Court of Appeal for Ontario

Citation: R. v. Courtice Auto Wreckers Limited, 2014 ONCA 189 Date: 2014-03-11 Docket: C56426

Before: Cronk, Rouleau and Tulloch JJ.A.

Between:

Her Majesty the Queen Appellant

and

Courtice Auto Wreckers Limited Respondent

Counsel: Danielle Meuleman and Sarah Kromkamp, for the appellant Jeffrey R. Manishen, for the respondent

Heard: October 18, 2013

On appeal from the judgment of Justice Bernd Zabel of the Ontario Court of Justice, dated October 26, 2012.

Rouleau J.A.:

[1] The single issue under appeal is the proper route to be taken by the Crown when it seeks to set aside a decision by a trial court to stay a proceeding commenced under the Provincial Offences Act, R.S.O. 1990, c. P.33 (the "Act"), as a remedy under the Canadian Charter of Rights and Freedoms (the "Charter").

[2] May the Crown appeal such a stay under s. 116(1)(b) of the Act, or must the Crown resort to certiorari? For the reasons that follow, I have concluded that an appeal is the proper route to follow.

FACTS

[3] In October 2007, an order was issued under the Environmental Protection Act, R.S.O. 1990, c. E.19, by a Director with the Ministry of the Environment requiring Courtice Auto Wreckers Limited ("Courtice") to either apply for all applicable approvals to construct a permanent berm on a property near Hamilton, Ontario, or remove all of the berm material from the property. Courtice is alleged not to have complied with the order. On December 14, 2009, Courtice was charged by way of an information under Part III of the Act with failing to comply with the Director's order. The Crown and the defence were ready for trial by July 6, 2010. However, through no fault of either side, the matter was not scheduled for trial until August 30, 2011, more than 20 months after the information was laid.

[4] Before trial, Courtice brought an application under s. 11(b) of the Charter claiming that its right to be tried within a reasonable time had been violated. On August 30, 2011, a justice of the peace granted a stay of all charges pursuant to s. 24(1) of the Charter.

[5] The Crown appealed the stay order pursuant to s. 116(1) of the Act to the Ontario Court of Justice on the ground that the stay was entered in error. Courtice responded by arguing that there is no right of appeal under s. 116(1) of the Act from a judicial stay, including a stay of proceedings entered as a Charter remedy. On October 26, 2012, Zabel J. dismissed the Crown's appeal for want of jurisdiction. He held that the proper avenue for appealing a stay under the Act "is by way of the extraordinary remedy of certiorari in the Superior Court."

[6] The Crown sought leave to appeal to this court and on December 20, 2012, leave was granted by MacPherson J.A.

ISSUE

[7] The issue to be decided is whether the learned provincial offences appeal court judge erred in finding that there is no right of appeal under s. 116(1) of the Act from a judicial stay of proceedings entered as a Charter remedy.

ANALYSIS

[8] Section 116(1) of the Act provides as follows:

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.

[9] The Crown argues that the term "a dismissal" in s. 116(1)(b) encompasses acquittals and other final dispositions that are tantamount to an acquittal. This would include a stay of proceedings entered as a Charter remedy because such a stay is a final disposition that, for all intents and purposes, is tantamount to an acquittal.

[10] For its part, Courtice argues that a stay is not a dismissal as the matter has not been heard on the merits. In Courtice's view, the Crown's remedy is to appeal by way of certiorari pursuant to s. 140(1) of the Act. That section reads as follows:

Mandamus, prohibition, certiorari

140(1) On application, the Superior Court of Justice may by order grant any relief in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari.

[11] The Act makes it clear, however, that both the Crown and the respondent cannot be correct. Section 141(3) of the Act provides that an application under s. 140(1) is not available to "quash a conviction, order or ruling from which an appeal is provided by this Act, whether subject to leave or otherwise."

[12] The case law in the lower courts is, to some extent, divided on this issue. Some cases tend to support the Crown's position: R. v. Boise Cascade Canada Ltd., [1991] O.J. No. 1831 (Gen. Div.); R. v. Barker, [1992] O.J. No. 545 (Gen. Div.); R. v. VTC Industrial Coatings Ltd., [1996] O.J. No. 5478 (Prov. Div.); R. v. Sansone, [1992] O.J. No. 3728 (Prov. Div.). Others could be read as supporting the respondent: Ontario (Ministry of the Environment) v. Sault Ste. Marie (City) (2007), 34 C.E.L.R. (3d) 123 (Ont. S.C); R. v. Smith (2008), [175 C.R.R. (2d) 13 (Ont. S.C.)]; R. v. Kramer (2007), 31 M.P.L.R. (4th) 79 (Ont. S.C.).

