This case illustrates the importance of challenging the technical defects before a person enters a Plea. After a Plea is entered one then focuses on prejudice, injustice or substantial wrong. Time is of the essence in this regard.
R. v. Donovan, 2005 NBPC 1 (CanLII), <http://canlii.ca/t/1jq86>
[22] In dismissing the appeal the Court of Appeal in addition to holding that the objection to the charging document ought to have been made before plea also found:
“And if there is no objection before plea, the focus is on prejudice, injustice or substantial wrong, not upon technicalities: see R. v. Stewart (1979), 7 C.R. (3d) 165 (B.C.C.A.).
The recent decision of the Supreme Court of Canada in R. v. Moore reflex, (1988), 41 C.C.C. (3d) 289 is also relevant. In that case it was pointed out that it cannot be said that a defective information is a nullity disclosing no offence known to law if it gives fair notice of the offence to the accused. In the instant case we are of the opinion the appellant was reasonably informed of the offence alleged against him and that he was neither prejudiced nor misled in the preparation of his defence by any ambiguity in the charge.”
Before a plea is entered, this the time to appear on special appearance to challenge jurisdiction of the Court to hear the matter or present deficiencies in technical aspects of the offense that may negate the charges or allow us an opportunity to motion for dismissal because of material defect.
See relevant legislation as follows:
Provincial Offences Procedure Act, SNB 1987, c P-22.1, retrieved on 2012-04-14
106(1) In this section
“defect in a document” includes any error, omission or want of particularity in a document, any failure of a document to comply with the requirements of this Act, any discrepancy between the contents of a document and the evidence that is given at trial, and every defect that but for this section, might make a document invalid;
“document” includes a purported document.
106(2) No defect in a document makes that document invalid.
106(3) Where it appears to a judge, on objection by a defendant or otherwise, that a document contains a defect that is not a material defect, the judge shall permit the curing of the defect by
(a)the providing of further particulars or other necessary material, or
(b)the making of an amendment to the document.
106(4) Where it appears to a judge, on objection by a defendant or otherwise, that a document contains a defect that is a material defect, the judge shall, subject to subsection (5), permit the curing of the defect by
(a)the providing of further particulars or other necessary material, or
(b)the making of an amendment to the document.
106(5) No curing of a defect under subsection (4) shall be permitted if
(a)the defect was such as to mislead the defendant,
(b)substantial injustice would be caused to the defendant by curing the defect, and
(c)the injustice that would be caused to the defendant by curing the defect cannot be overcome by the granting of an adjournment.
106(6) Where a defect in a document is cured under this section, proceedings shall continue as though the document had originally
(a)contained the further particulars or other material provided, or
(b)been in the form to which it is amended.
106(7) Where a document contains a defect that cannot be cured under this section, the judge shall order the document to be withdrawn.
106(8)Subsection (7) does not prevent a further document from replacing the document withdrawn if that further document can be prepared in accordance with this Act.
106(9)Once the defendant’s plea has been taken, an objection to a document may only be made with the leave of the judge.
R. v. Donovan, 2005 NBPC 1 (CanLII), <http://canlii.ca/t/1jq86>
s.1(1) "document" includes an appearance notice, an undertaking, an information, a ticket, a notice of prosecution, a summons, a warrant and any other notice or document referred to in this Act;
"working day" means any day except a Saturday or a Sunday or other holiday.
s.14(4) Except as otherwise provided by regulation, the time to be stated in the ticket as the time by which the fixed penalty is to be paid is 4:30 p.m. on the working day which is two working days before the day stated in the ticket for the defendant's appearance in court.
s.106(1) In this section "defect in a document" includes any error, omission or want of particularity in a document, any failure of a document to comply with the requirements of this Act, any discrepancy between the contents of a document and the evidence that is given at trial, and every defect that but for this section, might make a document invalid;
"document" includes a purported document.
s.106(2) No defect in a document makes that document invalid.
s.106(3) Where it appears to a judge, on objection by a defendant or otherwise, that a document contains a defect that is not a material defect, the judge shall permit the curing of the defect by
(a) the providing of further particulars or other necessary material, or
(b) the making of an amendment to the document.
