Court of Appeal for Ontario

Date: 2018-01-24 Docket: M48650

Juriansz J.A. (In Chambers)

Between

The Regional Municipality of York Moving Party

and

Steve Tomovski Responding Party

and

The Attorney General for Ontario Intervener

Counsel

Chris G. Bendick, for the moving party

Robert Tomovski, for the responding party

Luke Schwalm, for the intervener

Heard: January 17, 2018

Motion for Leave to Appeal

On a motion for leave to appeal the judgment of Justice John McInnes of the Ontario Court of Justice, dated November 21, 2017, with reasons for judgment reported at 2017 ONCJ 785.

Reasons for Decision

Intervener Status

[1] The Attorney General for Ontario's application for intervener status on this motion is granted.

Background and Procedural Issue

[2] The moving party (York), supported by the Attorney General, seeks leave to appeal a judgment in its favour. This unusual circumstance creates a significant procedural issue and arises because of the following history.

[3] The responding party, Mr. Tomovski, was charged with speeding – 142 km/hr in a 100 km/hr zone – on December 30, 2014 contrary to s. 128 of the Highway Traffic Act, R.S.O. 1990, c. H.8. The police officer laid a charge pursuant to Part I of the Provincial Offences Act, R.S.O. 1990, c. P.33 ("POA"). The responding party decided to contest the charge and filed a notice of intention to appear on January 9, 2015. The trial date was originally scheduled for May 22, 2015.

[4] The trial date was adjourned multiple times due to certain disclosure requests and the failure to provide notice of a s. 11(b) Canadian Charter of Rights and Freedoms application to the Attorneys General for Canada and Ontario under s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[5] The s. 11(b) Charter application was finally heard on February 10, 2016. The Justice of the Peace hearing the application released his decision on June 21, 2016. The Justice of the Peace applied the analytical framework from R. v. Morin, [1992] 1 S.C.R. 771, held that the delay breached s. 11(b), and stayed the proceedings.

[6] York appealed the stay of proceedings pursuant to s. 135 of the POA. When the matter came before the provincial court appeal judge on February 17, 2017, the Supreme Court of Canada had released its decision in R. v. Jordan, 2016 SCC 27. The provincial court appeal judge's decision was released on November 21, 2017.

[7] In his decision, the provincial court appeal judge held, at para. 158, that the 18 month presumptive delay ceiling set out in R. v. Jordan was "too high to adequately protect Part I [of the POA] defendants' constitutional right to be tried within a reasonable time." At para. 149, he found "the appropriate presumptive ceiling for Part I proceedings is in the 13 to 15 month range" and applied a 14 month presumptive ceiling to this case. Nevertheless, the provincial court appeal judge found that Mr. Tomovski's s. 11(b) Charter right was not breached because a significant portion of the delay was attributable to Mr. Tomovski. The provincial court appeal judge found the net delay was 10 months and 22 days. He allowed York's appeal and ordered a new trial.

Discussion

Proposed Questions of Law

[8] York proposes that leave to appeal should be granted on the following questions of law:

(a) What should the presumptive delay ceiling be?

(b) How should s. 11(b) of the Charter be applied for Part I POA proceedings commenced by a certificate of offence?

Jurisdiction and the Meaning of "Judgment"

[9] There is no question that the proposed questions of law transcend the immediate case and pertain to the administration of justice generally in the province. The issue is whether York is seeking leave to appeal from a "judgment" of the provincial court appeal judge rather than his reasons and thus whether this court has jurisdiction to hear the appeal. It is well established that "[a]n appeal lies from the judgment, not the reasons for judgment": R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 4.

Statutory Framework

[10] The relevant parts of ss. 135, 138, and 139 of the POA state as follows:

Appeals, proceedings commenced by certificate

135(1) A defendant or the prosecutor or the Attorney General by way of intervention is entitled to appeal an acquittal, conviction or sentence in a proceeding commenced by certificate under Part I or II and the appeal shall be to the Ontario Court of Justice presided over by a provincial judge.

Powers of the court on appeal

138(1) Upon an appeal, the court may affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial.

Appeal to Court of Appeal

139(1) An appeal lies from the judgment of the Ontario Court of Justice in an appeal under section 135 to the Court of Appeal, with leave of a judge of the Court of Appeal, on special grounds, upon any question of law alone.

