Her Majesty the Queen v. Jamieson

[Indexed as: R. v. Jamieson]

Ontario Reports

Court of Appeal for Ontario,

MacFarland, Watt and Lauwers JJ.A.

December 19, 2013

118 O.R. (3d) 327 | 2013 ONCA 760

Case Summary

Charter of Rights and Freedoms — Fair and public hearing — Presumption of innocence — Section 9.1(1) of Provincial Offences Act (which deems defendant not to wish to dispute charge where defendant was issued notice of time and place of trial and failed to appear) not violating s. 11(d) of Charter — Notice of intention to appear and notice of trial both clearly setting out consequences of failure to appear — Section 11(d) not imposing requirement to warn defendant again of consequences of failing to appear for trial if trial is adjourned — Canadian Charter of Rights and Freedoms, s. 11(d) — Provincial Offences Act, R.S.O. 1990, c. P.33, s. 9.1(1).

The defendant was charged with two provincial offences. In each case, he signed and returned a notice of intention to appear ("NIA") and received a notice of trial ("NT"). The trials were adjourned several times. In both cases, the defendant failed to appear on the ultimate trial date. Under s. 9.1(1) of the Provincial Offences Act ("POA"), he was deemed not to wish to dispute the charge, since he had been issued a notice of the time and place of trial and had failed to appear. He was convicted of both offences. The Ontario Court of Justice [page328] affirmed the convictions. The defendant appealed, submitting (1) that s. 9.1 of the POA unjustifiably violates s. 11(d) of the Canadian Charter of Rights and Freedoms and (2) that he was denied a fair hearing before the Ontario Court of Justice.

Held, the appeal should be allowed.

The City of Toronto conceded that the defendant did not receive a fair hearing of his appeals. The appeal should be allowed on that basis.

Although the constitutional challenge to the POA provisions was moot because new trials were ordered on other grounds, this situation justified determining the challenge on the merits. Fresh evidence was been placed before the court upon which to determine the significance of the issue and how the provincial offences regime operates. It was likely that this challenge would be made again and it would serve the interest of judicial economy to decide the question.

Both NIA and the later NT provide warnings to defendants about the consequences of failing to appear at the time and place set out in the notice of trial. However, if a defendant appears for a POA trial and it is adjourned for any reason, the defendant does not receive a new notice of trial and is not warned that failure to appear at the subsequent date will result in conviction, which amicus argued violated s. 11(d) of the Charter.

Section 9.1 of the POA does not violate s. 11(d) of the Charter. As noted, both the NIA and the NT clearly warn a defendant that failing to appear at the trial will result in a conviction. Section 11(d) does not impose on the legislature an additional obligation to warn the defendant again of the consequences of failing to appear for trial if the trial is adjourned. A defendant who was convicted without a hearing may, within 15 days of becoming aware of the conviction, apply to a justice to strike out the conviction under s. 11(1) of the POA, thus making it fairly easy for a defendant to revive the case if the failure to appear was not his or her fault. The fresh evidence before the court showed that this provision is frequently invoked and that in 87 per cent of these applications, the defendant was allowed to reopen his case.

R. v. Richard, 1996 185 (SCC), [1996] 3 S.C.R. 525, [1996] S.C.J. No. 43, 140 D.L.R. (4th) 248, 203 N.R. 8, 110 C.C.C. (3d) 385, 3 C.R. (5th) 1, 39 C.R.R. (2d) 219, 23 M.V.R. (3d) 1, 32 W.C.B. (2d) 278, consd

Other cases referred to

Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14, 57 D.L.R. (4th) 231, 92 N.R. 110, [1989] 3 W.W.R. 97, J.E. 89-499, 75 Sask. R. 82, 47 C.C.C. (3d) 1, 33 C.P.C. (2d) 105, 38 C.R.R. 232, 7 W.C.B. (2d) 61; London (City) v. Young (2008), 91 O.R. (3d) 215, [2008] O.J. No. 2118, 2008 ONCA 429, 237 O.A.C. 357, 233 C.C.C. (3d) 10, 75 Admin. L.R. (4th) 280, 65 M.V.R. (5th) 208, 78 W.C.B. (2d) 179

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 11(d)

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 144(18)

Motor Vehicle Act, R.S.N.B. 1973, c. M-17 [as am.], s. 140(1.1)

Provincial Offences Act, R.S.O. 1990, c. P.33, Part I [as am.], ss. 3(2) [as am.], (a) [as am.], (b), 5 [as am.], (3), (5), 5.1 [as am.], 5.2(1), 7(1) [as am.], 8 [as am.], 9(1) [as am.], (2)(a), (b), 9.1 [as am.], (1) [as am.], (2), (3), 11 [as am.], (1) [as am.], (2) [as am.], 35, 135 [as am.], 139 [as am.] [page329]

Provincial Offences Procedure Act, S.N.B. 1987, c. P-22.1, s. 16

Toronto Municipal Code, c. 545, Licensing, s. 545-15(A)(3) [as am.]

