Her Majesty the Queen v. Scherba [Indexed as: R. v. Scherba]

54 O.R. (3d) 555

[2001] O.J. No. 2235

Docket Nos. C33518 and M25619

Court of Appeal for Ontario

Feldman, MacPherson and Sharpe JJ.A.

June 13, 2001

Criminal law--Appeals--Jurisdiction--Panel of Court of Appeal does not have jurisdiction to review or hear appeal from decision of single judge of Court of Appeal denying leave to appeal summary conviction--Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(3), (5)--Criminal Code, R.S.C. 1985, c. C.46, ss. 261, 839(1)--Criminal Appeal Rules, SI/93-169, s. 2--Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.16(6).

Appeal--Criminal law--Jurisdiction--Panel of Court of Appeal does not have jurisdiction to review or hear appeal from decision of single judge of Court of Appeal denying leave to appeal summary conviction--Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(3), (5)--Criminal Code, R.S.C. 1985, c. C.46, ss. 261, 839(1)--Criminal Appeal Rules, SI/93-169, s. 2--Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.16(6).

The accused appealed the decision of a single judge of the Court of Appeal, made pursuant to s. 839(1) of the Criminal Code denying leave to appeal a judgment dismissing an appeal from a summary conviction.

Held, the appeal should be dismissed.

The Code provides no right of appeal from a decision to grant or deny leave to appeal under s. 839(1). A right of appeal does not lie by virtue of s. 7(5) of the Courts of Justice Act. The Criminal Appeal Rules are not competent to incorporate a right of appeal by reference, through the Rules of Civil Procedure. Even if it were possible to derive a right of appeal through the Criminal Appeal Rules and Rules of Civil Procedure, s. 7(5) had no application. As s. 7(3) expressly excludes a motion for leave to appeal from "a motion" over which a single judge is given jurisdiction by the operation of that section, s. 7(5) does not create jurisdiction to set aside or vary the decision of a single judge denying leave to appeal.

APPEAL from an order dismissing a motion for leave to appeal a judgment of Summary Conviction Appeal Court dismissing appeal from conviction.

Cases referred to R. v. Gelz (1990), 1990 1315 (BC CA), 55 C.C.C. (3d) 425 (B.C.C.A.); R. v. Gillespie (1997), 1997 22737 (MB CA), 115 C.C.C. (3d) 461 (Man. C.A.) [Leave to appeal to S.C.C. refused, [1997] 3 S.C.R. ix]; R. v. Goda (1998), unreported, Court File No. C29943/M22749 (C.A.); R. v. Graton, [1994] A.Q. No. 357 (C.A.); R. v. Lighting, [1993] A.J. No. 404 (C.A.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7 Criminal Code, R.S.C. 1985, c. C-46, ss. 261, 839(1) Rules and regulations referred to Criminal Appeal Rules, SI/93-169, s. 2 Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.16(6)

Christopher Hicks, for appellant. Philip Perlmutter, for respondent.

The judgment of the court was delivered by

[1] SHARPE J.A.:-- This appeal raises the following jurisdictional issue: does a panel of this court have jurisdiction to review or entertain an appeal from a decision of a single judge of this court, made pursuant to s. 839(1) of the [Criminal Code R.S.C. 1985, c. C-46], denying leave to appeal a summary conviction?

[2] At the conclusion of oral argument, we indicated that the appeal was dismissed for want of jurisdiction and that reasons would follow.

Facts and Procedural Background

[3] The appellant was convicted in the Ontario Court of Justice of impaired driving and driving with over 80 milligrams of alcohol in his blood. The "over 80" count was stayed. For the impaired driving conviction, the appellant was sentenced to a fine of $1,000, given one-year probation and a one-year driving prohibition.

[4] An appeal from the summary conviction to the Superior Court of Justice was dismissed. The appellant then applied to a single judge of this court, pursuant to s. 261 of the Criminal Code for an order staying the driving prohibition pending disposition of his appeal. In accordance with this court's practice direction (November 8, 1994: 20 O.R. (3d) 129), the stay application was brought together with a motion for leave to appeal from the dismissal of the appeal from conviction so that a driving prohibition can be stayed only if leave to appeal is granted. The matter came before O'Connor J.A. who dismissed both the application for a stay and the application for leave to appeal.

Analysis

[5] The Criminal Code, s. 839(1) provides for appeals from a summary conviction appeal court to a court of appeal "with leave of that court or a judge thereof" on "a question of law alone". The Code provides no right of appeal from the decision to grant or deny leave.

