



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.E., 2016 ONCA 243

DATE: 20160404

DOCKET: C58069

C58070

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.E.
[1]

Appellant

A.E., acting in person

Lisa Feinberg,
amicus curiae

Joanne Stuart, for the respondent

Heard: September 9, 2015

On appeal from the judgment of Justice Eric N. Libman of
    the Ontario Court of Justice dated October 30, 2007 and the judgment of Justice
    Peter A. J. Harris of the Ontario Court of Justice dated February 10, 2011.

Feldman J.A.:

[1]

Between 2005 and 2006, the appellant was convicted of four separate
    offences of driving a motor vehicle without insurance, contrary to the
Compulsory
    Automobile Insurance Act
, R.S.O. 1990, c. C-25. He was sentenced to fines
    for each of these convictions.

[2]

The appellant did not seek to appeal his sentences until late 2007, when
    he brought a motion before a judge of the Ontario Court of Justice to extend the
    time in which to appeal three of the convictions. The judge refused to grant
    the extension of time. The appellant brought a second motion to extend the time
    in which to appeal on February 10, 2011. That motion concerned all four of his
    convictions. The second judge found that he had no jurisdiction to address the
    extension of time on the first three convictions, as they had been addressed by
    the first motion judge. He granted the extension of time to appeal sentence on
    the fourth conviction together with an extension of the time to pay the fine.

[3]

The appellant now appeals these two judgments to this court, having been
    granted an extension of time in which to appeal as well as leave to appeal
    sentence by Lauwers J.A.: 2013 ONCA 713, 118 O.R. (3d) 98. If successful, he asks
    for a suspension of his sentence or, in the alternative, that the fines be
    reduced. He also seeks to file fresh evidence on the appeal. Whether this court
    has jurisdiction to entertain an appeal from a refusal to extend the time to
    appeal the original sentences under s. 85 of the
Provincial Offences Act
,
    R.S.O. 1990, c. P-33 (
POA
), is the first issue.

[4]

For the reasons that follow, I conclude that this court has jurisdiction
    to hear an appeal, with leave, from a refusal to extend the time to appeal
    under s. 85 of the
POA
. Leave having been granted on the basis of the
    fresh evidence of the appellants mental illness and inability to pay the
    substantial total fines, I would reduce the fines owed by the appellant.

Facts

[5]

All four convictions are for driving without insurance contrary to s.
    2(1)(a) of the
Compulsory Automobile Insurance Act
. The appellants
    first offence occurred on April 18, 2005. The appellant was self-represented at
    his trial on October 13, 2005. He requested an adjournment on the basis that he
    was not prepared, that he was in school and had a test that day. The
    adjournment request was denied, and the appellant pleaded guilty to the charge.

[6]

Though the minimum fine was $5,000, the court exercised its discretion under
    s. 59(2) of the
POA
to impose a fine below the minimum in exceptional
    circumstances. The court reduced the fine to $2,500 because it was the
    appellants first offence and he had pleaded guilty. He was given six months to
    pay. Also the court declined to suspend his licence. The appellant submitted
    that the amount of the fine was too high because he was in school, was not
    working, and had loans to pay, but the court rejected his submission.

[7]

The second offence occurred on June 30, 2005. There was a collision,
    resulting in a charge of following too closely as well as driving without
    insurance. At the trial on February 23, 2006, the appellant was again self-represented.
    He pleaded not guilty. The trial was adjourned following the appellants
    testimony for him to bring any further proof of insurance. There was evidence
    that both at the scene and prior to trial, he gave the officer false insurance
    documents. On September 15, 2006, he returned with an agent and advised the
    court that he had no further proof of insurance. The matter was adjourned for
    judgment. He was convicted of both offences on December 8, 2006.

[8]

He was represented by the agent at his sentencing hearing on February
    16, 2007. The Justice of the Peace rejected the agents submission that the
    court should exercise its discretion to impose a fine of $6000, below the
    minimum $10,000 required by s. 2(3) of the
Compulsory Automobile Insurance
    Act
for a second offence, and imposed the $10,000 minimum with 12 months
    to pay.

