



WARNING

Pursuant
    to the decision of Justice Lauwers contained herein, an order restricting
    publication in this proceeding is now in place. Any information that could
    identify the applicant in this appeal shall not be published in any document or
    broadcast or transmitted in any way.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.E., 2013 ONCA 713

DATE: 20131121

DOCKET: M41972 M41973

Lauwers, J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

A. E.

Applicant

A. E., acting in person

Christine Bartlett-Hughes, for the respondent

Heard: June 26, 2013.

APPLICATION for an extension of time in which to appeal
    and for leave to appeal under the
Provincial Offences Act
.

ENDORSEMENT

[1]

The applicant comes
    before this court with four convictions for driving motor vehicles without
    insurance, contrary to the
Compulsory Automobile Insurance Act,
R.S.O.
    1990, c. C-25. He applies for an extension of time in which to appeal, and for leave
    to appeal in this court under the
Provincial Offences Act
, R.S.O. 1990,
    c. P-33.

[2]

The materials before
    this court show that the applicant apparently has suffered from, but is now
    being treated for, a serious mental illness. This was not known by the lower
    courts. To protect his personal privacy, I order that he not be identified by
    name and that any publication of the details in this matter be restricted so as
    not to identify him.

[3]

The applicants
    convictions for operating motor vehicles without insurance resulted in very
    significant fines. These fines, cumulatively over $20,000, weigh heavily on the
    applicant, and it is questionable, at least on the limited evidence filed on
    these applications, whether the applicant has the realistic ability to ever pay
    them. Even bankruptcy will not give him respite.

[4]

There seems to be
    conflicting authority on whether this court has jurisdiction to hear the appeals
    of some of the matters on which the applicant is seeking leave, because he was
    denied an extension of time in which to appeal by the courts below. See:
R.
    v. Valente
(1982), 40 O.R. (2d) 535,
R. v. Belanger
, [2006] O.J. No.
    3453,
R. v. Melaku
(2011), 106 O.R. (3d) 481, and
R. v. Borges
,
    2011 ONCA 621, 107 O.R. (3d) 377; all judgments of single members of this court
    in applications for leave to appeal under the
Provincial Offences Act
. A
    panel of this court has referred to this issue but declined to resolve it. See:
R. v. Opoku
, 2012 ONCA 22, at para. 3.

[5]

For the reasons that
    follow, in the particular circumstances of this case, I grant an extension of
    time in which to appeal and grant leave to appeal. The panel hearing the appeal
    may wish to consider the jurisdictional issue.

Background

[6]

The applicant has four
    convictions for operating a motor vehicle without insurance, contrary to s.
    2(1)(a) of the
Compulsory Automobile Insurance Act
. As I will briefly
    describe, the court did not deal with these offences in chronological order. Only
    the first disposition preceded the last offence date.

[7]

The first offence date
    was April 18, 2005. The applicant attended a trial date on October 13, 2005. He
    was unrepresented. His request for an adjournment of the trial was denied, and
    he pled guilty to the charge. He provided an explanation of the circumstances,
    and he was sentenced to a fine of $2,500. It is worth noting that under s. 2(3)
    of the
Compulsory Automobile Insurance Act
the minimum fine for this
    offence is $5,000 on a first offence, but the court has discretion under s.
    59(2) of the
Provincial Offences Act
to impose a fine below the minimum.

[8]

The offence date for
    the third offence was September 15, 2005. The applicant appeared in court on
    November 16, 2006, represented by an agent who assisted him in pleading guilty
    to the offence, with a joint submission for a fine of $2,500. The prosecutor
    did not allege a record of a previous conviction. The sentencing justice of the
    peace acceded to the joint submission and ordered a fine of $2,500.

[9]

The offence date for
    the fourth offence was March 17, 2006. The applicant was in court on November
    22, 2006, once again represented by an agent, and he pled guilty to the offence
    and a fine of $2,000 was imposed. The specific circumstances in which this
    proceeding took place and the reasons for this sentence are not entirely clear
    as there was no transcript of this proceeding filed in this court. I found it
    necessary to proceed with the application nonetheless.

[10]

And
    finally, the second offence had an offence date of June 30, 2005. The
    applicant, represented by the same agent, apparently had a trial, in which he
    was found guilty, and the sentencing proceeded on February 16, 2007. From a
    transcript filed in this court of the sentencing proceeding, it appears the
    prosecutor filed a record of the first conviction entered on October 13, 2005,
    and argued for at least the minimum fine of $10,000 mandated under s. 2(3) of
    the
Compulsory Automobile Insurance Act
for a second or subsequent
    conviction. The presiding justice of the peace imposed a $10,000 fine. He found
    that the applicant had not learned from his previous fine, but did not notice
    that the previous conviction and fine was imposed for an offence that occurred
    after the offence for which the applicant was being sentenced. There is an
    arguable error of law with some merit with respect to this sentence. See:
R.
    v. Skolnick
, [1982] 2 S.C.R. 47.

[11]

On
    October 30, 2007, the applicant brought a motion before a provincial judge to
    extend the time in which to appeal his first three convictions, pursuant to
    section 85 of the
Provincial Offences Act
. It is not clear from the
    record why the applicant did not bring this motion with respect to all four
    convictions, but this dishevelled approach seems to be consistent with his
    mental state. The applicants motion was dismissed.

[12]

On
    February 10, 2011, the applicant brought another motion before a provincial
    judge to extend the time in which to appeal. He did so on this occasion with
    respect to all four convictions. The prosecutor brought the judges attention
    to the fact that a motion to extend time for the first three convictions had
    already been dismissed on October 30, 2007. The provincial judge treated the
    matter as an appeal on the merits on the fourth conviction, and granted the
    appeal from sentence. He confirmed the $2,000 fine, but gave more time to pay.

