Court File and Parties

Court File No.: CR-25-10000046-00MO
Date: 2025-06-20
Ontario Superior Court of Justice

Between:
His Majesty the King – and – Hamzah Zarwari

Appearances:

• Andres Hannah-Suarez, for the Crown
• Arvin Ross, for the Defence

Heard: June 13, 2025
Judge: R.F. Goldstein

Introduction

[1] When should a justice of the peace order an in-person hearing for a person charged with provincial offences? Mr. Zarwari, the Applicant, is charged with various Highway Traffic Act (“HTA”) offences, including stunt driving and careless driving. He faces trial on July 7, 2025. He wants a trial in person. Any person in a proceeding under the Provincial Offences Act (“POA”) may participate electronically if a justice is satisfied that the interests of justice require it or it is necessary for a fair trial.

[2] On March 20, 2025, Justice of the Peace Barnes set the July 7 trial date for Mr. Zarwari’s HTA charges. J.P. Barnes was sitting in set-date court. Mr. Zarwari was represented by a paralegal, Mr. Tassone. Mr. Tassone requested that J.P. Barnes order a trial in person. The justice of the peace refused to make the order, stating that it was up to the prosecution to determine how to call its case.

[3] Mr. Zarwari says that the justice of the peace committed multiple jurisdictional errors by refusing to order a trial in person. His counsel argue that this court should grant an order in the nature of certiorari:

• Quashing the decision of the justice of the peace;
• Ordering an in-person trial for all parties, witnesses, and court staff; and,
• Granting the costs of transcript expenses.

[4] For the reasons that follow, I find that certiorari should not be granted. I find that the justice of the peace erred, but he did not make a jurisdictional error.

Proceedings in Court

[5] Mr. Tassone, Mr. Zarwari’s paralegal, set out the reasons his client wished to have an in-person trial:

He did request that it would be marked for an in-person trial, for all parties to be in-person, as he feels more comfortable if all members are in-person, including any witnesses from the prosecution.

There have been incidences where defendants do not feel comfortable when they cannot physically see what their witnesses are doing, what’s around them. Your worship, these are two of the most serious charges under the Highway Traffic Act. It’s stunt driving and speeding. It’s two of the most serious charges under the Highway Traffic Act. If the defendant is specifically requesting that all parties be in-person, Your Worship, I do believe that is a right that should be considered and even enforced, Your Worship, and making that request to have all members in person, and that includes the defence, Your Worship, I will be there in person.

[6] The justice of the peace indicated that:

Okay, I’ll leave that to the prosecution to endeavour on how they want their witnesses to come to attend. I will leave it up to the prosecution on how they want their witnesses to attend. But, your comments have been noted. It’s up to the prosecution to call their case however they see fit in terms of in person witnesses or Zoom…

[7] After further discussion with Mr. Tassone, the justice of the peace referred to the website of the Ontario Court of Justice, to s. 751 of the Criminal Code, and stated that:

However, if you were to go to that website, it does indicate with respect to Zoom, unless I see fit, if there’s an in-person attendance required and at this point, I’m not going to be making that order.

Position of the Parties

[8] Mr. Ross, on behalf of Mr. Zarwari, makes three arguments but they can be boiled down to these three:

• The justice of the peace made a jurisdictional error by delegating the decision on mode of trial to the prosecution;
• The justice of the peace erred in law by failing to consider Mr. Zarwari’s fair trial rights;
• The justice of the peace failed to inquire into the reasons for the request.

[9] Crown Counsel, Mr. Hanna-Suarez, counters that the real issue in this case is whether the justice of the peace had jurisdiction under s. 83.1 of the POA to order an in-person trial. As a justice sitting in set-date court, Justice of the Peace Barnes had no jurisdiction to make the order for an in-person hearing. Only a trial court can make that order. If Justice of the Peace Barnes had been sitting as the trial justice, he could have made that order. In other words, Justice of the Peace Barnes ultimately made the correct decision, but on an incorrect basis.

