What is the test for a motion to quash a charge of sexual assault brought by a defendant who failed to attend a sentencing hearing?

Ontario, Canada


The following excerpt is from R. ex rel. City of Toronto v. Arcos-Nava, 2012 ONCJ 773 (CanLII):

[5] As in City of London v. Young, resolution of this appeal turns on the issue of statutory interpretation. For ease of reference, I will set out the relevant statutory provisions: 9. (1) A defendant is deemed to not wish to dispute the charge where, (a) at least 15 days have elapsed after the defendant was served with the offence notice and the defendant did not give notice of intention to appear under section 5, did not request a meeting with the prosecutor in accordance with section 5.1 and did not plead guilty under section 7 or 8; (b) the defendant requested a meeting with the prosecutor in accordance with section 5.1 but did not attend the scheduled meeting with the prosecutor; or (c) the defendant reached an agreement with the prosecutor under subsection 5.1 (7) but did not appear at a sentencing hearing with a justice under subsection 5.1 (8). (2) Where a defendant is deemed to not wish to dispute the charge, a justice shall examine the certificate of offence and shall, (a) where the certificate of offence is complete and regular on its face, 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, quash the proceeding. 9.1 (1) A defendant is deemed to not wish to dispute the charge where the defendant has been issued a notice of the time and place of trial and fails to appear at the time and place appointed for the trial. (2) If subsection (1) applies, section 54 does not apply, and a justice shall examine the certificate of offence and shall without a hearing enter a conviction in the defendant’s absence and impose the set fine for the offence if the certificate is complete and regular on its face. (3) The justice shall quash the proceeding if he or she is not able to enter a conviction.

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