Court Information

Ontario Court of Justice

Date: September 18, 2017

Court File No.: Cornwall, Ontario 3960-999-00-2064393Z

In the Matter of: An appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Parties

Between:

Her Majesty the Queen Respondent

— And —

Henry Yue Appellant

Before the Court

Justice: D.A. Kinsella

Heard: July 4, 2017

Reasons for Judgment Released: September 18, 2017

Counsel

Matthew MacLean — counsel for the prosecution

Robert Riddell — agent for the defendant Henry Yue

Judgment

KINSELLA J.:

Introduction

[1] In life we must all face our Kobayashi Maru test. The choice faced by the appellant about how to respond to this charge was his own Kobayashi Maru test.

Facts

[2] The facts in this case are not complicated. On February 8, 2017 the appellant was charged with improperly using a blue flashing light contrary to section 62(32) of the Highway Traffic Act ("HTA"). The certificate of offence shows the date, time and location of the offence. It notes that Mr. Yue was operating a commercial motor vehicle and lists his CVOR number. It then shows a set fine of $85.00.

[3] Under the Provincial Offences Act ("POA"), a person charged with an offence pursuant to Part I of the Act has three options. First they may give notice under section 5 of the POA that they wish to appear in person for a trial. Second under section 7 of the POA they may elect to appear in person in court to enter a plea of guilty and make submissions as to sentence, including time to pay. Third, under section 8 of the POA they may choose to pay the set fine and applicable costs out of court. If they do not elect any of these options within fifteen days of receiving the certificate, the matter will then be dealt with by the provincial offences court as a default proceeding. While that practice may vary somewhat from region to region, in this area these matters are dealt with on what is referred to as a "fail to respond" docket.

[4] Mr. Yue did not pay the set fine nor did he request a trial or guilty plea. Mr. Yue's matter was placed on the fail to respond docket for March 28, 2017. There is no evidence before me that either Mr. Yue or his agent appeared. The presiding justice of the peace, finding that the certificate was complete and regular on its face, found that Mr. Yue had "deemed not to dispute" the charge under s. 9(1) of the POA and imposed the set fine.

Grounds of Appeal

[5] The appellant appeals pursuant to s. 135 of the POA on the basis that the justice of the peace erred in law by entering a conviction in circumstances where the certificate of offence contained an error in the amount payable and, as such, was not "complete and regular on its face." The appellant submits the certificate was not quashed by the justice of the peace when it should have been.

[6] During submissions, I asked the agent for the appellant whether or not the principles of trial fairness required that any issues with respect to the sufficiency of the certificate be raised during trial and not, for the first time, on appeal. In response Mr. Riddell provided the court with Justice Duncan's decision in R. v. Rodrigues, [2013] O.J. No. 6041. In that case, the court was dealing with the same issue, namely a fine set out on a certificate of offence which was lower than the actual set fine should be. Justice Duncan, relying on the Court of Appeal decision in London (City) v. Young, 2008 ONCA 357, found that a certificate which does not list the correct set fine is not "complete and regular on its face" and as such cannot support a conviction under the default proceedings in the POA.

[7] The respondent submits that the certificate was complete and regular as it did show a correct set fine. The respondent submitted that, while the certificate of offence did include information that the appellant was operating a commercial motor vehicle, this did not necessarily mean that the Ministry was proceeding against the appellant for the higher penalty. In the respondent's view, not all commercial motor vehicles meet the definition as set out in section 16 of the HTA and the court could not presume that this was a commercial motor vehicle within that definition.

[8] As to the issue of fairness, counsel for the respondent referred the court to paragraphs 12 and 14 of Justice Duncan's decision, where he opines that there may be a better way to deal with these types of situations other than forcing a defendant who believes there is an error on the face of the certificate to "lie in the weeds clutching his notice of appeal."

Relevant Legislation

[9] Section 9(1) of the POA deals with the situation where, as a result of the failure to respond, the notice and certificate recipient is deemed not to dispute the charge. Section 9(1)(a) reads:

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

(b) where the certificate ... ... is not complete and regular on its face, the justice shall quash the proceeding.

