Ontario Building Officials Association Certified Evidence Ted Allen

Ontario Building Officials Association Certified Evidence Ted Allen Supervising Prosecutor Region of York September 2014

Certified Evidence - New s. 48. 1 of the Provincial Offences Act On July 1, 2014, the new s. 48. 1 of the POA came into effect Certified evidence Application Ø 48. 1 (1) This section applies to a hearing, including a hearing in the absence of a defendant under section 54, where, Ø (a) the proceeding for the offence was commenced by certificate under Part I or II; and Ø (b) the offence is specified by the regulations. 2009, c. 33, Sched. 4, s. 1 (40). Admissibility of certified evidence Ø (2) The following are admissible in evidence as proof of the facts certified in it, in the absence of evidence to the contrary: Ø 1. A certified statement in a certificate of offence. Ø 2. A certified statement in a certificate of parking infraction. Ø 3. Other types of certified evidence specified by the regulations. 2009, c. 33, Sched. 4, s. 1 (40). Ø

New section 48. 1 Other provisions on admissibility ü (3) For greater certainty, subsection (2) does not affect or interfere with the operation of a provision of this Act or any other Act that permits or specifies that a document or type of document be admitted into evidence as proof of the facts certified in it. 2009, c. 33, Schedule 4, s. 1 (40). Onus ü (4) For greater certainty, this section does not remove the onus on the prosecution to prove its case beyond a reasonable doubt. 2009, c. 33, Schedule 4, s. 1 (40).

New section 48. 1 No oral evidence ü (5) A provincial offences officer who provides certified evidence referred to in subsection (2) in respect of a proceeding shall not be required to attend to give evidence at trial, except as provided under subsection 49 (4). 2009, c. 33, Schedule. 4, s. 1 (40). Regulations ü (6) The Lieutenant Governor in Council may make regulations, ü (a) specifying offences for the purposes of clause (1) (b); ü (b) respecting other types of certified evidence for the purposes of paragraph 3 of subsection (2); ü (c) respecting restrictions or conditions on the admissibility of evidence under subsection (2). 2009, c. 33, Schedule. 4, s. 1 (40). See: 2009, c. 33, Schedule. 4, ss. 1 (40), 5 (4).

New section 48. 1 The statutory provision + the regulation – O. Reg. 132/14. Only available in Part I and Part II proceedings. Must be a prescribed offence in the regulation or a prescribed type of evidence in order to be used/relied upon + The defendant must not have been given the option of requesting that the officer attend at the trial (the new forms must have been used including the new notice of trial).

New Section 48. 1 Offences are prescribed in regulation (O. Reg. 132/14) In the absence of evidence to the contrary, the following is admissible as proof of facts certified in it: 1. A certified statement in a certificate of offence 2. A certified statement in a certificate of parking infraction 3. Other types of certified evidence specified by the regulations Section does not remove the onus on the prosecution to prove its case beyond a reasonable doubt.

New Section 48. 1 Does not interfere or change the admissibility of certified evidence in other statutes. The authority in offence-creating enactments for such evidence remains unchanged. For example, certified statements under the H. T. A. (RLC charges, Ministry records), B. C. A. , Municipal Act (licensing status) Creates regulation making authority for the regulation to specify offences, create types of certificate evidence and to impose restrictions or conditions on admissibility. A provincial offences officer who provides certified evidence referred to in subsection (2) in respect of a proceeding shall not be required to attend to give evidence at trial, except as provided under subsection 49 (4).

New O. Reg 132/14 New Regulation 132/14 came into effect July 1, 2014 Specified offences 1. (1) Every offence for which there is a set fine, other than an offence referred to in subsection (2), is specified for the purposes of clause 48. 1 (1) (b) of the Act. (2) The following offences for which there is a set fine are not specified for the purposes of clause 48. 1 (1) (b) of the Act: 1. Every offence under a provision of an Act, regulation or municipal bylaw that, on the offence date indicated in the offence notice, is set out in the Table to Ontario Regulation 339/94 (Demerit Point System) made under the Highway Traffic Act. 2. An offence under section 128 of the Highway Traffic Act.

