Court Files Evidence Required Ontario Building Officials Association Prepared by Ted Allen Supervising Prosecutor Region of York October 2013

Content Charging Document - What you “need” to prove the charge. Charging Document - What you “need” to prove the charge. Person/Partnership/Sole proprietor/Corporation/Director(s) of a Corporation - Who do I charge? Person/Partnership/Sole proprietor/Corporation/Director(s) of a Corporation - Who do I charge? Evidence Required in the Court File - The purpose of all the documents Evidence Required in the Court File - The purpose of all the documents

Content (continued) Document Certification - Who certifies what? What can the CBO/municipal clerk certify? Document Certification - Who certifies what? What can the CBO/municipal clerk certify? Disclosure Copies Disclosure Copies Serving the Summons-do’s and don’ts Serving the Summons-do’s and don’ts

The Charging Document Usually a part three “information” (charging document) Usually a part three “information” (charging document) The information/charging document is your road map to what your court file requires The information/charging document is your road map to what your court file requires Use the “information” as a tool to double check your court file to determine what may be missing in your file Use the “information” as a tool to double check your court file to determine what may be missing in your file

The Charging Document You must prove every allegation on the charging document You must prove every allegation on the charging document The Justice of the Peace has the charging document and is scrutinizing your evidence to determine if it is the same as the charging document The Justice of the Peace has the charging document and is scrutinizing your evidence to determine if it is the same as the charging document

The Charging Document Start with the name, and compare it to the certified copy of the assessment roll Start with the name, and compare it to the certified copy of the assessment roll Does the spelling match up? Does the spelling match up?

The Charging Document The name must match the property location (Assessment Roll) The name must match the property location (Assessment Roll) If the builder is being charged, there needs to be evidence that the builder is connected to the property If the builder is being charged, there needs to be evidence that the builder is connected to the property If a corporation is charged, it needs to be connected to the property If a corporation is charged, it needs to be connected to the property

The Charging Document It gets difficult when the owner of the building has rented the office to a person who has contracted an entity to do the work. It gets difficult when the owner of the building has rented the office to a person who has contracted an entity to do the work. A paper trail must connected to the defendant and the property to “prove” to the court that the entity exists and that they committed the offence at that location A paper trail must connected to the defendant and the property to “prove” to the court that the entity exists and that they committed the offence at that location

The Charging Document Check the date (on the charging document), and compare it to the inspection date Check the date (on the charging document), and compare it to the inspection date You need to determine if the date is in fact the day on which the offence occurred You need to determine if the date is in fact the day on which the offence occurred An OTC may have a different date than a charge under section 8(1) An OTC may have a different date than a charge under section 8(1)

The Charging Document Ensure the location on the charging document is correct Ensure the location on the charging document is correct Is the location the same as your assessment roll? Is the location the same as your assessment roll? Does the spelling on the assessment roll match the spelling on the charging document? Does the spelling on the assessment roll match the spelling on the charging document?

The Charging Document Look at the offence to determine if you can prove every aspect of the charge Look at the offence to determine if you can prove every aspect of the charge Proving the charge means you have to prove it in its entirety Proving the charge means you have to prove it in its entirety See the following example for the number of items or points that must be proved in one section of the legislation - See the following example for the number of items or points that must be proved in one section of the legislation -

Fire Protection and Prevention Act, 1997 Ontario Regulation 213/ Activities that create a hazard and that are not allowed for in the original design shall not be carried out in a building unless approved provisions are made to control the hazard.

The Charging Document In the case of a charge under 8(1) of the BCA; In the case of a charge under 8(1) of the BCA; “Did cause a building to be constructed without a permit having been issued by the chief building official” What do we have to prove? What do we have to prove?

The Charging Document The time (date) the offence took place must match the date on the charging document! The time (date) the offence took place must match the date on the charging document! Is there evidence that the owner “constructed” on the offence date? Is there evidence that the owner “constructed” on the offence date?

The Charging Document Your date of offence can be “on the 8 th day of April 2013” or “between the 1 st day of April and the 22 nd day of April 2013 Your date of offence can be “on the 8 th day of April 2013” or “between the 1 st day of April and the 22 nd day of April 2013 Using the “between” dates show the construction is ongoing i.e. framing on Friday and roof completed by Monday but no actual visual of the work being done Using the “between” dates show the construction is ongoing i.e. framing on Friday and roof completed by Monday but no actual visual of the work being done

The Charging Document In the case of a charge under section 12(2) of the BCA In the case of a charge under section 12(2) of the BCA Did commit the offence of “Fail to comply with an order to comply issued by a building inspector, namely order number 10-24, dated April 8, 2013” Did commit the offence of “Fail to comply with an order to comply issued by a building inspector, namely order number 10-24, dated April 8, 2013” What is the offence date for this charge? What is the offence date for this charge? What do we have to prove? What do we have to prove?

