ONTARIO COURT OF JUSTICE
DATE: 2022 09 07
BETWEEN:
TORONTO (CITY) (Respondent)
— AND —
MOHAMED YUSUF (Appellant)
Before: Justice V. Rondinelli
Heard on: August 11, 2022
Reasons for Judgment released on: September 7, 2022
Counsel: M. Hussein, for the Appellant P. McMahon, for the Respondent
Rondinelli J.:
Introduction
[1] The Appellant received a ticket for disobeying a stop sign on December 9, 2020. The Appellant did not avail himself to any of the options listed on the ticket, and was subsequently deemed fail to respond on July 26, 2021.
[2] The Appellant subsequently sought a reopening pursuant to s. 11 of the Provincial Offences Act (“POA”). That re-opening was denied and the Appellant then appealed to this court.
[3] As a Part I matter, this appeal comes to this court by way of s. 135(1) of the “POA”. As such, pursuant to s. 138(1) of the POA, this court has the power to “affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial.”
Part I Procedural Routes
[4] The POA provides for generous procedural routes pertaining to Part I matters. Some of the relevant procedures relevant to this appeal were summarized by the Ontario Court of Appeal in R. v. Jamieson, 2013 ONCA 760 at para. 9:
[9] When a defendant is charged by way of a certificate of offence ("certificate"), the officer has two ways in which service can be effected under s. 3(2)(b): by an offence notice, as in this case, or by a summons. A defendant who is served with an offence notice is provided with a number of options about how to deal with the charge, which are set out on the back of the offence notice:
(1) a defendant may file a notice of intention to appear ("NIA") for the purposes of entering a plea and having a trial, under s. 5;
(2) where the offence notice requires the NIA to be filed in person instead of being delivered to the court, the defendant may either (1) file a NIA for the purposes of entering a plea and having a trial; or (2) request a meeting with a prosecutor to discuss the resolution of the offence, under s. 5.1;
(3) a defendant may attend before a justice to plead guilty and make submissions as to the penalty under s. 7(1), where the defendant does not have the option of meeting with a prosecutor under s. 5.1 and does not wish to dispute the charge. The justice may impose the set fine or such lesser fine as is permitted by law;
(4) a defendant may sign the offence notice, signifying a plea of guilty, and deliver it with the amount of the set fine and all applicable costs and surcharges fixed by the regulations to the court, under s. 8;
(5) a defendant may decide not to respond to the offence notice. If so, then s. 9(1) is engaged, and the defendant is deemed to not wish to dispute the charge. A justice must examine the certificate and where it is found to be "complete and regular on its face", enter a conviction in the defendant's absence and, without a hearing, impose the set fine for the offence under s. 9(2)(a). Where the certificate is not "complete and regular on its face", the justice must quash the proceedings under s. 9(2)(b); and
(6) a defendant who, like the appellant, signs and returns the NIA, subsequently receives a notice of trial ("NT") from a clerk of the court indicating the time and place of the trial. If the defendant fails to appear at the time and place appointed for the trial, then the defendant is deemed, under s. 9.1(1), to not to wish to dispute the charge. A justice must examine the certificate and where it is found to be "complete and regular on its face", enter a conviction in the defendant's absence and, without a hearing, impose the set fine for the offence under s. 9.1(2). Where the certificate is not "complete and regular on its face", the justice must quash the proceedings under s. 9.1(3).
[10] A defendant who was convicted without a hearing (i.e., under ss. 9(2)(a) or 9.1(2)) may, within 15 days of becoming aware of the conviction, apply to a justice to strike out the conviction under s. 11(1). The circumstances under which a justice can strike it out are limited, under s. 11(2). The justice must be satisfied by the defendant’s affidavit that, through no personal fault, the defendant was unable to appear for the hearing or did not receive delivery of a notice or document relating to the offence. A defendant who does not meet the requirements of s. 11(2) can, as a last resort, file an appeal under s. 135 to contest the conviction.
[5] The legislation’s generosity was intended to make it easier for faster justice – particularly to the self-represented defendants: See R. v. Sciascia, 2017 SCC 57 at para. 18. It was not, however, intended to clog court dockets with meritless claims in a busy courthouse like Old City Hall. In many cases that come before this court where a re-opening has been denied, the record remains the same as it was at the re-opening. No new affidavit is filed. No further information is provided. In such cases, the defendant has taken a “second kick at the can” at the re-opening and then appeals to this court with the simple hope that a “third time’s a charm.”
[6] In my view, it is time for this court to send a message that it intends to be more rigorous in its assessment of appeals similar to this one.
