



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hicks, 2014 ONCA 756

DATE: 20141029

DOCKET: M44141

Strathy C.J.O. (In Chambers)

BETWEEN

Her Majesty the Queen and The Corporation of the
    City of London

Respondents

and

Ryan Hicks

Applicant

Ryan Hicks, in person

Emily Graham,
amicus curiae
for the applicant

Jennifer Smout and Kelly Nenniger, for the respondents

Heard: October 15, 2014

Motion for an order granting leave to appeal from the
    judgment of Justice G. Pockele of the Ontario Court of Justice dated July 17,
    2014, dismissing the appeal from the conviction entered by the Justice of the
    Peace dated February 18, 2014.

ENDORSEMENT

[1]

The applicant was convicted of speeding under s. 128 of the
Highway
    Traffic Act,
R.S.O. 1990, c. H.8. His appeal to the Ontario Court of
    Justice was dismissed. He seeks leave to appeal to this court pursuant to s.
    139 of the
Provincial Offences Act
, R.S.O. 1990, c. P.33.

Facts

[2]

The facts in this case are not disputed. On the date of the offence,
    January 30, 2014, the applicant was served with an Offence Notice (Form 3).

[3]

The Offence Notice stated: You have 15 days from the day you receive
    this notice to choose one of the options on the back of the notice. The back
    of the notice stated: If you do not exercise one of the following options
    within 15 days of receiving this notice, you will be deemed not to dispute the
    charge and a justice may enter a conviction against you. It then set out three
    options:

·

Option 1 was to plead guilty and pay the amount of the fine.

·

Option 2 was to plead guilty and make submissions as to the
    penalty.  It was stated that Option 2 required attendance at the designated
    court office on certain days and between certain hours indicated on the notice.

·

Option 3 was to indicate an intention to appear in court to enter
    a plea of not guilty. The form showed the location of the court office, but
    provided no instructions, if Option 3 was exercised, about how the Offence
    Notice was to be delivered to the court office or how the time for delivery of
    the notice was calculated.

[4]

On February 13, 2014, the applicant completed the back of the notice,
    indicating he wanted to exercise Option 3 to have a trial and mailed the notice
    to the designated court office.

[5]

The applicants notice was received on February 18, but a conviction was
    entered by a Justice of the Peace on that date. On February 28, 2014, the
    applicant received a letter dated February 24, 2013, which stated Your request
    for a trial date was received after the fifteen day period had lapsed and a
    conviction has been registered under section 9 or section 19(1) of the
    Provincial Offences Act.

Decision Below

[6]

The applicant appealed his conviction. The central issue concerned the
    calculation of the period of time for him to file his notice of intention to
    appear in court, before he could be deemed not to dispute the charge under s.
    9(1)(a) of the
POA
and a conviction could be entered under s. 9(2)(a)
    of the
POA
.

[7]

The applicant argued his conviction was premature based on an
    application of Rule 4 of the
Rules of the Ontario Court (Provincial
    Division) in Provincial Offences Proceedings
, R.R.O. 1990, Reg. 200
    (Regulation 200).

[8]

The Provincial Offences Appeal Judge rejected the applicability of Rule
    4 of Regulation 200 and found the applicant was under a strict obligation to
    ensure his exercise of option was received within 15 days. He drew a
    distinction between delivering a notice as contemplated in Rule 4 and
    exercising an option as stipulated on the Offence Notice. As a result, he
    found that a person issued a speeding ticket is strictly responsible for
    effecting delivery of the exercise of option within 15 days. He summarized
    his opinion as follows:

I take the position that if you have a ticket and you want to
    exercise your option within 15 days, then you must exercise your option within
    15 days by making delivery whatever it takes, of the document which exercises
    your option. It must be emphatically and actively exercised within 15 days. It
    is not to be extended by those provisions relating to notices to be given or
    delivered. The word exercising an option is a different terminology and the
    time period is strict. It has to be strict having regard to the necessity of
    effectively administering a court which is already subject of gross delay.
    Accordingly, the appeal will be dismissed.

[9]

Since he concluded Rule 4 of Regulation 200 was inapplicable, he did not
    proceed to consider how it would impact the calculation of the notice period.

Discussion

[10]

The
    applicant submits that the correct application of Rule 4 of Regulation 200
    means his notice was filed on time.

[11]

Section
    9(1)(a) of the
POA
states:

9.  (1)
A
    defendant is deemed to not wish to dispute the charge where,

(a)

at least
15
    days have elapsed after the defendant was served with the offence notice and
    the defendant did not give notice of intention to appear under section 5, did
    not request a meeting with the prosecutor in accordance with section 5.1 and
    did not plead guilty under section 7 or 8 [Emphasis added.];

[12]

Rule
    4 of Regulation 200 states:

4.  The following apply to the calculation of a
    period of time prescribed by the Act, section 205.7 or 205.19 of the
Highway
    Traffic Act
, these rules or an order of a court:

1. The time shall be calculated by excluding the first day and
    including the last day of the period.

2. Where a period of less than six days is prescribed, a
    Saturday or holiday shall not be reckoned.

3. Where the last day of the period of time falls on a Saturday
    or a holiday, the day next following that is not a Saturday or a holiday shall
    be deemed to be the last day of the period.

4. Where the days are expressed to be clear days or where the
    term at least is added, the time shall be calculated by excluding both the
    first day and the last day of the period.

