ONTARIO COURT OF JUSTICE

CITATION: Durham (Regional Municipality) v. Souvannarath, 2019 ONCJ 177

DATE: March 11, 2019

COURT FILE No.: Central East Region

BETWEEN:

THE REGIONAL MUNICIPALITY OF DURHAM

(RESPONDENT)

— AND —

SAENGALOUN SOUVANNARATH

(APPELLANT)

PROVINCIAL OFFENCE APPEAL

Heard: October 29, 2018, March 8, 2019

Written Reasons released: March 11, 2019

Karen Miller …………………………………………counsel for the Respondent

Philip Alexiu ……………………………………………counsel for the Appellant

F. JAVED J.:

A. Introduction

[1] This appeal considers the legal effect of a police officer recording “out of area” as a municipality on a Part I certificate of offence under the Provincial Offences Act (POA) RSO, c P33. The issue to be determined is whether the reference to “out of area” meant that the certificate of offence was irregular and incomplete and thus ought to have been quashed in a default proceeding, as opposed to a conviction being registered.

[2] On August 23, 2018, Saengaloun Souvannarath, (the appellant), was convicted by Justice of the Peace G. Ryan sitting in the Provincial Offences Court in Durham, of the offence of speeding contrary to s.128 of the Highway Traffic Act (HTA).

[3] The conviction was registered in the appellant’s absence. The appellant says she couldn’t have been convicted of the offence as the Justice erred by not quashing the certificate. She argues the reference to the municipality as “out of area” was a substantive defect and a proper examination of the certificate should have lead to the conclusion that the certificate was irregular and incomplete.

[4] The Regional Municipality of Durham (the respondent) submits that any alleged defect on the certificate was in form not in substance. The appellant had notice of where the offence took place and made a tactical decision to miss her trial date. The reference to “out of area” did not result in unfairness or prejudice. It’s submitted that the Justice did not err and the appeal should be dismissed.

[5] After hearing submissions from the parties, the court determined it was prudent to review the transcript of the default proceedings to determine if and how the Justice examined the certificate of offence. A transcript was received and the court invited further submissions. The positions of the parties remained the same.

[6] For reasons that follow, I have concluded that the appeal against conviction should be allowed and the certificate of offence should have been quashed. I agree with the appellant that the reference to “out of area” was a substantive defect, void of any lawful municipality, and thus the certificate was incomplete and irregular.

B. The Default Proceedings

[7] The appellant was charged by Police Constable P. Steward with the offence of speeding 149km/h in a posted 100km/h zone contrary to s.128 of the HTA. It’s unclear which police service PC Steward is employed with. He filled out the certificate of offence and listed the place of the offence as “407 HY/WEST OF KEELE ST-VAUGHAN”. The municipality was recorded as “OUT OF AREA”. A notice of intention to dispute the matter was filed seeking a trial date. The appellant resides in Mississauga, Ontario and was sent a trial notice alerting her that the trial was on August 23, 2018 in courtroom 103 at 605 Rossland Rd. in Whitby, Ontario.

[8] The appellant retained the law office of Mr. Alexiu, who requested disclosure. On the scheduled trial date, nobody attended. At 3:57 pm, the court established jurisdiction and stated: “The Part I certificate of offence is complete and proper on its face, jurisdiction has been established”. (Transcript of Proceedings, August 23, 2018)

[9] A finding of guilt was entered and a fine of $294.00 with costs was imposed with 15 days to pay. The fine was subsequently paid in full. On September 6, 2018, the appellant, through Mr. Alexiu, launched an appeal. No issue was raised about the appellant not receiving notice of the trial date. I can infer from the factual circumstances that the appellant may have intentionally defaulted because of the alleged defect on the certificate.

C. Analysis

[10] Section 9.1 of the POA sets out the default procedure for matters where a litigant takes no action or does not attend for trial. The person is deemed not to dispute the offence which triggers s.9.1(2) of the POA, requiring the presiding Justice to “examine the certificate of offence and without a hearing, enter a conviction and impose a fine if the certificate is complete and regular on its face”.

