



COURT OF APPEAL FOR ONTARIO

CITATION: York (Regional Municipality) v. Wadood, 2017 ONCA
    45

DATE: 20170119

DOCKET: C60339

Laskin, Sharpe and Miller JJ.A.

BETWEEN

Her Majesty the Queen ex rel. The Regional
    Municipality of York

Appellant

and

Amatal Wadood and Douglas Davis

Respondents

Chris G. Bendick, for the appellant

Arvin Ross, appearing as
amicus curiae

Heard: September 1, 2016

On appeal from the decision of Justice James R. Chaffe of
    the Ontario Court of Justice, sitting as a Provincial Offences Appeal Court,
    dated February 13, 2015, allowing the appeals from the convictions of the
    appellants entered on January 3, 2013 and August 14, 2013 in Provincial
    Offences Court.

Laskin J.A.:


A.

Introduction

[1]

When a police officer stops a motorist for a minor traffic offence,
    typically the officer will fill out the relevant information on a form called
    the certificate of offence. Underneath the certificate is a carbon copy
    called the offence notice. The officer gives the offence notice (commonly
    called a ticket) to the motorist, and then files the certificate of offence with
    the court, which has the effect of commencing proceedings against the motorist.

[2]

Is the officer entitled to change the information on the certificate of
    offence after giving the offence notice to the motorist, but before filing the
    certificate with the court? Suppose the officer does so, but the motorist does
    not initially dispute the charge and is convicted. If the motorist then appeals,
    and the appeal judge is made aware of the variance between the certificate of
    offence and the offence notice, should the judge set aside the conviction?
    These two questions are raised by this appeal. And trial judges have answered
    them in different ways.

B.

Background facts

[3]

The respondent Amatal Wadood was charged with the offence of turn not
    in safety, contrary to s. 142(1) of the
Highway Traffic Act
.
[1]
She was served with the offence notice and drove away. The certificate of
    offence was incomplete, because it did not contain the name of the municipality
    where the alleged offence occurred. So the officer added City of Vaughan before
    filing the certificate of offence with the court.

[4]

The respondent Douglas Davis was charged with speeding 149 kph in a posted
    100 kph zone, contrary to s. 128 of the
Highway Traffic Act
. He was
    served with the offence notice and left. The officer then realized that the
    certificate of offence contained the incorrect year for the alleged offence 
    2012 instead of 2013. So before filing the certificate of offence with the
    court, the officer inserted the correct year.
[2]

[5]

Both Wadood and Davis asked for a trial, but neither appeared at their
    scheduled trial date. Because of their failure to appear, they were deemed to
    not wish to dispute their charges under s. 9.1 of the
Provincial Offences
    Act
.
[3]
When a defendant fails to appear for trial, s. 9.1 directs the justice of the
    peace to examine the certificate of offence and enter a conviction if the
    certificate is complete and regular on its face. The justice of the peace in
    each case concluded that the certificate of offence was complete and regular
    on its face, and Wadood and Davis were each convicted.

[6]

Both Wadood and Davis then appealed and asked to set aside the
    certificates of offence and their convictions on the ground that the
Provincial
    Offences Act
did not authorize an after-service amendment. In other
    words, they argued that the officers did not have statutory authority to make
    changes to the certificates of offence after having served Wadood and Davis
    with their offence notices.

[7]

The appeal judge in the Ontario Court of Justice allowed their appeals.
    Although he concluded that neither Wadood nor Davis was misled by the change to
    each certificate of offence  both were aware of the charge that they had to
    answer  he nonetheless quashed both convictions, because in his view, the
    changes to the certificates of offence were made without authority.

[8]

The appellant, the Regional Municipality of York, sought leave to appeal
    to this court. Weiler J.A. granted leave. She wrote:

The test for granting leave to appeal under s. 139 of the POA
    is met. The questions posited in the Crowns factum at para. 20 are questions
    of law, there is conflicting jurisprudence, the statute in issue has wide
    applicability and is of general application and the issue will undoubtedly
    arise again; it is essential in the public interest and for the due
    administration of justice that leave be granted.

C.

Issues

[9]

Section 90 of the
Provincial Offences Act
is at issue on this appeal.
    That section states:

90. (1) 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) 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.