1. The relevance of R. v. Jewitt

[13] The issue whether the term "acquittal" encompasses a judicial stay for appeal purposes has been addressed by the Supreme Court of Canada, albeit in a different context, in R. v. Jewitt, [1985] 2 S.C.R. 128. In that case, the Supreme Court considered whether the Crown right to appeal from the judgment or verdict of acquittal of a trial court (as outlined in what was then s. 605(1)(a) of the Criminal Code) included the right to appeal from a judicial stay. In Jewitt, at p. 148, the Supreme Court concluded that the answer was yes because a judicial stay was "tantamount to a judgment or verdict of acquittal."

[14] The debate in Jewitt centered on whether a stay based on an abuse of process by the Crown should be considered tantamount to an acquittal in light of the fact that a stay only suspended proceedings, albeit permanently, in circumstances where an acquittal on the merits was not justified. Put differently, a stay "intervenes to prevent consideration of the merits lest a conviction occur in circumstances which would bring the administration of justice into disrepute": Jewitt, at p. 148.

[15] In reaching the conclusion that a judicial stay based on an abuse of process by the Crown was tantamount to an acquittal for the purposes of determining the scope of the Crown's appeal rights under what was then s. 605(1)(a) of the Criminal Code, the Supreme Court, at p. 144, reviewed the jurisprudence and listed three considerations cited by provincial appellate courts that supported this result:

1. Although the charge remains extant following a stay of proceedings, there is no forum for its further processing and hence a stay is, in reality, a final decision.

2. Abuse of process is an issue which goes to the merits of the case. A stay of proceedings releases the accused from all further proceedings. It is therefore a substantive, rather than a merely procedural, decision.

3. The reasoning expressed in the cases on quashing an indictment. As Martin J.A. stated in Beason, supra, at pp. 31-32:

The law has been settled by a series of decisions by the Supreme Court of Canada that where an indictment has been quashed, not on the basis of the defects in the indictment or technical procedural irregularities, but on grounds going to the substance or merits of the charge so as to give rise to the plea of autrefois acquit if the accused were subsequently charged, the order quashing the indictment is tantamount to an acquittal and an appeal lies from the order quashing the indictment: see R. v. Sheets, [1971] S.C.R. 614, 1 C.C.C. (2d) 508, 16 D.L.R. (3d) 221; Lattoni and Corbo v. The Queen, [1958] S.C.R. 603, 121 C.C.C. 317. The principle enunciated in these cases has been applied, correctly I think, to cases where proceedings have been stayed or indictments quashed because of contraventions of rights secured by the Canadian Charter of Rights and Freedoms and in which the disposition made by the trial judge constitutes a final disposition of the prosecution which precludes its subsequent revival: ...

[16] The Supreme Court went on to explain that a stay on the basis of abuse of process, like the quashing of an indictment, was based on a complex question of law and fact. In the Court's view, a stay is a final decision, "that is to say, a judgment rendered on a question of law after the accused was placed in jeopardy, such that if the accused were charged subsequently with the same offence he could plead autrefois acquit": Jewitt, at p. 145.

[17] Although the Court equated a stay to an acquittal, the Court cautioned, at p. 148, that:

While a stay of proceedings of this nature will have the same result as an acquittal and will be such a final determination of the issues that it will sustain a plea of autrefois acquit, its assimilation to an acquittal should only be for purposes of enabling an appeal by the Crown. Otherwise, the two concepts are not equated. The stay of proceedings for abuse of process is given as a substitute for an acquittal because, while on the merits the accused may not deserve an acquittal, the Crown by its abuse of process is disentitled to a conviction.

2. Does the reasoning in Jewitt apply to appeal rights under the Act?

[18] The stay in Jewitt was based on an abuse of process by the Crown, while the stay in this case was granted as a remedy under s. 24(1) of the Charter for violation of Courtice's rights under s. 11(b) of the Charter. Nonetheless, in my view, the analysis adopted by the Supreme Court of Canada in Jewitt should apply to the interpretation of s. 116(1)(b) of the Act. As noted above, the Court in Jewitt, at p. 148, found that a judicial stay was "tantamount to a judgment or verdict of acquittal", and the same reasoning leads to the conclusion that a judicial stay in this case is tantamount to a dismissal.

[19] The respondent, however, urges the court not to apply Jewitt to this case. The respondent points first to the fact that the Criminal Code was amended to specifically provide the Crown with a right of appeal from an order staying proceedings, in what is now s. 676.[^1] No similar amendment was made to the Act.

