Court File and Parties

Ontario Court of Justice

Date: 2019-09-10

Court File No.: Newmarket 4911 16 4578T

In the Matter of: An appeal under s. 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Town of Aurora Respondent

— And —

Anne-Marie Finn Appellant

Before: Justice David S. Rose

Heard on: September 4, 2019

Reasons for Judgment released on: September 10, 2019

Counsel:

• Ms. L. Angus, counsel for the Respondent
• The Appellant Anne-Marie Finn was self-represented

On appeal from: The conviction by Justice of the Peace DeBartolo on May 18, 2018

Reasons for Judgment

Rose J.:

Overview

[1] Ms. Finn was convicted of offences under the Building Code Act, and given a fine in the amount of $2,000.00. There is no penal consequence to the conviction. The trial lasted 8 days over 15 months. I am also told that 2 witnesses testified for the prosecution and 6 for the defence. Ms. Finn first brought a Motion to permit her husband Dennis Van Decker to act as agent on the Appeal. In a ruling dated April 16, 2019, see Aurora v. Finn 2019 ONCJ 243, I upheld Justice of the Peace De Bartolo's trial ruling, and denied that Motion.

[2] Ms. Finn now brings a Motion on the Appeal which has two components. The first is a Motion to permit her to bifurcate her Appeal. The second is a Motion to permit her to perfect her Appeal without filing all the trial transcripts. The two issues are related.

[3] Ms. Finn owns her home and has a full-time job. She is the only person on title for the home which was the subject of the Building Code Act charges. As she said in Court, her finances are precarious.

Factual Basis for the Motion

[4] Ms. Finn's trial took several days to complete. During the course of the trial she appealed various rulings to the Superior Court. Because of that some transcripts are before the Superior Court. The remaining transcripts have not been ordered because, in Ms. Finn's submission, they are too expensive. In materials filed Ms. Finn showed that the transcripts, which have not been ordered, include 4 adjournment proceedings, and 7 trial day transcripts of varying length. Some transcripts are for all day proceedings, and others are for proceedings lasting as little as 20 minutes. The total amount of money required for obtaining the transcripts in order to perfect the appeal is said to be $4,117.21 including HST.

[5] A list of the appeal grounds is in the Application. The first page has 14 enumerated grounds, and the second page lists 19. The first set of 14 grounds lists those which, according to Ms. Finn, can be heard on the transcripts which are in the Superior Court files. They include, for instance, #10 "JP mixed first trial and second trial, tainting evidence and prejudicing the Accused's case". They also include #20, "Prosecutor actively and egregiously misled the court to the length and complexity in order to avoid any Pre-Trial conferences".

[6] The enumerated grounds of appeal include multiple allegations of abuse of process by the prosecution, as well as other complaints about the conduct of the presiding Justice of the Peace which, if accepted, would amount – at a minimum – to a finding that the Appellant received an unfair trial. In her written application Ms. Finn advised that she wanted to add two new arguments on appeal. The first speaks to an unreasonable search and the second speaks to implementation of the Bylaws in an arbitrary manner.

[7] For purposes of this Application I have no difficulty in finding that this Appeal is about a number of issues, ranging from delay under s. 11(b) of the Charter, malicious prosecution, legal errors relating to the Building Code Act, trial conduct errors, disclosure problems, bias and an excessive sentence. The appeal is unfocussed, unframed and wide ranging.

Legal Test

[8] The Provincial Offences Act R.S.O. 1990, c. P.33 as amended ("POA"), is intended to provide a speedy, efficient and convenient method of dealing with infractions of provincial legislation. As A.C.J.O. MacKinnon said in R. v. Jamieson (1981), 64 C.C.C. (2d) 550 (C.A.), "The courts which hear these matters are given a wide discretion as to how they may proceed". The POA contains rules for appeals which are proceeding, as here, under s. 116. Notably, POA Regulation 723/94 replaces the preceding POA Appeal rules and said that:

23(3) Despite the repeal of the preceding rules and subrule (2), a judge may make an order that an appeal, or a step in the appeal, be conducted under these rules or make any order that is considered just in order to secure the fair and expeditious conduct of the appeal.

