



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Cole, 2012 ONCA 347

DATE: 20120525

DOCKET: C54302

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Anne-Marie Cole

Respondent

Jennifer Mannen, for the appellant

Richard Posner, for the respondent

Heard: April 27, 2012

On appeal from the decision of Justice L. B. Roberts of
    the Superior Court of Justice, sitting as a summary conviction appeal court, on
    August 16, 2011.

Watt
    J.A.:

[1]

The Attorney General seeks leave to appeal from a decision of a judge of
    the Superior Court of Justice, sitting as a summary conviction appeal court
    (the appeal judge), setting aside the respondents conviction of operating a
    motor vehicle with a prohibited concentration of alcohol in her blood.

THE BACKGROUND

[2]

The circumstances in which the issues raised arise can be stated
    briefly.

The Trial Proceedings

[3]

On the third date scheduled for her trial, the respondent did not appear
    because her counsel had apparently not reminded her of the trial date.  Counsel
    was able to contact the respondent on the trial date, but the respondent failed
    to attend because of her employment obligations.

[4]

The presiding judge was unimpressed with the respondents failure to
    appear and her assignment of priority to her work obligations rather than to
    her appearance for trial. The judge noted that the offence was alleged to have
    occurred nearly two years earlier.

[5]

The presiding judge, apprised that a s.650.01 designation had been filed
    by counsel shortly after the respondents first appearance in answer to the
    charges, announced that he would case manage the prosecution. In order to do
    so, the presiding judge arraigned the respondent
in absentia
and
    entered a plea of not guilty when counsel, who appeared by designation, said
    she had no instructions on how the respondent wished to plead. Crown counsel
    elected to proceed by summary conviction.

[6]

As a result of an outstanding disclosure request that had not been
    answered, the judge granted an adjournment request by counsel for the respondent
    and fixed a new trial date about three months later.

[7]

The trial proceeded as scheduled after the judge dismissed an
    application by the respondent to recuse himself on the basis of a reasonable
    apprehension of bias.  The trial judge convicted the respondent of operating a
    motor vehicle with a prohibited concentration of alcohol in her blood.

The Summary Conviction Appeal

[8]

On her appeal to the Superior Court of Justice, the respondent
    challenged her conviction on two grounds:

i.        that
    the trial judge erred in proceeding with the respondents      trial in the
    absence of the respondent, thus infringing her right          to be present at
    trial and demonstrating a reasonable      apprehension of bias against her; and

ii.       that
    the trial judge erred in failing to exclude, on account of        constitutional
    infringement the results of breath tests         administered to the
    respondent.

The Decision of the Summary Conviction Appeal Judge

[9]

The appeal judge concluded that the trial judge had erred in exercising
    his discretion under s. 803(2) of the
Criminal Code
to proceed in the
    absence of the respondent.  The error, the appeal judge said, was the product
    of several factors:

i.        a
    mischaracterization of the respondents failure to attend as a

refusal
    to appear, rather than as an inadvertent failure to         appear for want of
    timely reminder;

ii.       a
    failure to accord the proper weight to the reasons for non-       attendance;
    and

iii.      an
    invocation of s. 803(2)(a) for the purpose of administrative    convenience.

[10]

The
    appeal judge characterized the arraignment and entry of a plea as an
    infringement of the respondents right to be present at her trial, allowed the
    appeal, quashed the conviction and ordered a new trial.

The Application for Leave to Appeal

[11]

The
    Attorney General seeks leave to appeal from the decision of the appeal judge on
    three grounds involving questions of law alone. The grounds advanced allege
    errors by the appeal judge in her interpretation of some statutory provisions
    and her failure to consider the applicability of others.

ANALYSIS

Leave to Appeal

[12]

It is well-settled that leave to appeal
    under s. 839(1)(a) of the
Criminal Code
should be granted sparingly. Two key variables inform the
    decision about whether leave to appeal should be granted:

i.

the significance of the legal issues
    raised to the general administration of criminal justice; and

ii.

the merits of the proposed ground of
    appeal.

Leave to appeal may be
    granted where the merits of the proposed questions of law are arguable and the
    proposed questions have significance beyond the four corners of the case. And
    leave to appeal may also be granted where there appears to be clear judicial
    error in the decision below, even if we cannot say that the error has
    significance to the administration of criminal justice beyond the specific
    case:
R. v. R. (R.)
,
2008 ONCA 497, 234 C.C.C. (3d) 463, at paras. 32 and 37.

[13]

I am satisfied that this is a case in
    which we should grant leave to appeal. The grounds raised involve issues of
    statutory interpretation and the applicability of remedial provisions in
    summary conviction proceedings where no prejudice to the accused has occurred.
    The merits of the appeal are strong. The issues raised extend well beyond the
    circumstances of this case.

The
    Merits of the Appeal

[14]

In
    my view, the reasons of the appeal judge reflect legal error and cannot stand.