[13]

On
    November 19, 2012, the applicant tried again to bring a motion to extend time
    in which to appeal before a provincial judge, having apparently been redirected
    to do so by staff of this court. That motion was dismissed for lack of
    jurisdiction because it had already been dismissed.

[14]

Throughout
    all of the proceedings, except and until it was before this court, I can find
    no reference to the applicants mental illness, or any significant reference to
    his ability to pay the substantial fines imposed upon him. In addition to the
    fines mentioned, totalling $17,000, by operation of s. 60.1 of the
Provincial
    Offences Act
, and the
Victim Fine Surcharges
, O. Reg. 161/00, there
    is a 25% surcharge payable by the applicant on these fines, plus small nominal
    court costs added pursuant to R.R.O. 1990, Reg. 945. In total, the applicant
    owes in excess of $21,250, payable in fines, surcharges and court costs from
    these convictions.

Analysis

[15]

Since
    the offences in question proceeded under Part III of the
Provincial Offences
    Act
, an appeal lies to this court under section 131. While the test for
    leave is a high one, it should not, in my view, be inflexible. In the
    circumstances of this case, for the reasons that follow, I find there is an
    important public interest in this case, and there is an arguable issue that
    relates to the due administration of justice.

[16]

Although
    the offences are relatively serious, the applicant faces a very significant amount
    of fines, surcharges and costs that is draconian in its impact on him
    personally. The courts below were not made aware of his mental illness, and although
    he seems to be getting treatment, from the scanty material filed in this court,
    he may well have no real prospect of being able to pay these oppressive fines. Significant
    minimum fines for the offence of operating a motor vehicle without insurance may
    well have a good public policy justification, particularly in acting as a
    general deterrent. It is nonetheless, in my view, in the public interest to
    determine whether in the particular circumstances of any individual defendant
    or appellant, some accommodation should be made for individuals with
    significant personal disabilities. Although it may well have been within the
    power of the provincial offences appeal court to consider this issue, there was
    never an opportunity for that court to consider that issue, because of the
    manner in which the appeal proceedings unfolded, and because the applicant evidently
    was unable to advance the issue.

[17]

The
    appeal proceedings in the provincial offences appeal court on October 30, 2007
    are especially problematic. As noted, the applicant had brought a motion to
    extend time in which to appeal three of his four convictions. From my review of
    the transcript of that proceeding, it is at least arguable that the court did
    not consider the appropriate factors in determining the issues before it, and,
    perhaps more importantly, closed off any opportunity for the broader public
    interest issue to be raised.

[18]

After
    being given a brief chronology by the prosecutor, which in my view was at
    least argumentative and may be viewed as prejudicing the applicants motion,
    the following exchange took place between the applicant and the court:

THE COURT: All right, thank you. What do you have to say?

A.E.: Sir, I've tried to pay the money but I'm a student, I
    don't have money to pay and want to know if I can reduce. Right now I'm in
    (UNINTELLIGIBLE) and I can't even pay my insurance right now, so I don't know
    how to pay this fine.

THE COURT: Sir, your driving record is a complete and utter
    disgrace.

A.E.: Yes.

THE COURT: Excuse me. You have been convicted of this not once,
    but twice, but three times.

A.E.: Sir, the .

THE COURT: Excuse me, I am talking to you now. The Justice
    reduced this. You, yourself were in court in February. The fact that you have
    waited until August to even challenge this persuades me that you are treating
    the entire system as a joke.

A.E.: No, Sir.

THE COURT: You have absolutely -- I am still talking to you,
    please. You have absolutely no respect for your privilege of driving and have
    thumbed your nose at the system throughout. What do you want to say?

A.E.: Sir, I'm a student. I'm supposed to be in class right
    now. I'm taking  credits as a student. I'm in school from Monday to Friday.

THE COURT: You are expected to follow the same rules that apply
    to everyone else. You can appear before a justice and seek more time. Your
    matters are dismissed. Shameful. Thank you.

[19]

Numerous
    authorities set out the appropriate factors that a court should consider in
    determining whether to extend the time in which to appeal under s. 85 of the
Provincial
    Offences Act
. Among the appropriate factors, it is usually significant
    whether:

·

the applicant has demonstrated a
bona fide
intention to
    appeal within the prescribed appeal period;

·

the applicant has accounted for or explained the delay in
    initiating the appeal; and

·

the proposed appeal has merit.

And in some circumstances it will be significant whether:

·

the consequences of the conviction are out of all proportion to
    the penalty imposed;

·

the Crown will be prejudiced; and

·

the applicant has taken the benefit of the judgment.

[20]

I
    agree with Justice Nadel, in
R. v. Monrad
, [2012] O.J. No. 398 (C.J.), who
    applied, at para. 1, in the provincial offences appeal context, a principle
    enunciated by Justice Watt, that: In the final analysis, the principal
    consideration is whether the applicant has demonstrated that justice requires
    that the time be extended.

[21]

It
    is important to note that these are all factors, not preconditions. In the
    present case I think it is at least arguable that the provincial judge did not
    appear to take these factors into account. After this dismissal, the applicant
    was prevented from having the provincial offences appeal court consider the
    totality of the fines and surcharges. In my view, in the particular
    circumstances of this case, the due administration of justice is implicated,
    and as a consequence the broader public interest issues involved were not
    considered. As such I find that leave to appeal ought to be granted.

[22]

As
    a final note, I observe that while there was some evidence filed as to the
    applicants mental illness and his financial circumstances, it may well be insufficient
    for the purpose of the appeal. It would be beneficial if the applicant were
    assisted by counsel, who might consider whether additional fresh evidence is
    warranted.

P. Lauwers J.A.