s.106(4) Where it appears to a judge, on objection by a defendant or otherwise, that a document contains a defect that is a material defect, the judge shall, subject to subsection (5), permit the curing of the defect by
(a) the providing of further particulars or other necessary material, or
(b) the making of an amendment to the document.
s.106(5) No curing of a defect under subsection (4) shall be permitted if
(a) the defect was such as to mislead the defendant,
(b) substantial injustice would be caused to the defendant by curing the defect, and
(c) the injustice that would be caused to the defendant by curing the defect cannot be overcome by the granting of an adjournment.
s.106(6) Where a defect in a document is cured under this section, proceedings shall continue as though the document had originally
(a) contained the further particulars or other material provided, or
(b) been in the form to which it is amended.
s.106(7) Where a document contains a defect that cannot be cured under this section, the judge shall order the document to be withdrawn.
s.106(8) Subsection (7) does not prevent a further document from replacing the document withdrawn if that further document can be prepared in accordance with this Act.
s.106(9) Once the defendant's plea has been taken, an objection to a document may only be made with the leave of the judge.
1990, c.18, s.56.
Analysis
[4] There are two issues that are raised by the procedural history to this prosecution. Of primary concern is the effect, if any, of the error of the issuing officer in not complying with the Provincial Offences Procedure Act. The error is apparent on the face of the ticket and relates to the date on which the defendant was able to pay a voluntary payment and his court appearance date if the payment option was not exercised. In the event that the error in statutory compliance is an error that has misled the defendant, the second issue that may arise relates to what impact the appearance of the defendant to answer to the charge may have had on the error.
[5] In the text The Law of Traffic Offences, 2nd edition Carswell Canada 1998 the authors, Hutchison Rose and Downes, make the following general observation at p. 37:
[4] There are two issues that are raised by the procedural history to this prosecution. Of primary concern is the effect, if any, of the error of the issuing officer in not complying with the Provincial Offences Procedure Act. The error is apparent on the face of the ticket and relates to the date on which the defendant was able to pay a voluntary payment and his court appearance date if the payment option was not exercised. In the event that the error in statutory compliance is an error that has misled the defendant, the second issue that may arise relates to what impact the appearance of the defendant to answer to the charge may have had on the error.
[5] In the text The Law of Traffic Offences, 2nd edition Carswell Canada 1998 the authors, Hutchison Rose and Downes, make the following general observation at p. 37:
“It is important to remember that the central purpose of the modern procedural statutes like the Provincial Offences Act has been to eliminate unnecessary procedural ‘technicalities’ from regulatory prosecutions. It was not intended that a purely formal defect should be fatal to a charging document.
The main consideration in these cases is to be the effect of the defect on the parties and their rights under the procedures available under the Act. Even a substantive error may be allowed if it is possible for the court to correct the error without depriving the defendant of his right to know and defend the charge against him.”
[6] This emphasis on judicial and prosecutorial economy in the procedural handling of regulatory statutes was recently affirmed in R. v. Yan 2004 CanLII 32076 (ON CA), (2004), 188 C.C.C. (3d) 417 (O.C.A.). There the Court dealt with the issue of whether a summons ought to have been issued requiring the attendance of the officer who certified photographs that were generated automatically by an instrument designed to record those individuals who failed to stop for red lights. In upholding the legislative threshold that required the defendant to establish that he would be unable to obtain a fair trial unless the officer was present to give oral evidence Blair J.A. observed at paragraph 18:
[6] This emphasis on judicial and prosecutorial economy in the procedural handling of regulatory statutes was recently affirmed in R. v. Yan 2004 CanLII 32076 (ON CA), (2004), 188 C.C.C. (3d) 417 (O.C.A.). There the Court dealt with the issue of whether a summons ought to have been issued requiring the attendance of the officer who certified photographs that were generated automatically by an instrument designed to record those individuals who failed to stop for red lights. In upholding the legislative threshold that required the defendant to establish that he would be unable to obtain a fair trial unless the officer was present to give oral evidence Blair J.A. observed at paragraph 18:
“Cross-examination is an important right, as Mr. Di Luca as amicus curiae submitted. However, for this particular type of offence, prosecuted through this particular legislative mechanism (the red light camera system), the Legislature has determined, in the interests of effective traffic safety and control, and in the interests of prosecutorial economy, that the right to examine the provincial offences officer in question will be limited. In this context, I can see no reason in law why the Legislature is not permitted to implement such a scheme. The standard to be applied in directing that a summons issue to the provincial offences officer must be interpreted in light of that scheme and the language by which it is put in place.