New O. Reg 132/14 Other types of certified evidence 2. The following types of certified evidence are specified for the purposes of paragraph 3 of subsection 48. 1 (2) of the Act: 1. A certified copy of a photograph taken by a provincial offences officer. 2. In respect of a document, a certified statement by a provincial offences officer that he or she served the document on the person charged, with the date and method of service indicated. 3. A certified statement by a provincial offences officer respecting the configuration, weight, dimensions or other characteristics of a vehicle inspected by the provincial offences officer.

New O. Reg 132/14 The Regulation sets forth the detail and is a critical component. Excluded are any offences for which demerit points are applied upon conviction and speeding (section 128 H. T. A. ). Otherwise certified statements may be relied upon and the issuing officer not called upon to testify at trial. As with red light camera charges, the certified statement is the certificate of offence – there is no other certified statement.

New O. Reg 132/14 There also three categories of certificate evidence 1. Photographs – may be certified by the provincial offences officer who took the photographs 2. Service – may be certified where not otherwise provided for 3. Weight and other details regarding commercial motor vehicles may be certified

New section 49(3) & (4) New s. 49(3) and (4) of the POA in force July 1, 2014 Adjournment (3) Despite subsection (1) and subject to subsection (4), if the trial is being held in respect of a proceeding commenced under Part I or II, the court shall not adjourn the trial for the purpose of having the provincial offences officer who completed the certificate of offence or the certificate of parking infraction, as the case may be, attend to give evidence unless the court is satisfied that the interests of justice require it. 2009, c. 33, Schedule 4, s. 1 (41).

New s. 49(3) and (4) Adjournment where certified evidence (4) If certified evidence referred to in subsection 48. 1(2) is being admitted as evidence in a trial referred to in subsection (1), the court shall not adjourn the trial for the purpose of having any of the following persons attend to give evidence unless the court is satisfied that the oral evidence of the person is necessary in order to ensure a fair trial: 1. The provincial offences officer who completed the certificate of offence or the certificate of parking infraction, as the case may be. 2. Any provincial offences officer who provided certified evidence in respect of the proceeding. 2009, c. 33, Schedule 4, s. 1 (41). See: 2009, c. 33, Schedule 4, ss. 1 (41), 5 (4).

Going Forward The decision to use section 48. 1 rests solely with the prosecutor. It is anticipated that in the case of parking infractions, prosecutors would rely almost exclusively on section 48. 1 and officers would no longer testify at trials. With regard to Part I matters, for offences not excluded by the regulation, prosecutors will decide both by category or specific offence as well as on a case-by-case basis whether to rely on section 48. 1.

Going Forward As a result, inspector/enforcement notification of trials will continue. It will be up to the prosecutor to decide whether the prosecutor requires the inspector to attend at the trial and to notify the inspector/enforcement agency if the inspector is not required. Even though it is a prosecution decision, it is important that discussions occur locally with regard to anticipated reliance on section 48. 1. For example, for Part II matters, the decision may be to rely upon section 48. 1 in all cases and officers are notified.

Short Form Wordings § § § You need to review the short form wording to determine whether it captures the essential elements of the offence. If it does, you can rely on the Certified Statement. If it does not, you will need to call the officer. (For example careless driving was insufficient to prove the facts for that offence – R. v. Mc. Pherson, 2012 ONCJ 807 (Ont. C. J. )) Review short form wordings for municipal charges to see if new set fine orders are needed.

Bottom line Statute passed July 1, 2014 The defendant must not have been given the option of requesting that the officer attend at the trial (the new forms must be used including the new notice of trial). Used for part one and part two of the Provincial Offences Act (not part three) It is the ticket (certificate of offence) that will be used as evidence

Bottom line The ticket is the certified statement A provincial offences officer (building inspector) who provides certified evidence shall not be required to attend to give evidence at trial Every offence under the HTA Demerit Point System, and any speeding offence is not eligible

Bottom line Part one Building code offences are eligible Review short form wordings for municipal charges to see if new set fine orders are required

Acknowledgement With thanks to Hans Saamen, Senior Counsel Prosecutions for his assistance with this presentation