Her Majesty the Queen v. Metin

[Indexed as: R. v. Metin]

Ontario Reports

Court of Appeal for Ontario,

MacPherson J.A. (in Chambers)

January 16, 2013

113 O.R. (3d) 716 | 2013 ONCA 21

Case Summary

Criminal law — Appeal — Leave to appeal — Section 839 of Criminal Code permitting single judge of Court of Appeal to determine application for leave to appeal decision of summary conviction appeal court prior to hearing of appeal — Criminal Code, R.S.O. 1985, c. C-46, s. 839.

The accused pleaded guilty to the offences of assault and uttering threats, following the Crown's election to proceed summarily. Almost three years later, he brought an application for extension of time to file a notice of appeal in summary conviction appeal court. The application was dismissed on the basis that the accused did not establish that he had a bona fide intention to appeal within the appeal period, did not provide any explanation for the delay and could not establish any merit to the appeal. The accused filed a notice of application for leave to appeal and notice of appeal in the Court of Appeal. The Crown applied to have leave to appeal determined by a single judge in advance of the appeal hearing.

Held, the application should be granted; leave to appeal should be refused.

A single judge of the Court of Appeal has jurisdiction under s. 839 of the Criminal Code to make an order denying an application for leave to appeal. It was appropriate to make such an order in this case as the accused had not identified any error with respect to a question of law alone in the decision denying an extension of time to bring the appeal, there was nothing in the record to suggest that the appeal raised any issues significant to the administration of justice in the province and there was no merit to the proposed appeal.

Cases referred to

R. v. Brochu, unreported, October 14, 2008 (Ont. C.A.); R. v. Davies, July 7, 2011 (Ont. C.A.); R. v. Ismail, unreported, August 10, 2012 (Ont. C.A.); R. v. Menear, 2002 7570 (ON CA), [2002] O.J. No. 244, 155 O.A.C. 13, 162 C.C.C. (3d) 233, 52 W.C.B. (2d) 389 (C.A.); R. v. Nwaiku, unreported, February 7, 2012 (Ont. C.A.); R. v. Pea (2008), 2008 89824 (ON CA), 93 O.R. (3d) 67, [2008] O.J. No. 3887, 69 M.V.R. (5th) 11, 79 W.C.B. (2d) 262 (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 [page717]

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, s. 839 [as am.], (1) [as am.]

APPLICATION by the Crown to have a single judge of the Court of Appeal determine the accused's application for leave to appeal the decision of the summary conviction appeal court.

Christine Tier, for applicant.

Richard H. Parker, for respondent.

MACPHERSON J.A. (in Chambers): —

A. Introduction

[1] This is a summary conviction matter. Under s. 839(1) of the Criminal Code, R.S.C. 1985, c. C-46, appeals to this court from the decision of a summary conviction appeal court may only be taken with leave of the court.

[2] Haluk Metin has filed a notice of application for leave to appeal with this court, as he is required to do under s. 839.

[3] In Ontario, a practice has arisen in "the vast majority of summary proceeding matters" whereby a panel of this court will hear the application for leave to appeal and the appeal itself, together, at a single hearing: see R. v. R. (R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641, [2008] O.J. No. 2468 (C.A.), at para. 2.

[4] In this case, the applicant Crown proposes a different route for the determination of the respondent's application for leave to appeal: its position is that s. 839 of the Criminal Code permits a single judge to determine the application prior to the appeal hearing.

B. Facts

[5] On October 28, 2008, the respondent appeared before Merenda J. in the Ontario Court of Justice and pleaded guilty to assault and uttering threats. The charges related to offences committed against his wife on October 4 and 5, 2007. Pursuant to a joint submission, the respondent received a suspended sentence and 30 months' probation.

[6] Almost three years later, the respondent brought an application for extension of time to file a notice of appeal in summary conviction appeal court. The application was heard by Nordheimer J. on June 20, 2011 and dismissed in a brief endorsement the following day. Applying the factors set out in R. v. Menear, 2002 7570 (ON CA), [2002] O.J. No. 244, 162 C.C.C. (3d) 233 (C.A.), at para. 20, Nordheimer J. held that Mr. Metin did not establish that he had a bona fide intention to appeal within the appeal [page718] period, did not provide any explanation for the delay and could not establish any merit to the appeal.

