Ontario Court of Justice

Date: 2024 05 16 Court File No.: London 22-23106419

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

Between:

THE CORPORATION OF THE CITY OF LONDON Appellant

— AND —

CHRISTOPHER SHEELER Respondent

Before: Justice T. Stinson

Heard on: May 16, 2024 Reasons for Judgment released on: May 16, 2024

Counsel: Angela Oakey and Catherine Harper, paralegals for the Corporation of the City of London No appearance by or on behalf of Christopher Sheeler, even though notified of time and place.

On appeal from a dismissal on January 18, 2024.

STINSON J.:

INTRODUCTION

[1] Christopher Sheeler (“Sheeler”) was charged on January 25, 2023, by way of a Certificate of Offence #1037700X pursuant to Part I of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”) for the offence of driving a motor vehicle with no currently validated permit, contrary to section 7(1)(a) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

[2] The trial was held in front of a justice of the peace on January 18, 2024.

[3] The prosecuting municipality, the Corporation of the City of London (“London”), the Appellant in this matter, elected to conduct the trial by certified evidence, pursuant to the provisions of section 48.1 of the POA, and did not call any witnesses to testify during the trial.

[4] The defence, the Respondent in this matter, did not call any evidence.

[5] At the conclusion of the trial, the charge was dismissed by the justice of the peace.

[6] For the reasons that follow, I find that the trial justice of the peace made an error in law and made a finding not supported by the evidence. I am therefore granting the appeal and setting aside the dismissal of the charge.

GROUNDS OF APPEAL AND STANDARD OF REVIEW

[7] London frames its issues and grounds of appeal as follows: First, did the trial justice make a finding that is not supported by the evidence? And second, did the trial justice err in law by failing to apply the relevant sections pursuant to section 48.1 of the POA?

[8] Thus, London posits that the justice of the peace made errors in both fact and law, and that an appeal of this case, for those reasons, is permitted both by section 120(1)(a)(i) and 120(1)(a)(ii) of the POA, though I note that this section deals with Part III POA appeals, and this case is a Part I POA appeal.

[9] It is London’s position that with respect to errors of fact, the standard of review is palpable and overriding error, unless the relevant statute specifies an alternate standard. With respect to errors of law, London’s position is that the standard of review is correctness, meaning that the appeal court may replace the trial court’s opinion with its own. Again, this standard of review is subject to any alternate standard set out in the governing statute. London cites the recent Supreme Court of Canada case of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 37 in support of its position.

[10] The POA sets out no such alternative standards.

THE EVIDENCE AT THE TRIAL

[11] The prosecution’s evidence in court was provided by way of the filing of the Form 1 – Certificate of Offence. In many ways, that document contains the same information contained in the offence notice which is most often, in Part I matters under the POA, served at the roadside by the investigating officer who is alleging that a traffic offence has been committed.

[12] A Certificate of Offence is a regulated form under O.Reg. 108/11. It sets out statements by the officer completing it, including the following:

The charging officer’s identification;

The date, time and location of the alleged offence;

The name, address, driver’s license number and the date of birth of the person charged;

The plate number of the driver’s vehicle;

The specifics of the offence alleged;

The fact that the person charged was served with an offence notice; and

The set fine for the offence.

[13] A Certificate of Offence was filed as evidence in the trial of this matter. The authority for so doing is found in Schedule 35 to the Stronger, Fairer Ontario Act (Budget Measures), S.O. 2017, c. 34 which amended section 48.1 of the POA to permit the use of certified statements where the proceeding was commenced by way of a Certificate of Offence under Part I or Part II of the POA and a set fine is specified for the offence.

[14] Evidence admitted by way of certified statement is proof of these facts, subject to consideration of evidence to the contrary as set out in section 48.1(2) of the POA.

[15] In the trial of this case, London also filed a certified Ministry of Transportation document, commonly known as a Plate-by-Date search, which stated that the validation for the permit attached to the same licence plate set out on the Certificate of Offence was expired as of the offence date. This document is permitted to be filed as certificate evidence pursuant to section 210(7) of the HTA. That section contains similar wording to section 48.1(2) of the POA, as section 210(7) concludes by stating that the copy of the document so filed “is proof, in the absence of evidence to the contrary, of the facts contained in the copy or statement.”

[16] In York (Regional Municipality) v. Iagolnik, 2022 ONCJ 318 (“Iagolnik”) Kenkel J. sets out what would need to occur, practically, to establish evidence to the contrary. At paragraph 14, His Honour states:

As the prosecution evidence in these cases relies solely upon the certified statement, there typically will be no evidence to the contrary found in the prosecution case. This means that where the Certificate of Offence sets out evidence that otherwise proves the prosecution case, the evidentiary burden shifts to the accused to call evidence to the contrary. The defence may call evidence contesting any or all of the assertions in the certified statement.

[17] In the trial of this case, the Respondent did not call any evidence.

[18] Nevertheless, the trial justice of the peace indicated his belief that “there should be some viva voce evidence in order to satisfy identification as to the driver of the motor vehicle.” He goes on to say that the Certificate of Offence does not indicate how the officer was satisfied that the person operating the motor vehicle was Sheeler, and that the allegation of the Certificate of Offence does not satisfy identity.

[19] With respect, the trial justice of the peace was incorrect in law with respect to both these statements.

THE LAW

[20] This case is not the first time that a trial justice of the peace, in an HTA matter, has been concerned or uncomfortable about proceeding by way of certificate evidence. While such hesitation may be understandable, it cannot, in and of itself, provide grounds for a dismissal of a charge.