[9] There is, therefore, jurisdiction in the appeal court to alter the procedural rules of a POA appeal if it is fair and expeditious. The issue to be determined is whether it is both fair and expeditious to permit severance of this Appeal into two different arguments and secondly, whether Ms. Finn should be permitted to perfect her appeal without filing all the transcripts.

Severance

[10] When the accused seeks severance of counts on a charging document the onus is on the accused to show that the ends of justice requires severance. Those considerations are somewhat helpful in determining whether to permit severance of appeal grounds, but not determinative. At trial the court must consider: the factual and legal nexus between the counts, see R. v. L. (G.E.) (2009), 247 C.C.C. (3d) 449 (SCC); general and real prejudice to the accused, see R. v. L. (G.E.) (supra), and R. v. M.(B) (1998), 130 C.C.C. (3d) 353 (Ont. C.A.); whether the charging document is overloaded, see R. v. Chamandy (1934), 61 C.C.C. 224 (Ont. C.A.), the possibility of inconsistent verdicts, see R. v. E.(L.) (1994), 94 C.C.C. (3d) 228 (Ont. C.A.); and the benefit to the administration of justice, see R. v. E. (L.) (supra).

[11] Although it does happen, I could find only one example of an appeal which had severed issues. It is the recent decision of R. v. Esseghaier & Jaser 2019 ONCA 672. In that case Watt JA, sitting as a Motions judge of the Court of Appeal ordered the issue of jury selection to be argued before the balance of the appeal. I do not have the benefit of Watt JA's endorsement, but I would infer that the order was made because the issue of jury selection was factually and legally discreet from any other appeal issues, and would determine the entirety of the appeal if the Appellants succeeded on the issue.

[12] From the above I therefore find that a POA appeal may proceed on severed grounds, at different hearings, if: (1) the appeal judge is satisfied that the issue(s) to be severed are factually and legally distinct from the balance of the appeal; (2) the issue(s) sought to be severed are unquestionably dispositive of the appeal in the event that the severed issues are decided in favour of the appellant; and (3) it is in the best interests of the administration of justice insofar as a severed appeal will potentially save the Court real time and resources.

[13] In this case I would not grant a severed appeal. Having reviewed the grounds of appeal I have significant concerns that most, if not all, of the appeal issues are all related in some way in fact or law. Ms. Finn really wants the appeal to proceed in this fashion because it would save her from ordering the balance of the transcripts. Severing the appeal will make the appeal extremely difficult to decide. The entirety of the transcript is necessary to decide if the trial was unfair. A severed appeal would not, therefore, unquestionably lead to a favourable finding in favour of the Appellant, except on the s. 11(b) issue (which was articulated as "Right to a speedy trial violated per R. v. Jordan"), where a complete transcript is necessary. Other grounds of appeal which Ms. Finn asks to be severed, and heard first, include grounds which clearly require the entire transcript. For instance, ground #10 is "JP mixed first trial with second taking the evidence and prejudicing the Accused's case", or "Full disclosure never happened. Partial disclosure (and still not complete) only happened mid-trial". Both of those grounds of appeal would require an appeal judge to consider the entire conduct of the trial to consider the validity of those arguments. What is clear from reviewing the materials is that Ms. Finn believes that she and her husband Mr. Van Decker were the subject of prosecutorial misconduct. In one of the grounds of appeal, sought to be heard first, she alleges that "This Prosecutor's sharp practise also misled the court at additional times". This requires the entirety of the transcript to assess.

