ONTARIO COURT OF JUSTICE
DATE: 2025-04-25
COURT FILE No.: Guelph: Certificate Numbers: 4660-997-23-15000552-00; 4660-994-23-S5060499-00; 4660-994-23-S5060553-00; 4660-997-23-15000538-00
BETWEEN:
City of Guelph
— AND —
Jamal Ibrahim Faraj; Abdullah Mahmood Al Sammarie; Domenico Barillari and Hope Jessica Benham
Before Justice of the Peace M A Cuthbertson
Heard on 23 and 30 January 2025
Reasons for Judgment released on 17 April 2025.
Lund, N ........................................................................................................ for the prosecution
No appearance by any of the four defendants.
JUSTICE OF THE PEACE CUTHBERTSON:
OVERVIEW
[1] On 15 November 2024, mail delivery was stopped due to a postal workers strike against Canada Post. The strike ended on 17 December 2024 but delivery delays continued into January 2025. This disrupted the normal issuance of Notices of Trial by mail for Part I court appearances under the Provincial Offences Act (POA).
[2] In Guelph, the POA administration was concerned about a lack of upcoming scheduled matters to be heard in the local POA courts due to the inability of sending Notices of Trial by mail. The administration decided to send the Notices of Trial by email only where it had email addresses for defendants waiting to have their matters heard in court.
[3] Mr Lund advised that this is a test case as there appears to be no prior decisions on the issue of email only Notices of Trial. As a result, Mr Lund and I chose four distinct matters which were representative of all the matters on the court’s docket on 23 January for me to consider in this decision.
[4] The Faraj matter was for an Automated Speed Enforcement System Certificate of Offence in Form 2.2 and a Form 5.2 Automated Speed Enforcement System Offence Notice. The Al Sammarie matter was for a Red Light Camera System Certificate of Offence in Form 2 and a Form 5 Red Light Camera System Offence Notice. All of these Forms are pursuant to Provincial Offences Act, O. Reg 108/11.
[5] The Barillari matter was for an Automated Speed Enforcement System Certificate of Offence and Offence Notice in Form 2.2 and 5.2 (see above). The Benham matter was for a Red Light Camera System Certificate of Offence and Offence Notice in Form 2 and Form 5 (see above). However, in both of these matters there was an earlier conviction under s. 9 of the POA. Each defendant applied for and was granted a Reopening under s. 11(1) of the POA. Each defendant filed a Notice of Intention to Appear in Form 8, Provincial Offences Act as part of their Reopening application.
[6] All four defendants were issued Notices of Trial by email only on 6 December 2024 in Form 9 (Provincial Offences Act, O. Reg. 108/11) for trial on 23 January 2025 but none of them appeared on that date.
[7] The issue before me is whether a Notice of Trial sent only by email provides jurisdiction over a defendant under the POA and regulations which then would permit me to proceed under s. 9.1 of the POA.
[8] Worth noting is that this issue only arises when a defendant does not appear on their trial date (see London (City) v Erdesz, [2009] O.J. No. 1008 at para 9).
[9] As I will set out below, I find that due to a misinterpretation of the statutes and/or the associated regulations, I do not have jurisdiction to proceed under s. 9.1.
ANALYSIS OF THE LAW AND THE FARAJ AND AL SAMMARIE MATTERS
[10] Section 9.1 of the POA provides the authority to proceed on a Part I offence where a trial has been properly scheduled but the defendant fails to appear. It states:
Failure to appear at trial
9.1 (1) A defendant is deemed to not wish to dispute the charge where the defendant has been issued a notice of the time and place of trial and fails to appear at the time and place appointed for the trial. 2009, c. 33, Sched. 4, s. 1 (14).
Examination by justice
(2) If subsection (1) applies, section 54 does not apply, and a justice shall examine the certificate of offence and shall without a hearing enter a conviction in the defendant’s absence and impose the set fine for the offence if the certificate is complete and regular on its face. 1993, c. 31, s. 1 (3); 2020, c. 18, Sched. 18, s. 15.
Quashing proceeding
(3) The justice shall quash the proceeding if he or she is not able to enter a conviction. 1993, c. 31, s. 1 (3).
[11] Mr Lund submitted that there was ‘proper notice of the time and place of the trial’ as email notices are permitted under the POA. Specifically, he relied on the fact that in the Faraj and Al Sammarrie matters each of the two defendants gave the administration permission to send them emails by providing an email address and signing a Notice of Intention to Appear in Court on the Form 5 or 5.2 when they chose Option 3 (Trial Option) on those Forms. They each received the applicable Form when charged.
