COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Coates, 2024 ONCA 216

DATE: 2024-03-20

DOCKET: M54854 (COA-23-CR-0372)

Pepall J.A. (Motions Judge)

BETWEEN

His Majesty the King

Appellant (Responding Party)

and

Bryce Coates

Respondent (Applicant)

Counsel:

Cory Giordano and Ricardo Federico, for the applicant

Philippe Cowle, for the responding party

Heard: February 14, 2024

ENDORSEMENT

Introduction

[1] The applicant, Bryce Coates, was convicted of operating a conveyance when the concentration of alcohol in his blood exceeded the legal limit contrary to s. 320.14(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. He was sentenced to serve a 15-month driving prohibition and pay a $3,000 fine. He has sought leave from the Supreme Court of Canada to appeal his conviction.

[2] Before me, he moves for an order staying his driving prohibition and accompanying fine pending the resolution of his application for leave to appeal, and any subsequent appeal, to the Supreme Court.

Procedural History

[3] The relevant procedural history commences with the trial judge’s dismissal of the applicant’s s. 11(b) Charter application. The applicant had been charged on January 14, 2019 and his Ontario Court of Justice trial was scheduled to be heard on two days, May 4 and 5, 2020. Had the trial proceeded, it would have been completed within the 18-month presumptive ceiling. Due to COVID-19, the trial did not take place as scheduled. At a July 17, 2020 pretrial, the two day trial estimate was confirmed and on September 25, 2020, March 4 and 5, 2021 were the dates confirmed for the trial.

[4] The trial judge dismissed the applicant’s s.11(b) argument. In response to the applicant’s submission that earlier non-consecutive trial dates could have been made available, the trial judge held that there was no evidence that such a procedure would have resulted in an earlier trial than March 4 and 5, 2021.

[5] The applicant appealed to the summary conviction appeal court, which allowed his appeal and entered a stay of proceedings. On a Crown appeal with leave to this court, the applicant’s conviction was restored. He now seeks leave to appeal from the Supreme Court. The issues that the applicant raises on his leave motion are whether, for the purposes of calculating delay under s. 11(b) of the Charter, (i) it was reasonable for the Crown to seek consecutive trial dates when non-consecutive trial dates would diminish the amount of time required to bring a matter to trial, and (ii) the degree of deference owed to Canadian trial judges’ “expertise on local circumstances and practices” in determinations made pursuant to s. 11(b) of the Charter. Three levels of court have now addressed the applicant’s case.

[6] There are two issues for me to consider: the jurisdiction of this court to grant a stay in the absence of leave having been granted by the Supreme Court, and if there is jurisdiction, the merits of the request for a stay.

Jurisdiction

[7] The parties differ on the issue of jurisdiction.

[8] The applicant states that he seeks leave to appeal pursuant to s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26 and that s. 65.1(1) of the Supreme Court Act provides this court with jurisdiction to stay the applicant’s driving prohibition and fine.

[9] In contrast, the Crown argues that this court does not have jurisdiction to grant a stay pending appeal to the Supreme Court in these circumstances unless and until leave is granted. The Crown submits that s. 320.25 of the Criminal Code governs the circumstances in which a stay may be granted for such a sentence. That section speaks of “if an appeal is taken” against a conviction or sentence for an offence relating to a motor vehicle or other conveyance. An appeal is only taken, the Crown argues, when leave has been granted.

[10] I do not accept that this court has jurisdiction to stay a driving prohibition in the absence of leave having been granted by the Supreme Court. I say this for the following reasons.

[11] As the Crown elected to proceed by way of summary conviction at trial, the Criminal Code does not confer jurisdiction to appeal directly to the Supreme Court. Leave to appeal is required.

[12] Section 320.25(1) of the Criminal Code states:

Subject to subsection (2), if an appeal is taken against a conviction or sentence for an offence under any of sections 320.13 to 320.18, a judge of the court to which the appeal is taken may direct that the prohibition order under section 320.24 arising out of the conviction shall, on any conditions that the judge imposes, be stayed pending the final disposition of the appeal or until otherwise ordered by that court.

[13] The offences cited in s. 320.25(1) all concern offences relating to a ‘conveyance,’ which is defined to mean a motor vehicle, a vessel, an aircraft, or railway equipment: Criminal Code, s. 320.11. The offence for which the applicant was convicted pursuant to s. 320.14(1)(b) is encompassed by this subsection, which specifically addresses stays of a prohibition order. The subsection speaks of “if an appeal is taken” and therefore contemplates leave to appeal already having been obtained.

[14] Section 320.25(2) of the Criminal Code states:

In the case of an appeal to the Supreme Court of Canada, a direction may be made only by a judge of the court from which the appeal was taken.

