



COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Tung, 2016 ONCA 782

DATE: 20161026

DOCKET: C58322

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anderson Tung

Applicant/Appellant

Anderson Tung, in person

Erin Dann,
amicus curiae

Brock Jones, for the respondent

Heard: April 4, 2016

On application for leave to appeal from the order of Justice
    B. Croll of the Superior Court of Justice dated January 9, 2014.

Pepall J.A.:

Overview

[1]

On June 27, 2008, the applicant was convicted of assault with intent to
    resist arrest and of carrying a concealed weapon. He received a suspended
    sentence and three years probation.  On December 17, 2008, his appeal against
    conviction to the summary conviction appeal court (SCAC) was dismissed as
    abandoned.

[2]

On January 9, 2014, the applicants application for an order granting
    leave to re-open his appeal and for an extension of time to re-file the
    Notice of Appeal was dismissed by the summary conviction appeal court judge
    (the SCAC judge). The applicant now seeks leave to appeal that decision.

[3]

There are two issues to address:

(i)    Does this
    court have jurisdiction to hear the appeal from the decision of the SCAC judge?

(ii)    Should
    leave to appeal be granted?

[4]

Following oral argument on the issue of jurisdiction, this court
    concluded that we do have jurisdiction, with reasons to follow.  These are
    those reasons.  In addition, I would dismiss the application for leave to
    appeal.

Facts

[5]

On April 26, 2007, police officers stopped the applicants vehicle for
    speeding. The applicant exited his vehicle, but left it running. One of the
    officers asked the applicant for his licence and then for his name, but he
    refused to identify himself and began to walk away. The applicant was told that
    he was under arrest for failing to identify himself under the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8.


[6]

The applicant then engaged in a physical altercation with the police
    officers. Once the applicant was handcuffed, one of the police officers entered
    the applicants car to turn off the ignition, which was hanging down by its
    wires. He thought he saw a handgun concealed underneath the drivers seat. It proved
    to be a pellet gun. The applicant was subsequently charged and, as mentioned, on
    June 27, 2008, was convicted of assault with intent to resist arrest and
    carrying a concealed weapon.

[7]

The applicant filed a notice of appeal against his summary conviction on
    July 23, 2008, prior to his sentencing.

[8]

On August 5, 2008, the trial judge made an order for the applicants
    assessment pursuant to s. 21 of the
Mental Health Act
, R.S.O.
    1990, c. M.7. The mental health assessment revealed that he likely suffered
    from a delusional disorder. His case was adjourned to September 3, 2008 and
    then again to October 8, 2008. On that date, he did not appear and a bench
    warrant was issued for his arrest. He was arrested and brought to court on
    November 18, 2008. He remained in custody pending sentencing.

[9]

In the meantime, the applicants summary conviction appeal to the SCAC was
    spoken to on November 26 and December 17, 2008. However, the applicant did not
    appear. Apparently, he was in custody on those dates. Neither the presiding
    judge nor the Crown was aware of his detention. The appeal against conviction was
    dismissed as abandoned on December 17, 2008.

[10]

On December 18, 2008, the applicant received a suspended sentence and
    three years probation and was then released from custody. He has since
    completed his term of probation.

[11]

Approximately five years later, on January 6, 2014, the applicant
    brought an application before the SCAC for an order granting leave to re-open
    his appeal and an extension of time to re-file the Notice of Appeal. Due to
    the inadequate state of the application materials and in the absence of any
    notice of appeal, the SCAC judge proceeded on the basis that the applicant was
    requesting an extension of time to file a notice of appeal to appeal his conviction.

[12]

At that time, the applicant submitted that he missed the December 17,
    2008 date because he was in custody.  He also stated that he had been attacked
    while in custody, had been unable to find employment, and was living on social
    services.

[13]

On January 9, 2014, his application was dismissed. The SCAC judge found
    that, although some
bona fide
intention to appeal had been
    demonstrated, an extension of time was not warranted due to inordinate delay, the
    absence of evidence on the merits of the proposed appeal, and prejudice to the
    Crown.  She also found that there was no real concern that there was any
    injustice.

[14]

The applicant seeks leave to appeal from that dismissal.