[12] Forms 5 and 5.2 provide the same wording under Option 3, which states:
OPTION 3 – Trial Option – Ontario Court of Justice, Provincial Offences Office
NOTICE OF INTENTION TO APPEAR IN COURT:
I intend to appear in court to enter a plea of not guilty at the time and place set for the trial and I wish to have the trial conducted in the English language. I understand I may be convicted in my absence if I do not attend the trial.
I request a ________________language interpreter for the trial.
(leave blank if inapplicable)Signature
NOTE: If you select the trial option, you must sign and send this whole page to the court address stated. You will be sent important notices to the address and/or email on file. You must notify the court if your mailing address or email changes. Your matter may be scheduled by electronic method (e.g., audio or video). If you are unable to participate by electronic method, please contact the court office.
Changes to your address (if applicable): Offence Notice No.
Telephone number and email:
[13] I agree with Mr Lund that a Notice of Trial is important.
[14] Mr Lund relied on s. 87 of the POA for the possible methods of delivery. That section states:
Delivery
87 (1) Any notice or document required or authorized to be given or delivered under this Act or the rules of court is given or delivered if,
(a) delivered personally or by mail;
(b) delivered in accordance with a method provided by this Act or the regulations; or
(c) delivered in accordance with a method provided under any other Act or prescribed by the rules of court. 2009, c. 33, Sched. 4, s. 1 (51); 2015, c. 27, Sched. 1, s. 3 (6).
Exception, personal delivery
(1.1) Despite subsection (1), a notice or document shall be delivered personally if this Act or the rules of court require it to be given or delivered personally or in person. 2015, c. 27, Sched. 1, s. 3 (7).
Rebuttable presumption, mail delivery
(2) If a notice or document that is to be given or delivered to a person under this Act is mailed to the person at the person’s last known address appearing on the records of the court in the proceeding, there is a rebuttable presumption that the notice or document is given or delivered to the person. 2015, c. 27, Sched. 1, s. 3 (8).
Rebuttable presumption, electronic delivery
(2.1) If a notice or document that is to be given or delivered to a person under this Act is delivered electronically, in accordance with a method provided by the regulations, to an email address or phone number that the person has provided for the purpose of receiving electronic notices or documents, there is a rebuttable presumption that the notice or document is given or delivered to the person. 2015, c. 27, Sched. 1, s. 3 (8).
Regulations
(3) The Lieutenant Governor in Council may make regulations respecting the method of delivery for any notice or document, including additional electronic methods, for the purposes of this Act. 2009, c. 33, Sched. 4, s. 1 (51).
[15] Section 87(1) provides for delivery by mail and/or through other means that may be detailed in regulations. In para 87(2) and (2.1), it also provides for rebuttable presumptions for mail and electronic delivery.
[16] I now turn to O. Reg. 67/12 of the POA as the regulation which deals with electronic service. It states:
Electronic Documents
Definitions
- In this Regulation,
“electronic” and “electronically” have the meanings set out in the Electronic Commerce Act, 2000; (“électronique”, “par voie électronique”)
“electronic signature” has the meaning set out in the Electronic Commerce Act, 2000. (“signature électronique”) O. Reg. 67/12, s. 1.
Electronic signing
2. For the purposes of subsection 76.1 (1) of the Act, a document may be signed or endorsed by electronic means if the method of signing results in an electronic signature being in, attached to or associated with the document. O. Reg. 67/12, s. 2.
Electronic filing
3. (1) For the purposes of subsection 76.1 (1) of the Act, a document may be filed with a court office by direct electronic transmission if,
(a) the document or the data or information in, attached to or associated with the document is sent to the court office electronically or on a computer-readable medium;
(b) the court office has indicated that the method of sending and the technical specifications of the document are acceptable to it; and
(c) the document or the data or information in, attached to or associated with the document indicates,
(i) the name of the document,
(ii) the form number and version date, if the document is a form,
(iii) the defendant’s name,
(iv) for a document relating to a proceeding commenced under Part I or II of the Act,
(A) if a court file number has not been assigned, the offence number and court location code, or
(B) if a court file number has been assigned, either the court file number or the offence number and court location code,
(v) for a document relating to a proceeding commenced under Part III of the Act, the court file number, if one has been assigned. O. Reg. 67/12, s. 3 (1).
(2) If a document is filed with a court office in accordance with subsection (1), the clerk of the court office shall ensure that an acknowledgment of receipt is sent to the filer indicating the date of receipt of the document. O. Reg. 67/12, s. 3 (2).
