ONTARIO COURT OF JUSTICE
DATE: 2025 01 24
File # 2222712X
Location: Newmarket, Ontario
BETWEEN:
HIS MAJESTY THE KING
Respondent
— AND —
ANTONIO DIMILTA
Applicant
Before Justice R.M. Robinson
Heard on 13 December 2024
Reasons for Judgment released on 24 January 2025
Sandra Quadrini........................................................................ counsel for the respondent
The applicant Antonio Dimilta................................................................ on his own behalf
ROBINSON J.:
INTRODUCTION
[1] On 8 February 2023, shortly after 8:33 am, P.C. Kwame Agyei #1473 gave Antonio Dimilta (the applicant) an Offence Notice for failing to stop at a stop sign, contrary to s.136(1)(a) of the Highway Traffic Act (HTA).
[2] The matter was set down for trial on 31 May 2024. Mr. Dimilta made the strategic decision not to attend for his trial. Justice of the Peace R. Therrien convicted Mr. Dimilta in absentia and imposed a fine of $85.00 plus costs, for a total amount of $110.00.
[3] Mr. Dimilta appeals his conviction because of an alleged error on the Certificate of Offence completed by P.C. Agyei. He submits that, despite his failure to appear for trial, Justice of the Peace Therrien was obliged to examine the Certificate of Offence pursuant to s.9.1(2) of the Provincial Offences Act (POA); and that such an examination should have led Justice of the Peace Therrien to quash the proceeding under s.9.1(3) POA.
[4] The issue in this case is whether Justice of the Peace Therrien ought to have concluded that the Certificate of Offence was not “complete and regular on its face”, as required by s.9.1(2) POA.
PHILOSOPHY OF THE PROVINCIAL OFFENCES ACT
[5] The purpose of the POA is set out in the statute itself[^1] and has been addressed repeatedly in the jurisprudence.
[6] For example, in R. v. Davis, the Ontario Court of Appeal commented on the POA’s philosophy being incompatible with placing form over substance:
…The Act is intended to permit judges to decide cases on their merits, to deal efficiently and inexpensively with the province’s large volume of minor regulatory offences, and to avoid having proceedings invalidated because of technical objections or irregularities having no prejudicial impact on a defendant.[^2]
[7] That philosophy was “intended to establish a speedy, efficient and convenient method of dealing with offences.”[^3]
[8] In R. v. Kwoon, Justice Howden noted that the arrival of the POA “introduced a procedure weighted toward dealing with provincial offences on the merits in realistic, decisive terms rather than on formal or procedural technicalities.”[^4]
DEFAULT PROCEEDINGS
[9] Where, as here, a defendant fails to appear at trial, s.9.1(2) POA requires a justice to examine the Certificate of Offence and enter a conviction “if the certificate is complete and regular on its face.” If it is not complete and regular on its face, s.9.1(3) POA requires the justice to quash the proceeding.
[10] Of note, the jurisdiction of the justice to amend a Certificate of Offence (set out in s.34 POA), or to entertain a motion to quash the Certificate of Offence (set out in s.36 POA), does not extend to the special powers and procedure conferred by s.9.1 POA in the case of default proceedings. As Justice Javed noted in Durham (Regional Municipality) v. Souvannarath:
“there is nothing improper about choosing to default for ‘tactical’ reasons if the certificate of offence is defective.”[^5]
“COMPLETE AND REGULAR ON ITS FACE”
[11] Although this phrase is not defined by statute, the courts have provided guidance on its proper interpretation. In Corporation of the City of London v. Young, the Court of Appeal for Ontario held that, in determining if the Certificate was complete and regular on its face, “the justice is effectively determining whether the defendant received effective notice of all the information needed to decide whether to default.”[^6]
[12] At issue in that appeal was the import of an incorrect set fine amount on the Certificate of Offence. The Court of Appeal’s conclusion that an incorrect set fine amount invalidated the Certificate of Offence was clearly correct: without knowing the penalty one is facing, how could one make an informed decision whether to contest the offence or to concede default?
[13] However, not every deficiency or inaccuracy is sufficient to invalidate a Certificate of Offence. In Chow v. York (Regional Municipality), Justice Kenkel held that “[a] certificate of offence will only be quashed on a s.9.1 review where there is potential prejudice to the defendant in that he or she does not have the necessary information required in order to decide how to proceed.”[^7]
[14] Along this line, Justice Kenkel further found that where there is incorrect information that has the potential to mislead or cause prejudice to the defendant and her or his choice regarding default, the Certificate is not regular and complete.[^8]
[15] In Souvannarath, Justice Javed found that the concept of effective notice to enable a defendant to make an informed choice as to whether to default went beyond simply knowing the case to meet – it also implied an acknowledgment by the defendant that the state would be able to secure a lawful conviction.[^9]
THE ALLEGED ERROR
[16] The Offence Notice issued by P.C. Agyei, as well as the Certificate of Offence placed before Justice of the Peace Therrien, contained the following information:
- Officer: AGYEI, Kwame (#1473)
- Date: 8 February 2023
- Time: 8:33 a.m.
- Name: DIMILTA, Antonio R.
- Address: 79 Goudie Cres, Stouffville, Ontario L4A 0L8
- Municipality: Stouffville
- Place of offence: Goudie Cres / Mostar St
- Municipality: Markham
- Offence: Disobey Stop Sign – Fail to Stop, s.136(1)(a) HTA
- Set fine amount: $85.00
- Total payable: $110.00
[17] Mr. Dimilta submits that the place of the offence that is indicated is wrong, as the intersection of Goudie Crescent and Mostar Street falls within the municipality of Whitchurch-Stouffville, not Markham. Accordingly, he submits that the Certificate of Offence is not “complete and regular on its face” and ought to have been quashed upon inspection.