[15] Section 320.25(2) of the Criminal Code provides for a stay of a prohibition order when the appeal is to the Supreme Court. It provides that a direction that a prohibition order be stayed “may be made only by a judge of the court from which the appeal was taken.” In other words, under subsection 2, the Supreme Court does not address such an application. However, before this court can grant a stay of the prohibition order, the Supreme Court has to have first granted leave to appeal.

[16] The history of s. 320.25(2) of the Criminal Code provides some insight into its scope. Its predecessor was s. 261(1.1), which mirrors the text of s. 320.25(2). Section 261(1.1) itself was introduced in 2008, when Parliament passed the Tackling Violent Crimes Act, S.C. 2008, c. 6. Before that, the former s. 261 conferred jurisdiction to stay a driving prohibition exclusively on “a judge of the court being appealed to.” Thus, in the case of an appeal to the Supreme Court, the stay had to emanate from that court. The 2008 amendments changed this. The Supreme Court no longer adjudicates such a motion; the appellate court does, but only after leave to appeal has been granted.

[17] In contrast, under s. 65.1 of the Supreme Court Act, either the court appealed from, or the Supreme Court, may order a stay of proceedings on the filing of a notice of application for leave to appeal.

[18] Section 65.1(1) of the Supreme Court Act states:

The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.

[19] It would be strange if, under s. 320.25 of the Criminal Code, the Supreme Court is relieved from considering stays of prohibition orders when an appeal is taken from driving convictions but (following the applicant’s interpretation), is obliged under s. 65.1 of the Supreme Court Act to engage with a request for a stay of a driving prohibition in the face of a request for leave to appeal. The applicant’s interpretation would run counter to the legislative intent reflected in s. 320.25.

[20] Instead, s. 320.25 is the specific provision governing stays of prohibitions for appeals from driving convictions and s. 65.1 is the more general provision, albeit in a different statute. Section 320.25 creates a complete code for applications to stay driving prohibitions. However, its focus is narrow. It only addresses stays relating to driving prohibitions ordered under s. 320.24 and the offences in ss. 320.13-320.18. By contrast, s. 65.1 of the Supreme Court Act addresses stays pending leave to appeal broadly. In short, the narrow Criminal Code provision operates as an exception to the more general s. 65.1 of the Supreme Court Act. As such, the former should prevail. As stated by Ruth Sullivan in The Construction of Statutes, 7th ed. (Toronto: LexisNexis, 2022) at pp. 354-355, when dealing with two provisions in different statutes passed by the same legislature: “the specific provision implicitly carves out an exception to the general one.”

[21] In R. v. Reed (1997), 1997 CanLII 3276 (BC CA), 120 C.C.C. (3d) 556 (B.C. C.A.), Finch J.A. considered s. 320.25’s penultimate predecessor, the former s. 261. He found he had no jurisdiction to grant a stay of a driving prohibition despite the broad statement in s. 65.1 of the Supreme Court Act. At para. 11, he stated that: “in my view the clear and specific language of the Criminal Code and the Motor Vehicle Act dealing with orders of the sort that are sought in this case must be taken to apply in preference to the more general provision of s. 65.1.” The same reasoning applies to s. 320.25 and is reinforced by other areas of the law where specific legislation has been said to govern stays pending leave to appeal to the Supreme Court, rather than the Supreme Court Act: see e.g. Boily v. McNulty, 1927 CanLII 110 (SCC), [1927] S.C.R. 275; Labatt Breweries of Canada Ltd. v. Canada (Attorney General), 1979 CanLII 183 (SCC), [1980] 1 S.C.R. 594.

[22] In addition, it should be noted that s. 320.25 applies to all driving conviction appeals, including those to the Supreme Court. If there is a leave requirement, s. 320.25 limits the availability of a stay to cases where leave has been granted.

[23] In this regard, I note that other provisions of the Criminal Code expressly provide remedies where leave to appeal and appeals are both sought to be encompassed. For instance, s. 679(8) on bail pending appeal states: “This section applies to applications for leave to appeal and appeals to the Supreme Court of Canada in summary conviction proceedings.” The same is true with s. 683(5) on suspensions and s. 689(1)(b) on forfeiture of property. Had Parliament intended that stays of driving prohibitions be available when leave to appeal is sought, it would have said so.

[24] I would also observe that a driving prohibition is temporal in nature. If the Supreme Court does grant leave to appeal, an applicant is still at liberty to apply for a stay pending the appeal. This reality supports the interpretation given to s. 320.25 of the Code.

[25] I am therefore compelled to conclude that I do not have jurisdiction to grant a stay of the applicant’s driving prohibition in the absence of leave to appeal having been granted.[^1]

Request for a Stay

[26] That said, and additionally, to the extent I have jurisdiction with respect to the fine, I would not grant a stay in any event.

