Statutory Analysis - New Brunswick Provincial Offences Procedures Act

Statutory Analysis

According to section 16(3) of Provincial Offences Procedure Act, SNB 1987, c P-22.1, the judge shall not convict the defendant if (a) the judge has reason to believe that the certificate on the notice of prosecution is inaccurate, or (b) the notice of prosecution contains a defect and the defect cannot be cured under section 106.

Link to Provincial Offences Procedure Act, SNB:

http://canlii.ca/en/nb/laws/stat/snb-1987-c-p-22.1/100839/snb-1987-c-p-22.1.html

Defining terms:

 Black's Law Dictionary (8th ed. 2004), at  Page 4288 defines SHALL as follows:

shall,vb.1. Has a duty to; more broadly, is required to <the requester shall send notice> <notice shall be sent>. • This is the mandatory sense that drafters typically intend and that courts typically uphold. [Cases: Statutes 227. C.J.S. Statutes §§ 362–369.]

The American Heritage® Dictionary of the English Language, Fourth Edition defines inaccurate as:

 Mistaken or incorrect; not accurate

Collins English Dictionary – Complete and Unabridged ©defines inaccurate as:

not accurate; imprecise, inexact, or erroneous

The definition of error is very important to understanding the magnitude of the procedural defect being highlighted. Merriam Webster Dictionary Definition of ERROR is as follows:

1

a : an act or condition of ignorant or imprudent deviation from a code of behavior

b : an act involving an unintentional deviation from truth or accuracy <made an error in adding up the bill>

c : an act that through ignorance, deficiency, or accident departs from or fails to achieve what should be done <an error in judgment>: as (1) : a defensive misplay other than a wild pitch or passed ball made by a baseball player when normal play would have resulted in an out or prevented an advance by a base runner (2) : the failure of a player (as in tennis) to make a successful return of a ball during play

d : a mistake in the proceedings of a court of record in matters of law or of fact

To not use the correct procedure as set out in Provincial Offences Procedure Act, SNB a mistake in the proceedings of a court of record in matters of law and of fact.

It is important to remember when considering Interpretation of Statutes, the Maxim: ‘The meaning of words is the spirit of the law.’ Courts must presume that the Legislative Assembly when drafting Law puts into writing, within a statute, exactly what the Legislative Assembly intends to be interpreted within a statute, nothing else. Every part of an act is presumed to be of some effect and is not to be treated as meaningless unless absolutely necessary. Considering Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 and Rizzo v. Rizzo Shoes Ltd. (Re) 1998 CanLII 837 (SCC), 1998 CanLII 837, I  will refer to and rely on the well established principle of statutory interpretation, that:

1. • the legislature does not intend to produce absurd consequences.
2. • an interpretation may be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with otherprovisions or with the object of the legislative enactment
3. • a label of absurdity may be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile.

Black's Law Dictionary (8th ed. 2004), at Page 29 defines ABSURDITY as follows:

absurdity, n. The state or quality of being grossly unreasonable; esp., an interpretation that would lead to an unconscionable result, esp. one that the parties or (esp. for a statute) the drafters could not have intended and probably never considered. Cf. GOLDEN RULE.

I  assert that a label of absurdity may be attached to interpretations of the Provincial Offences Procedure Act, SNB 1987, P-22.1. which may defeat the purpose of that Act and consequentially   render some aspect of it pointless or futile; the words ‘notice of prosecution’  are peppered throughout the section titled Tickets and elsewhere in the Act. Please note the herein subject Act clearly states this within section 12(2) of Provincial Offences Procedure Act, SNB 1987, c P-22.1.  Proceedings with respect to the offence as charged in the subject ticket, are to commence, not before the notice of prosecution is filed with the judge and (section 12(1) of Provincial Offences Procedure Act, SNB 1987, c P-22.1,) moreover the notice of prosecution must be filed with a judge no later than the date stated in the ticket for the defendant’s appearance.

Further Authorities Regarding Interpretation of Statutes

U.S. Supreme Court decision in Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992):

"[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S. 249, 254.

Supreme Court of Virginia Raven Coal Corp. v. Absher, 153 Va. 332, 335, 149 S.E. 541, 542 (1929):

"Every part of an act is presumed to be of some effect and is not to be treated as meaningless unless absolutely necessary."

Supreme Court of New Mexico, State ex rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994). - New Mexico v. Juan, 2010-NMSC-041, August 9, 2010:

"The principal command of statutory construction is that the court should determine and effectuate the intent of the legislature using the plain language of the statute as the primary indicator of legislative intent." State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994) “The words of a statute . . . should be given their ordinary meaning, absent clear and express legislative intention to the contrary,” as long as the ordinary meaning does “not render the statute’s application absurd, unreasonable, or unjust.” State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) When the meaning of a statute is unclear or ambiguous, we have recognized that it is “the high duty and responsibility of the judicial branch of government to facilitate and promote the legislature’s accomplishment of its purpose.”

Conclusion of Interpretation

According to section 16(3)(a) of Provincial Offences Procedure Act, the judge has a duty to, or , if put another way, is required to not convict the defendant if the judge has reason to believe that the certificate on the notice of prosecution is not accurate, erroneous and especially if there is none before the Court, by at least the date of first appearance.

According to section 16(3)(b) of Provincial Offences Procedure Act, the judge has a duty to or , if put another way, is required to not convict the defendant if the judge has reason to believe that the notice of prosecution contains a defect and the defect cannot be cured under section 106. The fact that:

1. ·         no notice of prosecution was issued,  
2. ·         no notice of prosecution was served,
3. ·         no notice of prosecution was filed by at least the date of first appearance and,
4. ·         no date was placed upon the ticket, specifically for a Defendant’s first appearance, if one wished to contest the subject ticket.

Provincial Offences Procedure Act, is clear on the point that the judge is required to not convict the defendant, when the most basic procedural steps are not followed, this is an incurable defect and the matter should be dismissed, immediately when this is brought to the Court attention and furthermore, Judicial Notice implores the Court to dismiss the matter as a right, without any further proof necessary. The Provincial Offences Procedure Act speaks for itself. 

Regarding Bylaw matters before the Provincial Court, when no Notice of Prosecution is before the Court, on the date of first appearance, the matter should be dismissed.