The Charging Document Must prove- Must prove- –Failed to comply –Issued by a building inspector –Order number –The date on the order (when it was issued) –The date the order was not complied with (offence date) –Who, What, Where and When

The Charging Document Keeping in mind that the charge is; Keeping in mind that the charge is; “Did commit the offence of fail to comply with an order to comply issued by a building inspector, namely order number 10-24, dated April 8, 2013”…..

The Charging Document Your file must contain; Your file must contain; –Notes indicating why the defendant failed to comply – what didn’t they do that the order asked them to do? –You issued the order and how you issued it –The order number –Evidence of a search of the building department records indicating a permit was not issued

The Charging Document Your file must contain; Your file must contain; –Assessment roll/deed/registrars abstract of title/corporation search/business names search –Location –The date of the order –The date the order was not complied with –A copy of the order

The Charging Document Your file must contain; Your file must contain; - Certified copies of any applications and drawings - The date you issued the order (the post office receipt is hearsay) - Certified statement of the CBO under section 37(2) if any documents where sent by registered mail

The Charging Document Your file must contain; Your file must contain; -Who, what, where and when must be in your notes including the date of the final inspection -Who, what, where and when must be in your notes including the date of the final inspection -disclosure copies (the defense may resolve) -disclosure copies (the defense may resolve)

Person/Partnership/Sole proprietor/Corporation/ Director(s) of Corporation Who do I charge?

Person/Partnership/Sole proprietor/Corporation/ Director(s) of Corporation You need to identify the person you are charging. You need to identify the person you are charging. This is usually done by an assessment roll search pertaining to the address of the property This is usually done by an assessment roll search pertaining to the address of the property

Person/Partnership/Sole proprietor/Corporation/ Director(s) of Corporation Sole proprietorship – individual must be charged Sole proprietorship – individual must be charged Partnership – individuals must be charged Partnership – individuals must be charged Corporation – Business can be charged. Directors can be charged only if they “knowingly” concurred in the contravention. Corporation – Business can be charged. Directors can be charged only if they “knowingly” concurred in the contravention.

Person/Partnership/Sole proprietor/Corporation/ Director(s) of Corporation A sole proprietorship or partnership may carry on business as “Ted’s Construction” but not be a corporate entity. A sole proprietorship or partnership may carry on business as “Ted’s Construction” but not be a corporate entity. You can charge as – “Ted Allen carrying on business as Ted’s Construction” You can charge as – “Ted Allen carrying on business as Ted’s Construction”

Person/Partnership/Sole proprietor/Corporation/ Director(s) of Corporation You will require proof that the person is in fact carrying on a business as suggested, remember you have to prove everything that is on the charging document Obtain a “Business Names Search”

Person/Partnership/Sole proprietor/Corporation/ Director(s) of Corporation To charge the directors of a corporation see section 36(2) of the BCA To charge the directors of a corporation see section 36(2) of the BCA 36.(2) Every director or officer of a corporation who knowingly concurs in the furnishing of false information, the failure to comply or the contravention under subsection (1) is guilty of an offence. 36.(2) Every director or officer of a corporation who knowingly concurs in the furnishing of false information, the failure to comply or the contravention under subsection (1) is guilty of an offence. 36.(2) 36.(2)

Person/Partnership/Sole proprietor/Corporation/ Director(s) of Corporation Regarding the charge of failing to comply with an OTC, the prosecution must prove that the directors “knowingly” failed to comply with an order. Regarding the charge of failing to comply with an OTC, the prosecution must prove that the directors “knowingly” failed to comply with an order. Therefore the OTC must be sent to the directors (usually at the same time it gets sent to the corporation). Therefore the OTC must be sent to the directors (usually at the same time it gets sent to the corporation).

Person/Partnership/Sole proprietor/Corporation/ Director(s) of Corporation The court file must contain evidence that the OTC was sent to the directors as per the BCA (s. 27) The court file must contain evidence that the OTC was sent to the directors as per the BCA (s. 27) 27. (1) A notice or order required by this Act to be served may be served personally or by registered mail sent to the last known address of the person to whom notice is to be given or to that person’s agent for service. 27. (1) A notice or order required by this Act to be served may be served personally or by registered mail sent to the last known address of the person to whom notice is to be given or to that person’s agent for service. 27. (1) 27. (1)

Evidence Required in the Court File-The purpose of all the documents Include a copy of the information (charging document) Include a copy of the information (charging document) This can be used by your department to ensure all the evidence is in the file and complete This can be used by your department to ensure all the evidence is in the file and complete This can be used by the prosecutor to ensure all the evidence is in the file and complete This can be used by the prosecutor to ensure all the evidence is in the file and complete

