Certified Evidence – Traffic Ticket – Provincial Offences Act

BE AWARE! It is now becoming common practice in some jurisdictions such as York Region to proceed on traffic ticket trials for some matters such as Speeding s. 128 by way of ‘Certified’ or ‘Certificate’ evidence.

 

This simply means that the prosecutor no longer calls the officer to testify. They simply present the ticket to the Justice of the Peace of proof of the offence. The ticket states the offence – i.e. ’95 km/h in a 60 km/h zone Speeding s. 128’.

 

Then, the onus shifts to the defence to provide evidence that the defendant was not speeding to raise reasonable doubt in order to obtain an acquittal. If there is no such evidence presented to raise reasonable doubt then the Justice of the Peace is able to enter a conviction.

 

Just another example of how our government is eroding your rights to trial and to a fair judicial process.

 

WHAT IS CERTIFIED EVIDENCE?

• Evidentiary shortcut
• “The use of certified evidence is designed to save the delay and expense of calling the certifier of the evidence where, prime facie, (based on first impression; accepted as correct until proven otherwise) there is no basis to doubt the accuracy and reliability of the certificate.” Waterloo (Regional Municipality) v Yan, Ontario Court of Appeal.

 

WELL ESTABLISHED USE (1)

• Example: Red Light Camera prosecution
• Various provisions in the HTA and Regulations that permit the use of certified evidence as a result all the elements of the offence are proven using certified evidence
• see Part XIV.2 HTA – Red Light Camera System Evidence
• “Photographs obtained through the red-light camera system shall be received in evidence”; in the absence of evidence to the contrary, photo is proof that information shown or superimposed on the photo (authorized/required by regulation) is true and vehicle and driver did not stop and proceeded before green contrary to s. 144(18)
• Certification of photograph by provincial offences officer “shall be received in evidence as proof, in the absence of evidence to the contrary, that the photograph was obtained through the use of a red-light camera system”
• Certificate of service by provincial offences officer shall be received in evidence and is proof of service in the absence of evidence to the contrary
• Evidence of ownership may be in certificate of offence or in separate document
• 205.21 – the certified statements in a certificate of offence are admissible in evidence as proof, in the absence of evidence to the contrary, of the facts stated in it.
• Does not apply if a summons has been issued for the officer to attend trial to testify – should only be issued if justice satisfied that the defendant will not be able to have a fair trial if the officer is not required to give oral evidence – high threshold to meet.

 

WELL ESTABLSIHED USE (2)

• Many examples where use of certified evidence/certified documents permitted in criminal and regulatory law
• Example Municipal Act s. 447.6 Statement of Licensing Status
• (4) In any prosecution or proceeding under a business licensing bylaw providing for a system of licences for a business, a statement as to the licensing or non-licensing of any premises or person purporting to be signed by the clerk of a municipality, by the chief administrative officer of a police services board or by the chief administrative officer of any other person or body to whom the municipality has delegated its licensing powers is, without proof of the office or signature of the clerk or officer,
• receivable in evidence as proof, in the absence of evidence to the contrary, of the facts stated in the statement for all purposes in the prosecution or proceeding.

 

SECTION 48.1 POA – A LITLE BACKGROUND

• Enacted at the time of photo radar in 1993
• Provided that certified statements in a certificate of offence or certificate of parking infraction were admissible as proof, in the absence of the contrary, of the facts stated therein.
• Limited as it was not available if the defendant indicated an intention to challenge the evidence of the provincial offences officer who completed the certificate.
• Re-enacted in the Good Government Act, 2009, to take effect upon proclamation 48.1 (1)
• This section applies to a hearing, including a hearing in the absence of a defendant under section 54, where,

(a) the proceeding for the offence was commenced by certificate under Part I or II; and

(b) the offence is specified by the regulations. 2009, c. 33, Sched. 4, s. 1 (40).

 

ADMISSIBILITY OF CERTIFIED EVIDENCE (2)

The following are admissible in evidence as proof of the facts certified in it, in the absence of evidence to the contrary:

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. 2009, c. 33, Sched. 4, s. 1 (40)

Of note:

• Only available for Part I or Part II proceedings
• Must be a prescribed offence in the regulations or
• Must be prescribed type of evidence permitted in the regulations
• Regulations can also impose restrictions/conditions on admissibility
• New forms must be used (where defendant is not given the option to request the attendance of the officer at trial)
• Prosecutor still must prove the case beyond a reasonable doubt
• Provincial offences officer who provided certified evidence not required to attend trial unless necessary to ensure a fair trial (POA s. 49(4))
• Defendant can only make the application to the trial justice to have the officer attend to testify (not in advance)

 

THE REGULATION O.REG. 132/14

• Excludes offences that carry demerit points
• Excludes speeding (s. 128)
• Provides three categories of certificate evidence:

1) photographs – certified by provincial offences officer who took the photos

2) service – certified where not otherwise provided for

3) weight/other details regarding commercial motor vehicles

 

ONTARIO REGULATION 132/14

CERTIFIED EVIDENCE

Consolidation Period:  From December 14, 2020, to the e-Laws currency date.

