] 1 S.C.R. 1097, [1988] S.C.J. No. 58, 41 C.C.C. (3d) 289, in which the court held that a defective information would not be quashed as a nullity if it gave fair notice of the offence to the accused and the defect could be cured by amendment. For the reasons already discussed, the analysis in Moore can be applied to proceedings under the Act where the power to amend is provided, but is not of assistance in the context of the default procedure under s. 9(1) in which no amendment is allowed. That procedure does not require the certificate to be a nullity in order to be quashed as in a case under the Criminal Code, R.S.C. 1985, c. C-46, but only incomplete or irregular on its face.

[33] The other argument made by the intervenor is that the set fine does not affect the validity of a certificate because it is not an element of the offence. Rather, the intervenor argues that it is only relevant to sentencing. This position does not bear scrutiny when assessed in the context of the default procedure and the required notice to the defendant that that procedure entails. In the default context, the set fine is part of the information the defendant requires in order to decide whether to default and thereby forgo the right to be presumed innocent and to have a hearing.

[34] I conclude that the approach advocated by the appellant and the intervenor does not accord with the purpose or scheme of Part I of the Act, which is to facilitate an inexpensive and expeditious procedure for dealing with a large volume of less serious offences. The default procedure put in place by the Act is intended to be inexpensive and expeditious for defendants who wish to acknowledge the offence and pay the fine. This procedure also saves the cost to the government of holding trials in cases where people are content to be found guilty of a relatively minor offence and pay a disclosed set fine. However, the trade-off for these savings is that where the default procedure is used, the certificate of offence must be "complete and regular on its face". If it does not comply, it cannot be amended and must be quashed.

[35] My colleague Doherty J.A. suggests that where the set fine is wrong on the offence notice (and the certificate), and where the person chooses to default and is convicted and a higher set fine is imposed, that person has the remedy of an appeal. However, in my view, this approach is inconsistent with the intent of the default procedure. First, it removes the incentive for peace officers to be accurate when completing the "set fine" on certificates of offence and places the burden of [page228] correcting an error on the citizen, rather than the state, whose error it is. Second, if the set fine is inaccurate on the offence notice, the notice will not comply with the requirements of s. 3(2)(a) of the Act, and an appeal would likely be successful, while the cost and time required for such appeals both for the citizen and the system would undermine the intent of the default procedure to be efficient and inexpensive.

[36] There is no evidence before this court to suggest that there is a widespread problem with incorrect set fines, or that requiring the set fine to be correct would result in a massive number of quashed proceedings. There is also no reason to suspect that that would be the case. The material filed by the amicus contains an internal memorandum from the Office of the Chief Justice, Ontario Court of Justice explaining the reasons for historical confusion over the correct way to complete the set fine portion of the form. However, with the new form and new schedules of set fines, this historical problem should no longer be an issue.

[37] I would accordingly reject this ground of appeal.

Issue 2: Should the appellant have challenged the order quashing the proceeding by way of appeal under s. 135(1), or by way of application for an order in the nature of mandamus under s. 140?

[38] Both the appellant and the intervenor submit that the application judge erred in holding that the appellant should have appealed the order quashing the certificates rather than seeking mandamus under s. 140 of the Act. The amicus curiae submits that the application judge was correct in holding that an order quashing the proceedings is tantamount to an acquittal and therefore should have been appealed under s. 135(1) of the Act.

[39] The issue of the prosecution's ability to appeal or to seek a prerogative remedy after charges have been quashed or stayed has been discussed extensively in the criminal law context. In Kipp v. Ontario (Attorney-General), 1964 20 (SCC), [1965] S.C.R. 57, [1964] S.C.J. No. 52, [1965] 2 C.C.C. 133, after the accused elected trial by judge alone but before he entered his plea, he moved successfully for an order quashing the indictment as void for duplicity. The Crown brought a motion for mandamus. It was common ground that the Crown had no right of appeal. The majority of the Supreme Court held that mandamus was available because the Crown was seeking an order to proceed with the trial where no trial had been held. They held that the indictment was not duplicitous and granted the order for mandamus. [page229]