[10]

The Municipality raises two specific issues regarding s. 90:

1.

Does s. 90(1)(b) of the
Provincial Offences
    Act
impliedly authorize an officer to amend the certificate of
    offence before it has been filed with the court, but after the offence notice
    has been served?

2.

Did s. 90 preclude the appeal judge from invalidating the convictions?

[11]

I have concluded that though s. 90 does not authorize an officer to
    amend the certificate after serving the offence notice, but before filing the
    certificate with the court, nothing in the
Provincial Offences Act
prevents an officer from doing so. Whether an amendment will invalidate a
    conviction depends on the nature of the amendment and its impact on a
    defendant.

[12]

In the appeals before us, each amendment did no more than correct a
    minor clerical error on the certificate; neither Wadood nor Davis was misled or
    prejudiced by the amendment; and thus the validity of the proceeding against
    each of them was preserved by s. 90.

[13]

I would allow the Municipalitys appeal and restore both convictions.

D.

Discussion

(1)

The effect of
    s. 90 of the
Provincial Offences Act

(a)

Overview

[14]

An important goal of the
Provincial Offences Act
is that cases
    be decided on their merits. A corollary to that goal is that a minor defect in a
    proceeding, not prejudicing a defendant, should not be given effect to. Section
    90 is one of several provisions in the statute that allows courts to meet this
    goal.

[15]

The Municipality relies especially on s. 90(1)(b). It submits that by
    stating that a variance between an offence notice and a certificate does not
    affect the validity of the proceeding, this provision implicitly (though not
    expressly) authorizes a provincial offences officer to amend a certificate of
    offence before filing it with the court.

[16]

The respondents Wadood and Davis do not agree with the Municipalitys
    position. They submit that it would be unfair to permit an officer to change
    information on the certificate after having served an offence notice on a
    defendant; the defendant assumes that the information on each document is
    identical.

[17]

The issue between the parties is narrow, but important. It is narrow
    because both parties agree that once a certificate of offence is filed with the
    court, only the court can amend it. That only the court can do so is evident from
    s. 3(1) of the
Provincial Offences Act
and rr. 2(1) and 15(1)2 of the
Rules
    of the Ontario Court (Provincial Division) in Provincial Offences Proceedings
.
[4]

[18]

Under s. 3(1) of the
Provincial Offences Act
, the filing of a
    certificate of offence with the court commences a proceeding against a
    defendant. Rule 2(1) states that the rules apply to proceedings under the Act
    and a word or term in the Act has the same meaning in these rules as it has in
    the Act. Thus, the rules apply to a proceeding commenced by filing a
    certificate of offence with the court. And r. 15(1)2 provides that amending a
    certificate of offence shall be dealt with only in court.

[19]

Thus, the issue narrows to whether an officer can amend a certificate of
    offence before filing it with the court and the effect of doing so. The issue
    is nonetheless important, largely because of ss. 9(1) and 9.1 of the
Provincial
    Offences Act
. These sections apply when a defendant fails to respond to an
    offence notice, or fails to show up for trial.

[20]

Under s. 9(1), a defendant who does nothing after being served with an
    offence notice is deemed to not wish to dispute the charge. And under s. 9(2)(a),
    the presiding justice shall convict the defendant in the defendants absence,
    but only if the certificate of offence is complete and regular on its face.
    Under s. 9(2)(b), if the certificate is not complete and regular on its face,
    the presiding justice must quash the proceeding. The requirement that the
    certificate be complete and regular on its face thus provides some protection
    to a defendant who chooses not to dispute a charge.

[21]

Similarly, under s. 9.1, a defendant served with an offence notice who
    does not appear for a scheduled trial date is deemed to not wish to dispute
    the charge. And under s. 9.1(2), the presiding justice shall convict the
    defendant in the defendants absence, but again only if the certificate of
    offence is complete and regular on its face. If it is not, under s. 9.1(3),
    the justice must quash the proceeding.

[22]

It is thus understandable why an officer, to ensure a conviction if a defendant
    does not dispute a charge, will want to correct minor errors or omissions on
    the certificate of offence  be it a missing name of a municipality, an
    incorrect spelling of a defendants name, or the incorrect year the offence was
    alleged to have been committed. These minor errors may occur as officers issue
    thousands of tickets annually.

