



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Courtice Auto Wreckers
    Limited, 2014 ONCA 189

DATE: 20140311

DOCKET: C56426

Cronk, Rouleau and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Courtice Auto Wreckers Limited

Respondent

Danielle Meuleman and Sarah Kromkamp, for the appellant

Jeffrey R. Manishen, for the respondent

Heard: October 18, 2013

On appeal from the judgment of Justice Bernd Zabel of the
    Ontario Court of Justice, dated October 26, 2012.

Rouleau J.A.:

[1]

The single issue under appeal is the proper route to be taken by the
    Crown when it seeks to set aside a decision by a trial court to stay a proceeding
    commenced under the
Provincial Offences Act
, R.S.O. 1990, c. P.33 (the
    
Act
),

as a remedy under the
Canadian Charter of Rights
    and Freedoms
(the 
Charter
)
.

[2]

May the Crown appeal such a stay under s. 116(1)(b) of the
Act
,
    or must the Crown resort to
certiorari
? For the reasons that follow, I
    have concluded that an appeal is the proper route to follow.

FACTS

[3]

In October 2007, an order was issued under the
Environmental
    Protection Act
, R.S.O. 1990, c. E.19, by a Director with the Ministry of
    the Environment requiring Courtice Auto Wreckers Limited (Courtice) to either
    apply for all applicable approvals to construct a permanent berm on a property
    near Hamilton, Ontario, or remove all of the berm material from the property.
    Courtice is alleged not to have complied with the order. On December 14, 2009, Courtice
    was charged by way of an information under Part III of the
Act
with
    failing to comply with the Directors order. The Crown and the defence were
    ready for trial by July 6, 2010. However, through no fault of either side, the
    matter was not scheduled for trial until August 30, 2011, more than 20 months
    after the information was laid.

[4]

Before trial, Courtice brought an application under s. 11(b) of the
Charter
claiming that its right to be tried within a reasonable time had been violated.
    On August 30, 2011, a justice of the peace granted a stay of all charges
    pursuant to s. 24(1) of the
Charter
.

[5]

The Crown appealed the stay order pursuant to s. 116(1) of the
Act
to the Ontario Court of Justice on the ground that the stay was entered in
    error. Courtice responded by arguing that there is no right of appeal under s.
    116(1) of the
Act
from a judicial stay, including a stay of
    proceedings entered as a
Charter
remedy. On October 26, 2012, Zabel J.
    dismissed the Crowns appeal for want of jurisdiction. He held that the proper
    avenue for appealing a stay under the
Act
is by way of the
    extraordinary remedy of
certiorari
in the Superior Court.

[6]

The Crown sought leave to appeal to this court and on December 20, 2012,
    leave was granted by MacPherson J.A.

ISSUE

[7]

The issue to be decided is whether the learned provincial offences appeal
    court judge erred in finding that there is no right of appeal under s. 116(1)
    of the
Act
from a judicial stay of proceedings entered as a
Charter
remedy.

ANALYSIS

[8]

Section 116(1) of the
Act
provides as follows:

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.

[9]

The Crown argues that the term a dismissal in s. 116(1)(b) encompasses
    acquittals and other final dispositions that are tantamount to an acquittal.
    This would include a stay of proceedings entered as a
Charter
remedy
    because such a stay is a final disposition that, for all intents and purposes,
    is tantamount to an acquittal.

[10]

For
    its part, Courtice argues that a stay is not a dismissal as the matter has not
    been heard on the merits. In Courtices view, the Crowns remedy is to appeal
    by way of
certiorari
pursuant to s. 140(1) of the
Act
. That
    section reads as follows:

Mandamus, prohibition, certiorari

140(1) On application, the Superior Court of Justice may by
    order grant any relief in respect of matters arising under this Act that the
    applicant would be entitled to in an application for an order in the nature of
    mandamus, prohibition or certiorari.

[11]

The
Act
makes it clear, however, that both the Crown and the respondent
    cannot be correct. Section 141(3) of the
Act
provides that an
    application under s. 140(1) is not available to quash a conviction, order or
    ruling from which an appeal is provided by this Act, whether subject to leave
    or otherwise.