[9]

The third offence occurred on September 15, 2005. The appellants agent
    entered a guilty plea on his behalf on November 16, 2006. The evidence again
    was that the appellant presented the officer on the scene with a false
    insurance document. Based on a joint submission, the appellant was sentenced to
    a fine of $2,500 with 12 months to pay.

[10]

The
    fourth offence occurred on March 17, 2006. On November 22, 2006, the appellants
    agent again entered a guilty plea on his behalf. The judge accepted the joint
    submission of the prosecutor and the agent and sentenced the appellant to a
    fine of $2,000 with six months to pay.

[11]

Following
    the fourth sentence, the appellant faced fines of $17,000 together with a 25%
    surcharge totalling in excess of $21,250.

[12]

In
    August 2007, the appellant filed notices of appeal of all four sentences, and
    brought motions under s. 85 of the
POA
to extend time in which to
    appeal his sentences on three of the four convictions, citing his inability to
    pay the fines as his grounds for appeal. On October 30, 2007, those motions
    were heard by Libman J. at the Ontario Court of Justice. The motion judge
    denied the extension of time. He indicated that the appellants delay in
    waiting to appeal his sentences persuaded him that the appellant was treating
    the entire system as a joke.

[13]

The
    appellant brought a second motion for an extension of time to file an appeal at
    the Ontario Court of Justice, this time for all four sentences. At the hearing
    in February 2011, Harris J. explained to the appellant that for the three matters
    where the extension had already been denied, he would have to apply for leave
    to appeal to this court. On the fourth matter, the judge granted the extension
    of time to appeal sentence, refused to reduce the $2000 fine, but granted the
    appellant a further nine months in which to pay that fine.

[14]

In
    November 2012, the appellant again moved, this time before Boivin J., to extend
    time to appeal the first three sentences, seeking a reduction in the fines and
    informing the court that he had been under stress and had had a mental
    breakdown. Boivin J. held that he had no jurisdiction, as the motions had
    already been decided.

[15]

Finally,
    in November 2013, the appellant filed a notice of appeal in this court, seeking
    special leave to appeal the denials of an extension of time to appeal the
    sentences and in the case of the fourth conviction, to appeal the sentence.
    Lauwers J.A. granted an extension of time in which to appeal and also granted
    leave to appeal. He explained:

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.

[16]

Lauwers
    J.A. recognized that there was an outstanding issue regarding the jurisdiction
    of this court to entertain an appeal from a refusal to grant an extension of
    time under s. 85 of the
POA
to appeal a Part III offence, and
    expressly left that issue to be decided by the panel hearing the appeal.

Issues

[17]

The
    appellant appeals from the 2007 judgment of Libman J. refusing to grant an
    extension of time to appeal the first three sentences. He also appeals from the
    2011 judgment of Harris J., which granted the extension of time to appeal the
    fourth sentence and extended the time to pay the $2000 fine, but refused to
    reduce that fine.

[18]

The
    following are the issues to be addressed:

1. Does this court have jurisdiction to
    hear an appeal from the 2007 decision under s. 85 of the
POA
, denying
    an extension of time to appeal sentence in a proceeding commenced under Part
    III of the
POA
?

2. If so, did the motion judge err when
    he failed to grant the extension of time to appeal?

3. Should this court admit the fresh
    evidence relating to the appellants mental illness and inability to pay the
    fines, and, in light of that evidence, reduce the fines owed by the appellant?

[19]

I
    will address each issue in turn.

Jurisdiction

[20]

The
    issue of whether an appeal lies to this court, with leave, from the dismissal
    of a motion to extend the time to appeal under s. 85(1) of the
POA
,
    which does not include a right of appeal, has been the subject of conflicting
    decisions of single judges of this court sitting on motions, but has not been
    considered by a panel of the court.
[2]
As this courts jurisdiction over
POA
matters is statutory, its
    jurisdiction must be found in the
POA
and the proper interpretation of
    the governing provisions.