Analysis

(a) The Governing Legislation

[10] Part XXVI of the Criminal Code deals with prerogative remedies. It does not deal with the substantive aspects of the writ of certiorari and other writs, other than to limit their use. The reason for significant limits on the use of prerogative remedies is to prevent an end-run around the rule against interlocutory appeals in criminal matters: R. v. Awashish, 2018 SCC 45 at para. 11. Certiorari is only available to correct jurisdictional errors. An inferior tribunal makes an error of jurisdiction when it acts contrary to the rules of natural justice or acts in excess of its statutory jurisdiction or fails to observe a mandatory provision of a statute: R. v. Skogman; R. v. Awashish, at para. 23. In Awashish, the Supreme Court clarified that certiorari does not lie for an error of law on the face of the record, an issue I will deal with below.

[11] Pursuant to s. 38(1) of the Courts of Justice Act the Ontario Court of Justice performs any functions assigned to it under the POA. Pursuant to s. 39(2) of the Courts of Justice Act a justice of the peace may preside over proceedings under the POA. The Ontario Court of Justice is, of course, a statutory court. Justices of the peace presiding over matters under the POA exercise statutory authority.

[12] There appears to be no formal practice direction for POA matters in the Ontario Court of Justice. There is a webpage on the Ontario Courts website setting out some very basic directions: https://www.ontariocourts.ca/ocj/notices/provincial-offences-act-matters/.

[13] The vast majority of people dealing with provincial offences are unrepresented. As Mr. Ross pointed out, correctly in my view, it is important to keep matters in POA court as simple as possible. Most POA proceedings involve minor offences and ordinary people. It would make no sense to overly complicate and bureaucratize the proceedings. It is right that POA proceedings be kept as uncomplicated as possible. A formal practice direction may well frustrate, rather than facilitate timely and fair hearings. People shouldn’t have to face the complications of a myriad of rules and possibly lose their opportunity to bring an application in, say, a straightforward speeding prosecution.

[14] The Criminal Rules for the Ontario Court of Justice (“the OCJ Rules”) do not apply to provincial offences. Neither, obviously, do the Criminal Proceedings Rules that apply in the Superior Court. The Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings (“the POA Rules”) (it appears that the name of the Rules has never been amended to conform with the proper name of the Ontario Court of Justice) deal with some formalities under the POA. Rule 7(1) of the POA Rules deals with applications under the POA. The POA provides for several types of motions that may be heard such as for a change of venue, to quash an information, to extend time to pay a fine, or to divide or amend counts. There is no rule under the POA Rules dealing with Charter motions, or an application for an in-person trial.

[15] The key provision in this case is s. 83.1 of the POA, which governs hearings in person. Pursuant to s. 83.1(2) any person in a proceeding (including the staff or a witness) may participate electronically. A justice of the peace may order a person to appear in person if satisfied that the interests of justice require it or it is necessary for a fair trial: POA, s. 83.1(4). The justice must consider the factors set out in the regulations: POA, s. 83.1(5). There is no provision in the POA or the POA Rules for making an application or motion under s. 83.1(2) to have a hearing in person.

[16] Sections 83.1(4) and (5) state:

83.1 (4) A justice may order a person to appear in person if the justice is satisfied that the interests of justice require it or it is necessary for a fair trial.

(5) In making a determination under subsection (4), the justice shall consider any factors set out in the regulations.

[17] Unfortunately, there is a gap in the legislative and regulatory scheme. There are no regulations setting out the factors that a justice of the peace must consider pursuant to s. 83.1(5) of the POA. Although Mr. Ross referred to the Ontario Court of Justice Practice Direction regarding the Mode of Appearance for Ontario Court of Justice Criminal Proceedings, that practice direction is clearly made pursuant to the OCJ Rules. The OCJ Rules do not apply to provincial offences proceedings. Mr. Ross, who has a great deal of experience in POA court, tells me that provincial prosecutors and paralegals who routinely deal with Charter motions informally adhere to the OCJ Rules by analogy (that is my characterization).

(b) Does a Justice in Set-Date Court Have the Authority to Order an In-Person Trial?

