COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Massara, 2013 ONCA 519
DATE: 20130815
DOCKET: M42705
Lauwers J.A. (In Chambers)
BETWEEN
Her Majesty the Queen
Respondent
and
Orsola Massara
Applicant
Orsola Massara, appearing in person
Eric Morgan, amicus curiae
Ruhia Jokhio, for the respondent
Heard: July 31, 2013
On application for the leave to appeal under s. 131 of the Provincial Offences Act from the judgment entered on November 14, 2012 by Justice A.D. Cooper of the Ontario Court of Justice, dismissing an appeal from the judgment dated December 9, 2009 by Justice of the Peace B. Quinn.
ENDORSEMENT
[1] The applicant seeks leave to appeal under s. 131 of the Provincial Offences Act, R.S.O 1990, c.P.33 as amended. The appeal was originally filed with the Superior Court of Justice, but on April 24, 2013 Durno J. advised Mr. Massara that the appeal should have been brought to the Court of Appeal.
[2] Counsel for the respondent sought an adjournment of this leave motion on the basis that her principal, Harold Watson, who appeared before Justice of the Peace Quinn on December 9, 2009, but not on the appeal before Cooper J. on November 14, 2012, was absent. I declined leave on the basis that the leave motion could be argued without the detailed file knowledge that Mr. Watson had, and that Frank Massara, who appeared for his mother, the owner of the property, should not be forced to take another day off work to attend.
[3] As a result of pre-trial negotiations Mr. Massara pleaded guilty on his mother’s behalf to a charge of operating a contractor’s yard on land zoned agricultural contrary to the Town of Milton’s zoning by-law contrary to s. 67(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended. Mr. Watson, who appeared for the Town of Milton, made the joint submission and the appellant agreed to a fine of $3,500 payable over the course of a year. As it turned out, however, the fine bore an unexpected surcharge. Further, Mr. Massara developed the view that the prosecutor had misled him about comparable cases, so that he had been induced to agree to a fine that was too high. Despite the joint submission, he appealed the fine levied by the trial justice.
[4] The appellant was notified that the transcript was ready for pick up on October 9, 2012. The matter was not perfected within 30 days of receiving notice from the court that the transcript was ready to be picked up, as required by O. Reg. 723/94, s. 17(c).
[5] The Municipality brought a motion to dismiss the appeal for the failure to file the trial transcript, to be heard on the date scheduled for the appeal. Mr. Massara, however, showed up with the transcript in hand. He explained there had been two deaths in the family and that he had been in and out of town.
[6] Initially the appeal court judge was responsive to the fact that the transcripts were available. In speaking to the prosecutor, he asked: “What if he files it right now, then? Can he – we can get it on, then, can’t we? This is all that’s holding it up, Madam prosecutor?”
[7] The prosecutor answered affirmatively, but then went on to make submissions about the lengthy delay, and the fact that the appellant needed to have the guilty plea set aside.
[8] Mr. Massara explained: “My mother can’t afford to make the payment. She’s a senior citizen, she’s old, she’s sick, she’s can’t afford it.” The appeal court judge then said: “Alright I’m dismissing everything because that’s not a valid ground of appeal.”
[9] The prosecutor chimed in that there were other convictions dating back to 1991 for the same property, on which the fines remained unpaid. At that the appeal court judge refused to hear anything further from Mr. Massara. Although it is somewhat difficult to discern from the transcript, the bottom line from the appeal court judge is at the very end of the transcript: “It can’t go on any longer, Sir”.
[10] The Municipality takes the view that the appeal court judge dismissed the appeal properly on the basis of delay, pointing out that when the appeal was dismissed on November 14, 2012, almost three years had passed since the original conviction and sentence.
[11] Mr. Massara contends that the delay was largely a result of tardiness in transcript preparation by the court office, and that the appeal should have been allowed to continue.
[12] The principles for granting leave to appeal leave under s. 131 of the Provincial Offences Act are set out in Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13, per Watt J.A. at paras. 33-35. There must be a question of law alone, the resolution of which may have an impact on the jurisprudence in a way that is of interest to the public at large, and that resolution must be essential, in the sense of “material, important,” in the public interest or for the due administration of justice: R. v. Krukowski (1991), 1991 CanLII 7305 (ON CA), 2 O.R. (3d) 155 (C.A.), at para. 13.
[13] In R. v. Jamieson (1981), 1981 CanLII 3223 (ON CA), 64 C.C.C. (2d) 550 (Ont. C.A.) MacKinnon A.C.J.O. explained, at pp. 551-552, in granting leave to appeal:
The Provincial Offences Act was intended to establish a speedy, efficient and convenient method of dealing with offences under Acts of the Legislature and under regulations or by-laws made under the authority of an Act of the Legislature. The courts which hear these matters are given a wide discretion as to how they may proceed. However, s. 47(1) makes it clear, as one would expect, that “the defendant is entitled to make his full answer and defence”.
It seems to me that the applicant has a justified sense of grievance that her defence has never been heard. Counsel for the Crown does not suggest that her statement as to the reason for her failure to appear at the time fixed is untrue or should be questioned. Indeed, when the applicant appeared before the Provincial Court Judge there was no opportunity given for the Crown and the applicant to consider whether they could agree in this explanation as a fact if they had so desired.
In my view, the proceedings before the Provincial Court Judge may have been unsatisfactory. The Provincial Offences Act is not intended as a trap for the unskilled or unwary but rather, as already stated, as an inexpensive and efficient way of dealing with, for the most part, minor offences. The way in which the proceedings were conducted by the Provincial Court Judge may have resulted in a denial of natural justice.
This court later adopted MacKinnon A.C.J.O.’s reasons for granting leave: R. v. Jamieson (1982), 1982 CanLII 3910 (ON CA), 66 C.C.C. (2d) 576 (Ont. C.A.).
[14] It seems to me that the words of MacKinnon A.C.J.O.’s apply here with necessary modifications. The appellant had the right to appeal. He reasonably explained the delay in producing the transcript that led to the motion and the missing transcript was available.
[15] Mr. Massara takes issue with the fairness of the proceeding on the motion before the appeal court judge and with the disposition. The Provincial Offences Court, and the Ontario Court of Justice to which appeals go from that court, are the face of justice to many citizens. They are often self-represented and are not familiar with the court, its manner of proceeding or its arcane rules.
[16] As I noted in R. v. Georgalis, [2013] O.J. No. 1921 at para. 8, the assumption behind the high threshold for leave to appeal to this court is that an applicant had a full and fair hearing by the appeal judge. Having reviewed the transcript, however, I am concerned that the applicant, who represented his mother, may not have had a full and fair opportunity to argue the motion or the appeal. In my view, this brings the case within the prescription that it is in the interests of “the due administration of justice that leave be granted.” See R. v. Jamieson (1981), at pp. 552-53.
[17] I therefore grant leave to the applicant to appeal.
“P. Lauwers J.A.”