CITATION: R. v. Singh, 2017 ONSC 7593
COURT FILE NO.: 526/17
DATE: 20171219
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
Crown/ Applicant
v.
HARJIT SINGH
Defendant/ Respondent
BEFORE: Ricchetti, J.
COUNSEL: P. Quilty for the Crown
A. Vishwanth for the Applicant
HEARD: December 15, 2017
RULING ON CERTIORARI APPLICATION
THE APPLICATION
[1] The Crown seeks an order of certiorari quashing the order of Justice of the Peace Gunness made June 1, 2017 wherein the learned judge quashed the information charging Mr. Singh with speeding by going 83 km/h in a 50 km/h zone. The Crown seeks an order remanding the matter to return to the Ontario Court of Justice for trial.
[2] The second issue relates to the service of this certiorari application. The Crown seeks an extension of time for bringing this application.
THE BACKGROUND
[3] On November 18, 2016, Mr. Singh's dump truck hit a motor vehicle turning left, killing the motor vehicle's driver's daughter.
[4] On April 17, 2017, Officer Aujla swore an information that Mr. Singh had, on or about the 18th day of November, 2017 committed the offence of speeding. The information was properly executed by a Justice of the Peace. The Justice of the Peace issued a summons.
[5] The matter came before Justice of the Peace Gunness for a first appearance on June 1, 2017.
[6] Justice of the Peace Gunness, on his own, noted that the date of the offence was in November 2017, a date in the future. Again, on his own, and without a motion by either party, the Justice of the Peace Gunness determined that "the information is no good".
[7] The Crown advised him that the date should be 2016, not 2017. The learned judge stated:
No, this matter went before a justice of the peace. Just - I don't have jurisdiction on that. No jurisdiction.
[8] At that point, after the learned judge determined he had no jurisdiction, the Defendant's agent stated that she would not be attorning to the jurisdiction, to which the learned judge responded: "No jurisdiction".
[9] The learned judge repeated:
I have no jurisdiction to deal with that ma'am, okay?
The Crown sought an indulgence to speak with senior crown, but the learned judge stated: The Court: "I've already made a decision on that." ...
The Crown, You've already made a decision on that?
The Court: Yes.
The Crown: There is no jurisdiction.
The Court: yeah, yeah, the matter went before a justice of the peace and the matter -gave life to an information so it's improper today.
POSITION OF THE PARTIES
[10] The Crown submits that the learned judge erred in that:
a) he did not consider the mandatory provision in the Provincial Offences Act (“POA”) regarding amendments to an information;
b) He failed to allow the Crown to make submissions; and
c) He quashed the information without a motion by the Defence.
[11] The Crown also submits that an order should be granted extending the time for service of the certiorari application in the circumstances of this case.
[12] The Defence submits that:
a) the learned judge had no jurisdiction to amend the information, relying heavily on London (City) v. Young 2008 ONCA 429. As a result, the Defence submits the learned judge did not exceed his jurisdiction;
b) in any event, the learned judge's decision to quash is a decision he was entitled to make, and as a result, within his jurisdiction;
c) an order of Mandamus would, in essence, constitute a relaying of the charge which cannot be done; and
d) the extension for service should not be granted as the Crown could have obtained an order for substituted service.
THE LAW
[13] The relevant sections of the POA are as follows:
28 This Part applies to a proceeding commenced under this Act.
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.
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.
85 (1) Subject to this section, the court may extend any time fixed by this Act, by the regulations made under this Act or the rules of court for doing anything other than commencing or recommencing a proceeding, whether or not the time has expired. 2009, c. 33, Sched. 4, s. 1 (50).
124 (1) Judgment shall not be given in favour of an appellant based on any alleged defect in the substance or form of an information, certificate or process or any variance between the information, certificate or process and the evidence adduced at trial unless it is shown that objection was taken at the trial and that, in the case of a variance, an adjournment of the trial was refused although the variance had misled the appellant.
140 (1) On application, the Superior Court of Justice may by order grant any relief in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari. R.S.O. 1990, c. P.33, s. 140 (1); 2000, c. 26, Sched. A, s. 13 (5).
(2) Notice of an application under this section shall be served on,
(a) the person whose act or omission gives rise to the application;
(b) any person who is a party to a proceeding that gives rise to the application; and
(c) the Attorney General. R.S.O. 1990, c. P.33, s. 140 (2).
141 (1) A notice under section 140 in respect of an application for relief in the nature of certiorari shall be given at least seven days and not more than ten days before the date fixed for the hearing of the application and the notice shall be served within thirty days after the occurrence of the act sought to be quashed.
(4) On an application for relief in the nature of certiorari, the Superior Court of Justice shall not grant relief unless the court finds that a substantial wrong or miscarriage of justice has occurred, and the court may amend or validate any decision already made, with effect from such time and on such terms as the court considers proper.
