R v Monahan et al

R. v. Monahan et al. 2009 ONCJ 298 | Ontario Court of Justice — Caldwell J. Reasons released: June 18, 2009

Background

Eight defendants — Monahan, Walton, Little, Weinberg, Zavderer, Finley, Hohots, and Cohen — each received Part I certificates of offence and each gave notice of intention to appear. None of them showed up on the trial date. Section 9.1 of the POA was engaged. Their certificates were examined, convictions were entered in their absence, and they all appealed.

The appeal was heard in June 2006 and then deliberately adjourned — for two years — to await the outcome of London (City) v. Young. When Young came down in May 2008, the Crown conceded immediately that it disposed of the appeals of five of the eight defendants, and one of Monahan's two certificates. Those certificates had incorrect amounts in both the set fine box and the total payable box. Young was directly on point. Those certificates were quashed without argument.

That left three certificates still in dispute: Walton's, Little's, and Monahan's second certificate. These were different. The set fine was wrong on all three — but the total payable was correct. The Crown argued that distinction mattered. Justice Caldwell disagreed, and quashed all three as well.

Issues

1. Does London (City) v. Young apply to certificates issued before July 15, 2005 — when the Consolidated Set Fine Schedules were formatted differently?
2. Does a correct total payable amount cure an incorrect set fine amount on the face of a certificate?

The Pre-July 2005 Problem: A Bureaucratic Mess with Legal Consequences

To understand the Crown's argument about the July 15, 2005 date, some background on how set fines actually got recorded on certificates is necessary.

Upon conviction under Part I, a defendant owes three things: the set fine for the offence, court costs fixed at $5.00, and a victim fine surcharge calculated as a percentage of the set fine alone. All three together make up the total payable.

The provincial offences officers completing tickets looked up their set fine amounts from the Consolidated Set Fine Schedules issued by the Ontario Court of Justice. Before July 2005, those schedules listed the set fine under the heading "set fine (includes costs)" or, from 2004 onward, "set fine (includes costs of $5.00)." The intent was for officers to subtract the $5.00 before entering the set fine amount in the dedicated "set fine" box on the new certificate form. In practice, officers routinely didn't do that — they copied the number directly from the schedule, which included the $5.00, producing a set fine figure that was inflated by exactly five dollars in every case.

This error cascaded. Because the victim fine surcharge is calculated on a sliding scale based on the set fine amount, adding $5.00 to the set fine sometimes bumped the calculation into a higher surcharge bracket — what defence counsel Adam Little aptly called "on the verge offences." The result was that the total payable could be overstated as well.

In July 2005, the Office of the Chief Justice issued a memo clarifying the issue and amended the schedules so that the set fine was listed without the $5.00 cost component. From that date forward, the problem should have been eliminated. The City of London certificates were post-amendment. The Monahan certificates were pre-amendment.

The Crown's argument was that officers issuing tickets before July 2005 had no choice but to use the old schedules — and that those schedules listed the inflated number. The certificates therefore reflected what the schedules said. No one could have done it differently at the time. On that basis, the Crown argued those certificates should not be quashed.

Justice Caldwell rejected this cleanly. The officers always had the option of subtracting $5.00 before entering the set fine amount. The instructions were there. The fact that they didn't do it — that the error was inadvertent and flowed from institutional confusion — does not nullify the legal effect of the resulting inaccuracy. Systemic administrative failure is not a legal cure for a defective certificate. The date of the schedules changed nothing about what the POA required.

The Core Issue: Does a Correct Total Payable Save an Incorrect Set Fine?

This is the central question of Monahan, and the one that required Justice Caldwell's most careful analysis.

The three remaining certificates had a wrong set fine amount but a correct total payable. The Crown's practical argument was straightforward: what actually matters to a defendant deciding whether to default is the bottom line — how much do I owe? If that number is right, the defendant had all the information they needed. The set fine amount is just one component in the calculation. If the final number works out correctly anyway, no one is misled.

Justice Caldwell acknowledged the intuitive appeal of this argument but rejected it on both textual and principled grounds.

The Young majority had been clear that the set fine is one of the required pieces of information that must be accurately conveyed to the defendant before the default process can operate. The court did not frame that requirement as conditional — it did not say "unless the total payable is correct, in which case the defendant probably wouldn't care." No such qualification existed in Young. Importing one now would deviate from the spirit and the reasoning of the binding authority.

More significantly, Justice Caldwell identified a telling detail in the Young facts that the parties had not fully addressed: the City of London involved sixteen certificates, and the Court of Appeal noted in the decision itself that in some of those cases the total payable was correct despite the incorrect set fine. The Court of Appeal quashed all sixteen anyway. It did not separate out the ones with a correct total and treat them differently. That inference is clear — a correct total payable does not cure an incorrect set fine.

The reason goes back to the fundamental architecture of the default process. The set fine, court costs, and victim fine surcharge are three distinct statutory amounts, each set by a different authority under different provisions of the POA. The certificate has separate boxes for them because they are separate things. A defendant who sees a wrong set fine amount and a correct total payable is being told that their fine is one amount, their surcharge is another, but the combined total is right. That is internally inconsistent information. The accuracy of the final number does not validate the broken components that generated it.

And the practical concern cuts deeper than first appears. The victim fine surcharge is calculated as a percentage of the set fine. If the set fine is wrong — even if the total somehow comes out right through offsetting errors — the surcharge component embedded in that total has been calculated incorrectly. The defendant is paying the wrong proportion of costs, surcharge, and fine, even if the aggregate number happens to be accurate. That is not the same thing as receiving accurate information about a penalty.

Decision

All appeals allowed. All certificates of offence quashed. The pre-July 2005 date was irrelevant. A correct total payable does not cure an incorrect set fine. London (City) v. Young applies equally in both situations.

Key Takeaways

Monahan closes two arguments that the Crown might otherwise have kept open after Young. First, it confirms that the Young principles apply regardless of when the certificate was issued — administrative confusion or systemic errors in the fine schedules do not relieve the State of its obligation to get the set fine right. The burden of clerical accuracy sits with the officer, not the defendant.

Second, and more practically important, Monahan establishes that a correct total payable is not a cure for an incorrect set fine. These are legally distinct items. The justice examining a certificate under s. 9(1) or s. 9.1 must verify both. A certificate that gets to the right total through incorrect components is not a certificate that is regular on its face — it is a certificate that conceals its own inaccuracy behind a coincidentally correct sum.

When reviewing a client's Part I or s. 9.1 conviction, this means the analysis doesn't stop at the total payable. Break it down. Check the set fine against the current schedule. If it's off — even by five dollars — the certificate is defective, and Monahan tells you that a correct total doesn't change that outcome.