Grounds for leave

(2) No leave to appeal shall be granted under subsection (1) unless the judge of the Court of Appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.

[Emphasis in original.]

York's Argument on Breadth of "Judgment"

[11] York and the Attorney General submit that the word "judgment" in s. 139 is broad enough to allow an appeal of the provincial court appeal judge's determination that the presumptive delay ceiling for Part I POA proceedings is in the 13 to 15 month range.

[12] York points out that s. 135 of the POA only provides a right of appeal from "an acquittal, conviction or sentence" entered by a Justice of the Peace to a judge of the Ontario Court of Justice whereas s. 139 allows leave to appeal from any "judgment". York submits that the legislature would have expressly restricted the appellate jurisdiction of the Court of Appeal to affirming, modifying, or varying verdicts, if it so intended. Instead, the legislature used the word "judgment" in s. 139, which the applicant submits is of such broad connotation that it "embraces not only verdicts, but decisions and the reasoning that led to the verdict."

[13] In addition, the Attorney General submits that the word "judgment" in s. 139 includes "decisions" made by a provincial court appeal judge. The Attorney General argues that the provincial court appeal judge's "decision" that a lower s. 11(b) presumptive delay ceiling applies falls within the meaning of a "judgment" under s. 139.

[14] Mr. Tomovski made no submissions and took no position on this motion.

Court's Analysis

[15] I do not find the text of s. 135 helpful. True, s. 135 provides an appeal from "an acquittal, conviction or sentence", but s. 138 provides that on an appeal the court "may affirm, reverse or vary the decision appealed from". The term "decision appealed from" in s. 138 relates back to the phrase "an acquittal, conviction or sentence" in s. 135. Based on York's reasoning, this text would equally suggest that the word "decision" should be understood narrowly as an acquittal, conviction, or sentence imposed.

[16] Nor did I find the authorities submitted by York and the Attorney General, and the subsequent case law, to be persuasive. R. v. Valente, 40 O.R. (2d) 535 (C.A.), R. v. Inco Ltd., 139 C.C.C. (3d) 477 (Ont. C.A.), R. v. Belanger, [2006] O.J. No. 3453 (C.A.), R. v. E. (A.), 2016 ONCA 243, and Quinte West (Municipality) v. Balroop, 2016 ONCA 657 were all cases in which a party sought to vary some aspect of the decision below. R. v. Inco is also distinguishable in that the Crown sought leave to appeal an unfavourable judgment and Inco, effectively, sought leave to cross-appeal an issue that could have affected the disposition of the appeal if the Crown were successful. None of these cases concerned appeals under Part I of the POA.

[17] York argues it is seeking leave to appeal from the provincial court appeal judge's "decision" that the presumptive delay ceiling for Part I POA proceedings is 13 to 15 months. While I accept that a "judgment" appealable under s. 139 may in some circumstances be described as a "decision", I am not persuaded that s. 139 extends to a "decision" in the sense York suggests.

[18] The "decision" of the provincial court appeal judge in this case was that the stay of proceedings should be set aside because there was no breach of s. 11(b). Given his factual finding that the net delay was 10 months and 22 days, the "decision" below would have been the same had the appeal judge not opined that a shorter presumptive delay ceiling applied for Part I POA proceedings. The proposed appeal seeks an advisory opinion of this court that is detached from the underlying facts. Ontario courts have repeatedly held that appeals cannot be based on a disagreement with certain determinations within the reasons for judgment: Canadian Express Ltd. v. Blair, 6 O.R. (3d) 212 (Div. Ct.); Aetna Life Insurance Co. of Canada v. Ungerman, (1992), 17 C.P.C. (3d) 383 (Ont. Gen. Div.); Grand River Enterprises v. Burnham, [2005] O.J. No. 952 (C.A.), at para. 10; and Almrei v. Canada (Attorney General), 2012 ONCA 779, at paras. 7-10.

Conclusion

[19] This court can address the important question of the appropriate presumptive delay ceiling for Part I POA proceedings in another case in which the appeal is properly constituted.

[20] The motion for leave to appeal is dismissed. In dismissing this motion, I should not be understood as approving the provincial court appeal judge's view that "the appropriate presumptive ceiling for Part I proceedings is in the 13 to 15 month range".

R.G. Juriansz J.A.