[21]

The
    governing sections of the
POA
are s. 85(1),(2), s.116(1),(2) and s.
    131(1),(2), which provide:

85. (1)

Subject
    to this section, the court may extend any time fixed by this Act, by the
    regulations made under this Act or the rules of court for doing any thing other
    than commencing or recommencing a proceeding, whether or not the time has
    expired.

(2)

No
    more than one application for an extension of the time for filing of an appeal
    may be made in respect of a conviction.



116. (1)

Where
    a proceeding is commenced by information under Part III, the defendant or the
    prosecutor or the Attorney General by way of intervention may appeal from,

(a) a conviction;

(b) a dismissal;

(c) a finding as to ability, because of mental
    disorder, to conduct a defence;

(d) a sentence; or

(e) any other order as to costs.

(2)
An appeal under
    subsection (1) shall be,

(a) where the appeal is from the decision of a
    justice of the peace, to the Ontario Court of Justice presided over by a
    provincial judge; or

(b) where the appeal is from the decision of a
    provincial judge, to the Superior Court of Justice.



131. (1)

A
    defendant or the prosecutor or the Attorney General by way of intervention may
    appeal from the judgment of the court to the Court of Appeal, with leave of a
    judge of the Court of Appeal on special grounds, upon any question of law alone
    or as to sentence.

(2)

No
    leave to appeal shall be granted under subsection (1) unless the judge of the
    Court of Appeal considers that in the particular circumstances of the case it
    is essential in the public interest or for the due administration of justice
    that leave be granted.

[22]

The
    jurisprudence began with the decision of G. Blair J.A. in
R. v. Valente
(1982), 40 O.R. (2d) 535, which dealt with the predecessor to s. 131 of the Act
    (then s. 114). At the first level of appeal from a conviction for careless
    driving obtained through Part III proceedings, the Provincial Court judge
    declined to decide a
Charter
issue regarding the jurisdictional
    competence of provincially appointed judges. The Crown sought leave to appeal
    to the Court of Appeal, and the issue was whether the decision declining to
    decide the appeal was a judgment within the meaning of s. 114.

[23]

G.
    Blair J.A. held that the term judgment in s. 114 should be given a broad
    meaning consistent with the intent of the
POA
to avoid undue
    technicality. He also analogized to the similar interpretation given to the term
    decision in then s. 771 of the Criminal Code, dealing with summary conviction
    appeals.

[24]

The
    result and reasoning in
Valente
were followed and applied by Gillese
    J.A. in
R. v. Belanger
,

[2006] O.J. No. 3453 (C.A.), where, as in this case, the underlying
    decision was the denial of an extension of time to appeal, in that case,
    convictions for driving with a suspended licence. In granting leave to appeal
    under s. 131, Gillese J.A. referred to
R. v. Gonsalves
, [1995] O.J.
    No. 4046 (C.A.), where, in a brief endorsement, the court expressed doubt as to
    its jurisdiction to hear an appeal with leave from the denial of an extension
    of time to appeal a summary conviction.
[3]
This contradicted part of the reasoning in
Valente
. Nevertheless,
    Gillese J.A. agreed with G. Blair J.A. that the word judgment in s. 131 of
    the
POA
should be broadly interpreted, noting that the British
    Columbia Court of Appeal had made a similar decision in
R. v. Burgar
(2003), 176 C.C.C. (3d) 253, interpreting British Columbias provincial
    offences legislation.

[25]

Two
    decisions of single judges of this court take the contrary view. In
R. v. Melaku
(2011), 106 O.R. (3d) 481, the applicant had been convicted of a number of
Highway
    Traffic Act
offences. As the time had passed to launch an appeal, the
    applicant had to obtain an extension of time to appeal under s. 85. His
    application was denied. It was from that denial that he sought leave to appeal
    to this court.

