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

106 O.R. (3d) 481

Court of Appeal for Ontario,

Epstein J.A. (in Chambers)

July 20, 2011

Criminal law -- Provincial offences -- Appeals -- Extension of time -- Jurisdiction -- Court of Appeal not having jurisdiction to hear appeal from denial of application for extension of time as Provincial Offences Act not creating right of appeal from denial -- Provincial Offences Act, R.S.O. 1990, c. P.33, s. 85(1).

The applicant was charged with a number of offences under the Provincial Offences Act ("POA"). Each matter was commenced under Part I of the POA through a certificate of offence. The applicant requested a trial. He failed to appear, was deemed not to dispute the charges and was convicted. When he became aware of the convictions, he applied under s. 85(1) of the POA for an extension of time in which to file a notice of appeal. The application was denied. He applied for leave to appeal that decision.

Held, the application should be dismissed.

The POA does not provide for an appeal from an unsuccessful application in the Ontario Court of Justice under s. 85(1) for an extension of time in which to file a notice of appeal. The Court of Appeal did not have jurisdiction to grant leave to appeal.

APPLICATION for leave to appeal a denial of an application for the extension of time in which to file a notice of appeal under the Provincial Offences Act.

Cases referred to R. v. Baccus, [2008] O.J. No. 2503, 2008 ONCA 508, 79 W.C.B. (2d) 58; R. v. Klimov, [2007] O.J. No. 215, 2007 CarswellOnt 175 (C.A.) [Leave to appeal granted [2008] O.J. No. 413, 2008 ONCA 84]; R. v. Shleymovich, [2011] O.J. No. 233, 2011 ONCA 59, consd Other cases referred to Brent v. Brent (2004), 2004 CanLII 17996 (ON CA), 69 O.R. (3d) 737, [2004] O.J. No. 637, 183 O.A.C. 187, 1 R.F.L. (6th) 40, 129 A.C.W.S. (3d) 13 (C.A.); R. v. Carson (1983), 1983 CanLII 1812 (ON CA), 41 O.R. (2d) 420, [1983] O.J. No. 2996, 147 D.L.R. (3d) 754, 4 C.C.C. (3d) 476, 34 C.R. (3d) 86, 4 C.R.R. 289, 20 M.V.R. 54 (C.A.); R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, 238 O.A.C. 242, 59 C.R. (6th) 258, 234 C.C.C. (3d) 463, 78 W.C.B. (2d) 606; R. v. Scherba (2001), 2001 CanLII 4208 (ON CA), 54 O.R. (3d) 555, [2001] O.J. No. 2235, 146 O.A.C. 99, 155 C.C.C. (3d) 512, 50 W.C.B. (2d) 148 (C.A.); Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006, 76 A.C.W.S. (3d) 894 Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 40 [as am.] Highway Traffic Act, R.S.O. 1990, c. H.8 [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. 9.1, 29(1), 85, (1), (2), 109-115 [as am.], 116-134 [as am.], 135 [as am.], (1) [as am.], (2) [as am.], 136-138 [as am.], 139 [as am.], (2), 140-142 [as am.] Rules and regulations referred to Demerit Point System, O. Reg. 339/94 [as am.] [page482]

Yohanes Melaku, in person. Benita Wassenaar, for respondent.

EPSTEIN J.A. (in Chambers): --

I. Overview

[1] This application raises the issue of whether this court has jurisdiction to grant leave to appeal from a denial of an extension of time in which to file a notice of appeal, under. s. 85(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33 ("POA").

[2] While the applicant, Mr. Melaku, was out of the country, he was found guilty of a number of Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA") and by-law offences. Upon his return, he applied to the Ontario Court of Justice ("OCJ"), under s. 85(1) of the POA, for an extension of time in which to file a notice of appeal from those convictions. On January 13, 2011, a judge of the OCJ denied the request. Mr. Melaku comes before this court seeking leave to appeal this decision.

[3] As a preliminary matter, the Crown raises this court's jurisdiction to consider the applicant's motion. Simply put, the Crown takes the position that this court does not have jurisdiction to hear an appeal of a denial of an application for an extension of time pursuant to s. 85(1) of the POA.

[4] For the reasons that follow, I agree.

II. The Facts

[5] The applicant works as a taxi driver in Toronto. During a six-month period from November 2007 through May 2008, he received a number of offence notices for various driving offences and offences having to do with regulations pertaining to the use of a taxi.

[6] Each matter was commenced under Part I of the POA through a certificate of offence. Mr. Melaku requested a trial in respect of each charge. He failed to appear and was therefore deemed not to dispute the charge by virtue of s. 9.1 of the POA and was convicted.

