ONTARIO COURT OF JUSTICE
DATE: 2025-05-12
COURT FILE No.: Norfolk (County) 23-159
BETWEEN:
THE COUNTY OF NORFOLK
— AND —
LAURIE ANN BALONJAN JEROME
RULING ON MOTIONS TO AMEND S.34, QUASH S.36 POA
Before Justice of the Peace K.W. Bouchard
Heard on September 18, 2024, October 17, 2024
Decision delivered orally on November 14, 2024
Written reasons released May 12, 2025
W. Poziomka .......................................................................................... Municipal Prosecutor
J.P. Maloney .............................................................................. Counsel for the Defendant
BOUCHARD K.W. J.P.:
Introduction
[1] The defendant, Laurie Jerome (LJ), is charged with two counts contrary to s.36(1) and s.8(1) of the Building Code Act (BCA). Specifically, it is alleged that on or about December 16, 2022, the defendant committed the offence of failing to comply with an order made under s.12(2) thereby committing an offence under s.36(1) of the BCA (count 1); further it’s alleged that LJ caused the construction of a building without a permit issued by the chief building official contrary to s.8(1) of the BCA (count 2).
[2] Proceedings were commenced by laying an information under part III of the Provincial Offences Act (POA). Pre-trial motions were heard on September 18, 2024, October 17, 2024 with a verbal ruling delivered November 14, 2024. The matter was set for trial on May 7, 2025 and May 8, 2025; however, on May 7, 2025 late disclosure was provided by the prosecution which had not been reviewed yet by the defence. To ensure trial fairness I vacated the trial dates and rescheduled the 2-day trial for July 8, 2025 and July 15, 2025. For reasons contained herein I previously seized myself with the trial as I made rulings on two pre-trial motions.
[3] With respect to the pre-trial motions the prosecution (moving party, motion 1) requests that the court amend the offence dates on counts 1 and 2 to match the issued summons, further they request that technical defects in the particulars of each count be corrected; the defence (responding party, motion 1) is opposed to the amendment of the offence dates but consents to the amendment of technical defects. The defence (moving party, motion 2) requests that this court quash information 23-159 as not being properly laid under s.23(1.2) of the POA; the prosecution (respondent, motion 2) is opposed to quashing the information. Further the defence (moving party, motion 3) requests that the court find that the requested offence date amendment by the prosecution (i.e. the dates on the summons) are statute barred by the limitation period; the prosecution (responding party, motion 3) disagrees and submits that the offences are continuing offences and therefore are not outside the limitation period.
Issues
[4] To resolve motion 1 the court must decide the following issues:
i. Whether the court can grant an amendment under s.34 of the POA, at the pre-trial phase, to the impugned information to correct a variance in the dates between the information and the summons. In the alternative must the court wait for trial to receive evidence in order to grant the requested amendment.
ii. Whether the court finds there are technical defects within the particulars and charging section on the impugned information.
iii. Whether these proceedings are invalidated by any irregularity or variance between the summons and information, s.90 of the POA.
[5] To resolve motion 2 the court must decide the following issues:
i. Whether information 23-159 was properly laid in accordance with s.23 of the POA to wit it was filed in the prescribed form and under oath before a justice.
ii. In the alternative, was information 23-159 properly laid in accordance with s.23(1.2) without swearing an oath of the POA to wit whether it was delivered in the prescribed form with a written statement that all matters contained therein are true to the officer’s knowledge and belief, and delivering the statement to the justice together with the information.
iii. Whether the prescribed form requires a signature on the jurat proper. Does the lack of a signature from the jurist on the jurat render the information void ab initio?
iv. Whether a signature by the jurist on the statement is equivalent to signing the jurat. Does signing the statement amount to a technical defect that does not render the information a nullity?
v. In the instant case, whether the court can draw reasonable inferences from the information, statement, and summons date that they were received and signed by Her Worship on June 9, 2023.
[6] To resolve motion 3 the court must decide the following issues:
i. What is the statutory limitation period under the BCA?
ii. Whether the doctrine of discoverability has been incorporated into the enabling legislation?
iii. Whether these offences are continuing offences or not.
iv. Whether it is relevant (or not) that the offences are continuing offences when the doctrine of discoverability applies.