[14] I also have real concerns that a severed appeal may limit the appeal judge's ability to comment on the conduct of the trial without being seen as pre-determining the issues on the balance of the appeal. This may well lead to one of the parties to the appeal requesting another judge to hear the balance of the appeal. That is wasteful of Court resources and creates an additional level of complexity in a proceeding which is meant to be speedy, efficient and convenient. Granting Ms. Finn's request would result in an appeal which was neither fair to both sides, nor expeditious. The first part of the Application is therefore dismissed.

File Appeal Without Transcript Considerations

[15] Transcripts are normally required in order to perfect an appeal under the POA where the charge proceeded under Part III of the POA, see s. 8 of O. Reg 723/94. The Respondent argues that this is mandatory and there is no jurisdiction on an appeal judge to suspend that rule. I disagree. S. 23(3) of O. Reg 723/94 furnishes the jurisdiction. That section is in the title, "Transition", but a plain reading of it leads me to the conclusion that the legislature must have contemplated that an appeal judge may order an appeal "be conducted under these rules or the proceeding rules or make any order that is considered just in order to secure the fair and expeditious conduct of the appeal".

[16] The outstanding transcripts cover about 3 Court days. Ms. Finn asks that the appeal be heard without having the appeal judge listen to the recordings. Rather, she has provided a 3 page index and asks that the recordings be listened to by the appeal judge for the first time in court when the appeal is heard based on the index provided. The respondent would then have the same opportunity. Such an appeal would, it strikes me, last nearly as long as the trial. In this case it would be 2 – 3 days.

[17] In Girao v. Cunningham 2017 ONCA 811 the Court of Appeal considered the issue of perfecting an appeal using digital trial recordings instead of costly transcripts. The per curiam endorsement is that:

In due course, as the court embraces modern technology and electronic data, the time may come when the rules requiring the filing of paper transcripts are made more flexible. The preparation of transcripts adds significant cost to many appeals and often accounts for the major portion of the delay in scheduling them. However, practices and procedures must be developed to enable parties and the court to use audio recordings efficiently. It is best that the experimentation needed to develop the needed practices take place with the consent of all parties in an appeal actively managed by a judge of the court. In this case, the respondent strenuously asserts transcripts are essential for the proper hearing of the appeal. We cannot say the respondent's position is unreasonable.

[18] The Respondent does not consent to the proposed procedure, because it would make the appeal cumbersome.

[19] While I have sympathy for Ms. Finn, I would not grant her request. Access to justice is important for unrepresented persons, like Ms. Finn, but so too are the resources available to hear an appeal from a Building Code Act trial involving several witnesses over 15 months, and which has no penal sentence. Ms. Finn must pay a fine and, I am told, be subject to compliance under the Act in the future. POA appeals must proceed within the spirit of the POA, which is to avoid having an unduly long trial, and an appeal which is just as long. The Ontario Court of Justice has finite resources available to the public. The teachings of R. v. Jordan 2016 SCC 27 at par. 3 are clearly that "An efficient criminal justice system is therefore of paramount concern". An appeal of this case without the transcripts would transform a manageable, but complex appeal into an unmanageable one – one requiring parsing over audio recordings at the same time as submissions in order to not just understand what the evidence is, but how it fits within the proceedings. For these reasons the appeal must be perfected by serving and filing all of the transcripts.

[20] When Ms. Finn appealed my order of April 16, 2019 to the Superior Court, Justice Speyer said:

You have an appeal pending before the Ontario Court of Justice. Get on with your appeal, and then you've got your remedies from there. But these interlocutory proceedings need to stop.

[21] Ms. Finn must indeed get on with her appeal. She has now brought two Motions before me. The conviction was registered well over a year ago. It is time to perfect the appeal in the usual course. Given all of this, Ms. Finn must now perfect her appeal by filing with the Court her proof that all of the transcripts have been ordered. This must be filed no later than October 9, failing which the Appeal will be dismissed as abandoned.

Dated this 10th day of September, 2019.

Signed: Justice Rose