





CITATION:
R. v. Opoku, 2011 ONCA 712



DATE: 20111114



DOCKET: M39896



COURT OF APPEAL FOR ONTARIO



Cronk J.A. (In Chambers)



BETWEEN



Her Majesty the Queen



Respondent



and



Theresa Opoku



Applicant



Theresa Opoku, in person



H. Book,
Amicus
counsel



Christine Tier, for the respondent



Heard:
October 19, 2011



On a motion for leave to appeal from the
          order of Justice P. H. Reinhardt of the Ontario Court of Justice, dated
          January 24, 2011, under the
Provincial Offences Act
.



ENDORSEMENT





Background

[1]

On May 20, 2010, the applicant, Theresa Opoku, was found guilty by
    Justice of the Peace R. Whittaker, of the Ontario Court of Justice, of making a
    false statement to a police officer regarding her motor vehicle insurance,
    contrary to s. 13.1 of the
Compulsory Automobile Insurance Act
, R.S.O.
    1990, c. 25 (the CAI Act).   She was ordered to pay a $5,000 fine, within 30
    days.
[1]
As Ms. Opoku did not attend court on May 20, 2010, Justice of the Peace
    Whittaker proceeded on an
ex parte
basis and Ms. Opoku was convicted
in
    absentia
.

[2]

The charge against Ms. Opoku arose from a traffic stop allegedly
    conducted on February 8, 2008.  Once stopped, Ms. Opoku was asked to produce
    her car ownership and insurance documentation.  She was cautioned about her
    driving and no charges were laid.  However, on subsequent investigation, the
    involved police officer concluded that Ms. Opoku had falsely declared that her
    motor vehicle was insured at the time of the traffic stop.  As a result, Ms.
    Opoku was charged accordingly under s. 13.1 of the CAI Act.

[3]

Ms. Opoku did not file an appeal within the prescribed time.  On August
    19, 2010, she applied for an extension of time to appeal her conviction under
    the
Provincial Offences Act
, R.S.O. 1990, c. P. 33 (the POA).  The application
    was spoken to in court on December 2, 2010, in the presence of Ms. Opoku.  On
    consent, the matter was adjourned to January 24, 2011.

[4]

Ms. Opoku failed to attend court on January 24, 2011.  Consequently, Reinhardt
    J. of the Ontario Court of Justice, sitting as a POA appeal judge, dismissed
    her extension of time motion, as abandoned, on request of the Crown.

[5]

Ms. Opoku now seeks leave to appeal Reinhardt J.s decision to this
    court, pursuant to s. 131 of the POA.  She argues that she had motor vehicle
    insurance as of April 3, 2008, effective March 26, 2008, that the involved
    police officer misrepresented the alleged date of the offence to the court,
    that she was out of the country for her trial date of May 20, 2010, and that
    she understood the assigned appeal court date was January 25, 2011, rather than
    January 24, 2011.

[6]

Ms. Opokus leave motion before this court was adjourned on August 24,
    2011 to await the preparation of two transcripts.  The outstanding transcripts
    are now available but were only provided to Crown counsel on October 19, 2011,
    the return date of the leave motion.  However, after reviewing the transcripts,
    Crown counsel indicated that she was prepared to proceed without a further
    adjournment.

[7]

The Crown opposed Ms. Opokus leave motion on the merits and on
    jurisdictional grounds.  In particular, relying on the recent decisions of
    Juriansz J.A. of this court (in chambers) in
R. v. Borges
, 2011 ONCA 621,
    and Epstein J.A. of this court (in chambers) in
R. v. Melaku
(2011), 106
    O.R. (3d) 481, Crown counsel argued that this court has no jurisdiction to
    grant leave to appeal from the Ontario Court of Justices refusal to extend
    time for Ms. Opoku to appeal her conviction.  Ms. Opoku was previously informed
    of this jurisdictional issue and of the Crowns position, by letter from Crown
    counsel dated October 12, 2011.