Rules and regulations referred to

O. Reg. 108/11 (Provincial Offences Act), s. 3(2)

APPEAL from the decision of Libman J. of the Ontario Court of Justice on June 8, 2010 affirming the conviction entered by Justice of the Peace Hudson of the Ontario Court of Justice on March 11, 2010 and from the decision of Libman J. of the Ontario Court of Justice on December 28, 2011 affirming the conviction entered by Justice of the Peace Frederick of the Ontario Court of Justice on July 21, 2011.

Adam Little, amicus curiae for appellant Bill James Jamieson.

Riun Shandler, for respondent Attorney General for Ontario.

Amanda Ross, for respondent City of Toronto.

The judgment of the court was delivered by

[1] LAUWERS J.A.: — The appellant was convicted of two provincial offences, "Driving Instructor Give Instruction in Restricted Area" and failing to stop at a red light, both of which were entered under s. 9.1(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33 ("POA"); he was "deemed to not wish to dispute the charge", since he had been "issued a notice of the time and place of trial" and failed to appear.

[2] The appellant challenges the constitutionality of s. 9.1 on the basis that it was used against him when he manifestly wanted a trial for each charge. Under s. 11(d) of the Canadian Charter of Rights and Freedoms, he asserts that he was denied the right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".

[3] For the reasons set out below, I would dismiss the appellant's constitutional challenge.

[4] The second ground on which leave to appeal was granted was whether the appellant received a fair hearing on his appeal before the Ontario Court of Justice. The City of Toronto concedes the appellant should have new trials on both matters. I would allow the appeal and order a new trial on each charge on that basis alone.

Overview

[5] The appeal involves the interaction of the provisions of the POA and the Charter. Section 9.1(1) of the POA provides: [page330]

9.1(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.

[6] Under s. 9.1(2), where the defendant does not appear, the presiding justice "shall examine the certificate of offence and shall without a hearing enter a conviction in the defendant's absence and impose a set fine for the offence if the certificate is complete and regular on its face". If the certificate of offence is not found to be regular, the justice is required by s. 9.1(3) to quash the proceeding.

[7] The appellant challenges the constitutionality of s. 9.1 of the POA, under s. 11(d) of the Charter, which provides that "Any person charged with an offence has the right . . . to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". The appellant asserts that the operation of the POA, with respect to the two charges he faced, offended s. 11(d) of the Charter.

The Statutory Scheme

[8] The operation of the statutory scheme is fairly set out in the factum of the amicus, which I have edited and adapted for these reasons. All references are to the POA.

[9] When a defendant is charged by way of a certificate of offence ("certificate"), the officer has two ways in which service can be effected under s. 3(2)(b): by an offence notice, as in this case, or by a summons. A defendant who is served with an offence notice is provided with a number of options about how to deal with the charge, which are set out on the back of the offence notice:

(1) a defendant may file a notice of intention to appear ("NIA") for the purposes of entering a plea and having a trial, under s. 5;

(2) where the offence notice requires the NIA to be filed in person instead of being delivered to the court, the defendant may either (1) file a NIA for the purposes of entering a plea and having a trial; or (2) request a meeting with a prosecutor to discuss the resolution of the offence, under s. 5.1;

(3) a defendant may attend before a justice to plead guilty and make submissions as to the penalty under s. 7(1), where the defendant does not have the option of meeting with a prosecutor under s. 5.1 and does not wish to dispute the charge. [page331] The justice may impose the set fine or such lesser fine as is permitted by law;

(4) a defendant may sign the offence notice, signifying a plea of guilty, and deliver it with the amount of the set fine and all applicable costs and surcharges fixed by the regulations to the court, under s. 8;

