court files evidence required ontario building officials association prepared by ted allen...

Court Files Court Files Evidence RequiredEvidence Required

Ontario Ontario Building Officials Building Officials

AssociationAssociation

Prepared by Prepared by Ted AllenTed Allen

Supervising Prosecutor Supervising Prosecutor Region of YorkRegion of YorkOctober 2013October 2013

ContentContent

• Charging Document - What you Charging Document - What you “need” to prove the charge.“need” to prove the charge.

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

• Evidence Required in the Court File - Evidence Required in the Court File - The purpose of all the documentsThe purpose of all the documents

Content (continued)Content (continued)

• Document Certification - Who Document Certification - Who certifies what? What can the certifies what? What can the CBO/municipal clerk certify?CBO/municipal clerk certify?

• Disclosure CopiesDisclosure Copies

• Serving the Summons-do’s and Serving the Summons-do’s and don’tsdon’ts

The Charging DocumentThe Charging Document

• Usually a part three “information” Usually a part three “information” (charging document)(charging document)

• The information/charging document is The information/charging document is your road map to what your court file your road map to what your court file requiresrequires

• Use the “information” as a tool to double Use the “information” as a tool to double check your court file to determine what check your court file to determine what may be missing in your filemay be missing in your file


• You must prove every allegation on the You must prove every allegation on the charging documentcharging document

• The Justice of the Peace has the The Justice of the Peace has the charging document and is scrutinizing charging document and is scrutinizing your evidence to determine if it is the your evidence to determine if it is the same as the charging documentsame as the charging document


• Start with the name, and compare it Start with the name, and compare it to the certified copy of the to the certified copy of the assessment rollassessment roll

• Does the spelling match up?Does the spelling match up?


• The name must match the property The name must match the property location (Assessment Roll)location (Assessment Roll)

• If the builder is being charged, there If the builder is being charged, there needs to be evidence that the builder needs to be evidence that the builder is connected to the propertyis connected to the property

• If a corporation is charged, it needs If a corporation is charged, it needs to be connected to the propertyto be connected to the property


• It gets difficult when the owner of the It gets difficult when the owner of the building has rented the office to a building has rented the office to a person who has contracted an entity to person who has contracted an entity to do the work.do the work.

• A paper trail must connected to the A paper trail must connected to the defendant and the property to “prove” defendant and the property to “prove” to the court that the entity exists and to the court that the entity exists and that they committed the offence at that that they committed the offence at that locationlocation


• Check the date (on the charging Check the date (on the charging document), and compare it to the document), and compare it to the inspection date inspection date

• You need to determine if the date is You need to determine if the date is in fact the day on which the offence in fact the day on which the offence occurred occurred

• An OTC may have a different date An OTC may have a different date than a charge under section 8(1)than a charge under section 8(1)


• Ensure the location on the charging Ensure the location on the charging document is correctdocument is correct

• Is the location the same as your Is the location the same as your assessment roll? assessment roll?

• Does the spelling on the assessment Does the spelling on the assessment roll match the spelling on the roll match the spelling on the charging document?charging document?


• Look at the offence to determine if you Look at the offence to determine if you can prove every aspect of the chargecan prove every aspect of the charge

• Proving the charge means you have to Proving the charge means you have to prove it in its entirety prove it in its entirety

• See the following example for the See the following example for the number of items or points that must be number of items or points that must be proved in one section of the legislation -proved in one section of the legislation -

Fire Protection and Prevention Act, Fire Protection and Prevention Act, 19971997

Ontario Regulation 213/07Ontario Regulation 213/07

2.1.2.2. Activities that create a hazard 2.1.2.2. Activities that create a hazard and that are not allowed for in the and that are not allowed for in the

original design shall not be carried out original design shall not be carried out in a building unless approved provisions in a building unless approved provisions

are made to control the hazard.are made to control the hazard.


• In the case of a charge under 8(1) of In the case of a charge under 8(1) of the BCA;the BCA;

““Did cause a building to be constructed Did cause a building to be constructed without a permit having been issued without a permit having been issued by the chief building official”by the chief building official”

• What do we have to prove? What do we have to prove?


• The time (date) the offence took The time (date) the offence took place must match the date on the place must match the date on the charging document! charging document!

• Is there evidence that the owner Is there evidence that the owner “constructed” on the offence date?“constructed” on the offence date?


