



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Singh, 2018 ONCA 506

DATE: 20180601

DOCKET: C64832

Feldman, MacPherson and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harjit Singh

Appellant

Arjun Vishwanth, for the appellant

Katie Doherty, for the respondent

Heard: May 28, 2018

On
    appeal from the order of Justice Leonard Ricchetti of the Superior Court of
    Justice, dated December 19, 2017, quashing the decision of His Worship Alston A.
    Gunness of the Ontario Court of Justice, dated June 1, 2017.


Reasons for Decision

[1]

On November 18, 2016, the appellants truck hit another vehicle, killing
    the passenger in that vehicle. He was charged with driving at 83 km/hr in a 50
    km/hr zone, contrary to s. 128 of the
Highway Traffic Act
, R.S.O.
    1990, c. H.8. On the first appearance on June 1, 2017, the justice of the peace
    noticed that the information stated the date of the offence as November 18,
    2017 (rather than 2016) and quashed the information of his own initiative. The
    following is a recitation of the exchange between the Crown, the justice of the
    peace, and the agent for the appellant that occurred:

Court: The information is no good. The information is no good.
    This is for the month of  were in the month of June 2017, the offence is for
    the 18th of November 2017. No, we havent  we didnt reach  Madam Clerk, its
    not the 18th of November 2017. We didnt reach that date yet, the offence date.

Crown: It should be 2016, Your Worship.

Court: No, this matter went before a justice of the peace. Just
     I dont have jurisdiction on that. No jurisdiction.

Crown: The 18th of November 2016.

Court: No, but the information was sworn. Someone went and
    swear an information before the justice of the peace.

Crown: Courts indulgence, Your Worship

Court: Thats what the courts record

Agent: Your Worship, in this instance I will not be attorning
    to this matter.

Court: No jurisdiction.

Agent: My apologies, I did not realize the error.

Crown: Well, Your Worship, this  this matter is up for the
    first time to be spoken to today. It does seem that this is  this is an MCB
    matter.

Court: I have no jurisdiction to deal with that maam, okay?

Crown: Your Worship, Ms. Whalen is in fact in the building. Perhaps
    I could ask her to come down and speak to this directly.

Court: Ive already made a decision on that.

Crown: Youre already made a decision on that?

Court: Yes.

Crown: Theres no jurisdiction.

Court: Yeah, yeah, the matter went before a justice of the
    peace and the matter- gave life to an information so its improper today.

Crown: There is a problem before the Court.

Court: Yes.

Crown: Thank you, [agent].

Agent: Thank you, Your Worship. Thank you, my friend.

Crown: We cannot proceed on this.

Court: Its unfortunate.

[2]

On a
certiorari
application brought by the Crown before a judge
    of the Superior Court of Justice, the application judge found that the justice
    of the peace had no jurisdiction to quash the information and that a
    miscarriage of justice had thereby occurred. The information was referred back
    to the provincial offences court to be dealt with in accordance with the
Provincial
    Offences Act
, R.S.O. 1990, c. P.33.

Issue on the Appeal

[3]

Did the justice of the peace commit jurisdictional error by quashing the
    information without reference to ss. 34 and 36 of the
Provincial Offences
    Act
and without granting the Crown an opportunity to make submissions?

Discussion

[4]

The appellant submits that the circumstances of this case are analogous
    to what occurred in
London (City) v. Young
, 2008 ONCA 429, 91 O.R.
    (3d) 215, and that the justice of the peace had the same jurisdiction to quash
    as in that case. He also submits that the court in
London v. Young
suggested
    that ss. 34 and 36 did not apply to a first court appearance but only later in
    a trial proceeding. Finally, he argues that the Crown was not prevented from
    putting its position on the record during the first appearance before the
    justice of the peace.

[5]

We reject each of these submissions.

[6]

London v. Young
concerned the operation of s. 9 under Part I of
    the
Provincial Offences Act
, where a charge is laid using a certificate,
    not an information, and the charged person chooses not to respond. In those
    circumstances, there is no appearance by the defendant, and s. 9(1) obliges the
    justice to either convict if the certificate is regular, or to quash where the
    certificate is not complete and regular on its face.

[7]

In this case, an information was laid, summoning the accused to appear
    on the set date. Section 9 has no application to an information. Rather, Part
    III provides for the commencement of proceedings by laying an information. Part
    IV then deals with proceedings that go to trial and sentencing. Sections 34 and
    36 are contained in Part IV. Section 34 provides the power to amend an
    information. Subsection 34(4) sets out the factors the court is to consider
    when deciding whether to amend. It provides:

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.

[8]

Section 36 is the only section that gives the court the power to quash
    an information based on a defect on the face of the information. The procedure to
    quash an information requires a motion, which may be brought without leave
    before the defendant has pleaded, and thereafter only with leave of the court.
    Subsection 36(2) precludes the court from quashing an information unless an
    amendment or particulars under section 33, 34 or 35 would fail to satisfy the
    ends of justice.

[9]

The appellant submits that these sections do not apply on a first
    appearance and that there is a gap in the legislation that allowed the justice
    of the peace to decline jurisdiction over this information and to quash it.

[10]

We
    reject this submission. Subsection 34(1) provides that the court may amend the
    information at any stage of the proceedings. That clearly includes the first
    appearance. Under s. 36, a motion to quash can be brought without leave of the
    court only before the defendant has pleaded, which would of course include the
    first appearance.

[11]

A
    motion to quash could have been brought before the justice of the peace on the
    first appearance date, and he could have proceeded to address the issue of
    amendment as required. The statement that the appellant relies on at para. 18
    of
London v. Young
regarding s. 34 that it is clear from reading the
    entire section that it is intended to apply in the context of a proceeding on
    an information or certificate that has moved forward to the hearing stage is
    an explanation of the difference between the s. 9 default proceeding where
    there is no appearance by the defendant, and any other proceeding under the
Act
, where the defendant is ordered to
    appear.

[12]

We
    agree with the application judge that the justice of the peace also committed
    jurisdictional error by failing to accord the Crown the opportunity to make
    submissions before quashing the information of his own motion.

[13]

Subsection
    141(4) of the
Provincial Offences Act
requires a court to find that a
    substantial wrong or miscarriage of justice has occurred before granting relief
    by way of
certiorari
.
We agree with the application judge that
    quashing the information without considering whether to amend it in accordance
    with the requirements in ss. 34 and 36 of the
Act
resulted in a
    miscarriage of justice, because it prevented the charge being considered on its
    merits.

Result

[14]

The
    appeal is dismissed.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

Paul
    Rouleau J.A


