Her Majesty the Queen v. A.E.

[Indexed as: R. v. E. (A.)]

Ontario Reports

Court of Appeal for Ontario,

Lauwers J.A. (in Chambers)

November 21, 2013

118 O.R. (3d) 98 | 2013 ONCA 713

Case Summary

Criminal law — Provincial offences — Appeals — Applicant facing very significant fines as result of four convictions for driving without insurance — Applicant bringing unsuccessful motions in provincial offences appeal court for extension of time in which to appeal — Applicant applying to Court of Appeal for extension of time in which to appeal and for leave to appeal — Conflicting judgments from single judges hearing applications regarding whether court having jurisdiction to grant leave to appeal if extension of time to appeal denied — Under unusual facts of this case application granted — Applicant suffering from serious mental illness of which lower courts were unaware — Applicant's ability to pay fines being questionable — Provincial judge arguably not taking appropriate factors into account in determining whether to extend time in which to appeal.

The applicant faced fines totalling over $20,000 as a result of four convictions for driving without insurance. He moved unsuccessfully in provincial offences appeal court for an extension of time in which to appeal. He applied to the Court of Appeal for an extension of time and for leave to appeal.

Held, the application should be granted. [page99 ]

There are conflicting decisions of single judges of this court regarding whether there is jurisdiction to grant leave to appeal from a denial of an extension of time. The panel hearing the appeal may wish to consider the jurisdictional issue but given the particular facts of this case, an extension of time to file an application and leave to appeal is granted.

There was an important public interest in this case, and there was an arguable issue that related to the due administration of justice. The applicant apparently suffered from a serious mental illness of which the lower court was unaware. It was questionable whether he had the realistic ability to ever pay the fines, which total over $20,000. It was in the public interest to determine whether, in the particular circumstances of any individual defendant, some accommodation should be made for significant personal disabilities. The appeal proceedings in the provincial offences appeal court were problematic, and it was arguable that the provincial judge did not take the appropriate factors into account in determining whether to extend time in which to appeal under s. 85 of the Provincial Offences Act, R.S.O. 1990, c. P-33.

R. v. Monrad, [2012] O.J. No. 398, 2012 CarswellOnt 1129 (C.J.), consd

Other cases referred to

R. v. Belanger, [2006] O.J. No. 3453 (C.A.); R. v. Borges (2011), 107 O.R. (3d) 377, [2011] O.J. No. 4278, 2011 ONCA 621, 285 O.A.C. 173, 25 M.V.R. (6th) 42, 281 C.C.C. (3d) 231, 98 W.C.B. (2d) 1; R. v. Melaku (2011), 2011 99905 (ON CA), 106 O.R. (3d) 481, [2011] O.J. No. 3835, 20 M.V.R. (6th) 22, 284 C.C.C. (3d) 528, 100 W.C.B. (2d) 128 (C.A.); R. v. Opoku, [2012] O.J. No. 147, 2012 ONCA 22; R. v. Skolnick, 1982 54 (SCC), [1982] 2 S.C.R. 47, [1982] S.C.J. No. 60, 138 D.L.R. (3d) 193, 42 N.R. 460, 68 C.C.C. (2d) 385, 29 C.R. (3d) 143, 16 M.V.R. 35; R. v. Valente (1982), 1982 2044 (ON CA), 40 O.R. (2d) 535 (C.A.)

Statutes referred to

Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 [as am.], s. 2(1)(a), (3) [as am.]

Provincial Offences Act, R.S.O. 1990, c. P.33 [as am.], Part III [as am.], ss. 59(2), 60.1 [as am.], 85 [as am.], 131

Rules and regulations referred to

R.R.O. 1990, Reg. 945 (Provincial Offences Act) [as am.]

Victim Fine Surcharges, O. Reg. 161/00

APPLICATION for an extension of time in which to appeal and for leave to appeal.

Christine Bartlett-Hughes, for respondent.

A.E., acting in person.

[1] Endorsement of LAUWERS J.A. (in Chambers): — The applicant comes before this court with four convictions for driving motor vehicles without insurance, contrary to the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25. He applies for an extension of time in which to appeal, and for leave to appeal in this court under the Provincial Offences Act, R.S.O. 1990, c. P.33. [page100]

[2] The materials before this court show that the applicant apparently has suffered from, but is now being treated for, a serious mental illness. This was not known by the lower courts. To protect his personal privacy, I order that he not be identified by name and that any publication of the details in this matter be restricted so as not to identify him.

[3] The applicant's convictions for operating motor vehicles without insurance resulted in very significant fines. These fines, cumulatively over $20,000, weigh heavily on the applicant, and it is questionable, at least on the limited evidence filed on these applications, whether the applicant has the realistic ability to ever pay them. Even bankruptcy will not give him respite.

