COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Farah, 2013 ONCA 362

DATE: 20130603

DOCKET: M41983

Gillese J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Abdullahi Farah

Applicant

Abdullahi Farah, acting in person

Amanda Ross, for the respondent (City of Toronto)

Heard: May 29, 2013

On motion for an extension of time to seek leave to appeal and for leave to appeal pursuant to s. 139 of the Provincial Offences Act, R.S.O. 1990, c. P.33, from the judgment of Justice Eric (Rick) N. Libman of the Ontario Court of Justice dated September 11, 2012, dismissing an appeal from the conviction entered by Justice of the Peace Gregory J. Fantino on April 25, 2012.

Gillese J.A. (in chambers):

[1] Abdullahi Farah was convicted by a justice of the peace of careless driving, contrary to s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

[2] He appealed.

[3] In a decision dated September 11, 2012, the conviction was upheld by a provincial offences appeal court judge (the “Decision”).

[4] Mr. Farah moves for an extension of time to seek leave to appeal the Decision to this court. If the extension of time is granted, he seeks leave to appeal, pursuant to s. 139 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”). For the reasons that follow, I would grant Mr. Farah both the extension of time and leave to appeal.

[5] Mr. Farah was assisted by duty counsel, Fredrick Schumann. The court is grateful for Mr. Schumann’s able assistance.

THE BACKGROUND

[6] Mr. Farah was given a certificate of offence numbered 4938878A (the “Ticket”). On the face of the Ticket, under the typewritten words “Did commit the offence of:” are the handwritten words “Careless Driving”. Next to the typewritten words “Contrary to:” are the handwritten letters “H.T.A.”, and beside “Sect.” is the handwritten number “182(2)”. Section 182(2) of the HTA is the offence of disobeying a traffic sign.

[7] In other words, the handwritten part of the Ticket indicates that Mr. Farah was charged with careless driving but the reference to s. 182(2) indicates that he was charged with disobeying a traffic sign.

[8] The record in this matter is extremely thin but, based on oral information given to the court, I understand that Mr. Farah gave notice that he would dispute the charge but did not appear. Thus, the justice of the peace would have proceeded pursuant to s. 9.1 of the POA.

[9] Mr. Farah was convicted, in absentia, of careless driving.

[10] Sections 9.1 (1), (2) and (3) of the POA read as follows:

(1) A defendant is deemed to not wish to dispute the charge where the defendant has been issued a notice of the time and place of trial and fails to appear at the time and place appointed for the trial...

(2) If subsection (1) applies, section 54 does not apply, and a justice shall examine the certificate of 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… [Emphasis added.]

[11] Mr. Farah appealed his conviction to the provincial offences appeal court judge. The issue raised by his appeal was whether, on a plain reading of s. 9.1(2) and (3) of the POA, the justice of the peace was obliged to quash the proceeding because the conflict between the wording of the offence and the section number on the Ticket resulted in the Ticket not being “complete and regular” on its face.

[12] The appeal judge dismissed the appeal, saying that the offence section of a certificate of offence is not an essential element and, had it been left out, the ticket would simply have referred to careless driving. He stated that it was clear that Mr. Farah had been charged with careless driving.

[13] If granted leave, Mr. Farah will mount the same argument before this court.

[14] Counsel for the respondent City argues against granting leave to appeal. She submits that this court’s decision in London (City) v. Young, 2008 ONCA 429, 91 O.R. (3d) 215 (“Young”), provides adequate guidance on how to deal with this issue.

THE TEST FOR GRANTING LEAVE

[15] Sections 139(1) and (2) of the POA set out the test for leave to appeal that applies in this case. Those provisions read as follows:

(1) An appeal lies from the judgment of the Ontario Court of Justice in an appeal under section 135 to the Court of Appeal, with leave of a judge of the Court of Appeal, on special grounds, upon any question of law alone…

(2) No leave to appeal shall be granted under subsection (1) unless the judge of the Court of Appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted…

[16] It is trite law that the requirements in s. 139 create a high threshold. Leave is limited to cases, on special grounds, where the resolution of a question of law alone is essential in the public interest or for the due administration of justice.

ANALYSIS

[17] In my view, the applicant meets this high threshold. A comparison of this case with R. v. Stuparayk and Firminio, 2009 ONCJ 394, demonstrates why.

[18] In Stuparayk, Bovard J. heard appeals from two individuals who had been convicted of HTA offences. They requested trials but failed to appear on the trial date. Convictions were entered pursuant to s. 9.1 of the POA. On appeal, they submitted that their certificates of offence were not “complete and regular” on their faces, as required by s. 9.1(2) of the POA, because the descriptions of the offences did not correspond to the section numbers. It will be readily apparent that the facts in Stuparayk are nearly identical to the facts of this case.

[19] Bovard J. allowed the appeals. He considered the exceptional nature of s. 9. 1, which empowers a justice of the peace to register a conviction solely on the strength of the certificate of offence and without the necessity of hearing evidence. He viewed the conflict between the descriptions of the offences and the section numbers as significant, in that it was likely to have caused confusion in the minds of reasonable defendants and justices of the peace. He concluded by observing that justices of the peace must be able to determine clearly the offence for which they register convictions pursuant to the powers granted under s. 9.1.

[20] The Decision in this case conflicts with both the reasoning and the result in Stuparayk. Which approach to this issue is correct, if either? If neither, what is the correct approach?

[21] In my view, this court’s decision in Young does not answer these questions. In Young, provincial offences officers issued sixteen certificates of offence indicating an incorrect set fine amount for the respective charges. A justice of the peace quashed all sixteen certificates, finding that they were not “complete and regular” on their faces as required by s. 9(2)(b).[^1]

[22] In reviewing that decision, a majority of this court noted, at para. 29 of Young, that the relevant question under s. 9 is whether the defendant received effective notice of all the information needed to decide whether to default. In the majority’s view, the correct set fine amount was one of those required pieces of information.

[23] This case raises a different question. In Young, the defendants were not given the correct set fine amount that applied to the offences with which they had been charged. Here, the moving party received conflicting information about the nature of the offence with which he had been charged. This case raises a question of statutory interpretation that Young did not consider or decide, namely, whether the certificate is “complete and regular on its face” when there is a conflict between the description of the offence and the section number of the offence. Further, there is conflicting case law from the courts below as to whether this type of conflicting information requires the reviewing justice of the peace to quash the certificate.

[24] The answers to the questions raised by this matter are significant to the administration of justice generally. It is in the public interest that the conflict in the approach of the lower courts to such matters be resolved. In short, this is precisely the type of case in which leave to appeal should be granted.

DISPOSITION

[25] Accordingly, I would grant leave to extend the time to seek leave to appeal and grant leave to appeal the Decision.

Released: June 3, 2013 (“E.E.G.”)

“E.E. Gillese J.A.”

[^1]: The language of s. 9(2) is very similar to the language of s. 9.1(2). However, while s. 9.1(2) applies where a defendant requests a trial but fails to appear, s. 9(2) applies where a defendant fails to respond to an offence notice, or schedules a meeting with a prosecutor but fails to show up at the scheduled meeting, or settles the charge but fails to show up at the sentencing hearing.