



COURT OF APPEAL FOR ONTARIO

CITATION: York (Regional Municipality) v. Tomovski, 2018 ONCA
    57

DATE: 20180124

DOCKET: M48650

Juriansz J.A. (In Chambers)

BETWEEN

The Regional Municipality of York

Moving Party

and

Steve Tomovski

Responding
    Party

and

The Attorney
    General for Ontario

Intervener

Chris G. Bendick, for the moving party

Robert Tomovski, for the responding party

Luke Schwalm, for the intervener

Heard: January 17, 2018

On a motion for leave to appeal the
    judgment of Justice John McInnes of the Ontario Court of Justice, dated
    November 21, 2017, with reasons for judgment reported at 2017 ONCJ 785.

REASONS FOR
    DECISION

[1]

The Attorney General for Ontarios application for intervener status on
    this motion is granted.

[2]

The moving party (York), supported by the Attorney General, seeks leave to
    appeal a judgment in its favour. This unusual circumstance creates a
    significant procedural issue and arises because of the following history.

[3]

The responding party, Mr. Tomovski, was charged with speeding  142
    km/hr in a 100 km/hr zone  on December 30, 2014 contrary to s. 128 of the

Highway
    Traffic Act
, R.S.O. 1990, c. H.8. The police officer laid a charge
    pursuant to Part I of the
Provincial Offences Act
, R.S.O. 1990, c.
    P.33 (
POA
). The responding party decided to contest the charge and
    filed a notice of intention to appear on January 9, 2015. The trial date was
    originally scheduled for May 22, 2015.

[4]

The trial date was adjourned multiple times due to certain disclosure
    requests and the failure to provide notice of a s. 11(b)
Canadian Charter
    of Rights and Freedoms

application to the Attorneys General for
    Canada and Ontario under s. 109 of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43.

[5]

The s. 11(b)
Charter
application was finally heard on February
    10, 2016. The Justice of the Peace hearing the application released his
    decision on June 21, 2016. The Justice of the Peace applied the analytical
    framework from
R. v. Morin
, [1992] 1 S.C.R. 771, held that the delay
    breached s. 11(b), and stayed the proceedings.

[6]

York appealed the stay of proceedings pursuant to s. 135 of the
POA
.
    When the matter came before the provincial court appeal judge on February 17,
    2017, the Supreme Court of Canada had released its decision in
R. v. Jordan
,
    2016 SCC 27. The provincial court appeal judges decision was released on November
    21, 2017.

[7]

In his decision,
the provincial court appeal
    judge held, at para. 158, that the 18 month presumptive delay ceiling set out
    in
R. v. Jordan

was too high to adequately protect Part I [of the
POA
] defendants constitutional right to be tried within a
    reasonable time. At para. 149, he found the appropriate presumptive ceiling
    for Part I proceedings is in the 13 to 15 month range and applied a 14 month presumptive
    ceiling to this case. Nevertheless, t
he provincial court appeal judge
    found that Mr. Tomovskis s. 11(b)
Charter
right was not breached
    because a significant portion of the delay was attributable to Mr. Tomovski.
    The provincial court appeal judge found the net delay was 10 months and 22 days.
    He
allowed Yorks appeal and ordered a new trial.

DISCUSSION

[8]

York proposes that leave to
    appeal should be granted on the following questions of law:

(a)

What should the presumptive delay ceiling
    be?

(b)

How should s. 11(b) of the
Charter
be applied for Part I
POA
proceedings commenced by a certificate of offence?

[9]

There is no question that the proposed questions
    of law transcend the immediate case and pertain to the administration of
    justice generally in the province. The issue is whether York is seeking leave
    to appeal from a judgment of the provincial court appeal judge rather than
    his reasons and thus whether this court has jurisdiction to hear the appeal. It
    is well established that
[a]n appeal lies from the judgment, not the
    reasons for judgment:
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R.
    869, at para. 4.

