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Her Majesty the Queen v. R.R. * [Indexed as: R. v. R. (R.)]
90 O.R. (3d) 641
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Court of Appeal for Ontario, Doherty, Rouleau and Watt JJ.A.
June 23, 2008
* Vous trouverez la traduction fran‡ais … la p. 654, post.
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Criminal law — Appeals — Summary conviction proceedings — Leave to appeal to Court of Appeal — Leave to appeal to Court of Appeal in summary conviction proceedings not to be granted merely because question of law alone is raised — Second appeal in summary conviction proceedings should be exceptional
— Leave should be limited to cases in which applicant can
demonstrate some exceptional circumstance justifying second appeal — Leave may be granted if issues have significance to administration of justice beyond particular case or if merits of appeal appear to be very strong.
The accused was charged with a number of offences arising out of the breakup of his common-law relationship. The Crown elected to proceed summarily. The accused was convicted of sexual assault, assault, threatening, and criminal harassment. On appeal to the summary conviction appeal court, counsel for the accused argued that the Crown’s cross-examination of the accused was so improper as to result in a miscarriage of justice and that the trial judge failed to address significant inconsistencies and flaws in the complainant’s testimony. The summary appeal court judge addressed and rejected those arguments. The accused applied for leave to appeal and appealed to the Court of Appeal, raising the same grounds of appeal.
Held, the appeal should be dismissed.
A second appeal in summary conviction proceedings should be the exception, not the rule. Leave to appeal should not be granted merely because an issue of law alone is raised. Access to the Court of Appeal for a second appeal should be limited to those cases in which the applicant can demonstrate some exceptional circumstance justifying a further appeal. There is no single litmus test that can identify all cases in which leave should be granted. There are, however, two key variables
— the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, although the grounds must be at least arguable. On the other hand, where the merits of the appeal are very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty.
This was not a case in which leave to appeal should be granted according to those criteria. However, the court heard full argument on the merits of the appeal and found that it failed on the merits. In the circumstances, it was appropriate to grant leave but dismiss the appeal.
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Cases referred to
R. v. Breeden, [2008] B.C.J. No. 582, 2008 BCCA 145; R. v.
Chaluk, [1998] A.J. No. 862, 1998 ABCA 253, 237 A.R. 366; R.
v. Gardiner, [1982] 2 S.C.R. 368, [1982] S.C.J. No. 71, 140
D.L.R. (3d) 612, 43 N.R. 361, J.E. 82-824, 68 C.C.C. (2d)
477, 30 C.R. (3d) 289, 8 W.C.B. 128; [page642] R. v. Hunt,
[1998] B.C.J. No. 1347, 108 B.C.A.C. 218, 38 W.C.B. (2d)
385 (C.A.); R. v. Joehnck, [2006] S.J. No. 366, 2006 SKCA 68,
70 W.C.B. (2d) 905; R. v. Laba, [1994] 3 S.C.R. 965, [1994]
S.C.J. No. 106, 120 D.L.R. (4th) 175, 174 N.R. 321, J.E.
95-27, 94 C.C.C. (3d) 385, 34 C.R. (4th) 360, 25 C.R.R. (2d)
92, 25 W.C.B. (2d) 300; R. v. Martin, [2004] B.C.J. No. 2191,
2004 BCCA 548, 66 W.C.B. (2d) 368; R. v. Open Sky Inc.,
[1996] M.J. No. 208, 110 Man. R. (2d) 153, 30 W.C.B. (2d)
429 (C.A.); R. v. Toor, [2001] A.J. No. 401, 2001 ABCA 88,
277 A.R. 350, 155 C.C.C. (3d) 345, 49 W.C.B. (2d) 360; R. v.
Watson, [2007] P.E.I.J. No. 41, 2007 PESCAD 18, 269 Nfld.
& P.E.I.R. 126, 31 C.E.L.R. (3d) 171, 50 C.R. (6th) 340, 75
W.C.B. (2d) 89; R. v. Zamfirov, [1996] O.J. No. 2876, 92
O.A.C. 317 (C.A.) Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, Parts XXI, XXVII, ss. 691 [as am.], 692 [as am.], 693, 813 [as am.], 822 [as am.],
830 [as am.], 839(1)
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(a) [as am.]
Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 131(2), 139(2)
Supreme Court Act, R.S.C. 1985, c. S-26, s. 40 [as am.] Rules and regulations referred to
Ontario Court of Justice Criminal Proceedings Rules, S.I./92-99, Rule 40
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.03.1(1) [as am.]
Authorities referred to
Crane, Brian A., and Henry S. Brown, Supreme Court of Canada Practice 2008 (Toronto, Ont.: Carswell, 2008)
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APPEAL from the judgment of Eberhard J., [2007] O.J. No.
1121, 73 W.C.B. (2d) 406 (S.C.J.), dismissing an appeal from conviction.
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The judgement of the court was delivered by DOHERTY J.A.:–
I. Introduction
[1] The Criminal Code, R.S.C. 1985, c. C-46 draws a distinction between appeals in indictable proceedings, which are governed by Part XXI, and applications for leave to appeal and, if leave is granted, appeals in summary conviction proceedings, which are governed by Part XXVII. In indictable matters, this court provides the first level of appellate review, and this court’s jurisdiction is very broad. In summary conviction appeal proceedings, the Superior Court of Justice is the primary appellate court, and it has the same broad jurisdiction. Access to this court from these decisions of the Superior Court is restricted to questions of law alone and only if leave to appeal is granted.
[2] Despite the very different statutory provisions governing indictable and summary proceedings, the vast majority of summary proceeding matters brought to this court proceed as if they [page643] were appeals as of right in indictable proceeding matters. By that I mean, the court does not address the question of leave to appeal as a discrete preliminary issue; rather, it simply lists summary conviction matters for oral argument before a panel of the court. The application for leave to appeal and the appeal itself are addressed in the same proceeding. In oral argument, leave to appeal is sometimes not even mentioned (much less argued). Instead, counsel and the court generally proceed directly to the merits of the grounds advanced on behalf of the applicant/appellant. Often the argument focuses on alleged errors at trial and makes only passing reference to the reasons of the summary conviction appeal court. This court’s disposition is almost always based on the merits of the appeal and seldom alludes to the leave requirement.
[3] In this proceeding, Crown counsel raised the question of leave to appeal as a separate issue and argued that leave should not be granted. At the outset of oral argument, the court heard submissions on this issue from both counsel. It reserved on the question of leave and heard arguments on the merits of the appeal. At the conclusion of those arguments, the court was satisfied, despite Ms. Presser’s able argument, that,
were this a proper case for leave to appeal, the appeal must fail on the merits. The two arguments put before this court were virtually the same as those raised before the summary conviction appeal court judge. This court could see no error in the careful and thorough analysis of Eberhard J.
[4] Having decided that the appeal must fail essentially for the reasons given by Eberhard J., this court would routinely dispose of the appeal with a brief endorsement. Instead, the court dismissed the appeal with reasons to follow. While I briefly address the specifics of this appeal, the primary intent of these reasons is to set out the basis upon which leave to appeal should be decided and to raise concerns that the present process should perhaps be modified to bring it in line with the role assigned to this court in summary proceedings.
II. History of the Matter
[5] The history of this case is similar to many of the summary conviction appeals heard by this court. I will review the history briefly as it helps explains why this court should consider changing its approach to applications for leave to appeal in summary conviction proceedings. In November 2003,
R.R. (sometimes referred to as the applicant) was charged with seven offences, all arising out of the breakup of his common- law relationship with the complainant, J.R. The offences allegedly occurred [page644] between September and November 2003. R.R. made his first court appearance on the charges on November 10, 2003. He was released on bail two days later.
[6] The Crown elected to proceed summarily on all charges. In September 2004, some ten months after R.R.’s arrest, the trial began in the Ontario Court of Justice. Evidence was heard periodically over some four days. On April 22, 2005, the trial judge convicted R.R. on four of the charges:
— sexual assault;
— assault;
— threatening; and
— criminal harassment.
[7] R.R. was not sentenced until six months later in November 2005. He received sentences totalling six months (plus credit for his brief pre-trial incarceration) to be followed by two years’ probation.