• Your date of offence can be “on the 8Your date of offence can be “on the 8thth day of April 2013” or “between the 1day of April 2013” or “between the 1stst day day of April and the 22of April and the 22ndnd day of April 2013 day of April 2013

• Using the “between” dates show the Using the “between” dates show the construction is ongoing i.e. framing on construction is ongoing i.e. framing on Friday and roof completed by Monday but Friday and roof completed by Monday but no actual visual of the work being doneno actual visual of the work being done


• In the case of a charge under section In the case of a charge under section 12(2) of the BCA12(2) of the BCA

• Did commit the offence of “Fail to Did commit the offence of “Fail to comply with an order to comply issued comply with an order to comply issued by a building inspector, namely order by a building inspector, namely order number 10-24, dated April 8, 2013”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?


• Must prove-Must prove-– Failed to complyFailed to comply– Issued by a building inspectorIssued by a building inspector– Order numberOrder number– The date on the order (when it was issued)The date on the order (when it was issued)– The date the order was not complied with The date the order was not complied with

(offence date) (offence date) – Who, What, Where and WhenWho, What, Where and When


• Keeping in mind that the charge is; Keeping in mind that the charge is;

““Did commit the offence of fail to Did commit the offence of fail to comply with an order to comply comply with an order to comply issued by a building inspector, issued by a building inspector, namely order number 10-24, dated namely order number 10-24, dated April 8, 2013”…..April 8, 2013”…..


• Your file must contain;Your file must contain;– Notes indicating why the defendant failed Notes indicating why the defendant failed

to comply – what didn’t they do that the to comply – what didn’t they do that the order asked them to do?order asked them to do?

– You issued the order and how you issued itYou issued the order and how you issued it– The order numberThe order number– Evidence of a search of the building Evidence of a search of the building

department records indicating a permit department records indicating a permit was not issuedwas not issued


• Your file must contain;Your file must contain;– Assessment roll/deed/registrars abstract Assessment roll/deed/registrars abstract

of title/corporation search/business of title/corporation search/business names searchnames search

– Location Location – The date of the orderThe date of the order– The date the order was not complied withThe date the order was not complied with– A copy of the orderA copy of the order


• Your file must contain;Your file must contain;

- Certified copies of any applications Certified copies of any applications and drawingsand drawings

- The date you issued the order (the The date you issued the order (the post office receipt is hearsay)post office receipt is hearsay)

- Certified statement of the CBO under Certified statement of the CBO under section 37(2) if any documents where section 37(2) if any documents where sent by registered mailsent by registered mail


• Your file must contain;Your file must contain;

-Who, what , where and when must -Who, what , where and when must be in be in your notes including the your notes including the date of the date of the final inspectionfinal inspection

-disclosure copies (the defense may -disclosure copies (the defense may resolve)resolve)

Person/Partnership/Sole Person/Partnership/Sole proprietor/Corporation/proprietor/Corporation/

Director(s) of CorporationDirector(s) of Corporation

Who do I charge?Who do I charge?



• You need to identify the person you You need to identify the person you are charging.are charging.

• This is usually done by an This is usually done by an assessment roll search pertaining to assessment roll search pertaining to the address of the propertythe address of the property



• Sole proprietorship – individual must be Sole proprietorship – individual must be chargedcharged

• Partnership – individuals must be chargedPartnership – individuals must be charged

• Corporation – Business can be charged. Corporation – Business can be charged. Directors can be charged only if they Directors can be charged only if they “knowingly” concurred in the “knowingly” concurred in the contravention.contravention.



• A sole proprietorship or partnership A sole proprietorship or partnership may carry on business as “Ted’s may carry on business as “Ted’s Construction” but not be a corporate Construction” but not be a corporate entity. entity.

• You can charge as – “Ted Allen You can charge as – “Ted Allen carrying on business as Ted’s carrying on business as Ted’s Construction”Construction”



You will require proof that the person is in You will require proof that the person is in fact carrying on a business as suggested, fact carrying on a business as suggested, remember you have to prove everything remember you have to prove everything that is on the charging documentthat is on the charging document

Obtain a “Business Names Search”Obtain a “Business Names Search”


Director(s) of CorporationDirector(s) of Corporation• To charge the directors of a corporation To charge the directors of a corporation

see section 36(2) of the BCAsee section 36(2) of the BCA

• 36.36.(2) Every director or officer of a (2) Every director or officer of a corporation who knowingly concurs in corporation who knowingly concurs in the furnishing of false information, the the furnishing of false information, the failure to comply or the contravention failure to comply or the contravention under subsection (1) is guilty of an under subsection (1) is guilty of an offence. offence.