[7] This change in approach to the process involved in the prosecution of traffic offences and the evaluation of the construction of charging documents is consistent with the dictates of the Supreme Court in recent years on a broad series of criminal law issues that resulted in a less technical, more dynamic and principled analytic approach to criminal law and the processes that govern its application. In R. v. Sault Ste. Marie (City) 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 Dickson J. (as he then was) set out that new approach as it related to the sufficiency of informations:
[7] This change in approach to the process involved in the prosecution of traffic offences and the evaluation of the construction of charging documents is consistent with the dictates of the Supreme Court in recent years on a broad series of criminal law issues that resulted in a less technical, more dynamic and principled analytic approach to criminal law and the processes that govern its application. In R. v. Sault Ste. Marie (City) 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 Dickson J. (as he then was) set out that new approach as it related to the sufficiency of informations:
“To resolve the matter one must recall, I think, the policy basis of the rule against multiplicity and duplicity. The rule developed during a period of extreme formality and technicality in the preferring of indictments and laying of informations. It grew from the humane desire of judges to alleviate the severity of the law in an age when many crimes were still classified as felonies, for which the punishment was death by the gallows. The slightest defect made an indictment a nullity. That age passed. Parliament has made it abundantly clear in those sections of the Criminal Code having to do with the form of indictments and informations that the punctilio of an earlier age is no longer to bind us. We must look for substance and not petty formalities.” (emphasis added)
See also, R. v. Gwynne [2001] O.J. No. 331 (Ont. Prov. Ct.) at paras. 28-31.
[8] Further support for this proposition is found in the Supreme Court decision in R. v. Moore reflex, (1988), 41 C.C.C. (3d) 289 (S.C.C.) At pp. 311-12 Justice Lamer (as he then was) summarized the contemporary approach to the evaluation of charge drafting adequacy:
[8] Further support for this proposition is found in the Supreme Court decision in R. v. Moore reflex, (1988), 41 C.C.C. (3d) 289 (S.C.C.) At pp. 311-12 Justice Lamer (as he then was) summarized the contemporary approach to the evaluation of charge drafting adequacy:
“Since the enactment of our Code in 1892 there has been, through case-law and punctual amendments to s. 529 and its predecessor sections, a gradual shift from requiring judges to quash to requiring them to amend in the stead; in fact, there remains little discretion to quash. Of course, if the charge is an absolute nullity, an occurrence the conditions of which the Chief Justice has set out clearly in his reasons, no cure is available as the matter goes to the very jurisdiction of the judge. In such a case, the doctrine of autrefois acquit is never a bar to the re-laying of the charge because the accused was never in jeopardy and the disposition of the charge through quashing was for lack of jurisdiction.”
[9] Admittedly, the decision in Moore relates to an interpretation of the drafting of criminal charges under the Criminal Code. However, the analogy is apposite to judges dealing with objections made to the adequacy of any charging document.
[10] Other areas of procedural criminal law underwent a similar change to a principled approach to criminal law during the same period including in this area, for example, the law joinder and severance of alleged crimes, R. v. Clunas (1992), 70 C.C.C. 115 (S.C.C.)
[11] In order to assess the legal significance of the error in the statutory process one need only consider its impact on the possible outcome of this case. As a result of the error, the time given to make the voluntary payment was one month from the time of his apprehension instead of approximately two months. As well, instead of there being two working days between the last day on which he could make a voluntary payment and his court appearance there were thirty-four days.