(5) a defendant may decide not to respond to the offence notice. If so, then s. 9(1) is engaged, and the defendant is deemed to not wish to dispute the charge. A justice must examine the certificate and where it is found to be "complete and regular on its face", enter a conviction in the defendant's absence and, without a hearing, impose the set fine for the offence under s. 9(2)(a). Where the certificate is not "complete and regular on its face", the justice must quash the proceedings under s. 9(2) (b); and

(6) a defendant who, like the appellant, signs and returns the NIA, subsequently receives a notice of trial ("NT") from a clerk of the court indicating the time and place of the trial. If the defendant fails to appear at the time and place appointed for the trial, then the defendant is deemed, under s. 9.1(1), to not to wish to dispute the charge. A justice must examine the certificate and where it is found to be "complete and regular on its face", enter a conviction in the defendant's absence and, without a hearing, impose the set fine for the offence under s. 9.1(2). Where the certificate is not "complete and regular on its face", the justice must quash the proceedings under under s. 9.1(3).

[10] A defendant who was convicted without a hearing (i.e., under ss. 9(2)(a) or 9.1(2)) may, within 15 days of becoming aware of the conviction, apply to a justice to strike out the conviction under s. 11(1). The circumstances under which a justice can strike it out are limited, under s. 11(2). The justice must be satisfied by the defendant's affidavit that, through no personal fault, the defendant was unable to appear for the hearing or did not receive delivery of a notice or document relating to the offence. A defendant who does not meet the requirements of s. 11(2) can, as a last resort, file an appeal under s. 135 to contest the conviction.

[11] The affidavit of Sheilagh Stewart, Assistant Crown Attorney, provides extensive evidence about the operation of the provincial offences regime. This fresh evidence is summarized in the amicus' factum, which I briefly summarize in turn. [page332]

[12] In 2011, there were 2,008,206 charges disposed of under Part I of the POA. Around 25 per cent of these defendants filed a NIA requesting a trial date, and about 20 per cent, or 93,872, of the defendants requesting a trial were deemed not to dispute the charge and convicted under s. 9.1(2). The majority of these, 80,624 or 86 per cent, occurred where the defendant failed to appear in court for their first trial date. The remaining 13,248 defendants convicted under s. 9.1(2) occurred where the defendant failed to appear in court for a subsequent trial date (from two to 21 trial dates) after the defendant had appeared in court, either personally or by agent, at the time and date specified for the first trial date in the NT, and the matter was adjourned to a subsequent trial date. Finally, in 2011, 64,356 defendants applied for a reopening under s. 11, and 87 per cent were granted.

The Factual Background

[13] The appellant was convicted of two offences. The details are set out below. In both cases, the convicting justice purported to rely on s. 9.1 of the POA. The standard forms in issue are prescribed by O. Reg. 108/11, s. 3(2).

Jamieson #1

[14] On November 10, 2007, the appellant was charged, under s. 3(2)(a) of the POA, with the offence of "Driving Instructor Give Instruction in Restricted Area", contrary to Toronto Municipal Code, c. 545, Licensing, s. 545-15(A)(3). He received a certificate of offence together with an offence notice.

[15] On November 14, 2007, the appellant attended at the POA court and filed the standard form notice of intention to appear ("NIA") under s. 5(3) of the POA, which states:

TAKE NOTICE THAT I Bill Jamieson . . . wish to give notice of my intention to appear in court for the purpose of entering a plea and having a trial respecting the charge set out in the Offence Notice 84576319.

(Emphasis added)

The appellant checked the box on the NIA which indicated that at trial he intended "to challenge the evidence of the provincial offences officer who completed the Certificate of Offence", as permitted by s. 5.2(1) of the POA.

[16] The standard form NIA, which the defendant filed at the court office, contained the following warning: "IF YOU FAIL TO APPEAR AT THE TIME AND PLACE SET FOR YOUR TRIAL, YOU WILL BE DEEMED NOT TO DISPUTE THE CHARGE, AND A CONVICTION MAY BE ENTERED IN YOUR ABSENCE, WITHOUT FURTHER NOTICE". [page333]

[17] On February 1, 2008, the clerk of the court issued a standard form NT to the appellant, under s. 5(5) of the POA. The NT stated that the appellant's trial was scheduled for May 13, 2008, at 3:00 p.m. in courtroom #W2 of the York Civic Centre. The NT warned about the consequence of not appearing:

Your trial will be held on the date and time noted above at the Ontario Court of Justice shown. You and your witnesses should be ready for your trial at that time. If you do not appear, you will be deemed not to dispute the charge and the court may convict you in your absence without further notice.

