Court Information

Her Majesty the Queen v Michael Ford

Ontario Court of Justice Toronto, Ontario

Prosecution: A. Cahill Defence: P. Periti, Agent for the Defendant

Before: J. Opalinski J.P.

Heard: February 4, 2013 Delivered: September 19, 2013

Charges

1. The defendant is charged with the offence of speeding contrary to section 128 of the Highway Traffic Act, R.S.O. 1990, c. H.8.

Issue

2. This is a preliminary motion being brought by the agent for the defendant requesting that the court quash the Certificate of Offence on the basis that the additional information contained in the certificate, specifically, reference to 'R79' contained in the code box is prejudicial to the defendant.

Argument of Prosecution

3. The prosecution submits that there is no prejudice to the defendant as there is case law which permits the prosecution to ask the court to amend the Certificate of Offence to reflect the original speed and the court may grant the amendment. Also on the face of the certificate the code box may contain the 'R', which in and of itself would put the trier of fact on notice that there has been a 'reduction' in the speed. In the case at bar, what has been added in the code box to the letter 'R' is the number '79'.

Argument of Defence Agent

4. The agent for the defendant argues that the court should quash the Certificate of Offence on the grounds that by including the 'R79' on the face of the certificate, the defendant has suffered prejudice by the appearance of a lost presumption of innocence as the trial Justice has been made aware of the original speed.

Law

5. The issue of additional material on the face of a certificate was reviewed by the courts in the case of The Regional Municipality of York v. Tammy Ward, [2006] O.J. No. 5626. Justice Boyko granted an Order of Certiorari citing three reasons for granting the application.

6. Firstly, the Justice of the Peace erred by not giving reasons for her decision and as such the decision was 'on its face' not judicially considered. Secondly, 'there is no legal requirement or case precedent that a code such as was used amounts to defacing a charging document that warrants it being struck'. Thirdly, 'there is no prejudice to the person being charged from making full answer and defence' if the document stands as it is.

7. Consequently, the Ontario Superior Court of Justice found that the filling in of a box with a particular code did not deface the certificate and was not prejudicial to the person being charged in making a full answer and defence to the charge and for that reason the Certificate of Offence should not have been struck or quashed.

Analysis

8. As in the decision of The Regional Municipality of York v. Tammy Ward, supra, this court finds that the inclusion of 'R79' in the box marked 'code' does not prejudice the defendant by restricting him from making full answer and defence to the charge nor is either his presumption of innocence lost or the appearance of presumption lost.

9. The insertion of the 'R79' in the 'code' box does not deface the charging document so as to render it void.

Disposition

10. For these reasons, the court finds that the Certificate of Offence is complete and regular on its face, and that there is no prejudice to the defendant's right to make full answer and defence to the charge by the inclusion of 'R79' on the Certificate of Offence. Accordingly, the defendant's application to quash the Certificate of Offence is denied.

Dated the 19th day of September, 2013, at the City of Toronto

Joanna T. Opalinski Joanna T. Opalinski J.P.