



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Massara, 2013 ONCA 519

DATE: 20130815

DOCKET: M42705

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Orsola Massara

Applicant

Orsola Massara, appearing in person

Eric Morgan,
amicus curiae


Ruhia Jokhio, for the respondent

Heard: July 31, 2013

On application for the leave to appeal under s. 131 of
    the
Provincial Offences Act
from the judgment entered on November 14, 2012
    by Justice A.D. Cooper of the Ontario Court of Justice, dismissing an appeal
    from the judgment dated December 9, 2009 by Justice of the Peace B. Quinn.

ENDORSEMENT

[1]

The applicant seeks leave to appeal under s. 131 of the
Provincial
    Offences Act
, R.S.O 1990, c.P.33 as amended. The appeal was originally
    filed with the Superior Court of Justice, but on April 24, 2013 Durno J.
    advised Mr. Massara that the appeal should have been brought to the Court of
    Appeal.

[2]

Counsel for the respondent sought an adjournment of this leave motion on
    the basis that her principal, Harold Watson, who appeared before Justice of the
    Peace Quinn on December 9, 2009, but not on the appeal before Cooper J. on
    November 14, 2012, was absent. I declined leave on the basis that the leave
    motion could be argued without the detailed file knowledge that Mr. Watson had,
    and that Frank Massara, who appeared for his mother, the owner of the property,
    should not be forced to take another day off work to attend.

[3]

As a result of pre-trial negotiations Mr. Massara pleaded guilty on his
    mothers behalf to a charge of operating a contractors yard on land zoned
    agricultural contrary to the Town of Miltons zoning by-law contrary to s.
    67(1) of the
Planning Act
, R.S.O. 1990, c. P.13, as amended.  Mr.
    Watson, who appeared for the Town of Milton, made the joint submission and the
    appellant agreed to a fine of $3,500 payable over the course of a year.  As it
    turned out, however, the fine bore an unexpected surcharge. Further, Mr.
    Massara developed the view that the prosecutor had misled him about comparable
    cases, so that he had been induced to agree to a fine that was too high. 
    Despite the joint submission, he appealed the fine levied by the trial justice.

[4]

The appellant was notified that the transcript was ready for pick up on
    October 9, 2012. The matter was not perfected within 30 days of receiving
    notice from the court that the transcript was ready to be picked up, as
    required by O. Reg. 723/94, s. 17(c).

[5]

The Municipality brought a motion to dismiss the appeal for the failure
    to file the trial transcript, to be heard on the date scheduled for the appeal.
    Mr. Massara, however, showed up with the transcript in hand.  He explained
    there had been two deaths in the family and that he had been in and out of
    town.

[6]

Initially the appeal court judge was responsive to the fact that the
    transcripts were available.  In speaking to the prosecutor, he asked: What if
    he files it right now, then? Can he  we can get it on, then, cant we? This is
    all thats holding it up, Madam prosecutor?

[7]

The prosecutor answered affirmatively, but then went on to make
    submissions about the lengthy delay, and the fact that the appellant needed to
    have the guilty plea set aside.

[8]

Mr. Massara explained: My mother cant afford to make the payment. 
    Shes a senior citizen, shes old, shes sick, shes cant afford it. The
    appeal court judge then said: Alright Im dismissing everything because thats
    not a valid ground of appeal.

[9]

The prosecutor chimed in that there were other convictions dating back
    to 1991 for the same property, on which the fines remained unpaid.  At that the
    appeal court judge refused to hear anything further from Mr. Massara.  Although
    it is somewhat difficult to discern from the transcript, the bottom line from
    the appeal court judge is at the very end of the transcript: It cant go on
    any longer, Sir.

[10]

The
    Municipality takes the view that the appeal court judge dismissed the appeal properly
    on the basis of delay, pointing out that when the appeal was dismissed on
    November 14, 2012, almost three years had passed since the original conviction and
    sentence.

[11]

Mr.
    Massara contends that the delay was largely a result of tardiness in transcript
    preparation by the court office, and that the appeal should have been allowed
    to continue.

[12]

The
    principles for granting leave to appeal leave under s. 131 of the
Provincial
    Offences Act
are set out in
Ontario (Labour) v. Enbridge Gas
    Distribution Inc.
, 2011 ONCA 13, per Watt J.A. at paras. 33-35. There must
    be a question of law alone, the resolution of which may have an impact on the
    jurisprudence in a way that is of interest to the public at large, and that
    resolution must be essential, in the sense of material, important, in the
    public interest or for the due administration of justice:
R. v. Krukowski
(1991), 2 O.R. (3d) 155
(C.A.),
at para. 13.

[13]

In
R. v. Jamieson

(1981),
64 C.C.C. (2d) 550 (Ont. C.A.)

MacKinnon A.C.J.O. explained, at pp. 551-552, in granting leave to
    appeal:

The
Provincial Offences Act
was intended to establish
    a speedy, efficient and convenient method of dealing with offences under Acts
    of the Legislature and under regulations or by-laws made under the authority of
    an Act of the Legislature. The courts which hear these matters are given a wide
    discretion as to how they may proceed. However, s. 47(1) makes it clear, as one
    would expect, that the defendant is entitled to make his full answer and
    defence.

...

It seems to me that the applicant has a justified sense of
    grievance that her defence has never been heard. Counsel for the Crown does not
    suggest that her statement as to the reason for her failure to appear at the
    time fixed is untrue or should be questioned. Indeed, when the applicant
    appeared before the Provincial Court Judge there was no opportunity given for
    the Crown and the applicant to consider whether they could agree in this
    explanation as a fact if they had so desired.

In my view, the proceedings before the Provincial Court Judge
    may have been unsatisfactory. The
Provincial Offences Act
is not
    intended as a trap for the unskilled or unwary but rather, as already stated,
    as an inexpensive and efficient way of dealing with, for the most part, minor
    offences. The way in which the proceedings were conducted by the Provincial Court
    Judge may have resulted in a denial of natural justice.

This court later adopted MacKinnon A.C.J.O.s reasons
    for granting leave:
R. v. Jamieson
(1982), 66 C.C.C. (2d) 576 (Ont.
    C.A.).

[14]

It
    seems to me that the words of MacKinnon A.C.J.O.s apply here with necessary
    modifications. The appellant had the right to appeal. He reasonably explained the
    delay in producing the transcript that led to the motion and the missing
    transcript was available.

[15]

Mr. Massara takes issue with the fairness of the proceeding on
    the motion before the appeal court judge and with the disposition. The Provincial
    Offences Court, and the Ontario Court of Justice to which appeals go from that
    court, are the face of justice to many citizens.  They are often
    self-represented and are not familiar with the court, its manner of proceeding
    or its arcane rules.

[16]

As I noted in
R. v. Georgalis
,
[2013] O.J. No. 1921 at para. 8,
the assumption behind the high
    threshold for leave to appeal to this court is that an applicant had a full and
    fair hearing by the appeal judge. Having reviewed the transcript, however, I am
    concerned that the applicant, who represented his mother, may not have had a
    full and fair opportunity to argue the motion or the appeal. In my view, this
    brings the case within the prescription that it is in the interests of the due
    administration of justice that leave be granted. See
R. v. Jamieson

(1981), at pp. 552-53.

[17]

I
    therefore grant leave to the applicant to appeal.

P. Lauwers J.A.


