COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Farah, 2015 ONCA 302

DATE: 20150504

DOCKET: C57186 & C57187

Watt, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdullahi Farah and Muhammad Mirza

Appellants

Adam Little, for the appellants

Amanda Ross, for the respondent

Heard and released orally: April 29, 2015

On appeal from the decisions of Justice Eric N. Libman of the Ontario Court of Justice, sitting as a Provincial Offences Appeal Court, on September 11, 2012 and September 25, 2012 and dismissing the appeals from the in absentia convictions of the appellants entered on April 25, 2012 and December 16, 2011 in Provincial Offences Court.

ENDORSEMENT

[1] When a defendant, served with an offence notice under Part I of the Provincial Offences Act, is deemed not to dispute the charge, a justice is required to examine the certificate of offence. The purpose of this judicial examination of the certificate of offence is to determine its facial completeness and regularity.

[2] Where the justice determines that the certificate of offence is complete and regular on its face, the Act requires the justice to enter a conviction in the defendant’s absence and impose the set fine for the offence. Where the justice determines that the certificate of offence is not complete and regular on its face, the justice is required to quash the proceedings.

[3] In accordance with leave granted earlier by a Judge of this court, two appeals that raise a common issue, albeit on somewhat different facts, have been heard together. In each case, there is a discrepancy between the short-form description of the Highway Traffic Act offence the appellant is alleged to have committed and the section number of the Highway Traffic Act the appellant is alleged to have contravened. These discrepancies appear on the face of the certificates of offence.

[4] In one case, Mirza, the section number originally entered has been struck out and a new and correct section number entered. The change appears to have been initialled. It is a reasonable inference that the amendment or change was made after the appellant was served with a notice of offence and before the scheduled trial date.

[5] In neither case, did the appellant appear for trial. Convictions were entered on the basis that:

i. the defendant, by failing to appear, or to give notice of an intention to appear, was deemed not to dispute the charge; and

ii. the justice concluded that the certificates of offence were complete and regular on their face.

[6] Both defendants appealed to the Ontario Court of Justice. The same judge heard both appeals. He concluded that the justices of the peace were correct in not quashing the proceedings. The certificates, the judge said, were complete and regular on their face. The offence section was not an essential element of the offence, which was properly described by insertion of the short-form description. Both appeals were dismissed.

[7] In this court, the respondent acknowledges that both appeals should be allowed. That concession, limited to the circumstances of these appeals, is that the certificates of offence, while complete, were not “regular” on their face as required by ss. 9(2) and 9.1(2) of the Provincial Offences Act.

[8] We agree that this is so, and that this lack of regularity required the justice in each case to quash the proceedings.

[9] Based on the particular facts of this case, and with the consent of the respondent, the appeals are allowed and the certificates of offence are quashed.

“David Watt J.A.”

“S.E. Pepall J.A.”

“M.L. Benotto J.A.”