Rules
[7] Durno J. in R v EPR Services Inc reviewed an application for certiorari and mandamus. The court had to decide whether the information in this case was a nullity, and whether the Crown was given sufficient opportunity to make submissions. Durno J. ruled that a justice’s signature on a jurat is evidence it was sworn, but not the only mechanism the Crown can prove it was sworn; instead if there is doubt as to whether the information is a nullity the Crown should be afforded an opportunity to provide extrinsic evidence. This case is relevant to motion 1 and 2, as it speaks to the court’s obligation to provide both parties the opportunity to make submissions on amendment requests and challenges to jurisdiction.
[8] Quon J.P. ruled in R v Gwynne, when reviewing a motion to quash under s.36 of the POA, that the fundamental principle behind the P.O.A. is that substance prevails over form, purpose prevails over procedure, and merit prevails over technicalities. In that case the officer failed to sign the certificate of offence at the time it was given to the defendant; instead, they signed it later before it was filed with the court.
[9] I ruled in Hamilton (City) v. Carr, 2025 ONCJ 248, that the doctrine of discoverability has been incorporated into s.36(8) of the BCA. Further I ruled that when the doctrine of discoverability has been incorporated into the enabling statute, the question of whether an offence is continuing or not is irrelevant for determining the limitation period. Finally, I ruled that even if the doctrine of discoverability did not apply, s.8(1) and s.12(2) of the BCA are not continuing offences, therefore the one-year limitation period within s.36(6) BCA would apply.
Application
[10] Turning to motion 1, a clear reading of s.34(1) POA provides jurisdiction to this court to amend an information at any stage of proceedings, not only at trial. Further applying EPR Services Inc the Crown can submit extrinsic evidence to support an amendment. I have reviewed the prosecution’s written submissions dated October 31, 2024 at para 14 which indicates that the date of discovery of the delict will be shown at trial to be October 25, 2022. If I apply Carr then the one-year limitation period would end October 25, 2023. The Crown originally requested to amend the offence dates to a range spanning December 16, 2020 until June 7, 2023; this date range is obviously outside the statutory limitation period and is therefore statute barred. It is not saved by any resort to continuing offences under s.8(1) nor s.12(2) in the BCA as discussed in Carr. The Crown has subsequently abandoned its request for that date range, instead requesting a new date range of December 16, 2022 until June 7, 2023.
[11] Remaining with motion 1, the technical defects in the charging legislation center on a variance between the summons and the information, to wit they cite different versions of the same statute and describe the statute incorrectly. I won’t dwell on this issue as it resolved quickly on consent by way of amendments granted under s.34 POA.
[12] Turning to motion 2, if I apply the guidance from Gwynne, it is clear that the defence’s submissions, that the court lacks jurisdiction, turn largely on technical arguments, to wit the jurist decided to endorse the provincial officer’s written statement, submitted under s.23(1.2) POA, instead of endorsing the jurat as would be done normally under s.23(1) POA. This argument must fail, as Gwynne discusses s.34, and s.90 of the POA demonstrate that substance prevails over form, purpose prevails over procedure, and merit prevails over technicalities. To allow a decision by the jurist to endorse one page over another to cause an information to become a nullity is the height of technicalities over merits. I have reviewed the impugned information, and the written statement. The intent of the jurist is clear without making any speculative inferences, Her Worship received the information on June 9, 2023 in accordance with s.23(1.2).
[13] Turning to motion 3, I will apply my analysis in Carr, in which I found that the compendium of cases in Ontario have decided that where the doctrine of discoverability has been incorporated into the enabling statute, that the limitation period is based on the discovery date, and it is not relevant whether an offence under that statute is a continuing offence. To conclude otherwise would lead to the absurd result that the limitation period purposely included by the legislature is moot. In the instant case s.36(8) clearly shows the limitation period is one year from the date of discovery. The defence submits that s.8(1) is not a continuing offence; however, they submit that s.12(2) of the BCA is a continuing offence. With respect to defence counsel, I disagree, as I explain in Carr this interpretation would permit a “Phoenix” argument where the chief building official could resurrect an offence every day it is not complied with despite it being statute barred. Regardless I have already found that it is not relevant to the limitation period whether the offences under s.8(1) or s.12(2) are continuing offences or not.