[12] The error that occurred relates to the mechanism by which a defendant can avoid the process of appearing in court to answer to the charge. The significance of the error must be viewed contextually because the charging document in this case is really three separate documents rolled into one. The sections are entitled in the order in which they appear: Notice of Prosecution; Payment Option; and Court Date. Each of the sections of a traffic ticket are of varying legal significance and errors with respect to each must be evaluated on the basis of their relative legal importance to determine whether in all of the circumstances, to use the terminology of s. 106 (5) of the Act, the defendant has been misled in such a way that a substantial injustice would be caused to him by curing the defect and that the injustice is of such magnitude that it cannot be overcome by the granting of an adjournment.
[13] One has only to review the catalogue of errors that have occurred in the reported cases to realize that not all errors bear the character of legal significance necessary to defeat a prosecution. In their book The Law of Traffic Offences the authors detail the spectrum of errors that have been adjudicated upon. At p. 41 they set them out:
[9] Admittedly, the decision in Moore relates to an interpretation of the drafting of criminal charges under the Criminal Code. However, the analogy is apposite to judges dealing with objections made to the adequacy of any charging document.
[10] Other areas of procedural criminal law underwent a similar change to a principled approach to criminal law during the same period including in this area, for example, the law joinder and severance of alleged crimes, R. v. Clunas (1992), 70 C.C.C. 115 (S.C.C.)
[11] In order to assess the legal significance of the error in the statutory process one need only consider its impact on the possible outcome of this case. As a result of the error, the time given to make the voluntary payment was one month from the time of his apprehension instead of approximately two months. As well, instead of there being two working days between the last day on which he could make a voluntary payment and his court appearance there were thirty-four days.
[12] The error that occurred relates to the mechanism by which a defendant can avoid the process of appearing in court to answer to the charge. The significance of the error must be viewed contextually because the charging document in this case is really three separate documents rolled into one. The sections are entitled in the order in which they appear: Notice of Prosecution; Payment Option; and Court Date. Each of the sections of a traffic ticket are of varying legal significance and errors with respect to each must be evaluated on the basis of their relative legal importance to determine whether in all of the circumstances, to use the terminology of s. 106 (5) of the Act, the defendant has been misled in such a way that a substantial injustice would be caused to him by curing the defect and that the injustice is of such magnitude that it cannot be overcome by the granting of an adjournment.
[13] One has only to review the catalogue of errors that have occurred in the reported cases to realize that not all errors bear the character of legal significance necessary to defeat a prosecution. In their book The Law of Traffic Offences the authors detail the spectrum of errors that have been adjudicated upon. At p. 41 they set them out:
“The following errors in charging documents have been held to be either no defect, or subject to amendment by the court at the request of the prosecutor:
Failure to state the district and court in which the offence notice is to be returnable; R. v. Callahan (1981), 21 M.V.R. 127 (Ont. C.A.); R. v. Arnold (1982), 17 M.V.R. 61 (Ont. H.C.J.); R. v. Greenspan (1982), 17 M.V.R. 57 (Ont. Prov. Ct.)
Use of unofficial short forms (e.g. H.T.A.) provided the document is otherwise sufficient; R. v. Lemieux (1980), 15 M.V.R. 126 (Ont. C.A.); R. v. Vaughan (1978), 1 M.V.R. 32 ()nt. Dist. Ct.)
Charging “speeding” without proper statutory references; R. v. Kartna (1979), 2 M.V.R. 259 (Ont. H.C.J.); R. v. Lemieux (1978), 1 M.V.R. 27 (Ont. Dist. Ct.)
...
Omitting the word “limited” in a corporate name; Re R. and J.F. Brennan & Associates Ltd. reflex, (1981), 61 C.C.C. (2d) 1 (Ont. H.C.)
Use of the incorrect section number or failure to state a section number where the offence is adequately described in words; R. ex rel. James v. Joy Oil Co. Ltd. (1959), 123 C.C.C. 370 (Ont. C.A.); R. v. Jamieson (Oct. 25, 1985, B.C. Co. Ct.), 15 W.C.B. 143.
Minor deviations in the form used for the ticket, or minor departures from the approved forms; R. v. Shepens (1989), 16 M.V.R. (2d) 198 (Alta. Q.B.); R. v. Scott [1995] O.J. No. 4282.
