ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-15-124047

DATE: 20151020

BETWEEN:

The Regional Municipality of York

Applicant

– and –

Galina Lorman

Respondent

Chris Bendick, for the Applicant

Galina Lorman, Self-represented

HEARD: October 6, 2015

REASONS

edwards j.:

Overview

[1] Sometimes a lower court decision is overturned on appeal. When that happens, it is expected that the lower court will follow the decision of the higher court. Our system of justice has, for many years, followed the principle of stare decisis. When a lower court refuses to follow the direction of an appellant court our system of justice begins to fail. The lower court simply cannot snub its nose at the decision of the higher court and not expect some consequences down the road. The motion before this court arises precisely out of a situation where a justice of the peace refuses to follow the direction of a higher court.

The Facts

[2] The respondent was charged on May 27, 2015 with the Highway Traffic Act offence of “disobey stop sign – fail to stop”, contrary to section 136(1)(a) of the Highway Traffic Act. The police officer who stopped the respondent used the Part I process under the Provincial Offences Act, by issuing a certificate of offence and serving an offence notice on the respondent. Typically, someone faced with this situation would refer to the Part I process as a “ticket”.

[3] The reverse side of the offence notice lists a number of options which a defendant can use to respond to the charge. In this case, the respondent elected the “early resolution meeting” option. This option is designed to allow the prosecutor to meet with the person charged in an effort to reach a possible resolution.

[4] The early resolution meeting proceeded on September 1, 2015. The prosecutor offered the respondent a resolution, pursuant to which the respondent would plead guilty to the charge of “disobey sign”, contrary to section 182(2) of the Highway Traffic Act. This resolution would result in the respondent having fewer demerit points and a lower fine.

[5] The respondent was brought before Her Worship Shousterman to enter a plea to the reduced charge. During the course of the arraignment, Justice of the Peace Shousterman noted that the certificate of offence had the incorrect municipality. Because the prosecutor did not know the correct name of the municipality, he requested that the matter be set down for trial so that he could call evidence from the investigating police officer as to the correct municipality, and request an amendment to the certificate of offence.

[6] On her own volition, Justice of the Peace Shousterman quashed the certificate of offence, notwithstanding that there was no proper motion by the respondent to do so. In quashing the certificate of offence, Justice of the Peace Shousterman stated on the record as follows:

I could throw it out and then what will happen is that they are going to bring a proceeding against me maybe, in a higher level of court, in which they are entitled to do and quite frankly, so what, they do it all the time…I’m actually being Certiorari’d on this at the moment, let them bring a second one, I am quashing the certificate you are free to go. [Emphasis added]

The Issue

[7] The legal issue raised by this application is whether the justice of the peace committed a jurisdictional error, or an error in law, in essentially bringing her own motion to quash the certificate of offence on the basis that the certificate stipulated the incorrect municipality.

[8] It is clear from a review of the jurisprudence that the spirit and intent of the Provincial Offences Act, and prosecutions conducted thereunder, is to ensure that technical objections do not impede a verdict on the merits. The Provincial Offences Act sets up a process pursuant to which provincial offence matters can be dealt with in a speedy, efficient and convenient way. As MacDougall J. in Ontario Ministry of Labour v. Discovery Place Ltd., [1996] O.J. No. 690, stated:

The overall philosophy of the Provincial Offences Act is to ensure that technical objections do not impede the arrival of a verdict on the merits.

The aforesaid comments of MacDougall J. were upheld by the Court of Appeal in Her Majesty the Queen in Right of Ontario (Ministry of Labour) v. The Corporation of the City of Hamilton (2002) 2002 16893 (ON CA), 58 O.R. (3d) 37.

[9] I agree with the position of counsel for the applicant, that the conduct of Justice of the Peace Shousterman in this case amounted to her own motion to quash the proceedings. In doing so, Justice of the Peace Shousterman proceeded to deal with what she perceived to be a defect on the certificate of offence as if it was a situation under section 9(1) of the Provincial Offences Act. In those situations where the defendant either fails to respond to the charge or fails to meet with a prosecutor for an early resolution meeting, the justice must look at the certificate to see if it is complete and regular on its face and, if it is not, then the certificate must be quashed.