[23]

However, I do not entirely agree with the Municipalitys submission. I
    would be hesitant to read into s. 90 an implicit authority to amend. But I see
    nothing in the statute or rules that precludes an officer from amending the
    certificate. If the officer does so, and the variance between the certificate
    and the offence notice comes before the court, then the presiding judge will
    have to decide whether the defendant was misled or prejudiced by the amendment.
    If not, then s. 90 will validate the proceeding.

[24]

To put my conclusion in context, I will briefly discuss the options
    available to a defendant after being served with an offence notice, ss. 9(1)
    and 9.1 proceedings, and the case law in the trial courts.

(b)

The offence notice

[25]

A defendant served with an offence notice has four options, each of
    which is specified on the notice:

1.

Plead guilty in writing and send in the amount of the fine specified in
    the offence notice;

2.

Agree to plead guilty, but ask to appear before a justice to make
    submissions on penalty;

3.

Give notice of an intent to appear in court and dispute the charge at a
    trial;

4.

Do nothing or not appear, and thus be deemed not to wish to dispute the
    charge and be liable to conviction.

It is the fourth option that gives rise to the issues
    on appeal.

(c)

The certificate
    of offence and ss. 9(1) and 9.1 proceedings

[26]

When a defendant decides to do nothing after being served with an
    offence notice, or at first requests a trial and then does not appear for
    trial, the presiding justice examines the certificate of offence in the
    defendants absence.

[27]

Significantly, the presiding justice has the certificate of offence, but
    not the offence notice. Thus, any variance between the two documents will not
    be apparent to the presiding justice. Equally, the presiding justice will have
    no way of knowing whether an officer had amended the certificate of offence
    after having served the offence notice. The presiding justices only task is to
    examine the certificate of offence and determine whether it is complete and
    regular on its face. If it is, the defendant will be convicted; if it is not,
    the proceeding must be quashed.

[28]

In the present case, both Wadood and Davis initially opted to dispute
    the charge and requested a trial. Each was given a trial date. But neither
    appeared for trial. So, in each case, the presiding justice of the peace proceeded
    under s. 9.1. Each certificate of offence was examined and found to be complete
    and regular on its face, and thus both Wadood and Davis were convicted, even
    though each certificate of offence had been amended after the offence notice
    had been served. This is not the case to discuss what is required for a
    certificate of offence to be complete and regular on its face. Neither Wadood nor
    Davis dispute that each certificate placed before the presiding justices was
    complete and regular on its face.

[29]

What follows from this discussion, however, is that s. 90 has no role to
    play in proceedings under ss. 9(1) or 9.1 of the
Provincial Offences Act
.
    Section 90  especially ss. 90(1)(b) and 90(2)  contemplates a comparison
    between the certificate of offence and the offence notice to determine whether
    a variance exists between the two documents. But in ss. 9(1) or 9.1
    proceedings, that comparison cannot be made, as the offence notice is not
    before the court.

[30]

As Feldman J.A. said succinctly in
London (City) v. Young
, 2008
    ONCA 429, 91 O.R. (3d) 215, at para. 23: s. 90 applies in the context of a
    hearing before the court, and therefore not where the justice is proceeding on
    default under s. 9(1) where no hearing is held. Apart from any other
    consideration, I thus find it hard to imply in s. 90 a power to amend a
    certificate of offence, where s. 90 is irrelevant to ss. 9(1) and 9.1
    proceedings, which are important proceedings under the Act.

[31]

Where s. 90 is relevant is at a trial, where the offence notice is put
    before the court, or as in this case, on appeal, where the defendant tenders
    the offence notice as a piece of fresh evidence. In these two situations, the
    presiding judge can compare the information on the two documents and, if a
    variance exists, determine its impact. Trial judges have disagreed on the
    impact of a variance resulting from an amendment to the certificate of offence
    before it has been filed.

(d)

Case law in the trial
    courts

[32]

Several trial judges have concluded that an amendment to the certificate
    of offence before it has been filed with the court, but after the offence
    notice has been served on a defendant, invalidates the proceeding. Here is a sampling
    of five decisions reaching that conclusion. In none of them did the court analyze
    the effect of s. 90 of the
Provincial Offences Act
.

