Ontario Court of Justice
Date: 2016-06-14
Court File No.: Central East - Newmarket 4911-999-00-4541833B-00
In the Matter of an Appeal
Under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended
Between:
Her Majesty the Queen Respondent
— And —
Enrique Romero Appellant
Before: Justice D.S. Rose
Heard on: June 10, 2016
Reasons for Judgment released on: June 14, 2016
Counsel:
- Lorinda Angus, counsel for the prosecution
- Benito Zappia, agent for the defendant Enrique Romero
On appeal from: Conviction by a Justice of the Peace, June 2, 2015
ROSE J.:
[1] On June 10, 2016 I allowed the Appeal against conviction and quashed the Certificate of Offence with brief oral reasons. These are those reasons.
[2] The Appellant was charged on two offences on December 8, 2014. Process was initiated by way of Certificate of Offences under Part 1 of the Provincial Offences Act ("POA"). One of the offences charged the Appellant with an offence described as "Fail to Move into another Lane for Emergency Vehicle". Also on the face of the Certificate of Offence was the Highway Traffic Act ("HTA") Section described as 159.1(2). The total amount payable for the offence on the face of the Certificate was described as being $500.00. It is conceded by the Respondent that s. 159.1(2) of the HTA had been repealed in 2009 and that on December 8, 2014 the HTA contained no such provision. There is a valid provision in the HTA which refers to the Offence of Fail to Move into another Lane for Emergency Vehicle, namely s. 159(3). The set fine for that provision is $400.00. With victim fine surcharges and costs, the total amount payable for an offence under s. 159(3) would be $490.00.
[3] The Appellant requested a trial date but failed to appear. That caused the Certificate of Offence to be placed before Justice of the Peace to review under s. 9.1 of the POA, who entered a conviction for the offence on June 2, 2015.
[4] The Appellant argues that the Certificate should have been quashed by the Justice of the Peace because it was not regular on its face under s. 9.1 of the POA. He asks me to quash the conviction on that basis.
[5] The Respondent concedes, quite fairly, that the Certificate of Offence was not regular on its face because the HTA provision was not described properly. In its factum it concedes that the Appeal be allowed and the conviction quashed.
[6] There is a plethora of jurisprudence considering convictions arising from Certificates of Offence which are not regular on their face. My brother Justice Bovard provides an extremely helpful summary of this line of authority in R. v. Stuparayk, 2009 ONCJ 394, where he quashed a conviction. In Stuparayk the description of the offence was at odds with the section number on the Certificate. It is on all fours with the case at Bar. Bovard J. cited R. v. Maniccia, [2004] O.J. No. 5566; R. v. Bargis, [2004] O.J. No. 5565; and R. v. Rodrigues Dasilva, 2008 CarswellOnt 4949 in support of the proposition that where the Certificate of Offence has an HTA section number which is different from the described offence there is ambiguity on the face of the Certificate and it is therefore not complete and regular on its face, as required by s. 9.1 of the POA as a statutory pre-condition to conviction being entered ex parte. More recently, the Court of Appeal came to the same conclusion in R. v. Farah, 2015 ONCA 302, albeit in a brief endorsement and after a Crown concession.
[7] The section number in the Certificate was at odds with the description of the offence, and the weight of authority says that such a certificate is not regular on its face for purposes of an ex parte trial. For that reason the Appeal is allowed and the conviction quashed.
Released: June 14, 2016
Signed: "Justice D.S. Rose"