Court Information

Ontario Court of Justice Central West Region Brampton, Ontario

Parties

Between:

CITY OF MISSISSAUGA

-and-

ALEXIS RODRIGUES

Reasons for Judgment

Duncan J.

Facts and Background

[1] This is an appeal from conviction for the offence of "No brake lights" contrary to section 62(29) of the HTA. The sole ground of appeal is that the conviction, entered pursuant to section 9 of the Provincial Offences Act (fail to appear – deemed not to dispute) should not have been made because the wrong set fine was specified on the face of the ticket.

[2] The ticket was issued on May 24, 2013. Eventually, a resolution meeting with the prosecutor was requested and scheduled for October 23, 2013 at 1 pm. At that time a licensed paralegal, Mr. Eminovski, attended, met with the prosecutor and, I am told, pointed out what he contended to be an incorrect specification of the set fine. The prosecutor did not agree.

[3] The disagreement arose because the law specifies two set fines – one for commercial vehicles and a lower one for non-commercial vehicles. The certificate in question specified the lower set fine yet ticked the box that specified that the vehicle was a commercial vehicle. The prosecutor's position, apparently, was that such specification was not part of the description of the offence.

[4] The matter was then called in Court before the presiding Justice of the Peace at 2:15. The paralegal was present and the following exchange took place:

Ms Craig (prosecutor): The last matter Your Worship, is number 21 Alexis Rodrigues. I understand Mr. Eminovski is present.

The Court: All right. Thank you.

Mr Eminovski: Not attorning to the jurisdiction of the court.

Ms Craig: Well sir, you're either present or you're not present.

Mr. Eminovski: I am not present.

Ms Craig: Seek a default conviction.

[5] Mr. Eminovski left the Court, apparently immediately after saying he was not present. The proceeding continued, ultimately to a default conviction. Before the conviction was entered there was an examination of whether the certificate was regular on its face, including discussion of the applicable set fine, which was determined to be correctly stated on the certificate as $85. The ticking of the box for "commercial vehicle" and the different set fine for commercial vehicles was not directly mentioned by either the prosecutor or the court. The endorsement of the conviction specified that the conviction was made for "fail to attend with prosecutor section 9(1)(b)".

Legal Framework

[6] The proceedings were governed by POA section 9:

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;

(b) the defendant requested a meeting with the prosecutor in accordance with section 5.1 but did not attend the scheduled meeting with the prosecutor; or

(c) the defendant reached an agreement with the prosecutor under subsection 5.1 (7) but did not appear at a sentencing hearing with a justice under subsection 5.1 (8). 2009, c. 33, Sched. 4, s. 1 (13).

(2) Where a defendant is deemed to not wish to dispute the charge, a justice shall examine the certificate of offence and shall,

(a) where the certificate of offence is complete and regular on its face, enter a conviction in the defendant's absence and without a hearing and impose the set fine for the offence; or

(b) where the certificate of offence is not complete and regular on its face, quash the proceeding. 2009, c. 33, Sched. 4, s. 1 (13).

Was the certificate complete and regular on its face?

[7] The Court of Appeal in City of London v. Young (2008) 90 OR (3d) 215 determined that a certificate of offence that omits or incorrectly specifies the set fine is not complete and regular on its face and cannot support a conviction under the POA default procedure.

[8] In my view the appellant is correct in his contention that the certificate of offence in this case specified the wrong set fine. The offence particularized a commercial vehicle and the set fine should have reflected that and should have been $200. Notwithstanding that the error favoured the defendant, it resulted in a certificate that was not regular on its face and could not support a conviction. It should have been quashed.

Procedural Observations

[9] While the above is sufficient to deal with this appeal, I will venture some comments about what occurred in this case and suggest a procedure that may provide a more efficient way of dealing with cases that are before the court for default proceedings.

[10] First, it may well be argued that this was not a situation where there was non-attendance at the meeting with the prosecutor as required to provide default conviction jurisdiction under subparagraph (b). Strictly speaking, the agent was at the meeting itself. However, in my opinion that strict interpretation should be avoided and instead the meeting referred to should be interpreted to include the court attendance that ensues immediately following the meeting itself. If it were otherwise, defendants or their agents could attend the meeting, reach no agreement and then leave, thereby frustrating the default conviction procedures under section 9.

[11] Next, it is understandable that the paralegal Mr. Eminovski left when he did. He had a valid or at least very arguable "Young" defence - but it was only available in default proceedings. Accordingly he followed what seems to be a common practice of waiting to see if a conviction is entered and then launching an appeal. This approach is referred to with at least tacit approval in Young (para 83-4). In fact it may have been the only approach available at the time of Young when, according to the judgment (para 20), default proceedings took place in the judge's office with no one else present. But since then the Act has changed and the procedure, at least in this jurisdiction, is for default proceedings to take place in open court, on the record with a prosecutor usually present and the opportunity for the defendant or his representative to be present as well. Under these circumstances, is there a better way to deal with this?

[12] I think there is. First, it seems to me to be an unfortunate waste of everyone's time and court resources to require a simple case with an obvious defect to have to go through two levels of court before the result dictated by law is achieved. Further, generally speaking, I think it is inappropriate for an officer of the court who is aware that a court is about to make an error, to fail to bring his concern to the court's attention. He should not be required to lie in the weeds clutching his notice of appeal.

[13] As a general rule, the criminal law does not recognize such a thing as a conditional appearance or an appearance under protest: R v. Gougen (1980) 55 CCC (2d) 218 at 236 (Ont CA). But the procedure under section 9 is a unique situation, itself unknown to criminal or quasi-criminal procedure. I can think of no downside – and an upside of eliminating the concerns mentioned above - to permitting a defendant or his representative to make a conditional appearance, without thereby being considered to be present, in this narrow and unique situation.

[14] To be clear, the very summary nature of section 9 proceedings is not to be altered. Rather this suggested minor procedural adjustment would simply provide an opportunity for one having some knowledge of the particular certificate of offence to provide information to the court or point out what otherwise might be overlooked. It would not be a matter for argument nor would it trigger otherwise inapplicable amending powers. Once so informed, the court would make its determination to convict or quash as the case may be. Disagreement with that decision would be addressed on appeal.

Disposition

[15] The appeal is allowed. The conviction is quashed.

December 16, 2013

B Duncan J.

B Eminovski for the appellant

R Craig for the Respondent

Footnotes

[1] Set fine amounts are determined by the Chief Justice: see POA section 1. The list of set fines can be found online at http://www.ontariocourts.ca/ocj/how-do-i/set-fines/set-fines-i/schedule-43/. The set fine for the offence under section 62(29), no brake lights, is $85 for non-commercial vehicles but $200 for commercial vehicles.

[2] City of Sudbury v. Duquette 2010 ONCJ 110 at para 28.