Court File and Parties
CITATION: R. v. Marton, 2016 ONSC 2269
COURT FILE NO.: N/A
DATE: 2016-04-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DANIEL MARTON
Respondent
COUNSEL:
Abby Woolf, for the Crown
HEARD: March 18, 2016
REASONS FOR JUDGMENT
Gray J.
[1] This is an application by the Crown for substituted service, or dispensing with service, of a Notice of Appeal on a summary conviction appeal.
[2] At the hearing of the motion, I advised counsel for the Crown that I was in some doubt as to whether the court has jurisdiction to grant the Crown’s request. I gave the Crown an opportunity to file written submissions, which have now been filed.
Background
[3] The Crown’s application is supported by the affidavit of one Diane Troake, a legal administrative assistant in the Halton Crown Attorney’s office.
[4] The Crown proposes to appeal from the acquittal of Mr. Marton of the charge of dangerous operation of a motor vehicle on February 3, 2016, by Justice Forsyth of the Ontario Court of Justice.
[5] Ms. Troake deposes that numerous attempts have been made to serve Mr. Marton with the Notice of Appeal. The Crown prepared a Notice of Appeal and gave instructions to a police officer to serve it on Mr. Marton on February 18, 2016.
[6] By February 20, 2016, the police officer called Mr. Marton’s cellphone and his parents’ telephone number a number of times but did not leave messages. Police went to Mr. Marton’s parents’ home, and spoke with Mr. Marton’s mother, who refused to answer any questions or cooperate with the police in any way.
[7] The police officer left a message for Mr. Marton’s trial counsel, but counsel did not provide any information that could assist.
[8] The police officer contacted Mr. Marton’s insurance company, seeking an updated address for Mr. Marton. The insurance company was not able to provide any updated information.
[9] Apparently, at trial, Mr. Marton had testified that he was living in Hamilton and going to school there. The police officer contacted both Mohawk College and McMaster University, but neither were able to provide information as to Mr. Marton’s whereabouts.
[10] The police officer also tried local police databases and computer systems without success.
[11] The police officer believes that he has exhausted all available options for locating Mr. Marton.
Submissions
[12] Ms. Woolf, counsel for the Crown, acknowledges that there is no section in the Criminal Code specifically providing direction in summary conviction appeals where personal service is at issue. She submits, therefore, that the court must rely on the Criminal Proceedings Rules for the Superior Court of Justice (Ontario).
[13] Ms. Woolf points out that section 482(1) of the Criminal Code provides as follows:
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.
[14] Ms. Woolf submits that the Rules provide for substituted service, or, where appropriate, dispensing with service.
[15] Ms. Woolf notes that section 1.02(1) of the Rules provides as follows:
1.02 (1) These rules are enacted pursuant to subsection 482(1) of the Criminal Code and apply to prosecutions, proceedings, applications and appeals, as the case may be, within the jurisdiction of the Superior Court of Justice, instituted in relation to any matter of a criminal nature or arising from or incidental to any such prosecution, proceeding, application or appeal.
[16] The specific power to order substituted service or dispensing with service is found in section 5.04(1) of the Rules, which provides:
5.04 (1) Where it appears to the court that it is impractical for any reason to effect prompt personal service of a notice of application, notice of appeal or any other document required to be served personally or by an alternative to personal service under these rules, the court may make an order for substituted service or, where necessary in the interests of justice, may dispense with service.
[17] Ms. Woolf submits that the only qualification on the power to make rules is that they not be inconsistent with the Criminal Code, or any other Act of Parliament. She submits that section 5.04(1) of the Rules is not inconsistent with the Code or any other Act of Parliament.
[18] In the alternative, Ms. Woolf submits that the Superior Court of Justice is a court of inherent jurisdiction, and can formulate its own process in matters affecting the administration of justice. Thus, the court can permit substituted service or dispensing with service even if the Rules do not apply.
[19] Ms. Woolf submits that in the circumstances, it must be concluded that the authorities have exhausted all avenues for effecting personal service of the Notice of Appeal on Mr. Marton. Accordingly, an order dispensing with service or permitting service on an adult person at Mr. Marton’s last known address would be reasonable, in the interests of justice, and within the jurisdiction of the Summary Conviction Appeal Court.
Analysis
[20] It is instructive to note that substitutional service of a Notice of Appeal in the case of indictable offences is specifically provided for in section 678.1 of the Code, which reads as follows:
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.
