Her Majesty the Queen v. Borges, 2011 ONCA 621

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

107 O.R. (3d) 377

2011 ONCA 621

Court of Appeal for Ontario,

Juriansz J.A. (in Chambers)

September 30, 2011

Criminal law -- Provincial offences -- Appeals -- Decision denying extension of time to appeal conviction not appealable to Court of Appeal under s. 131 of Provincial Offences Act -- Section applying only to "judgments" of the first-level appeal court and denial of extension of time not being judgment -- Provincial Offences Act, R.S.O. 1990, c. P.33, s. 131.

Criminal law -- Provincial offences -- Notice of trial -- Defendant seeking adjournment but failing to ascertain new trial date -- Defendant not appearing and convicted in ex parte trial -- Duty to discover new trial date on defendant and no duty on court to send notice to defendant.

The defendant was charged with driving with a suspended driver's licence contrary to s. 53 of the Highway Traffic Act, R.S.O. 1990, c. H.8. He filed an adjournment application and did not appear on the scheduled trial date. The matter was adjourned. The defendant did ascertain new date and failed to appear for the new trial date. He was convicted at an ex parte trial pursuant to s. 54 of the Provincial Offences Act ("POA"). He did not appeal within the prescribed time. His application for an extension of time to appeal to the Ontario Court of Justice was denied. He applied for leave to appeal that decision.

Held, the application should be dismissed.

The court did not have jurisdiction to grant leave to appeal. Part VII of the Provincial Offences Act provides a two-step process for appeals. The offence in question fell under Part III of the POA. The first level of appeal is pursuant to s. 116 of the Act and s. 131 provides for an appeal to the Court of Appeal, with leave, from "the judgment of the court". Properly construed, s. 131 is limited to applications for leave to appeal from a decision made by the first-level appeal court made pursuant to s. 116. Here, the lower court denied the extension of time pursuant to s. 85 of the Act, not pursuant to s. 116. Therefore, as there was no "judgment" rendered pursuant to s. 116, there can be no application for leave to appeal under s. 131.

Even if the court had jurisdiction, leave to appeal would be denied as the appeal was without merit. While s. 54 of the POA, dealing with convictions in absentia, requires that the prosecutor prove that the defendant received notice of the original trial date, it does not require the prosecutor to prove that the defendant received notice of an adjourned date. It is the defendant's responsibility to ascertain the new date and the court bears no duty of notice beyond announcing the new date, in court, at the time of the adjournment. The Court of Appeal has held that s. 54 and its predecessor, s. 55(1), do not deprive a defendant of the right to be present at his or her trial.

APPLICATION for leave to appeal from the order of Baig J. of the Ontario Court of Justice dated July 6, 2011 denying an extension of time to appeal.

Cases referred to R. v. Felipa (1986), 1986 CanLII 2489 (ON CA), 55 O.R. (2d) 362, [1986] O.J. No. 419, 15 O.A.C. 121, 27 C.C.C. (3d) 26, 24 C.R.R. 40, 40 M.V.R. 316, 16 W.C.B. 414 (C.A.); R. v. Jenkins (2010), 99 O.R. (3d) 561, [2010] O.J. No. 1517, 2010 ONCA 278, 212 C.R.R. (2d) 137, 93 M.V.R. (5th) 1, 260 O.A.C. 296, 253 C.C.C. (3d) 269, 74 C.R. (6th) 117, apld R. v. Melaku (2011), 2011 CanLII 99905 (ON CA), 106 O.R. (3d) 481, [2011] O.J. No. 3835 (C.A.), consd [page378] Other cases referred to R. v. Belanger, [2006] O.J. No. 3453 (C.A.); R. v. Gonsalves, [1995] O.J. No. 4046 (C.A.); R. v. Klimov, [2007] O.J. No. 215, 2007 CarswellOnt 175 (C.A.); R. v. Valente (1982), 1982 CanLII 2044 (ON CA), 40 O.R. (2d) 535, [1982] O.J. No. 3620, 144 D.L.R. (3d) 111, 2 C.C.C. (3d) 317, 9 W.C.B. 1 (C.A.) Statutes referred to Highway Traffic Act, R.S.O. 1990, c. H.8, s. 53 [as am.] Provincial Offences Act, R.S.O. 1990, c. P.33, Parts I [as am.], II [as am.], III [as am.], VII [as am.], ss. 22, 24, 26, (1), (c), 49, 50 [as am.], 54, (1), 85, (1), 116 [as am.], 131 Rules and regulations referred to Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200, s. 32 [as am.]