[40] The issue arose again in the Supreme Court but in the context of a summary conviction offence in Cheyenne Realty Ltd. v. Thompson, 1974 4 (SCC), [1975] 1 S.C.R. 87, [1974] S.C.J. No. 42, 15 C.C.C. (2d) 49. In that case, the appellant pled not guilty to a charge of breaching a city by-law, then moved for an order that the by-law was invalid. The trial judge agreed that the by-law was inoperative and held that the court had no jurisdiction to hear the matter. The respondent moved for mandamus. The Supreme Court distinguished Kipp on the basis that in that case, it was the form of the indictment that precluded the judge from proceeding, while in Cheyenne, the judge's conclusion that the by-law was inoperative was a decision on the merits amounting to an acquittal. The judge effectively decided that there had been no breach of the by-law by the accused by deciding that there was no by-law to breach. That finding amounted to a verdict of acquittal and therefore should have been appealed by way of stated case under s. 762 of the Criminal Code, which provided for such an appeal in summary conviction matters.

[41] The issue of when the Crown may appeal by way of stated case under s. 762 rather than move for mandamus when an information is quashed was discussed by this court in R. v. B & B Stone Ltd.(No. 2), 1977 2093 (ON CA), [1977] O.J. No. 409, 34 C.C.C. (2d) 464 (C.A.). In that case, the information was quashed for duplicity. Arnup J.A. explained that where an information is duplicitous, it is not void. Therefore, when it is quashed, it is not a declining of jurisdiction, but a decision that can be appealed. He further explained [at para. 20] that cases such as Kipp, which dealt with motions to quash indictments rather than informations, had to be assessed differently because the right of appeal for indictments under the Criminal Code was quite different from s. 762 for summary conviction matters, and only allowed the Crown to appeal from "a judgment or verdict of acquittal of a trial court".

[42] In R. v. Beason (1983), 1983 1873 (ON CA), 43 O.R. (2d) 65, [1983] O.J. No. 3151, 7 C.C.C. (3d) 20 (C.A.), the indictment was quashed for delay under s. 11(b) of the Canadian Charter of Rights and Freedoms. The Crown moved for a writ of certiorari and mandamus in aid, quashing the order and directing the court to proceed with the hearing on the indictment. Martin J.A. first considered the propriety of the Crown proceeding by way of prerogative writ rather than appeal. He concluded that although the decision to quash the indictment under the Charter could have been appealed, that would not always preclude a resort to mandamus. He stated, at p. 78 O.R., p. 33 C.C.C.: [page230]

It seems that the rule that mandamus cannot be invoked where an appeal lies is not so much an inflexible rule of law, as a rule regulating the discretion of the courts in granting mandamus. ...

[43] This case was an early Charter decision where new procedural issues were arising for determination in the Charter context. In the end, the court held that mandamus was available in the circumstances, although an appeal would be the preferable remedy in similar circumstances in the future. [See Note 2 below] However, in discussing the history of the debate over when mandamus properly lies, Martin J.A. stated, at p. 73 O.R., p. 28 C.C.C.:

It is well established that where it is alleged that a trial judge has erroneously quashed an indictment for defects in the indictment such as duplicity, failure to allege a material averment and the like or on the ground of failure to comply with technical procedural requirements, no appeal lies from the order quashing the indictment. Such an order is not tantamount to an acquittal and does not preclude the preferring of another indictment. It has been authoritatively decided that where an indictment has been quashed for technical or procedural irregularities mandamus is the appropriate remedy to challenge that decision. The question to be decided on mandamus in those circumstances is not whether the trial judge had jurisdiction to quash the indictment, but whether he erred in law in quashing the indictment.

[44] In R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128, [1985] S.C.J. No. 53, 21 C.C.C. (3d) 7, the Supreme Court considered whether a judicially entered stay of proceedings for entrapment was a "judgment or verdict of acquittal" for the purposes of an appeal under s. 605(1)(a) of the Criminal Code. After reviewing the case law, the court concluded, at p. 141 S.C.R., p. 18 C.C.C.:

From this review, it can be concluded that quashing an indictment is tantamount to an acquittal where (a) the decision to quash is not based on defects in the indictment or technical procedural irregularities, and (b) the decision is a final decision resting on a question of law alone, such that if the accused were charged subsequently with the same offence he or she could plead autrefois acquit.

[45] The distinctions drawn in the case law discussed above, developed under the Criminal Code, must be considered in the context of the Act, and in particular, in the context of the default procedure under s. 9(1) and the specific appeal and prerogative remedy provisions of ss. 135(1) and 140.

[46] Under s. 135(1), there is an appeal against acquittal, conviction and sentence in a proceeding commenced under Part I. [page231] Had the legislature intended to allow the prosecuting authority or the Attorney General to appeal when a proceeding is quashed under s. 9(1), it could have specifically provided for an appeal in that event.