[18] The Crown’s position is that a trial court has the power to control its own process, but the trial management power only resides in a trial justice, not a justice of the peace sitting in set-date court. A statutory court has no inherent power. It must only act on the basis of power delegated to it by the legislature. The Crown relies on R. v. 974649 Ontario Inc., 2001 SCC 81 as authority for the proposition that it is only when sitting as a trial court that a justice can issue a Charter remedy.

[19] Given that the legislature has provided for a justice to determine whether a hearing should proceed in person, the real question is which justice? Is it the justice sitting in set-date court? Or the justice hearing the trial – presumably the trial justice before whom the accused is to be arraigned and his plea taken?

[20] The question in 974649 Ontario Inc. was whether a provincial offences court could be a court of competent jurisdiction for the purpose of the Charter of Rights. Ultimately, the Supreme Court held that the structure and function of a statutory court had to be examined in order to determine whether the legislature had given that power to the court. In this case, the Supreme Court determined that it had, and that a provincial offences court could grant a Charter remedy. That this is accepted without question is shown in this case – whether there has been delay so as to breach the Jordan guidelines is a live issue in this case: R. v. Jordan, 2016 SCC 27. Moreover, provincial justices routinely make orders for disclosure pursuant to R. v. Stinchcombe. In other words, provincial offences courts have a “broad remedial jurisdiction” under the Charter: R. v. Felderhoff, para 43.

[21] Felderhoff, like this case, did not involve a Charter application. It was a matter under provincial securities legislation. The issue was the extent of a trial judge’s trial management powers. Rosenberg J.A. held that given the provincial offences court had a broad remedial Charter jurisdiction it was a necessary implication that the court had to have “procedural tools to ensure its process is effective and efficient for the disposing of applications for any of those remedies.” The approach in Felderhoff was recently endorsed by the Supreme Court of Canada in R. v. Samaniego, 2022 SCC 9 at para. 22.

[22] Going back to the words of the legislation, the POA states that “a justice” may order a trial in person. The POA does not state that the trial justice must make the order. As a matter of statutory interpretation, it seems to me that the legislature has delegated the power under s. 83.1 of the POA to any justice. That means that applications, even Charter applications, are not confined to trial justices. This makes sense. While it may make sense that a Jordan application is held before the trial justice, it would make no practical sense if a disclosure application could only be heard by a trial justice – notwithstanding that it is a Charter application. If the provincial prosecutor resists certain disclosure that the defence says it needs for trial, then someone will have to hear and decide that application well before the trial, for obvious reasons. Yes, a local administrative judge could appoint a trial judge to hear the application and then hear the trial. In the absence of a statutory provision requiring it I find that it is not necessary. Presumably any justice can hear that application.

[23] In my view, the same reasoning applies to applications under s. 83.1 of the POA. I must respectfully disagree with the Crown. In my view the legislation gives the power to decide this issue to any justice of the peace presiding in provincial offences court.

[24] It is helpful to reproduce s. 3 of the POA Rules:

3. These rules shall be construed liberally so as to obtain as expeditious a conclusion of every proceeding as is consistent with a just determination of the proceeding.

[25] Of course, I am not construing the Rules in this application, but the POA Act. Nonetheless, I think the rule encapsulates what must be the obvious intent of the legislature: to create a POA regime that is simple, expeditious, and accessible by ordinary people who do not need or want a lawyer to navigate it.

[26] As a practical matter, scheduling in an extremely busy court like the provincial offences court involves many moving pieces, many parties, and multiple court locations. Unless some specific provision mandated it, or prohibited it, it would make no sense to require scheduling in that manner.

[27] As a matter of statutory interpretation, the POA explicitly recognizes the distinction between criminal offences and provincial offences. The legislature intended provincial prosecutions of quasi-criminal offences to be as simple as possible. As a result, many of the procedure-heavy rules in the Ontario Court of Justice and the Superior Court of Justice do not, deliberately, apply. This is consistent with expedition and trial fairness.

[28] Thus, I find that Justice of the Peace Barnes had the jurisdiction to decide whether to order an in-person trial.

[29] That is not the end of the matter, however. Was there a failure of natural justice?

(c) Was There a Failure of Natural Justice?

