COURT FILE No.: Whitby 09-0537 (7FEB09) Citation: R. v. Beckford-Facey, 2009 ONCJ 610
O N TA R I O C O U RT O F J U S T I C E
B E T W E E N :
HER MAJESTY THE QUEEN — AND —
ANDRE BECKFORD-FACEY
Before Justice of the Peace M. Coopersmith Heard on November 13, 2009
Reasons for Ruling on Motion released on December 7, 2009
Mr. A. Midwood ... for the prosecution Mr. A. LaPlante ... for the defendant Andre Beckford-Facey
JUSTICE OF THE PEACE COOPERSMITH: 1. BACKGROUND
[1] On November 13, 2009, Mr. LaPlante, the defendant’s representative, brought a motion to quash the information on the basis of misleading information or lack of service. “Section 128” is written on the summons served on the defendant, whereas the information before the Court charges his client under “Section 172(1)” of the Highway Traffic Act (“HTA”). The Crown is proceeding under subs. 172(1).
[2] On February 7, 2009 the defendant, Mr. Beckford-Facey, was served with two summonses, only one of which is relevant to the matter before this Court. It states that the defendant “Did commit the offence of race motor vehicle, perform stunt: to wit speeding 156 km/h in a posted 100 km/h zone, contrary to Highway Traffic Act Section 128.”
[3] The relevant portion of the information charges the defendant with “operate a motor vehicle on a highway, namely Highway 401, while performing a stunt, to wit: speeding 156 km/h in a posted 100 km/h speed zone, contrary to Section 172(1) of the Highway Traffic Act”.
[4] The defendant first met with his representative on February 27, 2009 and, in
accordance with the time, date and location stated on the summons, they both first appeared in this Court on March 10, 2009. A trial date of July 8, 2009 was set, at which time, again, they both appeared and Mr. LaPlante, on behalf of the defendant, attempted to plead guilty to speeding. When the Crown informed him that the offence was contrary to s.172, not s.128 of the HTA, Mr. LaPlante withdrew his offer to plead guilty. The matter was then adjourned to November 13, 2009, at which time the defendant was arraigned on a charge under s.172 of the HTA. No plea has been entered, as the defence immediately brought this motion to quash the information. The parties presented their positions and I reserved my ruling to today.
2. ISSUES BEFORE THE COURT:
[5] The issues to be determined are as follows:
(a) Was the defendant served with a summons containing a defect such that (1) he was not adequately served under s.172 of the HTA, or (2) he was misinformed or misled regarding the charge his was facing such that he is unable to make full answer and defence to the charge before the Court?
(b) If so, what is the appropriate remedy? 3. POSITION OF THE PARTIES
(a) Position of the Defendant:
[6] It is Mr. LaPlante’s position that the defendant sought representation for an offence under s.128; they discussed s.128, reviewed the rules of evidence necessary to prove s.128, looked at the penalties under s.128 and prepared for a defence against a charge under s.128. [7] On July 8, 2009, Mr. LaPlante was in court attempting to plead guilty to a charge under s.128, when the Crown argued that the charge was not s.128, but s.172, as stated in the information. Consequently, he withdrew his offer to plead guilty to what he submits was served on the defendant in the summons, that is, a speeding charge under s.128 of the HTA. [8] Mr. LaPlante is asking that the information before the Court be quashed because the defendant was never served with an offence pursuant to s.172. This is not a case where an amendment would be in order, such as amending the speed on a certificate of offence. His argument goes deeper to ask how one can amend something with which the defendant has never been served. His client is being arraigned on s.172, and if the Court wants to pursue this matter under s.172, it is going to have to explain why the defendant was never served under this section of the HTA.
(b) Position of the Crown:
[9] The Crown states that the defendant is asking this Court to quash the information, but has never addressed the prejudice to the defendant. Although the issue goes deep, it does not go so deep as to prejudice the defendant.
