COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hicks, 2014 ONCA 756

DATE: 20141029

DOCKET: M44141

Strathy C.J.O. (In Chambers)

BETWEEN

Her Majesty the Queen and The Corporation of the City of London

Respondents

and

Ryan Hicks

Applicant

Counsel:

Ryan Hicks, in person

Emily Graham, amicus curiae for the applicant

Jennifer Smout and Kelly Nenniger, for the respondents

Heard: October 15, 2014

Motion for an order granting leave to appeal from the judgment of Justice G. Pockele of the Ontario Court of Justice dated July 17, 2014, dismissing the appeal from the conviction entered by the Justice of the Peace dated February 18, 2014.

ENDORSEMENT

[1] The applicant was convicted of speeding under s. 128 of the Highway Traffic Act, R.S.O. 1990, c. H.8. His appeal to the Ontario Court of Justice was dismissed. He seeks leave to appeal to this court pursuant to s. 139 of the Provincial Offences Act, R.S.O. 1990, c. P.33.

Facts

[2] The facts in this case are not disputed. On the date of the offence, January 30, 2014, the applicant was served with an Offence Notice (Form 3).

[3] The Offence Notice stated: “You have 15 days from the day you receive this notice to choose one of the options on the back of the notice.” The back of the notice stated: “If you do not exercise one of the following options within 15 days of receiving this notice, you will be deemed not to dispute the charge and a justice may enter a conviction against you.” It then set out three “options”:

• Option 1 was to plead guilty and pay the amount of the fine.

• Option 2 was to plead guilty and make submissions as to the penalty. It was stated that Option 2 required attendance at the designated court office on certain days and between certain hours indicated on the notice.

• Option 3 was to indicate an intention to appear in court to enter a plea of not guilty. The form showed the location of the court office, but provided no instructions, if Option 3 was exercised, about how the Offence Notice was to be delivered to the court office or how the time for delivery of the notice was calculated.

[4] On February 13, 2014, the applicant completed the back of the notice, indicating he wanted to exercise Option 3 to have a trial and mailed the notice to the designated court office.

[5] The applicant’s notice was received on February 18, but a conviction was entered by a Justice of the Peace on that date. On February 28, 2014, the applicant received a letter dated February 24, 2013, which stated “Your request for a trial date was received after the fifteen day period had lapsed and a conviction has been registered under section 9 or section 19(1) of the Provincial Offences Act.”

Decision Below

[6] The applicant appealed his conviction. The central issue concerned the calculation of the period of time for him to file his notice of intention to appear in court, before he could be “deemed not to dispute” the charge under s. 9(1)(a) of the POA and a conviction could be entered under s. 9(2)(a) of the POA.

[7] The applicant argued his conviction was premature based on an application of Rule 4 of the Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200 (“Regulation 200”).

[8] The Provincial Offences Appeal Judge rejected the applicability of Rule 4 of Regulation 200 and found the applicant was under a strict obligation to ensure his “exercise of option” was received within 15 days. He drew a distinction between delivering a “notice” as contemplated in Rule 4 and “exercising an option” as stipulated on the Offence Notice. As a result, he found that a person issued a speeding ticket is strictly responsible for effecting delivery of the “exercise of option” within 15 days. He summarized his opinion as follows:

I take the position that if you have a ticket and you want to exercise your option within 15 days, then you must exercise your option within 15 days by making delivery whatever it takes, of the document which exercises your option. It must be emphatically and actively exercised within 15 days. It is not to be extended by those provisions relating to notices to be given or delivered. The word “exercising an option” is a different terminology and the time period is strict. It has to be strict having regard to the necessity of effectively administering a court which is already subject of gross delay. Accordingly, the appeal will be dismissed.

[9] Since he concluded Rule 4 of Regulation 200 was inapplicable, he did not proceed to consider how it would impact the calculation of the notice period.

Discussion

[10] The applicant submits that the correct application of Rule 4 of Regulation 200 means his notice was filed on time.

[11] Section 9(1)(a) of the POA states:

9. (1) A defendant is deemed to not wish to dispute the charge where,

(a) at least 15 days have elapsed after the defendant was served with the offence notice and the defendant did not give notice of intention to appear under section 5, did not request a meeting with the prosecutor in accordance with section 5.1 and did not plead guilty under section 7 or 8 [Emphasis added.];

[12] Rule 4 of Regulation 200 states:

4. The following apply to the calculation of a period of time prescribed by the Act, section 205.7 or 205.19 of the Highway Traffic Act, these rules or an order of a court:

5. The time shall be calculated by excluding the first day and including the last day of the period.

6. Where a period of less than six days is prescribed, a Saturday or holiday shall not be reckoned.

7. Where the last day of the period of time falls on a Saturday or a holiday, the day next following that is not a Saturday or a holiday shall be deemed to be the last day of the period.