[8] R.R. immediately appealed to the Superior Court of Justice. The appeal was argued over two days in February and March 2007. Eberhard J. dismissed the appeal in reasons dated March 27, 2007. R.R., who had been on bail, surrendered into custody shortly after the reasons were released.
[9] R.R. commenced an application for leave to appeal to this court in April 2007. He secured his release on bail pending this court’s disposition. In keeping with the afore described practice of this court, the application for leave to appeal and the appeal were scheduled and heard together by a panel of this court on May 7, 2008 — four and a half years after R.R. was arrested. Clearly, the proceeding has been summary in name only.
III. The Nature of this Appeal
[10] The applicant and J.R. testified at trial. They gave very different versions of the relevant events. The trial judge ultimately accepted most of J.R.’s evidence. He was satisfied on the totality of the evidence that the Crown had proved its case with respect to four allegations. R.R. was convicted accordingly. It is unnecessary in these reasons to detail those allegations.
[11] In the Superior Court, counsel for R.R. advanced two grounds of appeal. He submitted that Crown counsel’s cross- examination of R.R. was so improper as to result in a miscarriage of justice. Counsel also argued that the trial judge failed to [page645] address significant inconsistencies and flaws in the complainant’s testimony and that this failure led him to improperly accept her evidence.
[12] Eberhard J. addressed these arguments in clear and cogent reasons. After a detailed examination of the Crown’s cross-examination of R.R., she held, at para. 24:
In considering not only fairness but the appearance of fairness, a reasonable observer would not have had a concern that [R.R.] was unfairly treated though a few questions and comments by Crown counsel may have briefly departed from ideal propriety.
[13] Eberhard J. also considered, at length, the second argument advanced on R.R.’s behalf. She ultimately held, at para. 40:
Upon examination of the evidence of internal inconsistency that the appellant suggests should have given rise to a reasonable doubt, I have found that such inconsistency was minor, and could only arise as an internal inconsistency upon the contradictory evidence of the appellant which was rejected by the trial judge. The pathway provided by the trial judge in his reasons was proportionate to the thin material through which it had to cut.
[14] In this court, counsel for R.R. renewed these arguments, which had failed in the Superior Court. I quote from counsel’s overview of her position as set out in her factum:
First, Crown counsel’s cross-examination of the appellant was impermissible in law (in four different ways) and highly prejudicial. The impermissible cross-examination (which pervaded the trial) compelled a new trial. Second, there were serious internal inconsistencies or flaws in the testimony of the complainant. The trial judge’s failure to direct himself to those inconsistencies or flaws prevented meaningful appellate review and constituted reversible error. As discussed below, the Summary Conviction Appeal Court’s reasons disclosed legal error in addressing these grounds of appeal.
[15] Counsel’s arguments came down to the application of well-settled legal principles to the specific circumstances revealed by this trial record. Counsel essentially asked this court to redo the analysis undertaken at the first level of appeal and come to a different conclusion. For example, in her argument alleging improper cross-examination by the Crown,
counsel urged this court to take a different view of the number
and seriousness of the alleged improprieties in the Crown’s cross-examination than Eberhard J. took. In characterizing counsel’s submissions as I do, I intend no criticism. These are the kinds of submissions that this court routinely considers, and sometimes accepts, on appeals in summary conviction proceedings.
IV. First and Second Level Appeals in Criminal Proceedings
[16] Appeals are an integral part of the criminal justice system in Canada. They protect against wrongful convictions and [page646] enhance the fairness of the process. The benefits afforded by the appellate process, however, come at some cost. Appeals extend the life of criminal proceedings, thereby exacerbating the uncertainty and anxiety the process causes to individuals caught up in it. Most appeals fail and ultimately delay the imposition of the appropriate order made at first instance. Prolonged appellate proceedings detract from the timeliness and finality of criminal verdicts. Dispositions in criminal matters made in the detached, rarefied climate of the appeal court, years after the relevant events, by a court with virtually no connection to the place or people affected by the allegation are not the ideal way to resolve criminal cases.