[12]

The
    case law in the lower courts is, to some extent, divided on this issue. Some
    cases tend to support the Crowns position:
R. v. Boise Cascade Canada Ltd.
,
    [1991] O.J. No. 1831 (Gen. Div.);
R. v. Barker
, [1992] O.J. No. 545
    (Gen. Div.);
R. v. VTC Industrial Coatings Ltd.
, [1996] O.J. No. 5478
    (Prov. Div.);
R. v. Sansone
, [1992] O.J. No. 3728 (Prov. Div.). Others
    could be read as supporting the respondent:
Ontario (Ministry of the
    Environment) v. Sault Ste. Marie (City)
(2007)
,
    34 C.E.L.R. (3d) 123 (Ont. S.C);
R. v. Smith
(2008)
, 175 C.R.R. (2d) 13 (Ont. S.C.);
R.
    v. Kramer
(2007)
, 31
    M.P.L.R. (4th) 79 (Ont. S.C.).

1.       The relevance of
R. v. Jewitt

[13]

The
    issue whether the term acquittal encompasses a judicial stay for appeal
    purposes has been addressed by the Supreme Court of Canada, albeit in a
    different context, in
R. v. Jewitt
, [1985] 2 S.C.R. 128. In that case,
    the Supreme Court considered whether the Crown right to appeal from the
    judgment or verdict of acquittal of a trial court (as outlined in what was then
    s. 605(1)(a) of the
Criminal Code
) included the right to appeal from a
    judicial stay. In
Jewitt
, at p.
    148, the Supreme Court concluded that the answer was yes
because a
    judicial stay was tantamount to a judgment or verdict of acquittal.

[14]

The
    debate in
Jewitt
centered on whether a stay based on an abuse of
    process by the Crown should be considered tantamount to an acquittal in light
    of the fact that a stay only suspended proceedings, albeit permanently, in
    circumstances where an acquittal on the merits was not justified. Put
    differently, a stay intervenes to prevent consideration of the merits lest a
    conviction occur in circumstances which would bring the administration of
    justice into disrepute:
Jewitt
, at p. 148.

[15]

In
    reaching the conclusion that a judicial stay based on an abuse of process by
    the Crown was tantamount to an acquittal for the purposes of determining the
    scope of the Crowns appeal rights under what was then s. 605(1)(a) of the
Criminal
    Code
, the Supreme Court, at p. 144, reviewed the jurisprudence and listed
    three considerations cited by provincial appellate courts that supported this
    result:

1.  Although the
    charge remains extant following a stay of proceedings, there is no forum for
    its further processing and hence a stay is, in reality, a final decision.

2.  Abuse of
    process is an issue which goes to the merits of the case. A stay of proceedings
    releases the accused from all further proceedings. It is therefore a
    substantive, rather than a merely procedural, decision.

3.  The
    reasoning expressed in the cases on quashing an indictment. As Martin J.A.
    stated in
Beason
,
supra
, at pp. 31-32:

The law has
    been settled by a series of decisions by the Supreme Court of Canada that where
    an indictment has been quashed, not on the basis of the defects in the
    indictment or technical procedural irregularities, but on grounds going to the
    substance or merits of the charge so as to give rise to the plea of
autrefois
    acquit
if the accused were subsequently charged, the order quashing the
    indictment is tantamount to an acquittal and an appeal lies from the order
    quashing the indictment: see
R. v. Sheets
, [1971] S.C.R. 614, 1 C.C.C.
    (2d) 508, 16 D.L.R. (3d) 221;
Lattoni and Corbo v. The Queen
, [1958]
    S.C.R. 603, 121 C.C.C. 317. The principle enunciated in these cases has been
    applied, correctly I think, to cases where proceedings have been stayed or
    indictments quashed because of contraventions of rights secured by the
Canadian
    Charter of Rights and Freedoms
and in which the disposition made by the
    trial judge constitutes a final disposition of the prosecution which precludes
    its subsequent revival:

[16]

The
    Supreme Court went on to explain that a stay on the basis of abuse of process,
    like the quashing of an indictment, was based on a complex question of law and
    fact. In the Courts view, a stay is a final decision, that is to say, a
    judgment rendered on a question of law after the accused was placed in jeopardy,
    such that if the accused were charged subsequently with the same offence he
    could plead
autrefois acquit
:
Jewitt
,
at p. 145.

