COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tung, 2016 ONCA 782

DATE: 20161026

DOCKET: C58322

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anderson Tung

Applicant/Appellant

Anderson Tung, in person

Erin Dann, amicus curiae

Brock Jones, for the respondent

Heard: April 4, 2016

On application for leave to appeal from the order of Justice B. Croll of the Superior Court of Justice dated January 9, 2014.

Pepall J.A.:

Overview

[1] On June 27, 2008, the applicant was convicted of assault with intent to resist arrest and of carrying a concealed weapon. He received a suspended sentence and three years’ probation. On December 17, 2008, his appeal against conviction to the summary conviction appeal court (“SCAC”) was dismissed as abandoned.

[2] On January 9, 2014, the applicant’s application for an order granting “leave to re-open” his appeal and for an extension of time to “re-file the Notice of Appeal” was dismissed by the summary conviction appeal court judge (the “SCAC judge”). The applicant now seeks leave to appeal that decision.

[3] There are two issues to address:

(i) Does this court have jurisdiction to hear the appeal from the decision of the SCAC judge?

(ii) Should leave to appeal be granted?

[4] Following oral argument on the issue of jurisdiction, this court concluded that we do have jurisdiction, with reasons to follow. These are those reasons. In addition, I would dismiss the application for leave to appeal.

Facts

[5] On April 26, 2007, police officers stopped the applicant’s vehicle for speeding. The applicant exited his vehicle, but left it running. One of the officers asked the applicant for his licence and then for his name, but he refused to identify himself and began to walk away. The applicant was told that he was under arrest for failing to identify himself under the Highway Traffic Act, R.S.O. 1990, c. H.8.

[6] The applicant then engaged in a physical altercation with the police officers. Once the applicant was handcuffed, one of the police officers entered the applicant’s car to turn off the ignition, which was hanging down by its wires. He thought he saw a handgun concealed underneath the driver’s seat. It proved to be a pellet gun. The applicant was subsequently charged and, as mentioned, on June 27, 2008, was convicted of assault with intent to resist arrest and carrying a concealed weapon.

[7] The applicant filed a notice of appeal against his summary conviction on July 23, 2008, prior to his sentencing.

[8] On August 5, 2008, the trial judge made an order for the applicant’s assessment pursuant to s. 21 of the Mental Health Act, R.S.O. 1990, c. M.7. The mental health assessment revealed that he likely suffered from a delusional disorder. His case was adjourned to September 3, 2008 and then again to October 8, 2008. On that date, he did not appear and a bench warrant was issued for his arrest. He was arrested and brought to court on November 18, 2008. He remained in custody pending sentencing.

[9] In the meantime, the applicant’s summary conviction appeal to the SCAC was spoken to on November 26 and December 17, 2008. However, the applicant did not appear. Apparently, he was in custody on those dates. Neither the presiding judge nor the Crown was aware of his detention. The appeal against conviction was dismissed as abandoned on December 17, 2008.

[10] On December 18, 2008, the applicant received a suspended sentence and three years’ probation and was then released from custody. He has since completed his term of probation.

[11] Approximately five years later, on January 6, 2014, the applicant brought an application before the SCAC for an order granting leave to re-open his appeal and an extension of time to “re-file the Notice of Appeal”. Due to the inadequate state of the application materials and in the absence of any notice of appeal, the SCAC judge proceeded on the basis that the applicant was requesting an extension of time to file a notice of appeal to appeal his conviction.

[12] At that time, the applicant submitted that he missed the December 17, 2008 date because he was in custody. He also stated that he had been attacked while in custody, had been unable to find employment, and was living on social services.

[13] On January 9, 2014, his application was dismissed. The SCAC judge found that, although some bona fide intention to appeal had been demonstrated, an extension of time was not warranted due to inordinate delay, the absence of evidence on the merits of the proposed appeal, and prejudice to the Crown. She also found that there was no real concern that there was any injustice.

[14] The applicant seeks leave to appeal from that dismissal.

Jurisdiction

(a) History of Summary Conviction Appeals

[15] Part XXVII of the Criminal Code creates two separate avenues of appeal for summary conviction matters. It is open to an appellant to choose which route to pursue.

[16] The first avenue is under s. 813. That section creates a broad right of appeal and s. 822 describes the powers of the appeal court. Historically, this avenue of appeal involved a trial de novo. As a result of changes effected by the Criminal Law Amendment Act, S.C. 1974-75-76, c. 93, s. 94, an appeal based on the record, as opposed to an appeal by way of trial de novo, is now the usual procedure for summary conviction appeals under s. 813: see R. v. Century 21 Ramos Realty Inc., 1987 CanLII 171 (ON CA), [1987] 32 C.C.C. (3d) 353 (Ont. C.A.), at pp. 382-385.