Director(s) of CorporationDirector(s) of Corporation• Regarding the charge of failing to Regarding the charge of failing to

comply with an OTC, the prosecution comply with an OTC, the prosecution must prove that the directors must prove that the directors “knowingly” failed to comply with an “knowingly” failed to comply with an order. order.

• Therefore the OTC must be sent to Therefore the OTC must be sent to the directors (usually at the same the directors (usually at the same time it gets sent to the corporation).time it gets sent to the corporation).


Director(s) of CorporationDirector(s) of Corporation• The court file must contain evidence that The court file must contain evidence that

the OTC was sent to the directors as per the OTC was sent to the directors as per the BCA (s. 27)the BCA (s. 27)

• 27. 27. (1) A notice or order required by (1) A notice or order required by this Act to be served may be served this Act to be served may be served personally or by registered mail sent to personally or by registered mail sent to the last known address of the person to the last known address of the person to whom notice is to be given or to that whom notice is to be given or to that person’s agent for service.person’s agent for service.

Evidence Required in the Court Evidence Required in the Court File-The purpose of all the File-The purpose of all the

documentsdocuments• Include a copy of the information Include a copy of the information

(charging document)(charging document)

• This can be used by your department This can be used by your department to ensure all the evidence is in the to ensure all the evidence is in the file and completefile and complete

• This can be used by the prosecutor This can be used by the prosecutor to ensure all the evidence is in the to ensure all the evidence is in the file and completefile and complete


documentsdocuments• Include a prosecution court brief;Include a prosecution court brief;

- Defendants name Defendants name

- Brief set of factsBrief set of facts

- Suggested fineSuggested fine

- List of documentation/evidence List of documentation/evidence found in the brieffound in the brief

- Court file number Court file number


documentsdocuments• Court brief includes;Court brief includes;

- Name of inspector/officer in charge Name of inspector/officer in charge

- Dates the inspector/officer is not Dates the inspector/officer is not available for courtavailable for court

- List of chargesList of charges

- Defendants name and addressDefendants name and address

- Address of offence locationAddress of offence location


documentsdocuments

• Court brief includes;Court brief includes;

- Witness information (name, address, Witness information (name, address, contact info)contact info)

- Fine justification (why should the fine Fine justification (why should the fine be so high?)be so high?)

Evidence Required in the Court Evidence Required in the Court File-The purpose of all the File-The purpose of all the documentsdocuments

• Assessment roll/deed/registrars abstract Assessment roll/deed/registrars abstract of title/corporate search/business of title/corporate search/business names search –”certified”names search –”certified”

• Required to prove who the Required to prove who the owner/person/business is that you owner/person/business is that you charged. A corporation search is also charged. A corporation search is also used to prove that the business exists.used to prove that the business exists.


documentsdocuments

• The purpose is to prove to the court The purpose is to prove to the court that you have charged the correct that you have charged the correct person/entity and that the person or person/entity and that the person or entity existsentity exists

Evidence Required in the Court Evidence Required in the Court File-the purpose of all the File-the purpose of all the

documentsdocuments

• OffenceOffence

• The prosecution is required to prove The prosecution is required to prove what the charge is and that the what the charge is and that the defendant did not comply with the defendant did not comply with the legislation legislation

• There may be several points in the There may be several points in the legislation that must be proved in legislation that must be proved in order to obtain a convictionorder to obtain a conviction


documentsdocuments• Offence (continued)Offence (continued)

• Copy of the section of the statute you are Copy of the section of the statute you are dealing withdealing with

- Assists the justice of the peaceAssists the justice of the peace

- Assists the prosecutorAssists the prosecutor

- ““Acts” do not have to be certified. See the Acts” do not have to be certified. See the Legislation ActLegislation Act , s. 13 – “Judicial notice shall , s. 13 – “Judicial notice shall be taken of the enactment and contents of be taken of the enactment and contents of an Act”an Act”


documentsdocuments

• Offence (continued) Offence (continued)

- Certified copy of the Property Certified copy of the Property Standards Bylaw (in the case of Standards Bylaw (in the case of prosecutions under this bylaw)prosecutions under this bylaw)


documentsdocuments

• Offence (continued)Offence (continued)