[17] The history of this matter provides a good example of the negative effect brought about by a prolonged appellate process. R.R. was convicted and sentenced in November 2005. When this matter came before this court in early May 2008, R.R. had yet to serve a sentence imposed two and a half years ago. He was still uncertain as to whether he had been properly convicted and when, if ever, he would serve his sentence. Even if successful, R.R. faced a retrial on criminal allegations that occurred more than five years ago. The complainant, who has no say in the appellate process, has lived with the same uncertainty. This court’s practice of treating summary proceeding matters as if they were appeals as of right on the
merits may well contribute to the unsatisfactory length of the post-trial phase of some of these summary proceedings.
[18] Canadian criminal law policy balances the benefits of appellate review and the negative effects inherent in that process by distinguishing between first and second levels of appeal in criminal proceedings. Access to the former is virtually carte blanche. Access to the latter is narrowly restricted. [See Note 1 below]
[19] The Criminal Code provides a virtually unfettered right of appeal from trial verdicts in all criminal proceedings. In indictable matters, that first level appeal is to this court. In summary conviction proceedings, the first level appeal is to the Superior Court.
[20] In indictable proceedings, access to the second level of appeal, the Supreme Court of Canada, is very limited. Most appeals to the Supreme Court of Canada in indictable proceedings [page647] are governed by ss. 691 -93 of the Criminal Code. Except in very limited circumstances (where a judge of the Court of Appeal has dissented on a question of law), leave to appeal must be obtained from the Supreme Court. As well, that court’s jurisdiction is limited to questions of law. The Criminal Code does not set out the criteria governing the granting of leave to appeal. In practice, the court grants leave only where the proposed questions of law have a significant potential impact on the administration of justice beyond the specifics of the case. As stated in Brian A. Crane and Henry S. Brown, Supreme Court of Canada Practice 2008 (Toronto: Carswell, 2008), at 22:
There are no statutory criteria for leave in Criminal Code cases. However, leave is likely to be granted if there is a significant question of law which affects the administration of justice or in relation to which there is conflict between provincial courts of appeal. On the other hand, the Court is not likely to grant leave in a case which requires an assessment of the evidence or the wording of a charge to the jury.
[21] Section 40 of the Supreme Court Act, R.S.C. 1985, c. S-
26 also provides an avenue of appeal to the Supreme Court of Canada from some decisions of this court in indictable proceedings. The section applies to decisions that do not directly attack the conviction or acquittal: e.g., see R. v. Laba, [1994] 3 S.C.R. 965, [1994] S.C.J. No. 106 and R. v. Gardiner, [1982] 2 S.C.R. 368, [1982] S.C.J. No. 71. Like the provision of the Criminal Code, leave to appeal is required under s. 40. Leave may, however, be granted on questions of mixed fact and law, as well as on questions of law alone. The language of s. 40 imposes a high threshold for the granting of leave to appeal. The Supreme Court may grant leave to appeal pursuant to s. 40 only if the issue is one of “public
importance” or “of such a nature or significance” as to warrant consideration by the court.
[22] In summary conviction proceedings, at the first level of appeal in the Superior Court, the appellant may raise any ground of appeal as of right: Criminal Code, s. 813. [See Note 2 below] Appeals are on the trial record, but the Superior Court judge has the same broad powers that this court has in indictable matters, including the power to receive fresh evidence in appropriate circumstances: Criminal Code, s. 822. Under the governing Ontario Court of Justice Criminal Proceedings Rules, S.I./92-99, Rule 40 fixed by the Superior Court, the procedure for the perfection and [page648] hearing of summary conviction appeals parallels closely the procedure followed in this court in indictable matters. Just as in this court, counsel are responsible for ordering and providing the necessary trial transcripts, preparing the requisite appeal books and filing facta before oral argument. A Superior Court judge sitting on appeal in summary conviction proceedings can conduct a thorough review of all aspects of the trial. If an appellant demonstrates prejudicial error, the Superior Court judge is cloaked with all the remedial powers necessary to correct that error.
[23] The second level of appeal in summary conviction proceedings (to this court) is found in s. 839(1) of the Criminal Code. The section reads in part:
839(1)… an appeal to the court of appeal as defined in section 673 may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone, against
(a) a decision of a court in respect of an appeal under section 822[.]
