Out of Court Amendment

R v McGonigal

Unreported

Her Majesty the Queen v. John McGonigal

Ontario Court (Provincial Division)
Judge T. Wolder | October 1, 1990, Brampton, Ontario

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Background

John McGonigal was stopped on November 10, 1989 and issued an offence notice for "red light fail to stop" contrary to the Highway Traffic Act. The officer originally wrote down section 109 on the ticket, but someone later crossed it out and changed it to section 124(16) — which was actually the correct section for the offence. McGonigal obtained a trial date for July 26, 1989 at 1 p.m. in courtroom five. Before arraignment, his agent McKay made a motion to quash the certificate, arguing that the amendment was improper because nobody could prove who had made the change to the official document.

The justice of the peace at the original trial refused to quash the certificate, finding that the body of the charge remained the same and that McGonigal had sufficient information about what he was charged with. McGonigal appealed this decision.

Issues

1. Whether an offence notice can be unilaterally amended after it has been issued and served
2. Whether the Crown must prove who made amendments to official court documents
3. Whether an amended certificate creates a new certificate that must be re-served within 30 days

The Amendment Problem

Judge Wolder focused on Section 3(2) of the Provincial Offences Act, which allows officers to issue certificates of offence but requires strict compliance with the statutory requirements. The Crown argued that correcting the section number didn't create a new certificate since the defendant was informed of the case he had to meet. But the judge wasn't buying it.

The critical problem was that while the officer was present in court, no evidence was called to show who actually made the deletion and amendment to the official document. Section 35 of the Provincial Offences Act allows courts to make amendments during proceedings, but there was no evidence that the court had authorized this change. Someone had unilaterally altered an official document without authority.

The judge found that once an error appears on the face of an offence notice, the officer should have issued a fresh information under section 22(2) with the consent of the Attorney General. Instead, the officer "took a short cut" by amending the original certificate — but "there is no provision in the Act for such a short cut."

Key Takeaway

You cannot unilaterally change an offence notice after it has been issued and served.

If there's an error on your ticket and someone has made handwritten changes without proper court authorization, this could be grounds to have the entire proceeding quashed. The prosecution must follow proper procedures — they can't just cross things out and write in corrections.

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R v Xinos

Unreported

R. v. Christos Xinos

Ontario Court (Provincial Division)
Ontario Court (Provincial Division) — Judge August | February 9, 1996

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Background

Christos Xinos received a certificate of offence under the Highway Traffic Act. When he failed to respond to the ticket, it went to the "fail to respond" docket and he was convicted in his absence. Xinos then appealed that conviction.

The problem? The original certificate showed section 109 of the Highway Traffic Act as the offence. But someone had obviously changed it to section 128 on the ICON computer printout. This wasn't a typo or clerical error — someone had deliberately altered the section number after the fact.

Issues

1. Was the certificate of offence "proper and regular on its face" as required by section 9 of the Provincial Offences Act?
2. Should the conviction be quashed due to the irregularity in the certificate?

The Certificate Defect

Section 9 of the Provincial Offences Act is crystal clear: when someone fails to respond to a ticket, a justice can only enter a conviction if the certificate is "proper and regular on its face." If there's an irregularity, the certificate must be quashed.

Here, the defence lawyer pointed out that the certificate showed section 109 while the computer printout showed section 128. This wasn't a minor discrepancy — someone had taken "the opportunity to amend this" after the certificate was issued. The Crown attorney immediately conceded the point, agreeing that the certificate was not complete and regular, and actually asked the court to allow the appeal and quash the certificate.

The court allowed the appeal, set aside the conviction and fine, and entered an acquittal.

Key Takeaway

Any irregularity on the face of a certificate of offence means it must be quashed if you failed to respond.

This case shows that even post-issuance alterations to computer records can't cure defects in the original certificate. If you're facing a fail-to-respond conviction, scrutinize every detail on your certificate — section numbers, dates, locations, and officer information must all be accurate and unaltered.

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