[17]

Although
    the Court equated a stay to an acquittal, the Court cautioned, at p. 148, that:

While a stay of proceedings of this nature will have the same
    result as an acquittal and will be such a final determination of the issues
    that it will sustain a plea of
autrefois acquit
, its assimilation to
    an acquittal should only be for purposes of enabling an appeal by the Crown.
    Otherwise, the two concepts are not equated. The stay of proceedings for abuse
    of process is given as a substitute for an acquittal because, while on the
    merits the accused may not deserve an acquittal, the Crown by its abuse of
    process is disentitled to a conviction.

2.       Does the reasoning in
Jewitt
apply to appeal
    rights under the
Act
?

[18]

The
    stay in
Jewitt
was based on an abuse of process by the Crown, while
    the stay in this case was granted as a remedy under s. 24(1) of the
Charter
for violation of Courtices rights under s. 11(b) of the
Charter
.
    Nonetheless, in my view, the analysis adopted by the Supreme Court of Canada in
Jewitt
should apply to the interpretation of s. 116(1)(b) of the
Act
.
    As noted above, the Court in
Jewitt
, at p. 148, found that a judicial
    stay was tantamount to a judgment or verdict of acquittal, and the same
    reasoning leads to the conclusion that a judicial stay in this case is
    tantamount to a dismissal.

[19]

The
    respondent, however, urges the court not to apply
Jewitt
to this case.
    The respondent points first to the fact that the
Criminal Code
was
amended to specifically provide the
    Crown with a right of appeal from an order staying proceedings, in what is now
    s. 676.
[1]
No similar amendment was made to the
Act
.

[20]

Further,
    the respondent explains that the context in
Jewitt
was quite different
    from the circumstances at issue here. If the Supreme Court had concluded in
Jewitt
that the term acquittal in what was then s. 605(1)(a) of the
Code
did
    not encompass a judicial stay, the Crown would have been unable to pursue the
    matter further. This is because the stay at issue in
Jewitt
was
    imposed by a superior court, and the prerogative writs are not available to
    review decisions of courts of inherent jurisdiction. The respondent argues that
    the circumstances at issue here are quite different. The stay imposed in favour
    of Courtice was imposed by a court of inferior jurisdiction and, as noted
    earlier, the
Act
specifically provides that where no right of appeal is
    provided for in the statute, the Crown can resort to the prerogative writs,
    including
certiorari
. In short, the respondent submits that the
    Supreme Courts interpretation of the term acquittal in
Jewitt
was
    driven by the need to provide the Crown with a route by which to challenge a
    stay, and that no such imperative exists here.

(i)

Dismissal and acquittal

[21]

Before
    turning to the two points raised by the respondent, I will address the fact
    that the wording of s. 116(1)(b) of the
Act
differs from the version
    of s. 605(1)(a) of the
Criminal Code
considered by the Supreme Court
    in
Jewitt
. The
Act
gives the Crown a right to appeal from a dismissal,
    whereas the
Code
granted a right to appeal from a judgment or verdict
    of acquittal. In my view, nothing flows from the legislatures decision to use
    the term dismissal rather than the term acquittal in s. 116(1)(b). I say so
    because the legislature appears to have been using the term dismissal
    interchangeably with the term acquittal. The decisions from which an appeal
    can be taken are set out in s. 116 of the
Act
. This provision must be
    read harmoniously with the remedial provisions in the
Act
: see e.g.
    ss. 120, 121, and 122. The remedial provision outlining a courts authority in
    the event that an appeal from a dismissal taken under s. 116(1)(b) is allowed
    reads as follows:

Orders on appeal against acquittal

121. Where an appeal is
    from an acquittal, the court may by order,

(a) dismiss the appeal;
    or

(b) allow the appeal, set
    aside the finding and,

(i)
    order a new trial, or

(ii) enter a
    finding of guilt with respect to the offence of which, in its opinion, the
    person who has been accused of the offence should have been found guilty, and
    pass a sentence that is warranted in law.