[17] The second avenue of appeal is under s. 830. That section creates the right of appeal and s. 834 describes the powers of the appeal court. Section 830 is the successor to provisions providing for an appeal by stated case on questions of law or jurisdiction only: see R. v. Kapoor, 1989 CanLII 7250 (ON SC), [1989] O.J. No. 1887 (Ont. H.C.J.). As a result of the Criminal Law Amendment Act, S.C. 1985, c. 19, s. 182, the appeal by way of stated case was replaced by a new procedure providing for an appeal based on the transcript or on an agreed statement of facts. Sections 829 to 838 permit a summary appeal to be taken under s. 830 only on the grounds that the decision is: (a) erroneous in point of law; (b) in excess of jurisdiction; or (c) constitutes a refusal or failure to exercise jurisdiction.

[18] The routes of appeal under s. 813 and s. 830 are mutually exclusive: pursuant to s. 836, an appeal under s. 830 is deemed to be an abandonment of all appeal rights under s. 813. In Ontario, an “appeal court” under s. 813 is defined as the Superior Court of Justice sitting in the region, district or county or group of counties where the adjudication was made, and an “appeal court” under s. 830 is defined as the superior court of criminal jurisdiction for the province.

(b) Further Right of Appeal

[19] A further right of appeal from either avenue to a court of appeal, such as this court, is limited by section 839(1) of the Code. It states that:

… 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.

[20] As mentioned, s. 822 describes the powers of an appeal court on an appeal under s. 813 and s. 834 describes the powers of an appeal court under s. 830. Thus, s. 839(1) of the Criminal Code governs whether this court has jurisdiction to hear an appeal from a summary conviction appeal proceeding.

(c) Positions of Parties

[21] The applicant was self-represented. In his written submissions, he focused primarily on the route governed by ss. 830 and 834. In his materials, at various points he also made reference to ss. 813 and 822.

[22] Amicus relied on s. 839(1)(a) of the Code which addresses s. 822 (and hence s. 813) appeals. She submitted that this court does have jurisdiction to hear an appeal from the decision of a summary conviction appeal court judge dismissing an application for an extension of time to appeal or to reopen an appeal previously dismissed as abandoned. The Crown did not dispute that this court may have jurisdiction.

[23] Given the positions adopted by the applicant and amicus, I will address each avenue of appeal.

(d) Analysis

[24] For this court to have jurisdiction to consider the applicant’s request for leave to appeal from the SCAC judge’s decision dismissing his application, depending on the applicable avenue, the decision of the SCAC judge must be “in respect of an appeal under s. 822” or “a decision of an appeal court under s. 834”. In addition, as s. 839(1) contemplates an appeal on a question of law alone, the application must allege a question of law. In the face of such an allegation and a request for leave to appeal from a s. 822 or s. 834 decision, this court will have jurisdiction to consider the application seeking leave to appeal. Having taken jurisdiction, the court will then address whether a question of law is engaged and, if so, whether the merits of the application for leave to appeal demand that the leave requested be granted. If leave is granted, this court will subsequently consider the merits of the appeal from the SCAC judge’s decision.

[25] While cases such as R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 173 C.C.C. (3d) 23 (Ont. C.A.), R. v. Kubassek, 2004 CanLII 7571 (ON CA), [2004] 188 C.C.C. (3d) 307 (Ont. C.A.), and R. v. West, 2007 NSCA 5 might be construed as treating the establishment of a question of law as an essential requirement on which jurisdiction is predicated, I would not adopt that interpretation. Rather, those cases and their progeny reflect the need to raise or, put differently, allege a question of law for this court to have jurisdiction to consider the application.

[26] Applying these principles to this case, the application does allege a question of law in relation to the decision of the SCAC. Secondly, regardless of which appeal route the applicant is pursuing, the order constituted either “a decision of a court in respect of an appeal under section 822”: see R. v. Robertson (1978), 1978 CanLII 2352 (ON CA), 45 C.C.C. (2d) 344 (Ont. C.A.), or “a decision of an appeal court under section 834”. If the former, this court has jurisdiction under s. 839(1)(a) and if the latter, it has jurisdiction under s. 839(1)(b). Whether the applicant brought his appeal under ss. 813 and 822 or ss. 830 and 834, the order of the summary conviction appeal court falls within the language of s. 839 under either avenue of appeal.

[27] With respect to s. 839(1)(a), this treatment is consistent with the Supreme Court’s holding in The Queen v. Dennis, 1960 CanLII 34 (SCC), [1960] S.C.R. 286, where the court held that a decision as to whether an appeal court will hear an appeal is a “decision of the court in respect of an appeal”, and with R. v. Burgar (2003), 2003 BCCA 340, 176 C.C.C. (3d) 253 (B.C.C.A.), dealing with similar language and an appeal under the Offences Act, R.S.B.C. 1996, c. 338.