[47] Furthermore, s. 9(1) accords with the jurisprudence under the Criminal Code regarding when a quashed proceeding is effectively an acquittal. By giving a justice the ability to quash but not to acquit, the legislature has made it clear that the decision to quash is not a verdict on the merits tantamount to an acquittal, but rather is a recognition that irregularities on the face of the certificate do not allow for default conviction. The legislature has made the decision to balance the use of the expeditious default procedure with the need to protect the integrity of the system by sacrificing convictions on default where the officer makes an error that affects the completeness or regularity of the certificate.

[48] In my view, it accords with the scheme of the 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. However, one would expect such cases to be relatively rare.

[49] The clear wording of ss. 135(1) and 9(1) also suggests that the legislature did not intend that courts proceed on the basis that a proceeding quashed under s. 9(1) is "tantamount to an acquittal". This approach would effectively accord a right of appeal where the legislature chose not to provide one. It would also be inconsistent with the legislature's decision not to give a justice the power to acquit under s. 9(1). In my view, based on the wording of the Act, as well as its intent to provide an efficient and cost-effective default procedure, expanding the right of appeal beyond what is specifically provided for in the Act would constitute an error in law.

[50] Finally, I wish to address the issue that arises from the jurisprudence regarding whether a quashed certificate is a nullity or an irregularity. Traditionally, only a constating document that is a nullity deprives the court of jurisdiction to proceed based on that document. However, the default scheme under s. 9(1) of the Act is differently constructed: the jurisdiction accorded to a justice is to either convict or quash. The latter is within the justice's jurisdiction where the certificate is incomplete or irregular on its face. Viewed another way, the incompleteness or [page232] irregularity deprives the justice of the ability to convict based on the certificate, and as discussed above, the justice has no authority under the Act to amend a defective certificate when proceeding under s. 9(1) following default. In that way, although the certificate is only incomplete or irregular on its face, it has the effect of a nullity.

[51] I conclude that the nullity/irregularity distinction does not fit easily into the s. 9(1) default procedure. However, regardless of whether the irregular or incomplete certificate is a nullity or an irregularity, the Act does not provide for an appeal where the certificate is quashed.

Conclusion

[52] I would dismiss the appeal from the decision of the application judge. In my view, the prosecuting authority was correct in the procedure it followed to seek an order in the nature of mandamus in respect of the 16 quashed certificates that are the subject of this appeal. However, the mandamus order should not be made because the justice of the peace was correct in finding that the errors in the set fines on the certificates constitute irregularities on the face of the certificates that required her to quash them under s. 9(1).

[53] The parties raised a third issue on this appeal regarding the doctrine of stare decisis and whether judges of the Ontario Court of Justice are bound to follow the decision of the Superior Court in York (Regional Municipality) v. Wilson. In light of these reasons and the disposition of the appeal, it is unnecessary to address that issue.

[54] I would therefore dismiss the appeal.

DOHERTY J.A. (dissenting): -- I

[55] I have read the reasons of Feldman J.A. I cannot agree that an error in the "set fine" amount on a certificate of offence means that persons who have chosen to do nothing in response to the charge and are thereby deemed to not dispute the charge should escape conviction and the appropriate penalty because of an error that may well have been of no consequence to them.

[56] In my view, the result reached by my colleague is not warranted on the language of the relevant provisions of the statute, or on a purposive interpretation of those provisions. To the contrary, I think an interpretation of a quasi-penal statute that [page233] divorces the outcome of the proceeding from either the merits of the case or any genuine due process concerns can only serve to bring the administration of justice into disrepute. I prefer the conclusion reached in York (Regional Municipality) v. Wilson, 2005 47712 (ON SC), [2005] O.J. No. 5392, 27 M.V.R. (5th) 153 (S.C.J.). II

[57] Justice Feldman's typically thorough and careful analysis allows me to move quickly to our point of disagreement. I adopt her summary of the relevant background and her conclusions with respect to the first two arguments advanced by the appellant (paras. 9-23 of her reasons). Like her, I would reject both of those arguments. I also agree with Feldman J.A.'s analysis and conclusion on the remedial issue, identified in her reasons as "Issue 2" (paras. 36-49). I respectively part company with my colleague on the analysis found at paras. 24-35 of her reasons. III