The “Through No Personal Fault” Test
[7] A defendant who was convicted without a hearing will have to establish that they were unable to respond to the ticket or appear for the hearing “through no personal fault”: See s. 11(2) of the POA.
[8] As a starting point, it is important to note that the court is not dealing with a substantive charge of failing to attend court. Otherwise, it would require proof of mens rea and mere carelessness or failure to take precautions that a reasonable person would take will not support a conviction: See R. v. Legere, [1995] O.J. No. 152 (C.A.) at para. 33.
[9] Instead, the POA places the burden on a defendant to establish that they were unable to appear through no personal fault of their own: See York (Regional Municipality) v. Avrams at para. 11. In my view, a defendant will have to demonstrate more than mere inadvertence, forgetfulness or carelessness to discharge its burden.
[10] In arriving at this view, I found great guidance in R. v. Perry, 2020 SKQB 297 where the court considered whether a default conviction under the Summary Offences Procedure Act, 1990, SS 1990-91, c S-63.1 [“SOPA”] should be set aside for failure to appear on the date of trial. [1]
[11] In Perry, the defendant’s explanation for missing his court date was as follows:
I was assigned court in two different courts at the same time. Was told to see Traffic Prosecutor for new date. Had a miscommunication with her for the new date. Was entered in my phone as Mar 20/20 instead of Mar. 2/20. Applied for a reconsideration hearing. Was on Mar 30/20. Did throughout COVID-19 (sic). Court Closed. Said I’m denied hearing now. Told me to appeal to get trial.
[12] The Saskatchewan Queen’s Bench dismissed the appeal, holding that the Appellant must take full responsibility for his carelessness. In reaching its conclusion, the court summarized a number of cases from that province that dealt with the similar issue. The court stated:
[23] When assessing the strength of Mr. Perry’s explanation, it should be noted the failure of an accused to appear at his or her trial through inadvertence, negligence, forgetfulness or simple carelessness has never been sufficient to set aside a default conviction on a summary conviction appeal. As noted, there is already a long line of cases exemplifying this fact. These authorities include:
R v Morgan, 2002 SKQB 348, 222 Sask R 306 (accused failed to attend court because of prior work commitment);
R v Grover Holdings Ltd., 2009 SKQB 442, 347 Sask R 21 [Grover Holdings Ltd.] (accused had other things on his mind and only remembered at 4:00 p.m. on the day of his trial that he should have been in court that morning);
Lumbala (accused had been recovering from surgery and slept in missing his court date);
R v Lahonen, 2015 SKQB 25, 468 Sask R 20 (accused unable to find a ride to court on the day of his trial);
Grover (accused did not look at his calendar in which he had correctly recorded his trial date, and failed to appear);
R v Ahmed (20 December 2019) Saskatoon, CRIM 412/2017 (Sask QB) (accused was aware of his court date but that day he had taken pain killers following a recent injury he had suffered, and forgot the date), and
R v Istifo (30 December 2019) Saskatoon, CRM 40/2019 (Sask QB) [Istifo] (accused had misread his ticket thinking his trial date was January 24, 2019 when, in reality, it was January 4, 2019).
[24] All these cases share a common element, the accused in each case could not point to “an intervening event beyond his reasonable control (i.e., a car accident, sudden illness) intervened to prevent his appearance”: Grover at para 18.
[13] In my view, a similar test would be useful in assessing claims under s. 11 of the POA. That is, was there an intervening event beyond the defendant’s reasonable control that intervened to prevent the defendant’s appearance?
Analysis
[14] This appeal raises a claim commonly seen these days in various iterations – the defendant did not respond to the ticket due to the court closures precipitated by the pandemic.
[15] There is no doubt that the pandemic has wreaked havoc with court operations since March 2020. However, the pandemic cannot serve as a blanket excuse for not responding to a ticket. During the early throes of the pandemic, it became common course to rely on information that was being disseminated through traditional media, social media, and Internet searches. With lockdowns in place, it was expected that citizens exercised some self-initiation in gathering and obtaining information, whether it related to travel restrictions or the availability of government services.
[16] As the Supreme Court of Canada noted in Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 at para. 63, “Driving on highways is, of course, a highly regulated activity, and drivers expect that the rules of the road will be enforced.” As a licenced driver, the Appellant cannot simply state as he did before this court, “Due to Covid-19 lockdown I was unable to file because court was closed and unfortunately I got convicted in absentia, no fault of my own” and expect to be granted relief.