[22]

The
    legislature therefore clearly saw no difference between the term dismissal as
    it is used in s. 116(1)(b), and the term acquittal as it is used in s. 121.

(ii)

Relevance of the
Criminal Code
amendments

[23]

In
    my view, the fact that the
Criminal Code
was amended shortly after
Jewitt
to specifically provide the Crown with a right to appeal from a judicial stay
    does not make the reasoning in
Jewitt
any less pertinent to the
    present appeal. The post
-Jewitt
amendments to ss. 676 and 813 did not
    effect a change in the law; they simply made express what the Supreme Court viewed
    as the existing situation in law.

[24]

The
Act
was adopted by the legislature in 1979 before the amendments to
    the
Criminal Code
were made to specifically provide the Crown with a
    right to appeal from a judicial stay. There is good reason to expect that by
    using the same or analogous terms, the legislature intended these terms to be
    interpreted in the same way.

[25]

The
    legislature explained that the
Act
was adopted to replace the summary
    conviction procedure for the prosecution of provincial offences, including the
    provisions adopted by reference to the
Criminal Code
(Canada)
, with a procedure that reflects
    the distinction between provincial offences and criminal offences: s. 2(1) of
    the
Act
. The legislature specifically recognized that the
Criminal
    Code
provisions would serve as a guide to interpreting this new
Act
.
    It expressed this in s. 2(2) of the
Act
, which reads as follows:

Where, as an aid to the interpretation of provisions of this
    Act, recourse is had to the judicial interpretation of and practices under
    corresponding provisions of the
Criminal Code
(Canada), any variation in
    wording without change in substance shall not, in itself, be construed to
    intend a change of meaning.

The fact that the legislature did not amend the
Act
after the
Jewitt
decision is consistent with the legislature being
    content with the Courts interpretation of the word acquittal in
Jewitt
.

[26]

The
    respondent suggests that the fact that the
Act
was amended in 2009 to
    provide for an appeal against any other order as to costs, but was not amended
    to provide for an appeal from a judicial stay, lends further support to its
    position. In the respondents view, this is a further indication of the
    legislatures intention that s. 116 be read as excluding appeals from judicial
    stays.

[27]

Again,
    I disagree. The amendment made was necessary. It provided for a right of appeal
    where none existed previously. As explained earlier, no amendment was required
    to provide for an appeal from a judicial stay given the interpretation of the
    term acquittal in
Jewitt
. I acknowledge that the legislature could
    have taken the opportunity to follow the approach taken by Parliament with
    respect to the
Criminal Code
. This would have removed any doubt. However,
    in my view, the failure to do so does not signal an intention on the part of
    the legislature to depart from the reasoning in
Jewitt
.

(iii)

The prerogative writs

[28]

The
    respondent also argues that there is a significant distinction between
Jewitt
and the present case that should lead the court to interpret the term dismissal
    differently from the term acquittal as construed in
Jewitt
. The
    respondent explains that, had the Supreme Court not interpreted the term acquittal
    as including the right to appeal from a judicial stay, the Crown would have
    been left with no remedy and could never seek to set aside judicial stays. In
    effect, the respondent argues that the Supreme Courts decision in
Jewitt
was driven by a concern that the Crown should not be left without a remedy.

[29]

The
    respondent submits that the situation is quite different under the
Act
.
    The legislature has specifically provided that, where no appeal lies, the
    prerogative writs are available to the Crown. For provincial offences the stay
    would be imposed in the Ontario Court. As a result, the prerogative writs would
    be available to the Crown and the Crown would not be left without a remedy.

[30]

Although
    I acknowledge that there is a significant difference between the statutory
    frameworks at issue in
Jewitt
and under consideration here with
    respect to the availability of the prerogative writs, I agree with the response
    given by Maloney J. when the same submission was made to him in
Boise
    Cascade
. In
Boise Cascade
, Maloney J. stated that nowhere in
Jewitt
is it suggested that an attempt is being made to fill any legislative gap
    which may have existed. In my opinion, it would be inappropriate to disregard
    those cases on the basis of the reasoning suggested by the respondents.