[26]

The
    offences in
Melaku
were prosecuted as Part I offences under the
POA.
Charges brought under Parts I and II are commenced by a certificate and
    are generally for less serious offences, while prosecutions under Part III are commenced
    by an information and are more serious, with higher potential penalties.

[27]

The
    appeal provisions that apply are also different. For proceedings under Parts I
    and II, the first level of appeal is provided in s. 135(1), and a further
    appeal to the Court of Appeal with leave is provided in s. 139(1). Those
    sections read:

135. (1)

A
    defendant or the prosecutor or the Attorney General by way of intervention is
    entitled to appeal an acquittal, conviction or sentence in a proceeding
    commenced by certificate under Part I or II and the appeal shall be to the
    Ontario Court of Justice presided over by a provincial judge.



139. (1)
An appeal lies from
    the judgment of the Ontario Court of Justice in an appeal under section 135 to
    the Court of Appeal, with leave of a judge of the Court of Appeal, on special
    grounds, upon any question of law alone.

[28]

Epstein
    J.A. observed that an appeal to this court under s. 139(1) only lies from a judgment
    made by an appeal court under s. 135 on appeal from a conviction, an acquittal
    or from sentence. As the denial of an extension of time to appeal is not a
    judgment in an appeal under s. 135, no appeal lies to this court. Epstein J.A.
    also considered whether the dead-end created by s. 85 for Part I offences was
    consistent with the overall scheme of the
POA
and the intent of the
    legislature. She concluded that for the less serious Part I offences, a more
    limited number of appeal opportunities and routes was fair and consistent with
    the scheme of the legislation.

[29]

In
R. v. Borges
,
2011
    ONCA 621, 107 O.R. (3d) 377, the Crown asked the chambers judge in this court
    to apply the principle of a limited right of appeal for Parts I and II proceedings
    from
Melaku
to a decision denying an extension of time to appeal in a
    Part III proceeding.

[30]

Juriansz
    J.A. rejected the analysis from
Valente
and
Belanger
that turned
    on the scope of the term judgment in s. 131. He found that the
POA
creates
    a two-tier route for appeals to this court and reasoned that because an appeal
    to the Court of Appeal has to be a second level of appeal, therefore the appeal
    provided by s. 131 with leave, must be only from first-level appeal decisions
    under s. 116.  Because a decision granting or denying an extension of time
    under s. 85 is not a decision under s. 116, it could not be appealed under s.
    131.

[31]

I
    do not agree that s. 131 only allows appeals to this court as a second level of
    appeal. Rather, it allows only appeals from judgments of a court designated
    to hear appeals at the first level. This is confirmed by the definition of the term
    court in Part VII of the
POA
 which contains the appeal provisions,
    including s. 131  as the court to which an appeal is or may be taken under
    this part (s. 109). However, those judgments do not have to be judgments made
    under s. 116.

[32]

There
    is no limiting language in s. 131, as there is in s. 139, which is the
    comparable provision for appeals to this court in Part I and Part II proceedings.
    Section 139 provides an appeal only from a judgment  in an appeal under s.
    135. In s. 131, appeals are from the judgment of the court, but there is no
    specific reference to a judgment of the court that was made under s. 116. Had
    the legislature intended to limit the jurisdiction of this court to hear
    appeals of Part III proceedings in the same way as Part I and Part II proceedings,
    it could have structured the appeal provision in a manner similar to the one
    governing those appeals.

[33]

A
    motion for an extension of time to appeal sentence is made to the first level
    of appeal court, as defined in s. 109, and may be brought together with the
    notice of appeal appealing one of the five dispositions that are listed in s.
    116. The order dismissing the motion to extend time is a judgment of that
    court, although it is not the appeal judgment itself.

[34]

I
    agree with Gillese J.A. that the term judgment is essential to the proper
    interpretation of the section, and there is no reason to restrict the meaning
    of the word judgment so as to exclude certain decisions (
Belanger
,
    at para. 15). By contrast with Part I and II proceedings, there is good reason
    to allow a slightly less restricted opportunity to appeal in Part III proceedings,
    which generally involve more serious offences and which may carry more
    significant penalties.