[11] Recently, Justice Kenkel helpfully distilled the legal principles on this issue in the decision of Chow v. York (Regional Municipality), 2018 ONCJ 818. At paragraph 6, he observed: “the purpose of the s.9.1(2) examination is to determine whether the defendant received effective notice of all the information needed to decide whether or not to default”, citing Feldman J.A. in London (City) v. Young, 2008 ONCA 429, [2008] O.J. No. 2118 (C.A.) at para. 29. Moreover, as noted by Justice Libman in R. v. Khoshael, [2001] O.J. No. 2110, the POA strikes a balance between the presumption of innocence and the right to a hearing when a person doesn’t respond or attend in court by placing an overriding requirement on the Justice to ensure that a default conviction is lawful (at para.8), citing R. v. Richard, 1996 CanLII 185 (SCC), [1996] 3 S.C.R. 525, 110 C.C.C. (3d) 385, 3 C.R. (5th) 1 at 400-401. Accordingly, there is nothing improper about choosing to default for “tactical” reasons if the certificate of offence is defective. The regulatory scheme of the POA ensures the Justice will act as a safeguard in quashing the certificate if it’s not complete and regular on its face.

[12] The term “complete and regular on its face” is not defined by statute. The consideration of this issue involves a legal assessment based on all the accepted factual circumstances: R. v. Budhan, [2018] O.J. No. 5615 (Ont. Prov. Ct.) at para. 7. I agree with the analysis of Kenkel J. in Chow v. York (Regional Municipality), supra, at para. 7 who observed that an interpretation of this phrase is linked to the concept of effective notice to make a decision about whether or not to default. This notice requirement relates to information about specific elements of the offence. For purposes of this appeal, one such element is the jurisdiction where the offence took place. Kenkel J. noted that a certificate provide a description of the place of the offence as being within the jurisdiction of the court which typically includes evidence that a certificate was issued and offence notice served at the place of the alleged offence: Thunder Bay (City) v. Matzov, 2016 ONSC 4557 [Matzov] (my emphasis).

[13] The respondent submits that the guiding principle should be whether the defendant has been misled or prejudiced as the law provides that not every irregularity will trigger a quashing order. In support of this position, the respondent cited the decision of Durham (Regional Municipality) v. Busu [2012] O.J. No. 5823 [Busu]. In Busu, the certificate of offence omitted the municipality and wasn’t quashed by the examining Justice. On appeal, Justice DeFreitas used a purposive analysis and held that the defendant wasn’t prejudiced by the omission and dismissed the appeal. As a matter of law, I don’t disagree with the broad proposition that a purposive analysis should be used as a yardstick but as I will explain below this case is different from Busu because it involved confusing, not missing information.

[14] A review of the cases also reveals that where there is incorrect information that has the potential to mislead or prejudice the defendant and her choice regarding to default, the certificate would not be regular and complete. Where the incorrect information is merely “surplusage”, or extra information, it may not mislead or prejudice the defendant in making this choice. For example, where a certificate omits “Region of” from a correct municipality which has been identified, that would amount to surplusage, which isn’t misleading whereas an incorrect fine or incorrect wording of an offence, may mislead a defendant in choosing how to proceed: Chow v. York (Regional Municipality of York), supra at para. 9.

[15] The respondent submits that the words, “out of area” were surplusage because the certificate of offence identified where the offence took place. Again, PC Steward recorded: “407 HY/WEST OF KEELE ST-VAUGHAN”. The argument follows that the appellant could not have been misled or prejudiced and simply made a “calculated tactical decision to allow [this] matter to proceed under s. 9.1” (Respondent’s Factum, para. 11)

[16] In my view, a proper application of the guiding principles on this issue should have resulted in the Justice quashing the certificate as being incomplete and irregular. I arrive at this conclusion for the following reasons.

[17] First, as discussed above, there is nothing unlawful or even untowards about making a calculated decision to default. The default procedure is a statutory shortcut, which means that adherence to the legal requirements must be met before a court can enter a conviction and impose a penalty. A court must examine the certificate of offence to determine if the defendant received effective notice of all the information needed to decide whether or not to default. Here, the learned Justice said the certificate was complete and regular but the transcript is silent on the reference to “out of area”. This should have raised a red flag but didn’t. On this record, I find there’s a reasonable inference that through inadvertence or otherwise, the certificate was not “scrutinized”: R. v. Wilson, [2001] O.J. No. 4907 (Ont. Prov. Ct.) at paras. 18, 19. I can’t be satisfied that a fulsome examination was done under s.9.1(2) of the POA. I don’t say this critically because such an oversight is understandable in a busy provincial offences court.

