London v Young et al

London (City) v. Young 2008 ONCA 429 | Court of Appeal for Ontario — Doherty, Feldman, and Armstrong JJ.A. May 30, 2008

Background

Between April 10 and 15, 2006, sixteen people in London, Ontario were each ticketed for provincial offences under Part I of the POA — speeding, failing to yield, driving without a licence, noise violations, causing disturbances. Standard stuff. The officers completed the carbon copy ticket forms, the top copy of which becomes the certificate of offence and the second copy the offence notice served on the defendant.

None of the sixteen responded within fifteen days. All sixteen were deemed not to dispute their charges. All sixteen certificates were placed before Justice of the Peace Levitt for the mandatory examination under s. 9(1) of the POA.

She quashed all sixteen.

The reason was the same in every case: the set fine amount recorded on the certificate was incorrect. In some cases the total payable was right but the set fine component was wrong. In others, the total was off anywhere from five to seventy-five dollars. No one could fully explain why — the officers may have been using an old form, adding service costs incorrectly, or simply making errors. Whatever the cause, the set fines on the face of the certificates were inaccurate.

The City of London brought an application for mandamus in the Superior Court, arguing the incorrect set fine was mere surplusage and should not have resulted in sixteen quashed proceedings. The application judge dismissed it on procedural grounds — holding the City should have appealed under s. 135(1) rather than seeking mandamus. The City appealed to the Court of Appeal.

The result was a 2-1 split. Feldman J.A., writing for the majority with Armstrong J.A. concurring, dismissed the appeal and confirmed the quashing orders were correct. Doherty J.A. dissented vigorously.

Issues

1. Is the set fine a required component of the certificate of offence such that an error in that amount renders the certificate incomplete or irregular on its face under s. 9(1)?
2. When a justice of the peace quashes a proceeding under s. 9(1), is the correct challenge route an appeal under s. 135(1) of the POA or an application for mandamus under s. 140?

The Set Fine: Required or Surplusage?

The City's core argument was that the set fine on the certificate is mere surplusage — that s. 3(2)(a) of the POA only requires the set fine to appear on the offence notice, not the certificate, and therefore an error in that field doesn't affect the certificate's completeness or regularity.

The majority rejected this with a structural argument that is worth understanding carefully.

When a provincial offences officer proceeds by way of offence notice, the certificate and the offence notice are carbon copies of one another — the officer fills out one form and both documents are created simultaneously. The set fine field appears on both. The justice examining the certificate under s. 9(1) cannot see the offence notice — only the certificate is before the court. The justice's function at that stage, the majority held, is to determine whether the defendant received effective notice of all the information they needed to decide whether to default. The set fine is precisely that kind of information: a defendant deciding whether to simply not respond needs to know what penalty they are accepting by doing so.

If the set fine is wrong on the certificate, it is wrong on the offence notice too — they are the same document. The defendant was given incorrect financial information about the consequences of defaulting. That goes to the legitimacy of the default process itself.

The majority also addressed an additional problem that flows from the absence of any amendment power in the s. 9(1) context. If a justice enters a conviction under s. 9(1), the statute directs them to impose the set fine. But the "set fine" is a legally defined amount fixed by the Chief Justice of the Ontario Court of Justice — not whatever number the officer wrote on the ticket. If the number on the certificate is wrong, the justice cannot impose it — it is not the statutory set fine. And since there is no power to amend under s. 9(1), the justice cannot correct it either. The only door left open is to quash.

The Surplusage Counter-Argument — And Why It Failed

The City leaned on the Superior Court decision in York (Regional Municipality) v. Wilson, which had reached the opposite conclusion — holding the set fine was mere surplusage on the certificate because s. 3(2)(a) only required it on the offence notice. The majority in Young disagreed with Wilson directly and declined to follow it.

The majority also rejected arguments based on s. 34(1) (amendment powers), s. 36(2) (curative provisions), and s. 90(1) (validity savings provisions). Each of those provisions, properly read, applies in the context of a hearing — not the in-office default procedure under s. 9(1), where no hearing takes place, no pleas are entered, no parties appear, and no motions are made. Importing those provisions into the s. 9(1) context would require reading powers into the statute that the legislature deliberately left out.

Doherty J.A.'s Dissent

The dissent is sharp and worth knowing, not because it is the law, but because it represents the strongest version of the Crown's counter-argument and frames the policy tension clearly.

Doherty J.A.'s position was that the set fine is not statutorily required on the certificate — it appears there only because the forms are designed as carbon copies for administrative convenience. The certificate's legal function is to allege an offence and certify service. An error in a field that isn't legally required to be there cannot render the certificate incomplete or irregular. On the remedy side, he argued that defendants who receive incorrect fine information and are prejudiced by it have a full right of appeal under s. 135(1) — a more proportionate response than automatically quashing every certificate with any set fine discrepancy, regardless of whether the error could possibly have mattered to the defendant.

His parting observation was direct: producing results based on an officer's ability to correctly fill in a box on a form, rather than the merits of the allegation or any genuine fairness concern, serves no one and brings the administration of justice into disrepute.

It's a well-reasoned dissent. It just didn't carry the day.

The Procedural Issue: Appeal vs. Mandamus

On the second issue, the majority agreed with the City that mandamus under s. 140 — not appeal under s. 135(1) — is the correct route to challenge a s. 9(1) quashing order. A quashing order under s. 9(1) is not tantamount to an acquittal. The justice has no power to acquit under s. 9(1) — only to convict or quash. A quashing order based on facial defects in a certificate is not a decision on the merits and does not give rise to a double jeopardy bar. It is a recognition that the certificate failed the mandatory threshold examination. Where the Crown believes a justice has erred in that analysis, the appropriate remedy is mandamus — not appeal.

Decision

The appeal was dismissed. The justice of the peace was correct to quash all sixteen certificates on the basis of the incorrect set fine amounts. Mandamus was the proper procedural vehicle to challenge such decisions, but the remedy was denied because the quashing orders were substantively correct.

Key Takeaways

London v. Young is the definitive Court of Appeal authority on the set fine requirement in the s. 9(1) context, and it settles a question that had divided lower courts. An incorrect set fine amount on a certificate of offence is not surplusage — it is a material error that renders the certificate irregular on its face and requires the justice to quash. The absence of any amendment power under s. 9(1) means there is no mechanism to fix it. Quash is the only available outcome.

This case is also the authority on the procedural question: when a justice quashes under s. 9(1) and the Crown believes it was wrong, the route is mandamus under s. 140, not appeal under s. 135(1). A quashing order is not an acquittal, and no right of appeal exists against it under the POA.

Read alongside Khoshael — which first established the set fine as a required element — Young is the appellate confirmation that makes the principle binding. For any case involving a Part I conviction entered in the defendant's absence, checking the accuracy of the set fine on the certificate is not optional. It is step one.