(emphasis added)
ANALYSIS
[14] Clearly, the offence was not alleged to have occurred on November 18, 2017 but rather 2016. It is plain and obvious to anyone that this was an error on the information. The Crown and the Defendant's agent did not pick up on the error. The mistaken year would have been immediately apparent to the accused from even a cursory review of the Crown's disclosure.
[15] The six month period for laying an information under the POA has passed. As a result, this charge cannot be re-laid.
[16] I am satisfied that a certiorari application is the appropriate manner and the only remedy to review the errors alleged by the Crown. See sections 140 and 141 of the POA. As a result, I have jurisdiction to hear this application. The Defence did not dispute this court's jurisdiction to hear this certiorari application.
[17] It is important to remember that an important goal of the POA is that matters are tried on their merits. Hence, the very broad powers of amendment where there is no prejudice to the accused. See R. v. Davis 2017 ONCA 45 at para 14. See also R. v. Massicotte [2017] ONSC 5837 at paras. 10 - 12.
THE EXTENSION FOR SERVICE OF THE CERTIORARI APPLICATION
[18] Prior to the first appearance, Mr. Singh advised that he would be in India for a month commencing on June 1, 2017.
[19] This certiorari application was issued within the time period required by the POA. No dispute arises in this regard.
[20] The difficulty arose that Mr. Singh was out of the country and would not be returning to permit service within the 30 day period for service of the application. The officer made enquiries and was told that Mr. Singh would be returning to Canada on July 7, 2017.
[21] As a result, the certiorari application could not be served on Mr. Singh before July 8, 2017 because Mr. Singh was out of the country. The certiorari application was served within 2 weeks after Mr. Singh's return to Canada.
[22] The primary submission by the Defence was that the Crown should have obtained a substituted service order. The difficulty with this submission is that there are no clearly applicable rules for certiorari applications under the POA.
[23] The governing section of the POA for the extension of time is s. 85(1). The court has a broad curative power under s. 85 of the P.O.A. to extend the time for service.
[24] The Defence raises no particular prejudice or miscarriage of justice that would be occasioned if the extension were granted.
[25] It appears to this court that, where the application was commenced within the appropriate time but not served in time, a reasonable explanation is given for the delay and there is no evidence of prejudice to the opposing party, the court should grant the extension.
[26] As stated in NMD (ante):
Moreover, the court should exercise this power unless to do so would prejudice the respondents.
[27] In this case, I see no reason why this court should not exercise its discretion to extend the time for service of the certiorari application to July 20, 2017, the date upon which it was served.
[28] So ordered.
THE FAILURE TO CONSIDER AN AMENDMENT
[29] This was an information under s. 23 of the Provincial Offences Act - a Part 3 proceeding. I acknowledge that under s. 34(5) of the POA, the question whether to amend an information is a question of law. This does not relieve the court from its obligation to proceed properly and in accordance with law to arrive at a decision whether to grant an amendment. If the learned judge had proceeded in this manner, the result of this application would likely be different.
[30] I reject the Defendant's submission that the court did not have jurisdiction to amend the Information. London (City) supra, is not applicable. London (City) dealt with a Part 1 proceeding commenced by a Certificate of Offence. Section 9(2) of the POA is mandatory when an accused does not dispute the offence. The court must either enter a conviction if the certificate is complete and regular on its face and, if not, the certificate must be quashed. The Court of Appeal expressed its concerns that s. 9(1) is a default proceeding where there is no plea, no accused present and no motion to quash can be brought. See London (City) para. 18. The circumstances are very different in this case as this is not a Part 1 proceeding. There is no default mechanism to enter a conviction if the accused fails to defend or show at trial.
[31] This court notes that s. 34(1) of the POA specifically provides that it applies "at any stage of the proceeding" whereas s. 34(2) of the POA only applies "during the trial". There was a clear intention by the legislators to draw a distinction when the amendment could be made. See Ontario (Labour) NMC Canada Inc. (1995) 1995 1641 (ON CA), 25 OR (3d) 461(C.A.) which considered an amendment to add parties:
Clause (a) does not apply since there was no trial. The other clauses of s. 34(4) are relevant.
[32] In my view, s. 34(1) (b) and (c) of the POA applied in this case. The first appearance is part of the proceeding. It did not matter whether the accused, having shown up pursuant to the summons claimed he was not attorning to the court's jurisdiction. However, I note that the Defence's agent's comment only came after the learned judge stated he had no jurisdiction. But would it make any difference whether the accused had attorned? In my view, it would not. The amendment could be sought during the proceeding.
[33] Clearly, this information was defective in substance or form. It contained an obvious error which required an amendment. No trial evidence was necessary to ascertain this obvious error. The fact this was at the first appearance did not oust the court's jurisdiction to consider whether to amend the information under s. 34 (1) (b) or (c).
[34] This then engages the mandatory provisions of s. 36 of the POA directing the presiding judge to grant the amendment unless there is prejudice to the Defendant, the Defendant was misled or that there would be an injustice if the amendment were granted.