[18] The appellant sought and was given adjournments on May 13, 2008, January 22, 2009 and July 2, 2009. The prosecutor sought and was given an adjournment on September 22, 2009.

[19] The trial date for Jamieson #1 was set for March 11, 2010. The matter was spoken to at 9:18 a.m. but the appellant was not present. After a review of the certificate of offence, the presiding justice convicted the appellant under s. 9.1 of the POA. The appellant arrived at about 1:30 p.m. There appeared to be some confusion about whether the appellant wrote down the right time, or whether he was given the right time for the trial at the previous attendance.

[20] On March 16, 2010, a justice refused to reopen the matter under s. 11(2) of the POA, which requires a justice to strike out the conviction if "through no fault of the defendant, the defendant was unable to appear".

[21] On March 17, 2010, the appellant appealed Jamieson #1 under s. 135 of the POA. The appeal was heard on June 8, 2010 by the appeal court judge, who dismissed it.

[22] In her reasons for granting leave to appeal, Epstein J.A. summarized what occurred at the June 8, 2010 appeal, at paras. 9-11:

In a brief hearing, the applicant explained that he had missed his trial because he had been told to appear at the wrong time. Crown counsel agreed that the situation was confusing and noted that while it was clear that the matter was to be heard on March 11th, there appeared to be no indication of the time of the hearing or the courtroom in which the proceedings were to take place.

The Ontario Court of Justice judge's disposition of the matter is confusing. While he appears to have rejected the applicant's explanation as to why he missed the hearing scheduled for 9:00 a.m., he went on to question the applicant about his defence to the charge. In response to this questioning, the applicant explained that he was unaware that he was not permitted to give instruction in the restricted area and that, in any event, he was not giving instruction, but merely passing through. [page334]

After a brief exchange, the Ontario Court of Justice judge dismissed the appeal, reasoning as follows:

It is not entirely clear to me as to what occurred on what would have been a fourth trial date for a matter that spanned from 2008 until September of 2009. You say that it wasn't clear to you when the matter should have been called. The information clearly records 1:30.

However, I have now also had the benefit of hearing from you what the proposed merits of this matter were; which involved your not really giving instruction, as you put it, to a student, in an area that turned out to be restricted. You are deemed to be aware of the law. You are a professional driving instructor that went to a professional area. . . . Having regard to the fact that you are asking for what would essentially be a fifth trial date on a matter that, in my view, is devoid of merit here, appeal should be dismissed. Thank you.

[23] Epstein J.A. was satisfied that the appellant met the test for leave to appeal to this court under s. 139 of the POA, which requires that the case involve a question of law alone, and where it is essential to the public interest or for the due administration of justice that leave be granted. Epstein J.A. granted an extension of time to seek leave to appeal and also gave leave to appeal.

Jamieson #2

[24] Jamieson #2 resembles Jamieson #1. The forms were virtually the same except for the offence details. On April 10, 2009, the appellant was charged for failing to stop at a red light, contrary to s. 144(18) of the Highway Traffic Act, R.S.O. 1990, c. H.8. He was given a certificate of offence issued with an offence notice under s. 3(2) of the POA. On April 16, 2009, the appellant attended at the court and filed a NIA which contained the standard warning about the consequences of failing to appear at the trial.

[25] On August 12, 2009, the clerk of the court issued a NT to the appellant, under s. 5(5) of the POA. The NT stated that the appellant's trial was scheduled for April 12, 2010, at 1:30 p.m. in courtroom #W6 at the York Civic Centre, and contained the standard warning about the consequences of failing to appear at the trial.

[26] The appellant got an adjournment on April 12, 2010. On the next trial date, December 22, 2010, the appellant sought an adjournment because his paralegal did not appear. Despite his vociferous protestations in court, the presiding justice deemed him not to dispute the charge.

[27] On December 24, 2010, the appellant appeared before a justice seeking a reopening under s. 11(1) of the POA. The reopening was granted, and under s. 11(2), the appellant's [page335] conviction was struck out and he was provided with a new NT. It stated that the appellant's trial was set for July 21, 2011, at 3:00 p.m. in courtroom #W4. The NT contained the standard warning about the consequences of failing to appear at the trial.