[8]

Amicus
counsel was prepared to argue the jurisdictional issue
    raised by the Crown, as well as the merits of Ms. Opokus leave to appeal
    motion.  After discussion, it was determined that argument on the jurisdictional
    question would proceed and, depending on the outcome of that issue, the leave
    motion would be rescheduled for argument on the merits, if necessary.

Jurisdictional Issue

[9]

Three decisions of judges of this court (in chambers) are relevant to the
    determination of the jurisdictional issue raised by the Crown in this case.

[10]

First, in
Melaku
, Epstein J.A. (in chambers) ruled that this
    court does not have jurisdiction to hear an appeal from a decision dismissing a
    motion for an extension of time to appeal a conviction for an offence under
    Part I of the POA.  Justice Epstein reasoned, at para. 44, that a limited right
    of appeal in respect of such convictions is consistent with the scheme and
    objects of the POA and the intention of the legislature, which clearly
    contemplate a summary procedure, one that is efficient and expedient, when it
    comes to the progress of certain types of offences ... that are more regulatory
    than criminal in nature.

[11]

Next, in
Borges
, Juriansz J.A. (in chambers) addressed the question
    of whether this court has jurisdiction to hear an appeal from a decision
    dismissing a motion for an extension of time to appeal a conviction for an
    offence under Part III of the POA.  He noted that appeals of POA Part I
    offences, as in
Melaku
, are provided for under sections of the POA that
    differ from those pertaining to appeals of POA Part III offences and that the
    decision in
Melaku
turned on the particular wording of those different
    sections.

[12]

Justice Juriansz then considered the decision of Gillese J.A. (in
    chambers) in
R. v. Belanger
, [2006] O.J. No. 3453, the third decision of
    this court relevant to this motion.
Belanger
involved consideration of
    an appeal to this court from the judgment of the court, with leave, under s.
    131 of the POA.  Justice Gillese expressed the view that there is no reason to
    restrict the meaning of the word judgment in s. 131 so as to exclude
    decisions refusing to extend time.  She concluded, at para. 15, that the
    decision denying an extension of time to appeal was a judgment in respect of
    which leave to appeal may be sought under s. 131 of the POA.

[13]

However, Gillese J.A. also noted that in
R. v. Gonsalves
, [1995]
    O.J. No. 4046, a panel of this court queried this courts jurisdiction to hear
    an appeal from an order denying an extension of time to appeal in a summary
    conviction matter.  In light of
Gonsalves
, Gillese J.A. granted leave to
    appeal in
Belanger
but directed that the Crown in that case was at
    liberty to raise the jurisdictional question again before the panel hearing the
    appeal, if so advised.  As it happened, the appeal in the
Belanger
case
    did not proceed.

[14]

In
Borges
, Juriansz J.A. concluded that a decision at first
    instance under s. 85 of the POA denying a motion for an extension of time to
    appeal is not an appealable decision under s. 131 of the POA.  In his view, s.
    131 does not apply to a decision denying an extension of time to appeal;
    rather, s. 131 provides only for further appeals, with leave, from judgments
    made under s. 116 of the POA.  The core of his reasoning, at para. 10, was as
    follows:

As noted above, s. 131 is found in Part VII of the
    POA, which creates a two tier route for appeals to this court.  Section 131,
    dealing with appeals to this court for Part III offences, must be read in
    conjunction with s. 116, which provides for the initial appeal.  If s. 131 is
    construed literally in isolation, it would allow appeals from all judgments of
    the court, even those at first instance, thereby nullifying the two tier route
    of appeals that is clearly intended for Part III offences.  That construction
    would render s. 116 superfluous and provide two different routes to appeal POA
    judgments at first instance to the Court of Appeal.  For example, the original
    decision of the justice of the peace in this case would be a judgment of the
    court and so would be appealable directly to this court.  Such a result is
    inconsistent with the structure of the POA and the route of appeals it clearly
    provides for.  Section 131 must be construed in conjunction with s. 116.  The
    words the judgment of the court in s. 131 must mean the judgment of the court
    to which the initial appeal is taken under s. 116.