Evidence Required in the Court File-The purpose of all the documents Include a prosecution court brief; Include a prosecution court brief; - Defendants name - Brief set of facts - Suggested fine - List of documentation/evidence found in the brief - Court file number

Evidence Required in the Court File-The purpose of all the documents Court brief includes; Court brief includes; - Name of inspector/officer in charge - Dates the inspector/officer is not available for court - List of charges - Defendants name and address - Address of offence location

Evidence Required in the Court File-The purpose of all the documents Court brief includes; Court brief includes; - Witness information (name, address, contact info) - Fine justification (why should the fine be so high?)

Evidence Required in the Court File-The purpose of all the documents Assessment roll/deed/registrars abstract of title/corporate search/business names search –”certified” Assessment roll/deed/registrars abstract of title/corporate search/business names search –”certified” Required to prove who the owner/person/business is that you charged. A corporation search is also used to prove that the business exists. Required to prove who the owner/person/business is that you charged. A corporation search is also used to prove that the business exists.

Evidence Required in the Court File-The purpose of all the documents The purpose is to prove to the court that you have charged the correct person/entity and that the person or entity exists The purpose is to prove to the court that you have charged the correct person/entity and that the person or entity exists

Evidence Required in the Court File-the purpose of all the documents Offence Offence The prosecution is required to prove what the charge is and that the defendant did not comply with the legislation The prosecution is required to prove what the charge is and that the defendant did not comply with the legislation There may be several points in the legislation that must be proved in order to obtain a conviction There may be several points in the legislation that must be proved in order to obtain a conviction

Evidence Required in the Court File-The purpose of all the documents Offence (continued) Offence (continued) Copy of the section of the statute you are dealing with Copy of the section of the statute you are dealing with - Assists the justice of the peace - Assists the prosecutor - “Acts” do not have to be certified. See the Legislation Act, s. 13 – “Judicial notice shall be taken of the enactment and contents of an Act”

Evidence Required in the Court File-The purpose of all the documents Offence (continued) Offence (continued) - Certified copy of the Property Standards Bylaw (in the case of prosecutions under this bylaw)

Evidence Required in the Court File-the purpose of all the documents Offence (continued) Offence (continued) Part of the evidence required can be your OTC or PS Order. The court may want to determine what part of the order was not complied with. Ensure a copy is in the file Part of the evidence required can be your OTC or PS Order. The court may want to determine what part of the order was not complied with. Ensure a copy is in the file

Evidence Required in the Court File-the purpose of all the documents Inspection date/date you witnessed the infraction (offence date) Inspection date/date you witnessed the infraction (offence date) Required to prove the day on which the infraction took place Required to prove the day on which the infraction took place

Evidence Required in the Court File-the purpose of all the documents Location Location Required to prove the place the infraction took place including the municipality Required to prove the place the infraction took place including the municipality

Evidence Required in the Court File-The purpose of all the documents Certified statement of the CBO under section 37(2) if any documents where sent by registered mail Certified statement of the CBO under section 37(2) if any documents where sent by registered mail - Proves that an order was issued, the date it was issued, and issued correctly - Eliminates possible hearsay argument re post office documents and person testifying that they where responsible for sending the material by post

Evidence Required in the Court File-The purpose of all the documents Copies of applications and drawings Copies of applications and drawings - Rules of disclosure require municipality to produce/disclose “everything” - Applications have names which can provide greater weight to the evidence indicating the person responsible for the offence

Evidence Required in the Court File-The purpose of all the documents Pictures Pictures –Accurately describe what you saw Notes Notes –Computer generated acceptable –It is the “weight” that the court will apply to your evidence concerning the quality of your notes

Document Certification-Who certifies what? what can the CBO/municipal clerk certify? Municipal Act Municipal Act Admissibility of certified copies Admissibility of certified copies (1) A copy of any record under the control of the clerk of the municipality purporting to be certified by the clerk and under the seal of the municipality may be filed and used in any court or tribunal instead of the original and is admissible in evidence without proof of the seal or of the signature or official character of the person signing it, unless the court or tribunal otherwise directs. 2006, c. 32, Sched. A, s (1) A copy of any record under the control of the clerk of the municipality purporting to be certified by the clerk and under the seal of the municipality may be filed and used in any court or tribunal instead of the original and is admissible in evidence without proof of the seal or of the signature or official character of the person signing it, unless the court or tribunal otherwise directs. 2006, c. 32, Sched. A, s (1)

Document Certification-Who certifies what? what can the CBO/municipal clerk certify? In the case of a Property Standards bylaw, the bylaw is to be certified by the clerk (or deputy clerk). In the case of a Property Standards bylaw, the bylaw is to be certified by the clerk (or deputy clerk).