[35]

The
    effect of this analysis is that this court does have jurisdiction to grant
    leave to appeal under s. 131 of the
POA
from a judgment that denies an
    extension of time to appeal under s. 116. However, because of the strict
    requirements of s. 131(2) governing the granting of leave, coupled with the
    deference owed to discretionary decisions such as denying an extension of time
    to appeal, leave to appeal to this court from such decisions will necessarily be
    rarely granted.

Did the Motion Judge Err by Denying the Extension of time to
    Appeal?

[36]

As
    leave to appeal was granted by Lauwers J.A., subject to this courts finding on
    the issue of jurisdiction, I now turn to the merits of the appeal. The test for
    granting an extension of time to appeal is set out in this courts decision in
R.
    v. Menear
(2002), 162 C.C.C. (3d) 233 (Ont. C.A.), at paras. 20-21:

There is no absolute rule to be applied in the exercise of the
    discretion whether or not to grant an extension of time.  The court will,
    however, usually consider the following three factors:

(i)      whether the applicant has shown a
bona fide
intention to appeal within the appeal period;

(ii)      whether the applicant has accounted for or explained
    the delay; and

(iii)     whether there is merit to the proposed appeal.

Depending on the case, the court may take into consideration
    other factors such as whether the consequences of the conviction are out of all
    proportion to the penalty imposed, whether the Crown will be prejudiced and
    whether the applicant has taken the benefit of the judgment.  In the end, the main
    consideration is whether the applicant has demonstrated that justice requires
    that the extension of time be granted.

[37]

The
    position of
amicus
is that on the motion to extend time for three of
    the sentences, the appellant was not given a full hearing by the motion judge,
    who did not apply the test in
Menear
before denying leave to appeal.

[38]

The
    appellant told the judge that he was a student, and that he was not able to pay
    the fines imposed. The judge observed that the appellant waited until August
    after being in court in February before he attempted to challenge the sentences
    imposed, and concluded that the appellant was treating the entire system as a
    joke. He also referred to the fact that the appellant had three convictions
    for driving without insurance, and that he could ask a justice to extend the
    time to pay.

[39]

I
    agree that the hearing before the motion judge can be viewed as somewhat perfunctory.
    However, in the context of a busy Ontario Court of Justice docket, I would not
    view the proceeding as failing to give the appellant the opportunity to be
    heard, nor did the motion judge fail to apply the correct test. His conclusion
    indicates that he was not satisfied that the appellant formed the intention to
    appeal within the 30 day appeal period, nor that the justice of the case
    required an extension of time. In my view, the motion judge did not err in his
    discretionary decision to deny an extension of time to appeal.

The Fresh Evidence

[40]

Some
    fresh evidence that the appellant suffered from a mental illness was placed
    before Lauwers J.A. on the application for leave to appeal to this court. Upon
    granting leave to appeal, he suggested that
amicus
assist the
    appellant to obtain further evidence regarding the appellants mental illness
    and his financial circumstances. In response, the appellant attended an
    assessment by Dr. Gojer, an expert psychiatrist, who filed a report. The
    appellant also filed a further affidavit.

[41]

Although
    the Crown does not object to the admissibility of the fresh evidence, it takes
    the position that it has limited relevance.

[42]

In
    his report, dated February 9, 2015, Dr. Gojer gave the opinion that the
    appellant suffers from paranoid schizophrenia and chronic major depression
    following on post-traumatic stress disorder as a result of his background in
    Nigeria, the loss of his parents there and his abuse on the voyage to Canada.
    He opined further that the appellant likely had these illnesses at the time of
    the offences but he could not give an opinion on whether the appellant was NCR
    at the time.