The Designation of Counsel and its Effect

[15]

In
    summary conviction proceedings, a defendant may appear personally, or by
    counsel, or by agent. Under s. 800(2) of the
Criminal Code
, a summary
    conviction court may order the defendant to appear personally and, if the court
    thinks fit, issue an arrest warrant to compel the defendants attendance.

[16]

On
    April 21, 2008, about 21 months prior to the appearance in issue, the
    respondent signed a designation under s. 650.01 of the
Criminal Code
. 
    By that document, the respondent designated her counsel to appear on her behalf
    in any proceedings where her (the respondents) attendance was not required by
    law or judicial order. That designation was in force on the date about which we
    are concerned.
[1]


[17]

Section
    650.01(2) states the effect of filing a designation. Among other things, when a
    designation is filed, the appearance of designated counsel is equivalent to the
    presence of the accused, unless the presiding judge orders otherwise: s.
    650.01(3)(b).  It follows, in my view, that the appeal judge erred in
    concluding that the physical absence of the respondent on the date of
    arraignment and entry of a plea of not guilty contravened her right of presence
    under s. 650 of the
Criminal Code
. The respondent, though physically
    absent herself, was present through the operation of s. 650.01(3)(b) of the
Criminal
    Code
.

The Procedural Proviso

[18]

Even
    if the actual physical presence of the respondent were required to ensure
    compliance with s. 650(1) of the
Criminal Code
, which, in my view, it
    was not, what occurred plainly fell within the grasp of the curative proviso in
    s. 686(1)(b)(iv).

[19]

Unfortunately,
    the appeal judge was not asked to consider and did not, on her own motion,
    consider the potential applicability of s. 686(1)(b)(iv) of the
Criminal
    Code
to the breach she found of s. 650(1) of the
Criminal Code
.

[20]

The
    procedural proviso in s. 686(1)(b)(iv) permits an appellate court to dismiss an
    appeal from conviction where three conditions precedent are satisfied:

i.

the error made at trial was a procedural irregularity;

ii.

the trial court had jurisdiction over the class of offence of which the
    appellant was convicted; and

iii.

the appellate court is satisfied that the appellant suffered no
    prejudice as a result of the error (procedural irregularity).

[21]

The
    respondents actual absence from arraignment was, at best, a procedural
    irregularity, as much as is the exclusion of an accused from part of his or her
    trial in proceedings by indictment:
R. v. F.E.E
., 2011 ONCA 783, 108
    O.R. (3d) 337, at para. 31; and
R. v. Simon
, 2010 ONCA 754, 104 O.R.
    (3d) 340, at para. 122.

[22]

The
    presiding judge had jurisdiction over the class of offence with which the
    respondent was charged.  Both offences could be prosecuted by indictment or by
    summary conviction.  Once the trial Crown had elected to proceed by summary
    conviction, the judge had jurisdiction over the class of offence as a summary
    conviction court under s. 785(1) of the
Criminal Code
.

[23]

The
    respondent suffered no prejudice by the arraignment and entry of the plea of
    not guilty in her physical absence from the courtroom.  No evidence was
    adduced. The disclosure issue that remained outstanding required an
    adjournment. The adjournment was granted to a date about three months later
    when the trial proceeded in the respondents actual presence.

[24]

The
    presiding judge appears to have regarded the arraignment and entry of a plea
    (of not guilty) as essential for him to case manage what he considered a
    prosecution approaching vulnerability under s. 11(b) of the
Charter
.
    He was wrong.  Judicial case management is not dependant on arraignment or
    plea. Nor is it the exclusive preserve of the trial judge or a judge seized
    of a case.

[25]

This
    case was a routine alcohol-driving prosecution: two prosecution witnesses and a
    couple of exhibits. The only case management required was selection of a
    trial date in consultation with counsel and the trial co-ordinator.

The Additional Grounds

[26]

On the summary conviction appeal, the
    respondent sought to set aside her conviction on two other grounds.  She argued
    that the conduct of the trial judge on the arraignment and entry of the plea,
    and later on a motion for recusal or mistrial, gave rise to a reasonable
    apprehension of bias.  She also contended that the trial judge was wrong in
    failing to exclude evidence of the results of two breath tests administered
    shortly after the respondents arrest. The appeal judge rejected both
    arguments.

[27]

On the hearing of this appeal, Mr.
    Posner relied upon his written submissions on these issues as a basis upon
    which we should dismiss the appeal, even if we considered the appeal judge was
    wrong in her decision about the breach of the respondents right of presence.

[28]

I am satisfied that the appeal judges
    disposition of these additional grounds was correct.

CONCLUSION

[29]

In
    the result, I would grant leave to appeal, allow the appeal, set aside the
    order of the appeal judge, and restore the conviction recorded and sentence
    imposed at trial.

Released:  May 25, 2012 JL

David
    Watt J.A.

I
    agree John Laskin J.A.

I
    agree K. Feldman J.A.





[1]
The form of designation used in this case is identical to Form 18 under the
Criminal
    Proceedings Rules
of the Superior Court of Justice.  The
Rules of the
    Ontario Court of Justice in Criminal Proceedings
do not appear to provide
    a form for use under s. 650.01.