Jurisdiction

(a)

History of Summary Conviction Appeals

[15]

Part
    XXVII of the
Criminal Code
creates two separate avenues of appeal for summary
    conviction matters. It is open to an appellant to choose which route to pursue.

[16]

The first
    avenue is under s. 813.  That section creates a broad right of appeal and s.
    822 describes the powers of the appeal court.  Historically, this avenue of appeal
    involved a trial
de novo
.  A
s a result of changes effected by
    the
Criminal Law Amendment Act
, S.C. 1974-75-76, c. 93, s. 94, an
    appeal based on the record, as opposed to an appeal by way of trial
de novo
,
    is now the usual procedure for summary conviction appeals under s. 813: see
R.
    v. Century 21 Ramos Realty Inc.
, [1987] 32 C.C.C. (3d) 353 (Ont. C.A.), at
    pp. 382-385.

[17]

The
    second avenue of appeal is under s. 830.  That section creates the right
    of appeal and s. 834 describes the powers of the appeal court.  Section 830 is
    the successor to provisions providing for an appeal by stated case on questions
    of law or jurisdiction only: see
R. v. Kapoor
, [1989] O.J. No. 1887 (Ont.
    H.C.J.). As a result of the
Criminal Law Amendment Act
, S.C. 1985, c. 19, s. 182,
    the appeal by way of stated case was replaced by a new procedure providing for
    an appeal based on the transcript or on an agreed statement of facts. Sections
    829 to 838 permit a summary appeal to be taken under s. 830 only on the grounds
    that the decision is: (a) erroneous in point of law; (b) in excess of
    jurisdiction; or (c) constitutes a refusal or failure to exercise jurisdiction.

[18]

The
    routes of appeal under s. 813 and s. 830 are mutually exclusive: pursuant to s.
    836, an appeal under s. 830 is deemed to be an abandonment of all appeal rights
    under s. 813. In Ontario, an appeal court under s. 813 is defined as the Superior
    Court of Justice sitting in the region, district or county or group of counties
    where the adjudication was made, and an appeal court under s. 830 is defined
    as the superior court of criminal jurisdiction for the province.

(b)

Further Right of Appeal

[19]

A further
right of appeal from either
    avenue to a court of appeal, such as this court, is limited by s
ection
    839(1) of the
Code
.  It states that:

an appeal to the court of appeal as defined in section 673
    may, with leave of that court or a judge thereof, be taken on any ground that
    involves a question of law alone, against

(a) a decision of a court in respect of
    an appeal under section 822; or

(b) a decision of an appeal court under section 834, except
    where that court is the court of appeal.

[20]

As mentioned, s. 822 describes the
    powers of an appeal court on an appeal under s. 813 and s. 834 describes the
    powers of an appeal court under s. 830. Thus, s. 839(1) of the
Criminal
    Code
governs whether this court has jurisdiction
    to hear an appeal from a summary conviction appeal proceeding.

(c)

Positions of Parties

[21]

The applicant was self-represented. In his written submissions,
    he focused primarily on the route governed by ss. 830 and 834. In his
    materials, at various points he also made reference to ss. 813 and 822.

[22]

Amicus
relied on s.
    839(1)(a) of the
Code
which
    addresses s. 822 (and hence s. 813) appeals.  She
submitted
    that this court does have jurisdiction to hear an appeal from the decision of a
    summary conviction appeal court judge dismissing an application for an
    extension of time to appeal or to reopen an appeal previously dismissed as
    abandoned. The Crown did not dispute that this court may have jurisdiction.

[23]

Given
    the positions adopted by the applicant and
amicus
, I will address each avenue
    of appeal.

(d)

Analysis

[24]

For this
    court to have jurisdiction to consider the applicants request for leave to
    appeal from the SCAC judges decision dismissing his application, depending on
    the applicable avenue, the decision of the SCAC judge must be in respect of an
    appeal under s. 822 or a decision of an appeal court under s. 834.  In
    addition, as s. 839(1) contemplates an appeal on a question of law alone, the
    application must allege a question of law.  In the face of such an allegation and
    a request for leave to appeal from a s. 822 or s. 834 decision, this court will
    have jurisdiction to consider the application seeking leave to appeal.  Having
    taken jurisdiction, the court will then address whether a question of law is
    engaged and, if so, whether the merits of the application for leave to appeal demand
    that the leave requested be granted.  If leave is granted, this court will
    subsequently consider the merits of the appeal from the SCAC judges decision.