[10] In a situation where the defendant does appear, the provisions of section 9(1) do not apply. Where the defendant attends, section 36 governs what the court must do. Section 36(1) of the Provincial Offences Act provides:

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.

[11] It is abundantly clear, pursuant to section 36, that it is up to the defendant and not the court to bring a motion to quash. The practice of justices of the peace bringing their own motion to quash was disapproved by this court in Regional Municipality of Niagara v. Kostatchkov, [2013] O.J. No. 424. Kostatchkov, supra, was cited with approval in a more recent decision of this court in York (Regional Municipality vs. Datoo), [2014] O.J. No. 3469, where McIsaac J. held:

Unfortunately, this appears to be yet another case of ungoverned activism by a Justice of the Peace presiding in Provincial Offences court who, on her own motion, quashed a certificate of offence for failure to particularize the specific municipality where the alleged act of speeding, contrary to the Highway Traffic Act, had taken place.

It did, however, indicate that the respondent had been stopped at, or near, the intersection of Highway 7 East and South Park Road in the Region of York.

She had no business doing so in the absence of an application to quash.

[12] Justice of the Peace Shousterman did not follow the decisions in Kosyatchkov and Datoo, supra. She also did not follow two other decisions of this court where it was made very clear that she did not have jurisdiction to quash a certificate of offence on her own motion where the defendant was before the court. (See York (Regional Municipality) v. Sambalis, unreported CV-15-121931-00 and York (Regional Muncipality) v. Sekelyk, unreported CV-15-123505-00).

[13] This court can only hope that the comments of Justice of the Peace Shousterman, quoted in paragraph six above, do not reflect her understanding of the role of stare decisis in our judicial system. The Justices of the Peace of this province, including Justice of the Peace Shousterman, perform a very important role in our judicial system. Their decisions, like the decisions of this court, are to be respected and followed. If a litigant is dissatisfied with a decision they may appeal it. Ultimately, we all have to abide by the decisions of an appellate court. Justices of the peace, like judges of this court, are human and may not always like the decision of an appellate court. Fundamentally, however, we must all abide by the decisions of the higher court whether we like it or not.

[14] This court has spoken, on more than one occasion, with respect to the proclivity of Justice of the Peace Shousterman to bring her own motion to quash certificates of offence. Her decision to quash the certificate of offence where there was no motion by the respondent to do so was a clear error of law. It is clear from her earlier decisions that she knew she did not have the jurisdiction to quash the certificate of offence yet she proceeded to do what she knew she had no jurisdiction to do and thus challenged the prosecution to appeal.

[15] The conduct of Justice of the Peace Shousterman has resulted in unnecessary delay and expense, in having a matter that had been resolved between the prosecutor and respondent dealt with in a timely and cost efficient manner. Her decision to proceed in the manner that she did reflects not only an error of law but a lack of appreciation of the principle of stare decisis.

[16] An order of mandamus and certorari quashing the order made by Justice of the Peace Shousterman shall issue, and I further order the clerk of the Ontario Court of Justice to issue a notice of early resolution meeting to the respondent to Certificate of Offence 4961-9299035Z. A declaration shall issue that the information on the Certificate of Offence 4961-92990357 is complete and regular on its face, sufficient for use by the court to proceed with the hearing of the charge against the respondent contained in the certificate of offence.

[17] This application was called in open court on October 6, 2015. The respondent did not appear. Subsequent to reserving my decision on this matter the respondent did appear. As I had dealt with this matter, I advised the respondent that she should contact counsel for the applicant to advise of his position with respect to entertaining argument from the respondent. I waited until the completion of the court day on October 6, 2015 for the respondent to re-attend in court. She did not. I take from her further non-attendance that she is taking no position with respect to the application, and my Reasons shall be sent to Ms. Lorman with a copy to Justice of the Peace Shousterman.

Justice M.L. Edwards

Released: October 20, 2015