CITATION: R. v. Baccus, 2008 ONCA 508

DATE: 20080624

DOCKET: C48433

COURT OF APPEAL FOR ONTARIO

CRONK, GILLESE AND WATT JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

GEAN BACCUS

Appellant

David M. Mayzel for the appellant

Alexander Alvaro for the respondent

Geoffrey Uyeno for the City of Toronto

Heard and released orally: June 20, 2008

On appeal from the dismissal of an appeal under s. 135 of the Provincial Offences Act by Justice Eric (Rick) N. Libman of the Ontario Court of Justice on December 10, 2007.

ENDORSEMENT

[1] The respondent concedes that the provincial judge before whom the appellant sought an extension of time within which to file an appeal from conviction under s. 135 of the Provincial Offences Act, treated the hearing as an appeal on the merits and dismissed the appeal without providing the appellant an opportunity to be heard. The respondent further concedes that the proper remedy here would be to allow the appeal, quash the decision of the provincial judge dismissing the appeal under s. 135 of the Provincial Offences Act, as well as the underlying conviction, and to order a new trial. We agree. We are satisfied that we have the authority to do so as a result of the combined effect of the definition of “court” in s. 109 and the provisions of s. 138(1) of the Provincial Offences Act. A new trial is necessary in this case to satisfy the ends of justice.

[2] The appellant, unless otherwise advised, is entitled to have the new trial conducted on the basis of a plea of not guilty. Accordingly, should it be necessary to do so, we direct that the plea of guilty in the prior proceeding be struck.

[3] In the result, the appeal is allowed, the decision of the provincial judge on the appeal under s. 135 is quashed, as is the underlying conviction, and a new trial is directed.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“David Watt J.A.”