[6] The appellant submits that an appeal or right of review of the decision of a judge who grants or denies leave lies by virtue of the combined effect of the Criminal Appeal Rules, S.I./93-169, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the Courts of Justice Act, R.S.O. 1990, c. C.43.

[7] The Criminal Appeal Rules provide for the application of the Rules of Civil Procedure in certain circumstances:

2(1) Except where otherwise provided by the Code, a statute or these rules, the Rules of Civil Procedure where appropriate and with necessary modifications apply to criminal appeals.

(2) Civil rules 61.03 (motion for leave to appeal), 61.04 (commencement of appeals), 61.05 (certificate or agreement respecting evidence), 61.07 (cross-appeals), 61.09 (perfecting appeals), 61.10 (appeal book), 61.11 and 61.12 (factums) and 61.13 (dismissal for delay) do not apply to criminal appeals.

[8] The appellant submits that s. 2 of the Criminal Appeal Rules incorporates rule 61.16(6) of the Rules of Civil Procedure which in turn provides for the review of a single judge's order in certain circumstances:

61.16(6) Review of Single Judge's Order -- A person who moves to set aside or vary the order of a judge of an appellate court under subsection 7(5) or 21(5) of the Courts of Justice Act shall do so by a notice of motion that is served within four days after the order is made and states that the motion will be heard on a date to be fixed by the Registrar.

The Courts of Justice Act, s. 7(5) provides:

7(5) Idem -- A panel of the Court of Appeal may, on motion, set aside or vary the decision of a judge who hears and determines a motion.

[9] I do not accept this submission for the following reasons. It has been decided by this court, albeit in a brief endorsement, that there is no power to review the decision of a single judge denying leave to appeal: R. v. Goda (26 October 1998), C29943, M22749. Other provincial appellate courts have also concluded that there is no right of appeal from the decision of a single judge denying leave to appeal under s. 839(1) of the Criminal Code: R. v. Gelz (1990), 1990 1315 (BC CA), 55 C.C.C. (3d) 425 (B.C.C.A.); R. v. Lighting, [1993] A.J. No. 404 (C.A.); R. v. Gillespie (1997), 1997 22737 (MB CA), 115 C.C.C. (3d) 461 (Man. C.A.), leave to appeal to S.C.C. refused, [1997] 3 S.C.R. ix; R. v. Graton, [1994] A.Q. No. 357 (C.A.).

[10] It is well established that a right of appeal must be derived from a statutory source. There is no provision in the Criminal Code for any appeal to this court from a single judge denying leave to appeal, nor is there any provision for a panel of this court to review such a decision.

[11] I do not accept the submission that a right of appeal or review lies by virtue of s. 7(5) of the Courts of Justice Act. The Criminal Appeal Rules are not competent to incorporate a right of appeal by reference, through the Rules of Civil Procedure. As stated in R. v. Gillespie, supra, at p. 466 C.C.C., "[a] right of appeal is a substantive right, and does not come within any of the matters in respect of which s. 482 of the Code authorizes rules to be made by a court."

[12] Even if it were possible to derive a right of appeal through the Criminal Appeal Rules and Rules of Civil Procedure, s. 7(5) of the Courts of Justice Act has no application. This sub-subsection must be read in light of the entire section which provides as follows:

7(1) Composition of court for hearings -- A proceeding in the Court of Appeal shall be heard and determined by not fewer than three judges sitting together, and always by an uneven number of judges.

(2) Idem, motions -- A motion in the Court of Appeal and an appeal under clause 6(1)(c) shall be heard and determined by one judge.

(3) Idem -- Subsection (2) does not apply to a motion for leave to appeal, a motion to quash an appeal or any other motion that is specified by the rules of court.

(4) Idem -- A judge assigned to hear and determine a motion may adjourn the motion to a panel of the Court of Appeal.

(5) Idem -- A panel of the Court of Appeal may, on motion, set aside or vary the decision of a judge who hears and determines a motion.

[13] As s. 7(3) expressly excludes a motion for leave to appeal from "a motion" over which a single judge is given jurisdiction by the operation of this section, s. 7(5) does not create jurisdiction to set aside or vary the decision of a single judge denying leave to appeal.

[14] For these reasons, I conclude that we have no jurisdiction to entertain an appeal from or otherwise review the decision of O'Connor J.A. dismissing the appellant's application for leave to appeal.

[15] The appeal is accordingly dismissed.

Appeal dismissed.