COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marton, 2016 ONCA 691

DATE: 20160920

DOCKET: C62258

Laskin, Sharpe and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Daniel Marton

Respondent

Jennifer McKee, for the appellant

No one appearing for the respondent

Heard: August 30, 2016

On appeal from the decision of the Summary Convictions Appeal Court dated April 4, 2016 by Justice D.K. Gray of the Superior Court of Justice, dismissing the appellant’s application for substituted service in connection with the appeal from the conviction entered on February 3, 2016 by Justice Forsyth of the Ontario Court of Justice.

B.W. Miller J.A.

A. overview

[1] At issue in this appeal is whether a summary conviction appeal court has the jurisdiction to order substituted service of a notice of appeal. For the reasons that follow, I conclude that it does.

[2] After a trial in the Ontario Court of Justice, the respondent was convicted of stunt driving contrary to s. 172 of the Highway Traffic Act, R.S.O. 1990, c. H.8, and acquitted of two offences under the Criminal Code, R.S.C. 1985, c. C-46: dangerous operation of a motor vehicle (s. 249(1)(a) and flight from a peace officer (s. 249.1(1)). The Crown seeks to appeal the two acquittals and has attempted to serve the respondent with a notice of appeal.

[3] After numerous failed attempts to serve the respondent personally, the Crown concluded that he was evading service and applied to the Superior Court of Justice for an order for substituted service. The application was brought on an ex parte basis before Gray J., acting as summary conviction appeal court (“SCAC”). The Crown relied on rule 5.04(1) and 40.06(3) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), which permit an order of substituted service. The application judge dismissed the application on the basis that an SCAC does not have the jurisdiction to order substituted service. Although rules 5.04(1) and 40.06(3) purport to authorize substituted service, the application judge found the rules to be ineffective, on the basis that there is no express provision in the Code authorizing substituted service for summary conviction appeals and that the rules are therefore inconsistent with the Code.

[4] The Crown has sought leave to appeal that decision to this Court, and if leave is granted, seeks an order allowing the appeal and remitting the matter to the SCAC with directions to order substituted service of the notice of appeal of the acquittals, and to hear the appeal on its merits.

[5] I would grant leave to appeal and would allow the appeal. The SCAC has the jurisdiction and the authority to order substituted service.

B. analysis

(1) Leave to appeal

[6] This court has jurisdiction to hear the case because it involves a question of law alone. It is appropriate to grant leave to appeal under s. 839(1)(a) of the Code. The appeal involves a question of law which is of significance to the general administration of justice beyond the present case. This is a matter of practice that should be clarified province-wide.

(2) Appeal

[7] The Application Judge concluded that the SCAC has no jurisdiction to order substituted service. This conclusion rests on the absence of a Code provision expressly authorizing a SCAC to permit substituted service, in light of the express authorization for substituted service that the Code provides for the appeals of indictable matters in s. 678.1:

678.1 Where a respondent cannot be found after reasonable efforts have been made to serve the respondent with a notice of appeal or notice of an application for leave to appeal, service of the notice of appeal or the notice of the application for leave to appeal may be effected substitutionally in the manner and within the period directed by a judge of the court of appeal.

[8] The absence of an analogue to s. 678.1 governing substituted service in summary conviction appeals led the application judge to conclude that rules 5.04(1) and 40.06(3) are, to the extent that they authorize substituted service in summary conviction appeals, inconsistent with the Code and therefore of no effect.

[9] Against this, the Crown argues that the application judge drew the wrong conclusion from the existence of s. 678.1. The Crown argues that s. 678.1 was enacted to address a jurisdictional problem facing the Court of Appeal that did not apply to SCACs. Unlike in SCACs, the Crown argues that there were – and are – no rules explicitly authorizing the order of substituted service in appeals to this court. There is some question as to whether s. 678.1 was entirely necessary, as there is support at common law for the proposition that this court has authority to order substituted service (R. v. Gruener, 1979 3030 (ON CA), [1979] O.J. No. 421 (H.C.J.).

[10] The Crown and the application judge, then, start from different background propositions. The application judge takes as a starting point that an explicit Code provision is necessary to ground orders of substituted service in summary conviction appeals, and that nothing less than an express provision will suffice.

[11] Whatever the circumstances faced by this court at the time of the adoption of s. 678.1, it seems to me that the authority of the courts to make rules regarding service of a notice of appeal in a summary conviction matter – including an order for substituted service – is solidly anchored in the Code.

[12] Section 482(1) authorizes every court of criminal jurisdiction to make rules of court, provided that they are not inconsistent with the Code or any other federal statute:

482 (1) Every superior court of criminal jurisdiction and every court of appeal may make rules of court not inconsistent with this or any other Act of Parliament, and any rules so made apply to any prosecution, proceeding, action or appeal, as the case may be, within the jurisdiction of that court, instituted in relation to any matter of a criminal nature or arising from or incidental to any such prosecution, proceeding, action or appeal.

[13] More specifically, the Code directs that in summary conviction appeals, the manner of service of a notice of appeal is governed by rules of court. Section 815(1), addressing summary conviction appeals, provides that:

815 (1) An appellant who proposes to appeal to the appeal court shall give notice of appeal in such manner and within such period as may be directed by rules of court.

[14] On the reading given to it by the application judge, however, s. 815(1) is not a power-conferring rule that authorizes the making of rules respecting notice. It is rather merely a direction to appellants that they must conform to whatever rules exist with respect to notice, and the authority for making those rules must reside elsewhere. I disagree with this reading.

[15] Section 482(1) is sufficient authority to ground rules 5.04(1) and 40.06(3), governing substituted service in summary conviction appeals. The application judge erred in dismissing s. 482(1) as a source of authority on the basis that rules permitting substituted service in summary conviction appeals are, by implication, inconsistent with the Code. As no such implication can be drawn from the existence of s. 678.1, s. 482(1) is sufficient authority for rules 5.04(1) and 40.06(3) governing substituted service.

C. dISPOSITION

[16] I would allow the appeal, set aside the order refusing substituted service, and remit the matter back to the SCAC for a determination of whether substituted service shall be ordered.

Released: “BW” SEP 20 2016

“B.W. Miller J.A.”

“I agree. John Laskin J.A.”

“I agree. Robert J. Sharpe J.A”