@B,00022211,OR
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Her Majesty the Queen v. R.R. *
[Indexed as: R. v. R. (R.)]
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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 CanLII 30 (SCC), [1982] 2 S.C.R. 368, [1982] S.C.J. No. 71, 140
D.L.R. (3d) 612, 1982 CanLII 30 (SCC), 43 N.R. 361, J.E. 82-824, 68 C.C.C. (2d)
477, 1982 CanLII 30 (SCC), 30 C.R. (3d) 289, 8 W.C.B. 128; [page642] R. v. Hunt,
1998 CanLII 5266 (BC CA), [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 CanLII 41 (SCC), [1994] 3 S.C.R. 965, [1994]
S.C.J. No. 106, 1994 CanLII 41 (SCC), 120 D.L.R. (4th) 175, 174 N.R. 321, J.E.
95-27, 1994 CanLII 41 (SCC), 94 C.C.C. (3d) 385, 34 C.R. (4th) 360, 25 C.R.R. (2d)
92, 1994 CanLII 41 (SCC), 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 CanLII 18107 (MB CA), [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,
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, 2007 PESCAD 18, 31 C.E.L.R. (3d) 171, 50 C.R. (6th) 340, 75
W.C.B. (2d) 89; R. v. Zamfirov, 1996 CanLII 683 (ON CA), [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,
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
- 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
- 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 CanLII 41 (SCC), [1994] 3 S.C.R. 965, [1994] S.C.J. No. 106 and R. v.
Gardiner, 1982 CanLII 30 (SCC), [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 CanLII 683 (ON CA), [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 CanLII 5266 (BC CA), [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 CanLII 18107 (MB CA), [1996] M.J. No. 208, 110 Man. R. (2d) 153 (C.A.) (Lyon
J.A. in chambers); R. v. Watson, 2007 PESCAD 18, [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 ABCA 253, [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
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 ABCA 88, [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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