[13]

Section
    9(1)(a) of the
POA
requires that at least 15 days must have elapsed
    between the service of the notice and the date of conviction. Rule 4.4 of
    Regulation 200 means that the time is calculated by excluding the first and
    last days of the period. The applicant says that in his case, the period of at
    least 15 days began on and included January 31, and ended on and included
    February 15, 2014.

[14]

February
    15, 2014 was a Saturday. As a result, Rule 4.3 of Regulation 200 becomes
    important, which designates that if the last day of the period falls on a
    Saturday or a holiday, then the last day is deemed to be the next day that is
    not a Saturday or a holiday. Under s. 2(3) of
Rules of the Ontario Court
    (Provincial Division) in Appeals Under Section 135 of the Provincial Offences
    Act
, O. Reg. 722/94, the definition of holiday in the
POA
includes any Saturday or Sunday and the Family Day holiday, which in 2014 was
    February 17.

[15]

To
    summarize, it is arguable that the period of at least 15 days under s.
    9(1)(a) should have excluded January 30, 2014  the day of service, and
    February 14  the 15
th
day (Rule 4.4, Regulation 200). February 15,
    16 and 17 should have also been excluded from the calculation of at least 15
    days from the date of service (Rule 4.3, Regulation 200). Accordingly, the
    last day for delivery of the Offence Notice was arguably Tuesday, February 18,
    2014  the day of the applicants conviction.

[16]

It
    appears, therefore, that the applicants appeal on this ground may have some
    merit.

[17]

There
    is another potential ground of appeal based on the applicants fundamental
    complaint that it was unfair to convict him when he believed he was complying
    with the notice he received. This raises the issue of the sufficiency of the
    notice.

[18]

Section
    5(2)(b) of the
POA
provides:

Notice of intention to appear in offence notice

(2)
If the
    offence notice includes a part with a notice of intention to appear, the
    defendant must give notice of intention to appear by,

(a) completing the notice of intention to appear part of the
    offence notice; and

(b) delivering the offence notice to the court office specified
    in it
in the manner provided in the offence notice
.
    [Emphasis added.]

[19]

The
    Offence Notice received by the applicant, which appears to have been a standard
    form, did not specify the manner of delivery, other than to identify the
    address of the court office. Nor did it contain any information concerning how
    the 15 day notice period would be calculated. Arguably, the Offence Notice did
    not comply with the statute because it failed to describe the manner in which
    the notice was to be delivered, if it was sent by mail.

[20]

Section
    139 of the
POA
provides:

139.  (1)
An
    appeal lies from the judgment of the Ontario Court of Justice in an appeal
    under section 135 to the Court of Appeal, with leave of a judge of the Court of
    Appeal, on special grounds, upon any question of law alone.

(2)
No
    leave to appeal shall be granted under subsection (1) unless the judge of the
    Court of Appeal considers that in the particular circumstances of the case it
    is essential in the public interest or for the due administration of justice
    that leave be granted.

[21]

This
    test is identical to the test under s. 131 of the
POA
and
    jurisprudence under that section is equally applicable. In
Vaughan (City)
    v. Antorisa Investments Ltd.
, 2012 ONCA 586, [2012] O.J. No. 4200,  
    Gillese J.A. observed at para. 8:

The law on s. 131 is well-settled: see, for example,
R. v.
    Castonguay Blasting Ltd.
,
2011 ONCA
    292
(in Chambers), at paras. 14-15. In order for the Applicants to
    obtain leave, they must establish: (i) special grounds; (ii) on a question of
    law alone; and (iii) that, in the particular circumstances of this case, it is
    essential in the public interest or for the due administration of justice that
    leave be granted. What constitutes "special grounds" in s. 131(1) is
    informed by the requirement in s. 131(2) that it is essential in the public
    interest or for the due administration of justice that leave be granted. The
    threshold for granting leave is very high.

[22]

In
    my view, this appeal raises issues concerning the application of Regulation 200
    and the calculation of the time limits thereunder, and the compliance of a
    prescribed form with the Act. These are questions of law involving a statute of
    general application in the prosecution of provincial offences that have
    potential significance for the rights of motorists throughout the province.
    They appear to be questions of first impression.

[23]

Leave
    to appeal is therefore granted on the two grounds discussed above. It should be
    noted that the applicant raised an additional ground of appeal concerning the
    calculation of the notice period based on Rule 5 of Regulation 200. It states a
    notice delivered by mail shall be deemed to be given or delivered on the
    seventh day following the day on which it was mailed. He submitted Rule 5
    extends the 15 day notice period under s. 9(1)(a) by an additional seven days.

[24]

I
    am not persuaded this submission has any merit. Based on its plain and
    unambiguous meaning, Rule 5 merely allows individuals to safely assume the
    receipt date of notices delivered by mail. It does not affect the notice
    deadline. I would deny leave to appeal on this ground.

[25]

Pursuant
    to s. 112 of the
POA
, I order the applicants conviction stayed
    pending his appeal and the disposition thereof.

[26]

The
    applicants request that his appeal be heard by way of teleconference may be
    raised by letter addressed to the Registrar, after the perfection of the
    appeal.

[27]

Amicus
provided able assistance in this leave application. I have no doubt the
    appeal panel would also appreciate the assistance of
amicus
from Pro
    Bono Law Ontario to assist at the hearing of the appeal.

G.R. Strathy C.J.O.


