Statutory Analysis
According to section 16(3) of Provincial Offences Procedure
Act, SNB 1987, c P-22.1, the judge shall
not convict the defendant if (a) the judge has reason to believe that the
certificate on the notice of prosecution
is inaccurate, or (b) the notice of
prosecution contains a defect and the defect cannot be cured under
section 106.
Link to Provincial Offences Procedure Act, SNB:
Defining terms:
Black's Law Dictionary (8th ed.
2004), at Page 4288 defines SHALL as follows:
shall,vb.1. Has a duty to; more broadly, is required to <the requester shall send notice> <notice shall be sent>. • This is the mandatory sense that drafters typically intend and that courts typically uphold. [Cases: Statutes 227. C.J.S. Statutes §§ 362–369.]
The American Heritage® Dictionary of the English Language,
Fourth Edition defines
inaccurate as:
Mistaken or incorrect; not accurateCollins English Dictionary – Complete and Unabridged ©defines inaccurate as:not accurate; imprecise, inexact, or erroneous
The definition of error is very important to understanding
the magnitude of the procedural defect being highlighted. Merriam Webster
Dictionary Definition of ERROR is as follows:
1a : an act or condition of ignorant or imprudent deviation from a code of behaviorb : an act involving an unintentional deviation from truth or accuracy <made an error in adding up the bill>c : an act that through ignorance, deficiency, or accident departs from or fails to achieve what should be done <an error in judgment>: as (1) : a defensive misplay other than a wild pitch or passed ball made by a baseball player when normal play would have resulted in an out or prevented an advance by a base runner (2) : the failure of a player (as in tennis) to make a successful return of a ball during playd : a mistake in the proceedings of a court of record in matters of law or of fact
To not use the correct procedure as set out in Provincial
Offences Procedure Act, SNB a mistake in the proceedings of a court of record
in matters of law and of fact.
It
is important to remember when considering Interpretation of Statutes, the Maxim: ‘The meaning
of words is the spirit of the law.’ Courts must presume that the Legislative Assembly
when drafting Law puts into writing, within a statute, exactly what the
Legislative Assembly intends to be interpreted within a statute, nothing else.
Every part of an act is presumed to be of some effect and is not to be treated
as meaningless unless absolutely necessary. Considering Bell ExpressVu Limited
Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 and Rizzo v. Rizzo
Shoes Ltd. (Re) 1998 CanLII 837 (SCC), 1998 CanLII 837, I
will refer to and rely on the well established principle of statutory
interpretation, that:
- • the legislature does not intend to produce absurd consequences.
- • an interpretation may be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with otherprovisions or with the object of the legislative enactment
- • a label of absurdity may be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile.
Black's Law Dictionary (8th ed. 2004),
at Page 29 defines ABSURDITY as follows:
absurdity, n. The state or quality of being grossly unreasonable; esp., an interpretation that would lead to an unconscionable result, esp. one that the parties or (esp. for a statute) the drafters could not have intended and probably never considered. Cf. GOLDEN RULE.
I assert that a label of
absurdity may be attached to interpretations of the Provincial Offences
Procedure Act, SNB 1987, P-22.1. which may defeat the purpose of that Act and
consequentially render some aspect of it pointless or futile; the
words ‘notice of prosecution’ are peppered throughout the section titled
Tickets and elsewhere in the Act. Please note the herein subject Act clearly
states this within section 12(2) of Provincial Offences Procedure Act, SNB
1987, c P-22.1. Proceedings with respect to the offence as charged in the
subject ticket, are to commence, not before the notice of prosecution is filed
with the judge and (section 12(1) of Provincial Offences Procedure Act, SNB
1987, c P-22.1,) moreover the notice of prosecution must be filed with a judge no later than the date stated in
the ticket for the defendant’s appearance.
Further Authorities Regarding
Interpretation of Statutes
U.S. Supreme Court decision in
Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992):
"[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S. 249, 254.
Supreme Court of Virginia Raven Coal
Corp. v. Absher, 153 Va. 332, 335, 149 S.E. 541, 542 (1929):
"Every part of an act is presumed to be of some effect and is not to be treated as meaningless unless absolutely necessary."
Supreme Court of New Mexico, State ex
rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994). - New
Mexico v. Juan, 2010-NMSC-041, August 9, 2010:
"The principal command of statutory construction is that the court should determine and effectuate the intent of the legislature using the plain language of the statute as the primary indicator of legislative intent." State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994) “The words of a statute . . . should be given their ordinary meaning, absent clear and express legislative intention to the contrary,” as long as the ordinary meaning does “not render the statute’s application absurd, unreasonable, or unjust.” State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) When the meaning of a statute is unclear or ambiguous, we have recognized that it is “the high duty and responsibility of the judicial branch of government to facilitate and promote the legislature’s accomplishment of its purpose.”
Conclusion of Interpretation
According to section
16(3)(a) of Provincial Offences Procedure Act, the judge has a duty to, or , if put another way, is required to not convict the defendant if the judge
has reason to believe that the certificate on the notice of prosecution is not
accurate, erroneous and especially if there is none before the Court, by at
least the date of first appearance.
According to section 16(3)(b) of Provincial Offences
Procedure Act, the judge has a duty to or , if put another way, is required to not
convict the defendant if the judge has reason to believe that the notice of
prosecution contains a defect and the defect cannot be cured under
section 106. The fact that:
- · no notice of prosecution was issued,
- · no notice of prosecution was served,
- · no notice of prosecution was filed by at least the date of first appearance and,
- · no date was placed upon the ticket, specifically for a Defendant’s first appearance, if one wished to contest the subject ticket.
Provincial Offences
Procedure Act, is clear on the point that the judge is required to not convict
the defendant, when the most basic procedural steps are not followed, this is
an incurable defect and the matter should be dismissed, immediately when this
is brought to the Court attention and furthermore, Judicial Notice implores the
Court to dismiss the matter as a right, without any further proof necessary.
The Provincial Offences Procedure Act speaks for itself.
Regarding Bylaw matters before the Provincial Court, when
no Notice of Prosecution is before the Court, on the date of first appearance, the matter should be dismissed.
