SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 6188/12

DATE: 2013-01-31

RE: Regional Municipality of Niagara

and

Alexander Kosyatchkov

BEFORE: Mr Justice Ramsay

COUNSEL: Mr Chisholm for the applicant prosecutor

The defendant responding in person

HEARD: 2013-01-30 at Welland

ENDORSEMENT

[1] The prosecuting municipality applies under s.140 of the Provincial Offences Act for an order in the nature of certiorari and mandamus to set aside the order of Justice of the Peace Barbara Waugh, who quashed the certificate of offence, and to order that the trial proceed.

[2] This is another case of a justice of the peace quashing a perfectly good certificate of offence without having been asked to do so.

[3] The respondent was charged on a certificate of offence in the following terms:

I, D. Harle believe and certify that on 2012 08 26 at 7:22 pm Kosyachkov Alexander [address and driver’s licence number stated] at QEW Highway Town of Grimsby did commit the offence of: 120 km/h in a posted 100 km/h zone contrary to: Highway Traffic Act sect. 128.

[4] The officer served the certificate on the respondent. The respondent gave notice that he wished to dispute the charge and was given a trial date.

[5] On November 6, 2012 the respondent appeared for trial, wanting first to proceed on a motion to stay the proceedings for infringement of his right under s. 11(b) of the Charter to be tried within a reasonable time. The justice interrupted the arraignment and the following transpired:

THE COURT: Pass me the certificate. Well, there you go. There’s no offence. It’s quashed.

MS RUTHERFORD: The matter’s here for trial your worship. There’s no requirement for it to be complete and regular on its face as in a s.9.1 conviction. It is amendable.

THE COURT: But there’s no offence. There is no offence. What do you – you want me to create an offence?

MS. RUTHERFORD: I don’t have the certificate here but does it not say s.128 of the Highway Traffic Act…

THE COURT: It does.

MS RUTHERFORD: … and does it not record a quantum of speed?

THE COURT: It does.

MS RUTHERFORD: I would request that it be amended to include the word speeding.

THE COURT: And what am I going to amend?

MS RUTHERFORD: The offence.

THE COURT: There is no offence.

THE COURT: … You can amend something that is written down on a certificate in error, but I cannot create something that doesn’t exist.

Legislation

[6] The Provincial Offences Act provides as follows:

3. (1) In addition to the procedure set out in Part III for commencing a proceeding by laying an information, a proceeding in respect of an offence may be commenced by filing a certificate of offence alleging the offence in the office of the court.

4. (1) The Lieutenant Governor in Council may make regulations,

(b) authorizing the use in a form prescribed under clause (1.1) (a) of any word or expression to designate an offence.

(1.1) The Attorney General may make regulations,

(a) prescribing the form of certificates of offence, offence notices and summonses and such other forms as are considered necessary under this Part; …

(2) The use on a form prescribed under clause (1.1) (a) of any word or expression authorized by the regulations to designate an offence is sufficient for all purposes to describe the offence designated by such word or expression.

(3) Where the regulations do not authorize the use of a word or expression to describe an offence in a form prescribed under clause (1.1) (a), the offence may be described in accordance with section 25.

25. (1) Each offence charged in an information shall be set out in a separate count.

(2) Each count in an information shall in general apply to a single transaction and shall contain and is sufficient if it contains in substance a statement that the defendant committed an offence therein specified.

(3) Where in a count an offence is identified but the count fails to set out one or more of the essential elements of the offence, a reference to the provision creating or defining the offence shall be deemed to incorporate all the essential elements of the offence.

(4) The statement referred to in subsection (2) may be,

(a) in popular language without technical averments or allegations of matters that are not essential to be proved;

(b) in the words of the enactment that describes the offence; or

(c) in words that are sufficient to give to the defendant notice of the offence with which the defendant is charged.

(5) Any number of counts for any number of offences may be joined in the same information.

(6) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the defendant reasonable information with respect to the act or omission to be proved against the defendant and to identify the transaction referred to.

(7) No count in an information is insufficient by reason of the absence of details where, in the opinion of the court, the count otherwise fulfils the requirements of this section and, without restricting the generality of the foregoing, no count in an information is insufficient by reason only that,

(a) it does not name the person affected by the offence or intended or attempted to be affected;

(b) it does not name the person who owns or has a special property or interest in property mentioned in the count;

(c) it charges an intent in relation to another person without naming or describing the other person;

(d) it does not set out any writing that is the subject of the charge;

(e) it does not set out the words used where words that are alleged to have been used are the subject of the charge;

(f) it does not specify the means by which the alleged offence was committed;

(g) it does not name or describe with precision any person, place, thing or time; or

(h) it does not, where the consent of a person, official or authority is required before proceedings may be instituted for an offence, state that the consent has been obtained.

