R v Jenkins

R. v. Jenkins

2010 ONCA 278
Ontario Court of Appeal — Doherty, Feldman, Sharpe, Simmons and Gillese JJ.A. | April 15, 2010

Background

Wayne Jenkins was charged on July 3, 2003, with driving while his licence was suspended under the Highway Traffic Act. He was given a summons requiring him to appear in court on July 29, 2003, but didn't show up because he "wasn't feeling well." The matter was adjourned to November 10, 2003, for trial.

Jenkins never bothered to find out his new trial date, even though he knew he could call the courthouse. Meanwhile, he got arrested again on August 27, 2003, for more driving charges and was held in custody. On October 6, 2003, he pled guilty to those charges and was sentenced to four months in jail. Jenkins assumed this guilty plea covered all his outstanding charges, including the July 3rd charge — but it didn't.

On November 10, 2003, Jenkins was still in jail serving his other sentence when his trial proceeded without him. The court convicted him and imposed 10 days in jail plus a $7,500 fine. Jenkins only discovered this conviction years later when unpaid fines prevented him from renewing his licence, prompting him to launch an appeal in 2007.

Issues

1. Does section 54(1)(a) of the Provincial Offences Act, which allows ex parte trials even where imprisonment is possible, violate Charter rights?
2. Did the appeal judge err in dismissing Jenkins' conviction appeal?
3. Was the $7,500 fine excessive?

The Constitutional Challenge

Jenkins' lawyer argued that section 54(1)(a) of the POA violates Charter sections 7 and 11(d) because it allows trials in absentia where jail time is possible, without adequate safeguards to ensure the defendant truly waived their right to attend. However, the Court of Appeal had already decided this exact issue in R. v. Felipa (1986), which upheld the constitutionality of ex parte trials under the POA.

The court reaffirmed Felipa, explaining that section 54(1)(a) doesn't deprive defendants of their right to attend trial — it simply provides machinery for proceeding when defendants choose not to exercise that right. The defendant need only appear at the scheduled time and place. The court distinguished this from cases like R. v. Richard, which dealt with automatic convictions for regulatory offences, noting that ex parte trials still require the Crown to prove guilt beyond a reasonable doubt.

The Conviction Appeal

Jenkins claimed his absence was involuntary because he was in custody, but the court wasn't buying it. The real problem was Jenkins' deliberate indifference to his court obligations. He chose not to attend on July 29, 2003, made no effort to reschedule or send someone on his behalf, and never called to find out his trial date despite knowing he could easily do so.

More damning, Jenkins admitted he assumed he'd already pled guilty to the July 3rd charge in October 2003. This meant that even if he hadn't been in custody on November 10th, he still wouldn't have attended court because he thought the matter was resolved. His incarceration was irrelevant to his failure to attend.

The Sentence Appeal

The Crown fairly conceded that the trial judge erred by imposing a $7,500 fine when the prosecutor had only requested the $5,000 minimum, especially without giving reasons for the increase. In ex parte proceedings, judges should not exceed the sentence requested by the Crown without clear justification and specific reasons.

The Court of Appeal reduced the fine to the $5,000 minimum but rejected Jenkins' request to go below the statutory minimum, noting he had other remedies available under section 69 of the POA if the payments posed genuine hardship.

Key Takeaway

Ex parte trials are constitutional, but you can't ignore court dates and expect sympathy years later when it becomes inconvenient.

If you miss your first appearance, call the courthouse immediately to find out your trial date. The POA allows trials to proceed without you, and claiming you "forgot" or "assumed" the charges were dealt with elsewhere won't save you on appeal.