



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Farah, 2015 ONCA 302

DATE: 20150504

DOCKET: C57186 & C57187

Watt, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdullahi Farah and Muhammad Mirza

Appellants

Adam Little, for the appellants

Amanda Ross, for the respondent

Heard and released orally: April 29, 2015

On appeal from the decisions of Justice Eric N. Libman of
    the Ontario Court of Justice, sitting as a Provincial Offences Appeal Court, on
    September 11, 2012 and September 25, 2012 and dismissing the appeals from the
in
    absentia
convictions of the appellants entered on April 25, 2012 and
    December 16, 2011 in Provincial Offences Court.

ENDORSEMENT

[1]

When a defendant, served with an offence notice under Part I of the
Provincial
    Offences Act
, is deemed not to dispute the charge, a justice is required
    to examine the certificate of offence. The purpose of this judicial examination
    of the certificate of offence is to determine its facial completeness and
    regularity.

[2]

Where the justice determines that the certificate of offence is complete
    and regular on its face, the Act requires the justice to enter a conviction in
    the defendants absence and impose the set fine for the offence. Where the
    justice determines that the certificate of offence is not complete and regular
    on its face, the justice is required to quash the proceedings.

[3]

In accordance with leave granted earlier by a Judge of this court, two
    appeals that raise a common issue, albeit on somewhat different facts, have
    been heard together. In each case, there is a discrepancy between the short-form
    description of the
Highway Traffic Act
offence the appellant is
    alleged to have committed and the section number of the
Highway Traffic Act
the appellant is alleged to have contravened. These discrepancies appear on the
    face of the certificates of offence.

[4]

In one case,
Mirza
, the section number originally entered has
    been struck out and a new and correct section number entered. The change appears
    to have been initialled. It is a reasonable inference that the amendment or
    change was made after the appellant was served with a notice of offence and
    before the scheduled trial date.

[5]

In neither case, did the appellant appear for trial. Convictions were
    entered on the basis that:


i.

the defendant, by failing to appear, or to give notice of an intention
    to appear, was deemed not to dispute the charge; and


ii.

the justice concluded that the certificates of offence were complete and
    regular on their face.

[6]

Both defendants appealed to the Ontario Court of Justice. The same judge
    heard both appeals. He concluded that the justices of the peace were correct in
    not quashing the proceedings. The certificates, the judge said, were complete and
    regular on their face. The offence section was not an essential element of the
    offence, which was properly described by insertion of the short-form
    description. Both appeals were dismissed.

[7]

In this court, the respondent acknowledges that both appeals should be
    allowed. That concession, limited to the circumstances of these appeals, is
    that the certificates of offence, while complete, were not regular on their
    face as required by ss. 9(2) and 9.1(2) of the
Provincial Offences Act
.

[8]

We agree that this is so, and that this lack of regularity required the
    justice in each case to quash the proceedings.

[9]

Based on the particular facts of this case, and with the consent of the
    respondent, the appeals are allowed and the certificates of offence are
    quashed.

David
    Watt J.A.

S.E.
    Pepall J.A.

M.L.
    Benotto J.A.