[28] On July 21, 2011, the appellant did not appear but sent a friend to seek an adjournment. The adjournment was refused and the appellant was deemed not to dispute the charge, and was convicted.

[29] The appellant appealed under s. 135 of the POA. The appeal court judge heard the appeal on December 28, 2011. At that time, the appellant said that he was in Montreal visiting a friend who was sick and dying at the time of his last trial date and conviction. The appellant also told the appeal court judge that he had hired another paralegal to attend court, but that the paralegal did not appear for him.

[30] After hearing submissions, the appeal court judge dismissed the appeal, stating:

Mr. Jamieson, I have listened to what you have had to say about this matter and you are effectively asking the public to be put to the expense for a fourth trial date for this charge that goes back to April of 2009. I appreciate that the matter is not totally without fault of other people and in fact, a paralegal that you retained upon not showing up for your second trial date has to my satisfaction, based on the material that you have shown me, not served you well and been dealt with by the Law Society.

However, you were then given a third trial date, given the fault of your paralegal on the second trial date. You are telling me that on the third trial date you had to be absent. You have told me that you retained another paralegal although there is no indication from the paralegal of that or any indication of retainer by you.

In any event, no one is entitled to presume that there would be a fourth trial date and a further adjournment given to them and I am satisfied, having regard to the totality of the circumstances that your right to have a trial has been respected.

You are asking now for a fourth date given your absence from the third date, and I am satisfied that it is not in the public interest to do that.

Accordingly, Mr. Jamieson, your appeal must be dismissed.

[31] Doherty J.A. granted leave to appeal by a handwritten endorsement and required both appeals to be heard at the same time.

Issues on this Appeal

[32] Given the City of Toronto's concession that the appellant did not receive fair hearings on his appeals to the Ontario Court of Justice, the appeal must be allowed on that basis. This would render the constitutional challenge moot. The three factors that [page336] favour hearing a moot appeal are the presence of an adversarial context; the need to promote judicial economy; and the need for the court to be "sensitive to its role as the adjudicative branch in our political framework": Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14, at paras. 31-42. This is a case where this court should hear an appeal even though it is technically moot. The constitutional issue is likely to come up again.

[33] Epstein J.A. framed the issue on which she granted leave to appeal Jamieson #1, at paras. 31-33 of her leave decision:

Section 11(d) of the Charter guarantees the right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". The Supreme Court of Canada, in R. v. Richard, 1996 185 (SCC), [1996] 3 S.C.R. 525, held that while this right does apply to regulatory offences, where a valid waiver of the right can be inferred from the conduct of the accused, he or she may be convicted without a hearing.

In Richard, La Forest J. held that, in assessing the constitutionality of provisions such as s. 9.1 of the POA, the court must consider whether the provision is applicable only in circumstances in which the accused has actually and validly waived the right in question.

By indicating that he wished to contest the ticket, and by attending court on three occasions for that purpose, the applicant clearly demonstrated his desire to exercise his right to a hearing. That s. 9.1 of the POA nevertheless required that he be deemed not to dispute the charge against him raises a question of law regarding the constitutionality of the provision. While applicable only to regulatory offences, a provision that deprives individuals of their Charter-protected right to be presumed innocent until proved guilty beyond a reasonable doubt must be seen to raise an issue essential to the public interest as well as to the due administration of justice.

(Emphasis in original)

[34] The appellant has conceded that the warnings in the NIA and NT are sufficient to fully inform a defendant of the consequences of not appearing at the time and place indicated in the NT. The issue in Jamieson #1 is whether the warnings are also sufficient to fully inform a defendant of the consequences of not appearing at trial where the trial has been adjourned to a future date; such a finding would be necessary in order to permit a justice to infer waiver.

[35] The issue in Jamieson #2 is similar, since the appellant also demonstrated his desire to exercise his right to a hearing, although he received a NT for the trial at which he was ultimately convicted.

Discussion

[36] Amicus points out that where a defendant appears in court for a POA trial and the matter is adjourned for any [page337] reason, the defendant does not receive a new NT or any documentation at all and, particularly, nothing in writing that warns the defendant that failing to appear at the trial on a new trial day will result in a conviction. The incongruity of the outcome is especially pronounced, amicus submits, where, as here, a defendant has manifested an intention to contest the charge.

