A recent Ontario Court of Appeal ruling allows police officers to amend tickets for minor offences before they are filed in court and without notifying the accused.
Lawyers say the decision is concerning as it could cause the accused to be prejudiced.
When a police officer issues a ticket to someone such as a driver for a minor traffic offence, the officer will fill out what is called a certificate of offence, which has a carbon copy beneath it called the offence notice.
The notice is given to the driver and the certificate is filed with the court.
At issue was whether the Provincial Offences Act authorizes an officer to change information on the certificate after giving notice but before filing it with the court.
The Court of Appeal found that while s. 90 of the POA does not give an officer an “express power” to amend certificates, nothing in the act precludes them from doing so.
“If officers were not permitted to correct information on a certificate of offence before filing the certificate with the court, then many proceedings . . . 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,” said Justice John Laskin, in the decision.
“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.”
However, Arvin Ross, a criminal defence lawyer who appeared as amicus curiae in the proceedings, says he believes the decision was not in the public interest, as allowing officers to alter certificates in this way will be prejudicial to defendants who could face charges that are different from what is on their notice.
“It doesn’t make any sense that the officer would be able to serve the defendant with a copy and then serve the court with something that’s different,” he says.
He added the decision also puts the Crown at an unfair advantage.
“What it comes down to is procedural fairness and this decision puts the public at a procedural disadvantage because the person who receives a copy of their ticket relies on the information on the ticket to defend themselves or to decide how they would like to proceed.”
In the two cases heard, the Ontario Court of Justice had quashed convictions based on the fact the officers had changed the certificates without notice.
In one of the cases, Amatal Wadood had been charged with the offence of “turn not in safety” under the Highway Traffic Act.
The officer who charged her did not fill out the name of the municipality where the alleged offence occurred until after he gave her notice.
In the other case, Douglas David was charged with speeding 149 kilometres an hour in a 100-kmh zone. The officer later realized he had put the wrong year on the ticket and corrected it before filing.
Both Wadood and Davis asked for trials, but they then failed to show up and were subsequently convicted.
They successfully appealed their convictions, arguing the officers did not have the statutory authority to make changes to certificates without notice.
The Regional Municipality of York then appealed the decision that quashed the convictions.
James Morton, past president of the Ontario Bar Association and lawyer with Morton Barristers, says he found the decision surprising, as it did not distinguish between substantive and non-substantive changes to tickets.
“It might have been better to distinguish between material and immaterial amendments to the document and say that immaterial or non-substantive changes are not a problem,” says Morton, who was not involved in the case.
“Nobody is ever going to be troubled by that, but material changes need to be done by motion by a justice of a peace and on notice.”
In its appeal, the municipality argued that s. 90 (1) (b) of the POA holds that a variance between an offence notice and a certification does not affect the validity of the proceeding, and that this authorizes officers to amend certificates.
Wadood and Davis, however, submitted that it would be unfair to permit an officer to change information after notice was served as defendants assume the information on each document is identical.
The Court of Appeal found that while the POA does not authorize an officer to amend the certificate without notifying the accused, nothing in the legislation prevents an office from doing so.
“Whether an amendment will invalidate a conviction depends on the nature of the amendment and its impact on a defendant,” Laskin said in the decision.
Laskin went on to say the defendants in the two cases at hand were not misled or prejudiced as the amendments amounted to clerical error and, therefore, the proceedings against them were valid.
Chris Bendick, the lawyer representing the Regional Municipality of York, says the POA allows for proceedings to be quashed if the variance between the certificate and notice leads to the defendant being prejudiced.
“In this particular case here, there was no prejudice, because the variances were minor clerical errors,” he says.
He added that the overall philosophy of the POA is that verdicts are to be arrived at on their merits and not to be quashed on pure technicalities.
“At the end of the day, there’s also fairness to the administration of justice,” he says.
Under the POA, the presiding judge can convict a person in their absence, but only if the certificate is “complete and regular on its face,” otherwise, the conviction will be quashed. Laskin said it is, therefore, understandable that officers will want to correct minor errors in order to ensure convictions.
Laskin, however, went on to say he did not entirely agree with the municipality’s argument that s. 90 gave officers “implicit authority to amend.”
“But I see nothing in the statute or rules that precludes an officer from amending the certificate,” he said.
“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.”