[20] Further, the respondent explains that the context in Jewitt was quite different from the circumstances at issue here. If the Supreme Court had concluded in Jewitt that the term "acquittal" in what was then s. 605(1)(a) of the Code did not encompass a judicial stay, the Crown would have been unable to pursue the matter further. This is because the stay at issue in Jewitt was imposed by a superior court, and the prerogative writs are not available to review decisions of courts of inherent jurisdiction. The respondent argues that the circumstances at issue here are quite different. The stay imposed in favour of Courtice was imposed by a court of inferior jurisdiction and, as noted earlier, the Act specifically provides that where no right of appeal is provided for in the statute, the Crown can resort to the prerogative writs, including certiorari. In short, the respondent submits that the Supreme Court's interpretation of the term "acquittal" in Jewitt was driven by the need to provide the Crown with a route by which to challenge a stay, and that no such imperative exists here.

(i) "Dismissal" and "acquittal"

[21] Before turning to the two points raised by the respondent, I will address the fact that the wording of s. 116(1)(b) of the Act differs from the version of s. 605(1)(a) of the Criminal Code considered by the Supreme Court in Jewitt. The Act gives the Crown a right to appeal from "a dismissal", whereas the Code granted a right to appeal from "a judgment or verdict of acquittal". In my view, nothing flows from the legislature's decision to use the term "dismissal" rather than the term "acquittal" in s. 116(1)(b). I say so because the legislature appears to have been using the term "dismissal" interchangeably with the term "acquittal." The decisions from which an appeal can be taken are set out in s. 116 of the Act. This provision must be read harmoniously with the remedial provisions in the Act: see e.g. ss. 120, 121, and 122. The remedial provision outlining a court's authority in the event that an appeal from a dismissal taken under s. 116(1)(b) is allowed reads as follows:

Orders on appeal against acquittal

121. Where an appeal is from an acquittal, the court may by order,

(a) dismiss the appeal; or

(b) allow the appeal, set aside the finding and,

(i) order a new trial, or

(ii) enter a finding of guilt with respect to the offence of which, in its opinion, the person who has been accused of the offence should have been found guilty, and pass a sentence that is warranted in law.

[22] The legislature therefore clearly saw no difference between the term "dismissal" as it is used in s. 116(1)(b), and the term "acquittal" as it is used in s. 121.

(ii) Relevance of the Criminal Code amendments

[23] In my view, the fact that the Criminal Code was amended shortly after Jewitt to specifically provide the Crown with a right to appeal from a judicial stay does not make the reasoning in Jewitt any less pertinent to the present appeal. The post-Jewitt amendments to ss. 676 and 813 did not effect a change in the law; they simply made express what the Supreme Court viewed as the existing situation in law.

[24] The Act was adopted by the legislature in 1979 before the amendments to the Criminal Code were made to specifically provide the Crown with a right to appeal from a judicial stay. There is good reason to expect that by using the same or analogous terms, the legislature intended these terms to be interpreted in the same way.

[25] The legislature explained that the Act was adopted "to replace the summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code (Canada), with a procedure that reflects the distinction between provincial offences and criminal offences": s. 2(1) of the Act. The legislature specifically recognized that the Criminal Code provisions would serve as a guide to interpreting this new Act. It expressed this in s. 2(2) of the Act, which reads as follows:

Where, as an aid to the interpretation of provisions of this Act, recourse is had to the judicial interpretation of and practices under corresponding provisions of the Criminal Code (Canada), any variation in wording without change in substance shall not, in itself, be construed to intend a change of meaning.

The fact that the legislature did not amend the Act after the Jewitt decision is consistent with the legislature being content with the Court's interpretation of the word "acquittal" in Jewitt.

[26] The respondent suggests that the fact that the Act was amended in 2009 to provide for an appeal against "any other order as to costs", but was not amended to provide for an appeal from a judicial stay, lends further support to its position. In the respondent's view, this is a further indication of the legislature's intention that s. 116 be read as excluding appeals from judicial stays.

[27] Again, I disagree. The amendment made was necessary. It provided for a right of appeal where none existed previously. As explained earlier, no amendment was required to provide for an appeal from a judicial stay given the interpretation of the term "acquittal" in Jewitt. I acknowledge that the legislature could have taken the opportunity to follow the approach taken by Parliament with respect to the Criminal Code. This would have removed any doubt. However, in my view, the failure to do so does not signal an intention on the part of the legislature to depart from the reasoning in Jewitt.