Electronic delivery
4. For the purposes of section 87 of the Act, a notice or document is sufficiently given or delivered by an electronic method if,
(a) the notice or document or the data or information in, attached to or associated with the notice or document is sent to the recipient electronically or on a computer-readable medium;
(b) the recipient has indicated that the method of sending and the technical specifications of the document are acceptable to it; and
(c) the document or the data or information in, attached to or associated with the document indicates,
(i) the name of the document,
(ii) the form number and version date, if the document is a form,
(iii) the defendant’s name,
(iv) for a document relating to a proceeding commenced under Part I or II of the Act,
(A) if a court file number has not been assigned, the offence number and court location code, or
(B) if a court file number has been assigned, either the court file number or the offence number and court location code,
(v) for a document relating to a proceeding commenced under Part III of the Act, the court file number, if one has been assigned. O. Reg. 67/12, s. 4.
Timing of filing or delivery
5. A document that is filed or delivered electronically is deemed to be filed or delivered on the day the document is available to be retrieved and processed by the recipient, even if the recipient is not able, for his or her own technical or other reasons, to retrieve and process it on that day. O. Reg. 67/12, s. 5.
Use and retention of electronic documents
6. (1) For every document that is filed under section 3 of this Regulation or retained under subsection 76.1 (1.1) of the Act, a record shall be made of the document such that it is possible to view and print a copy of,
(a) the document, if any, as it looked when it was received from the sender; and
(b) the data and information, if any, in, attached to or associated with the document, as it was when it was received from the sender. O. Reg. 67/12, s. 6 (1).
(2) A document filed under section 3 of this Regulation or retained under subsection 76.1 (1.1) of the Act, or an electronic court record that includes the document, may be altered if,
(a) a permanent archive is maintained that specifies the alteration and identifies when and by whom it was made;
(b) the alteration would be required or authorized to be done to the equivalent paper court record or is otherwise authorized by law; and
(c) the record of the document or of the data or information in, attached to or associated with the document, made in accordance with subsection (1), is not altered. O. Reg. 67/12, s. 6 (2).
(3) A printed copy of a document filed under section 3 of this Regulation or retained under subsection 76.1 (1.1) of the Act that is used for the purpose of disposing of a charge under the Act shall be deemed under subsection 76.1 (2) of the Act to have been filed as the original document if the printed copy is the only copy printed for the purpose and has marks on it indicating the time and date that it was printed and that it is the original document. O. Reg. 67/12, s. 6 (3).
(4) A justice of the peace, judge of the Ontario Court of Justice, judge of the Superior Court of Justice or any other judge may complete and sign by electronic means any electronic document so as to indicate the disposition of the proceeding or reflect an order that was made relating to a step in a proceeding. O. Reg. 67/12, s. 6 (4).
(5) The period of time for which a document is to be retained is not affected by whether the document is filed or maintained in an electronic format. O. Reg. 67/12, s. 6 (5).
[17] Regulation 67/12 sets out a sophisticated set of requirements for electronic documents (which includes emails) to be used by the court office (ie: POA administration) and a defendant.
[18] Mr Lund submitted that by including an email address under Option 3 on Forms 5 and 5.2 the defendants (Faraj and Al Sammarrie) gave their permission to receive documents from the POA administration. Mr Lund also submitted that every email service can receive a PDF file which is the format Notices of Trial are sent to a defendant by the court office. Perhaps. However, that assumption does not meet the legal requirements of the regulation, as I will now discuss.
[19] Section 4(b) is worth reproducing again for further analysis. It states:
- For the purposes of section 87 of the Act, a notice or document is sufficiently given or delivered by an electronic method if,
(b) the recipient has indicated that the method of sending and the technical specifications of the document are acceptable to it
[20] It follows then as a first step, the recipient must indicate that the use of email is acceptable to them. In my view, by including their email address in the Notice of Intention to Appear filed with the court under Option 3, the defendants provided a tacit indication that the ‘method of sending’ which was via email from the POA administration was acceptable to them. However, that does not meet the second test in 4(b). That wording satisfies me that the recipient must make an explicit statement that ‘the technical specifications of the document are acceptable” to them before the court office can send attached documents such as a Notice of Trial to the recipient.
[21] These requirements make sense when compared to Notices of Trial being sent by mail. If a sender chooses to use mail, it is done at their cost and there is no cost to the recipient as Canada Post will put the envelope or package (either may include multiple documents) in the recipient’s mail receptacle assuming that the name and address etcetera, is correct. If it is undeliverable then it is returned to the sender. This process applies to all mail in Canada.
