



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marton, 2016 ONCA 691

DATE: 20160920

DOCKET: C62258

Laskin, Sharpe and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Daniel Marton

Respondent

Jennifer McKee, for the appellant

No one appearing for the respondent

Heard: August 30, 2016

On appeal from the decision of the Summary Convictions
    Appeal Court dated April 4, 2016 by Justice D.K. Gray of the Superior Court of
    Justice, dismissing the appellants application for substituted service in
    connection with the appeal from the conviction entered on February 3, 2016 by
    Justice Forsyth of the Ontario Court of Justice.

B.W. Miller J.A.

A.

overview

[1]

At issue in this appeal is whether a summary conviction appeal court has
    the jurisdiction to order substituted service of a notice of appeal. For the
    reasons that follow, I conclude that it does.

[2]

After a trial in the Ontario Court of Justice, the respondent was convicted
    of stunt driving contrary to s. 172 of the
Highway Traffic Act
, R.S.O. 1990, c. H.8,
and acquitted of
    two offences under the
Criminal Code
,
    R.S.C. 1985, c. C-46
: dangerous operation of a motor vehicle (s.
    249(1)(a) and flight from a peace officer (s. 249.1(1)). The Crown seeks to
    appeal the two acquittals and has attempted to serve the respondent with a
    notice of appeal.

[3]

After numerous failed attempts to serve the respondent personally, the
    Crown concluded that he was evading service and applied to the Superior Court
    of Justice for an order for substituted service. The application was brought on
    an
ex parte
basis before Gray J., acting as summary conviction appeal
    court (SCAC). The Crown relied on rule 5.04(1) and 40.06(3) of the
Criminal
    Proceedings Rules for the Superior Court of Justice (Ontario)
, which permit
    an order of substituted service. The application judge dismissed the
    application on the basis that an SCAC does not have the jurisdiction to order
    substituted service. Although rules 5.04(1) and 40.06(3) purport to authorize
    substituted service, the application judge found the rules to be ineffective,
    on the basis that there is no express provision in the
Code
authorizing substituted service for summary conviction appeals and that the
    rules are therefore inconsistent with the
Code
.

[4]

The Crown has sought leave to appeal that decision to this Court, and if
    leave is granted, seeks an order allowing the appeal and remitting the matter
    to the SCAC with directions to order substituted service of the notice of
    appeal of the acquittals, and to hear the appeal on its merits.

[5]

I would grant leave to appeal and would allow the appeal. The SCAC has the
    jurisdiction and the authority to order substituted service.

B.

analysis

(1)

Leave to appeal

[6]

This court has jurisdiction to hear the case because it involves a
    question of law alone. It is appropriate to grant leave to appeal under s.
    839(1)(a) of the
Code
. The appeal involves a question of law which is of
    significance to the general administration of justice beyond the present case.
    This is a matter of practice that should be clarified province-wide.

(2)

Appeal

[7]

The Application Judge concluded that the SCAC has no jurisdiction to
    order substituted service. This conclusion rests on the absence of a
Code
provision expressly authorizing a SCAC to permit substituted service, in light
    of the express authorization for substituted service that the
Code
provides for the appeals of indictable matters in s. 678.1:

678.1 Where a
    respondent cannot be found after reasonable efforts have been made to serve the
    respondent with a notice of appeal or notice of an application for leave to
    appeal, service of the notice of appeal or the notice of the application for
    leave to appeal may be effected substitutionally in the manner and within the
    period directed by a judge of the court of appeal.

[8]

The absence of an analogue to s. 678.1 governing substituted service in
    summary conviction appeals led the application judge to conclude that rules
    5.04(1) and 40.06(3) are, to the extent that they authorize substituted service
    in summary conviction appeals, inconsistent with the
Code
and therefore
    of no effect.

[9]

Against this, the Crown argues that the application judge drew the wrong
    conclusion from the existence of s. 678.1. The Crown argues that s. 678.1 was
    enacted to address a jurisdictional problem facing the Court of Appeal that did
    not apply to SCACs. Unlike in SCACs, the Crown argues that there were  and are
     no rules explicitly authorizing the order of substituted service in appeals
    to this court. There is some question as to whether s. 678.1 was entirely
    necessary, as there is support at common law for the proposition that this
    court has authority to order substituted service (
R. v. Gruener
,
    [1979] O.J. No. 421 (H.C.J.).

[10]

The Crown and the application judge, then, start from different
    background propositions. The application judge takes as a starting point that an
    explicit
Code
provision is necessary to ground orders of substituted
    service in summary conviction appeals, and that nothing less than an express
    provision will suffice.

[11]

Whatever the circumstances faced by this court at the time of the
    adoption of s. 678.1, it seems to me that the authority of the courts to make
    rules regarding service of a notice of appeal in a summary conviction matter 
    including an order for substituted service  is solidly anchored in the
Code
.

[12]

Section 482(1) authorizes every court of criminal jurisdiction to make
    rules of court, provided that they are not inconsistent with the
Code
or any other federal statute:

482 (1)
Every superior
    court of criminal jurisdiction and every court of appeal may make rules of
    court not inconsistent with this or any other Act of Parliament, and any rules
    so made apply to any prosecution, proceeding, action or appeal, as the case may
    be, within the jurisdiction of that court, instituted in relation to any matter
    of a criminal nature or arising from or incidental to any such prosecution,
    proceeding, action or appeal.

[13]

More specifically, the
Code
directs that in summary conviction
    appeals, the manner of service of a notice of appeal is governed by rules of
    court. Section 815(1), addressing summary conviction appeals, provides that:

815
(1) An appellant
    who proposes to appeal to the appeal court shall give notice of appeal in such
    manner and within such period as may be directed by rules of court.

[14]

On the reading given to it by the application judge, however, s. 815(1)
    is not a power-conferring rule that authorizes the making of rules respecting
    notice. It is rather merely a direction to appellants that they must conform to
    whatever rules exist with respect to notice, and the authority for making those
    rules must reside elsewhere. I disagree with this reading.

[15]

Section 482(1) is sufficient authority to ground rules 5.04(1) and
    40.06(3), governing substituted service in summary conviction appeals. The
    application judge erred in dismissing s. 482(1) as a source of authority on the
    basis that rules permitting substituted service in summary conviction appeals are,
    by implication, inconsistent with the
Code
. As no such implication can
    be drawn from the existence of s. 678.1, s. 482(1) is sufficient authority for
    rules 5.04(1) and 40.06(3) governing substituted service.

C.

dISPOSITION

[16]

I would allow the appeal, set aside the order refusing substituted
    service, and remit the matter back to the SCAC for a determination of whether
    substituted service shall be ordered.

Released: BW SEP 20 2016

B.W. Miller J.A.

I agree. John Laskin
    J.A.

I agree. Robert J.
    Sharpe J.A


