Court File and Parties

Court File No.: Central East - Newmarket 4911-00-5659031Z-00 Date: 2014-05-16 Ontario Court of Justice

Between: The Regional Municipality of York Respondent

— And —

Cody Perza Applicant

Before: Justice P.N. Bourque

Judgment

Released on May 16, 2014

Mark A.J. McDonnell ......................................................... for the Regional Prosecutor

Edward Disenhouse ........................................................................................ Agent for Applicant

BOURQUE J.:

Overview

[1] The Applicant was stopped by a police officer on July 16, 2012. He was issued two tickets for failure to surrender his licence and failure to have "two plates". Both offences were proceeded with under Part I of the Provincial Offences Act. The Applicant states (in his Affidavit filed on this application) that he asked for an Early Resolution Meeting and it was scheduled for Provincial Offences Court on September 13, 2012. The Applicant did not attend that meeting (and provides no reason for his non-attendance) but in any event, both of these offence notices were quashed by the Justice of the Peace as on their face they were defective in not containing the name of the municipality in which these offences occurred.

[2] The story becomes more complex because of the following factor. A further offence notice was generated by the police officer.

[3] The offence notice as generated indicates on its face that it was generated at the scene of the offence and was served on the Applicant at the same time. The Applicant in his Affidavit states that he never got notice of that "second" notice. The Crown did not seek to cross-examine the Applicant upon his Affidavit and the Crown did not produce the officer to give evidence on this hearing. Based on the evidence before me, that the officer clearly made an error on the first written tickets, and the applicant has sworn an Affidavit stating he never received the second notice, I make a finding of fact that he never got notice of the second "ticket".

[4] The second "ticket" indicates on its face that the Applicant was found guilty of that offence in absentia and fined $135.00 on August 30, 2012. The Applicant in his Affidavit states that he did not get notice of this conviction and fine. I note in his original Affidavit filed to reopen the matter in December, 2012, he stated that "I was out of town and have moved addresses". The ticket indicates that the Applicant's driver's licence was suspended on November 20, 2012 for failure to pay his fine.

[5] On December 1, 2012, the Defendant was stopped by the police and given a ticket for driving with a suspended licence. He paid the fine for the conviction for the second "ticket" and also had to pay a fee of $150.00 to get his licence reinstated.

[6] He retained a paralegal and attended in court on August 21, 2013 and the charge of driving under suspension was withdrawn. He then launched an appeal to the absentia conviction for the second "ticket" and on December 20, 2013, it came before me in Provincial Offences Appeal Court and by consent, the appeal was allowed, a new trial took place before me and the Crown withdrew the charge.

[7] At that hearing, the Applicant wished me to make an order for costs for the cost of the reinstatement of his driver's licence and also his fees in the amount of $500.00.

[8] As a result of discussions, the Applicant wished to include a claim for costs under the Charter of Rights and Freedoms and the matter was adjourned to today's date for a full hearing on the issue of costs.

Do I have the jurisdiction to make an award of costs after the charge has been withdrawn?

[9] The Crown argues that this matter can be settled very succinctly by the fact that once the charge is withdrawn, notwithstanding the fact that the issue of costs was before the court at the time of the withdrawal, I cannot now deal with the issue. I must admit it seems a little counter intuitive that when the Crown does the right thing and prevents further damages to an accused person by issuing a withdrawal, I am also barred from dealing with any costs which may be appropriate up to that time. The Crown concedes that I can deal with Charter issues in the course of POA prosecutions. The Crown concedes that an award of costs in the appropriate case can be granted for a Charter breach.

[10] The Crown does not however concede that an order for costs can be made on an appeal of a Part I offence pursuant only to the provisions of the Provincial Offences Act.

[11] R. v. Fach is cited by the Crown as the case that binds me with the proposition that once a charge is withdrawn, there is no ability to deal with issues of costs, even if it is otherwise an appropriate case for an award of costs. I note that Fach deals with a case under the Criminal Code and not the Provincial Offences Act. However, it states the principle in a very clear fashion:

The charges against the respondent were withdrawn by the Crown prior to arraignment and plea. Absent abuse or some other flagrant impropriety on the part of the Crown withdrawing the charges, neither of which was alleged here, the summary conviction judge had no jurisdiction to hold a freestanding hearing on the issue of costs arising from alleged breaches of the respondent's Charter rights.

Strong policy reasons support these conclusions. The resources of the summary conviction court are extremely limited and the court is already overburdened If the respondent's argument were to succeed, it would mean that whenever the Crown chooses to withdraw charges, an accused could, simply by giving advance notice of alleged Charter breaches and a request for costs, tie up the courts for days and weeks on end litigating Charter breaches and costs issues essentially in a vacuum. there no longer being an accused or any outstanding charges before the court.

[12] The Court suggests an alternative forum for any potential remedy by stating that "There is nothing to prevent him from commencing a civil action for his costs, and perhaps other damages arising from the alleged breaches of his Charter rights...".

[13] While I will proceed to review other issues raised in this matter, I must say that I feel bound by this decision, and I therefore would dismiss this application for costs on this issue alone.

[14] In doing so, I find in this matter that there is no evidence of direct malfeasance on the part of the investigating officer or any court authorities or the Crown. It seems to me a matter that through some negligence, it fell through the cracks and two certificates of offence proceeded separately through the system for the one offence. In that vein, even if I were to find a breach of the Defendant's section 7 rights (more on that below), I would have great difficulty in concluding that this was the type of case that I would impose a remedy of costs. As I have found negligence, and not misfeasance, as the Crown moved quickly to offer a withdrawal when it was apprised of the situation, it would be difficult to grant the remedy, if available. It also goes without saying that the negligence here did not amount to "abuse or flagrant impropriety".

[15] Again, while it is not necessary for me to decide this issue, I believe that, in this case, Section 7 is not engaged. As found in R. v. Pontes, where the offence does not include a risk of imprisonment (as there is not in this Part I offence) then "the statutory provision will not offend section 7 of the Charter.". The Applicant argues that the second ticket should properly be considered a Part III matter and thus bring into the type of offences for which prison is possible. This offence, even if under Part III, is not an offence for which prison is a possible disposition.

[16] With regard to section 11(d) of the Charter, the Applicant argues that as they were not informed of the offence, the conviction eventually registered for non-appearance offends the presumption of innocence. Surely it is a not uncommon occurrence for persons in these regulatory offence schemes to be administratively convicted if they do not appear. There are many circumstances surely where failure of the mails or some other government negligence led to the conviction. As pointed out in R. v. Richard, where there are procedures to reopen cases where failure to appear was not their fault, then amelioration can be granted. In our case, the process was used by the Applicant but not granted.

Conclusion

[17] I conclude that the Applicant has suffered extra costs because of some negligence in the actions of the police officer or the court system. However, I find that where the Crown has withdrawn the charge before me, I am not in a position to subsequently deal with the issue of costs. I am also of the opinion that taking the Applicant's case at its highest (some degree of negligence on the part of the police or court) that this would not be an appropriate case for costs, as this was not a matter of abuse or flagrant impropriety. The section 7 and 11(d) remedies are in any event not available.

[18] I must say I have some sympathy for the Applicant, but short of his bringing an action in civil court, I do not see how I can provide a remedy.

[19] The application for costs is dismissed.

Signed: "Justice P.N. Bourque"

Released: May 16, 2014