[28] As noted in The Queen v. Dennis, in relation to the predecessor to s. 839(1)(a), the broad scope of the section is reflected in the French language version of the section that states: “de toute décision d’un tribunal relativement à un appel prévu par l’article 822.”

[29] In the past, this court has exercised jurisdiction in similar circumstances: see for example R. v. Menear (2002), 2002 CanLII 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), leave to appeal refused [2002] S.C.C.A. No. 116; or has assumed jurisdiction without deciding the issue: R. v. Dalgleish, 2005 CanLII 45736 (Ont. C.A.), at para. 1; R. v. Gonsalves, [1995] O.J. No. 4046, at para. 4. Other appellate courts have concluded that there is such jurisdiction: R. v. Lenko, 2010 MBCA 10, 196 A.C.W.S. (3d) 198, at para. 3; R. c. Belaroui, 2004 CanLII 9844 (QC CA), [2004] 186 C.C.C. (3d) 386 (Que. C.A.); Furthermore, we were not directed to any appellate authority holding that there is no jurisdiction.[^1]

[30] Lastly, in comparison, the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”) uses more restrictive language with respect to appeals to the Court of Appeal. Section 131(1) of the POA says that an appeal may be brought “from the judgment of the court”. This court recently decided in R. v. A.E., 2016 ONCA 243, [2016] O.J. No. 1704, that it had jurisdiction to hear an appeal from a dismissal of an application for the extension of time under that section. Given that jurisdiction exists under this more restrictive language, it must also exist under the Code’s more expansive language of “a decision of a court in respect of an appeal”.

[31] While no authorities were submitted on s. 839(1)(b), I am satisfied that the dismissal of the applicant’s application would likewise constitute “a decision of an appeal court” within the meaning of that subsection, based on a comparable rationale.

[32] First, such an interpretation is consistent with this court’s decision in A.E., as noted above.

[33] Second, in my view, both s. 839(1)(a) and s. 839(1)(b) reflect a right of appeal that flows from the two summary conviction appeal routes. Although s. 839(1)(b) does not use the broader “in respect of an appeal” wording, there is no principled basis upon which there should be jurisdiction in this court in relation to one provision and not the other.

[34] A decision in relation to either an extension of time or an application to reopen is a decision of an appeal court under the powers of that court. Both avenues of summary conviction appeal specifically permit the granting of extensions of time (s. 815(2) in relation to s. 813/822 appeals and s. 838 in relation to s.830/834 appeals). There is long recognized ancillary or inherent jurisdiction of appeal courts to control their own process by allowing the re-opening of an appeal that has been dismissed as abandoned and not heard on its merits: see R. v. Robertson (1978), 1978 CanLII 2352 (ON CA), 45 C.C.C. (2d) 344 at 347; R. v. Gironda, [1995] O.J. No. 1231 at para. 7, dismissed as abandoned, [1997] O.J. No. 1573; and R. v. H.(E.F.), R. v. Rhingo (1997), 1997 CanLII 418 (ON CA), 115 C.C.C. (3d) 89 at 101 (Ont. C.A.) This would extend to either avenue of summary conviction appeal.

[35] Accordingly, having alleged a question of law and having fallen within the ambit of s. 839(1), this court has jurisdiction to hear this application for leave to appeal.

Question of Law and Leave to Appeal

(a) Applicable Test

[36] Having accepted that this court has jurisdiction, the first issue to address is whether a question of law alone is engaged. To reiterate, s. 839(1) provides for an appeal to this court, with leave, "on any ground that involves a question of law alone".

[37] If a question of law is engaged, the next issue to address is whether leave to appeal should be granted.

[38] In R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, this court addressed applicable principles for leave to be granted under s.839 for summary conviction appeals to this court and held that leave under s.839 should be granted sparingly. The focus in R.R. was on appeals that had already been heard on their merits by the summary conviction court. As Doherty J.A. explained, the two key variables to granting leave are the significance of the legal issues raised to the general administration of criminal justice and the merits of the proposed appeal. If the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable. Where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty: see R.(R.)., at para. 37.

[39] However, an order refusing to extend time or to reopen an appeal does not involve an appeal that has already been heard on the merits. In such circumstances, it is unlikely that the first variable dealing with the significance of the legal issue would be applicable. Therefore, typically, greater weight will be placed on the second variable, namely the merits of the proposed appeal from the order of the SCAC judge.

(b) Application of Test

(i) Question of Law

[40] Turning to whether a question of law is raised, amicus submits that in reaching her decision, the SCAC judge used the wrong test by applying the test for an extension of time and also failed to properly consider the history of the proceedings leading up to the dismissal of his appeal.

[41] The respondent rejects amicus’ submissions and submits that, although engaging different requests, the test for an extension of time and the test for reopening an appeal are essentially the same. Both address whether the application is in the interests of justice.