[7] The particulars of the offences of which Mr. Melaku was convicted are summarized in the following chart: [page483]

[QL:GRAPHIC NAME="106OR3d481-1.jpg"/]

[8] The applicant was sentenced to pay fines in various amounts. Tallying his fines, victim fine surcharges and administrative costs, the total he was ordered to pay was $1,988. Although it is not readily apparent from the record, by virtue of the Demerit Point System, O. Reg. 339/94 under the HTA, each of the HTA offences of which Mr. Melaku was convicted carries either two or three demerit points, for a total of 16 demerit points.

[9] On September 20, 2010, Mr. Melaku brought applications before the OCJ for an extension of time to appeal each conviction. On the prescribed court forms, where the applicant is asked to set out the reason for the failure to appeal within the allotted time, Mr. Melaku indicated, "I was out of Canada for two years as result [sic] I didn't get the trial notice on time."

[10] Mr. Melaku filed sworn affidavits in support of his applications. In them, he explained that he did not attend his trials because he was out of Canada at the time. He indicated that he first became aware of his convictions on September 15, 2010, and that he formed the intention to appeal on September 20, 2010. He also indicated that his grounds of appeal against conviction are, "I didn't receive the trial notice on time" and, against sentence, "I was convicted without trial".

[11] Mr. Melaku's applications to extend the time in which to appeal were heard by Young J. of the OCJ on January 13, 2011. Mr. Melaku was present, represented by an agent.

[12] At the hearing, the Crown indicated that while Mr. Melaku, upon being charged with the various infractions, had filed a request for a trial date in respect of each matter within the [page484] required time, he did not attend any of the scheduled trials and was convicted in his absence. The Crown therefore opposed Mr. Melaku's applications on the basis that "there appears to [have] be[en] absolutely no due diligence in relation to having anyone appear in relation to these matters on any of these nine [sic] trial dates".

[13] Mr. Melaku's agent submitted that Mr. Melaku had left the country on September 30, 2008 to attend his father's funeral and thereafter remained abroad to take care of younger siblings and his father's property. These responsibilities kept him away for two years -- until his return on September 2, 2010.

[14] The Crown did not dispute this chronology as Mr. Melaku presented concrete evidence in support.

[15] The agent also made submissions that Mr. Melaku supports his family by driving a taxi and that these convictions will render him uninsurable, thereby preventing him from earning a living as a taxi driver.

[16] The OCJ judge inquired why Mr. Melaku had not arranged for someone to attend to these matters while he was out of the country. Mr. Melaku advised that he had not told his friends about them, and his wife, who remained in Canada, was not familiar with the court process.

[17] In response to this explanation, the court said:

Well, if there is anybody that should know how important these things are and to look after them, it is a taxi driver. You know as well, better than anyone that you have got to be diligent about these things and you have not been. And I am not going to be a party to resurrecting all these old charges because it is just not the right thing to do.

[18] The OCJ judge, after indicating that Mr. Melaku "may have to look for other work", dismissed the motion for an extension of time to appeal.

[19] At the commencement of Mr. Melaku's motion for leave to appeal from the decision of Young J., Crown counsel raised the jurisdictional issue set out above. Given Mr. Melaku was represented by duty counsel, I asked both counsel to research the issue and provide written submissions.

III. Legislative Framework

[20] A right of appeal to the Court of Appeal must be derived from a statutory source: R. v. Scherba (2001), 2001 CanLII 4208 (ON CA), 54 O.R. (3d) 555, [2001] O.J. No. 2235 (C.A.), at para. 10; Brent v. Brent (2004), 2004 CanLII 17996 (ON CA), 69 O.R. (3d) 737, [2004] O.J. No. 637 (C.A.), at para. 9. It is therefore necessary to set out the relevant statutory provisions.

[21] Mr. Melaku was convicted by a judge of the OCJ pursuant to that court's jurisdiction under s. 29(1) of the POA. [page485]

[22] Section 40 of the Courts of Justice Act, R.S.O. 1990, c. C.43 addresses appeals from the OCJ:

Appeals

40(1) If no provision is made concerning an appeal from an order of the Ontario Court of Justice, an appeal lies to the Superior Court of Justice.

Exception

(2) Subsection (1) does not apply to a proceeding under the Criminal Code (Canada) or the Provincial Offences Act.

[23] Thus, the statutory source of an appeal from the OCJ in a provincial offences matter is to be found in the POA.

