Ontario Court of Justice
Date: 2024 05 15 Court File No.: Newmarket 4960 19-2155
In the Matter of an appeal under clause 116(2) (a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended;
Between:
BRUNO PIRES Appellant
— AND —
HIS MAJESTY THE KING Respondent
Before: Justice Edward Prutschi
Heard on: May 3 and 15, 2024 Reasons for Judgment released on: May 15, 2024
Counsel: Agatha Mapelli.......................................................................... counsel for the prosecution Joseph W. Ziemba............................................. counsel for the defendant Bruno Pires
On appeal from a conviction and dismissal of an 11(b) application by Justice of the Peace D. Robinson on June 12, 2023, and November 7, 2023.
Reasons for Judgment
PRUTSCHI J.:
[1] Bruno Pires was convicted of careless driving causing bodily harm following a trial. After conviction but prior to sentencing, Mr. Pires brought an 11(b) application seeking a stay of his case. The 11(b) application was dismissed. Mr. Pires then launched an appeal, prior to being sentenced, of both his conviction and the 11(b) decision.
[2] At the conclusion of submissions on the appeal proper, I raised with the parties a troubling jurisdictional issue when it became apparent that this matter had never concluded with sentencing. The matter was appearing on a Provincial Offences Act (POA) trial list where it was being periodically adjourned to await the ruling on this appeal.
[3] This is a PART III appeal under the POA. The powers of an appellate court in such circumstances are governed by sections 116 - 120 of the POA.
[4] The parties jointly submitted to me that s. 120(3) of the POA authorizes a judge, sitting as a POA appeal court, to hear the conviction and 11(b) appeals despite the matter not having concluded with sentencing at the trial level before the Justice of the Peace.
[5] I begin by noting that, even where there is good practical reason to do so, consent of the parties is insufficient to manufacture lawful jurisdiction for a court where no such jurisdiction otherwise exists.
The law has long been clear, however, that jurisdiction is fundamental to a court or tribunal’s authority to deal with a matter. Jurisdiction is not optional, cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered. [1]
[6] The Ontario Court of Justice (OCJ) is a creature of statute with no inherent jurisdiction. Its powers are circumscribed by legislation.
[7] There are very good reasons to be wary of creating bifurcated appeals. While a prerogative writ to the Superior Court of Justice (SCJ) deprives an inferior court of jurisdiction to continue a trial through application of the Criminal Appeal Rules, no such authority exists for a POA Appeal Court.
[8] In the present case, the trial in front of Justice of the Peace Robinson cannot be said to be over. His Worship Robinson is not yet functus. The Appellant, as of today, may still argue for a re-opening of his case and the Justice of the Peace retains the power to permit such a re-opening, returning to hear additional evidence on the trial.
[9] These concerns are even more readily underscored where, as here, 11(b) delay remains a live issue. While the Trial Justice of the Peace has dismissed the appellant’s 11(b) application post conviction, there continues to be an obligation to conclude the sentencing without unreasonable delay. Allowing an Appeal Court to rule on the 11(b) so far invites the prospect of renewed 11(b) litigation if the case is remitted back to the trial level for sentencing.
[10] This raises the even more troubling question of whether any authority exists that would permit remitting the case back to the trial Justice of the Peace.
[11] Section 120 is the legislative authority for the powers of the OCJ POA Appeal Court hearing an appeal against conviction. This section mimics closely the powers of the Court of Appeal set out in s. 686 of the Criminal Code with an important distinction.
[12] Section 686(3) of the Criminal Code permits a Court of Appeal that dismisses an appeal from conviction to either,
(a) Affirm the sentence passed by the trial court; or (b) Impose a sentence that is warranted in law or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law. [emphasis added].
[13] Contrast that with the statutory powers of an appeal court hearing a POA appeal. Where a POA appeal is dismissed, s. 120(3) permits the Appeal Court to, “substitute the decision that in its opinion should have been made and affirm the sentence passed by the trial court or impose a sentence that is warranted in law.” [emphasis added].
[14] Notable for its absence is any power for a POA Appeal Court which dismisses an appeal to remit sentencing back to the trial Justice of the Peace for sentencing.
[15] Both the Criminal Code and POA appeal provisions skirt the question of whether an appellate court can become the sentencing court of first instance by dismissing a conviction appeal brought in advance of any sentence ever having been imposed by the trial court.
[16] The parties point to the appeal filing deadlines which mandate that an appeal from conviction be filed within 30 days of the decision. The York Region Provincial Offences Guide includes a bold-faced warning that reads: “IMPORTANT: You have 30 days from the date of the decision you are appealing.”
[17] A plain reading of this caution could reasonably be construed as requiring conviction appeals to be made within 30 days of the conviction decision, even as the sentencing decision is adjourned more than 30 days into the future. That is precisely what occurred here.
[18] Unfortunately, the Guide is misleading and misconstrues the time the appellate filing clock begins. The filing deadline for an appeal – whether from conviction or sentence – begins at the time the case is concluded; that being the moment of sentence. This is the case in both Criminal Code and POA matters.
[19] Leaving aside the fact that the trial jurist is not functus and the trial is not truly complete prior to sentencing, there is another very good policy reason for starting the appellate clock at the moment of sentencing. A party can only make a fully informed decision as to whether they wish to appeal a trial judgment once they know the consequences of that judgment.
[20] As I noted previously, procedural guides are no more capable of manufacturing non-existent jurisdiction than the consent of the parties can. Whether the Guide is unclear, or simply wrong, is irrelevant. The Guide has no statutory or precedential authority and cannot vest me with the power to hear an appeal that has yet to legally crystalize.
[21] Notable in its absence from the submissions of both parties is reference to even a single case at any level of court in which an appeal from conviction was heard before a decision on sentence was rendered.
[22] In the absence of any statutory or precedential authority that might authorize a POA appeal court to make rulings in advance of sentencing where a conviction has been registered, I find that this court has no jurisdiction to proceed with this appeal. Judicial economy creates a strong temptation to accede to the joint request of the parties and continue to rule on the appeal proper, but such temptation cannot take a backseat to the limitations of appellate jurisdiction.
[23] For these reasons, the matter will continue before the trial Justice of the Peace until it is properly concluded without prejudice to Mr. Pires renewing his appeal against conviction, sentence, or both, at the appropriate time.
Released: May 15, 2024 Signed: Justice Edward Prutschi