Ontario Court of Justice

Date: 2019-05-10

Between:

Merita Duraku Appellant

— And —

The Regional Municipality of York Respondent

Provincial Offence Appeal

Heard: May 10, 2019

Released: May 10, 2019

Counsel

Ms. Gallin — counsel for the Respondent

Mr. Mocanu — agent for the Appellant

Decision

KENKEL J.:

[1] The Appellant was convicted of speeding 130 km/h in a 100 km/h zone under section 128 of the Highway Traffic Act, RSO 1990, c H.8. The appellant requested a trial but failed to appear and was convicted in absentia. The court proceeded under section 9.1 of the Provincial Offences Act (POA), RSO 1990, c P.33 and entered a conviction.

[2] The issue on appeal – the appellant submits that the court should have quashed the certificate of offence as it was irregular on its face. The appellant points to a zero with a line through it in the date line and submits that maybe that's not just a manner of writing a zero, maybe that date was amended or corrected. There is no issue the date shown on the Certificate of Offence is otherwise correct.

[3] As I mentioned in Chow v. The Regional Municipality of York, 2018 ONCJ 818, this situation is a familiar one. An accused requests a trial but then fails to appear triggering a review under section 9.1 of the POA. Days later an agent for the defendant files an appeal alleging the certificate should have been quashed due to an alleged error in the certificate. This trial was held July 23, 2018 and days later August 10, 2018 a Notice of Appeal was filed.

[4] The failure to appear triggers section 9.1(2) which directs the presiding Justice of the Peace 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". The appellant submits that the certificate in this case is deficient as there is a "fatal error on the certificate" – the date of the offence. Further the appellant alleges that the certificate was amended out of court.

[5] Certificate 8266940B sets out the offence date as January 14, 2018 at 12:55 p.m. The appellant had very specific information identifying the transaction.

[6] There's no evidence that the appellant received a certificate that was different from the one considered by the Justice of the Peace. In any event, where an officer identifies an error prior to filing the certificate of offence with the court, the officer is entitled to make corrections even though an offence notice has already been served on the defendant – R v. Davis, 2017 ONCA 45.

[7] The certificate provided specific, detailed notice of the transaction at issue sufficient to permit the accused to choose whether or not to default. The date is plainly set out on the certificate of the Offence. The Justice of the Peace was correct in finding the certificate was correct and regular on its face.

[8] The appeal is dismissed.

Released: May 10, 2019

Justice Joseph F. Kenkel