Document Certification-Who certifies what? what can the CBO/municipal clerk certify? Building Code Act Building Code Act Proof of directions, orders, etc. Proof of directions, orders, etc. 37. (1) In any prosecution for an offence under this Act, a copy of a direction or order purporting to have been made under this Act or the regulations and purporting to have been signed by the person authorized by this Act to make the direction or order is, in the absence of evidence to the contrary, proof of the direction or order without proof of the signature or authority. 1992, c. 23, s. 37 (1). 37. (1) In any prosecution for an offence under this Act, a copy of a direction or order purporting to have been made under this Act or the regulations and purporting to have been signed by the person authorized by this Act to make the direction or order is, in the absence of evidence to the contrary, proof of the direction or order without proof of the signature or authority. 1992, c. 23, s. 37 (1). 37. (1) 37. (1)

Document Certification-Who certifies what? what can the CBO/municipal clerk certify? Building Code Act Building Code Act 37.(2) A statement as to any matter of record in an office of the chief building official or an officer purporting to be certified by the chief building official or the officer is, without proof of the office or signature of the chief building official or officer, receivable in evidence as proof, in the absence of evidence to the contrary, of the facts stated therein in any civil proceeding or proceeding under the Provincial Offences Act. 1997, c. 24, s. 224 (18). 37.(2) A statement as to any matter of record in an office of the chief building official or an officer purporting to be certified by the chief building official or the officer is, without proof of the office or signature of the chief building official or officer, receivable in evidence as proof, in the absence of evidence to the contrary, of the facts stated therein in any civil proceeding or proceeding under the Provincial Offences Act. 1997, c. 24, s. 224 (18). 37.(2) 37.(2)

Disclosure Copies There should be three copies of “everything” in the court brief There should be three copies of “everything” in the court brief One for the defendant One for the defendant One for the court One for the court One for the prosecutor One for the prosecutor

Disclosure Copies Disclosure can help resolve the matter Disclosure can help resolve the matter A good file that cannot be attacked in a court of law will go a long way to convince a legal representative to advise his client that the best approach is to resolve A good file that cannot be attacked in a court of law will go a long way to convince a legal representative to advise his client that the best approach is to resolve

Disclosure Copies Stinchcombe – Supreme Court of Canada Stinchcombe – Supreme Court of Canada - Crown has a legal duty to disclose all relevant information to the defense - The fruits of the investigation are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done

Disclosure Copies Stinchcombe – Supreme Court of Canada Stinchcombe – Supreme Court of Canada - allrelevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory - all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory - the failure to disclose impaired the right to make full answer and defense

Serving the Summons-do’s and don’ts Provincial Offences Act Provincial Offences Act Service s.39 Service s.39 (2) A summons shall be served and the service shall be proved in the same manner as a summons under section 26 (2) A summons shall be served and the service shall be proved in the same manner as a summons under section 26 (2) (2.1) Despite subsection (2), a summons served under this section may be served by a person other than a provincial offences officer (2.1) Despite subsection (2), a summons served under this section may be served by a person other than a provincial offences officer (2.1)

Serving the Summons-do’s and don’ts Section 26 of the Provincial Offences Act sets out the rules for serving a summons. Section 26 of the Provincial Offences Act sets out the rules for serving a summons. Personally, last known place of abode, municipal corporation, corporation, registered mail to corporation, registered mail to defendant (only if defendant lives outside of Ontario). Personally, last known place of abode, municipal corporation, corporation, registered mail to corporation, registered mail to defendant (only if defendant lives outside of Ontario).

Serving the Summons-do’s and don’ts London vs Erdesz [2009] O.J. No London vs Erdesz [2009] O.J. No Suggests that the object of service is to give notice to the person so that person is aware of the complaint and is made aware of the opportunity to answer the complaint and resist the remedy sought against him.

Serving the Summons-do’s and don’ts London vs Erdesz [2009] O.J. No London vs Erdesz [2009] O.J. No Personal service has been said to be service made by delivering the process into the defendant’s hands or by seeing him and bringing the process to his notice.

Serving the Summons-do’s and don’ts Affidavit Affidavit - Used to prove the summons was served and the manner in which it was served - Important to ensure you fill it out correctly - Justice of the peace will determine if the proceeding/exparte trial can continue based on the affidavit

Serving the Summons-do’s and don’ts Affidavit Affidavit - A justice of the peace or a commissioner may sign your affidavit - You sign in front of the justice of the peace or commissioner “swearing” that you served the affidavit in the manner indicated on the document

Thank You Questions?