[43]

He
    commented as follows with respect to the offences:

The account that Mr. [E] gives with respect to the 4 insurance
    related offences do[es] not make sense. It appears that he either used very
    poor judgment secondary to his illness or was simply making a rational choice
    not to pay for his insurance Given his history, it is more likely that his
    mental illness was responsible for the very poor judgment at the time of all
    four offences

My concern is that he has a history of not handling his
    finances well and owes money on his credit cards and an OSAP loan. He has
    struggled to also complete his real estate course and only recently completed
    all the requirements, taking almost 7 years to do it. It is likely that his
    mental illnesses precluded him from handling his finances.

[44]

Apparently
    the appellant had been under the care of a treating psychiatrist for several
    years at the time of the assessment and Dr. Gojer stated that his illness had
    stabilized, although he was not fully well. He doubted that given the
    appellants minimal earnings as a real estate agent ($12,673.91 net income in
    2013), he would be able to pay his fines within a reasonable amount of time.

[45]

In
    his affidavit also sworn in February 2015, the appellant gave details of his
    financial circumstances with his current debts. On November 12, 2014, his licence
    was suspended for non-payment of his fines. He states that without his licence it
    is difficult to operate as a real estate agent because the time and cost of
    showing properties is increased. He states further that he is not able to pay
    the fines on his current income. He expresses remorse for the offences and
    states that he has come a long way since they were committed and that he will
    continue to make efforts to seek treatment for his mental conditions. He asks
    the court to assist with his rehabilitation by reducing the fines he owes.

[46]

To
    be admissible on appeal, fresh evidence must meet the criteria in
Palmer v.
    The Queen
, [1980] 1 S.C.R. 759, the last of which is that the evidence could
    reasonably be expected to have affected the outcome of the decision under
    appeal.

[47]

I
    am prepared to admit the fresh evidence on the basis that it does meet the
Palmer
criteria in respect of the decision to deny an extension of time to appeal. I
    am satisfied that had the motion judge had this evidence, he may well have
    taken a different view of the reason for the appellants delay in appealing and
    of the circumstances of his convictions and sentences generally, and may thus have
    granted the extension of time to appeal.

[48]

I
    conclude that although the motion judge made no error on the record before him,
    had he had the fresh evidence, he would have had the basis to grant the
    extension of time to appeal. On that basis, this court may consider the merits
    of the appeals against sentence on those three charges as well as on the fourth
    charge, where the extension of time to appeal sentence was granted by the
    appeal judge but there was no reduction in the fine owed.

Sentence appeal

[49]

Having
    concluded that this court may address the propriety of the sentences imposed in
    light of the fresh evidence, the court must decide how the evidence that the
    appellant has suffered and to some extent continues to suffer from mental
    illness should affect the amount of the fines imposed for driving without
    insurance.

[50]

Amicus
submits that while the fines imposed were within the appropriate range at the
    time, based on the fresh evidence regarding the appellants mental illness, it
    would be contrary to the public interest and would result in extreme hardship
    if this court did not reduce or eliminate those fines.
Amicus
relies
    on two decisions of this court that involved jail sentences, where the fresh
    evidence of mental illness showed that the appellants mental health had deteriorated
    or would deteriorate significantly in jail and that an appropriate sentence
    would be a conditional sentence (
R. v. Jacobson
(2006),
207 C.C.C. (3d) 270;

R. v. Tran
, 2008 ONCA 471).

[51]

The
    Crown submits that to the extent that the appellants mental illness affects
    his ability to pay the fines imposed, or to manage his finances, that issue is
    more properly raised in default proceedings under s. 69 of the
POA
where
    a judge may reduce or waive a fine. Although such proceedings may not currently
    be initiated by the defaulter  there has been a pending amendment since 2009
    (s. 69(14.1))  the Crown has undertaken to facilitate the commencement of such
    a proceeding if the appellant so requests.