Last amendment: 710/20.

This is the English version of a bilingual regulation.

1. Revoked: O. Reg. 710/20, s. 1.

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:
3. A certified copy of a photograph taken by a provincial offences officer.
4. 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.
5. 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.
6. Omitted(provides for coming into force of provisions of this Regulation).

 

RECENT AMENDMENTS S. 48.1

• Stronger, Fairer Ontario Act (Budget Measures) 2017 brought amendments to amend s. 48.1 upon proclamation Certified evidence Application

(1) This section applies to a hearing, including a hearing in the absence of a defendant under section 54, if,

(a) the proceeding for the offence was commenced under Part I or II and a set fine has been specified for the offence; or

(b) the offence is specified by the regulations. 2017, c. 34, Sched. 35, s. 11.

Of note:

• Not yet proclaimed, status quo for now
• The offences specified in the regulations will no longer be limited to Part I or Part II offences – opens the door to Part III offences being listed
• Excludes Part I summons matters where no set fine indicated
• Possible other restrictions currently in the regulations will be removed? (Demerit points) TBD
• Amendments to the regulation still pending.

HOW OFTEN HAS CERTIFIED EVIDENCE BEEN USED EFFECTIVELY?

• Many examples where certified evidence has been used successfully in POA prosecutions to support some of the elements of the offence (witness still testifies to other issues)
• Growing examples of use of certified evidence to prove all the elements of the offence (red light camera – Halton, Hamilton, London, Ottawa, Peel, Toronto, Waterloo, York)
• Use of s. 48.1 POA specifically has varied throughout the province
• Examples:

 

1. Speeding Offences
2. Dockets dedicated to certificate evidence matters (“paper” HTA charges)

• Transit matters

1. Parking matters
2. Where officer is not in attendance
3. Not at all

 

PROSECUTOR CONSIDERATIONS

• Does the certificate evidence cover all the elements of the offence beyond a reasonable doubt?
• Does the short form wording need to be revised?
• Error, defect, or omission on the face of the certificate? Legible?
• If additional evidence required beyond the certificate of offence/parking infraction, what cost/technological barriers may exist (consult with enforcement agency)?
• Can the enforcement agency produce the additional photos/certified statements in a timely manner (disclosure considerations)?
• Has the officer laid multiple charges for which certificate evidence cannot be used?
• Is the defendant likely to testify? Is there an issue where the court may be reluctant to convict based solely on the certified statement of the officer? (Hard to predict in advance).

 

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Prosecution may present its case through certified evidence without having to call the officer as a witness. Certified evidence consists of the statements in the Certificate of Offence, certified photographs, and certified ministry documents.

The admissibility for these offences is set out in the Highway Traffic Act and regulations.

Section 48.1 of the Provincial Offences Act also allows for admissibility of Certified evidence for any Part I proceeding where a set fine exists for the offence.

Certified evidence Application

48.1 (1) This section applies to a hearing, including a hearing in the absence of a defendant under section 54, if,

(a) the proceeding for the offence was commenced under Part I or II and a set fine has been specified for the offence; or

(b) the offence is specified by the regulations. 2017, c. 34, Sched. 35, s. 11.

Admissibility of certified evidence

(2) The following are admissible in evidence as proof of the facts certified in it, in the absence of evidence to the contrary:

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.  2009, c. 33, Sched. 4, s. 1 (40).

Other provisions on admissibility

(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, Sched. 4, s. 1 (40).

Onus

(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, Sched. 4, s. 1 (40).

No oral evidence

(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, Sched. 4, s. 1 (40).

Regulations

(6) The Lieutenant Governor in Council may make regulations,

(a) specifying offences for the purposes of clause (1) (b).

(b) respecting other types of certified evidence for the purposes of paragraph 3 of subsection (2).

(c) respecting restrictions or conditions on the admissibility of evidence under subsection (2).  2009, c. 33, Sched. 4, s. 1 (40).

By Marcella DAlessandro

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