(g) Defects for which amendments have been refused or which have been held to render the charging document a nullity.
These defects, which will be rare, would seem to render a charging document a nullity:
(g) Defects for which amendments have been refused or which have been held to render the charging document a nullity.
These defects, which will be rare, would seem to render a charging document a nullity:
Missing signature on the information (either the Justice or the informant); R. v. Kapoor reflex, (1989), 52 C.C.C. (3d) 41 (Ont. H.C.)
...
No name for the defendant; “Appellation non Controllee: The Missing of the Defendant’s Name in Informations or Certificates of Offence” (1981), 23 C.L.Q. 492
...
Failing to properly identify offence that accused (as owner) stood charged with; R. v. Shepens, supra,; R. v. Oakcrest Food Stores(1976)Ltd. (1982), 17 M.V.R. 103 (B.C.S.C.)
[14] R. v. Kapoor (supra) dealt with an error alleged in The Law of Traffic Offence in Canada to be irremediable in Ontario. It involved an illegible signature of a Justice of the Peace on an information laid pursuant to the Criminal Code. The objection was that because the signature was illegible the information defective. Contrary to the purport of the decision as set out in The Law of Traffic Offences (supra at p. 41 suggesting the information was unsigned) the information was upheld by Watt J. on the basis that it was signed despite the illegibility of the author’s signature, the author purported, in the jurat beneath the signature, to be a “Justice of the Peace in and for the Province of Ontario.”
[15] There are a number of reported judgments on this subject in New Brunswick to both supplement and confirm the table of cases set out in The Law of Traffic Offences in Canada list. In order to ascertain the current state of traffic ticket law in this province a review of some of the reported decisions is in order.
[16] The failure of the issuing officer or judge to note on the traffic ticket that it was filed before the hour set for appearance on the appearance date as required by then Section 350(3) of the Motor Vehicle Act of New Brunswick was the subject of review in R. v. Stephenson [1991] N.B.J. No. 10 (Q.B.). In brief reasons Creaghan J. held that the failure to note the filing time on the information was not fatal to the prosecution. So long as the traffic ticket appeared on the court docket, if one was generated, or was in possession of the presiding judge the statutory requirements were met.
[17] In R. v. Hache [1995] N.B.J. No. 513 (Q.B.) the Court dealt with circumstances that were very similar to those in the instant case. Hache involved Crown appeal from the dismissal of a traffic ticket. The traffic ticket issued to the defendant gave him until on Friday January 13th, 1995 to make a voluntary payment or appear in court to answer to the charge on Monday January 16th, 1995 for an alleged violation of the Motor Vehicle Act. The time allotted by the issuing officer between voluntary payment and appearance did not meet the requirements of the Act since “working day” in s. 14(4) of the Act does not include Saturdays, Sundays or holidays. In reversing the acquittal the appeal judge noted at paragraphs 8 and 9:
[14] R. v. Kapoor (supra) dealt with an error alleged in The Law of Traffic Offence in Canada to be irremediable in Ontario. It involved an illegible signature of a Justice of the Peace on an information laid pursuant to the Criminal Code. The objection was that because the signature was illegible the information defective. Contrary to the purport of the decision as set out in The Law of Traffic Offences (supra at p. 41 suggesting the information was unsigned) the information was upheld by Watt J. on the basis that it was signed despite the illegibility of the author’s signature, the author purported, in the jurat beneath the signature, to be a “Justice of the Peace in and for the Province of Ontario.”
[15] There are a number of reported judgments on this subject in New Brunswick to both supplement and confirm the table of cases set out in The Law of Traffic Offences in Canada list. In order to ascertain the current state of traffic ticket law in this province a review of some of the reported decisions is in order.
[16] The failure of the issuing officer or judge to note on the traffic ticket that it was filed before the hour set for appearance on the appearance date as required by then Section 350(3) of the Motor Vehicle Act of New Brunswick was the subject of review in R. v. Stephenson [1991] N.B.J. No. 10 (Q.B.). In brief reasons Creaghan J. held that the failure to note the filing time on the information was not fatal to the prosecution. So long as the traffic ticket appeared on the court docket, if one was generated, or was in possession of the presiding judge the statutory requirements were met.