[37] Amicus argues that the court cannot safely infer, from the operation of s. 9.1(1) of the POA, that the appellant (or a defendant in similar circumstances whose trial is adjourned) "actually (and validly) waived the constitutional provision in question", as required by para. 25 of the Supreme Court's decision in R. v. Richard, 1996 185 (SCC), [1996] 3 S.C.R. 525, [1996] S.C.J. No. 43. Therefore, according to amicus, the Ontario statutory scheme does not comply with s. 11(d) of the Charter because such convictions do not follow "a fair and public hearing by an independent and impartial tribunal". Amicus argues that this breach cannot be justified under s. 1 of the Charter.

[38] The Attorney General argues that the legislative scheme under the POA meets the standard set in Richard, and therefore does not breach s. 11(d) of the Charter. The Attorney General also argues that even if there were a breach, it would be justified under s. 1 of the Charter.

[39] The respondents in Richard were convicted of speeding under the New Brunswick Motor Vehicle Act, R.S.N.B. 1973, c. M-17. They had received tickets and signed the notices of prosecution, but they were convicted of violating s. 140(1.1) of the Motor Vehicle Act after failing both to pay the amount of the fine and to appear in court at the date and time stated on the tickets. This was the effect of s. 16 of the Provincial Offences Procedure Act, S.N.B. 1987, c. P-22.1, which was challenged on the basis of s. 11(d) of the Charter, because the convictions did not follow "a fair and public hearing by an independent and impartial tribunal". Section 16 provided:

16(1) Where the defendant has not paid a fixed penalty before the time stated in the ticket for the payment of the fixed penalty and does not appear in court at the time and place stated in the ticket, the judge shall examine the notice of prosecution and, if the notice of prosecution contains the certificate referred to in subsection (2), the judge shall, subject to subsection (3), convict the defendant and impose a fine in the amount of the fixed penalty set out in the ticket.

(2) The certificate on a notice of prosecution shall be in prescribed form, shall be signed and shall state

(a) that the person signing the certificate delivered personally to the defendant the ticket to which the notice of prosecution corresponds, and [page338]

(b) that the ticket was in prescribed form and was completed in the same manner as the notice of prosecution.

(3) The judge shall not convict the defendant if

(a) the judge has reason to believe that the certificate on the notice of prosecution is inaccurate, or

(b) the notice of prosecution contains a defect and the defect cannot be cured under section 106.

[40] The New Brunswick standard form ticket contained the following warning:

If you do not pay the fixed penalty and do not appear in court at the time and place stated on this ticket you may be convicted of the offence and fined. It is therefore very important for you to appear in court at the time and place stated on this ticket if you wish to dispute the charge.

[41] The Supreme Court upheld the constitutionality of s. 16 of the Provincial Offences Procedure Act. While the New Brunswick provisions are not identical to the Ontario provisions, the main difference being that in s. 9.1 of the POA the accused must take active steps to get a trial, they are essentially equivalent.

[42] In describing the New Brunswick scheme, La Forest J. made what appears to be a categorical statement for assessing constitutionality, at para. 25, on which amicus relies heavily:

In order to deal with such an argument properly, it must be determined whether the impugned statutory provision is applicable only in circumstances in which the accused has actually (and validly) waived the constitutional provision in question.

[43] In my view, amicus takes this statement too literally and out of context. La Forest J.'s analysis shows that, as long as the accused is fully aware of the consequences of failing to act, waiver can be inferred. La Forest J. stated, at para. 8:

Contrary to the opinion expressed by the Court of Queen's Bench and the Court of Appeal, s. 16 of the Act does not infringe s. 11(d) of the Charter. In my view, an accused who fails both to pay the fine indicated in the ticket and to appear in court at the time and place stated therein waives the benefit of s. 11(d) of the Charter, and therefore the right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal", in the same way as if he or she had, for example, decided to plead guilty. Although at common law, the silence of the accused is equivalent to a plea of not guilty rather than to one of guilty and therefore in a criminal context ss. 7 and 11(d) might require any waiver to be made only upon appearance (a question on which I express no opinion), it is entirely different in the context of regulatory offences for which imprisonment is not a possibility and which accordingly do not bring the liberty component of s. 7 into play. In such a context, I am of the view that s. 11(d) of the Charter in no way prevents the legislature from inferring from the accused's failure to act a waiver on his or her part of the right to a fair and public hearing by an independent and impartial tribunal, provided that he [page339] or she is fully aware of the consequences of failing to act and that the procedural scheme in place provides sufficient safeguards to ensure that the conduct of the accused was not due to events over which he or she had no control. That is the case here.

