Section 3(2) of the POA allows a provincial offences officer to issue a certificate of offence and either an offence notice or a summons.
Issuance and service
(2) A provincial offences officer who believes that one or more persons have committed an offence may issue, by completing and signing, a certificate of offence certifying that an offence has been committed and,
(a) an offence notice indicating the set fine for the offence; or
(b) a summons,
in the form prescribed under section 13.
However, in my view, a summons under Part I of the POA can ONLY
be issued when no set fine for the offence is in play.
A summons does not provide the space for the set fine to be set out on the summons.
An accused who commits an offence that bears a set fine must be made aware of the set fine because, under s. 8, the accused has the option to settle out of court by paying the set fine.
Payment out of court
8. (1) Where an offence notice is served on a defendant who does not wish to dispute the charge, the defendant may sign the plea of guilty on the offence notice and deliver the offence notice and amount of the set fine to the office of the court specified in the notice.
A summons requires the accused to attend court.
A summons issued under Part I operates in the same manner as a summons under s. 22, 24(a)(i), 26 or 39.
26. (1) A summons issued under section 22 or 24 shall,
(a) be directed to the defendant;
(b) set out briefly the offence in respect of which the defendant is charged; and
(c) require the defendant to attend court at a time and place stated therein and to attend thereafter as required by the court in order to be dealt with according to law.
Once in court the accused is facing additional fines, the victim surcharge fine and court cost fines.
An accused issued a summons has no opportunity to settle out of court which creates a procedural miscarriage of justice.
An accused who commits an offence bearing a set fine is by law entitled to settle out of court within 15 days, as evidenced in s. 9.
Failure to respond to offence notice
9. (1) Where at least fifteen days have elapsed after the defendant was served with the offence notice and the offence notice has not been delivered in accordance with section 6 or 8 and a plea of guilty has not been accepted under section 7, the defendant shall be deemed to not wish to dispute the charge and a justice shall examine the certificate of offence and,
(a) where the certificate of offence is complete and regular on its face, the justice shall enter a conviction in the defendant’s absence and without a hearing and impose the set fine for the offence; or
(b) where the certificate of offence is not complete and regular on its face, the justice shall quash the proceeding.
In my view, this also means that an offence that bears a set fine cannot be commenced against the accused by summons under Part III of the POA, because again the accused is denied the chance to settle out of court.
Since a certificate of offence cannot be issued under Part III of the POA, this also means there is not a 6 month limitation period for the government to charge offences against an accused that bear a set fine.
The limitation period is 30 days, as articulated under s. 3(3), and this is whether an offence notice is issued under Part I or whether a summons is issued under Part I or Part III, if Part III summons are even applicable at all.
3(3) The offence notice or summons shall be served personally upon the person charged within thirty days after the alleged offence occurred.
The six month limitation period articulated under s. 76 does not apply to any offence that is subject to a certificate of offence or summons, as the 30 day limitation period under s. 3(3) applies and governs, because s. 76 states a proceeding shall
not be commenced after the expiration of any
limitation period prescribed by or under any Act
The POA is an Act. Section 3(3) articulates an expiration limitation period for offences. This statute bars the government from relying on s. 76 at all times.
76. (1) A proceeding shall not be commenced after the expiration of any limitation period prescribed by or under any Act for the offence or, where no limitation period is prescribed, after six months after the date on which the offence was, or is alleged to have been, committed.
What do you think?