T.J. KEENE QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 311 Date: 2010 08 30 Docket: Q.B.C.A. No. 11/2009 Judicial Centre: Saskatoon BETWEEN: RON KOCSIS, and HER MAJESTY THE QUEEN, Respondent Appearances: Ron Kocsis on his own behalf Sandeep Bains and Marcel J.H. St. Onge for the respondent JUDGMENT POPESCUL J. August 30, 2010 Introduction [1] Very few charges laid by the Crown are declared to be void ab initio. This is because the modern approach to determining the sufficiency of informations and indictments dictates that only counts that are drafted so poorly that they bear no resemblance to an existing offence will be found to be “void” or labelled an “offence not known to law”. In this case, the charge, as drafted, is so palpably bad it does not give fair notice to the defendant of the nature of the charge nor the penalties that may be imposed if a breach is established. As result, the appeal must be allowed and the charge declared void because it does not charge an offence known to law. Procedural Background [2] The appellant, Ron Kocsis (the “appellant”), launched a summary conviction appeal against conviction and sentence following his conviction in Traffic Safety Court for “unlawfully have sunscreen in front side windows” contrary to “s. 66(3) The Vehicle Equipment Regulations (Reg 10)”. [3] The appellant was convicted after an ex parte trial before Traffic Safety Court justice (the “traffic justice”) and was fined $350.00, together with victim’s surcharge of $50.00 for total of $400.00. [4] The grounds of appeal stated in the notice of appeal are as follows: 1.) The Crown did [sic] prove their case of sunscreen being present. 2.) The Offence Notice issued on January 25, 2008 failed to describe the location of the alleged offence. 3.) The fine issued exceeded the original fine by 333% plus surcharge. Factual Background [5] On January 25, 2008, peace officer with the Saskatoon Police Service encountered the appellant operating his 2005 Hummer on public street in Saskatoon, Saskatchewan. The Hummer had after‑market tinted side windows. The peace officer issued certificate of offence. voluntary payment option of $105.00 was provided in the certificate of offence. [6] The appellant did not exercise the voluntary payment option. Instead, he sent an agent to appear on his behalf on the March 10, 2008, return date, at which time “not guilty” plea was entered and the matter was set down for trial. [7] The trial was eventually scheduled to take place on February 2, 2009. No one appeared for the appellant on that date. The Crown was given leave to proceed ex parte, and trial was held. The peace officer testified that the appellant was operating his Hummer with after‑market tinted windows on public highway, after which the traffic justice found the accused guilty as charged. [8] The Crown tendered evidence of previous convictions for the same type of offence with the same vehicle and asked the Court to impose fine of $200.00. The traffic justice commented that the appellant had been in apparent violation of the tinted window prohibition for over three years and imposed fine of $350.00, an amount greater than what was requested by the Crown and more than the voluntary payment option amount endorsed on the certificate of offence. [9] Although the self‑represented appellant did not advance the issue of the charge, as framed, being a nullity, the Court invited both the Crown and the appellant to address the issue of the sufficiency of the charge. The Crown was given an opportunity, which it took, to file written argument on the sufficiency issue. Standard of Review [10] Summary conviction appeals, such as this, are determined by the Court of Queen’s Bench in accordance with s. of The Summary Offences Procedure Act, 1990, S.S. 1990‑91, c. S‑63.1, and ss. 812(1)(a), 813 and 822 of the Criminal Code, R.S.C. 1985, c. C‑46. The powers of an appellate court, as set out in s. 686 of the Criminal Code, are made applicable by virtue of s. 822(1) of the Criminal Code. [11] Section 686(1) permits an appellate court to allow an appeal from conviction where the verdict is unreasonable and cannot be supported by the evidence, was based on wrong decision on question of law or on any ground if there was miscarriage of justice. However, the defendant’s appeal ought to be dismissed where, although not properly convicted on particular count, he was properly convicted on another count or where there was legal error made but no substantial wrong or miscarriage occurred. [12] On factual grounds, the standard of review is whether there is evidence upon which trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99 at para. 74. On question of law, the standard is correctness, and the appellate court should intervene if the decision is not correct in law, unless there has been no substantial wrong or no miscarriage of justice. See R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659. [13] The issues are: 1. Is the offence with which the appellant was charged and convicted nullity? 