[4] There seems to be conflicting authority on whether this court has jurisdiction to hear the appeals of some of the matters on which the applicant is seeking leave, because he was denied an extension of time in which to appeal by the courts below. See R. v. Valente (1982), 1982 2044 (ON CA), 40 O.R. (2d) 535 (C.A.); R. v. Belanger, [2006] O.J. No. 3453 (C.A.); R. v. Melaku (2011), 2011 99905 (ON CA), 106 O.R. (3d) 481, [2011] O.J. No. 3835 (C.A.); and R. v. Borges (2011), 107 O.R. (3d) 377, [2011] O.J. No. 4278, 2011 ONCA 621; all judgments of single members of this court in applications for leave to appeal under the Provincial Offences Act. A panel of this court has referred to this issue but declined to resolve it. See R. v. Opoku, [2012] O.J. No. 147, 2012 ONCA 22, at para. 3.

[5] For the reasons that follow, in the particular circumstances of this case, I grant an extension of time in which to appeal and grant leave to appeal. The panel hearing the appeal may wish to consider the jurisdictional issue.

Background

[6] The applicant has four convictions for operating a motor vehicle without insurance, contrary to s. 2(1)(a) of the Compulsory Automobile Insurance Act. As I will briefly describe, the court did not deal with these offences in chronological order. Only the first disposition preceded the last offence date.

[7] The first offence date was April 18, 2005. The applicant attended a trial date on October 13, 2005. He was unrepresented. His request for an adjournment of the trial was denied, and he pled guilty to the charge. He provided an explanation of the circumstances, and he was sentenced to a fine of $2,500. It is worth noting that under s. 2(3) of the Compulsory Automobile Insurance Act the minimum fine for this offence is $5,000 on a first offence, but the court has discretion under s. 59(2) of the Provincial Offences Act to impose a fine below the minimum. [page101]

[8] The offence date for the third offence was September 15, 2005. The applicant appeared in court on November 16, 2006, represented by an agent who assisted him in pleading guilty to the offence, with a joint submission for a fine of $2,500. The prosecutor did not allege a record of a previous conviction. The sentencing justice of the peace acceded to the joint submission and ordered a fine of $2,500.

[9] The offence date for the fourth offence was March 17, 2006. The applicant was in court on November 22, 2006, once again represented by an agent, and he pled guilty to the offence and a fine of $2,000 was imposed. The specific circumstances in which this proceeding took place and the reasons for this sentence are not entirely clear as there was no transcript of this proceeding filed in this court. I found it necessary to proceed with the application nonetheless.

[10] And finally, the second offence had an offence date of June 30, 2005. The applicant, represented by the same agent, apparently had a trial, in which he was found guilty, and the sentencing proceeded on February 16, 2007. From a transcript filed in this court of the sentencing proceeding, it appears the prosecutor filed a record of the first conviction entered on October 13, 2005, and argued for at least the minimum fine of $10,000 mandated under s. 2(3) of the Compulsory Automobile Insurance Act for a second or subsequent conviction. The presiding justice of the peace imposed a $10,000 fine. He found that the applicant had not learned from his previous fine, but did not notice that the previous conviction and fine was imposed for an offence that occurred after the offence for which the applicant was being sentenced. There is an arguable error of law with some merit with respect to this sentence. See R. v. Skolnick, 1982 54 (SCC), [1982] 2 S.C.R. 47, [1982] S.C.J. No. 60.

[11] On October 30, 2007, the applicant brought a motion before a provincial judge to extend the time in which to appeal his first three convictions, pursuant to s. 85 of the Provincial Offences Act. It is not clear from the record why the applicant did not bring this motion with respect to all four convictions, but this dishevelled approach seems to be consistent with his mental state. The applicant's motion was dismissed.

[12] On February 10, 2011, the applicant brought another motion before a provincial judge to extend the time in which to appeal. He did so on this occasion with respect to all four convictions. The prosecutor brought the judge's attention to the fact that a motion to extend time for the first three convictions had already been dismissed on October 30, 2007. The provincial judge treated the matter as an appeal on the merits on the [page102] fourth conviction, and granted the appeal from sentence. He confirmed the $2,000 fine, but gave more time to pay.

[13] On November 19, 2012, the applicant tried again to bring a motion to extend time in which to appeal before a provincial judge, having apparently been redirected to do so by staff of this court. That motion was dismissed for lack of jurisdiction because it had already been dismissed.

[14] Throughout all of the proceedings, except and until it was before this court, I can find no reference to the applicant's mental illness, or any significant reference to his ability to pay the substantial fines imposed upon him. In addition to the fines mentioned, totalling $17,000, by operation of s. 60.1 of the Provincial Offences Act, and the Victim Fine Surcharges, O. Reg. 161/00, there is a 25 per cent surcharge payable by the applicant on these fines, plus small nominal court costs added pursuant to R.R.O. 1990, Reg. 945 (Provincial Offences Act). In total, the applicant owes in excess of $21,250, payable in fines, surcharges and court costs from these convictions.