Adam Goodman, for applicant. Jennifer Mannen, for respondent.

[1] Endorsement of JURIANSZ J.A. (in Chambers): -- The applicant, Mr. Borges, seeks leave to appeal the decision of Baig J. of the Ontario Court of Justice, which denied Mr. Borges' application for an extension of time to appeal to the Ontario Court of Justice pursuant to s. 85(1) of the Provincial Offences Act, R.S.O. 1990, c. P. 33 ("POA"). He sought to appeal his conviction for driving with a suspended driver's licence contrary to s. 53 of the Highway Traffic Act, R.S.O. 1990, c. H.8.

[2] Mr. Borges was convicted at an ex parte trial by Justice of the Peace Donio on January 25, 2011. At his first appearance in court on June 5, 2010, a trial date was set for September 28, 2010. Before the trial date, he filed an adjournment application and did not appear on September 28. The matter was adjourned to November 23, 2010. He was unaware of the new date and did not appear on November 23. The matter was then adjourned to January 25, 2011. On January 25, 2011, he was not in court again. Justice of the Peace Donio decided to proceed in his absence and Mr. Borges was convicted.

[3] Mr. Borges did not file an appeal within the prescribed time. In dismissing his application for an extension of time to appeal, Baig J. took the view that Mr. Borges was responsible for finding out his new trial date after he had requested an adjournment. Baig J. said: [page379]

Mr. Borges had an obligation to follow-up on these requests. It is not up to the court system to spoon-feed him. It is up to him to pay attention to the fact that he is charged. He has asked for an adjournment. It was granted. He did not come. He has to find out when the adjournment is to. It is his responsibility. The applications are denied.

[4] Mr. Borges now seeks leave, under s. 131 of the POA, to appeal Baig J.'s decision to this court. The Crown contests this court's jurisdiction to grant leave to appeal from the Ontario Court of Justice's refusal to extend time for Mr. Borges to appeal his conviction. [0]For the reasons that follow, I find that this court does not have jurisdiction to grant leave to appeal in this case, and, in any event, I would dismiss the application on the merits.

This Court's Jurisdiction to Grant Leave to Appeal

[5] The POA contains three classes of offences set out in Parts I, II and III respectively. Part VII deals with appeals and review under the POA. For all offences, Part VII provides a two-step process for appeals. For offences under Parts I and II, the first appeal is to the Ontario Court of Justice and then, with leave, a second appeal lies to the Court of Appeal. The offence in this case is a Part III offence. The route of appeals for Part III offences is set out in ss. 116 and 131, which provide:

116(1) Where a proceeding is commenced by information under Part III, the defendant or the prosecutor or the Attorney General by way of intervention may appeal from, (a) a conviction; (b) a dismissal; (c) a finding as to ability, because of mental disorder, to conduct a defence; (d) a sentence; or (e) any other order as to costs.

(2) An appeal under subsection (1) shall be, (a) where the appeal is from the decision of a justice of the peace, to the Ontario Court of Justice presided over by a provincial judge; or (b) where the appeal is from the decision of a provincial judge, to the Superior Court of Justice. . . . . .

131(1) A defendant or the prosecutor or the Attorney General by way of intervention may appeal from the judgment of the court to the Court of Appeal, with leave of a judge of the Court of Appeal on special grounds, upon any question of law alone or as to sentence. (Emphasis added) [page380]

[6] The Crown cited the recent decision of R. v. Melaku (2011), 2011 CanLII 99905 (ON CA), 106 O.R. (3d) 481, [2011] O.J. No. 3835 (C.A.), in which Epstein J.A. (in chambers) found that this court did not have jurisdiction to hear an appeal from a decision dismissing an application for an extension of time in a case concerned with an offence under Part I of the POA. The Crown recognized the decision was of limited relevance because appeals of Part I offences are provided for under different sections of the POA than Part III offences. The decision in Melaku turned on the particular words of those different sections.