[10] In support of its argument, the Crown has provided me with York v. Winlow, [2009] O.J. No. 3691, 2009 ONCA 643 (Ont. C.A.), in particular, paragraph 27, which reads:
“In the context of the court’s amendment power, this debate has little significance. Even if an amendment to conform to the evidence at trial would mean that the defendant was facing a new offence, the court would still have the power to grant the amendment under s.34(2) of the POA so long as it was supported by the evidence, and would not cause prejudice or an injustice to the defendant: see R. v. Irwin (1998) 38 O.R. (3d) 689 (C.A.).”
[11] And from R. v. Moore, [1988] 1 S.C.R. 1097, the Crown cites paragraph 17: “Major and Côté also establish that a conviction is possible on a defective information and that the conviction will be upheld on appeal. Both sides can point out defects in process to the trial judge. If there is no motion to quash or to amend and a defence is tendered, there is no need to amend the information (Côté, at p. 15). So long as the defect does not prejudice the accused and the Crown actually proves all of the elements of the offence, a conviction will be valid. Defects in form do not defeat what is valid in substance.”
[12] Further, the Crown relies upon s.34 of the Provincial Offences Act (“POA”) which provides broad powers to the Court to amend or correct any defective information [see relevant legislation set out below]. The “128” section number on the summons is merely an error written by the police officer and in considering the four criteria in s.34, the Court should be satisfied that an amendment can be made to reflect an offence under s.172 of the
HTA. The summons clearly describes “… the offence of race motor vehicle, perform stunt:
to wit speeding …”. Therefore, the offence relates to performing a stunt, with excessive speeding as the gravamen of this offence. The excessive speeding is at its core and whether under s.128 or s.172, it would not change the defence prepared today.
[13] Furthermore, it is anticipated that evidence at trial will show that at the roadside on February 7, 2009, the defendant’s motor vehicle was impounded, his licence was seized and suspended and the officer stated the charge was in accordance with stunt driving. Therefore, the Crown fails to see how there can be any confusion in preparing for a defence other than in accordance with a charge brought under s.172 of the HTA, as these activities do not accompany a charge under s.128.
[14] The Crown also relies on three criteria set out in s.36 of the POA that relate to considerations when determining whether to quash an information: (1) the motion to quash the information is put before the court before the defendant has pleaded, (2) the defect is apparent on its face and (3) the court does not quash an information unless an amendment would fail to satisfy the ends of justice [see relevant legislation set out below].
[15] The underlying philosophy of the POA contemplates the determination of matters on their merits. Defects in form should not defeat what is valid in substance. What we have before this Court is a valid charge in substance. An amendment to reflect s.172 would not
prejudice the accused and this matter should proceed to trial on its merits.
4. RELEVANT LEGISLATION
[16] Section 128(1) of the HTA reads:
“128. (1) Rate of speed – No person shall drive a motor vehicle at a rate of speed greater than [the maximum rate of speed set for the particular highway].”
[17] Section 172(1) of the HTA reads:
“172. (1) Racing, stunts, etc., prohibited – No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.”
[18] Section 3.7 of O.Reg. 355/07 made under the HTA describes one of eight driving conducts that define performing a stunt under s.172:
“3. Definition, “Stunt” – For the purposes of section 172 of the Act, “stunt” includes any activity where one or more persons engage in any of the following driving behaviours:
…
7. Driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit.”
[19] Section 34 of the POA deals with amending an information and the four criteria the Court is to consider. The relevant subsections are:
“34. (1) Amendment of information or certificate – 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.
…
(4) Considerations on amendment – 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 variation, error or omission; and
(d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.”
[20] Section 36 of the POA sets out the criteria for quashing an information:
“36. (1) Motion to quash information or certificate – 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 plead, and thereafter only by leave of the court.
(2) Grounds for quashing – 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.”
[21] Section 26(1) of the POA sets out criteria that a summons under Part III of that Act must satisfy. It states:
“26. (1) Summons – A summons issued under section 22 or 24 shall, (a) be directed to the defendant;
(b) set out briefly the offence in respect of which the defendant is charged; and (c) require the defendant to attend court at a time and place stated therein and to attend thereafter as required by the court in order to be dealt with according to law. [22] Section 90 of the POA addresses irregularities in the substance or form of the summons. It reads:
“90. (1) Irregularities in form – The validity of any proceeding is not affected by, (a) any irregularity or defect in the substance or form of the summons, warrant, offence notice, parking infraction notice, undertaking to appear or recognizance; or (b) any variance between the charge set out in the summons, warrant, parking infraction notice, offence notice, undertaking to appear or recognizance and the charge set out in the information or certificate.
