R v Rimac

R. v. Rimac

[2013] OCJ (Halton)
Ontario Court of Justice — Justice R.J. LeDressay | June 11, 2013

Background

Anto Rimac was charged with using a handheld communication device while driving under section 78.1(1) of the Highway Traffic Act. The certificate of offence stated that Rimac "did commit the offence of drive motor vehicle while operating a handheld communication device contrary to the Highway Traffic Act." Two problems emerged: first, the certificate didn't include the specific section number (78.1(1)), and second, the officer used the word "operating" instead of the regulation's approved wording.

Rimac appealed his conviction, arguing that both defects made the certificate invalid. His lawyer cited several cases where missing section numbers had resulted in certificates being quashed, while the Crown argued that as long as the offence was clearly described, technical omissions shouldn't matter.

Issues

1. Does omitting the Highway Traffic Act section number from a certificate of offence make it invalid, even when the offence is clearly described?
2. Was the offence properly described despite using "operating" instead of the regulation's exact wording?

The Section Number Debate

Justice LeDressay faced conflicting case law. Some judges had ruled that missing section numbers automatically invalidated certificates, while others said the section number was "surplusage" if the offence was otherwise properly described. The judge sided with Justice Epstein's analysis in R. v. Hargan, which held that Regulation 950 allows officers to describe offences using approved wording, making the section number unnecessary.

The court noted that Regulation 950, schedule 43, item 223 provides the authorized wording for section 78.1(1) charges as "Drive – hand-held communication device." Under section 5 of Regulation 950, this description is sufficient, and including the section number is merely surplus information.

The Wording Analysis

Rimac argued that "operating" was different from the statute's "holding or using" language. Justice LeDressay disagreed, finding that "using" (defined as "to employ for some purpose") and "operating" (defined as "to work or use a machine") were functionally identical in this context. More importantly, the certificate's wording actually provided more detail than the regulation required.

The judge applied section 25 of the Provincial Offences Act, which allows charges to be described "in popular language" or "in words that are sufficient to give to the defendant notice of the offence." The certificate clearly identified all three elements of the offence: driving a motor vehicle, while using a handheld device, on a highway.

Key Takeaway

Technical defects in certificates don't automatically win cases if the charge is clearly described.

Courts will look at whether you had fair notice of what you were charged with, not whether every technical requirement was perfectly met. Focus on substantial defects that actually prejudice your defence, not minor wording variations.