[21] One looks in vain for any corresponding provision as to substitutional service in the case of summary conviction appeals. Indeed, section 822(1) of the Code provides as follows:
822 (1) Where an appeal is taken under section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689, with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require.
[22] In section 822(1), any reference to section 678.1 of the Code is notably absent. Thus, a strong inference is raised that Parliament did not intend that substitutional service be allowed in the case of summary conviction appeals.
[23] The issue, then, is whether a power to order substitutional service of a Notice of Appeal on a summary conviction appeal can be authorized by rules of procedure, or whether such a power can be said to reside in the court by inference, or simply as a function of the inherent jurisdiction of the court. In my view, the answer is no.
[24] One must start from the proposition that where it is proposed to put the subject in danger of losing his or her liberty, notice is of fundamental importance.
[25] In Buchholz v. The Queen, [1958] M.J. No.7; 1958 CanLII 435 (MB CA), 121 C.C.C. 293 (Man. C.A.), Chief Justice Adamson stated at para. 8, “It is a well-settled principle of our jurisprudence that a person cannot be deprived of his liberty or property without notice.” In the same paragraph, he repeated what he had said earlier in Walters v. Phillips (1955), 1955 CanLII 266 (MB CA), 63 Man. R. 6, at p. 11:
The right of the subject to notice, and the right to be heard before his liberty, property rights, or family rights are disposed of by judicial proceedings, is fundamental to our jurisprudence. On this right the reign of law is founded. Under our system there can be no adjudication between parties without notice of the proceedings.
[26] In the next paragraph, he quoted from the judgment of Fortescue J. in The King v. The Chancellor, Masters and Scholars of the University of Cambridge (1722), 1 Strange 557; 93 E.R. 698, at p.704 E.R.: “Besides, the objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any.”
[27] The offence of which Mr. Marton was acquitted, dangerous driving, is a serious offence. Where prosecuted by indictment, the person who is convicted can be imprisoned for up to five years. Even where the person is prosecuted by summary conviction, as here, he or she can be imprisoned for up to six months.
[28] While notice of an impending prosecution is obviously important, it is equally important, in my view, where a person has been acquitted and the Crown appeals. That person needs to know that his or her liberty will, once again, be placed in jeopardy. Thus, notice of an impending appeal is mandatory.
[29] The only way in which it can be certain that notice has been given is where notice has been delivered personally. Where the liberty of the subject is in jeopardy, personal notice ensures that the subject is aware of the jeopardy and can take steps to deal with it. It is for this reason, in my view, that Parliament has made specific provision for substitutional service. Such provision must be express – it cannot be implied.
[30] In the case of a person charged with an offence, the accused will become aware of the charge if he or she is arrested with or without warrant, or if he or she is served with a summons pursuant to s.509 of the Code. Section 509(2) provides as follows:
509 (2) A summons shall be served by a peace officer who shall deliver it personally to the person to whom it is directed or, if that person cannot conveniently be found, shall leave it for him at his latest or usual place of abode with an inmate thereof who appears to be at least sixteen years of age.
[31] It should be noted that it is Parliament that has specifically made provision for a form of substitutional service of a summons. It is not left to any rules of court. Substitutional service can be made where a person “cannot conveniently be found.” Having regard to the policy reasons why notice is required, the words “cannot conveniently be found” must be narrowly construed: see Buchholz, supra.
[32] It must not be overlooked that a right of appeal is purely statutory. A court has jurisdiction to entertain an appeal only if a statute clearly confers jurisdiction on an appellate court to entertain it: see R. v. Welch, [1950] S.C.J. No. 13, where Fauteux J. stated, for the majority:
The right of appeal is an exceptional right. That all the substantive and procedural provisions relating to it must be regarded as exhaustive and exclusive, need not be expressly stated in the statute. That necessarily flows from the exceptional nature of the right. [Emphasis added]
[33] To the same effect see R. v. Meltzer, 1989 CanLII 68 (SCC), [1989] S.C.J. No. 75; and R. v. H.(E.) (1997), 1997 CanLII 418 (ON CA), 33 O.R. (3d) 202 (C.A.).