(2) Adjournment to meet irregularities – Where it appears to the court that the defendant has been misled by any irregularity, defect or variance mentioned in subsection (1), the court may adjourn the hearing and may make such order as the court considers appropriate, including an order under section 60 for the payment of costs.”
5. ANALYSIS
(a) Full answer and defence:
[23] DeGrandpré J. in R. v. Côté, [1978] 1. S.C.R. 8 writes:
“ … the golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full answer and a fair trial.” [24] Mr. LaPlante submits that the defendant is prejudiced because the summons that was served on his client sets out a different section number from that shown in the information. This has misled the defendant and his representative and not allowed them to adequately prepare in order to make full answer and defence to the charge before the Court.
It is not fair to bring the defendant to trial under a section of the HTA not shown on the summons and the information should be quashed. I disagree and my reasons for doing so will become apparent below.
[25] In addition, Mr. LaPlante argues that this Court has no jurisdiction over the defendant in a proceeding under s.172 of the HTA, since his client was never served with that section of the Act. However, this latter argument can be laid to rest, and there is abundant caselaw to support my reasoning [see e.g. R. v. Tait, [2001] O.J. No. 2948 (O.C.J.)]. The purpose of a summons is to inform the defendant of the charge he is facing and the time and place to appear in court to answer to the charge. Here, the defendant has appeared in court as required and, at the very least, has attorned to the jurisdiction of the Court. Furthermore, as I will expand on below, I am not convinced the defendant reasonably ought not to know he was served with the offence of performing a stunt, which correlates to a charge under s.172 of the HTA. I am satisfied that this Court has jurisdiction to deal with this matter.
(b) Substance over form:
[26] As stated by Libman J. at paragraph 11 of his decision in R. v. Khoshael, [2001] O.J. No. 2110 (O.C.J.), in which the defect appeared in the certificate of offence:
“Technical objections, it has been stated, ought not impede an impartial trial on its merits, contrary to the spirit of the Act which requires Courts to look at substance and not procedural irregularities.”
[27] In a decision addressing a defect and the validity of a summons, Quon, J.P. in R. v.
Tait, supra, starting at paragraph 52 writes:
“When the defence wishes to attack the validity of any summons or the charging document itself on a procedural or technical error, the purpose and aim of the
Provincial Offences Act, R.S.O. 1990, c. P.33, that governs the procedure for the
provincial offences must be first considered. No longer are charges routinely dismissed or quashed when “the i’s are not dotted or the t’s are not crossed”. That era no longer exists. In R. v. Gwynne [2001] O.J. No 331, at para. 28 to 31, I reviewed the raison d’être of the P.O.A. and its underlying principles:
The starting point in any analysis of a request to quash a proceeding, based on a technical deficiency, is to note the underlying ideology of the P.O.A. This can be summed up best in a commentary made by Dickson J., as he was then, in a provincial offences case. In writing for the Supreme Court of Canada in R. v. Sault
Ste. Marie (1978), 3 C.R. (3d) 30 (S.C.C.) at pages 38-39 he observed:
That age has passed. Parliament has made it abundantly clear in those sections of the Criminal Code having to do with the form of indictments and informations that the punctilio of an earlier age is no longer to bind us. We must look for substance and not petty formalities.
This theme is affirmed by MacDougall J. in the unreported decision of R. v.
Discovery Place Limited et al., [1996] O.J. No. 690 (Ont. Ct. (Gen. Div.))(Feb. 15,
1996), File No. 68342/95 at Peterborough in which he pronounces:
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 Act provides broad curative provisions ensuring that the jurisdiction over the information is not lost because of any failure of a court to exercise its jurisdiction at any particular time.