[21] In R. ex Rel. Go Transit/Metrolinx v. Allen, 2016 ONCJ 104 (“GoTransit/Metrolinx”), Caldwell J. considered an appeal of a decision made by a trial justice of the peace. In that case, Allen had been served with a Certificate of Offence which alleged that he had been travelling on a Go Train without a ticket. The certified statements contained in the Certificate of Offence in that case include the officer’s belief that Allen had committed the specified offence, and other details such as Allen’s birthdate and address. Not surprisingly, given that this was not a driving offence, Allen’s driver’s licence number was not included in the Certificate of Offence.

[22] Caldwell J. summarizes, at paragraph 10 what then happened in the trial:

The transcript reveals that the Justice of the Peace was quite disturbed about the missing license or other details indicating how the provincial offences officer verified identity. She speculated that the person charged might not have been Mr. Allen and may have provided a false name. She pointed to section 48.1(4) [of the POA], noting that the burden of proof remained on the prosecution, and dismissed the charge, holding that she was not satisfied that it had been proven beyond a reasonable doubt that Mr. Allen was the identify of the person stopped.

[23] Caldwell J. then provides the crux of her reasons at paragraph 11 where she states: “The difficulty, however, is that proceeding in this manner totally nullifies the powers created by section 48.1”.

[24] She then provides her conclusions in paragraphs 12 and 13:

I agree with the Justice that the burden still rests upon the prosecution to prove the offence beyond a reasonable doubt – that fact is made clear by section 48.1(4). This sub-section must be read, however, in conjunction with section 48.1(2). That sub-section states that a certified statement in the certificate of offence is proof of the facts certified in it in absence of evidence to the contrary.

In this case, the certificate of offence included the statement that Mr. Allen was the person stopped. There was no evidence to the contrary. As a result, there was no evidentiary basis to conclude that anyone other than Mr. Allen had been observed committing the specified offence. The only reasonable conclusion, in the circumstances, was that the person found committing the offence was Mr. Allen.

[25] In York (Regional Municipality) v. Lai, 2022 ONCJ 317 (“Lai”) Kenkel J. considered a similar situation, though in the form of an appeal of a speeding conviction. The facts are set out in more detail in that decision but can be briefly summarized. The prosecution proceeded on a speeding charge by filing a certified statement of evidence. The defendant did not call any evidence.

[26] The trial justice of the peace dismissed the charge on the basis that too many unanswered questions remained. The agent for the defendant, at trial, summarized them as follows: First, we don’t know if a speed measurement device was used. Second, if a device was used, maybe that device wasn’t recently calibrated. Third, maybe that device was no longer in working order. Fourth, maybe the device was malfunctioning to such a degree that it displayed a false speed reading. The prosecution appealed.

[27] Kenkel J. provides the key points of his ruling in paragraphs 6 and 7 of Lai:

The ‘unanswered questions’ submissions were not based on any inference arising from the evidence before the court. A trial court must consider alternate theories proposed by the defence, but those theories must be based on inferences reasonably arising from the evidence, not speculation – R. v. Villaroman, 2016 SCC 33 at para 42. In a similar manner, the theoretical possibility of device error as would be present in any case does not assist the defendant – R. v. Crosthwait, [1980] SCJ No. 30. Mere conjecture is not evidence to the contrary.

As the Municipal Prosecutor submitted at trial, the certified statements in the Certificate of Offence proved each element of the speeding offence. Those statements were deemed proof of these facts in the absence of evidence to the contrary – s. 48.1(2) POA. As there was no evidence to the contrary called, there was only one verdict available on the evidence before the court.

APPLICATION OF THE LAW TO THIS CASE

[28] The situation in our case is, legally, virtually identical to those outlined in GoTransit/Metrolinx and Lai. In the Certificate of Offence in our case, the officer certifies that it was Sheeler who was driving a vehicle with a specific licence plate number and that it did not have a currently valid permit. The Plate-by-Date search, also filed by London in the trial, confirms that that specific vehicle, with that same license plate, did not have a currently valid permit as of the date of the offence.

[29] Exactly like in GoTransit/Metrolinx and Lai, there is no evidence to the contrary, only speculation raised either by the defence representative or the justice of the peace.

[30] As in GoTransit/Metrolinx and Lai, the only verdict available to the justice of the peace in our case, in the absence of any evidence of the contrary, was to convict Sheeler, as the certified statement filed by London is deemed to be proof of the facts contained therein pursuant to section 48.1(2) of the POA. The same conclusion is arrived at Iagolnik.

[31] However, Kenkel J. in Iagolnik, at paragraphs 26 and 27, provided an apt warning to POA prosecutors:

The certified statements were admissible and deemed proof of those facts in the absence of evidence to the contrary. While that relieves the prosecution of calling a witness to establish the basic elements of the offence, it provides no further advantage. The prosecution still must prove the charge alleged beyond a reasonable doubt.

The minimal certified statements are plainly vulnerable to challenge. Evidence that may leave a doubt in this context might be as simple as the sworn testimony of the defendant that is accepted or survives cross-examination to the extent that it leaves a doubt…The lack of context to the brief assertions in the Certificate of Offence provides little support when that evidence is challenged by evidence to the contrary.

CONCLUSION

[32] As there was no evidence to the contrary in this case, the appeal is allowed, the dismissal of the charge is set aside, and a finding of guilt is made.

Released: May 16, 2024 Signed: Justice T. Stinson