[17] In this regard, I echo the observations made by the Saskatchewan Queen’s Bench in Perry at para. 28:
While Mr. Perry may find this result harsh, it should be noted that each year thousands of offence notice tickets for provincial regulatory offences including those found in the TSA are issued. The processing of those regulatory offence tickets involves considerable and concerted efforts from both enforcement personnel and court officials. As no such regulatory offence carries with it a jail sentence, any offender who fails to attend on his or her assigned trial date may be convicted of such an offence in their absence. See: Richard at para 32. To schedule a new trial for each and every offender who failed to appear without a compelling reason, would unduly strain the justice system’s already stretched resources dedicated to the prosecution, and adjudication, of provincial regulatory offences.
[18] It is important to note that as of July 24, 2020, “Court Case Look Up” was up and running. As the July 24, 2020 news release found on the City of Toronto website stated:
Anyone wanting to dispute a ticket and request a trial can now submit a Notice of Intention to Appear form by email or by mail. This change applies to tickets issued on or after March 1, 2020. The information on the ticket that requires a person to attend a court office in person to file a trial request may be disregarded. [2]
[19] Furthermore, the Ontario Court of Justice had continuous updates posted on its website relating specifically to provincial offences. [3]
[20] In a highly regulated area such as driving, it is not unreasonable or unfair to expect defendants to take some steps to try to file their tickets, even during the pandemic. In this case, the Appellant took no steps.
The “Ends of Justice” Test
[21] Under s. 138(1) of the POA, this court has the power to “affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial.” In my view, the term “ends of justice” is broad enough to allow a court to provide a remedy even in cases where defendants are unable to discharge their burden to demonstrate that their failure to file a ticket or attend a trial was of no fault of their own. For example, the defendant was the primary caregiver for a loved one that required round-the-clock medical attention during the period that the trial was set for. In such circumstances, a court may be inclined to exercise its power under s. 138(1) and direct a new trial.
[22] As mentioned, the Toronto Region sees many appeals advanced on similar grounds as this appeal. Appellants seeking to set aside their convictions where they failed to respond to their tickets or did not appear at their trials should be prepared to file an affidavit in support of their appeal. For Appellants represented by paralegal agents or counsel, this should be the norm, not the exception. At a minimum, the affidavit should outline the following:
i) If they did not attend their hearing, specific details explaining the reason for their absence should be provided;
ii) If they did not file their ticket, specific details of any steps taken to try to file the ticket should be provided: e.g. which courthouse or court office did they attend; when did they attend; what were they told and by who. If they tried filing it online, specific details of any technical impediments should be provided;
iii) The specific impact the conviction is having on the Appellant. Confirmatory proof of the impact should form part of the affidavit. For example, a copy of the Appellant’s driving abstract or any correspondence with an insurance company, employer, or Ministry of Transportation could be attached as an exhibit to the affidavit; and
iv) The relief the Appellant is seeking: i.e. a guilty plea to a minimum set fine or reduced fine; a trial; or an early resolution meeting with the prosecutor.
[23] For the same reasons I stated in Toronto (City) v. Al-Bawi, 2022 ONCJ 411 released September 7, 2022, such an affidavit serves a number of salutary purposes. Firstly, in preparation of such affidavits with clients, paralegal agents or counsel would be able to screen claims and advance only those that have sufficient merit for success. Secondly, an affidavit will allow prosecutors to adequately review upcoming appeals and determine whether they should concede particular appeals. Lastly, it will give the appeal court judge ample opportunity to consider the appeal prior to the oral hearing. The net result would be streamlined appeals and avoiding the current situation – at least here at Old City Hall – where there are constant adjournment requests to fill missing gaps of the record and lots of court time expended in calling defendants to provide viva voce evidence.
[24] Furthermore, the affidavit may have a deterrent effect. As Justice Sheppard observed in Avrams at paragraph 11:
In my view, the words of the section (i.e. s. 11(1)) are purposely directed to the defendant to inform the court from his or her personal knowledge of the reason why the defendant failed to appear. By requiring a supporting affidavit signed by the defendant setting forth the reasons, the ground is laid for a charge of perjury or swearing a false affidavit should it be known what the defendant states is false. There is a deterrent effect to the requirements, if only minimal.”
[25] In my view, the proposed framework would reduce court strain while maintaining fairness and satisfying the ends of justice.
Conclusion
[26] For all the above reasons, the appeal is dismissed.
Released: September 7, 2022 Signed: Justice V. Rondinelli
Footnotes
[1] Similar to Ontario’s POA, SOPA is the provincial offence legislation in Saskatchewan. [2] https://www.toronto.ca/news/city-of-toronto-courts-services-resuming-some-services-as-provincial-offences-act-courts-partially-restart-operations/ [3] https://www.ontariocourts.ca/ocj/covid-19/notices-and-info-re-provincial-offences/