[25]

While
    cases such as
R. v. Brown
(2003), 173 C.C.C. (3d) 23 (Ont. C.A.),
R.
    v. Kubassek
,
    [2004] 188 C.C.C. (3d) 207 (Ont. C.A.), and
R. v. West
, 2007 NSCA 5 might be construed
    as treating the establishment of a question of law as an essential requirement
    on which jurisdiction is predicated, I would not adopt that interpretation. 
    Rather, those cases and their progeny reflect the need to raise or, put
    differently, allege a question of law for this court to have jurisdiction to
    consider the application.

[26]

Applying
    these principles to this case, the application does allege a question of law in
    relation to the decision of the SCAC. Secondly, regardless of which appeal
    route the applicant is pursuing, the order constituted either a decision of a
    court in respect of an appeal under section 822: see
R. v.
    Robertson
(1978),
    45 C.C.C. (2d) 344 (Ont. C.A.), or a decision of an appeal court under section
    834.  If the former, this court has jurisdiction under s. 839(1)(a) and
    if the latter, it has jurisdiction under s. 839(1)(b).  Whether the applicant
    brought his appeal under ss. 813 and 822 or ss. 830 and 834, the order of the
    summary conviction appeal court falls within the language of s. 839 under
    either avenue of appeal.

[27]

With respect to s. 839(1)(a), this treatment is consistent with the
    Supreme Courts holding in
The Queen v. Dennis
, [1960] S.C.R. 286, where
    the court held that a decision as to whether an appeal court will hear an
    appeal is a decision of the court in respect of an appeal, and with
R. v.
    Burgar
(2003), 176 C.C.C. (3d) 253 (B.C.C.A.), dealing with similar
    language and an appeal under the
Offences Act
, R.S.B.C. 1996, c. 338.

[28]

As noted in
The Queen v. Dennis
, in relation to the predecessor
    to s. 839(1)(a), the broad scope of the section is reflected in the French
    language version of the section that states: de toute décision dun tribunal
    relativement à un appel prévu par larticle 822.

[29]

In the past, this court has exercised jurisdiction in similar circumstances:
    see for example
R. v. Menear
(2002), 162 C.C.C. (3d) 233 (Ont. C.A.),
    leave to appeal refused [2002] S.C.C.A. No. 116; or has assumed jurisdiction
    without deciding the issue:
R. v. Dalgleish
, 2005 CanLII 45736 (Ont.
    C.A.), at para. 1;
R. v. Gonsalves
, [1995] O.J. No. 4046, at para. 4. Other
    appellate courts have concluded that there is such jurisdiction:
R. v.
    Lenko
, 2010 MBCA 10, 196 A.C.W.S. (3d) 198, at para. 3;
R. c. Belaroui
,
    [2004] 186 C.C.C. (3d) 386 (Que. C.A.); Furthermore, we were not directed to
    any appellate authority holding that there is no jurisdiction.
[1]

[30]

Lastly, in comparison, the
Provincial Offences Act
, R.S.O.
    1990, c. P.33 (
POA
) uses more restrictive language with respect to
    appeals to the Court of Appeal. Section 131(1) of the
POA
says that an
    appeal may be brought from the judgment of the court. This court recently
    decided in
R. v. A.E.
, 2016 ONCA 243, [2016] O.J. No. 1704, that it
    had jurisdiction to hear an appeal from a dismissal of an application for the
    extension of time under that section. Given that jurisdiction exists under this
    more restrictive language, it must also exist under the
Code
s more
    expansive language of a decision of a court in respect of an appeal.

[31]

While no authorities were submitted on s. 839(1)(b), I am satisfied that
    the dismissal of the applicants application would likewise constitute a
    decision of an appeal court within the meaning of that subsection, based on a
    comparable rationale.

[32]

First, such an interpretation is consistent with this courts decision
    in
A.E.
, as noted above.

[33]

Second, in my view, both s. 839(1)(a) and s. 839(1)(b) reflect a right
    of appeal that flows from the two summary conviction appeal routes.  Although
    s. 839(1)(b) does not use the broader in respect of an appeal wording,
    there is no principled basis upon which there should be jurisdiction in this
    court in relation to one provision and not the other.

