R v Hilaire

R. v. Hilaire

[1999] O.J. No. 898
Ontario Court of Justice (Provincial Division) — Libman Prov. J. | March 11, 1999

Background

On February 28, 1997, Pascal Hilaire was charged with operating a motor vehicle without insurance, contrary to section 2(1)(a) of the Compulsory Automobile Insurance Act. The information was sworn on May 8, 1997, and a summons was issued requiring Hilaire to appear in court on June 25, 1997. However, the provincial offences officer never completed the affidavit of service on the back of the summons — meaning there was no proof that Hilaire had actually received notice of his court date.

Hilaire had actually showed up in court on April 29, 1997, but was told there was no information before the court and no jurisdiction to deal with his matter. When he failed to appear on the scheduled June 25 date, the matter was adjourned to November 14, 1997 for an ex parte trial. When he again failed to appear on November 14, the court proceeded with the trial in his absence, found him guilty, and imposed the minimum fine of $5,000.

Issues

1. Can a court proceed with an ex parte trial when there is no proof the defendant was properly served with the summons?
2. Should Hilaire challenge his conviction through the appeal process or through judicial review (certiorari)?

The Service Defect and Appeal Rights

The Crown conceded that there was no basis for proceeding with Hilaire's trial in his absence, given the complete lack of proof of service. This violated section 26 of the Provincial Offences Act, making the entire process "fatally flawed." However, the Crown argued that Hilaire should have sought certiorari under section 140 of the POA rather than filing an appeal.

Justice Libman firmly rejected this argument. He held that appeals under Part III of the POA are available for any defendant challenging a conviction, regardless of whether the original proceedings were flawed or even constituted a "nullity." The judge cited the Supreme Court of Canada decision in R. v. Saunders, which established that when a statutory right of appeal exists, that must be the remedy used — not extraordinary remedies like certiorari.

Section 141(3) of the POA expressly prohibits certiorari applications "to quash a conviction, order or ruling from which an appeal is provided by this Act." This provision is actually broader than its Criminal Code counterpart, making the appeal route mandatory in virtually all cases where a conviction results.

Key Takeaway

Even fundamental procedural defects that render proceedings a "nullity" can be challenged through the normal appeal process.

If you're convicted at a POA trial and believe there were serious procedural errors (like improper service), don't waste time with complicated judicial review applications. File your appeal within the statutory deadline and argue the procedural defects as grounds for overturning the conviction.