Court File and Parties
COURT FILE NO.: CV-19-3002-0000
DATE: 20190917
APPLICATION UNDER Rule 14.05(2), as authorized by Section 140 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended.
SUPERIOR COURT OF JUSTICE - ONTARIO
RE:
BEFORE: Regional Senior Justice Peter A. Daley
COUNSEL: Colleen Grant, for the Applicant
Self-Represented, Respondent
HEARD: August 29, 2019
ENDORSEMENT
[1] This endorsement follows my handwritten endorsement dated August 29, 2019, wherein the application was granted in terms of the relief outlined at paragraph 24 (1), (2), (3), and (4) of the factum filed by the applicant. The respondent did not oppose this application.
[2] In accordance with that endorsement, these are my reasons for decision.
[3] The application was brought by the Corporation of the City of Brampton ("Brampton") pursuant to s. 140 of the Provincial Offences Act in the nature of certiorari and mandamus from the decision of Her Worship, Justice of the Peace S. Burton.
[4] The respondent did not oppose this application, and understood that upon my granting of the order setting aside the respondent's guilty plea by way of certiorari and the mandamus order reinstating the Certificate of Offence, the initial charge against him may be continued by Brampton.
[5] By way of background – on July 5, 2018, the respondent was served with an Offence Notice for the offence of Careless Driving contrary to the Highway Traffic Act.
[6] On July 16, 2018, the respondent filed a Notice of Intention to Appear to dispute the charge and request a trial. A Notice of Trial was issued by the Brampton Provincial Offences Court setting a trial date for February 4, 2019.
[7] On the date scheduled for his trial, the respondent was represented by a paralegal, who attended on his behalf requesting an adjournment of the trial. The matter came before Her Worship Justice of the Peace C.J. Fletcher. The Justice of the Peace denied the adjournment request and entered a plea of "not guilty" on behalf of the respondent, in his absence.
[8] The trial commenced on February 4, 2019 in the respondent's absence, however the trial was not completed on that date. The Justice of the Peace seized herself of the matter and scheduled the trial for continuation on June 24, 2019.
[9] On June 19, 2019 the respondent brought a motion for an adjournment of the trial set to proceed on June 24, 2019 and this motion was heard by Her Worship S. Burton Justice of the Peace and not the Justice of the Peace Her Worship Fletcher who had commenced the trial on February 4, 2019.
[10] Her Worship S. Burton accepted a plea of guilty to an amended Certificate of Offence namely to the amended charge of "improper use of a signalling device", contrary to s. 142 (7) of the Highway Traffic Act.
[11] On the return of this application the respondent attended without counsel and advised that he was not opposing the application by Brampton. He did not file any material in response.
Analysis:
[12] The Provincial Offences Act provides for the right to appeal in the case of an acquittal, conviction or sentence to a single judge of the Ontario Court of Justice: Provincial Offences Act, RSO 1990, c. P. 33, s. 135 (1).
[13] Prerogative remedies are extraordinary and should not be granted where right of appeal exists: Cheyenne Realty Limited v. Thompson 1974 CanLII 4 (SCC), [1975] 1 SCR 87. However, pursuant to subsection 104 (1) of the Provincial Offences Act the Superior Court of Justice may also grant relief in the nature of "mandamus, prohibition or certiorari" for matters arising under the Provincial Offences Act."
[14] Relief by way of mandamus with certiorari lies for jurisdictional error, including denial of natural justice or procedural fairness: Forsythe v. The Queen, 1980 CanLII 15 (SCC), [1980] 2 SCR 268.
[15] The Judicial Review Procedure Act, RSO 1990, c. J. 1, as amended, does not apply to matters in respect of which an application may be made under s. 140 of the Provincial Offences Act.
[16] In my view, this Court has jurisdiction to grant the relief sought by the applicant under s. 140 of the Provincial Offences Act. I have further concluded that her worship Justice of the Peace S. Burton committed a reviewable error of law and exceeded her jurisdiction in accepting a plea of guilty during a trial over which she was not presiding, without having received permission to do so pursuant to s. 30 of the Provincial Offences Act.
[17] Section 30 of the Provincial Offences Act provides that a trial cannot be continued or presided over by another Justice of the Peace unless the presiding Justice dies or in his or her opinion or the opinion of the Chief Justice of the Ontario Court of Justice is for any reason unable to continue and the provisions of s. 30 of the Provincial Offences Act are met: R. v. Regal Parks Homes Inc., [1990] O.J. No. 2093 (Court of Appeal).
[18] Section 46 (1) of the Provincial Offences Act provides that once a respondent has entered a plea of not guilty it is mandatory that the court hold the trial. The guilty plea cannot be entered during the trial process after a plea of not guilty has already been entered. As such, I have concluded that the guilty plea taken by Justice of the Peace S. Burton was illegally taken and cannot stand.
[19] In accordance with s. 46 of the Provincial Offences Act Her Worship Fletcher had properly entered a plea of not guilty and had commenced the trial. Justice of the Peace Fletcher remained in a position to continue with the trial which was scheduled before her and as such s. 30 of the Act was not engaged.
[20] Given the circumstances as I have outlined them, I have concluded that a substantial wrong and miscarriage of justice has occurred in this matter: s. 141 (4) of the Provincial Offences Act.
[21] To allow an illegal guilty plea to stand would not be in the public interest and would bring the administration of justice into disrepute: Brampton (City) v. Singh, [2014] O.J. No. 2005 (SCJ) (Durno J).
Conclusion:
[22] For the reasons expressed an order shall issue in the following terms:
(1) Her Worship Justice of the Peace S. Burton exceeded her jurisdiction under the Provincial Offences Act;
(2) it is ordered that by way of certiorari the guilty plea entered by Her Worship Justice of the Peace S. Burton on June 19, 2019 is hereby set aside;
(3) it is ordered by way of mandamus that the Certificate of Offence that came before Her Worship Justice of the Peace C.J. Fletcher is reinstated and that the trial of that charge be held before the said Justice of the Peace.
[23] An order shall issue accordingly.
Daley RSJ.
Dated: September 17, 2019
COURT FILE NO.: CV-19-3002-0000
DATE: 20190917
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Corporation of the City of Brampton, Applicant
AND:
Ali Inyat, Respondent
BEFORE: RSJ Peter A. Daley
COUNSEL: Colleen Grant, for the Applicant
Self-Represented, Respondent
ENDORSEMENT
Daley RSJ.
DATE: September 17, 2019