[7] On July 19, 2011, the respondent filed a notice of application for leave to appeal and notice of appeal in the Court of Appeal.

[8] After several months of fruitless discussions between counsel about some of the issues raised by the proposed appeal, including ineffective assistance of trial counsel and fresh evidence about a possible retraction from the complainant, the Crown brought this application on September 27, 2012.

C. Issues

[9] The issues are:

(1) Does a single judge of this court have jurisdiction to make an order denying an application for leave to appeal?

(2) If the answer to (1) is yes, should such an order be made in this case?

D. Analysis

(1) The jurisdictional issue

[10] Does a single judge of this court have jurisdiction to determine an application for leave to appeal? The starting point for answering this question is s. 839(1) of the Criminal Code, which provides:

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; or

(b) a decision of an appeal court under section 834, except where that court is the court of appeal.

(Emphasis added)

[11] In my view, the wording of this provision is clear: if leave to appeal a particular decision to the Court of Appeal is required, the application for leave may be determined by that court (i.e., a panel of the court) or by "a judge thereof" (i.e., a single judge). I simply cannot see any ambiguity in the relevant words of this provision.

[12] In addition, I observe that there are many examples in Ontario of a single judge dealing with leave to appeal applications pursuant to either s. 839(1) or similar provisions of the Criminal Code. Single judges have dismissed applications for leave in appeals relating to impaired driving and other driving offences: [page719] see, for example, R. v. Pea (2008), 2008 89824 (ON CA), 93 O.R. (3d) 67, [2008] O.J. No. 3887 (C.A.); R. v. Davies, July 7, 2011, unreported (C.A.); and R. v. Ismail, August 10, 2012, unreported (C.A.). Similarly, single judges have refused leave in some sentence appeals: see, for example, R. v. Brochu, October 14, 2008, unreported (C.A.); and R. v. Nwaiku, February 7, 2012, unreported (C.A.).

[13] Finally, interpreting s. 839(1) in this fashion is, in my view, consistent with the principal theme of R. (R.), the leading Ontario case dealing with the process for determining leave to appeal applications. The thrust of R. (R.) is that the integrity of the relevant Criminal Code provisions is respected by a clear demarcation between a leave to appeal and the appeal itself. As expressed by Doherty J.A., at paras. 42-43:

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. Ignoring 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.

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.

[14] In my view, either party's resort, in a summary conviction appeal proceeding, to a single judge of this court for the determination of an application for leave to appeal will, in many cases, result in a conclusive determination of the case.[^1] By and large, this outcome would be expeditious, cost effective and entirely fair. Fortunately, the plain meaning of the words in s. 839(1) of the Criminal Code permits this result. [page720]

(2) The merits

[15] The test for granting leave to appeal under s. 839(1) of the Criminal Code encompasses three factors: (1) the proposed appeal must involve a question of law alone; (2) the proposed question of law must be significant, beyond the particular case, to the administration of justice in the province; and (3) the proposed appeal should have some apparent merit: see R. (R.), at paras. 29-31.

[16] The respondent has established none of these factors in either his appeal material or his submissions.

[17] The respondent has not identified any error with respect to a question of law alone in Nordheimer J.'s discretionary decision denying an extension of time to bring his appeal. There is nothing in the record to suggest that the appeal raises any issues significant to the administration of justice in the province. And, just as Nordheimer J. saw no merit to the proposed appeal to the Superior Court of Justice, I can detect no merit in any of the vague, bordering on inchoate, grounds proposed for the appeal to this court.

[18] Put bluntly, this is a paradigmatic case in which it is appropriate for the Crown to apply to have leave to appeal determined by a single judge in advance of the appeal hearing.

E. Disposition

[19] The application is granted. Leave to appeal is refused.

Application granted; leave to appeal refused.

Notes

[^1]: There may be an occasional case where a single judge might, for reasons of process or substance, refer the leave application to a panel of the court.