• Part of the evidence required can be Part of the evidence required can be your OTC or PS Order. The court may your OTC or PS Order. The court may want to determine what part of the want to determine what part of the order was not complied with. Ensure order was not complied with. Ensure a copy is in the filea copy is in the file


documentsdocuments

• Inspection date/date you witnessed Inspection date/date you witnessed the infraction (offence date)the infraction (offence date)

• Required to prove the day on which Required to prove the day on which the infraction took place the infraction took place


documentsdocuments

• LocationLocation

• Required to prove the place the Required to prove the place the infraction took place including the infraction took place including the municipalitymunicipality


documentsdocuments• Certified statement of the CBO under Certified statement of the CBO under

section 37(2) if any documents where sent section 37(2) if any documents where sent by registered mailby registered mail

- Proves that an order was issued, the date Proves that an order was issued, the date it was issued, and issued correctlyit was issued, and issued correctly

- Eliminates possible hearsay argument re Eliminates possible hearsay argument re post office documents and person post office documents and person testifying that they where responsible for testifying that they where responsible for sending the material by postsending the material by post


documentsdocuments• Copies of applications and drawingsCopies of applications and drawings

- Rules of disclosure require Rules of disclosure require municipality to produce/disclose municipality to produce/disclose “everything”“everything”

- Applications have names which can Applications have names which can provide greater weight to the provide greater weight to the evidence indicating the person evidence indicating the person responsible for the offenceresponsible for the offence


documentsdocuments

•PicturesPictures– Accurately describe what you sawAccurately describe what you saw

•NotesNotes– Computer generated acceptableComputer generated acceptable– It is the “weight” that the court will apply It is the “weight” that the court will apply

to your evidence concerning the quality of to your evidence concerning the quality of your notesyour notes

Document Certification-Who certifies Document Certification-Who certifies what? what can the CBO/municipal what? what can the CBO/municipal clerk certify?clerk certify?• Municipal ActMunicipal Act

• Admissibility of certified copiesAdmissibility of certified copies

• 447.6 (1) A copy of any record under the 447.6 (1) A copy of any record under the control of the clerk of the municipality control of the clerk of the municipality purporting to be certified by the clerk and purporting to be certified by the clerk and under the seal of the municipality may be filed under the seal of the municipality may be filed and used in any court or tribunal instead of the and used in any court or tribunal instead of the original and is admissible in evidence without original and is admissible in evidence without proof of the seal or of the signature or official proof of the seal or of the signature or official character of the person signing it, unless the character of the person signing it, unless the court or tribunal otherwise directs. 2006, c. 32, court or tribunal otherwise directs. 2006, c. 32, Sched. A, s. 184. Sched. A, s. 184.

Document Certification-Who Document Certification-Who certifies what? what can the certifies what? what can the CBO/municipal clerk certify?CBO/municipal clerk certify?

• In the case of a Property Standards In the case of a Property Standards bylaw, the bylaw is to be certified by bylaw, the bylaw is to be certified by the clerk (or deputy clerk).the clerk (or deputy clerk).

Document Certification-Who certifies Document Certification-Who certifies what? what can the CBO/municipal what? what can the CBO/municipal clerk certify?clerk certify?• Building Code ActBuilding Code Act

• Proof of directions, orders, etc.Proof of directions, orders, etc.

• 37. 37. (1) In any prosecution for an offence (1) In any prosecution for an offence under this Act, a copy of a direction or order under this Act, a copy of a direction or order purporting to have been made under this Act purporting to have been made under this Act or the regulations and purporting to have or the regulations and purporting to have been signed by the person authorized by this been signed by the person authorized by this Act to make the direction or order is, in the Act to make the direction or order is, in the absence of evidence to the contrary, proof of absence of evidence to the contrary, proof of the direction or order without proof of the the direction or order without proof of the signature or authority. 1992, c. 23, s. 37 (1).signature or authority. 1992, c. 23, s. 37 (1).

Document Certification-Who certifies Document Certification-Who certifies what? what can the CBO/municipal what? what can the CBO/municipal clerk certify?clerk certify?• Building Code ActBuilding Code Act

• 37.37.(2) A statement as to any matter of record (2) A statement as to any matter of record in an office of the chief building official or an in an office of the chief building official or an officer purporting to be certified by the chief officer purporting to be certified by the chief building official or the officer is, without proof building official or the officer is, without proof of the office or signature of the chief building of the office or signature of the chief building official or officer, receivable in evidence as official or officer, receivable in evidence as proof, in the absence of evidence to the proof, in the absence of evidence to the contrary, of the facts stated therein in any civil contrary, of the facts stated therein in any civil proceeding or proceeding under the proceeding or proceeding under the Provincial Provincial Offences ActOffences Act. 1997, c. 24, s. 224 (18).. 1997, c. 24, s. 224 (18).