[33]

In
R. v. Pawar
(2007)
,
    36 M.P.L.R. (4th) 90 (Ont. S.C.), before the certificate of offence was filed,
    it was amended by adding the day and month and correcting the year in which the
    alleged offence occurred. When the charge came up for trial, the justice of the
    peace quashed the ticket before the defendant had entered a plea. The
    prosecutor (the City of Brampton) sought judicial review to quash the justice of
    the peaces ruling and remit the matter back to the provincial court. OConnor
    J. dismissed the application. At para. 28 of his reasons, he held:

Neither the
P.O.A.
nor the regulations appear to
    contemplate an amendment to the certificate made between service of the notice
    and filing the certificate with the court. Thus the notice should contain
    exactly the same personalized information as the certificate. The accused must
    be aware of the information before the court. The requirement that amendments
    be made only by the court guards against the potential mischief of alterations
    prejudicial to the accused being made without the accuseds knowledge.

[34]

In
R. v. Nandalall
, [2008] O.J. No. 6034 (Ont. S.C.), Langdon
    J. followed
Pawar
. He held, at para. 33, that a certificate of
    offence that is amended by the issuing officer, after he has served the offence
    notice, but before he has filed the certificate, is a nullity. A nullity cannot
    be amended (footnotes omitted).

[35]

Similarly, in
R. v. McGonigal
, [1990] O.J. No. 3400 (Ont. C.J.),
    where the defendant was charged with the offence of red light fail to stop
    and the officer corrected the section number of the offence under the
Highway
    Traffic Act
, Wolder J. held, at para. 8, there is no provision under the
Provincial
    Offences Act
to amend the original document after execution or acceptance
    of service by the accused. He held that the amendment had nullified the
    proceedings.

[36]

And in
R. v. Tizzard
, 2011 ONCJ 821, [2011] O.J. No. 6156,
    where the defendant had been charged with speeding, but the officer had
    forgotten to specify the rate of speed on the certificate and then added it
    after, the defendant was convicted in his absence. But on appeal, Bellefontaine
    J. set aside the conviction and quashed the certificate of offence, because in
    his view, the amendment was substantive and deprived the defendant of the
    ability to make an informed decision whether to plead guilty or have a trial.

[37]

Finally, in
R. v. Koza
, [1995] O.J. No. 4278 (Ont. C.J.), where
    the officer corrected the date on the certificate of offence after serving the
    offence notice, Smith J. quashed the conviction. He held, at para. 29, if
    anybody wants to play with the document after they have been generated, they
    are not going to get the support of this judge.

[38]

On the other side of the disagreement among trial judges are the
    decisions of Lampkin J. in
R. v. Aristidou
, 2007 ONCJ 250, [2007] O.J.
    No. 2229 and Libman J. in
R. v. Mirza
, [2012] O.J. No. 6505 (Ont.
    C.J.).

[39]

In
Aristidou
, the defendant was charged with speeding. He was
    clocked at 93 kph in a 70 kph zone. The officer initially used his roadside
    discretion to reduce the speed to 85 kph. However, unhappy with the defendants
    apparent rudeness, the officer then amended the certificate of offence to show
    a rate of 93 kph and correspondingly amended the set fine from $42.50 to
    $91.25. The justice of the peace concluded that the amendment was improper and
    convicted the defendant of speeding at 85 kph. York Region appealed.

[40]

Lampkin J. correctly acknowledged that once the certificate of offence
    was filed with the court, it could only be amended by the court. But
    importantly, he also held that an officer could correct an error on the
    certificate of offence before filing it with the court. He wrote, at para. 20:

But what if the provincial offences officer discovers an error
    prior to filing the certificate in the office of the court or the laying of an
    information and proceeds to correct the error before filing the certificate or
    laying the information? The error may be as simple as the misspelling of a
    name. In my opinion the officer is entitled to make the correction before the
    proceeding has been commenced by filing the certificate or laying the
    information.

[41]

Nonetheless, Lampkin J. dismissed the appeal. He upheld the justice of
    the peace, inferring either that she had rejected the officers evidence that the
    defendant was speeding at 93 kph, or that she had used her power to amend the
    certificate.

