Her Majesty the Queen v. The Ontario Review Board et al.

[Indexed as: R. v. Ontario Review Board]

Ontario Reports

Court of Appeal for Ontario

Rouleau, Watt and D.M. Brown JJ.A.

January 23, 2018

141 O.R. (3d) 237 | 2018 ONCA 50

Case Summary

Appeals — Jurisdiction — Appellant erroneously bringing unsuccessful Charter application under Criminal Proceedings Rules instead of Rules of Civil Procedure — Respondent's motion to quash appellant's appeal to Court of Appeal dismissed — Use of wrong rules not precluding appeal to Court of Appeal — Substance of procedure prevailing over form — Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 — Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Charter of Rights and Freedoms — Procedure on Charter application — Appeal — Appellant erroneously bringing unsuccessful Charter application under Criminal Proceedings Rules instead of Rules of Civil Procedure — Respondent's motion to quash appellant's appeal to Court of Appeal dismissed — Use of wrong rules not precluding appeal to Court of Appeal — Substance of procedure prevailing over form — Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 — Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Facts

The appellant brought an application under the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 challenging the constitutionality of s. 672.56 of the Criminal Code, R.S.C. 1985, c. C-46 and seeking a remedy under s. 52 of the Constitution Act, 1982. The application was dismissed. The appellant appealed to the Court of Appeal. The respondent moved to quash the appeal for lack of jurisdiction on the basis that neither the Criminal Code nor the criminal rules provide for an appeal to the Court of Appeal from a stand-alone Canadian Charter of Rights and Freedoms application. The appellant submitted that he had brought the application under the criminal rules rather than the Rules of Civil Procedure in error.

Decision

Held, the motion should be dismissed.

The procedural irregularity of having referred to the criminal rather than the civil rules did not prejudice any party or impact the proceedings in any substantial way. The proceeding should be treated as a civil proceeding.

Reasons

[1] BY THE COURT: -- The Crown, the respondent on appeal, moves to quash the appeal for lack of jurisdiction. The appeal is from the decision of Trotter J. dated December 1, 2014 [2014] O.J. No. 5710, 2014 ONSC 6951 (S.C.J.). That decision dismissed Ms. Petroniuk's application challenging the constitutionality of s. 672.56 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The application, which sought relief under s. 52 of the Canadian Charter of Rights and Freedoms, was brought by notice of application and constitutional issue under rule 27.03 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7. Initially, a request for mandamus was combined with the constitutional challenge, but it became moot before the application was heard. Only the Charter application proceeded to hearing on the merits.

[3] The Crown maintains that there is no provision in either the Criminal Code or the Criminal Proceedings Rules (the "criminal rules") for an appeal to this court of stand-alone Charter applications such as the one that was brought in this case. According to the Crown, the only route of appeal is to the Supreme Court of Canada with leave under s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26.

[4] Ms. Petroniuk agrees with the Crown but argues that the matter having been brought under the criminal rules was, in effect, an error. In fact, once the request for mandamus became moot and only the Charter application went forward, the matter should not have proceeded under the criminal rules. The application was neither "in" a criminal proceeding nor did it relate to an active criminal court proceeding. It ought to have proceeded as an application under rule 14.05(3)(g.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. An appeal from such a decision, therefore, would lie to this court pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[5] The procedural irregularity of having referred to the criminal rather than the civil rules did not, in Ms. Petroniuk's submission, prejudice any party or impact the proceedings in any substantial way.

[6] The Crown contends that some parties would not have been part of the application if Ms. Petroniuk had brought it under the civil rules. We are mindful that the Ontario Review Board and the hospital, the Centre for Addiction and Mental Health, might not have been included in the proceedings. However, the hospital has acknowledged that it is not prejudiced by this court treating the application as if it had been brought under the civil rules. As for the Ontario Review Board, it has not participated in this motion.

[7] The Crown also acknowledges that it was not prejudiced by the application having been brought pursuant to the criminal rather than the civil rules. Nonetheless, it maintains that this court should quash the appeal and leave it to Ms. Petroniuk to seek leave to appeal directly to the Supreme Court of Canada.

[8] In our view, the motion must be dismissed. We see no reason not to treat this proceeding as a civil proceeding. It is apparent to us that the procedure adopted in this case was irregular and in error. However, the error was not raised by the parties in the court below nor commented on by the application judge.

[9] The Supreme Court cases cited by the Crown are of no help to it. In the cases of R. v. Laba, [1994] 3 S.C.R. 965, [1994] S.C.J. No. 106 and R. v. Keegstra, [1995] 2 S.C.R. 381, [1995] S.C.J. No. 41, the constitutional challenges were made in the context of ongoing criminal proceedings. That is unlike the present matter, which is in effect a civil proceeding in the form of a stand-alone application for a declaration that the legislation is unconstitutional.

[10] In a situation such as this one, we agree with the Alberta Court of Appeal's comment in R. v. White, [2008] A.J. No. 956, 2008 ABCA 294, 93 Alta. L.R. (4th) 239, at para. 30, affirmed on other grounds [2010] 1 S.C.R. 721, [2010] S.C.J. No. 21, 2010 SCC 21, that "[t]he substance of the procedure (which must prevail over its form) was however civil and declaratory in nature". The fact that the wrong rules were followed here should not preclude an appeal. The substance of the procedure must prevail over its form. In the circumstances, it is therefore open to this court to exercise its discretion and hear the appeal despite the procedural error committed in the court below.

[11] As a result, the motion is dismissed.

Order

Motion dismissed.

End of Document