COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Mirza, 2013 ONCA 363
DATE: 20130603
DOCKET: M42449
Gillese J.A. (In Chambers)
BETWEEN
Her Majesty the Queen
Respondent
and
Muhammad Mirza
Applicant
Muhammad H. Mirza, 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 25, 2012 dismissing an appeal from the conviction entered on December 16, 2011.
Gillese J.A. (in chambers):
THE BACKGROUND
[1] Muhammad Mirza was convicted by a Justice of the Peace of failing to stop at a red light, contrary to s. 144(18) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). His appeal to the provincial offences appeal court was dismissed (the “Decision”).
[2] Mr. Mirza brings a motion seeking an extension of time to seek leave to appeal the Decision. If an 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“).
[3] The motions in this case were argued immediately following the motion seeking leave to appeal in R. v. Farah (M41983). The court is again most indebted to Fredrick Schumann, who acted as duty counsel in this matter.
[4] The record in this matter is extremely thin. Consequently, I wish to make it clear that the facts set out below are not to be taken as findings by the court or beyond dispute. They are largely a recitation of information given at the oral hearing of the motion.
[5] At the oral hearing of the motion, counsel for the respondent City handed up a copy of a certificate of offence, number 5339270A, issued to Muhammad Mirza and dated October 28, 2011 (the “Ticket”). The significance of this will become apparent shortly.
[6] Mr. Mirza deposes that on October 28, 2011, he was charged with the offence of failing to stop at a red light and given a certificate of offence. He further deposes that the investigating officer who served him with the certificate of offence indicated that Mr. Mirza was being charged with speeding.
[7] On the certificate of offence that Mr. Mirza received, beside the typewritten words “Did commit the offence of:” are the handwritten words “Red Light - Fail to stop”. Under the printed words “Contrary to:” are the handwritten letters “H.T.A.”. Next to the typewritten word “Sect.” is the number “128”.
[8] Section 128 of the HTA is a speeding offence.
[9] I understand that Mr. Mirza was convicted of failing to stop at a red light, pursuant to the mechanism set out in s. 9 of the POA. Section 9(1) applies where a defendant fails to respond to an offence notice, or schedules a meeting with a prosecutor but does not show up, or settles the charge but does not show up to the sentencing hearing. It deems such a defendant to not dispute the charge and triggers s. 9(2). Section 9(2)(a) instructs the justice of the peace to examine the certificate of offence and enter a conviction in the defendant’s absence, without a hearing. However, under s. 9(2)(b), where the certificate of offence is not “complete and regular on its face”, the justice shall quash it.
[10] Mr. Mirza appealed his conviction for failing to stop at a red light. At some point, Mr. Mirza’s agent appeared in court, ready to argue that because the wording of the offence and the section number on the certificate that Mr. Mirza had been given did not correspond, the justice of the peace should have quashed the certificate. However, the agent discovered that the Ticket before the court was not identical to the certificate of offence that Mr. Mirza had received. While the handwritten words “Red Light - Fail to stop” remained, the section number “128” had a line through it, followed by some initials in a circle, followed by “144(18)”.
[11] Section 144(18) is the provision governing failure to stop at a red light. Thus, on the face of the Ticket before the court, the description of the offence corresponded to the correct HTA section number for that offence. The agent sought and was granted an adjournment.
[12] On September 25, 2012, Mr. Mirza’s agent returned to argue the appeal. He told the provincial offences appeal court judge that it was unclear when the wrong section number of the HTA had been crossed out and the section number corresponding to failure to stop at a red light had been inserted. He suggested that the change was an improper amendment, made without Mr. Mirza’s knowledge and without compliance with the governing regulations. He further contended that the justice of the peace who convicted Mr. Mirza could not have known when the change was made or whether Mr. Mirza was aware of it. Accordingly, he submitted that the justice of the peace should have quashed the certificate, based on the inconsistency between the description of the offence and the section number on the certificate that had been given to Mr. Mirza.
[13] The appeal judge dismissed the appeal for three reasons:
the original certificate of offence would have been complete and regular had there been no reference to a section number of the HTA;
despite the reference to s. 128, no one would have been misled by the nature of the offence in light of the description “Red Light - Fail to stop” on the certificate;
any change made to the section number on the face of the ticket would not invalidate the ticket or constitute a formal amendment.
ANALYSIS
[14] There is no need to repeat the analysis set out in Farah. I rely on it to explain why I would grant the extension of time and leave to appeal in this case.
[15] Having said that, I note that this case raises an additional issue, relating to the validity of the change made to the face of the Ticket. While the provincial offences appeal court judge found that the type of change made in this case could be made without invalidating the Ticket, the moving party contends that the change was tantamount to an “out of court” amendment made without the knowledge of the accused person. This additional issue also reaches the threshold established by s. 139 of the POA. Both the public interest and the due administration of justice will be served by having it settled.
DISPOSTION
[16] Accordingly, I would grant Mr. Mirza the extension of time and leave to appeal the Decision.
Released: June 3, 2013 (“E.E.G.”)
“E.E. Gillese J.A.”