[42]

In
Mirza
, the defendant was charged with failing to stop at a
    red light. The officer, however, put the wrong section number on the
    certificate of offence  he had written the section of the
Highway Traffic
    Act
for speeding. After serving the offence notice, the certificate was
    amended by crossing out the wrong section number and inserting the correct one.
    The defendant did not appear, and a justice of the peace convicted him in his
    absence.

[43]

The defendant appealed, and Libman J. dismissed his appeal. He
    distinguished the cases of
Pawar
and
Koza
, holding that the
    amendments in those cases were matters of substance. In the case before him,
    Libman J., at paras. 71-72, held that the defendant had not been misled and the
    officer simply corrected an obvious error.

Here, the effect of the argument as I apprehended it is that if
    an officer noticed an obvious error on a ticket, such as the spelling of a
    street or the offence, he or she would not be permitted to correct it to give
    logical effect to the argument made by Mr. Manoukian. I am unable to accept
    that this is in accord with the intent of this legislation.

[44]

Mirza
and a companion case were appealed to this court: see
R.
    v. Farah
, 2015 ONCA 302, [2015] O.J. No. 2240. This court allowed both
    appeals, relying on the prosecutors concession. But as the court noted in its
    brief endorsement, the concession was a limited one  that the certificates of
    offence, though complete, were not regular on their face, as there was a
    discrepancy between the short-form description of the offence and the specified
    section number of the
Highway Traffic Act
. That concession, of course,
    has no application to the case before us, as the certificates of offence for
    Wadood and for Davis were both complete and regular on their face.

(e)

My analysis

[45]

The effect of s. 90 has to be assessed not only in the light of the
    words of the section, but as well in the context of the scheme of the Act as a
    whole and its purpose.

[46]

Section 90 itself does not confer on an officer an express power to
    amend a certificate of offence. And I do not think it would be appropriate to
    imply a power to amend as the Municipality contends. The scheme of the Act
    suggests otherwise. Where the legislature and rule-makers wanted to provide for
    an amendment power, they have done so expressly in ss. 34(1) and (2) of the
    statute and r. 15(1)2. And, as I said earlier, s. 90 does not apply to
    certificates of offence considered in ss. 9(1) or 9.1 proceedings.

[47]

However, for the prosecution to achieve its goal of allowing officers to
    correct minor errors or omissions on a certificate of offence, it is not
    necessary to go as far as implying an amendment power in s. 90. In my opinion,
    officers are entitled to change information on a certificate of offence before
    filing with the court, even after serving a defendant with an offence notice.
    Nothing in the Act or the rules precludes officers from doing so. Proceedings
    against a defendant have not yet commenced. And neither the Act nor the rules
    requires that the information on a certificate of offence be identical to the
    information on an offence notice before it is filed with the court.

[48]

Allowing an officer to correct the certificate of offence before filing
    it with the court furthers the purpose of the
Provincial Offences Act
and proceedings under it. The express purpose of the Act is set out s. 2(1):

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.

[49]

This court and other judges have elaborated on this purpose. The Act is
    intended to permit judges to decide cases on their merits, to deal efficiently
    and inexpensively with the provinces large volume of minor regulatory offences,
    and to avoid having proceedings invalidated because of technical objections or
    irregularities having no prejudicial impact on a defendant. See, for example,
London
    (City) v. Young
, per Doherty J.A. and
Ontario (Ministry of Labour) v.
    Discovery Place Ltd.
, [1996] O.J. No. 690 (Ont. C.J.), varied on other
    grounds, [1997] O.J. No. 1887 (Ont. C.A.).

[50]

If officers were not permitted to correct information on a certificate
    of offence before filing the certificate with the court, then many proceedings
    under ss. 9(1) or 9.1 would be quashed simply because the officer misspelled a
    name, left out a name of a municipality, or incorrectly wrote down the year of
    the alleged offence. In all of these examples  and many other examples of
    minor errors or omissions on certificates of offence  the defendant charged
    would not be misled. Quashing the certificate of offence because of minor
    errors that cause no prejudice would not promote the fair administration of
    justice in the provincial court.