2. If not, has the appellant advanced any meritorious basis to disturb the conviction entered or the fine imposed? 1. Is the offence with which the appellant was charged and convicted nullity? [14] The certificate of offence, form prescribed by Form of The Summary Offences Procedure Regulations, 1991, R.R.S. c. S‑63.1 Reg 2, permits the issuer to designate, by ticking off the appropriate box, the Act or Regulation which is alleged to have been breached. Options available are: The Alcohol and Gaming Regulation Act, 1997 The Highways and Transportation Act, 1997 The Traffic Safety Act The Wildlife Act, 1998 Regulations under indicated Act Bylaw No. for (municipality) [15] In this case, the issuing officer chose the “Other” category and filled in the words “The Vehicle Equipment Regulations (Reg 10)” in the space provided and referred to s. 66(3). [16] Section 66(3) of The Vehicle Equipment Regulations, 1987, R.R.S. c. V‑2.1 Reg 10, under the general heading of “Side windows”, states: Side windows (3) The glass shall not have coatings of sunscreen or reflective material other than that applied by the glass manufacturer. [17] Although the regulations purport to prohibit after‑market tinted side windows, there is nothing in the Regulations that prescribe that contravening the prohibition constitutes an offence with corresponding penalty. [18] Section 6(2) of The Summary Offences Procedure Act, 1990, supra, authorizes the issuance of certificate of offence “[w]here the Lieutenant Governor in Council has designated offences in the regulations ...” (emphasis added). Similarly, The Summary Offences Procedure Regulations, 1991 identifies which proceedings may be commenced by the issuance of certificate of offence, and uses language such as “... offences pursuant to The Vehicle Equipment Regulations, 1987 ...” (emphasis added). [19] Here, alleging contravention of s. 66(3) of The Vehicle Equipment Regulations, 1987 by itself does not allege an offence because although it purports to prohibit the use of certain tinted windows on vehicles, it does not provide that the contravention of the prohibition is an offence that carries with it penalty. It is prohibition, without the creation of an offence or imposition of penalty. [20] Accordingly, conclude that s. 66(3) of The Vehicle Equipment Regulations, 1987, although purporting to prohibit the use of after‑market tint on side windows of vehicles, does not make it an offence to do so. [21] It would appear that it could be possible to frame count so as to allege an offence of operating vehicle that has after‑market tinted side windows because, as mentioned above, s. 66(3) contains the after‑market tinted side windows prohibition. The Vehicle Equipment Regulations, 1987 were passed pursuant to The Vehicle Administration Act, S.S. 1986, c. V‑2.1, which was repealed by The Traffic Safety Act, S.S. 2004, c. T‑18.1, in 2006. The Vehicle Equipment Regulations, 1987 continues in force under The Traffic Safety Act. If one reviews The Traffic Safety Act, it is clear that it is an offence to operate vehicle on highway that is not equipped in accordance with that Act or its Regulations: Prohibition on operation of unequipped vehicles 113 No person shall operate or cause to be operated on highway vehicle that is not equipped in accordance with this Act and the regulations. ... General offence and penalty 275 Any person who contravenes any provision of this Act or the regulations for which no other penalty is specifically provided ... is guilty of an offence and liable on summary conviction: (a) in the case of an individual, to fine of not more than $1,000; and [22] Accordingly, it is not an offence to possess vehicle that has after‑market tinted windows; however, it is an offence, punishable by fine of up to $1,000.00, to operate or cause to be operated motor vehicle on public highway that is not equipped in accordance with the regulations (i.e., s. 66(3) of The Vehicle Equipment Regulations, 1987 after‑market tinted side windows). [23] The question that next arises is whether the court ought to simply amend the count to fix the problem. For the reasons set out below, I find that it is not possible to amend the count so as to cure the defect. This is because the count, as drafted, is a nullity, and a nullity is not capable of amendment. One cannot fix nothing. [24] At one point in the history of our inherited common law, it was necessary for the Crown to draft criminal pleadings with meticulous care. If the Crown’s pleadings were not exact, it was not uncommon for courts to quash informations or indictments for even the smallest technical defect. See Tim Quigley, Procedure in Canadian Criminal Law, 2nd ed., looseleaf (Toronto: Carswell, 2005) at 17.1‑17.2. [25] However, this technical approach has given way to the “modern approach”, which requires that courts determine cases on the merits, rather than