(Emphasis added)
[24] In addressing the scope of appellate review contemplated by s. 839(1), three aspects of that provision deserve emphasis. First, the appeal is not a second appeal from the trial decision; rather, it is an appeal from the decision of the Superior Court judge. Second, the appeal is limited to questions of law alone. Like the Supreme Court of Canada on indictable appeals brought under the Criminal Code provisions, this court cannot revisit factual findings or correct errors of mixed fact and law. Third, even if the applicant raises a question of law arising out of the decision of the Superior Court judge, the applicant must still convince this court (or a judge of this court) that leave to appeal should be granted on that question of law. Not all questions of law merit a second appeal.
[25] These three features of s. 839, all of which are found in the corresponding section dealing with leave to appeal to the Supreme Court of Canada in indictable matters, make it clear to me that a second appeal in summary conviction
proceedings should be the exception and not the rule.
[26] There is no sensible criminal law policy that would justify more extensive rights of appeal in relatively minor criminal matters than those available in the most serious criminal cases. As the relevant provisions of the Criminal Code indicate, this court’s role in the appellate process in summary conviction proceedings is similar to the role played by the Supreme Court of Canada in appellate proceedings in indictable matters. Both the parallel statutory provisions and policy dictate that this court should, in [page649] exercising its discretion to grant a second appeal in a summary conviction proceeding, adopt a similar approach to that taken by the Supreme Court of Canada on applications for leave to appeal in indictable offences. Furthermore, summary proceedings are intended to be expeditious. Routinely granting a second full appeal on the merits from the trial decision hardly furthers that goal.
[27] The requirement that the applicant obtain leave to appeal in s. 839 provides the mechanism whereby this court can control its summary conviction appeal docket. Access to this court for a second appeal should be limited to those cases in which the applicant can demonstrate some exceptional circumstance justifying a further appeal.
V. When Should Leave to Appeal be Granted in Summary Conviction
Proceedings?
[28] Section 839 appears to give the Court of Appeal (or a judge of this court) an unfettered discretion as to when leave to appeal should be granted. Ultimately, that discretion must be exercised in the interests of justice: R. v. Martin, [2004]
B.C.J. No. 2191, 2004 BCCA 548 (C.A.) (Southin J.A. in chambers). There is no single verbal formulation that can capture all of the cases in which it may be ultimately in the interests of justice to grant leave to appeal. That said, it is necessary to articulate the factors which should guide the exercise of the discretion provided in s. 839.
[29] This court has seldom addressed the question of leave to appeal pursuant to s. 839. That issue occasionally arises on motions where granting leave to appeal is a condition precedent to granting the relief sought on the motion, as for example where an applicant/appellant seeks a stay of a driving prohibition pending his application under s. 839. In R. v. Zamfirov, [1996] O.J. No. 2876, 92 O.A.C. 317, Carthy J.A. was faced with such a motion. In refusing to grant leave to appeal under s. 839, he said, at paras. 6-7:
[T]he applicant presents fact oriented questions of law which have no general application and, while the grounds are not frivolous, it is my opinion that the chances of success in setting aside the verdicts is very modest.
This is the type of case that should not be treated as one deserving a third hearing.
[30] The two factors identified by Carthy J.A., the significance, beyond the specific case, of the proposed question of law to the administration of justice in the province, and the strength of the appeal have featured prominently in other provincial appellate [page650] court decisions that have considered applications under s. 839: see R. v. Hunt, [1998] B.C.J. No. 1347, 108 B.C.A.C. 218 (C.A.) (Hall J.A. in chambers); R. v. Breeden, [2008] B.C.J. No. 582, 2008 BCCA 145 (Lowry J.A. in chambers); R. v. Open Sky Inc., [1996] M.J. No. 208, 110 Man. R. (2d) 153 (C.A.) (Lyon
J.A. in chambers); R. v. Watson, [2007] P.E.I.J. No. 41, 50
C.R. (6th) 340 (S.C. (A.D.)); and R. v. Joehnck, [2006] S.J. No. 366, 2006 SKCA 68.