[22] These requirements also make sense when I consider that the use of email by a defendant is dependent on their desire/ability to afford the technology and software necessary to use email and receive and open any attached documents in a format which is readable by the defendant. I take judicial notice that there are a myriad of offerings from the providers of electronic devices and electronic services (including email services) in today’s marketplace. A person may choose to pay for a device and/or email capabilities with limited abilities to receive/send emails and/or limited or no means to receive and open documents. That same person may choose to use filters on their email to eliminate certain types of email that they do not wish to receive. If that is the case then they would need to adjust those filters if they agree to receive emails with documents from the court office. Simply put there is no uniform standard in the world of technology and software which mirrors the uniformity of mail delivery by Canada Post. In my view, this is exactly why s. 4 (b) requires that the recipient must “indicate that the method of sending and the technical specifications of the document are acceptable to it”.
[23] In all of the documents provided to me that were sent to these two defendants by the court office, I have not found any that satisfies me that the administration sought and had received the agreement of these two defendants that the technical specifications of the document (ie: Notice of Trial in PDF format) were acceptable to them. As a result, the requirements of s. 4 (b) were not complied with by the court office. Therefore, the Notice of Trial having been sent by electronic means (ie: email only) was not sufficient.
[24] Mr Lund also submitted that email only should be permitted without the defendant’s acceptance of the second requirement of s. 4 (b) since a defendant has the right to make a s. 11(1) Reopening Application (if convicted under s. 9.1), if they did not receive an email containing a Notice of Trial (see s. 87(2.1) above). That is certainly available to a defendant but it takes effort and time to research and understand that possibility. As well, a defendant wishing to proceed under s. 11(1) must get the forms, complete them and submit them to the POA administration. Then, they must wait for a decision by a justice of the peace as to whether their Re-opening application is successful or not. If the Re-opening application is denied then further inconvenience, cost and time will be required for the defendant to appeal the denial. The process on Part I matters is designed by the legislature to be easy and minimally invasive for self-represented defendants. Expecting a defendant to use s. 11(1) as a default option is misguided, in my view. The obligation is rightly placed on the POA administration to meet the tests under s. 4 (b) before it defaults to an email only method of issuing a Notice of Trial.
THE BARILLARI AND BENHAM MATTERS - VARIATIONS ON THE PROCEDURES AFTER THEIR RE-OPENINGS
[25] I briefly set the circumstances of these two defendants in para 5 above. These matters are different from the Faraj and Al Sammarie matters only as a result of their convictions under s. 9 of the POA and the subsequent Re-openings under s. 11(1) of the POA. What makes them different is that as part of the documentation they were provided by the POA administration was a Re-opening Application in Form 102, Courts of Justice Act, R.R.O. 1990, Reg 200 and a Notice of Intention to Appear in Form 8, Provincial Offences Act.
[26] On the Form 102, each defendant was provided a space to supply their email address and did so. However, the Notice of Intention to Appear in Form 8 does not have the same NOTE which appears in the Notice of Intention to Appear under Option 3 in Forms 5 and 5.2 which were used in the Faraj and Al Sammarie matters. As noted above, in those Forms, it states:
NOTE: If you select the trial option, you must sign and send this whole page to the court address stated. You will be sent important notices to the address and/or email on file. You must notify the court if your mailing address or email changes. Your matter may be scheduled by electronic method (e.g., audio or video). If you are unable to participate by electronic method, please contact the court office.
Changes to your address (if applicable): Offence Notice No.
Telephone number and email:
[27] The Form 8 Notice of Intention to Appear only requests a mailing address and includes the following:
Note: If you fail to notify the court office of address changes you may not receive important notices e.g., your Notice of Trial. You may be convicted in your absence if you do not attend the trial.
There is no mention of the use of or permission to use emails, at all.
[28] This Form 8 was created on 15 March 2014 and appears to have not been updated when the new Forms 5 and 5.2 were introduced on 10 May 2021.
[29] Therefore, these two defendants had never agreed to the use of email to receive important notices such as a Notice of Trial, in any way.
[30] Having said that my other analysis and conclusions remain identical for the Barillari and Benham matters as for the Faraj and Al Sammarie matters.
CONCLUSION
[31] For all four defendants, I find that service by email only, was not sufficient. As a result, I do not have jurisdiction over any of the defendants to proceed under s. 9.1 of the POA.
[32] To regain jurisdiction but in the absence of the legal requirements having been met for service by email, I am directing the POA administration to issue Notices of Trial by mail, to all four defendants.
Released: 17 April 2025
Signed: “Justice of the Peace M A Cuthbertson”