[7] However, the Crown relies on Melaku for Epstein J.A.'s assertion that a limited right of appeal is consistent with the overall scheme of the POA, the object of the POA and the intention of the legislature. Epstein J.A. said, at para. 44, that the dead-end for appeals is consistent with the "various provisions in the POA [that] clearly contemplate a summary procedure, one that is efficient and expedient, when it comes to the progress of certain types of offences, particularly ones, such as those involved in this case, that are more regulatory than criminal in nature".

[8] Counsel for the applicant points out that in R. v. Klimov, [2007] O.J. No. 215, 2007 CarswellOnt 175 (C.A.), this court granted leave to appeal from a decision refusing an extension of time. However, that brief endorsement did not consider the jurisdictional issue. Counsel went on to point out that s. 131 provides an appeal "from the judgment of the court" to the Court of Appeal. He submitted that the word "judgment" was broad enough to encompass a decision denying an extension of time to appeal. He relied on the decision of R. v. Belanger, [2006] O.J. No. 3453 (C.A.), in which Gillese J.A. (in chambers) took that view. She stated that there is no reason to restrict the meaning of the word "judgment" in s. 131 to exclude decisions refusing to extend time. She regarded such an approach as consistent with the decision of Blair J.A. (in chambers) in R. v. Valente (1982), 1982 CanLII 2044 (ON CA), 40 O.R. (2d) 535, [1982] O.J. No. 3620 (C.A.). In that case, Blair J.A. considered a decision declining jurisdiction to be a judgment disposing of the appeal. At the same time, Gillese J.A. noted that in R. v. Gonsalves, [1995] O.J. No. 4046 (C.A.), a panel of this court expressed doubt that it could hear an appeal from an order refusing an extension of time to appeal (albeit in a summary conviction matter). Consequently, while Gillese J.A. granted leave, she deferred the jurisdictional question to the panel hearing the appeal. The Belanger case never proceeded to appeal.

[9] In my view, whether leave to appeal a denial of an extension of time can be sought under s. 131 of the POA does not turn [page381] on the meaning of the word "judgment" in the provision. Section 131 must [be] interpreted in its grammatical and ordinary sense harmoniously with the scheme of the whole POA, the object of the POA and the intention of the legislature.

[10] As noted above, s. 131 is found in Part VII of the POA, which creates a two-tier route for appeals to this court. Section 131, dealing with appeals to this court for Part III offences, must be read in conjunction with s. 116, which provides for the initial appeal. If s. 131 is construed literally in isolation, it would allow appeals from all "judgments of the court", even those at first instance, thereby nullifying the two tier route of appeals that is clearly intended for Part III offences. That construction would render s. 116 superfluous and provide two different routes to appeal POA judgments at first instance to the Court of Appeal. For example, the original decision of the justice of the peace in this case would be a "judgment of the court" and so would be appealable directly to this court. Such a result is inconsistent with the structure of the POA and the route of appeals it clearly provides for. Section 131 must be construed in conjunction with s. 116. The words "the judgment of the court" in s. 131 must mean the judgment of the court to which the initial appeal is taken under s. 116.

[11] The decision of Baig J. to deny the applicant an extension of time is a decision at first instance under s. 85 of the POA. The decision is not appealable under s. 131, which provides only for further appeals, on leave, from judgments made pursuant to s. 116. I conclude that the applicant's application must be dismissed as s. 131 does not apply to the denial of an extension of time to appeal.

[12] This conclusion does not leave a defendant without recourse. I add, as did Epstein J.A. in Melaku, that at para. 48 "parties seeking redress from an application under s. 85 of the POA have recourse to s. 140, which explicitly provides for the availability of extraordinary remedies in the Superior Court".

The Merits of the Appeal

[13] In any event, even if I found that this court had jurisdiction to grant the relief sought, I would not allow this application, as the proposed appeal is without merit.