[24] This takes me to Part VII of the POA, which relates to the "Appeals and Review" that can be pursued in provincial offences matters. This Part is divided into four sections: the first section (ss. 109-15) deals with general matters, the second section (ss. 116-34) addresses "Appeals Under Part III", the third section (ss. 135-39) deals with "Appeals Under Parts I and II" and the final section (ss. 140-42) is the "Review" section. Therefore, the Part (I, II or III) under which a provincial offence falls determines the provisions that apply.

[25] Appeals to the Court of Appeal for Ontario for Part I offences are governed by s. 139 of the POA, which provides:

139(1) An appeal lies from the judgment of the Ontario Court of Justice in an appeal under section 135 to the Court of Appeal, with leave of a judge of the Court of Appeal, on special grounds, upon any question of law alone.

[26] In addition to the restrictions of special grounds and a question of law alone, s. 139 permits appeals only of judgments of the OCJ made under s. 135, which provides:

135(1) A defendant or the prosecutor or the Attorney General by way of intervention is entitled to appeal an acquittal, conviction or sentence in a proceeding commenced by certificate under Part I or II and the appeal shall be to the Ontario Court of Justice presided over by a provincial judge.

[27] However, before even launching his appeals, Mr. Melaku had to overcome his failure to meet the procedural requirements, specifically the time limit, set out in s. 135(2), as follows:

135(2) A notice of appeal shall be in the prescribed form and shall state the reasons why the appeal is taken and shall be filed with the clerk of the court within 30 days after the making of the decision appealed from, in accordance with the rules of court.

[28] Mr. Melaku found himself well past the 30-day time limit. However, the drafters of the legislation provided recourse for those who miss the time period. Section 85 of the POA gives a judge of the OCJ discretion to extend the time: [page486]

85(1) Subject to this section, the court may extend any time fixed by this Act, by the regulations made under this Act or the rules of court for doing anything other than commencing or recommencing a proceeding, whether or not the time has expired.

[29] However, Mr. Melaku's applications under s. 85(1) of the POA were dismissed. It is from these dismissals that he seeks leave to appeal to this court.

IV. Positions of the Parties

[30] The Crown, in its submission that this court does not have jurisdiction, argues that the POA contains no provision granting a right of appeal from a decision of a judge of the OCJ to dismiss an application for an extension of time within which to appeal a conviction registered under s. 9.1 of the POA.

[31] Mr. Melaku, in his original materials, essentially takes the position that it is against the public interest that he be convicted of an offence without requiring the Crown to establish his guilt through the process of a trial.

[32] Duty counsel, in his written submissions on Mr. Melaku's behalf, fairly concedes that it would appear that the Court of Appeal does not explicitly possess jurisdiction to consider an appeal from the dismissal of an application to extend time under s. 85 of the POA. However, he points out that in three cases, this court has, in fact, considered such an appeal.

[33] In R. v. Baccus, [2008] O.J. No. 2503, 2008 ONCA 508 and in R. v. Klimov, [2007] O.J. No. 215, 2007 CarswellOnt 175, leave to appeal a denial by a judge of the OCJ of an application to extend time to appeal was granted by this court [[2008] O.J. No. 413, 2008 ONCA 84] in circumstances where the judge appeared to have treated the application for extension of time as an appeal on the merits.

[34] More recently, in R. v. Shleymovich, [2011] O.J. No. 233, 2011 ONCA 59, this court granted leave to appeal from a denial of an application for a further extension of time to appeal on the ground that the interpretation of s. 85(2) raised a question of law on which leave to appeal should be granted.

[35] Thus, argues duty counsel, these cases establish that where, as here, an OCJ judge, in denying an extension of time, addresses the merits of the appeal, this court has jurisdiction to treat the application for an extension as an appeal and assume jurisdiction under s. 139 of the POA to hear the appeal. Duty counsel also argues that with the recent (2009) enactment of s. 85(2) of the POA, which limits an individual to one application for an extension of time for filing an appeal with respect to a specific conviction, this court has a greater obligation to review [page487] the reasonableness of, and circumstances behind, the denial of an extension of time to ensure that the public interest and the administration of justice are maintained.

V. Analysis

[36] I agree with both the Crown and duty counsel that the statutory scheme contains no provision that gives Mr. Melaku a right of appeal to this court from the dismissal of his request for an extension of time to appeal.

[37] Under s. 139 of the POA, in limited circumstances and with leave, an individual who has had an appeal of his or her matter considered by a judge of the OCJ under s. 135(1) may be permitted a further appeal to this court. However, here, because Mr. Melaku was unable to satisfy the conditions set out in s. 135(2), he never had access to s. 135(1) and, as such, never appealed his conviction to the OCJ.