[34] It should be noted that in R. v. Gruener (1979), 1979 CanLII 3030 (ON CA), 46 C.C.C. (2d) 88 (Ont. C.A.), a case decided prior to the enactment of s.678.1, Thorson J.A. entertained an application by the Crown for an order for substitutional service of a Notice of Appeal on the respondent, in connection with a proposed appeal of an acquittal of an indictable offence. Thorson J.A. assumed that he had jurisdiction to entertain the application, pursuant to the Criminal Appeal Rules, but held that substitutional service should only be ordered where personal service is demonstrably not possible through no fault of the party on whom the duty to effect the service is cast. Furthermore, he held that it should only be done where the proposed method of service will all in probability, if not certainty, be effective to bring notice to the respondent. He refused the Crown’s application.
[35] The issue of whether substitutional service of a Notice of Appeal in the case of an indictable offence could have been effected pursuant to rules of court prior to the enactment of section 678.1 of the Code is now moot. Section 678.1 of the Code now specifically makes provision for it. The issue before me is whether substitutional service can be effected in the case of a summary conviction appeal notwithstanding the absence of specific statutory authority.
[36] It seems to me that if Parliament had intended that an order for substitutional service could be made in the case of a summary conviction appeal, it would have been a simple matter to make specific reference to section 678.1 in section 822(1), which deals with summary conviction appeals. As a general proposition, in appeals under section 813(b) of the Criminal Code, the authority to make procedural orders must be found in section 822(1): see R. v. Labadie (2011), 2011 ONCA 227, 105 O.R. (3d) 98 (C.A.), at para. 36.
[37] It is clear, in my view, that the Criminal Code itself confers no specific authority on the Summary Conviction Appeal Court to order substitutional service of a Notice of Appeal. The remaining question is whether the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) confer such authority. In my view, they do not.
[38] As noted earlier, the power to make rules is conferred by section 482(1) of the Code. Of note, however, rules so made must not be “inconsistent with this or any other Act of Parliament.”
[39] In addition to section 822(1) of the Code, also of relevance is s.815, which provides:
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.
(2) The appeal court or a judge thereof may extend the time within which notice of appeal may be given.
[40] In addition to s.5.04(1) of the Rules, referred to earlier, s.40.06(3) of the Rules provides:
40.06 (3) Where a respondent cannot be found after reasonable efforts have been made to serve the notice of appeal, the appellant may apply for directions pursuant to subrule 40.03(2) without notice, to effect substituted service in the manner directed and within the period directed by a judge, pursuant to section 678.1 of the Code.
[41] In my view these provisions, individually or collectively, do not change the analysis. Section 815(1) of the Code provides that a notice of appeal shall be given “in such manner and within such period as may be directed by rules of court.” This can only refer to rules of court that are validly made. To the extent that a rule is inconsistent with the Code, section 815(1) cannot save it. Of note, s.815(2) gives express power to extend the time for serving a notice of appeal, but does not authorize substitutional service.
[42] Section 40.06(3) of the Rules purports to authorize substitutional service in accordance with s.678.1 of the Code. However, as noted earlier, s.678.1 applies only to appeals regarding indictable offences. Unless the rule is otherwise valid, s.678.1 cannot validate it.
[43] In my view, Parliament has made provision for substitutional service by enacting appropriate provisions within the Criminal Code. In the case of prosecutions, provision has been made in section 509. In the case of indictable appeals, provision has been made in section 678.1. In the case of summary conviction appeals, Parliament could have made provision for substitutional service through incorporation by reference in section 822(1), or could have enacted other provisions for it, but did not. In my view, a rule that makes provision for substitutional service that is not reflected in the Code itself is inconsistent with the Code. Thus, to the extent that sections 5.04(1) and/or 40.06(3) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) make provision for substitutional service of a Notice of Appeal in a summary conviction matter, they are ineffective. Accordingly, the court lacks jurisdiction to make the order sought.
[44] In view of my conclusion as to the jurisdiction of this court to grant the order sought by the Crown, it is unnecessary for me to determine whether an order for substitutional service would otherwise have been granted based on the material filed.
[45] For the foregoing reasons, the application by the Crown for an order for substitutional service, or an order dispensing with service, is dismissed.
Gray J.
Released: April 4, 2016
CITATION: R. v. Marton, 2016 ONSC 2269
COURT FILE NO.: N/A
DATE: 2016-04-04
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DANIEL MARTON
Respondent
REASONS FOR JUDGMENT
GRAY J.
Released: April 4, 2016