[42] Dealing first with the issue of the history of the proceedings, while the SCAC judge did not have the entire file, the materials before her did address the history, as did the parties’ oral submissions. It is evident from her reasons for decision, delivered the same day as the oral submissions, that she did consider the applicant’s history and that of the proceedings. In any event, a question of law alone is not raised by this issue.

[43] Turning to whether the SCAC judge applied the correct test, a request for an extension of time is different from a request to reopen an appeal. Ultimately, however, the governing concern is the “interests of justice”.

[44] As explained in R. v. Menear, on an application for an extension of time, the applicant must demonstrate that justice requires that time be extended. The court will usually consider the following three factors in determining whether an extension of time is in the interests of justice:

(i) has the applicant shown a bona fide intention to appeal within the appeal period;

(ii) has the applicant accounted for or explained the delay; and,

(iii) is there merit to the proposed appeal.

[45] The decision to reopen a criminal appeal involves setting aside an order of an appellate court. As mentioned, the power to reopen is restricted to cases where the appeal has not been heard on its merits. The court then has a discretion to reopen the appeal if it is in the “interests of justice” to do so: R. v. McDonald, 2016 ONCA 288 at para. 5; Rhingo; and R. v. Sipos, 2008 ONCA 325, at paras. 4 and 6.

[46] Relying on the confusing materials before her and oral submissions, the SCAC judge treated the applicant’s application as a request for an extension of time rather than an application to reopen the appeal. She was persuaded that the applicant had demonstrated some intention to appeal, but observed that it had been five years since the appeal was dismissed as abandoned. Furthermore, the applicant had taken no further steps to advance his appeal, nor had he provided a reasonable explanation for his delay. In addition, if the applicant were successful on the appeal, the Crown would be prejudiced by the delay in that it would have to attempt to prove the elements of offences that had occurred more than eight years ago. The SCAC judge also noted that there was no evidence before her to suggest that there was merit to the appeal. She concluded by stating that there was no real concern that there was any injustice.

[47] I accept that, reading the materials as a whole, the applicant’s application before the SCAC judge was more in the nature of a request to reopen his appeal rather than a request to extend time to appeal and that the test for the latter was applied to the former. As such, this ground of appeal from the decision of the SCAC judge involves a question of law alone. However, as will be explained, the impact of that treatment is of no moment.

(ii) Leave to Appeal

[48] Having established a question of law, the next issue to consider is whether leave to appeal should be granted. As noted above at paras. 38-39, this involves a consideration of the merits of the proposed appeal from the SCAC judge’s order denying a re-opening of the appeal, which analysis requires an examination of the interests of justice. The interests of justice may encompass a consideration of the merits of the proposed appeal from conviction.

[49] The SCAC judge concluded that no injustice occurred. Put differently, it was not in the interests of justice to grant relief to the applicant. I agree with that conclusion.

[50] Quite apart from the extensive delay and the lack of a reasonable explanation for the delay, the merits of the proposed appeal from conviction do not favour a reopening of the applicant’s appeal. Amicus submits that there is merit to the proposed appeal because the trial judge failed to properly consider whether the arrest was lawful and failed to provide adequate assistance to the self-represented applicant.

[51] The record before the trial judge supported both a conviction for carrying a concealed weapon and assault with intent to resist arrest. The trial judge found as a fact that the applicant was in possession of a pellet gun, had an admitted intention to use it as a weapon if he believed it was necessary and was carrying it concealed in his car over which he had care and control. The trial judge also found that the officers had a lawful basis to make an arrest under the Highway Traffic Act. There was a basis in the record to make this finding: the applicant was asked for his licence and then for his name but refused to identify himself and began to walk away. Moreover his lack of co-operation constituted “sufficient physical activity to result in his resisting arrest”.

[52] Lastly, amicus’ argument that the trial judge was required to provide greater assistance to the applicant is not borne out by the record. First, a trial judge has a duty to ensure that an accused has a fair trial and to provide guidance but not to act as an advocate for the accused: R. v. Chemama, 2016 ONCA 579, at paras. 13-14; R. v. Tran, (2001), 2001 CanLII 5555 (ON CA), 55 O.R. (3d) 161 at para. 31. Second, throughout the trial, the trial judge provided the applicant with reasonable guidance.

[53] In conclusion, while this court has jurisdiction and while a question of law is raised, I am not persuaded that leave to appeal should be granted.

Disposition

[54] For these reasons, I would dismiss the applicant’s application for leave to appeal.

Released:

“OCT 26 2016” “S.E. Pepall J.A.”

“KF” “I agree K. Feldman J.A.”

“I agree Janet Simmons J.A.”

[^1]: In Gonsalves, this court expressed some doubt about jurisdiction without an explanation as to the basis of that doubt, but assumed jurisdiction nonetheless.