[58] Part I of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the "Act") provides the process by which the most minor of provincial offences may be prosecuted. Under that part, a person who receives an offence notice alleging he or she has committed a provincial offence, most typically a traffic violation, has several options. The options are set out in full in the offence notice given to the defendant. My colleague has summarized those options at para. 15 of her reasons. If the defendant chooses to do nothing, s. 9 is triggered:

Failure to respond to offence notice

9(1) Where at least fifteen days have elapsed after the defendant was served with the offence notice and the offence notice has not been delivered in accordance with section 6 or 8 and a plea of guilty has not been accepted under section 7, the defendant shall be deemed to not wish to dispute the charge and a justice shall examine the certificate of offence and, (a) where the certificate of offence is complete and regular on its face, the justice shall enter a conviction in the defendant's absence and without a hearing and impose the set fine for the offence; or (b) where the certificate of offence is not complete and regular on its face, the justice shall quash the proceeding.

[59] Section 9 provides that where at least 15 days have elapsed since the defendant was served with the offence notice (usually the date of the offence) and the defendant has not taken any steps to avail himself or herself of any of the other options [page234] available, then that person is deemed "to not wish to dispute the charge". Where the deeming component of s. 9(1) takes effect, the justice has only two options. If the certificate of offence before the justice is not "complete and regular on its face", then the justice "shall quash the proceeding": s. 9(1)(b). If the certificate is complete and regular, then the justice shall enter a conviction and impose the "set fine" for the offence: s. 9(1)(a).

[60] Feldman J.A. advances three reasons to support her conclusion that an error in the amount of the "set fine" shown on the certificate of offence requires the justice to quash the proceedings pursuant to s. 9(1)(b). First, she concludes (at paras. 27-28) that where a provincial offences officer chooses to proceed by way of offence notice rather than summons, s. 3(2) of the Act requires that the amount of the "set fine" appear on the certificate of offence. It follows that a failure to put the correct amount on the certificate means that it is "not complete and regular on its face" and must be quashed.

[61] Second, Feldman J.A. holds (at para. 29) that a justice acting under s. 9(1) is charged with the responsibility of:

[D]etermining whether the defendant received effective notice of all of the information needed to decide whether to default. The set fine is one of those required pieces of information.

[62] She observes that the error in the "set fine" amount on the certificate of offence will inevitably be repeated on the offence notice given to the defendant because the latter is a carbon copy of the former. This error will deny the defendant information that he or she needs in deciding whether to appear and answer to the charge.

[63] Third, Feldman J.A. reasons (at para. 31) that as there is no power to amend the certificate of offence under s. 9(1), a justice who enters a conviction must impose the set fine shown on the certificate. However, if the amount is incorrect, the justice cannot impose that amount as the statute permits only the imposition of the statutorily prescribed "set fine" amount. As the justice cannot convict and impose the wrong "set fine", it follows that the justice must choose the only other option available under s. 9 and quash the proceedings.

[64] With respect, I do not agree with any of the reasons outlined above. (i) The requirements of s. 3(2) of the Act

[65] A certificate of offence is a charging document under Part I of the Act. It is the equivalent of the information in a criminal proceeding. Its purpose is to identify the charge made [page235] against the defendant. Section 3 requires that the provincial offences officer certify that an offence has been committed. The officer who issues the certificate shall also certify on the certificate that he or she personally served the offence notice on the date specified in the certification: s. 3(5). The certificate of offence must be filed as soon as practicable after service in the court office: s. 4. The defendant does not receive a copy of the certificate of offence.

[66] The provincial offences officer who completes and signs a certificate of offence alleging that a defendant has committed an offence may issue either an offence notice or a summons: s. 3(2). These documents provide the process under Part I of the Act whereby the defendant is advised of the nature of the allegation, his or her options and the relevant court date.

[67] Section 3(2)(a) specifically provides that an offence notice must indicate "the set fine for the offence". There is no such requirement for the certificate of offence. This makes sense. The certificate of offence goes to the court. The court does not need to be told the set fine for the offence charged. The offence notice goes to the defendant. Clearly, it is potentially important for the defendant to know what penalty he or she faces should a conviction ensue. The amount of the "set fine" is, therefore, required on the document given to the defendant, the offence notice, but not on the document delivered to the court by the provincial offences officer.