[27] First, the applicable test for an application for a stay of a driving prohibition was described by this court in R. v. Smug, 1998 CanLII 14616 (Ont. C.A.). The burden is on the applicant to establish that:

1. the appeal is not frivolous;
2. the continuation of the prohibition pending appeal is not necessary in the public interest; and
3. to grant the stay would not detrimentally affect the confidence of the public in the effective enforcement and administration of justice.

[28] The applicant states that the issue for the leave application is whether it was reasonable for the Crown to seek consecutive trial dates when non-consecutive dates would allegedly diminish the time to bring the matter to trial and the degree of deference owed in these circumstances. The trial judge rejected the applicant’s argument that there was a violation of his s. 11(b) right to be tried within a reasonable time and his decision was overturned by the summary conviction appeal judge (“SCAJ”).

[29] Before the Court of Appeal, Coroza J.A., writing for a unanimous court, framed the issue at para. 4 of his reasons: “The question on this appeal is whether, in this case, the SCAJ erred in not deferring to the trial judge’s conclusion that the trial coordinator’s decision to offer two consecutive days (and the Crown’s acceptance of the trial coordinator’s decision to do so) was reasonable in all the circumstances of this case.”

[30] He concluded at para. 72: “In sum, the SCAJ should have deferred to the trial judge’s factual findings. As this court has said, the reasonableness of the length of time to prosecute a case during an exceptional circumstance takes its colour from the surrounding circumstances. The trial judge correctly stepped back and took a bird’s-eye view of the surrounding circumstances of this case. He properly employed his expertise and local knowledge of his jurisdiction and found that the offer of two consecutive dates from the trial coordinator and the Crown’s acceptance of these first available dates was reasonable and mitigated the delay. The SCAJ impermissibly interfered with that conclusion in the absence of palpable and overriding error.”

[31] The court’s decision reflects the longstanding principle of appellate deference in these circumstances. This is not new ground to be tilled. Although it is obviously not my ultimate decision, I consider the prospect of the Supreme Court granting leave to appeal to be slim in this case. The fact that this court granted leave to appeal the SCAJ’s order cannot be interpreted as signifying an appeal that raised an issue of importance. No reasons are given on leave to appeal applications and the result is equally consistent with a view that the SCAJ’s order reflected a clear error of law.

[32] As for the other two factors, it is helpful to return to the facts of the conviction. The moving party was convicted of driving with a blood alcohol concentration of more than twice the legal limit, a statutory aggravating factor. His readings were 180 mg and 190 mg per 100 ml of blood. His dispute is not with the elements of the offence but with the outcome of his s. 11(b) Charter application.

[33] He is a partner and CEO of a licenced mortgage administrator providing equity-based private funding. His business is 70 km from his home and he maintains that his operations require the use of a car for travel. He also states that he is a caregiver to his elderly mother who lives approximately 156 km away from his home, and he has three children who are involved in after-school activities and require pickup and drop-off on each day of the week. His wife is also gainfully employed and, as his counsel stated at his sentencing hearing, “money is not in terms of a fine in this matter an issue.” His counsel went on to state: “if the court sees fit or wants to increase the fine component, that would fit much better with the lifestyle that Mr. Coates has.” He also argues that by the time the leave application is determined, he will have served his driving prohibition in the event a stay is not granted.

[34] Although the applicant has complied with stays granted in the past, I am not persuaded that he has met his burden. The materials filed shed no light on why other transportation alternatives are unavailable for the applicant. No explanation is provided as to why others cannot fulfill the applicant’s driving responsibilities for his mother and children. There is no evidence that illustrates that his mother relies on the applicant for transportation or why he cannot rely on taxis, a driver, or carpool. Although it would be more convenient for the applicant were his driving prohibition to be stayed, this is not the test.

[35] The confidence of the public interest in the effective enforcement and administration of justice would be detrimentally affected if a stay were to be granted. His blood alcohol readings were high, he lied to the police by telling them he had only had two drinks, the prospect of obtaining leave to pursue a third appeal for this offence is, in my opinion, low, and his concerns reflect a need to address convenience, not hardship. The interests of justice do not favour granting the relief requested. I would reach the same result applying the test in R.J.R. MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 as advocated by the applicant.

[36] In conclusion, I am of the view that I do not have jurisdiction to grant the stay of the prohibition order and even if I did, and to the extent I have jurisdiction over the fine, I would not grant a stay in these circumstances. For these reasons, the motion is dismissed.

“S.E. Pepall J.A.”

[^1]: The applicant did not press the issue of the fine.