R v Tang

R. v. Tang

P.D.N. 22964599
Ontario Court of Justice (Provincial Division) — His Worship M. Houle | February 5th, 1996

Background

On December 8th, 1995, Roderick Tang was driving his black BMW 525 eastbound on Highway 401 in Charlottenburg Township when OPP Officer Mireille Desforges clocked him at 137 km/h in a posted 100 km/h zone using radar equipment. Tang was charged under section 128 of the Highway Traffic Act with speeding 30 km/h over the limit.

Here's where things got interesting: Officer Desforges served Tang with the offence notice at the roadside, but she had forgotten to fill in the time of the offence on the certificate. About 30 seconds after returning to her patrol vehicle, she realized her mistake and wrote "2:22 p.m." on her copy of the certificate. The problem? Tang's copy — the one he was served with — still showed no time.

Issues

1. Does a certificate of offence that is amended after service to the defendant remain valid?
2. Can missing information on a certificate be added after the defendant has already been served?

The Post-Service Amendment Problem

Defence agent M. Warsaw argued that the certificate was fatally flawed because information had been added after service. He cited two Brampton Provincial Court cases where certificates were quashed for similar post-service changes. The Crown prosecutor Al Peeters countered with section 90 of the Provincial Offences Act, which states that "the validity of any proceeding is not affected by any irregularity or defect in the substance or form of the summons."

The court heard that Officer Desforges had contacted the Crown about the missing time only on the morning of trial — well after the notice of trial had been sent to the defence. This timing became crucial to the court's analysis. The judge noted that while section 90 provides some protection for minor defects, there are limits to what can be cured after the fact.

His Worship M. Houle found that the post-service amendment created a material change to the certificate that rendered it improper. The court was particularly concerned that the defendant had been served with an incomplete document, and that attempts to remedy this defect came too late in the process.

Key Takeaway

A certificate that is materially changed after service cannot be saved by section 90 of the Provincial Offences Act.

If you notice that important information is missing from your offence notice, or if you discover the prosecution has added information after you were served, this could be grounds for dismissal. The courts will not allow the Crown to serve you with an incomplete document and then fill in the blanks later.