on “technicalities”, where possible. This modern approach is based upon the wording of several Criminal Code provisions, such as ss. 581, 582, 583, 584, 585, 586 and 601, and judicial decisions, including R. v. Moore, 1988 CanLII 43 (SCC), [1988] S.C.R. 1097; R. v. Côté, 1977 CanLII (SCC), [1978] S.C.R. 8, and R. v. Major, 1976 CanLII 173 (SCC), [1977] S.C.R. 826. [26] Generally speaking, conviction based upon defective information ought not be found to be nullity “... so long as charge contains in substance an allegation that an offence has been committed ....” (R. v. Moore, supra, at p. 1107). [27] In Côté, supra, the accused was charged with failing to provide breath sample after demand was made by peace officer. The information did not contain the words “without reasonable excuse”, an essential averment of the offence. The Supreme Court of Canada held that the lack of an essential averment did not result in the count being found to be nullity because the accused was reasonably informed of the charge against him. At page 13, de Grandpré, speaking for the majority, stated: ... the golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of full defence and fair trial. When, as in the present case, the information recites all the facts and relates them to definite offence identified by the relevant section of the Code, it is impossible for the accused to be misled. To hold otherwise would be to revert to the extreme technicality of the old procedure. [Emphasis added.] [28] In Moore, supra, at pp. 1108-09, the Supreme Court held that as result of the application of the principles in Côté and Major: ... it is no longer possible to say that defective information is automatically nullity disclosing no offence known to law. If the document gives fair notice of the offence to the accused, it is not nullity and can be amended under the broad powers of amendment s. 529 [now s. 601] gives to the courts. Only if charge is so badly drawn up as to fail even to give the accused notice of the charge will it fail the minimum test required by s. 510(2)(c) [now s. 581(2)(c)]. charge that is this defective would have to be quashed. ... [29] At the risk of oversimplification, the Supreme Court has stated that defective count should be amended and/or conviction based upon defective information ought not be disturbed on appeal (even if essential averments are omitted, but provided that the Crown has proved the essential elements) if, at least, the Crown got the statute and the section number right. [30] Here, unfortunately, the Crown did not allege the proper statute (The Traffic Safety Act) or the correct section number (ss. 113 and 275 of The Traffic Safety Act). [31] The essence of the offence is not the existence of a tinted window but, rather, operating a motor vehicle on a highway with prohibited equipment, to wit, after‑market tinted side windows. [32] Looking at s. 66(3) of The Vehicle Equipment Regulations, 1987, on its own, does not provide the accused with fair notice of the charge that he faces or the penalty that he faces for the contravention. [33] Accordingly, the charge is nullity and is void ab initio. Because it is nullity, the count cannot be amended so as to breathe life into something that is nullity. The appeal is allowed, and the conviction is quashed. [34] It should also be noted that the certificate of offence provided voluntary payment of $105.00. The Summary Offences Procedure Regulations, 1991 permits person, to whom ticket is issued, to accept responsibility by making voluntary payment in the prescribed amount in certain cases. There does not appear to be the legislative authority for the utilization of voluntary payment for an alleged violation of operating motor vehicle on public highway which has after‑market tinted side windows regardless of the way the charge was framed. [35] There will be no order as to costs. J. M.D. Popescul
The accused was charged with having aftermarket tint on the side windows of his vehicle. He appealed on other grounds. The summary conviction appeal judge raised the issue of the sufficiency of the charge on its own motion. The face of the ticket purported to charge the accused with an offence under s. 66(3) of The Vehicle Equipment Regulations. HELD: The charge was declared a nullity because it was drafted so poorly that it did not give fair notice to the accused of the charge or the penalty to be imposed if breach was established. Section 66(3) of The Vehicle Equipment Regulations purports to make displaying aftermarket tint an offence, but the section is a charging offence and does not prescribe a penalty. The correct way to charge an accused with this offence is under s. 113 of The Traffic Safety Act which makes it an offence to operate a motor vehicle on a public highway that is not equipped in accordance with the regulations. The count could not be amended to cure the defect because the charge was a nullity and void ab initio. The conviction was quashed.