[31] I think these authorities correctly focus on the broader potential significance of the question of law on which leave is sought and the apparent merits (or lack thereof) of the proposed appeal as central questions on the application for leave to appeal. I also find helpful the observation of Russell J.A. in R. v. Chaluk, [1998] A.J. No. 862, 237 A.R. 366 (C.A.), at para. 7: [See Note 3 below]
Section 839 of the Criminal Code confines leave to issues of law alone. Courts have further confined leave to matters of public importance. This public aspect underscores both the insufficiency of mere error, as well as the need to demonstrate the potential for significant impact on the administration of justice. Well settled principles of law do not present that sort of further potential. But it is also of public importance that injustices flowing from clear errors of law not be condoned.
(Citation omitted; emphasis added)
[32] Russell J.A. makes the important point that the power to grant leave to appeal in summary conviction proceedings is broad enough to reach two quite different categories of cases. Leave to appeal may be granted where the merits of the proposed question of law are arguable, even if not strong, and the proposed question of law has significance to the administration of justice beyond the four corners of the case. Leave to appeal may also be granted where there appears to be a “clear” error even if it cannot be said that the error has significance to the administration of justice beyond the specific case.
[33] The public interest in granting leave to appeal in the first category of case described above is obvious. It is this court’s function, subject of course to decisions of the Supreme Court of Canada, to settle questions of law of general application. In doing so, the court performs a valuable function for the administration of justice beyond its error correcting function in the individual case.
[34] The value to the administration of justice in granting leave to appeal in the second category of case described above is also [page651] clear. Summary proceedings can result in criminal convictions that carry strong social stigma and serious penalties, including significant incarceration. The interests of justice require that a person who stands convicted of a serious criminal offence and has perhaps lost his or her liberty should have access to this court to review the merits of that conviction if he or she can show a strong likelihood that the conviction was sustained at the first level of appeal because of an error in law.
[35] The facts of this case can be used to demonstrate the operation of the two categories of appeals I have referred to above. The questions of law raised by R.R. have no significance beyond this case. He relies on well-settled legal principles and contends that they were improperly applied in the specific circumstances of this case. Consequently, while the questions of law raised by R.R. are arguable, he could not bring himself within the first category of case in which leave to appeal would be appropriate.
[36] Turning to the second category of case, R.R. has been convicted of serious criminal offences that carry a very real stigma. He also faces a six-month jail sentence. I have no doubt that if he were able to make out a strong case that Eberhard J. had made a reversible error in law, this would be an appropriate case to grant leave even though the resolution of the issues raised on the appeal would have no significance beyond this case. The arguments advanced on behalf of R.R., while raising arguable issues, do not, in my view, give strong reason to think that Eberhard J. may have fallen into reversible error of law.
[37] In summary, leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify all cases in which leave should be granted. There are, however, two key variables — the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable. On the other hand, where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty.
[38] Counsel should separately address the question of leave in their facta and, if necessary, in oral argument. The specific question or questions of law on which leave is sought
should be clearly [page652] set out. The factors said to justify the granting of leave should also be clearly articulated. The respondent’s written material should also address separately the question of leave as a preliminary issue. It is also important that the leave application focus on the alleged errors made by the Superior Court judge. To properly fix the focus of the leave application, the material filed in this court should include the notice of appeal and the facta filed in the Superior Court. Generally speaking, this court should not entertain legal arguments that were not advanced at the first level of appeal.
VI. An Afterword: Should this Court Change its Practice in Summary Conviction Proceedings?
[39] As indicated above, this court currently lists summary conviction matters to be heard by a panel of the court in the normal course. Applications for leave to appeal and the merits of the appeal are addressed at the same time in a single oral argument. In practice, the requirement of obtaining leave to appeal is all but ignored except in those cases where some preliminary ancillary relief is sought. In those cases, leave to appeal must be granted by a judge in chambers before he or she can grant the ancillary relief requested.
[40] It is, of course, not for a panel of this court in reasons for judgment relating to a single appeal to change the practice of the court. The comments that follow are observational only.