[17] In R. v. Hache [1995] N.B.J. No. 513 (Q.B.) the Court dealt with circumstances that were very similar to those in the instant case. Hache involved Crown appeal from the dismissal of a traffic ticket. The traffic ticket issued to the defendant gave him until on Friday January 13th, 1995 to make a voluntary payment or appear in court to answer to the charge on Monday January 16th, 1995 for an alleged violation of the Motor Vehicle Act. The time allotted by the issuing officer between voluntary payment and appearance did not meet the requirements of the Act since “working day” in s. 14(4) of the Act does not include Saturdays, Sundays or holidays. In reversing the acquittal the appeal judge noted at paragraphs 8 and 9:
“Even in the case of a document containing a material defect, the judge must permit the curing of the defect subject to subsection 106(5). A material defect would not be cured if it misled the defendant, if its curing would cause the defendant substantial injustice or if the injustice cannot be overcome by the granting of an adjournment.
None of these criteria were considered by the judge before he quashed the ticket. The record contains nothing, in my view, that warrants the quashing of the ticket and the ensuing acquittal of the accused.” (emphasis added)
[18] Despite the statements of the appeal judge in Hache, and with all due respect, it should be noted that the test set out in s. 14(4) of the Act requires that not simply one, but all three criteria must be met before a defect can support a dismissal of the traffic ticket. That is, the defendant must establish that (a) he was misled, (b) that substantial injustice would be caused by the curing of the defect and (c) that the injustice cannot be overcome by an adjournment. More importantly, although these comments were clearly obiter dicta and clearly lowered the threshold the defendant was obliged to meet in order to have the ticket dismissed, the appeal judge was firmly of the view that nothing in the record warranted the quashing of the ticket and the subsequent acquittal of the accused. The appeal was allowed. Curiously, as a result of submissions at the appeal hearing the appeal judge refused to order a new trial. See in this regard: R. v. Mills 1986 CanLII 17 (SCC), (1986), 26 C.C.C. (3d) 481 (S.C.C.) per La Forest J. at p. 566 para. 4 citing Ashby v. White et al (1709), 2 Ld. Raym. 938, 92 E.R. 126 at p. 136 per Chief Justice Holt.
[19] In R. v. Hunter [1999] N.B.J. No. 604 (Q.B.) the Court dealt with a traffic ticket that alleged an offence “at or near McGivney”, an alleged Driver’s License number of 76697 and an alleged speeding offence contrary to Section 140-1-1-a of the Motor Vehicle Act. The defendant noted that the offence location was more exactly described as “at or near Astles (sic)”, that the Prosecutor’s Information Sheet and the prosecutor’s copy of the ticket indicated a Driver’s License number of 766697 and that the section of the Motor Vehicle Act governing speeding charges of the sort he was alleged to have committed was properly describes as Section 140(1.1)(a).
[20] In dismissing all of the various alleged errors Justice Riordon said at paras. 21-25:
[18] Despite the statements of the appeal judge in Hache, and with all due respect, it should be noted that the test set out in s. 14(4) of the Act requires that not simply one, but all three criteria must be met before a defect can support a dismissal of the traffic ticket. That is, the defendant must establish that (a) he was misled, (b) that substantial injustice would be caused by the curing of the defect and (c) that the injustice cannot be overcome by an adjournment. More importantly, although these comments were clearly obiter dicta and clearly lowered the threshold the defendant was obliged to meet in order to have the ticket dismissed, the appeal judge was firmly of the view that nothing in the record warranted the quashing of the ticket and the subsequent acquittal of the accused. The appeal was allowed. Curiously, as a result of submissions at the appeal hearing the appeal judge refused to order a new trial. See in this regard: R. v. Mills 1986 CanLII 17 (SCC), (1986), 26 C.C.C. (3d) 481 (S.C.C.) per La Forest J. at p. 566 para. 4 citing Ashby v. White et al (1709), 2 Ld. Raym. 938, 92 E.R. 126 at p. 136 per Chief Justice Holt.