[51]

Defendants are protected if they were misled or prejudiced by a change
    to information on the certificate of offence that produced a variance between
    the certificate and the offence notice. Where a variance comes to light, s. 90
    has an important role to play in promoting the purpose of the Act.

[52]

A variance could come to light in one of two situations: (1) at a
    contested trial, where the defendant puts the offence notice before the court
    and invites the presiding judge to compare the information on the certificate
    with the information on the offence notice; or (2) as in the present case, on
    appeal, after a conviction is registered against the defendant under ss. 9.1 or
    9(1) of the statute. In the latter situation, the appeal court has wide power
    under s. 136 of the
Provincial Offences Act
to receive further
    evidence, which presumably could include the offence notice, even though it was
    not before the justice of the peace in the default proceeding.

[53]

The judge, either at trial or on appeal, faced with a variance, would
    have to determine its impact. If the variance had the potential to mislead the
    defendant, then the judge would be justified under s. 90(2) in adjourning the
    trial and even ordering the prosecution to pay costs. On appeal, the judge may
    be justified under s. 138 in reversing a conviction or varying a penalty, or if
    necessary to do so to satisfy the ends of justice, ordering a new trial.

[54]

In his judgment in
R. v. Montone
, 2007 ONCJ 251, [2007] O.J.
    No. 2230, at paras. 38-39, Lampkin J. gives a good example of a case where a
    defendant would be misled by a change to the certificate of offence and where a
    conviction would result in an injustice. An officer arrives at the scene of an
    accident and issues a certificate of offence for following too closely. The
    officer then calls in to report the accident to his staff sergeant who advises
    that the defendant should have been charged with careless driving, a more
    serious offence with a greater monetary penalty and more demerit points. The
    officer then changes the certificate of offence to record the more serious
    offence and files it with the court. The defendant, thinking he had been
    charged only with following too closely, does not dispute the charge; the justice
    of the peace, in the defendants absence, examines the certificate, concludes
    it is complete and regular on its face, and convicts the defendant of careless
    driving. The defendant is notified of the conviction and appeals. As Lampkin J.
    notes, upholding the conviction on these facts would not be just; the defendant
    would have been convicted of an offence for which he received no notice
    whatsoever.
[5]


[55]

But against those cases  likely few  where the defendant has been
    misled or prejudiced by a change to the certificate of offence, are those many
    cases where the change may correct clerical errors or supply missing
    information, and the defendant is not misled or prejudiced at all. In these
    cases, s. 90 preserves the validity of the proceeding.

(2)

Did s. 90 preclude the appeal judge from invalidating the convictions of
    Wadood and Davis?

[56]

In Wadoods case, the certificate of offence was changed before filing
    by adding the name of the municipality where the offence was alleged to have
    occurred. In Davis case, the certificate of offence was changed by correcting
    the year in which the offence was alleged to have occurred. In neither case was
    the defendant misled by the change. The appeal judge so found when he observed
    both were aware of the charge that they had to answer.

[57]

Yet the appeal judge erred in law, because he failed to give effect to,
    or even consider, s. 90 of the
Provincial Offences Act
. Section
    90(1)(b) is a complete answer to the position of Wadood and Davis. The minor
    variances between the certificates and the offence notices did not affect the
    validity of either proceeding or the conviction of each respondent.

E.

Conclusion

[58]

I would allow the Municipalitys appeal and restore the convictions
    against Wadood and Davis.

Released: January 19, 2016 (R.J.S.)

John Laskin J.A.

I agree. Robert J. Sharpe J.A.

I agree. B.W. Miller J.A.





[1]

R.S.O. 1990, c. H.8.



[2]
Although the record is unclear who made the change to the certificates, I have
    presumed in each case the officer did so. Nothing turns on who made the
    changes; only that they were made before the certificates were filed with the
    court.



[3]

R.S.O. 1990, c. P.33.



[4]
R.R.O. 1990, Reg. 200.



[5]
Lampkin J. also notes, and the Regional Municipality accepts, that s. 124 (2)
    of the Act  where an appeal is based on a defect in a convictionjudgment
    shall not be given in favour of the appellant, but the court shall make an
    order curing the defect  would not bar the appeal.