(Emphasis added)

[44] While the Supreme Court accepted, at para. 19, that s. 11(d) of the Charter applies to regulatory offences, such offences are not subject to the same rigorous degree of protection as criminal charges. The statutes in New Brunswick and Ontario rely on this principle.

[45] La Forest J. noted, at para. 22, that a right or freedom conferred by the Charter can be waived, but that "the conduct of the holder of the right or freedom amounting to waiver must be voluntary and that he or she must have full knowledge of the consequences of that waiver" (emphasis in original). He went on to require, at para. 32, that the inference of waiver could only be made where, under the procedural scheme, the defendant is "fully informed of the consequences of failing to act and there are sufficient safeguards to prevent injustices from occurring".

[46] La Forest J. considered the warning language on the New Brunswick ticket, quoted above, to be sufficient, and noted, at para. 33, that due process or a conviction in absentia was adequate, since the trial justice must be "satisfied that the Crown has met the requirements intended to ensure that the accused is fully informed of the consequences of failing to act" (emphasis in original).

[47] In considering the application of these principles to the POA, I note that the NIA option in the offence notice clearly warns a defendant that failing to appear at the trial will result in a conviction. The defendant must exercise the option to appear on the offence notice and deliver it to the court office, so he or she does not retain a copy. But, in order to make an intelligent choice among the options provided, a defendant who chooses the option of appearing, like the appellant, must have read, understood and signed the NIA, which includes the warning.

[48] If, as in this case, the defendant opts to file a NIA, then, for the purpose of entering a plea and having a trial, a NT containing the time and place of the trial is issued. As noted, it contains a second clear warning of the consequences of failing to appear at trial.

[49] In my view, the POA forms are clear. They fully informed the appellant of the consequences of failing to appear at trial, as required by Richard.

[50] La Forest J. also pointed out, at para. 34 of Richard, that the system was designed to make it relatively easy for accused [page340] persons to revive the case if "their failure to appear was not their fault". This was adequate to show the "voluntary nature of the waiver by the accused of the benefit of s. 11(d)" (emphasis in original).

[51] In my view, the appeal routes in the POA do the same. As the fresh evidence shows, the route to reopening under s. 11 is often accessed and is frequently successful, quite apart from the fairly open-ended appeal right in s. 35 of the POA.

[52] In my view, there is no systemic flaw in the scheme under the POA and, particularly, in the operation of s. 9.1, that offends the standard set by the Supreme Court in Richard. The scheme carefully balances the relevant factors, as found by this court in London (City) v. Young (2008), 91 O.R. (3d) 215, [2008] O.J. No. 2118, 2008 ONCA 429, at para. 25.

[53] Section 11(d) of the Charter does not impose on the legislature an additional obligation to warn the defendant again of the consequences of failing to appear for trial if the trial is adjourned. The warnings on the NIA and the NT are clear, and there is nothing on the NT that might lead a defendant to assume that any of the conditions for trial are changed by an adjournment, apart from the date and possibly the time of the trial. The warning on the NT does not disappear. The defendant need only listen to what the justice says when an adjournment is granted about the date and time of the trial; in this case, the appellant was given peremptory warnings on more than one occasion that the matter would proceed at the next trial date, whether or not the appellant was present, and that no further adjournments would be granted. It is reasonable to expect that a defendant like the appellant would use basic common sense and would understand that the initial warnings regarding the consequences of failing to appear also apply to the future trial date.

[54] During oral argument, amicus conceded that his constitutional challenge would be completely answered if the standard form NT had an additional sentence to the following effect: "This warning also applies if your trial is adjourned and you do not appear on the date and at the time to which your trial is adjourned." While the NT might be improved by such an additional warning, it is not, in my view, constitutionally required.

[55] Since there is no violation of s. 11(d) of the Charter, I will not address the parties' arguments regarding s. 1 of the Charter.

[56] I would therefore dismiss the appeal on the constitutional ground put forward by the appellant, but allow the appeal on the ground conceded by the City of Toronto that the [page341] appellant did not receive a fair hearing on his appeal before the Ontario Court of Justice. The appellant should have new trials on both matters.

[57] I am grateful for the thorough work done by the amicus and the Crown in the preparation and argument of this appeal.

Appeal allowed.

End of Document