Conclusions
[14] For motion 1, it is the ruling of this court that I would grant relief for the prosecution to amend the offence date of count 1 and count 2 from December 16, 2022 (original date) to October 25, 2022 (a date indicated in their written submissions not the information) which would begin a one-year limitation period ending October 25, 2023; I find no prejudice to the defence by granting this relief as it would be within the limitation period of the original offence date ending December 16, 2023. I would not grant the prosecution relief to amend the offence dates to mirror the dates on the summons, which read as December 16, 2020 until June 7, 2023. The summons dates are clearly outside the one-year limitation period specified by s.36(8) of the BCA. Further to expand the liability of LJ from a single calendar date to a 3-year timeframe would prejudice the defence’s ability to provide a full defence and could result in an injustice absent sufficient time provided to the defence to review the prosecution's evidence.
[15] Whereas for motion 2 it is the court’s ruling that the s.36 motion to quash will not be granted. Information 23-159 was properly laid on a form 105 as it then existed, with an attached statement of a provincial offences officer, and delivered to a justice of the peace in accordance with s.23(1.2) of the POA. The court is aware that form 105 has subsequently been updated; it now explicitly includes two jurat signature boxes, for s.23(1) and s.23(1.2) respectively. In the instant case the intake justice endorsed receipt of the information and statement on the statement itself, I find this sufficient, and I find the information was properly laid.
[16] Whereas for motion 3, it is the court’s ruling that the s.36 motion to quash will not be granted. Information 23-159 offence date (as laid under s.23(1.2)) reflects an offence date of December 16, 2022, which if I infer this as the discovery date would further imply a limitation period of December 16, 2023. The information was laid on June 9, 2023, which falls inside that limitation period. Therefore, based on evidence available at pre-trial, the information is not statute barred.
[17] Although I granted relief on motion 1 the prosecution declined to make that amendment request at this time, I will grant them leave to reapply under s.34 based on evidence adduced at trial. Further while I have denied relief on motion 3 to the defence to quash the information as statute barred, I will grant them leave to reapply during the trial proper based on evidence of the offence dates to determine whether they are statute barred by the limitation period. Finally, the technical defects within motion 1 were amended on consent at a pre-trial appearance.
[18] I remain seized with these proceedings.
Signed: Justice of the Peace K.W. Bouchard
Footnotes
[1] Building Code Act, 1992, SO 1992, c 23, retrieved on 2024-10-17 from https://www.ontario.ca/laws/statute/92b23
[2] Provincial Offences Act, RSO 1990, c P.33, retrieved on 2024-10-14 from https://www.ontario.ca/laws/statute/90p33
[3] The court received notice of motions, factums, book of authorities and responses to the court’s questions from both parties. These submissions have been reviewed, including the authorities cited. I have not reproduced these submissions verbatim in these reasons for brevity.
[4] Part III informations are laid on form 105, the older version of the form did not account for the option that a statement would be submitted by the officer. The new form 105 has two jurat locations to account for s.23(1) and s.23(1.2).
[5] Supra note 2
[6] Supra note 2
[7] R v EPR Services Inc, [2002] OJ No 1587
[8] R v Gwynne, [2001] OJ No 331
[9] Hamilton (City) v. Carr, 2025 ONCJ 248, retrieved on 2025-05-09 from https://canlii.ca/t/kc02p
[10] The court has amended its verbal decision of November 14, 2024 which described the completion date of both counts as June 9, 2022 with the end date of the limitation periods as being June 9, 2023. In these reasons the court has instead recognized that the offence date on the information is the only evidence of a completion date before trial commences.
[11] Supra note 1
[12] Supra note 4
[13] I find that the defence’s position would lead to absurd consequences. For example, if they are correct that endorsing the statement in lieu of the jurat renders the information null, I can then infer that thousands if not tens of thousands of POA part III informations sworn using the same form 105 were nullities and their proceedings invalid; instead a practical and functional approach recognizes it is sufficient as long as the receiving justice endorsed receipt on the jurat or the statement.