Court File and Parties
Ontario Court of Justice
Date: 2018-11-02
Court File No.: Brampton POA Appeal No. 681B Certificate: 4179681B
In the Matter of: An appeal under subsection 135(1) and section 138(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended
Between:
Prosecutor Respondent
— AND —
Sandeep Gainda Appellant
Before: Justice S. Caponecchia
Heard on: September 21, 2018
Reasons for Judgment released on: November 2, 2018
Counsel
A. Patterson — counsel for the Prosecution
Mr. Sandeep Gainda — representing himself
Background
On appeal from a conviction by a Justice of the Peace on July 25, 2018.
CAPONECCHIA J.:
INTRODUCTION
[1] Mr. Gainda was personally served a Certificate of Offence on March 6, 2018. The offence was "Amber Light – Fail To Stop," contrary to section 144(15) of the Highway Traffic Act.
[2] He filed a Notice of Intention to Appear (Form 8) in person on March 21, 2018 and was given his notice for trial the same day.
[3] He did not attend on his trial date, July 25, 2018. The sitting Justice deemed him not to dispute the charge, pursuant to section 9.1(1). The set fine of $150 was imposed, plus a related surcharge.
[4] Mr. Gainda filed his appeal (Form 2) on August 14, 2018.
[5] This is a Part I matter. Section 135(1) of the Provincial Offences Act provides Mr. Gainda with the ability to appeal a conviction entered by a Justice of the Peace made in accordance with section 9.1(1) of the Act.
[6] Pursuant to section 138(1) of the Provincial Offences Act this court may affirm, reverse or vary the decision appealed or, direct a new trial if it is necessary to do so to satisfy the ends of justice.
THE APPELLANT'S POSITION
[7] The appellant submits that the Justice of the Peace erred in entering the conviction because the Certificate was a nullity. The Certificate was not "complete and regular on its face" and it should have been quashed, pursuant to section 9.1(3) of the Act. It is submitted that this result was required because Mr. Gainda's address on the Certificate of Offence was recorded incorrect. It reads either 7 or 9, Duggan Dr. Brampton Ontario. His correct address is 6 Duggan Dr.
THE PROSECUTION POSITION
[8] The Prosecution submits the error is immaterial.
ANALYSIS
[9] The issue is whether the Justice of the Peace correctly convicted Mr. Gainda in his absence. The Justice would have had to have been satisfied that certificate was "complete and regular on its face." In this case I find the Justice of the Peace committed no error.
[10] Section 9.1 of the Provincial Offences Act provides:
Failure to appear at trial
9.1 (1) A defendant is deemed to not wish to dispute the charge where the defendant has been issued a notice of the time and place of trial and fails to appear at the time and place appointed for the trial. 2009, c. 33, Sched. 4, s. 1 (14).
Examination by justice
(2) If subsection (1) applies, section 54 does not apply, and a justice shall examine the certificate of offence and shall without a hearing enter a conviction in the defendant's absence and impose the set fine for the offence if the certificate is complete and regular on its face. 1993, c. 31, s. 1 (3).
Quashing proceeding
(3) The justice shall quash the proceeding if he or she is not able to enter a conviction. 1993, c. 31, s. 1 (3).
[11] What is meant by the phrase "complete and regular on its face" has been the subject of numerous provincial offences appeals. Neither the Prosecutor nor the Appellant were able to refer me to any cases in which the defendant's address was listed incorrectly on the Certificate of Offence. In deciding this case I am guided by three Ontario Court of Appeal decisions and one Superior Court of Justice appeal.
[12] First, R. v. Lemieux, [1982] O.J. No. 84, 68 CCC (2d) 189 (C.A.). The motion to declare a certificate a nullity was unsuccessful where the certificate referred to the H.T.A. and not the Highway Traffic Act. The Ontario Court of Appeal held at paragraph 9:
"the golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial."
[13] Second, London (City) v. Young, 2008 ONCA 429, 233 CCC (3d) 10. Provincial offences officers issued sixteen certificates of offence with an incorrect set fine. A Justice of the Peace quashed all sixteen certificates because they were not "complete and regular" on their faces as required by section 9(2)(b). The decision was upheld. The Ontario Court of Appeal endorsed the trial justice's finding that the certificates were not being "complete and regular" on their face because the set fine is essential information that an individual requires in order to make an informed decision whether to default or request a trial.
[14] Third, the decision in R. v. Farah, R. v. Mirza, 2015 ONCA 302, [2015] O.J. No. 2240. Both appellants failed to appear for their trial. Convictions were entered on the basis that they were deemed not to dispute the charge and the justice concluded that the certificates were complete and regular on their face. The Ontario Court of Appeal disagreed. In both Farah and Mirza, the certificate of offences were issued in such a way as to create ambiguity as to what offence the appellants were facing.
[15] In the case of Mirza, the section number originally entered had been struck out and a new and correct section number entered. The change appeared to have been initialled. It was a reasonable inference that the amendment or change was made after the appellant was served with a notice of offence and before the scheduled trial date.
[16] In the Farah case, the handwritten part of the ticket indicated that Mr. Farah was charged with careless driving but the reference to section 182(2) indicated he was charged with disobeying a traffic sign.
[17] In the summary conviction appeal, Thunder Bay (City) v. Spakowski [2007] O.J. No. 1803 (S.C.J.), the court held that the failure to included birth dates of defendants does not constitute an irregularity on the face of the certificate because it is surplusage.
[18] I have also considered the case of R. v. Wilson, [2001] O.J. No. 4907, referred to me in submissions by Mr. Gainda. In that case no driver's licence was recorded on the Certificate of Offence. On appeal, Justice Livingstone declined to find that this omission warranted a finding that the certificate was incomplete and irregular on its face pursuant to section 9.1(2) because the who, what, when, where and result of a conviction were all apparent on the face of the document.[1]
[19] The common thread in all the aforementioned cases is that effective notice in the Part I context, requires an individual understand and be given notice of the offence alleged against him or her. In Mr. Gainda's case the "who", "what", "when", "where" and "result of conviction" were all clearly indicated on the certificate served on him in person. I find Mr. Gainda's address was surplusage. He suffered no prejudice from the incorrect recording of his address and it had no effect on his ability to make an informed decision on how to respond to the charge. Mr. Gainda was able to successfully file a Notice of Intention to Appear. He received a Notice of Trial. He received his Notice of Conviction and was not impeded in any way from filing an appeal.
[20] I would also observe that if Mr. Gainda had no fixed address or licence, or had provided police with a licence containing an out of date address, or changed his address after the certificate was issued, none of these factors would have precluded him from being issued a ticket or convicted in his absence.
DISPOSITION
[21] The Certificate contained all the essential information for Mr. Gainda to make an informed choice as to how to defend the charge. I have no concerns about notice in this case. I am also satisfied there was basis for the Justice of the Peace to properly conclude that the certificate was complete and regular on its face pursuant to section 9.1.
[22] For the reasons indicated above, the appeal is dismissed.
Released: November 2, 2018
Signed: Justice S. Caponecchia
[1] For a similar result see R. v. Grgic, [2005] O.J. No. 5021 (C.J.)