[35] It is clear that the learned judge did not consider s. 36 of the POA. The learned judge did not give either party an opportunity to adduce any evidence or make submissions as to whether the amendment should be granted. The learned judge did not have any evidence or submissions as to whether or not the amendment would or should be granted. As a result, the presiding judge exceeded his jurisdiction.
[36] The Defence submission that quashing an information is within the learned judge's jurisdiction and therefore cannot amount to exceeding his jurisdiction, has no merit where the learned judge exceeded his jurisdiction in failing to consider mandatory provisions in the POA.
THE FAILURE TO GIVE THE CROWN AN OPPORTUNITY TO MAKE SUBMISSIONS
[37] Failure to act in accordance with the principles of natural justice amounts to jurisdictional error. See R. v. J.V. 2002 49650 (ON SC), [2002] O. J. No. 1027 at para. 102.
[38] The Defence submits that the Crown did not try to make submissions. I reject this submission. The presiding judge had made up his mind to quash the information. He refused a brief adjournment because he had already decided to quash the information. He said so on numerous occasions.
[39] There was no opportunity for the Crown to adduce evidence to support the amendment or to make submissions as to why the amendment should be made. This was a fatal error. Clearly, the presiding judge did not conduct the proceeding in accordance with natural justice. In proceeding in this manner the learned judge exceeded his jurisdiction.
[40] This is another basis upon which the learned judge exceeded his jurisdiction.
THE LACK OF A DEFENCE MOTION TO QUASH
[41] In these circumstances, it is not necessary to decide whether the learned judge erred in quashing the information because there was no defence motion to quash.
[42] Having said that, I note the conclusion found by Justice Speyer in Massicotte, supra, at paras. 21 -22 that a motion to quash cannot be brought by the court on its own motion. If necessary, I would have agreed with that conclusion and apply it to this case.
WAS THERE A SUBSTANTIAL WRONG OR MISCARRIAGE OF JUSTICE?
[43] The Court shall not grant relief under a certiorari application unless the court finds a substantial wrong or miscarriage of justice has occurred.
[44] Clearly, not granting the certiorari would, in the circumstances of this case, result in a substantial wrong to society which expects and is entitled to have these matters heard on the merits unless an amendment is rejected after both parties have an opportunity to deal with and the presiding judge gives full consideration of the matters in s. 34 and 36 of the POA.
THE LACK OF THE OFFICER'S SIGNATURE ON THE INFORMATION
[45] There is no dispute that Justice of the Peace Farnum swore the information and issued the summons based on the evidence of Officer Aujla on April 12, 2017.
[46] The Defendant's counsel candidly admitted there is a presumption of regularity with regard to the issuance of the information. No further submissions were made on this point.
[47] I accept the Crown's submission that Part 3 of the POA specifically does not require the signature of the affiant on the information (unlike proceedings under Part 1 where s. 10 requires a signature to be on the certificate). No such requirement is found in s. 24 of the POA.
[48] I note that in Massicote supra, Justice Speyer stated the identity of the person laying the information had no bearing on the ability of the accused to make full answer and defence. An information quashed because of an illegible signature was set aside and remanded back to trial. See Massicote, supra at para. 20. That case is analogous to this case.
[49] In any event, even if the lack of the officer's signature amounted to a substantive defect, the court has the jurisdiction to amend the Information under s. 34(1). Given Officer Aujla's evidence on this application, I would expect that if such an amendment was sought, it would be granted.
MANDAMUS WOULD AMOUNT TO A RE-LAYING OF THE CHARGE
[50] This Defence submission has no merit.
[51] Having found that the learned judge exceeded his jurisdiction in the manner described above, it would make a mockery of the administration of justice that the accused could rely on the learned judge's error and the passage of time to avoid adjudication on the merits.
CONCLUSION
[52] The certiorari application is granted.
[53] The application for mandamus is allowed and the information is referred back to the Provincial Offences Court for another Justice of the Peace to exercise jurisdiction over this matter.
[54] To be clear, this court is not determining whether the amendments sought by the Crown should or should not be granted. That will be decided by the another justice of the peace if the defendant brings a motion to quash and after both parties are given an opportunity to adduce evidence (if so advised) and make submissions (if so advised). In my view, it would be unfair to make a decision on the amendments sought at this time given that the issue before this court was jurisdictional and the parties have not had an opportunity to advance evidence and make submissions on the amendments.
Ricchetti, J.
Date: December 19, 2017
CITATION: R. v. Singh, 2017 ONSC 7593
COURT FILE NO.: 526/17
DATE: 20171219
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN, Crown/Applicant
– and –
HARJIT SINGH, Defendant/Respondent
COUNSEL: P. Quilty for the Crown
A. Vishwanth for the Applicant
RULING ON CERTIORARI APPLICATION
Ricchetti J.
Released: December 19, 2017