Authors Hutchison, Rose and Downes in their tome, The Law of Traffic Offences (2d ed.) (Carswell, Toronto: 1998) at page 37 confirm that formal defects should not be fatal to the charging document:
It is important to remember that the central purpose of the modern procedural statutes like the Provincial Offences Act has been to eliminate unnecessary “technicalities” from regulatory prosecutions. It was not intended that a purely formal defect should be fatal to a charging document. The main consideration in these cases is to be the effect of the defect on the parties and their rights under procedures available under the Act. Even a substantive error may be allowed if it is possible for the court to correct the error without depriving the defendant of his right to know and defend the charge against him.
Most such statutes provide broad powers to amend a charge to cure defects which are merely formal in nature. …
In R. v. Pham; R. v. Oehlert [1996] O.J. No. 4366, I extensively examined academic writings and judicial ruminations on this topic and wrote at para. 20:
The trial court’s decision to quash a certificate or to amend a certificate, as a question of law, has been examined and reviewed numerous times by the Provincial Offences Appeal Court, The Appeal Court’s judgments have looked at section 36 of the P.O.A. and have ruled that, in general, a defective certificate of offence should not be quashed but amended. The Appeal Court has decided, ordinarily, a certificate of offence should be considered on its merits, and not be quashed on a technical defect.
They have adopted the philosophy of “substance over formality”. Furthermore, s. 2 of the P.O.A. states the purpose of the Act:
2.(1) The purpose of this Act is to replace the summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code (Canada) with a procedure that reflects the distinction between provincial offences and criminal offences.
Ergo, the underlying principle in analyzing the validity of the charging document or
the summonses under the P.O.A. is that “Substance prevails over form, purpose prevails over procedure, and merit prevails over technicalities”. In addition, that theme is reflected in s. 90 of the P.O.A. That section addresses the situation arising when there is a defect or error relating to summonses, offence notices or process documents.”
[28] While substance prevails over form under the Criminal Code of Canada, I am satisfied that this tenet is even more valid under the Provincial Offences Act. The summons served on the defendant sufficiently sets out a description of the offence with which the defendant is charged in the information before this Court. In my opinion, the police officer’s error in writing the incorrect section number of the HTA has to be put into its proper context, having viewed the summons in its entirety, along with everything that has transpired since the summons was served. Hence, I find the incorrect section number on the summons is a technical error and substance must prevail over form in the matter before this Court.
(c) Information versus summons:
[29] I have reviewed the submissions and the caselaw provided to me. I do not find s. 34 or s.36 of the POA relevant, as s. 34 deals with amendments to an information and s. 36 with quashing of same. The information reflects a charge under s. 172 of the HTA and that is the charge pursuant to which the Crown wishes to proceed. The impugned defect is not on the face of the information, but on the summons. Consequently, and with respect, I find the Crown’s submissions misdirected and the defendant’s request for a remedy to quash an otherwise valid information or to find it a nullity inappropriate.
[30] This Court must decide whether or not the summons served on the defendant on February 7, 2009 sufficiently set out an offence under s.172, as stated in the information, or whether “Section 128” on the summons, when considering everything else included in it, is so misleading to the defendant as to constitute an incurable error which does not allowing him to make full answer and defence to a charge under s.172 without an injustice being done.
(d) Application of sections 26 and 90 of the POA:
[31] In resolving the matter before this Court, I first look to subsection 26(1) of the POA to determine the requisite elements of a valid summons. A summons issued under section 22 or section 24 (section 22 in the matter before this Court) is to be directed to the defendant and must set out briefly the offence with which the defendant is charged and require him to attend court as required.
[32] Furthermore, I am guided by R. v. Saragosa, [2008] O.J. No. 4848 (S.C.J.), wherein an application was brought for certiorari with mandamus regarding the quashing of a count by a Justice of the Peace on the basis that the summons did not precisely set out the charge against the defendant. The summons referred to a charge of “race a motor vehicle” under s.172 of the HTA, while the information set out an offence of “operate a motor vehicle on a highway while performing a stunt, to wit speeding 153 km/hr in a posted 100 km/hr zone, contrary to Section 172(1) of the Highway Traffic Act.” The Court was satisfied that
the summons provided sufficient description of the charge the defendant was facing under s.172(1) of the HTA and sufficiently informed him of the allegations against him. Marchand J. found that the description of the offence in the summons met the requirements of s.26 of the POA, which requires only that the summons set out the offence “briefly”, not precisely. [33] Although the section number on the summons served on this defendant may be in error, I am satisfied that after reading the description of the offence, there should be nothing that would mislead an individual concerning the charge he is facing. A lay person likely would not have sufficient knowledge of the HTA to know the difference between various numbers pertaining to different sections of that Act.