[34]

A decision in relation to either an extension of
    time or an application to reopen is a decision of an appeal court under the
    powers of that court.
Both avenues of summary conviction appeal
    specifically permit the granting of extensions of time (s. 815(2) in relation
    to s. 813/822 appeals and s. 838 in relation to s.830/834 appeals). There is
    long recognized ancillary or inherent jurisdiction of appeal courts to control
    their own process by allowing the re-opening of an appeal that has been
    dismissed as abandoned and not heard on its merits:
see
R. v. Robertson

(1978), 45 C.C.C. (2d) 344
    at 347;
R. v. Gironda
, [1995] O.J. No. 1231 at para. 7, dismissed as
    abandoned, [1997] O.J. No. 1573; and
R. v. H.(E.F.)
,
R.
    v. Rhingo

(1997),

115 C.C.C. (3d) 89

at
101 (Ont. C.A.)  This would extend to either avenue of summary
    conviction appeal.

[35]

Accordingly, having alleged a question of law and having fallen within
    the ambit of s. 839(1), this court has jurisdiction to hear this application
    for leave to appeal.

Question of Law and Leave to Appeal

(a)      Applicable Test

[36]

Having accepted
    that this court has jurisdiction, the first issue to address is whether a
    question of law alone is engaged.
To reiterate, s. 839(1)
    provides for an appeal to this court, with leave, "on any ground that
    involves a question of law alone".

[37]

If a
    question of law is engaged, the next issue to address is whether leave to
    appeal should be granted.

[38]

In
R.
    v. R.R.
,
2008
    ONCA 497, 90 O.R. (3d) 641, this court addressed applicable principles for
    leave to be granted under s.839 for summary conviction appeals to this court
    and held that leave under s.839 should be granted sparingly.  The focus in
R.R.
was on appeals that had
    already been heard on their merits by the summary conviction court.  As Doherty
    J.A. explained, the two key variables to granting leave are the significance of
    the legal issues raised to the general administration of criminal justice and
    the merits of the proposed appeal.  If the issues have significance to the
    administration of justice beyond the particular case, then leave to appeal may
    be granted even if the merits are not particularly strong, though the grounds
    must at least be arguable.  Where the merits appear very strong, leave to
    appeal may be granted even if the issues have no general importance, especially
    if the convictions in issue are serious and the applicant is facing a
    significant deprivation of his or her liberty: see
R.(R.).
,
at para. 37
.

[39]

However,
    an order refusing to extend time or to reopen an appeal does not involve an
    appeal that has already been heard on the merits.  In such circumstances, it is
    unlikely that the first variable dealing with the significance of the legal
    issue would be applicable. Therefore, typically, greater weight will be placed
    on the second variable, namely the merits of the proposed appeal from the order
    of the SCAC judge.

(b)      Application of Test

(i)

Question of Law

[40]

Turning to whether a question of law
    is raised,
amicus

submits that in reaching her
    decision, the SCAC judge used the wrong test by applying the test for an
    extension of time and also failed to properly consider the history of the
    proceedings leading up to the dismissal of his appeal.

[41]

The respondent rejects
amicus
 submissions and submits that,
    although engaging different requests, the test for an extension of time and the
    test for reopening an appeal are essentially the same. Both address whether the
    application is in the interests of justice.

[42]

Dealing first with the issue of the history of the proceedings, while the
    SCAC judge did not have the entire file, the materials before her did address
    the history, as did the parties oral submissions.  It is evident from her
    reasons for decision, delivered the same day as the oral submissions, that she
    did consider the applicants history and that of the proceedings. In any event,
    a question of law alone is not raised by this issue.

[43]

Turning to whether the SCAC judge applied the correct test, a request
    for an extension of time is different from a request to reopen an appeal. Ultimately,
    however, the governing concern is the interests of justice.

[44]

As explained in
R. v. Menear
, on an application for an
    extension of time, the applicant must demonstrate that justice requires that
    time be extended. The court will usually consider the following three factors
    in determining whether an extension of time is in the interests of justice:

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

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

(iii)   is
    there merit to the proposed appeal.