(iii) The prerogative writs

[28] The respondent also argues that there is a significant distinction between Jewitt and the present case that should lead the court to interpret the term "dismissal" differently from the term "acquittal" as construed in Jewitt. The respondent explains that, had the Supreme Court not interpreted the term "acquittal" as including the right to appeal from a judicial stay, the Crown would have been left with no remedy and could never seek to set aside judicial stays. In effect, the respondent argues that the Supreme Court's decision in Jewitt was driven by a concern that the Crown should not be left without a remedy.

[29] The respondent submits that the situation is quite different under the Act. The legislature has specifically provided that, where no appeal lies, the prerogative writs are available to the Crown. For provincial offences the stay would be imposed in the Ontario Court. As a result, the prerogative writs would be available to the Crown and the Crown would not be left without a remedy.

[30] Although I acknowledge that there is a significant difference between the statutory frameworks at issue in Jewitt and under consideration here with respect to the availability of the prerogative writs, I agree with the response given by Maloney J. when the same submission was made to him in Boise Cascade. In Boise Cascade, Maloney J. stated that nowhere in Jewitt "is it suggested that an attempt is being made to fill any legislative gap which may have existed. In my opinion, it would be inappropriate to disregard those cases on the basis of the reasoning suggested by the respondents."

[31] In its factum, the respondent takes the position that Maloney J. was wrong. It submits that paragraph 55 of Jewitt "addresses the importance of providing the Crown this right of appeal in the absence of express language granting such a right." I do not read paragraph 55 in that way. Paragraph 55 of Jewitt (at pp. 147-48) reads as follows:

On a true reading of s. 605(1)(a) of the Code, to determine whether a stay of proceedings is a judgment or verdict of acquittal, we must look to the substance of the action of the trial judge and not the label he used in disposing of the case. Substance and not form should govern. Whatever the words used, the judge intended to make a final order disposing of the charge against the respondent. If the order of the Court effectively brings the proceedings to a final conclusion in favour of an accused then I am of opinion that, irrespective of the terminology used, it is tantamount to a judgment or verdict of acquittal and therefore appealable by the Crown.

[32] In this passage, the Court is simply reaffirming its conclusion that where a court's order brings a proceeding to a final conclusion in favour of an accused such as to give rise to the defence of autrefois acquit in a later proceeding, the order is an "acquittal" for the purposes of the Crown's right of appeal. By the same reasoning, the stay granted in this case is a "dismissal" for the purposes of the Crown's right of appeal, and the Crown may therefore appeal under s. 116(1)(b) of the Act.

[33] In any event, certiorari would not have been available to the Crown. Generally speaking, it is only on the basis of jurisdictional error that superior courts issue prerogative writs in their supervisory role over courts of limited jurisdiction. Here, it is conceded that the justice of the peace had the jurisdiction to order a stay. Accepting for the purposes of this appeal that he issued the stay in error, this is an error of law that was within his jurisdiction. The prerogative writs would therefore not, as the respondent suggests, provide the Crown with a remedy in this case.

(iv) The intention of the Act

[34] On a final note, I consider my interpretation of s. 116(1)(b) to be in keeping with the scheme and intention of the Act. Most provincial offence proceedings are commenced by the issuance of a ticket and can be relatively minor. In explaining the reason for adopting a provincial scheme to govern provincial offences, the Honourable R. Roy McMurtry, Q.C., then Attorney General for the Province of Ontario, described the purpose of the Act as follows:

... the proposed Provincial Offences Act ... creates a clear, self-contained procedural code to simplify procedures, eliminate technicalities, enhance procedural rights and protections, and remove the obstacle of delay from the assertion of rights and the conclusion of prosecutions: Provincial Offences Procedure: An Analysis and Explanation of Legislative Proposals: the Provincial Offences Act, 1978 and the Provincial Courts Amendment Act, 1978 (Toronto: Ministry of the Attorney General, 1978), at p. 1.

[35] As noted by the Crown, challenging the correctness of a judicial stay by way of an appeal rather than through an application in the Superior Court is simpler and more straightforward than via the prerogative writs. For an accused, particularly one who is self-represented, responding to an appeal is more readily understood than being required to respond to an application for certiorari and to follow the procedures of the Superior Court. The interpretation of the term "dismissal" I propose better achieves the intended purpose of the Act.

CONCLUSION

[36] In conclusion, therefore, I would allow the appeal, set aside the provincial offences appeal court judge's decision and remit the matter back to the Ontario Court of Justice to determine the merits of the Crown's appeal.

"Paul Rouleau J.A."

"I agree E.A. Cronk J.A."

"I agree M. Tulloch J.A."

Released: March 11, 2014

(E.A.C.)

[^1]: Although not argued, I note that after Jewitt, a parallel amendment was made to s. 813 of the Code.