[18] Second, even if I’m incorrect that the Justice did embark on a fulsome examination of the certificate of offence, I think the respondent’s position about being misled or prejudiced is too narrow. The default procedure in the POA is premised on the proposition that an accused must have effective notice, which implies sufficient information, in making the choice as to whether she should default. This is more than just knowing the case to meet and also implies an acknowledgement that the state would be able to secure a lawful conviction. A defendant can then choose if she should default and be convicted in absentia to avoid the time and expense of disputing the matter. The respondent’s reliance on R. v. Cote, 1977 CanLII 1 (SCC), [1978] 1 S.C.R. 8, for the principle that the “golden rule” is for the accused to be reasonably informed of the transaction alleged against him is misplaced in the circumstances of this case. Cote involved the question of prejudice in the context of a criminal, not regulatory matter. De Grandpre J. discussed the effect of a missing element of the offence where an accused attends for her trial but doesn’t raise an objection to the issue and the Crown proves the missing element through evidence. That isn’t the case here because the appellant was not present for her trial and the default procedure in s.9.1 of the POA does not allow a court to amend a certificate. In contrast, had the appellant attended for her trial, s.34 of the POA may have permitted the Justice to amend the certificate to receive evidence about the municipality, but that isn’t the record before the court. In a criminal matter, the court is significantly constrained in its ability to proceed ex parte and enter a conviction if an accused doesn’t attend for her trial. In regulatory matters, there is an interest of expediency, which permits parties to intentionally default, which doesn’t exist in criminal matters.

[19] Third, the reference to “out of area” as a municipality was in my view, irregular and incorrect and therefore not surplusage. In London City v. Young, Feldman J.A. held that the term regular is “recognized as formally correct” (at para. 30). The substantive issue before the Court of Appeal involved an error in the set fine on a certificate offence. The question was whether this error was surplusage. The defendant defaulted leading to the certificate being quashed given the error in the set fine. The appellant (Corporation of City of London) sought an Order in the nature of a mandamus directing the Justice to enter a conviction on the basis that the error in the set fine was surplusage. That application was dismissed. At the Court of Appeal, Feldman J.A. reminded that there is no power to amend a defect under the default procedure in s.9(1) of the POA (at para. 18) and thus the Justice who must conduct a default examination was unable to perform her statutory duty of imposing the set fine. Accordingly, the Justice was correct in quashing the proceeding under s.9(1)(b) of the POA.

[20] In my view, the analysis of Feldman J.A. is equally persuasive in the circumstances of this case. The municipality was recorded as “out of area”, which is formally incorrect because I can take judicial notice that there is no correct municipality in the province of Ontario, which identifies as “out of area”. Like an incorrect set fine, it is a substantive defect because it speaks to an element of the offence, namely the jurisdiction in which the offence took place. Although it didn’t happen in this case, the learned Justice was not permitted to correct the deficient meaning or read into it. The municipality was not just missing, but it was wrong. The Justice had no option but to quash the certificate of offence.

[21] Fourth, I agree with the appellant’s position that “out of area” was not only formally incorrect but also confusing and misleading. The respondent argues that the appellant wasn’t confused because she retained an agent, requested a trial and requested disclosure. With respect, this misses the point, because the default procedure is premised on a judicial examination of the certificate - not the individual circumstances of a case. If the respondent is right, it would frustrate the purpose of the section and require the Justice to look behind the certificate to assess the question of prejudice. That’s not the test. The proper test for the Justice was to ensure the certificate was “complete and regular” which meant ensuring the defendant had notice of the correct jurisdiction.