[30] In my view, there was not. The justice of the peace heard the submissions. He considered them. He allowed Mr. Tassone, Mr. Zarwari’s agent, to press the point. He did not dismiss the arguments out of hand. In the context of a POA set-date court, that is all that is required.

(d) Was There an Error of Jurisdiction or an Error of Law on the Face of the Record?

[31] The POA requires that to order an in-person trial the justice be satisfied that “the interests of justice require it or it is necessary for a fair trial”. Respectfully, the justice of the peace did not consider either branch of the test. He refused the order for an in-person trial on the basis that the prosecution could call its case as it saw fit. That is not the criteria. But was that an error of jurisdiction or an error of law on the face of the record?

[32] There are very few cases defining the scope of an “error of law on the face of the record.” After an extensive search, Spies J. in R. v. Mullings, 2012 ONSC 2324, drew some general principles from the cases:

1. The error does not need to be merely technical in nature. This is clear from the consideration of Charter principles in Dagenais and N.S.
2. The error does not need to be blatant on the face of the record. The failure to consider a relevant factor or alternative measure is not apparent on the face of the record (since they are omissions), but it may nevertheless be characterized as an error of law on the face of the record. This was one of the examples used in Cunningham and was the case in Canadian Broadcasting Corp. and Ottawa Citizen Group.
3. The issuance of an order that is inconsistent with the governing law constitutes an error of law on the face of the record. This was the case in Dagenais, Canadian Broadcasting Corp., and Ottawa Citizen Group.

[33] See also: R. v. Branson, 2018 ONSC 6014 at para. 42; R. v. Raza, 2017 ONSC 7090.

[34] The Ontario Court of Appeal in R. v. Mivasair, 2025 ONCA 179, referred to Mullings, at para. 57, and added another category of error of law on the face of the record: a stay or withdrawal of proceedings by the Crown tainted by abuse of process.

[35] In R. v. Black, 2018 ONSC 1430, a justice of the Ontario Court of Justice ordered that an Indigenous offender serve an intermittent sentence at the Ontario Provincial Police lock-up in his community. The Commissioner of the OPP brought an application for certiorari to quash the warrant of committal on the basis of an error of law on the face of the record. Fregeau J. held that the order was inconsistent with the governing law and the clear provisions of the Ministry of Correctional Services Act. He quashed the warrant of committal.

[36] In my respectful view, the justice of the peace in this case erred in law on the face of the record. He did not apply the proper statutory criteria – instead of considering whether an in-person trial was in the interests of justice or necessary for a fair trial, he found that it was up to the prosecution to determine how to call the case. He misapplied s. 83.1(4) of the POA. That is a classic error of law. It is not as though the justice of the peace refused to make a decision, or exercised a power that he did not have. Accordingly, certiorari is not available: R. v. Awashish.

[37] That said, had the justice of the peace properly applied s. 83.1(4) of the POA the result would have been the same. Mr. Zarwari’s agent simply did not articulate a basis for an in-person trial consistent with the statute. He pointed out that Mr. Zarwari would be more comfortable in person. He pointed out, correctly, that the charges were among the more serious in the HTA. He did not, however, indicate how an in-person trial was in the interests of justice, or was necessary for a fair trial. In other words, there was no basis for concluding that s. 83.1(4) should apply. As it has sometimes been put, as long as a justice stays within jurisdiction, he or she has the right to be wrong. In this case, the justice was right for the wrong reasons.

(e) Should Costs Be Ordered?

[38] Mr. Zarwari asks that an order for costs of the transcripts be made. The only real articulation for this request is that he has been put to the time and trouble of ordering them. Respectfully, that is not a basis to order costs in a criminal matter. The general rule is that parties bear their own costs in criminal matters. To make an order of costs against the Crown requires significant misconduct: R. v. Fercan Developments, 2016 ONCA 269. No misconduct has been demonstrated, or even alleged. Moreover, Mr. Zarwari was unsuccessful – if the civil model applied, which it obviously does not, I would order costs against the Crown. In this case, however, Mr. Zarwari was unsuccessful. The Crown, of course, neither wins nor loses. I decline to order costs.

Disposition

[39] The application is dismissed.

R.F. Goldstein J.
Released: June 20, 2025