[15]

In this case,
amicus
counsel argues on behalf of Ms. Opoku that
    there is a conflict between the decisions in
Borges
and
Melaku
,
    on the one hand, and the decision in
Belanger
, on the other hand,
    regarding the jurisdiction of this court to entertain an appeal from a decision
    denying a motion for an extension of time to appeal a conviction on a POA
    offence.  In light of this conflict, she argues, Ms. Opoku should be granted
    leave to appeal Reinhardt J.s dismissal of her motion for an extension of time
    to appeal her conviction particularly,
amicus
counsel contends, as Ms.
    Opoku has an arguable appeal on the merits warranting leave to appeal.

[16]

I note, first, that there is no conflict between
Melaku
and
Borges
.
Melaku
concerned a situation in which leave to appeal a conviction on a
    POA Part I offence was sought.  The decision in
Melaku
stands for the
    proposition that this court does not have jurisdiction to hear an appeal from a
    decision dismissing a motion for an extension of time to appeal a conviction on
    a POA Part I offence.

[17]

In contrast,
Borges
involved a motion under s. 131 of the POA for
    leave to appeal the denial of an extension of time to appeal to the Ontario
    Court of Justice under s. 85(1) of the POA from a conviction on a POA Part III
    offence.  The jurisdictional issue raised in
Borges
, therefore, was
    distinct from the jurisdictional challenge in
Melaku
.

[18]

Belanger
also concerned a motion under s. 131 of the POA for
    leave to appeal an Ontario Court of Justice decision denying an extension of
    time to appeal what appears to have been a conviction entered on a POA Part III
    offence (driving while under license suspension)
[2]
. 
    As I have said, in
Belanger
, Gillese J.A. expressed the view that such a
    decision is a judgment for which leave to appeal may properly be sought
    pursuant to s. 131 of the POA.

[19]

In
Belanger
, the Crowns right to raise the jurisdictional
    question again was expressly reserved by Gillese J.A. to the panel of this
    court hearing the appeal.  No panel adjudication on the jurisdictional issue
    took place because an appeal was not pursued.  In this sense, it is argued,
    there was no final determination of the jurisdictional issue in
Belanger
.

[20]

Be that as it may, jurisdiction was assumed by this court in
Belanger
,
    at least for the purpose of granting leave to appeal, subject to any ultimate
    jurisdictional ruling by a full panel of this court.  In these circumstances, I
    agree with
amicus
counsel that there is at least an arguable conflict
    between the decisions in
Borges
and
Belanger
.

[21]

In these circumstances, and given the history of this courts
    consideration to date of the jurisdictional issue raised on this leave motion,
    I conclude that the jurisdictional issue should be considered and determined by
    a panel of this court.  I therefore adjourn this leave motion to a panel of
    this court under the authority of s. 7(4) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43, to be heard by a panel on the first available date to be
    set by the Registrar.

[22]

The necessary arrangements to set a hearing date for the leave motion
    before a panel of the court will be made by the Registrar.  I would ask that
    Ms. Book, as
amicus
, appear and participate in the leave motion before
    the panel, if possible.  The panel will be assisted by submissions from both
    counsel, as well as from Ms. Opoku.  I anticipate that counsel will wish to
    file written submissions with the panel on the jurisdictional issue and an
    appropriate timetable in which to do so may be settled by counsel with the
    Registrar.

Disposition

[23]

In accordance with these reasons, Ms. Opokus motion for leave to appeal
    is adjourned to a panel of this court for determination.

[24]

I thank both counsel for their assistance in this matter.

E.A. Cronk J.A.





[1]
Under s. 13.1(2) of the CAI Act, a person convicted of a first offence under s.
    13.1 is liable to a fine of not less than $10,000.  Nonetheless, a $5,000 fine
    was imposed in this case.



[2]
The reasons in
Belanger
do not indicate expressly that the proceeding
    was commenced by an information, as envisaged by Part III of the POA.