[68] I disagree with Justice Feldman's assertion at para. 28 that s. 3(2)(a) of the Act requires that the certificate of offence indicate the "set fine" amount where the officer chooses to proceed by way of offence notice but not where the officer chooses to issue a summons. Nothing in s. 3(2) suggests that the contents of the certificate of offence will vary depending on whether the officer issues an offence notice or a summons. Nor do the relevant forms suggest any difference in the content of the certificate of offence depending on the nature of the process issued. My colleague has helpfully attached a copy of a certificate of offence to her reasons. An examination of that form indicates that the same form is used regardless of whether the defendant is given an offence notice or a summons.

[69] Although nothing in s. 3 requires that the "set fine" amount be included in the certificate of offence, the form to be used for a certificate of offence as required under the regulations contains a space in which the provincial offences officer is to indicate the "set fine" amount. An examination of the forms reveals that they are designed so that the officer may fill out the certificate of offence and the offence notice at the same time. The one is [page236] a carbon copy of the other. Presumably, the aim is to reduce paperwork and minimize clerical errors by allowing the officer to fill out both forms at once.

[70] The use of this format requires that each form provide a place for information that the statute requires be placed on either or both the certificate of offence or the offence notice. For example, because the offence notice is a carbon copy of the certificate of offence, it will contain the provincial offence officer's signature certifying that he or she personally served the offence notice on the defendant. Section 3 of the Act does not require that proof of service appear on the offence notice. No purpose is served by having proof of service on the offence notice. However, proof of service on the certificate of offence is required by the statute, and because the forms are virtual carbon copies, the information pertaining to service appears on both the certificate of offence and the offence notice. I think the same rationale explains why the "set fine" amount appears on the certificate of offence and the offence notice.

[71] The physical design of the form offers further support for my conclusion. The reference to the "set fine" amount on the certificate of offence appears below the fiat of the provincial offences officer certifying that the offence alleged in the certificate was committed and that the individual charged has been served with an offence notice. The very form of the documents suggest to me that the amount of the "set fine" is not an integral part of the certificate of offence, but appears on the document as a matter of convenience to facilitate the officer's ability to create both a certificate of offence and notice of offence at the same time. Administrative convenience should not dictate the essential components of the certificate of offence.

[72] Like Boyko J. in York v. Wilson, supra, at paras. 10-11, I find no statutory requirement that the "set fine" amount appear on the certificate of offence. Section 3 requires that the certificate:

-- allege an offence (s. 3(1)); and

-- certify that the provincial offence officer personally served the offence notice on the person charged (s. 3(5)).

[73] Examination by the justice to determine whether the certificate of offence is "complete and regular on its face" requires that the justice satisfy him or herself that the certificate alleges an offence and that it certifies personal service on the defendant [page237] of the offence notice. I do not think that errors in respect of details that are included on the certificate of offence form, but are not statutorily required, should be taken as rendering the certificate either incomplete or irregular. (ii) The justice's function under section 9 of the Act

[74] Section 9 is constructed so that the justice first determines whether the conditions precedent to the deeming provision in s. 9 exist. If 15 days have elapsed since the defendant was served with the offence notice and if the defendant has not chosen any of the other options available to him, then pursuant to s. 9, the defendant is deemed "to not wish to dispute the charge". The section does not contemplate any inquiry as to why that decision was made or whether it was a fully informed decision.

[75] Once the deemed provision in s. 9 is triggered, the defendant loses any entitlement to any inquiry into the circumstances surrounding the charge beyond the inquiry mandated by s. 9(1)(b). That inquiry looks only at the certificate of offence and only for the purpose of determining whether it is complete and regular on its face.

[76] Nothing in s. 9 suggests to me that the justice should be concerned with whether the defendant has received notice of all information needed to decide whether he or she should respond to the charge. The information that may be relevant to any particular defendant's decision to appear in answer to the charge cannot possibly be known or identified by a justice on a s. 9 inquiry. Section 9(1)(b) is not designed to ensure that a defendant has made an informed decision not to appear. It is designed to ensure that the defendant who does not appear has been served and that the certificate contains the information necessary for a proper allegation of an offence under the Act. Section 9(1)(b) protects against convictions for non-existent offences and convictions of persons not properly served with the offence notice, which of course is the document that brings the various options to the attention of the defendant.

[77] The very limited inquiry mandated by s. 9(1)(b) has nothing to do with whether the defendant received effective notice of all the information needed by him to decide which of the available options he or she should choose. I would add that even if the justice acting under s. 9 must determine whether the defendant made an informed decision not to dispute the charge, that rationale would only justify quashing certificates where the error in the "set fine" amount could have misled the defendant. An error which understates the "set fine" by a few dollars, or overstates [page238] the "set fine" could not have any effect on a defendant's decision not to dispute the charge. (iii) Can the justice impose the correct "set fine" amount when entering a conviction under section 9?

