Court File and Parties

Court File No.: Toronto Region, Old City Hall Court Ontario Court of Justice

Between:

Her Majesty the Queen ex rel GO Transit/Metrolinx Appellant

— and —

Courtney Allen for the Defendant/Respondent [1]

Heard: January 21, 2016

Decision

K.J. Caldwell J.:

[1] Go Transit (Metrolinx) is appealing the dismissal of the charge that Mr. Allen travelled without a valid ticket contrary to Metrolinx By-law No. 2, section 2.2.

[2] I find that the Justice of the Peace made an error in law and made a finding not supported by the evidence. I therefore allow the appeal, set aside the dismissal of the charge and order that a conviction be entered.

Background

[3] On December 14, 2014, Provincial Offences Officer K. Netzke served Mr. Courtney Allen with a certificate of offence stating that Mr. Allen had travelled without a ticket on a train travelling on the Lakeshore West Rail contrary to Metrolinx By-law No. 2, section 2.2. Further, the officer issued a summons requiring Mr. Allen to appear in court on March 13, 2015.

[4] Mr. Allen failed to appear on that date. An ex-parte trial was scheduled for June 12, 2015. On that date Mr. Allen again failed to appear and the matter proceeded ex-parte pursuant to section 54(1)(a) of the Provincial Offences Act.

[5] The prosecution's case rested entirely on the certificate of offence that was filed pursuant to section 48.1 of the Provincial Offences Act.

[6] The Justice of the Peace found that the prosecutor had not proven the essential element of the accused's identification and thus dismissed the charge.

The Issue

[7] GO Transit appeals that finding, contending that it is unreasonable given the evidence and an error in law given section 48.1.

[8] The relevant portions of section 48.1 read as follows:

Admissibility of certified evidence

(2) The following are admissible in evidence as proof of the facts certified in it, in the absence of evidence to the contrary:

1. A certified statement in a certificate of offence….

— and —

Onus

(4) For greater certainty, this section does not remove the onus on the prosecution to prove its case beyond a reasonable doubt.

No oral evidence

(5) A provincial offences officer who provides certified evidence referred to in subsection (2) in respect of a proceeding shall not be required to attend to give evidence at trial, except as provided under subsection 49 (4).

[9] The provincial offences officer made a certified statement in the certificate stating that he believed that Mr. Allen committed the listed offence, and he included, among other details, Mr. Allen's birthdate and address. There is a place for a driver's license to be included and that was left blank. There is no other place on the certificate for other forms of identification. I note that it is not surprising that no driver's license was included given that this wasn't a driving offence.

[10] The transcript reveals that the Justice of the Peace was quite disturbed about the missing license or other details indicating how the provincial offences officer verified identity. She speculated that the person charged might not have been Mr. Allen and may have provided a false name. She pointed to section 48.1(4), noting that the burden of proof remained on the prosecution, and dismissed the charge, holding that she was not satisfied that it had been proven beyond a reasonable doubt that Mr. Allen was the identity of the person stopped.

[11] I understand and empathize with the Justice's motivations. Undoubtedly she was concerned that a conviction would be registered against the wrong individual. The difficulty, however, is that proceeding in this manner totally nullifies the powers created by section 48.1. Essentially the prosecution never would be able to prove any offence via section 48.1 unless the individual charged both possessed a driver's license and agreed to show the license to the officer. A plain reading of the section makes it clear that this was not the intent of the legislators in enacting this legislation.

[12] I agree with the Justice that the burden still rests upon the prosecution to prove the offence beyond a reasonable doubt – that fact is made clear by section 48.1(4). This sub-section must be read, however, in conjunction with section 48.1(2). That sub-section states that a certified statement in the certificate of offence is proof of the facts certified in it in absence of evidence to the contrary.

[13] In this case, the certificate of offence included the statement that Mr. Allen was the person stopped. There was no evidence to the contrary. As a result, there was no evidentiary basis to conclude that anyone other than Mr. Allen had been observed committing the specified offence. The only reasonable conclusion, in the circumstances, was that the person found committing the offence was Mr. Allen.

[14] I therefore allow the appeal, set aside the dismissal of the charge and order that a conviction be entered.

Released: February 25, 2016

Signed: K.J. Caldwell J.

Footnote

[1] No one appeared for the respondent Courtney Allen. I found, however, that the respondent was properly notified by mail with the notice of appeal and the time and place of the appeal hearing pursuant to the Provincial Offences Act, Ont. Reg. 722/94, sections 3 and 6(3).