



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reyes, 2018 ONCA 156

DATE: 20180214

DOCKET: M48751 (C64769)

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Althea Reyes

Moving Party

Althea Reyes, in person

Andrea Baiasu, for the respondent

Heard: In writing

Motion for directions.

Watt J.A.:


[1]

Althea Reyes is self-represented. Sometimes, she has a lawyer. She still
    may have a lawyer. At least for the time being. I say this because this is one
    of those cases where lawyers come and lawyers go. Discharged. Or removed from
    the record at their own request.

The Background

[2]

Althea Reyes is charged with failure to comply with a term of a
    recognizance on which she was released from custody on various charges. The
    breach alleged is that she failed to reside with her surety as the recognizance
    required her to do.

[3]

It seems that the Crown elected to proceed summarily
[1]
.
    The trial was scheduled for February 2, 2017 but was not completed on that day.
    To this day, the trial remains a work in progress.

[4]

The evidence portion of the trial has been completed but no submissions
    have been made or decision rendered. Several dates have been fixed for
    submissions. On each date, Ms. Reyes has failed to appear. Two counsel, who
    previously represented her, have asked to be removed from the record. In both
    instances, the trial judge acceded to their request.

[5]

On September 8, 2017, after several occasions on which Ms. Reyes failed
    to appear, the presiding judge issued a bench warrant with discretion
    returnable on September 12, 2017. Ms. Reyes did not appear. Another counsel appeared
    on her behalf with a designation under s. 650.01(1) of the
Criminal Code
.
    The trial judge refused to accept the designation because another lawyer was
    already counsel of record. Ms. Reyes did not appear. After having extended the
    bench warrant with discretion on several occasions, the trial judge finally
    ordered that the warrant be executed on December 15, 2017.

The Motion to Quash the Bench Warrant

[6]

On December 18, 2017 Ms. Reyes, represented by yet another counsel,
    moved to quash the bench warrant issued by the trial judge to compel her
    appearance for the completion of the trial. The motion was dismissed.

The Appeal

[7]

Ms. Reyes has filed a notice of appeal in this court from the order of
    the judge of the Superior Court of Justice who dismissed her motion to quash
    the bench warrant. The appeal has not been perfected.

The Motion

[8]

By this motion in writing, Ms. Reyes seeks an order:

i.

directing the trial judge to hear motions filed with the trial court and
    previously scheduled for hearing, in advance of the hearing of the outstanding
    appeal from the dismissal of the motion to quash; and

ii.

expediting the hearing of the motions and permitting counsel for Ms.
    Reyes to set a trial date.

[9]

According to the notice of motion filed in this court, styled as a
    Motion for Directions, the motions outstanding before the trial judge seek:

i.

a mistrial based on the erroneous reception of inadmissible evidence;

ii.

dismissal of the charges for lack of evidence; and

iii.

any other remedy under ss. 24(1) and/or 52(1) of the
Charter
for breach of the right to full and timely disclosure or the
    unconstitutionality of s. 145(3) of the
Criminal Code
.

Discussion

[10]

As
    I will briefly explain, the orders sought on this motion are unavailable.

[11]

To
    begin, it is beyond controversy that appellate courts are creatures of statute.
    Their jurisdiction is defined and circumscribed by the enabling statutory
    authority. Likewise, rights of appeal are entirely statutory. So to, the
    remedies available from panels and single judges of appellate courts, on
    appeals properly before the court.

[12]

In
    this, a criminal case, an appellants rights of appeal and the authority of a
    panel or single judges of this court to dispose or otherwise deal with the
    appeal are defined and limited by the
Criminal Code
. It follows that
    any remedy sought or relief claimed on a Motion for Directions to a single
    judge must fall within the remedies or relief authorized by the
Criminal
    Code.

[13]

The
    only appeal that Althea Reyes has in this court is one, authorized by s. 784(1)
    of the
Criminal Code,
from the decision refusing to quash the bench
    warrant issued for her arrest by the trial judge. That appeal is her only
    gateway to this court. Any remedy she seeks from a panel or single judge of this
    court must have its origins in that appeal.

[14]

Recall
    the relief sought here. To repeat:

i.

directing the trial judge to hear motions filed with the trial court and
    previously scheduled for hearing, in advance of the hearing of the outstanding
    appeal from the dismissal of the motion to quash; and

ii.

expediting the hearing of the motions and permitting counsel for Ms.
    Reyes to set a trial date.

[15]

Keep
    in mind the issue on the outstanding appeal from the motion to quash the bench
    warrant: the jurisdiction of the trial judge to issue a bench warrant to compel
    the personal attendance of the accused in summary conviction proceedings. In
    other words, the issue is whether the trial judge exceeded her discretionary
    authority under s. 800(2) of the
Criminal Code
in issuing the warrant.

[16]

The
    directions sought by this motion have nothing to do with the outstanding appeal
    under s. 784(1) of the
Criminal Code
or with the perfection, hearing
    or determination of that appeal to this court. The absence of any such nexus
    puts paid to the relief claimed.

[17]

Second,
    Ms. Reyes has no stand-alone right to the relief sought in the absence of a
    link to her appeal from the dismissal of her motion to quash. The Crown elected
    to proceed by summary conviction. The appellant forum in such cases is the
    appeal court as defined in s. 812(1)(a) of the
Criminal Code
, that
    is to say, the Superior Court of Justice sitting in the region where the
    adjudication is made. That is not this court. And that appeal must await final
    disposition, not be advanced
in limine litis
.

[18]

Third,
    the provisions of the
Courts of Justice Act
, RSO 1990, C. 43, in
    particular s. 134(2), is of no assistance to Ms. Reyes. These proceedings are
    not governed by provincial legislation, rather controlled by the
Criminal
    Code
and the enabling rules of court passed pursuant to s. 482(1) of the
Criminal
    Code
. As we have seen, the cupboard of authority under those provisions is
    bare.

[19]

Finally,
    the authority of this court to review proceedings taking in courts of first
    instance does not extend to our superintendence of ongoing proceedings. We are
    not entitled to reach in to the conduct of trial proceedings to dictate to
    trial judges when and how to hear and determine motions advanced by the
    parties, whether they seek exclusion of evidence, provision of disclosure, a
    stay of proceedings or simply matters of scheduling. We await the conclusion of
    the trial proceedings to review their conduct.

Conclusion

[20]

The
    motion is dismissed, the relief sought refused.

David Watt J.A.





[1]
I use the term seems because of a passage in the motion judges reasons which
    refers to s. 800(2) of the
Criminal Code
. The motion record does not
    contain a copy of the information.