[38] The relief from this procedural barrier, an application under s. 85(1) of the POA, was unsuccessful. There is nothing in the POA that indicates that there is an appeal from an unsuccessful application under s. 85(1).

[39] I reject any suggestion that s. 135(1) may be interpreted so as to provide an appeal from a dismissal of an application under s. 85(1). On the ordinary meaning of the words in s. 135, a further appeal to this court is available only from a decision of a judge of the OCJ on an initial appeal, from an acquittal, conviction or sentence. A dismissal of a request for an extension of time does not fall into any of those unambiguous categories.

[40] In summary, on the plain and ordinary meaning of the words in the various applicable legislative provisions, it is clear that in provincial offences matters that proceed under Part I of the POA (by certificate of offence), an initial appeal lies under s. 135 from an acquittal, conviction or sentence to a judge of the OCJ. Pursuant to s. 139, a further appeal lies to this court only from a judgment of a judge of the OCJ and only in limited circumstances and with leave. If an individual is out of time in pursuing this appeal opportunity, he or she may apply for an extension under s. 85(1) but, if unsuccessful in that application, no appeal lies to this court.

[41] My response to the applicant's argument that denying him a right to have his charges determined on their merits is unfair is grounded in the intention that is clear from the statutory scheme.

[42] The words of a statute are to be "read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention [page488] of Parliament" (or the legislature, as the case may be): Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21.

[43] In the context of this motion, this principle of statutory interpretation requires an inquiry into whether the dead-end created by s. 85 is consistent with the overall scheme of the POA, the object of the POA and the intention of the legislature.

[44] In my view, it is. Significantly, various provisions in the POA 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. I refer to the fact that (1) the circumstances in which leave to appeal to this court may be granted are restricted by s. 139(2) to those that are essential in the public interest or for the due administration of justice; and (2) the recently enacted s. 85(2) restricts applications for an extension of time for filing an appeal to one.

[45] The fairness that Mr. Melaku understandably relies on must be understood in the context of the need for balance within our regulatory and criminal justice systems. All of the appeal routes provided for in the statutes that govern these systems provide for a varying number of opportunities to appeal depending on the seriousness of the matter in issue.

[46] The less serious the matter, the more limited the opportunities to have it reconsidered. In R. v. R. (R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641, [2008] O.J. No. 2468, 234 C.C.C. (3d) 463 (C.A.), Doherty J.A. reinforced the importance of limiting rights of appeal in the context of summary conviction appeals in criminal matters. At para. 16, he stated:

Appeals are an integral part of the criminal justice system in Canada. They protect against wrongful convictions and 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. [page489]

[47] While I fully understand Mr. Melaku's point about fairness and the importance of guarding against procedural technicalities interfering with having a matter determined on its merits, I am also mindful of the need for our regulatory system to be tempered by another form of fairness -- fairness to the public in general. The manner in which our system of decreased opportunities to appeal in cases involving less serious matters applies to offences that come under Part I of the POA is intended to alleviate inconvenience, cost and hardship and to remedy an over-taxed court system. In this regard, I agree with Brooke J.A., speaking for the court in R. v. Carson (1983), 1983 CanLII 1812 (ON CA), 41 O.R. (2d) 420, [1983] O.J. No. 2996 (C.A.), at p. 423 O.R., where he described the approach set out by the legislative scheme in the POA as "both fair and logical in the circumstances".

[48] Finally, I note that 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.

[49] I conclude, therefore, that the interpretation that not only gives ordinary meaning to the words in the relevant provisions of the POA but also is consistent with the legislative purpose of expediency, finality and fairness is that which forecloses a further right of appeal from a decision under s. 85(1) granting or refusing an extension of time to appeal.

[50] My conclusion that this court does not have jurisdiction in this matter requires me to return to the three cases referred to above in which it may be inferred that this court implicitly assumed jurisdiction by considering an appeal from a failed application to extend the time in which to file an appeal.

[51] In my view, these decisions do not add anything to this analysis. I say this for two reasons. First, in no case was the jurisdiction issue the Crown has squarely raised in this case put before the court. Secondly, in each of the three cases, the Crown ultimately consented to an order allowing the appeal.

[52] Neither party in this appeal has provided, nor am I aware of, any authority that has previously directly considered the jurisdictional issue the Crown raises in this motion.

[53] Based on this analysis, I conclude that this court has no jurisdiction.

VI. Disposition

[54] For these reasons, the application is dismissed for lack of jurisdiction.

Application dismissed.