[22] Justice Kenkel reviewed cases that have interpreted the location of an offence in Chow v. York (Regional Municipality). At paragraph 10, he wrote:

Location Description – Identification of the regional municipality is sufficient –York (Regional Municipality) v. Askender [2015] O.J. No. 2010 (SCJ), York (Regional Municipality v Di Vito) [2014] O.J. No. 4598 (SCJ), Identification of a location on a highway and the municipal district was sufficient, particularly where the certificate showed that it was served at the location of the alleged offence so the defendant knew of the location – Thunder Bay (City) v Matzov 2016 ONSC 4557, A short form name is sufficient to identify the regional municipality – York (Regional Municipality) v Di Vito [2014] O.J. No. 4598 (SCJ), Not stating the town name wasn't fatal where it was identified by other information in the document – York (Regional Municipality) v Abadehee [2004] O.J. No. 918 (SCJ), R v Busu [2012] O.J. No. 5823 (CJ), R v Deveau [2006] O.J. No. 3312 (CJ), Hundreds of offence certificates improperly quashed for the omission of "Ontario" from the description of the Highway Traffic Act. The word Ontario is surplusage – R v Baldasare [2000] O.J. No. 5515 (SCJ), Including "public" before the word sidewalk at the listed address was unnecessary – Thunder Bay (City) v Kamenawatamin [2009] O.J. No. 1422 (SCJ).

[23] I have reviewed the above cases and the closest case to the one at bar is Matzov, supra. In Matzov, Pierce J. considered an application for certiorari by the City of Thunder Bay where a Justice quashed four certificates because they were too vague or not specific. The application involved four separate respondents. In two of the cases, the respondents were charged with speeding under s.128 of the HTA. The certificates identified the location of the offence as “… at Highway 11-17 in the District of Thunder Bay…”. The appellants did not attend for their trials. The Justice conducted the s.9.1(2) examination and quashed the certificates because they were “too vague” or “not specific”. On review, Pierce J. concluded (at para. 24) that the Justice erred in his s.9.1(2) examination because the reference to the municipality was not vague.

[24] In Matzov, the jurisdiction in which the offence occurred was correctly identified as the district of Thunder Bay. This stands in contrast to this case where the offence described the location of the offence on a highway in Vaughn, which is not a municipality, but rather a city. This is a distinction with a difference. More importantly, the s.9.1(2) examination in Matzov was conducted within the jurisdiction of the court where the offence took place, unlike here, where the examination was done in the Durham region with the offence allegedly occurring in Vaughn, which of course is not in Durham.

[25] Fifth, the respondent relied on R. v. Mikhow, [2018] O.J. No. 2137, in support of the argument that the appellant had “effective notice” of all the requirements in deciding to default. With respect, the reliance on Mikhow is also misplaced.

[26] While Mikhow also involved an appeal where an accused defaulted because of an alleged error on the certificate, the discrete issue before Latimer J. was materially different. Specifically, the issue involved the description of the offence, not the place where it occurred. In Mikhow, the appellant was charged with the offence of “unsafe lane change”. The officer noted the correct section of the HTA but used outdated, short form language as the specific offence had been amended in 2015 to read “unsafe move – lane or shoulder”. Latimer J. relied on London City v. Young and ruled that the certificate was complete and regular on its face because the officer correctly noted the section of the HTA, even if he used outdated language to describe the offence. Latimer J. pointed to Section 5.1 of Regulation 950, RRO 1990 of the POA, which provides that words or expressions that may be used in a certificate of offence. He held that the inclusion of the word “may” indicates that suggested language needn’t always be included on a certificate of offence, even though it would be a best practice to do so (at para. 12).

[27] In my view, Mikhow would support the respondent’s position if the certificate of offence in this case used incomplete information to describe the municipality where the offence occurred. To this extent, Mikhow is consistent with other cases, which have held that short form language is permissible to describe a municipality. However, that isn’t the case here. PC Steward chose to identify the municipality as “out of area” which is not short form for a correct municipality. Moreover, I have carefully reviewed Regulation 950 of the POA, which appears to address language that can be used to describe specific offences, not a jurisdiction where an offence takes place.