8. Where the days are expressed to be clear days or where the term “at least” is added, the time shall be calculated by excluding both the first day and the last day of the period.

[13] Section 9(1)(a) of the POA requires that “at least” 15 days must have elapsed between the service of the notice and the date of conviction. Rule 4.4 of Regulation 200 means that the time is calculated by excluding the first and last days of the period. The applicant says that in his case, the period of “at least” 15 days began on and included January 31, and ended on and included February 15, 2014.

[14] February 15, 2014 was a Saturday. As a result, Rule 4.3 of Regulation 200 becomes important, which designates that if the last day of the period falls on a “Saturday or a holiday”, then the last day is deemed to be the next day that is not a Saturday or a holiday. Under s. 2(3) of Rules of the Ontario Court (Provincial Division) in Appeals Under Section 135 of the Provincial Offences Act, O. Reg. 722/94, the definition of “holiday” in the POA includes any Saturday or Sunday and the Family Day holiday, which in 2014 was February 17.

[15] To summarize, it is arguable that the period of “at least” 15 days under s. 9(1)(a) should have excluded January 30, 2014 – the day of service, and February 14 – the 15th day (Rule 4.4, Regulation 200). February 15, 16 and 17 should have also been excluded from the calculation of “at least 15 days” from the date of service (Rule 4.3, Regulation 200). Accordingly, the last day for delivery of the Offence Notice was arguably Tuesday, February 18, 2014 – the day of the applicant’s conviction.

[16] It appears, therefore, that the applicant’s appeal on this ground may have some merit.

[17] There is another potential ground of appeal based on the applicant’s fundamental complaint that it was unfair to convict him when he believed he was complying with the notice he received. This raises the issue of the sufficiency of the notice.

[18] Section 5(2)(b) of the POA provides:

Notice of intention to appear in offence notice

(2) If the offence notice includes a part with a notice of intention to appear, the defendant must give notice of intention to appear by,

(a) completing the notice of intention to appear part of the offence notice; and

(b) delivering the offence notice to the court office specified in it in the manner provided in the offence notice. [Emphasis added.]

[19] The Offence Notice received by the applicant, which appears to have been a standard form, did not specify the manner of delivery, other than to identify the address of the court office. Nor did it contain any information concerning how the 15 day notice period would be calculated. Arguably, the Offence Notice did not comply with the statute because it failed to describe the manner in which the notice was to be delivered, if it was sent by mail.

[20] Section 139 of the POA provides:

139. (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.

[21] This test is identical to the test under s. 131 of the POA and jurisprudence under that section is equally applicable. In Vaughan (City) v. Antorisa Investments Ltd., 2012 ONCA 586, [2012] O.J. No. 4200, Gillese J.A. observed at para. 8:

The law on s. 131 is well-settled: see, for example, R. v. Castonguay Blasting Ltd., 2011 ONCA 292 (in Chambers), at paras. 14-15. In order for the Applicants to obtain leave, they must establish: (i) special grounds; (ii) on a question of law alone; and (iii) that, in the particular circumstances of this case, it is essential in the public interest or for the due administration of justice that leave be granted. What constitutes "special grounds" in s. 131(1) is informed by the requirement in s. 131(2) that it is essential in the public interest or for the due administration of justice that leave be granted. The threshold for granting leave is very high.

[22] In my view, this appeal raises issues concerning the application of Regulation 200 and the calculation of the time limits thereunder, and the compliance of a prescribed form with the Act. These are questions of law involving a statute of general application in the prosecution of provincial offences that have potential significance for the rights of motorists throughout the province. They appear to be questions of first impression.

[23] Leave to appeal is therefore granted on the two grounds discussed above. It should be noted that the applicant raised an additional ground of appeal concerning the calculation of the notice period based on Rule 5 of Regulation 200. It states a notice delivered by mail shall “be deemed to be given or delivered on the seventh day following the day on which it was mailed.” He submitted Rule 5 extends the 15 day notice period under s. 9(1)(a) by an additional seven days.

[24] I am not persuaded this submission has any merit. Based on its plain and unambiguous meaning, Rule 5 merely allows individuals to safely assume the receipt date of notices delivered by mail. It does not affect the notice deadline. I would deny leave to appeal on this ground.

[25] Pursuant to s. 112 of the POA, I order the applicant’s conviction stayed pending his appeal and the disposition thereof.

[26] The applicant’s request that his appeal be heard by way of teleconference may be raised by letter addressed to the Registrar, after the perfection of the appeal.

[27] Amicus provided able assistance in this leave application. I have no doubt the appeal panel would also appreciate the assistance of amicus from Pro Bono Law Ontario to assist at the hearing of the appeal.

“G.R. Strathy C.J.O.”