[45]

The decision to reopen a criminal appeal involves setting aside an order
    of an appellate court.  As mentioned, the power to reopen is restricted to
    cases where the appeal has not been heard on its merits.  The court then has a
    discretion to reopen the appeal if it is in the interests of justice to do so:
R. v. McDonald
, 2016 ONCA 288 at para. 5;
Rhingo
; and
R.
    v. Sipos
, 2008 ONCA 325, at paras. 4 and 6.

[46]

Relying on the confusing materials before her and oral submissions, the SCAC
    judge treated the applicants application as a request for an extension of time
    rather than an application to reopen the appeal. She was persuaded that the applicant
    had demonstrated some intention to appeal, but observed that it had been five
    years since the appeal was dismissed as abandoned. Furthermore, the applicant
    had taken no further steps to advance his appeal, nor had he provided a
    reasonable explanation for his delay. In addition, if the applicant were
    successful on the appeal, the Crown would be prejudiced by the delay in that it
    would have to attempt to prove the elements of offences that had occurred more
    than eight years ago. The SCAC judge also noted that there was no evidence
    before her to suggest that there was merit to the appeal.  She concluded by
    stating that there was no real concern that there was any injustice.

[47]

I accept that, reading the materials as a whole, the applicants
    application before the SCAC judge was more in the nature of a request to reopen
    his appeal rather than a request to extend time to appeal and that the test for
    the latter was applied to the former.  As such, this ground of appeal from the
    decision of the SCAC judge involves a question of law alone. However, as will
    be explained, the impact of that treatment is of no moment.

(ii)

Leave to Appeal

[48]

Having established a question of law, the next issue to consider is
    whether leave to appeal should be granted.  As noted above at paras. 38-39, this
    involves a consideration of the merits of the proposed appeal from the SCAC
    judges order denying a re-opening of the appeal, which analysis requires an
    examination of the interests of justice.  The interests of justice may
    encompass a consideration of the merits of the proposed appeal from conviction.

[49]

The SCAC judge concluded that no injustice occurred. Put differently, it
    was not in the interests of justice to grant relief to the applicant. I agree
    with that conclusion.

[50]

Quite apart from the extensive delay and the lack of a reasonable
    explanation for the delay, the merits of the proposed appeal from conviction do
    not favour a reopening of the applicants appeal.
Amicus
submits that
    there is merit to the proposed appeal because the trial judge failed to
    properly consider whether the arrest was lawful and failed to provide adequate
    assistance to the self-represented applicant.

[51]

The record before the trial judge supported both a conviction for
    carrying a concealed weapon and assault with intent to resist arrest.  The trial
    judge found as a fact that the applicant was in possession of a pellet gun, had
    an admitted intention to use it as a weapon if he believed it was necessary and
    was carrying it concealed in his car over which he had care and control.  The
    trial judge also found that the officers had a lawful basis to make an arrest
    under the
Highway Traffic Act
. There was a basis in the record to make
    this finding: the applicant was asked for his licence and then for his name but
    refused to identify himself and began to walk away.  Moreover his lack of
    co-operation constituted sufficient physical activity to result in his
    resisting arrest.

[52]

Lastly,
amicus
 argument that the trial judge was required to
    provide greater assistance to the applicant is not borne out by the record. 
    First, a trial judge has a duty to ensure that an accused has a fair trial and
    to provide guidance but not to act as an advocate for the accused:
R. v.
    Chemama
, 2016 ONCA 579, at paras. 13-14;
R. v. Tran
, (2001), 55
    O.R. (3d) 161 at para. 31. Second, throughout the trial, the trial judge
    provided the applicant with reasonable guidance.

[53]

In conclusion, while this court has jurisdiction and while a question of
    law is raised, I am not persuaded that leave to appeal should be granted.

Disposition

[54]

For these reasons, I would dismiss the applicants application for leave
    to appeal.

Released:

OCT 26 2016                                              S.E.
    Pepall J.A.

KF                                                               I
    agree K. Feldman J.A.

I
    agree Janet Simmons J.A.





[1]
In
Gonsalves
, this court expressed some doubt about jurisdiction
    without an explanation as to the basis of that doubt, but assumed jurisdiction
    nonetheless.