[34] Moreover, this defendant is represented by a skilled and experienced Agent who is well versed regarding the various provisions contained in the HTA. I do not doubt that Mr. LaPlante is cognizant of the use of the words “race motor vehicle” and “perform a stunt” as language used in connection with offences contrary to s.172 of the HTA, not s.128. And further, that speeding 50 kilometres or more over the speed limit (as alleged in the summons as “speeding 156 km/h in a posted 100 km/h zone”) is one of the driving conducts contained in the regulation that defines performing a stunt under s.172. On the summons are the words “race motor vehicle”, “perform a stunt” and “speeding”, yet Mr. LaPlante, without reasonable explanation and, moreover, most likely after having spoken to his client about the roadside impounding of his vehicle and seizure and suspension of his driver’s licence, chooses to ignore the first two phrases and instead focuses solely on one word “speeding” to connect the charge to s.128. Looking at the totality of the events that have transpired, I fail to see how he can reasonably make this connection.
[35] In addition to the description of the offence written on the summons, I am satisfied that discussions with his client reasonably informed Mr. LaPlante of the essence of the allegations and the charge his client is facing. Therefore, he should not be misled or surprised to find that, perhaps, an incorrect section number inadvertently had been written on the summons. The Crown brought this error to his attention at a very early stage in the proceedings, on July 8, 2009, prior to trial, prior to arraignment and prior to any evidence being led by the Crown. I am satisfied that technical errors sometimes can prejudice a defendant, such that it would be an injustice to proceed any further, but that is not the case here. I find that the accused has not been irreversibly prejudiced or misled by the defect such that the information should be quashed or the charge against him dismissed.
[36] In the summons served on the defendant, there is a conflict between the description of the offence, which implies a charge under s.172 of the HTA, and the section number written as “Section 128”. This variance should not invalidate this proceeding since subs.26(1) of the POA does not even require that a section number be on the summons. Anyone questioning whether to look to the description of the offence or to the section number is directed by subs.26(1) of the POA to place the description first and foremost. Then, in the event of a defect in the summons, s.90 of the POA can be triggered to cure the irregularity.
6. CONCLUSION
[37] For the reasons I have provided, I am satisfied that the description of the offence contained in the summons ought reasonably to have given the defendant fair notice of the offence he is facing under s.172 of the HTA. The incorrect section number on the summons does not nullify the information or the proceedings and the appearance or attornment of the defendant to the jurisdiction of this court also rectifies any substantive or procedural defects relating to the issuance or service of the summons.
[38] Substance prevails over form. The situation before this Court is precisely the situation contemplated by s.90 of the POA. The validity of this proceeding is not affected by any variance between the charge set out in the summons and the s.172 charge set out in the information. This Court has broad powers to amend and s. 90 of the POA permits the Court to make such orders as it sees fit to cure defects in form or in substance. The mischief to be cured is the irregularity or defect in the summons served on the defendant, wherein the wrong section number was inadvertently written by the issuing police officer. Curing this defect should not deprive the defendant of his right to know and defend the charge against him.
[39] In the circumstances before this Court, I am satisfied that the ends of justice can be satisfied and, without any injustice being done, an order can be made to amend the defect on the face of the summons from “Section 128” to “Section 172(1)” so that this trial can continue. Any misleading or prejudice can be removed by adjourning the trial in order to provide the defendant with sufficient time to make whatever adjustments he may require to his defence to the s.172 charge under the HTA as set out in the information.
[40] The defence motion to quash the information or to find it a nullity or to invalidate this proceeding, therefore, is denied.
Released: December 7, 2009
Signed: “Justice of the Peace M. Coopersmith”
