Ontario Superior Court of Justice
Court File No: CR-16-1459
Date: 2025-06-09
Between
His Majesty the King
Brian McGuire and Keeley Holmes, for the Crown
and
Melissa Merritt
Joel Hechter, for the Applicant/Defendant
Heard: February 10, 2025
Ruling on Charter Application
D.E. Harris
Introduction
[1] The applicant argues that her Charter rights have been infringed by the absence of an appeal route being available to her. The background is that she was charged with first degree murder and during the course of the trial—her second after the Court of Appeal reversed her original conviction—a directed verdict application for an acquittal was dismissed. Ultimately, the jury was hung. A mistrial was declared and a date for a new trial was ultimately set.
[2] The applicant argues that in the circumstances—a directed verdict application being dismissed and the jury subsequently having been unable to reach a verdict—it is a constitutional imperative under s. 7 of the Charter that an appeal lie to the Court of Appeal to argue the correctness of the directed verdict decision. In its form, the argument is styled as a constitutional attack on s. 674 of the Criminal Code, RSC 1985, c C-46 which restricts appeals to those statutorily provided in the Code, and an attack on s. 675 of the Code which grants an offender appeal rights from conviction and, with leave of the court, against sentence. The essence of the complaint is that in her circumstances, there is no appeal permitted to the Court of Appeal. She asks that as a remedy an appeal route be judicially constructed for cases like hers.
[3] Precisely the same argument failed before the trial judge. A leave application to the Supreme Court under s. 40 of the Supreme Court Act, RSC 1985, c S-26 was quashed under s. 44 of the Act: 2024 CarswellOnt 18866, 2024 120265. Section 44 reads: “The Court may quash proceedings in cases brought before it in which an appeal does not lie, or whenever such proceedings are taken against good faith.” Because the application was quashed and the merits were not decided, res judicata does not apply.
Analysis
[4] I disagree with the applicant’s position. In the best of all possible worlds, there would be an automatic and instantaneous appeal from all decisions made by a trial judge, no matter how interim or “interlocutory.” In a perfect world, there are infinite resources. But that is an imaginary world. The real world bears no resemblance to it. In the real world, an appeal for each decision made prior to verdict is impracticable. The court system, already grossly overburdened, would be forced into a hyper gridlock state, forever paralyzed. Resources are finite and in scarce supply for the administration of justice. The scarcity of resources in criminal justice is apparent from even a cursory reading of R. v. Jordan, 2016 SCC 27, to refer to one indicator.
[5] Parliament had the right to make the judgment that there ought not to be an appeal in the present circumstances. There is nothing unconstitutional about the choice made. Criminal law policy, as long as it is sufficient to ensure basic fairness, is for Parliament to decide and not for the courts to second guess: R. v. Sharma, 2022 SCC 39 at para. 107. The appeal contended for by the applicant has never been part of our law nor has there been any appeal in analogous circumstances. It is not a basic tenet of our legal system: Reference re s. 94(2) of Motor Vehicle Act (British Columbia), para. 37.
[6] Parliament was entitled to weigh the advantages and disadvantages of an appeal route in the applicant’s present circumstances. There are competing objectives. As Justice Doherty said in R. v. R. (R.), 2008 ONCA 497, para. 16:
Appeals are an integral part of the criminal justice system in Canada. They protect against wrongful convictions and enhance the fairness of the process. The benefits afforded by the appellate process, however, come at some cost. Appeals extend the life of criminal proceedings, thereby exacerbating the uncertainty and anxiety the process causes to individuals caught up in it. Most appeals fail and ultimately delay the imposition of the appropriate order made at first instance. Prolonged appellate proceedings detract from the timeliness and finality of criminal verdicts.
[7] It is true that reviewability for accused persons is constitutionally mandated but generally only from guilty verdicts, with only very rare exceptions: see R. v. Farinacci, paras. 22-31; R. v. Pan, 2001 SCC 42, para. 40; R. v. C.P., 2021 SCC 19, paras. 65-66 per Abella J.; R. (R.). Interlocutory appeals are not permitted in criminal matters: R. v. Meltzer, paras. 13-16. As was written in Mills v. The Queen, p. 959:
“It has long been a settled principle that all criminal appeals are statutory and that there should be no interlocutory appeals in criminal matters.”
[8] Procedural protections for an accused including the availability of an appeal need not be the most favourable possible: C.P. at para. 132. One way or another, the applicant’s case will come to a verdict, a plea of guilty or some other resolution. If a verdict after trial is adverse to the applicant, an appeal can be launched at that time and the applicant’s complaint determined. If there is an egregious unfairness that should be relieved against immediately—for example, in the exceedingly rare and exceptional instance where there is no evidence whatsoever to demonstrate even a prima facie case—the applicant may contemplate an abuse of process application.
[9] The applicant also invokes her right against double jeopardy in s. 11(h) of the Charter. However, this right clearly has no application because she has neither been “finally acquitted” of the offence nor “finally found guilty,” the two prerequisites to the operation of this protection: R. v. Morgentaler, para. 213.
Conclusion
[10] These are the reasons the application was dismissed at the hearing. As a postscript, after the hearing but prior to this written ruling being released, the applicant pled guilty to the lesser and included offence of manslaughter.
D.E. Harris
Date: June 9, 2025