Disclosure CopiesDisclosure Copies

• There should be three copies of There should be three copies of “everything” in the court brief“everything” in the court brief

• One for the defendantOne for the defendant

• One for the courtOne for the court

• One for the prosecutorOne for the prosecutor


• Disclosure can help resolve the Disclosure can help resolve the mattermatter

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


• Stinchcombe – Supreme Court of CanadaStinchcombe – Supreme Court of Canada

- Crown has a legal duty to disclose all Crown has a legal duty to disclose all relevant information to the defenserelevant information to the defense

- The fruits of the investigation are not the The fruits of the investigation are not the property of the Crown for use in securing property of the Crown for use in securing a conviction but the property of the a conviction but the property of the public to be used to ensure that justice is public to be used to ensure that justice is donedone


• Stinchcombe – Supreme Court of CanadaStinchcombe – Supreme Court of Canada

- allall relevant information must be relevant information must be disclosed, both that which the Crown disclosed, both that which the Crown intends to introduce into evidence and intends to introduce into evidence and that which it does not, that which it does not, and whether the and whether the evidence is inculpatory or exculpatoryevidence is inculpatory or exculpatory

- the failure to disclose impaired the right the failure to disclose impaired the right to make full answer and defenseto make full answer and defense

Serving the Summons-do’s and Serving the Summons-do’s and don’tsdon’ts• Provincial Offences ActProvincial Offences Act

• Service s.39Service s.39

• (2) A summons shall be served and the (2) A summons shall be served and the service shall be proved in the same service shall be proved in the same manner as a summons under section 26manner as a summons under section 26

• (2.1) Despite subsection (2), a (2.1) Despite subsection (2), a summons served under this section may summons served under this section may be served by a person other than a be served by a person other than a provincial offences officerprovincial offences officer

Serving the Summons-do’s and Serving the Summons-do’s and don’tsdon’ts

• Section 26 of the Section 26 of the Provincial Offences Provincial Offences Act Act sets out the rules for serving a sets out the rules for serving a summons.summons.

• Personally, last known place of abode, Personally, last known place of abode, municipal corporation, corporation, municipal corporation, corporation, registered mail to corporation, registered mail to corporation, registered mail to defendant (only if registered mail to defendant (only if defendant lives outside of Ontario).defendant lives outside of Ontario).


• London vs Erdesz [2009] O.J. No. London vs Erdesz [2009] O.J. No. 10081008

- Suggests that the object of service is Suggests that the object of service is to give notice to the person so that to give notice to the person so that person is aware of the complaint and person is aware of the complaint and is made aware of the opportunity to is made aware of the opportunity to answer the complaint and resist the answer the complaint and resist the remedy sought against him.remedy sought against him.


• London vs Erdesz [2009] O.J. No. London vs Erdesz [2009] O.J. No. 10081008

- Personal service has been said to be - Personal service has been said to be service made by delivering the service made by delivering the process into the defendant’s hands process into the defendant’s hands or by seeing him and bringing the or by seeing him and bringing the process to his notice.process to his notice.


• AffidavitAffidavit

- Used to prove the summons was served Used to prove the summons was served and the manner in which it was servedand the manner in which it was served

- Important to ensure you fill it out Important to ensure you fill it out correctlycorrectly

- Justice of the peace will determine if Justice of the peace will determine if the proceeding/exparte trial can the proceeding/exparte trial can continue based on the affidavitcontinue based on the affidavit


• AffidavitAffidavit

- A justice of the peace or a A justice of the peace or a commissioner may sign your affidavitcommissioner may sign your affidavit

- You sign in front of the justice of the You sign in front of the justice of the peace or commissioner “swearing” peace or commissioner “swearing” that you served the affidavit in the that you served the affidavit in the manner indicated on the documentmanner indicated on the document

Thank YouThank You

Questions?Questions?

court files evidence required ontario building officials association prepared by ted allen...

Documents

charging documentensure

charging documentin

charging documentlook

charging documentthe

charging documentthe

filethe charging documentyou

offence date

different date