[19] In R. v. Hunter [1999] N.B.J. No. 604 (Q.B.) the Court dealt with a traffic ticket that alleged an offence “at or near McGivney”, an alleged Driver’s License number of 76697 and an alleged speeding offence contrary to Section 140-1-1-a of the Motor Vehicle Act. The defendant noted that the offence location was more exactly described as “at or near Astles (sic)”, that the Prosecutor’s Information Sheet and the prosecutor’s copy of the ticket indicated a Driver’s License number of 766697 and that the section of the Motor Vehicle Act governing speeding charges of the sort he was alleged to have committed was properly describes as Section 140(1.1)(a).
[20] In dismissing all of the various alleged errors Justice Riordon said at paras. 21-25:
“If there was a defect in the document, the ticket, there is provision in the Provincial Offences Procedure Act to allow for the providing of further particulars or the making of amendments to the document. Curing of any defect is permitted as long as it does not mislead the defendant or result in substantial injustice that would not be remedied by granting an adjournment.
There are provisions that permit the Court, the Provincial Court, and, and I take it this Court, to allow any amendments to the document to correct any defects as long as the defect does not mislead the defendant and substantial injustice is not caused by curing the defect.
It would appear to me that as the Judge found there were some errors in the ticket, however, it is clear to me and I think it was clear to the trial Judge, that this would not in any way mislead the Defendant. It is obvious that Mr. Hunter was aware of what he was charged with from the wording of the ticket. The fact that the driver's license number has one digit missing is not really material and is something that can be corrected. Where a document is corrected under Section 106 of the Provincial Offences Procedure Act, the proceedings are to continue as though the document had originally been correct. Section 106(9) says:
Once the defendant's plea has been taken, an objection to a document may only be made with the leave of the judge.
I, I believe that these points argued by Mr. Hunter are what we could classify as irregularities and under the Provincial Offences Procedures Act there is provision to allow for amendments or corrections of such irregularities.
My review of the transcript satisfies me that Mr. Hunter was well aware of what he was charged with. These irregularities are matters of form not of substance. There was from my review of the evidence and considering the argument, ample evidence for the trial Judge to conclude as he did. As I see it, the evidence allowed such a conclusion to be made and I am not convinced that the trial Judge made any error.”
[21] Further support for the proposition that a principled approach to the sufficiency of the charging document is the proper focus of the trial judge is found in R. v. Mockler [1989] N.B.R. No. 30 (N.B.C.A.) The issue was whether a traffic ticket that made the general allegation that the defendant did: “fail to stop such motor vehicle properly at a stop sign contrary to section 186 subsection 3 of the Motor Vehicle Act of New Brunswick” was valid since it did not specify which of the three ways of failing to stop described in Section 186(3) was the particular gravamen of the offence.
[22] In dismissing the appeal the Court of Appeal in addition to holding that the objection to the charging document ought to have been made before plea also found:
[21] Further support for the proposition that a principled approach to the sufficiency of the charging document is the proper focus of the trial judge is found in R. v. Mockler [1989] N.B.R. No. 30 (N.B.C.A.) The issue was whether a traffic ticket that made the general allegation that the defendant did: “fail to stop such motor vehicle properly at a stop sign contrary to section 186 subsection 3 of the Motor Vehicle Act of New Brunswick” was valid since it did not specify which of the three ways of failing to stop described in Section 186(3) was the particular gravamen of the offence.
[22] In dismissing the appeal the Court of Appeal in addition to holding that the objection to the charging document ought to have been made before plea also found:
“And if there is no objection before plea, the focus is on prejudice, injustice or substantial wrong, not upon technicalities: see R. v. Stewart (1979), 7 C.R. (3d) 165 (B.C.C.A.).
The recent decision of the Supreme Court of Canada in R. v. Moore reflex, (1988), 41 C.C.C. (3d) 289 is also relevant. In that case it was pointed out that it cannot be said that a defective information is a nullity disclosing no offence known to law if it gives fair notice of the offence to the accused. In the instant case we are of the opinion the appellant was reasonably informed of the offence alleged against him and that he was neither prejudiced nor misled in the preparation of his defence by any ambiguity in the charge.”
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