[78] I agree with Feldman J.A. that a person convicted of an offence under Part I of the Act cannot be ordered to pay any fine other than the "set fine". If the provincial offence officer has put the wrong amount on the certificate of offence, whether the amount [is] higher or lower than the accurate amount, the defendant cannot be ordered to pay the incorrect amount. I also agree with my colleague that a justice acting under s. 9 of the Act cannot amend the certificate of offence.

[79] I would not, however, characterize the imposition of the correct "set fine" amount upon entering a conviction under s. 9 as an amendment to the certificate of offence. The certificate of offence is the charging document. It contains the allegation. The justice has no power to amend that allegation under s. 9. If, however, the justice enters a conviction under s. 9, then the justice moves to the question of sentence. Section 9 commands the justice to "impose the set fine for the offence". When performing that function, the justice does not look to the contents of the certificate of offence but rather to the terms of the applicable statute. A justice who convicts under s. 9 will impose the statutorily prescribed "set fine" amount. There is no need for the justice to amend or alter the contents of the certificate of offence. IV

[80] Part I of the Act is designed to deal efficiently and inexpensively with the huge volume of minor regulatory offences that exist in this province. It does so by providing various means by which cases may be resolved without the cost and delay associated with the traditional adversarial criminal law process. The Act puts the onus on the defendant to choose from among these options.

[81] Section 9 is one of the options available to a person charged under s. 1. Where the defendant chooses to do nothing, thereby triggering s. 9, it is no part of the court's concern under s. 9 whether that choice was a wise one or an informed one. Nor should the court read requirements into the statute which introduce a technical pleadings-based "defence" into Part I proceedings. By a pleadings-based defence, I mean one that has nothing to do with the merits of the allegation or any legitimate [page239] fairness concerns. With respect to the contrary view, I think quashing a certificate of offence because of an error in the "set fine" introduces a technicality that is inconsistent with the overall philosophy of the Act.

[82] I acknowledge that there can be cases where a mistake in the "set fine" amount found on the offence notice (the defendant does not see the certificate of offence) could prejudice a defendant. For example, a person may chose not to defend a charge thinking the fine is $100, when in fact it is $400. Differences between the amount shown on the offence notice and the actual "set fine" amount may be significant enough to cause defendants to choose options they would not otherwise choose. This potential prejudice can be addressed without the need to quash all charges where there is any error in the "set fine" amount, even an error that could not possibly have prejudiced the defendant.

[83] A defendant who is convicted under s. 9 will receive a notice of the fine imposed by the justice: s. 66(5). If the amount of the fine is higher than the amount noted on the offence notice, the defendant is entitled to appeal the conviction and sentence to the Ontario Court of Justice: s. 135(1). Presumably, if the defendant can convince the appeal court that he or she was materially misled by the error as to the amount of the "set fine" made in the notice of offence, the defendant will be successful on the appeal.

[84] The right of appeal to the Ontario Court of Justice provides a straightforward inexpensive means of protecting those who may suffer any potential injustice caused by a mistake on the offence notice as to the amount of the "set fine". As well, it does so in a way that preserves the convictions of those for whom the error was of no possible consequence.

[85] In my view, interpreting the Act in a manner that allows for convictions where the error is inconsequential and permits successful appeals in those circumstances where the error is of some consequence promotes the due administration of justice by producing results that have more to do with the merits of the allegation and the fairness of the process, and less to do with the provincial offences officer's ability to correctly fill in boxes on a form.

[86] I would allow the appeal, make an order in the nature of mandamus directing a justice of the peace of the Ontario Court of Justice to examine the relevant certificates of offences under s. 9 of the Act in accordance with these reasons.

Appeal dismissed.

APPENDIX A

[Editor's note: Appendix A, could not be reproduced online. Please contact Quicklaw Customer Service at 1-800-387-0899 or service@@lexisnexis.ca to request a fax copy.]

Notes

Note 1: No issue was raised on this appeal regarding the authority for the change in the form.

Note 2: subsequent to this case, s. 605(1)(c) was added to the Criminal Code in 1985 to make it clear that in Charter cases where a stay is ordered, the correct method of challenge is an appeal, not a prerogative remedy.