[18] As noted by Mr. Dimilta in his supplementary submissions, the role of a provincial offence appeal court is narrowly circumscribed: I must assess the record that was before Justice of the Peace Therrien and determine if he erred by not concluding that the Certificate of Offence was not “complete and regular on its face” and by not quashing it.
[19] I have concluded that Mr. Dimilta’s argument fails for several reasons.
[20] First, on the record before Justice of the Peace Therrien, it was open to him to conclude that the intersection of Goudie Crescent and Mostar Street was, in fact, in Markham.
[21] Justice of the Peace Therrien could have concluded that the address of 79 Goudie Crescent (which was not the place of the offence and, therefore, was not an essential element) was incorrectly noted as Stouffville.
[22] In the alternative, Justice of the Peace Therrien could have concluded that 79 Goudie Crescent was in Stouffville, but the exact location of the offence near the intersection of Goudie Crescent and Mostar Street was in Markham. As all adjacent municipalities have a border, on one side of that border is one municipality and on the other side is the other municipality. There was no reason for Justice of the Peace Therrien to question the possibility that 79 Goudie Crescent fell on one side of the border and a location near the intersection of Goudie Crescent and Mostar Street fell on the other side.
[23] That the applicant now submits (and the respondent appears to concede) that the location of the offence was actually in Stouffville, not Markham, is of no moment because that information was not before Justice of the Peace Therrien. There was no basis for him to conclude that Markham was an error. Simply put, my role as POA appeal judge does not involve playing Monday morning quarterback.
[24] In Souvannarath, Justice Javed quite correctly found that “out of area” was not a municipality and was, therefore, wrong. In the present case, there was no reason for Justice of the Peace Therrien to find that “Markham” was not a municipality or was the wrong municipality.
[25] Second, in determining if the Certificate of Offence was “complete and regular on its face”, Justice of the Peace Therrien was obliged to consider if the information contained therein had the potential to mislead or cause prejudice to the defendant.
[26] The totality of the information before Justice of the Peace Therrien included the following:
- Mr. Dimilta resided on Goudie Crescent.
- The alleged offence took place near the intersection of Goudie Crescent and Mostar Street. Presumably, Mr. Dimilta was intimately familiar with that location.
- P.C. Agyei served Mr. Dimilta with the Offence Notice at the scene of the alleged offence. There could, therefore, be no confusion about where the offence allegedly occurred.
- The back of the Offence Notice provided a trial option at the Ontario Court of Justice in Newmarket in the Regional Municipality of York.
[27] On the totality of the information before Justice of the Peace Therrien, there was no basis for him to conclude that there was any reason for Mr. Dimilta to have been misled or prejudiced.
[28] Third, and lastly, there is no question that the Regional Municipality is correct, as both Local Municipalities, Markham and Stouffville, fall within the Regional Municipality of York.
[29] In Souvannarath, Justice Javed noted that the trial was held in Durham Region while the offence allegedly occurred in York Region, unlike in Matzov, where the examination “was conducted within the jurisdiction of the court where the offence took place.”[^10]
[30] The potential for Ms. Souvannarath to be misled or prejudiced was evident. She was stopped on Highway 407, west of Keele Street in the City of Vaughan, within the Regional Municipality of York. And yet her Offence Notice directed her to attend for trial in a completely different Regional Municipality, the Regional Municipality of Durham. Understandably, Ms. Souvannarath would believe there was some sort of mix-up, as the alleged offence was nowhere near the Regional Municipality of Durham.
[31] At the time of the hearing of this appeal, on 13 December 2024, I asked Mr. Dimilta for submissions on the import, if any, of an erroneous Local Municipality. The written submissions that I subsequently received from him were of no assistance.
CONCLUSION
[32] The comments of Justice Nakatsuru (then of the Ontario Court of Justice) in R. v. Tang (regarding the officer omitting to indicate “a.m.” or “p.m.” on the Offence Notice) are apposite to the present case:
It is a far-fetched argument to suggest that the appellant was or could have reasonably been misled by this technical omission. There could only realistically be two possible times in which this offence could have been committed; a time in the late afternoon and a time in the very early morning. It would be readily apparent which was being alleged against the appellant. The omission was highly technical and could not have caused any prejudice. In my opinion, this certificate of offence was complete and regular on its face and there was no error in entering a conviction.[^11]
[33] In the present case, I am not satisfied that the totality of the evidence before Justice of the Peace Therrien should have led him to conclude that the Certificate of Offence was not complete and regular on its face.
[34] I find that there was no basis to conclude that the Certificate of Offence contained erroneous information, let alone erroneous information that created the potential to mislead or prejudice Mr. Dimilta.
[35] Mr. Dimilta’s appeal is dismissed.
Released: 24 January 2025
Justice R.M. Robinson
[^1]: S.2(1): The purpose of this Act is to replace the summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code (Canada), with a procedure that reflects the distinction between provincial offences and criminal offences.
[^2]: R. v. Davis, 2017 ONCA 45, para 49
[^3]: R. v. Jamieson, para 5
[^4]: R. v. Kwoon, [1999] O.J. No. 4989 (S.C.J.), para 13. See also Justice O’Neill’s decision in York (Regional Municipality) v. Abadehee, [2004] O.J. No. 918 (S.C.J.), para 14.
[^5]: Durham (Regional Municipality) v. Souvannarath, 2019 ONCJ 177, para 11
[^6]: Corporation of the City of London v. Young et al, 2008 ONCA 429, para 29
[^7]: Chow v. York (Regional Municipality), 2018 ONCJ 818, para 7
[^8]: Chow, supra, at para 9
[^9]: Souvannarath, supra, para 18
[^10]: Souvannarath, supra, para 24
[^11]: R. v. Tang, 2016 ONCJ 627, para 3