[31]

In
    its factum, the respondent takes the position that Maloney J. was wrong. It
    submits that paragraph 55 of
Jewitt
addresses the importance of providing
    the Crown this right of appeal in the absence of express language granting such
    a right. I do not read paragraph 55 in that way. Paragraph 55 of
Jewitt
(at
    pp. 147-48) reads as follows:

On a true reading of s. 605(1)(a)
    of the
Code
, to determine whether a stay of proceedings is a judgment or
    verdict of acquittal, we must look to the substance of the action of the trial
    judge and not the label he used in disposing of the case. Substance and not
    form should govern. Whatever the words used, the judge intended to make a final
    order disposing of the charge against the respondent. If the order of the Court
    effectively brings the proceedings to a final conclusion in favour of an
    accused then I am of opinion that, irrespective of the terminology used, it is
    tantamount to a judgment or verdict of acquittal and therefore appealable by
    the Crown.

[32]

In
    this passage, the Court is simply reaffirming its conclusion that where a courts
    order brings a proceeding to a final conclusion in favour of an accused such as
    to give rise to the defence of
autrefois acquit
in a later proceeding,
    the order is an acquittal for the purposes of the Crowns right of appeal. By
    the same reasoning, the stay granted in this case is a dismissal for the
    purposes of the Crowns right of appeal, and the Crown may therefore appeal
    under s. 116(1)(b) of the
Act
.

[33]

In
    any event,
certiorari
would not have been available to the Crown. Generally
    speaking, it is only on the basis of jurisdictional error that superior courts
    issue prerogative writs in their supervisory role over courts of limited
    jurisdiction. Here, it is conceded that the justice of the peace had the
    jurisdiction to order a stay. Accepting for the purposes of this appeal that he
    issued the stay in error, this is an error of law that was within his
    jurisdiction. The prerogative writs would therefore not, as the respondent
    suggests, provide the Crown with a remedy in this case.

(iv)

The intention of
    the
Act

[34]

On
    a final note, I consider my interpretation of s. 116(1)(b) to be in keeping
    with the scheme and intention of the
Act
. Most provincial offence
    proceedings are commenced by the issuance of a ticket and can be relatively minor.
    In explaining the reason for adopting a provincial scheme to govern provincial
    offences, the Honourable R. Roy McMurtry, Q.C., then Attorney General for the
    Province of Ontario, described the purpose of the
Act
as follows:

the proposed Provincial Offences
    Act  creates a clear, self-contained procedural code to simplify procedures,
    eliminate technicalities, enhance procedural rights and protections, and remove
    the obstacle of delay from the assertion of rights and the conclusion of prosecutions:
Provincial Offences Procedure: An Analysis and Explanation of Legislative
    Proposals: the Provincial Offences Act, 1978 and the Provincial Courts
    Amendment Act, 1978
(Toronto: Ministry of the Attorney General, 1978), at
    p. 1.

[35]

As
    noted by the Crown, challenging the correctness of a judicial stay by way of an
    appeal rather than through an application in the Superior Court is simpler and
    more straightforward than via the prerogative writs. For an accused,
    particularly one who is self-represented, responding to an appeal is more
    readily understood than being required to respond to an application for
certiorari
and to follow the procedures of the Superior Court. The interpretation of the
    term dismissal I propose better achieves the intended purpose of the
Act
.

CONCLUSION

[36]

In
    conclusion, therefore, I would allow the appeal, set aside the provincial
    offences appeal court judges decision and remit the matter back to the Ontario
    Court of Justice to determine the merits of the Crowns appeal.

Paul Rouleau J.A.

I agree E.A. Cronk
    J.A.

I agree M. Tulloch
    J.A.

Released: March 11, 2014





[1]
Although not argued, I note that after
Jewitt
, a parallel amendment was
    made to s. 813 of the
Code
.