[52]

The
    Crown also points out that for three of his four convictions, the sentencing
    judges did exercise their discretion and imposed a reduced fine in recognition
    of the appellants student status and therefore his reduced ability to pay. He
    only received the mandatory minimum of $10,000 for a second offence on the
    occasion where he was found guilty after a trial, and where he had caused an
    accident with damage to both cars. This was the occasion when the appellant
    tendered two false insurance slips to the officer, once at the scene and again
    before trial.

[53]

In
    my view, there is merit to the position taken by the Crown in the context of
    sentencing for this particular offence. The purpose of the escalating fine
    structure for convictions for driving without insurance is obvious: to deter
    persons who have been given the privilege of driving a car from driving without
    compulsory liability insurance, the purpose of which is to protect other people
    who are personally injured or suffer damage to their property in an accident
    with an uninsured motorist. It is expected that if a person can qualify for a
    licence and own a car, that person is able to comply with the licensing and
    registration requirements of doing so.

[54]

However,
    the sentencing judges were not made aware of the appellants mental illness. I
    note that the judges who sentenced the appellant could have suspended his
    licence for up to one year as part of the sentence but did not do so:
Compulsory
    Automobile Insurance Act
, s. 2(3). It may be that had they felt
    constrained from imposing fines on the appellant because of his mental illness
    and its effect on his financial management capability, they may have suspended
    his licence instead of or in addition to a smaller fine.

[55]

Relief
    from minimum fines under the
POA
is governed by s. 59(2), which
    provides, in part, that where in the opinion of the court exceptional
    circumstances exist so that to impose the minimum fine would be unduly
    oppressive or otherwise not in the interests of justice, the court may impose a
    fine that is less than the minimum or suspend the sentence. Similar
    considerations apply in the circumstances of this appeal.

[56]

This
    appeal comes down to whether it is in the interests of justice to relieve the
    appellant of his fines and whether they are unduly oppressive. A somewhat
    confusing picture is presented by the fresh evidence. The appellant states in
    his affidavit that he wants his licence back so that he can drive for his work
    as a real estate agent. To do so, he will need the financial capability to
    access a car and insurance. Dr. Gojer opines that [the appellants] symptoms
    continue to interfere with his thinking and are likely to impact on any future
    ability to generate a sustainable income.

[57]

In
    my view, it is not in the interests of justice for the appellant to be fully
    relieved of these fines, so that he can immediately drive again. The specific
    deterrence purpose of the fines remains essential. However, given the
    appellants mental illness and its detrimental effect on his ability to earn
    money to pay the fines, it is also in the interests of justice that the total
    amount of the fines be reduced, to give the appellant the hope and opportunity
    to pay the reduced fines and be able to get on with his life.

[58]

The
    appellant has made attempts to pay the fines, including payments totalling $480
    in August and November 2014. I would reduce the balance owing to $5000.

Disposition

[59]

In
    the result, I would allow the appeal against sentence, and reduce the total
    fines to $5000 with two years to pay.

Released: KNF April 4, 2016

K. Feldman J.A.

I agree. J.C. MacPherson J.A.

I agree. B.W. Miller J.A.





[1]
Pursuant to the decision of Lauwers J.A. dated November 21, 2013, an order
    restricting publication in this proceeding is in place. Any information that
    could identify the appellant in this appeal shall not be published in any
    document or broadcast or transmitted in any way.



[2]
The jurisprudence I refer to below includes only those cases that have
    considered this issue in some depth. I have not referred to appeals or
    applications disposed of on consent or where one party did not make any
    submissions on jurisdiction.



[3]
This issue has not been reconsidered by this court since
Gonsalves
. But
    see
R. v. Burgar
(2003), 176 C.C.C. (3d) 253 (B.C. C.A.);
R. v.
    Belaroui
(2004), 186 C.C.C. (3d) 386 (Que. C.A.); and
R. v. West
,
    2007 NSCA 5, 250 N.S.R. (2d) 106, as well as
R. v. Menear
(2002), 162
    C.C.C. (3d) 233 (Ont. C.A.), where this court granted leave to appeal without
    adverting to the issue of jurisdiction.