[28] A close reading of cases involving the location of the offence seems to suggest that there must be some correct information about the municipality in which the alleged offence took place – even if it’s scant. The wording doesn’t have to take any specific form but at a minimum must have some basic information about the municipality in which the offence took place to provide a person with notice of the correct jurisdiction. It could be language that is long-form, short-form or even something in between. For example, in York (Regional Municipality) v. Di Vito, supra, Justice Vallee held that the Justice erred in quashing a certificate of offence which recorded “Region of York” as the municipality. The officer had written “Highway 400 Northbound, Region of York” on the certificate. Vallee J. held that this was sufficient to establish that the offence was committed in the Regional Municipality of York, which can be described in short form as “York Region” or “Region of York”. Here, the certificate of offence listed the city in which the offence took place (Vaughn) but is completely misleading about the municipality.

[29] I return to Busu where the certificate of offence omitted the municipality all together. Justice DeFreitas in an oral judgment held that applying a purposive analysis, the appellant who defaulted, was not prejudiced or misled by the officer’s failure to record “Durham region” on the certificate. While the factual record is unclear, it would appear that the appellant was served with a certificate of offence in the Durham region, but the municipality was left blank. The default proceeding took place in the same jurisdiction as the offence, which was also in Durham. The factual circumstances in this case are different because the appellant was stopped outside of the Durham region but expected to attend for her trial in Durham. The municipality was not left blank but instead recorded as “out of area”. These differences alone would be enough to distinguish Busu from this case. DeFreitas J. cited a “purposive analysis” after reviewing some cases but did so in the context of missing, not incorrect information. Viewed this way, Busu is not inconsistent with my conclusion in this case. I note parenthetically, that there is a contrasting view from the same level of court in R. v. Hands, 2013 ONCJ 682, a decision penned by Justice Cooper. In Hands, supra, the appellant was convicted in default where the offence notice stated “Wyecroft Rd. E of Burloak Dr.” without any town or municipality. Cooper J. held the failure to mention the municipality was a substantive omission and it was incomplete and irregular and should have been quashed.

[30] To the extent that there is a discrepancy between Busu and Hands, I do not have to resolve it because of the factual differences between the two cases, which involved missing information not incorrect information. In my view, the binding authority in London City v. Young, leads to the inexorable conclusion that “out of area” was formally incorrect and therefore misleading. The appellant did not have effective notice about making a decision if she should default, where the state could enter a lawful conviction in her absence.

[31] Finally, the court invited submissions on whether s.29 of the POA, which pertains to the jurisdiction of a court hearing a provincial offences matter has any consequential value in this case. Section 29(2) of the POA would have permitted the court in Durham to hear a matter emanating from York region as it is an adjoining district provided that the court in Durham was reasonably proximate to where the offence occurred and the adjoining court in Durham was named in the summons or offence notice. The respondent made submissions on both issues but in my view, I do not need to consider them as s.29 does not have application in this case. I agree with the appellant that s.29 only applies to those matters that have proceeded to a trial or sentencing, not default proceedings. Again, the issue may have become important if the appellant attended for her trial but that’s not the record.

[32] As a postscript, I simply don’t know why an offence which allegedly took place in the region of York, was being tried in the Durham region. There is no explanation as to why PC Steward didn’t simply record the correct municipality. I don’t know what “out of area” means, which arguably meant that the appellant didn’t know either. In submissions, I mused whether it was recorded for the sake of police convenience, to avoid having to travel to a courthouse in the York region, if called to testify. I also wondered what would have happened if the appellant simply decided to pay the fine with the funds being directed to a court in Durham. Would the monies be allocated to the jurisdiction where the alleged offence took place (York region) or Durham region, where the offence was being tried? These questions were left unanswered but given my disposition of this appeal, do not need to be resolved. Suffice to say, it would be best practice for an officer to correctly note the municipality in all cases.

D. Conclusion

[33] For the above reasons, the appeal against conviction is allowed. The certificate of offence is incomplete and irregular and is therefore quashed.

[34] On consent, a copy of these reasons shall be delivered to the parties through the Provincial Offences Appeals clerk at the Courthouse, 150 Bond St. East, Oshawa, and attached to the appeal documents to complete the record. The appellant has paid the fine and is entitled to a refund. I will grant 4-6 weeks to have the monies refunded by the Whitby court to the appellant.

[35] I would like to thank both parties for their written materials and submissions. They were of great assistance to the court.

Released: March 11, 2019

Signed: Mr. Justice F. Javed