Analysis

[15] Since the offences in question proceeded under Part III of the Provincial Offences Act, an appeal lies to this court under s. 131. While the test for leave is a high one, it should not, in my view, be inflexible. In the circumstances of this case, for the reasons that follow, I find there is an important public interest in this case, and there is an arguable issue that relates to the due administration of justice.

[16] Although the offences are relatively serious, the applicant faces a very significant amount of fines, surcharges and costs that is draconian in its impact on him personally. The courts below were not made aware of his mental illness, and although he seems to be getting treatment, from the scanty material filed in this court, he may well have no real prospect of being able to pay these oppressive fines. Significant minimum fines for the offence of operating a motor vehicle without insurance may well have a good public policy justification, particularly in acting as a general deterrent. It is nonetheless, in my view, in the public interest to determine whether in the particular circumstances of any individual defendant or appellant, some accommodation should be made for individuals with significant personal disabilities. Although it may well have been within the power of the provincial offences appeal court to consider this issue, there was never an opportunity for that court to consider that issue, because of the manner in which the appeal proceedings [page103] unfolded, and because the applicant evidently was unable to advance the issue.

[17] The appeal proceedings in the provincial offences appeal court on October 30, 2007 are especially problematic. As noted, the applicant had brought a motion to extend time in which to appeal three of his four convictions. From my review of the transcript of that proceeding, it is at least arguable that the court did not consider the appropriate factors in determining the issues before it, and, perhaps more importantly, closed off any opportunity for the broader public interest issue to be raised.

[18] After being given a "brief chronology" by the prosecutor, which in my view was at least argumentative and may be viewed as prejudicing the applicant's motion, the following exchange took place between the applicant and the court:

THE COURT: All right, thank you. What do you have to say?

A.E.: Sir, I've tried to pay the money but I'm a student, I don't have money to pay and want to know if I can reduce. Right now I'm in (UNINTELLIGIBLE) and I can't even pay my insurance right now, so I don't know how to pay this fine.

THE COURT: Sir, your driving record is a complete and utter disgrace.

A.E.: Yes.

THE COURT: Excuse me. You have been convicted of this not once, but twice, but three times.

A.E.: Sir, the . . . .

THE COURT: Excuse me, I am talking to you now. The Justice reduced this. You, yourself were in court in February. The fact that you have waited until August to even challenge this persuades me that you are treating the entire system as a joke.

A.E.: No, Sir.

THE COURT: You have absolutely -- I am still talking to you, please. You have absolutely no respect for your privilege of driving and have thumbed your nose at the system throughout. What do you want to say?

A.E.: Sir, I'm a student. I'm supposed to be in class right now. I'm taking -- credits as a student. I'm in school from Monday to Friday.

THE COURT: You are expected to follow the same rules that apply to everyone else. You can appear before a justice and seek more time. Your matters are dismissed. Shameful. Thank you.

[19] Numerous authorities set out the appropriate factors that a court should consider in determining whether to extend the time in which to appeal under s. 85 of the [page104] Provincial Offences Act. Among the appropriate factors, it is usually significant whether

the applicant has demonstrated a bona fide intention to appeal within the prescribed appeal period;

the applicant has accounted for or explained the delay in initiating the appeal; and

-- the proposed appeal has merit.

And in some circumstances it will be significant whether

the consequences of the conviction are out of all proportion to the penalty imposed;

-- the Crown will be prejudiced; and

-- the applicant has taken the benefit of the judgment.

[20] I agree with Justice Nadel, in R. v. Monrad, [2012] O.J. No. 398, 2012 CarswellOnt 1129 (C.J.), who applied, at para. 1, in the provincial offences appeal context, a principle enunciated by Justice Watt that, "In the final analysis, the principal consideration is whether the applicant has demonstrated that justice requires that the time be extended."

[21] It is important to note that these are all factors, not preconditions. In the present case, I think it is at least arguable that the provincial judge did not appear to take these factors into account. After this dismissal, the applicant was prevented from having the provincial offences appeal court consider the totality of the fines and surcharges. In my view, in the particular circumstances of this case, the due administration of justice is implicated, and as a consequence the broader public interest issues involved were not considered. As such, I find that leave to appeal ought to be granted.

[22] As a final note, I observe that while there was some evidence filed as to the applicant's mental illness and his financial circumstances, it may well be insufficient for the purpose of the appeal. It would be beneficial if the applicant were assisted by counsel, who might consider whether additional fresh evidence is warranted.

Application granted.

[page105]

End of Document