(8) A count is not objectionable for the reason only that,

(a) it charges in the alternative several different matters, acts or omissions that are stated in the alternative in an enactment that describes as an offence the matters, acts or omissions charged in the count; or

(b) it is double or multifarious.

(9) No exception, exemption, proviso, excuse or qualification prescribed by law is required to be set out or negatived, as the case may be, in an information.

34. (1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,

(a) fails to state or states defectively anything that is requisite to charge the offence;

(b) does not negative an exception that should be negatived; or

(c) is in any way defective in substance or in form.

(2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial.

(3) A variance between the information or certificate and the evidence taken on the trial is not material with respect to,

(a) the time when the offence is alleged to have been committed, if it is proved that the information was laid or certificate issued within the prescribed period of limitation; or

(b) the place where the subject-matter of the proceeding is alleged to have arisen, except in an issue as to the jurisdiction of the court.

(4) The court shall, in considering whether or not an amendment should be made, consider,

(a) the evidence taken on the trial, if any;

(b) the circumstances of the case;

(c) whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission; and

(d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

(5) The question whether an order to amend an information or certificate should be granted or refused is a question of law.

(6) An order to amend an information or certificate shall be endorsed on the information or certificate as part of the record and the trial shall proceed as if the information or certificate had been originally laid as amended.

35. The court may, before or during trial, if it is satisfied that it is necessary for a fair trial, order that a particular, further describing any matter relevant to the proceeding, be furnished to the defendant.

36. (1) An objection to an information or certificate for a defect apparent on its face shall be taken by motion to quash the information or certificate before the defendant has pleaded, and thereafter only by leave of the court.

(2) The court shall not quash an information or certificate unless an amendment or particulars under section 33, 34 or 35 would fail to satisfy the ends of justice.

[7] The prescribed short description of the offence in question is “speeding:” R.R.O. 1990 Reg. 950 as amended.

Application

[8] The legislation permits, but does not require the use of a prescribed word or phrase to describe the offence. If a prescribed word is used, the offence is sufficiently described: R. v. Don’s Triple F Transport Inc., 2012 ONCA 536 (per Feldman J.A. at ¶46, Himel J. (ad hoc) concurring on this point at ¶54.) For example, in the present case, if the officer had written the word “speeding” nothing more would have been required to set out the elements of the offence.

[9] Since the prescribed word was not used, one of two things followed:

a. The certificate had to meet the requirements of s.25 of the Act; or

b. If it did not, the justice was obliged to amend it unless to do so would have failed to satisfy the ends of justice.

The certificate met the requirements of s.25 of the POA

[10] First, the certificate met the requirements of s.25 of the Act. It said that the defendant was committing the offence against s.128 of the Highway Traffic Act on the Queen Elizabeth Way in Grimsby at 7:22 pm on a specified date. According to subsection 25(3) of the POA, reference to the provision creating or defining the offence is sufficient to incorporate the essential elements of the offence. So the certificate told him that he was driving on the highway at an excessive speed at a certain point in time. That was “sufficient detail of the circumstances of the alleged offence to give to the defendant reasonable information with respect to the act or omission to be proved against the defendant and to identify the transaction referred to” within the meaning of subsection. 25(6) of the POA.

If the certificate had not been adequate, the justice was obliged to amend it

[11] When a certificate of offence fails to meet the requirements of s. 25 of the POA, it must be amended on request unless to do so would fail to meet the ends of justice: R. v. Don’s Triple F Transport Inc., per Armstrong J.A. at ¶31. An amendment, had one been required, would not have occasioned any prejudice. The Act contemplates amendment of a certificate at any stage of the proceedings. One would not expect prejudice to result from an amendment at the outset of the proceedings. The matters that s.25(4) requires the justice to take into account would not normally have arisen at that stage.

[12] The justice appears to have thought that she could only amend a certificate by changing words that had been written down incorrectly, as opposed to “creat[ing] something that doesn’t exist.” Subsection 34(1) of the POA says the exact opposite. It says that the court may amend the certificate if it fails to state anything that is requisite to charge the offence, if it does not negative anything that should be negatived or if it is in any way defective in substance or in form.

The justice should not have acted of her own motion

[13] Finally, there was no need for the justice to inquire into the matter in the first place. As the prosecutor correctly pointed out, the defendant was appearing to defend the charge. Accordingly, sections 9 and 9.1 of the POA, which require a justice to examine the certificate before convicting an absent defendant who is not disputing the charge, or who is deemed not to dispute the charge, had no application. The defendant was represented, and had obviously given thought to how he wanted to proceed. There was no reason to depart from the normal procedure in which the party who complains of an inadequate information asks the court to quash it, amend it or order particulars.

[14] The order of the justice is set aside. The matter is remitted to the provincial offences court, which is ordered to proceed with the trial. The defendant is ordered to appear as required by the prosecutor, failing which the provincial offences court may issue process or proceed in his absence.

J.A. Ramsay J.

Date: 2013-01-31