[10] A justice of the peace does have powers elsewhere in the legislation to amend a certificate. Those powers are found in section 34 of the POA under Part IV of the Act, which covers "Trial and Sentencing." In London (City) v. Young, supra, however, the Court of Appeal held that this section does not apply to proceedings under s. 9(1). If a certificate is either incomplete or irregular on its face, the presiding justice may not amend but must instead quash it.

[11] A commercial motor vehicle is defined in section 1 of the HTA as "a motor vehicle having attached to it a truck or delivery body and includes an ambulance, a hearse, a casket wagon, a fire apparatus, a bus and a tractor used for hauling purposes on a highway." In his submissions on appeal, counsel for the respondent submitted that not all vehicles which might meet this definition are commercial motor vehicles for all purposes, referencing section 16 of the HTA.

[12] Under section 16, vehicles which do meet the definition of a commercial motor vehicle are not permitted to be operated on a highway unless the operator is in possession of a valid CVOR certificate. "CVOR" stands for Commercial Vehicle Operator's Registration.

[13] The general penalty section for section 62(32) is not set out in the HTA. As such, under section 1 of the POA, the set fine is determined by the Chief Justice of the Ontario Court of Justice. That is not the case, however, for commercial motor vehicles charged with the same offence. Those vehicles are subject to a different penalty, one set out in section 62(33) of the HTA. A list of all set fines, titled Schedule 43, can be found online at the Ontario Court website. The set fine for improper use of a blue flashing light is $85.00 for non-commercial vehicles but $200.00 for commercial vehicles.

Analysis

[14] I cannot accept the respondent's argument that the certificate of offence was complete and regular on its face. The certificate clearly sets out that the vehicle being operated by Mr. Yue was a commercial motor vehicle with a CVOR. It is not a presumption, therefore, to find that this was a commercial motor vehicle as set out in section 16 of the HTA.

[15] I also cannot accept the respondent's submission that the certificate of offence merely sets out the manner in which the prosecutor for the Ministry of Transportation is proceeding. The legislation is clear; an individual improperly using a flashing blue light while operating a commercial motor vehicle is subject to a higher set fine than one operating a non-commercial motor vehicle.

[16] It is clear, therefore, that the set fine shown on the certificate of offence was incorrect. The certificate, therefore, was not complete and regular on its face.

[17] Since Justice Duncan's decision in Rodrigues, supra, our Court of Appeal has again confirmed that a justice of the peace has no authority to amend a certificate as part of the default proceedings (see R. v. Farah, 2015 ONCA 302, [2015] O.J. No. 2240).

[18] The court in London (City) v. Young, supra made the reasons for this very clear (at paragraph 34):

The default procedure put in place by the Act is intended to be inexpensive and expeditious for defendants who wish to acknowledge the offence and pay the fine. This procedure also saves the cost to the government of holding trials in cases where people are content to be found guilty of a relatively minor offence and pay a disclosed set fine. However, the trade-off for these savings is that where the default procedure is used, the certificate of offence must be "complete and regular on its face". If it does not comply, it cannot be amended and must be quashed.

[19] This does, as noted by other jurists, create the possibility of unfairness. A defendant who notices an error in the set fine on his certificate and chooses to appear in court may find himself in a far worse position than one who sees the same error and does nothing, hoping that the presiding justice in the default proceedings will quash the certificate. That same defendant, however, can find himself having to appeal a conviction if the certificate is not charged. As with the Kobayashi Maru test, this is a "no-win" situation for any defendant.

[20] Justice Duncan's obiter comments in the Rodrigues decision do have a certain attraction. Why can't there be a procedure where a defendant or agent appears on a matter listed on a "fail to respond" docket, not to attorn to the jurisdiction of the court, but simply to make submissions on the validity of the certificate? This would, as noted by Justice Duncan, avoid the "…waste of time and court resources to require a simple case with an obvious defect to have to go through two levels of court…" (at paragraph 12). Unfortunately such a procedure does not exist under the current legislation. Changing legislation is a role for the legislature and not the courts.

Decision

[21] In my view, the certificate of offence served on Mr. Yue was not complete and regular on its face in that it failed to set out the correct set fine. As such the justice of the peace erred in entering a conviction.

[22] The appeal is allowed and the conviction is quashed.

Released: September 18, 2017

Signed: Justice D.A. Kinsella