R v Khoshael et al

R. v. Khoshael [2001] O.J. No. 2110 | Ontario Court of Justice — Libman J. Judgment: May 25, 2001

Background

Ali Khoshael was ticketed under Part I of the Provincial Offences Act. The certificate of offence issued to him had one problem: the provincial offences officer never completed the certification of service box. No checkmark. No signature. Nothing confirming that service had actually occurred.

Khoshael didn't disappear. He filed a notice of intention to appear. He arranged for an agent to show up on his behalf. And then, on the day of trial, neither he nor his agent appeared. The justice of the peace was now in deem-not-to-dispute territory. She examined the certificate and entered a conviction anyway.

That conviction didn't survive appeal.

Khoshael was argued alongside a number of companion appeals raising the same fundamental question across different fact patterns — each one presenting a slightly different defect on the face of a certificate: an erroneous set fine amount, an omission of the set fine altogether, an omission of the total fine payable, a fine calculation that was off by ten cents. Different defects, same issue, same result.

Justice Libman — the same judge who would later appear as the appeal court judge in Farah — consolidated the principles and issued a clear, authoritative ruling that practitioners have been citing ever since.

Issues

1. Does a defect on the face of a certificate of offence — including an error in the fine amount or an omission of the service certification — require the justice to quash the proceeding under s. 9.1 of the POA?
2. Does the defendant's subsequent conduct — such as filing a notice of intention to appear — cure a defect on the face of the certificate?
3. Are all defects created equal, or is there a distinction between fatal defects and mere surplusage?

The Legal Framework

Under s. 9.1 of the Provincial Offences Act, when a defendant fails to appear for trial, they are deemed not to dispute the charge. That deeming provision triggers a mandatory obligation on the justice: examine the certificate of offence. If it is complete and regular on its face, enter a conviction and impose the set fine. If it is not, quash the proceeding. That's it. No middle ground, no discretion, no repair work.

What makes s. 9.1 exceptional — and Libman J. is direct about this — is that it authorizes a justice to convict a person without any evidence whatsoever, without a trial, and without the defendant present. That is a significant departure from ordinary criminal procedure, and it demands strict compliance with the preconditions that justify it. You don't get to use an extraordinary power while cutting corners on the prerequisites.

Regulation 200 of the Provincial Offences regulations closes the door firmly: there is no power to amend a certificate under the deem-not-to-dispute provisions. Compare that to s. 36 of the POA, which provides both amendment and quashing powers when a defendant is actually present at trial. The legislature drew a deliberate line. When the defendant is there to respond, flexibility is appropriate. When they're not — and a conviction is being entered in their absence — the document has to stand on its own, without any assistance from the court.

The Defects That Kill a Certificate

Libman J. confirmed that the following defects are fatal to a certificate under s. 9.1 — each one independently sufficient to require a quashing order:

A missing or incomplete certification of service. The certificate must demonstrate that the defendant was properly served. The officer's certification of service is not administrative housekeeping — it is part of the chain of legitimacy that permits the deem-not-to-dispute process to unfold. Without it, the court has no basis to assume valid service occurred, and no jurisdiction to proceed.

An erroneous set fine amount. The set fine is a required element of the certificate. If the amount recorded is wrong — even by ten cents — the certificate is not accurate on its face. This matters practically as well as formally: an understated fine can result in a driver's licence suspension for non-payment of the correct amount, a real-world consequence that flows directly from a clerical error on the face of the document.

An omission of the set fine or total fine payable. Where the fine fields are simply left blank, the certificate is facially incomplete. Full stop.

What the Defendant's Conduct Cannot Fix

Here is where Khoshael draws an important and sometimes counterintuitive line. Khoshael filed a notice of intention to appear. He took active steps that demonstrated he was aware of the charge and intended to respond to it. None of that mattered.

The deem-not-to-dispute analysis is triggered by the defendant's failure to appear on the trial date, and it operates on the certificate itself. The question the justice must answer is whether the certificate is complete and regular. That question is answered by looking at the document — not at what the defendant did or didn't do afterward. A defendant's subsequent conduct cannot retroactively cure a defect on the face of a certificate, and it cannot confer jurisdiction on a court that the defective document fails to support. The legislation is explicit: even a defendant who gave notice of intention to appear and then failed to show up is captured by s. 9.1. The process applies regardless of prior conduct. The certificate still has to hold up on its own.

Surplusage: The Exception to the Rule

Libman J. was careful to note that not every irregularity demands a quashing order. The companion case of R. v. Baldasare illustrated the distinction: adding the words "of Ontario" or "Ontario" to a certificate where not strictly required is pure surplusage. It adds nothing, removes nothing, and confuses nothing. It doesn't make the certificate inaccurate or incomplete — it's harmless noise. Errors of that nature do not strip the court of jurisdiction.

The line between a fatal defect and mere surplusage is this: does the irregularity affect the completeness or accuracy of the information the certificate is required to contain? If the answer is yes, it's fatal. If the answer is no — if it's extra, irrelevant content that doesn't misrepresent anything — it can be disregarded.

Fine amounts, service certifications, and section numbers fall on the fatal side of that line. Extraneous jurisdictional descriptors that don't change the substance of anything fall on the surplusage side.

Decision

The appeal was allowed. The certificate of offence was quashed. The missing certification of service was fatal to the proceeding, and the defendant's prior notice of intention to appear did not — and could not — change that outcome.

Key Takeaways

Khoshael is one of the most practically useful cases in the Part I toolkit because it goes beyond a single defect and lays out a framework. Libman J. confirms that the deem-not-to-dispute process is jurisdictional in nature: the certificate is not just a form, it is the legal foundation on which an in-absentia conviction rests. If that foundation is cracked — wrong fine, missing fine, missing service certification — the conviction has no legs.

Read alongside Dopp and Farah, Khoshael completes a coherent picture: a missing section number, a discrepant section number, a wrong fine amount, a blank fine field, or an uncertified service box are each independently sufficient to bring the proceeding down. The standard is not harsh — it is simply what the legislature required when it decided to give courts the extraordinary power to convict people who aren't in the room.

When you're reviewing a Part I certificate for a client who was convicted in absentia, this is your checklist. Start here.