Court Information and Parties

Date: 2017-03-30

Ontario Court of Justice

Between: Her Majesty the Queen — and — Benny Pang

Before: Justice M. Greene

Reasons on Appeal Released: March 30, 2017

Counsel:

• Ms. Benjamin for the Province
• Mr. Davie for Benny Pang

Introduction

[1] Mr. Pang was charged on September 15, 2015 with failing to stop for a red light. Upon receipt of this charge, Mr. Pang filed a notice of intention for trial and a trial date was set for May 24, 2016. On May 24, 2016, the matter was adjourned to September 12, 2016. On September 12, 2016, the Appellant attended court for his trial, but the ticket was not before the court. It is unknown what, if anything was said in court on September 12, 2016 as no transcript was filed on this appeal. No one disputes, however, that the ticket was not before the court and that the matter was not properly addressed on this date.

[2] On September 21, 2016, the court issued a "revised" notice of trial which was then sent to the Appellant's address. The document referenced the original offence date and provided a trial date of November 24, 2016 at 1:30pm in E court at 60 Queen Street West. The document further stated that it was issued on September 21, 2016, some nine days after the original trial date where the ticket was not present.

[3] Mr. Pang did not attend the trial on November 24, 2016 and was convicted in absentia having been deemed not to dispute the allegations. Mr. Pang appeals his conviction and asks that an acquittal be entered. In the alternative he argued that a new trial should be ordered. The prosecutor opposes the appeal and argued that the conviction should be maintained.

Issues Raised on Appeal

[4] The Appellant argued that the trial court had no jurisdiction to hear his trial on November 24, 2016. He argued that jurisdiction was lost when the ticket was not in court on September 12, 2016 and that it could not be re-gained by a clerk of the court sending a notice of a "revised" trial date nine days after the original trial date. In the alternative the Appellant argued that Mr. Pang did not receive the new notice and therefore could not attend the new court date as he was not aware of this date. As such, a new trial should be ordered.

[5] The Prosecution did not strenuously oppose the request for a new trial. She did, however, strongly oppose the Appellant's arguments that an acquittal should be entered. Counsel for the Respondent argued that the court did in fact retain jurisdiction over Mr. Pang when the new trial notice was sent out.

Jurisdiction

[6] There is no dispute that a trial date was set for September 12, 2016 and that no ticket was before the court on that date. There is also no dispute that the clerk of the court sent out a "revised" notice of trial on September 21, 2016 with a new court date of November 24, 2016, though the Appellant did not receive this notice. The question is whether or not, the court retained or regained jurisdiction over both the offender and the offence by sending out a revised notice of trial, nine days after the original trial date and by placing the ticket before the court on November 24, 2016.

[7] Section 31 of the Provincial Offences Act provides for the retention of jurisdiction over the offence even where the court fails to exercise its jurisdiction. This section is silent on retaining jurisdiction over the offender. Section 31 provides as follows:

The Court retains jurisdiction over the information or certificate even if the court fails to exercise its jurisdiction at any particular time or the provisions of this Act respecting adjournments are not complied with.

[8] In R v. 1283499 Ontario Inc. (C.O.B. Wired Nightclub), [2003] O.J. No. 2630 (CA), the Court of Appeal addressed the issue of whether or not section 31 of the Provincial Offences Act permitted the court to retain jurisdiction over the matter when the charging document (be it a ticket or information) was not before the court on the original trial date. Doherty J., speaking for the court, held that Section 31 of the Provincial Offences Act guarantees that the court retains jurisdiction over the offence even where the justice failed to act on the matter on the day that it was scheduled in court. A similar conclusion was reached by Pugsley J. in R v. Diaz, [2007] O.J. No. 1349 (OCJ). In Diaz, the matter was set for a non-juridical date. As a result the matter was not addressed in court. Pugsley J. held that by virtue of section 31 of the Provincial Offences Act, the court retained jurisdiction over the offence.

[9] In the case at bar, the matter was not set for a non-juridical date. Instead, for reasons unknown, the ticket just was not before the court. Counsel for the Appellant argued that this distinction is meaningful. Respectfully, I disagree. The scope of Section 31 of the Provincial Offences Act is not limited to cases where matters are accidentally set for non-juridical dates. It specifically allows for the jurisdiction to be maintained where the court fails to exercise its jurisdiction for any reason. In light of the broad wording of the provision, in my view, the court retained jurisdiction over the offence despite the fact that it was not addressed in court on September 12, 2016.