[14] The applicant filed an affidavit that he is a professional truck driver and requires his license for his livelihood, that at the time of the offense he was unaware his licence was suspended and that he believed he would receive notice of the new trial date in the mail just as he had received notice of the original trial date. [page382]

[15] Proceedings under Part III are commenced by information. A defendant, such as the applicant, must receive notice of the charge and the first appearance date by a summons issued under ss. 22 or 24. Section 26 prescribes the content of such a summons and how it must be served. Section 26(1) reads:

26(1) A summons issued under section 22 or 24 shall, (a) be directed to the defendant; (b) set out briefly the offence in respect of which the defendant is charged; and (c) require the defendant to attend court at a time and place stated therein and to attend thereafter as required by the court in order to be dealt with according to law. (Emphasis added)

[16] Section 32 of the Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200 prescribes that a summons under s. 22 shall be in form 104 and a summons under s. 24 shall be in form 106. Both of these forms contain the language set out above in s. 26(1)(c) of the POA:

26(1)(c) Therefore you are commanded in Her Majesty's name to appear before the Ontario Court (Provincial Division) at [blank] on the [date] at [time] at [courtroom] and to appear thereafter as required by the court in order to be dealt with according to law. (Emphasis added)

[17] Section 49 of the POA deals with adjournments. It gives the Ontario Court of Justice, and in specific cases the clerk, the power to adjourn matters from time to time. There is nothing in s. 49 that requires a defendant to be notified of an adjourned date.

[18] Section 50 of the POA speaks to how a defendant may appear in court and provides that he may do so in person or by representative.

[19] Finally, s. 54 of the POA specifically deals with convictions in absentia. Section 54(1) reads as follows:

54(1) Where a defendant does not appear at the time and place appointed for a hearing and it is proved by the prosecutor, having been given a reasonable opportunity to do so, that a summons was served, a notice of trial was given under Part I or II, an undertaking to appear was given or a recognizance to appear was entered into, as the case may be, or where the defendant does not appear upon the resumption of a hearing that has been adjourned, the court may, (a) proceed to hear and determine the proceeding in the absence of the defendant; or (b) adjourn the hearing and, if it thinks fit, issue a summons to appear or issue a warrant in the prescribed form for the arrest of the defendant. [page383]

[20] As can be seen, s. 54 requires the prosecutor to prove that the defendant had notice of the original trial date. It does not require the prosecutor to prove that the defendant received any notice of an adjourned date.

[21] There is nothing in the POA that requires that notice be given to a defendant of dates subsequent to those set out in the initial summons, or gives a defendant any expectation of receiving such notice. It is implicit in the wording of the summons under s. 26(1)(c), and the scheme of the POA, that the defendant receive notice of further appearances and trial dates directly from the court in court either in person or through his representative. The court does not bear the responsibility of providing formal notice of court dates beyond those contained in the initial summons.

[22] The constitutionality of s. 54 and its predecessor, s. 55(1), were upheld in R. v. Felipa (1986), 1986 CanLII 2489 (ON CA), 55 O.R. (2d) 362, [1986] O.J. No. 419 (C.A.), and more recently in R. v. Jenkins (2010), 99 O.R. (3d) 561, [2010] O.J. No. 1517, 2010 ONCA 278. This court held that these provisions do not deprive the defendant of the right to be present at his or her trial. The defendant may exercise that right by appearing at the time and place fixed for the trial. Section 54 merely provides the machinery to be employed if the defendant does not avail himself of his or her right to appear at trial. The court has the discretion to proceed with the trial in the absence of the defendant, or the court can adjourn the matter and, if it thinks fit, issue a further summons or a warrant for the arrest of the defendant.

[23] The court observed in Felipa, at p. 363 O.R., that

[t]he appellant was not served with any notice of the adjourned date. If he had inquired, he could have ascertained the date from the court office and appeared on December 4th.

[24] Baig J.'s reasons in this case are consistent with this observation. Counsel submits that Baig J., in effect, decided the appeal on its merits rather than considering the application for an extension of time. I do not agree. Baig J. had to consider the merits of the proposed appeal in disposing of the application to extend time and that is what he did in his disposition.

[25] Counsel for the applicant submits that leave should be granted so that this court can enunciate a test as to when a justice may appropriately exercise discretion to proceed in the absence of the defendant under s. 54. In my view, an appeal is not necessary for that purpose. Section 54 itself clearly sets out the prerequisites to the exercise of the court's discretion.

[26] I do not consider it essential to the public interest or the due administration of justice that leave to appeal be granted; [page384] therefore, I would have dismissed the application even if I found that this court has jurisdiction to grant the relief sought.

Application dismissed.