R v Mattheos

R. v. Mattheos

[2004] O.J. No. 5339
Ontario Court of Justice — Justice B.G. Thomas | November 8, 2004

Background

Victor Mattheos was involved in a motor vehicle collision on April 20, 2004. The next day, he received a Part I notice of offence charging him with careless driving under section 130 of the Highway Traffic Act. Mattheos filed his intention to appear and request a trial. But then something unusual happened — on April 29, 2004, he received a second notice of offence for the exact same charge arising from the same collision. The Crown never filed the first ticket with the court.

When Mattheos appeared in court with his paralegal, they brought an oral motion to quash the certificate. They argued the Crown had failed to obtain the Attorney General's consent before serving the second notice, as required by section 21 of the Provincial Offences Act. Justice of the Peace Hurst agreed, finding this was an abuse of process and quashing the certificate. The Crown appealed.

Issues

1. Did section 21 of the Provincial Offences Act apply to this situation?
2. Was there an abuse of process that justified quashing the certificate?
3. Did the Crown have a right to appeal the quashing of the certificate?

The Appeal Rights Problem

Justice Thomas agreed with the Crown that section 21 of the Provincial Offences Act didn't apply here. Section 21(2) only requires the Attorney General's consent when a proceeding starts under Part I and then the Crown switches to Part III for the same offence. That's not what happened — the officer simply served a new Part I notice without filing the original certificate.

The court also found there was no abuse of process. Under section 3(1) of the Provincial Offences Act, no proceeding actually commenced until the second certificate was filed, since the first one was never filed with the court. The justice of the peace had erred in both finding an abuse and in quashing rather than staying the proceedings.

But here's the crucial point: even though the justice of the peace was wrong, the Crown still lost the appeal. Why? Because quashing a certificate is not the same as an acquittal, and the Crown can only appeal acquittals under section 135 of the Provincial Offences Act. Since Mattheos was never arraigned, never entered a plea, and was never in jeopardy, this wasn't a final determination. The Crown still had time left in the six-month limitation period to re-lay the charge. Their only remedy was to seek mandamus in Superior Court, not to appeal.

Key Takeaway

The Crown cannot appeal every unfavorable ruling — only actual acquittals after a defendant has been put in jeopardy.

If you successfully bring a motion to quash before entering a plea, the Crown's remedy is usually to start over with a new charge (if time permits) or seek a prerogative writ, not to appeal the decision.