[10] Jurisdiction over the person, however, was lost when the matter was not addressed in court on September 12, 2016. There is no provision in the Provincial Offences Act that allows for the retention of jurisdiction over the person where the matter was not addressed in court and the defendant was not dealt with according to law or remanded to another date. The question that remains is whether the court re-gained jurisdiction when the new notice of trial was sent to Mr. Pang. A review of the authorities confirms that it did.

[11] In R v. 1283499 Ontario Inc. (C.O.B. Wired Nightclub), supra, Doherty J. stated at paragraph 13, that where jurisdiction over the person is lost, it can be re-gained by issuing a summons to the defendant to re-attend court. In my view, there is no policy or legal reason to treat trial notices differently from a summons. Both serve to bring the defendant to court, just in relation to different categories of offences. Pugsley J. reached the same conclusion in R v. Diaz, supra, a case involving a similar type of offence as the one in the case at bar. Pugsley J. stated at paragraphs 8 and 9:

8 Section 31 of the Act provides that the court retains jurisdiction over the Certificate of Offence even if the court fails to exercise its jurisdiction at any particular time or the provisions of the Act with regard to adjournments are not followed. It seems unlikely that the Legislature having provided expressly for the maintenance of jurisdiction over the Offence would at the same time provide no means by which the court's jurisdiction over the person of the defendant could be similarly maintained or recovered. As stated previously, Part I matters commenced by a Certificate of Offence come before the court by means of a Notice of Trial issued by the court administration. This is in keeping with the character of the Act, and in particular Part I of the Act, as a simple code of procedure for simple non-criminal provincial offences. Section 2 of the Act, and the similar preamble to the Rules set this fact out clearly. There is no basis in the Act that prevents the court from issuing a subsequent Notice of Trial where, as here, a trial has not been properly adjourned and it becomes necessary to regain jurisdiction over the person of a defendant. Even if the limitation period had not passed such that a Part III information and summons were still available to the Crown, the Crown should not be forced into proceeding by way of that long-form procedure on a traffic ticket matter. The defendant should similarly not have to face having his simple Part I proceeding converted into the Part III process with the potential for the continued delay and added expense that that more formal procedure may require on what is in fact a simple speeding ticket.

9 I find that after the first trial date passed the court lost jurisdiction over the person of the Appellant, but that the court regained jurisdiction by issuing a new Notice of Trial. When the Appellant did not appear in person or by agent on that trial date the presiding Justice of the Peace properly applied section 9.1 of the Act and deemed that the Appellant did not dispute the offence. Accordingly the Appellant was properly convicted. His appeal is dismissed.

[12] In light of these decisions, in my view the court retained jurisdiction over the offence by virtue of section 31 of the Provincial Offences Act and the court re-gained jurisdiction over the person by issuing a notice of trial on September 21, 2016. Therefore, the matter was properly before the court on November 24, 2016 and the court had jurisdiction to address the matter.

Should a New Trial be Ordered?

[13] Mr. Pang failed to attend his trial on November 24, 2016 and as a result he was deemed not to dispute the offence and was found guilty. The Appellant advised this court that he did not attend the court on November 24, 2016 because he did not receive the new notice of trial. Had he received the notice, he would have attended court and disputed the ticket. The legal representative for Mr. Pang argued that the court should accept the Appellant's assertion because Mr. Pang sent in his intention to dispute the ticket and attended court on September 12, 2016. Mr. Pang, having always intended to dispute the ticket, and only missed the date because he did not receive the notice, should be given the opportunity to have a full trial.

[14] The prosecutor did not strongly oppose this argument and took no issue with the veracity of Mr. Pang's assertion that he missed court because he did not receive the notice. When I consider all the arguments put forward, and the material filed on this appeal, I am satisfied that Mr. Pang missed his trial date due to an error beyond his control. I am further satisfied that Mr. Pang always intended to dispute the charge and that he will put forward a defence at trial. As a result, I will allow the appeal, overturn the conviction and order a new trial.

Released March 30, 2017

Justice Mara Greene