Between
Her Majesty The Queen, Respondent, and
Glenn Olsheskie, Applicant
Ontario Judgments: [1988] O.J. No. 367
Action No. RE 607/88
Supreme Court of Ontario - High Court of Justice
Toronto Weekly Court
Arbour J.
Heard: March 30, 1988
Judgment: April 12, 1988
L. Cecchetto, for the Respondent.
L. Sabsay, for the Applicant.
ARBOUR J. (orally):- This is an application for the issuance of a writ of habeas corpus which challenges the validity of 21 warrants for committal issued under the Provincial Offences Act, R.S.O., 1980, c. 400.
I agree with Trainor J. in Hill v. The Queen et al., February 21, 1985 (unreported), that the statutory requirements must be complied with before a warrant for committal can be validly issued. In this case, although the justice of the peace or provincial court judge was required by regulation to give reasons, I do not find that his failure to do so amounted to the failure to comply with the condition precedent to jurisdiction, and therefore the absence of reasons are not fatal. However, in my view, the absence of reasons displaces the presumption of regularity, and I must therefore examine the materials in order to determine whether there is a foundation in this case to sustain the view that s. 70(3) of the Provincial Offences Act was complied with, and in the absence of reasons, closer scrutiny must be used.
The relevant statutory provisions in this case read as follows:
67. ...
. . .
| (6) | The defendant may, at any time by application in the prescribed form filed in the office of the court, request an extension or further extension of time for payment of a fine and the application shall be determined by a justice and the justice has the same powers in respect of the application as the court has under subsections (3) and (4). R.S.O. 1980, c. 400, s. 67. |
. . .70.--(1) The payment of a fine is in default when any part of the fine is due and unpaid for fifteen days or more.
| (2) | Where a justice is satisfied that payment of a fine is in default, the justice, |
| (a) | shall order that any permit, licence, registration or privilege in respect of which a suspension is authorized by or under any Act for non-payment of the fine be suspended, not renewed or not issued until the fine is paid; and |
| (b) | may direct the clerk of the court to proceed with civil enforcement under section 69. |
| (3) | A justice may issue a warrant in the prescribed form for the committal of the defendant where, |
| (a) | an order or direction under clause (2)(a) has not resulted in payment within a time that is reasonable in the circumstances; |
| (b) | all other reasonable methods of collecting the fine have been tried and failed or, in the opinion of the justice, would not likely result in payment within a reasonable time in the circumstances; and |
| (c) | the defendant has been given fifteen days notice of the intent to issue a warrant and has had an opportunity to be heard. |
Section 70(3) clearly imposes three conditions all of which are mandatory steps and which must be taken by the justice of the peace. Failure to comply with any of these statutory requirements would deprive the justice of the peace of jurisdiction.
The first requirement is that the justice of the peace shall examine the possibility of revoking a permit or a licence. I believe that this provision must be read as applicable only when the facts can support its application, and it was clearly not applicable in this case. I reject the submission of the applicant which, in my view, rests on a strained interpretation of that section, that no warrant of committal can issue in a case where s. 70(2)(a) is not available.
The other two conditions that must be complied with are found in s. 70(3)(b) and (c). Subsection (b) requires a finding on the part of the justice of the peace that all other reasonable methods of collecting the fines have been tried and failed or, in the opinion of the justice, would not likely result in payment within a reasonable time in the circumstances. Subsection (c), which is an additional requirement, provides that the defendant must have been given 15 days' notice of the intent to issue a warrant and must have had an opportunity to be heard.
The applicant argues that sections (b) and (c) were not complied with. With respect to subsection (c), the applicant argues that he was not given a right to be heard. It is also the applicant's argument that he had an additional right to be heard under s. 67(6), and that this right was not afforded to him.
I cannot agree with this submission that there is a right to be heard beyond the specific right to make a written application under s. 67(6). The right under that section is clearly to have one's application considered upon filling the appropriate form to request an extension. No deprivation of liberty can result at that stage. The denial of the request may well trigger the procedure for the issuance of a warrant under s. 70(3), as it did in this case, but since it is a preliminary measure, I cannot read into this section the right to an oral hearing. The important right to be heard is the one that is a condition precedent to jurisdiction in s. 70(3)(c).
With respect to s. 70(3)(b) it is my view that the proper reading of that provision is that the justice of the peace must consider, on the one hand whether all reasonable methods of collecting the fine have been tried and have failed or, on the other hand, whether, in his opinion, reasonable methods are not likely to result in payment, even though they have not been tried. As mentioned earlier, since no reasons were given in this case, in my view, the sole foundation for the conclusions of the provincial court judge here would have to be based on the, fact that he formed the opinion that other methods were not likely to result in payment within a reasonable time.
The main question is whether or not s. 70(3)(c) has been complied with, that is, whether the applicant has been given the mandatory right to be heard under that provision. There are in this case 21 warrants. The Crown concedes that the last one is invalid. There are therefore two groups of warrants remaining, and in the course of this argument they have been referred to as two distinct groups. The first group contains four warrants. With respect to these four warrants the applicant, after having been provided with a notice of intent to issue a warrant of committal, specifically applied under s. 67(6) for an extension of time to pay. In all four of these cases his application was denied.
With respect to the remaining 16 warrants, for which a notice of intention to issue a warrant for committal had been provided to the applicant, he made no specific written application under s. 67(6).
In my opinion, dealing with the first group of four warrants, these warrants must be quashed. In the circumstances, the applicant cannot be said to have had been given a right to be heard. He was specifically told that he could not have an oral hearing when he applied under s. 67(6) for an extension of time; the same day, he made four other applications for an extension of time which were submitted to a different justice of the peace and were granted.
On the materials before me it appears that no further written information was provided in the case of the applications that were granted than in the case of the applications that were denied. The same judge who denied these four applications for extension under s. 67(6) then proceeded to issue the warrants without further hearing. In these circumstances, in my view, the warrants for committal were issued without jurisdiction, s. 70(3)(c) not having been complied with.
As for the remaining 16 warrants for which the applicant made no specific written application under s. 67(6) for an extension of time, the applicant states in his affidavit, upon which he was not cross-examined, that he wanted to be heard. He specifically states at paragraph 14 of his affidavit that:
| 14. | That I attended at Old City Hall with the intention of being heard with respect to these notices. I was informed by officials with the Warrant Section that I could not deal with all my fines at once. |
The Crown submitted that the applicant had some prior experience with applications for extension of time and understood that he had to proceed with separate applications for each warrant which was again what he was told when he attended at City Hall.
I indicated earlier that the applicant was not cross-examined on his affidavit, and it appears to be the first time that he was facing the specific process of addressing a notice of intent to issue a warrant for committal.
The right to be heard in s. 70(3)(c) is a condition precedent to jurisdiction in a process that leads to the deprivation of liberty. In my view that right to be heard clearly contains an element of fairness which may not need to be accommodated in all cases by an oral hearing, but which must be accommodated by a fair hearing.
In view of the substantial fines that the applicant had to face and of the apparent attempts that he made to talk to someone about an alternative resolution of these fines prior to having to serve a prison term in defaults I am of the opinion that the remaining 16 warrants were also issued without jurisdiction.
The habeas corpus is granted and the 21 warrants are quashed.
ARBOUR J.