[41] Neither the number of applications brought in summary conviction matters nor the overall workload of this court in criminal proceedings warrant any change in the court’s current practice. [See Note 4 below] I think it is inevitable, however, that if the application for leave to appeal and the merits of the appeal are heard together before a panel, the requirement of leave will fall into desuetude. It is almost impossible to avoid the temptation of proceeding directly to the merits.
[42] Proceeding as if there was a right of appeal to this court on the merits in summary proceedings flies in the face of the Criminal Code. It will also, in at least some cases, unnecessarily prolong what should be expeditious proceedings. [See Note 5 below] Ignoring [page653] the leave requirement also gives individuals with financial resources a real advantage. Legal Aid funding for summary proceedings in this court is very limited; therefore, persons who can fund their own appeals have a real advantage under the present regime in that they get two full appeals. Finally, treating all summary conviction matters as appeals on the merits minimizes the significance and value of the role played by the Superior Court in the summary proceeding appellate process. Routinely treating appeals in summary conviction proceedings as if they were appeals as of right from the trial decision undervalues the review carried out by Superior Court judges.
[43] The leave requirement in s. 839 can perform its proper function only if it is addressed separately from the ultimate merits of the appeal. A separate preliminary consideration of the question of leave should also quickly eliminate those cases from the system that do not warrant leave to appeal. In my experience, most summary conviction matters brought to this court should fail at the leave to appeal stage.
[44] If the court were to separate the application for leave to appeal from the hearing of the merits of the appeal, then different procedures could be adopted to reflect that bifurcation. The practice of this court on applications for leave to appeal in civil matters from the Divisional Court pursuant to s. 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 is worth considering. Pursuant to rule 61.03.1(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, motions for leave to appeal to this court in civil matters are dealt with in writing without oral argument or the attendance of the parties unless the court orders otherwise. The rule sets out a detailed timetable for the filing of the necessary material. That timetable aims to have the material in the hands of the panel who will decide the question of leave within 90 days of the decision from which leave is sought. Leave requests are quickly decided by a panel once the material is delivered to the panel. No reasons are given. If leave to appeal is refused (the result in most motions in civil matters), then the
matter comes to an end within about four months of the motion being launched in this court.
[45] While one must be concerned about any increased costs that may flow from separating the leave application from the hearing of the ultimate merits, the potential for additional costs would, of course, apply only to those relatively few cases in which leave to appeal is granted. Presumably, adopting a practice like that followed in civil applications for leave to appeal would reduce the costs in those cases where leave is not granted. As well, in those cases where leave to appeal is [page654] granted, cost increases could be minimized by
listing those appeals for hearing very quickly after leave is granted. This would substantially reduce, if not avoid, the added costs associated with double preparation.
VII. Conclusion
[46] Although this is not a case in which leave to appeal should be granted on the standards set out in these reasons, the court heard full arguments on the merits of the appeal and indicated after oral argument that the appeal failed on the merits. In those circumstances, I think the appropriate order is to grant leave and dismiss the appeal.
Appeal dismissed.
Notes
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Note 1: A similar policy is reflected in the Provincial Offences Act, R.S.O. 1990, c. P.33, which provides very broad first level rights of appeal in quasi-criminal matters. Further appeals to this court from the first level of appeal are with leave only and leave may be granted only in very limited circumstances: see s. 131(2) and s. 139(2).
Note 2: There is a second right of appeal from the trial decision to the Superior Court in summary proceedings set out in
s. 830. This is similar to the old “stated case” procedure and provides for a narrower right of appeal than is found in s. 813. I do not propose to address this right of appeal any further.
Note 3: The comments of Russell J.A. were adopted in R. v.
Toor, [2001] A.J. No. 401, 155 C.C.C. (3d) 345 (C.A.) (Paperny
J.A. in chambers).
Note 4: Summary conviction appeals to this court dropped drastically from 164 in 1992 to 89 in 1993. Since then, the numbers have remained relatively stable between 60 and 85 a year, with the exception of 2001 when only 43 summary conviction appeals were filed.
Note 5: This case was in this court for about 13 months before it was heard. As of May 15, 2008, there were 106 summary conviction matters outstanding in this court. Forty-seven were over a year old.
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