[10]

The relevant parts of ss. 135, 138, and
    139 of the
POA
state as follow:

Appeals, proceedings commenced by certificate

135(1) A defendant or the prosecutor or the Attorney General by
    way of intervention is entitled to appeal an acquittal, conviction or sentence
    in a proceeding commenced by certificate under Part I or II and the appeal
    shall be to the Ontario Court of Justice presided over by a provincial judge.

[]

Powers of the court on appeal

138(1) Upon an appeal, the court may affirm, reverse or vary
    the decision appealed from or where, in the opinion of the court, it is
    necessary to do so to satisfy the ends of justice, direct a new trial.

[]

Appeal to Court of Appeal

139(1) An appeal lies from the judgment of the Ontario Court of
    Justice in an appeal under section 135 to the Court of Appeal, with leave of a
    judge of the Court of Appeal, on special grounds, upon any question of law
    alone.

Grounds for leave

(2) No leave to appeal shall be granted under subsection (1)
    unless the judge of the Court of Appeal considers that in the particular
    circumstances of the case it is essential in the public interest or for the due
    administration of justice that leave be granted.

[]

[Emphasis in original.]

[11]

York and the Attorney General submit that the word
    judgment in s. 139 is broad enough to allow an appeal of the provincial court
    appeal judges determination that the presumptive delay ceiling for
Part I
POA
proceedings
    is in the 13 to 15 month range.

[12]

York
    points out that s. 135 of the
POA
only provides a right of appeal from
    an acquittal, conviction or sentence entered by a Justice of the Peace to a
    judge of the Ontario Court of Justice whereas s. 139 allows leave to appeal
    from any judgment. York submits that the legislature would have expressly
    restricted the appellate jurisdiction of the Court of Appeal to affirming,
    modifying, or varying verdicts, if it so intended. Instead, the legislature
    used the word judgment in s. 139, which the applicant submits is of such
    broad connotation that it embraces not only verdicts, but decisions and the
    reasoning that led to the verdict.

[13]

In
    addition, the Attorney General submits that the word judgment in s. 139
    includes decisions made by a provincial court appeal judge. The Attorney
    General argues that the provincial court appeal judges decision that a lower
    s. 11(b) presumptive delay ceiling applies falls within the meaning of a
    judgment under s. 139.

[14]

Mr.
    Tomovski made no submissions and took no position on this motion.

[15]

I
    do not find the text of s. 135 helpful. True, s. 135 provides an appeal from
    an acquittal, conviction or sentence, but s. 138 provides that on an appeal
    the court may affirm, reverse or vary the decision appealed from. The term
    decision appealed from in s. 138 relates back to the phrase an acquittal,
    conviction or sentence in s. 135. Based on Yorks reasoning, this text would
    equally suggest that the word decision should be understood narrowly as an
    acquittal, conviction, or sentence imposed.

[16]

Nor did I find the authorities submitted by York and the Attorney
    General, and the subsequent case law, to be persuasive.
R. v. Valente
(1982), 40 O.R. (2d) 535 (C.A.),
R. v. Inco Ltd
.
(1999), 139
    C.C.C. (3d) 477 (Ont. C.A.),
R. v. Belanger
, [2006] O.J. No. 3453
    (C.A.),
R. v. E. (A.)
, 2016 ONCA 243, and
Quinte West
    (Municipality) v. Balroop
, 2016 ONCA 657 were all cases in which a party sought
    to vary some aspect of the decision below.
R. v. Inco
is also
    distinguishable in that the Crown sought leave to appeal an unfavourable
    judgment and Inco, effectively, sought leave to cross-appeal an issue that
    could have affected the disposition of the appeal if the Crown were successful.
    None of these cases concerned appeals under Part I of the
POA
.

[17]

York argues it is seeking leave to appeal from the provincial court appeal
    judges decision that the presumptive delay ceiling for Part I
POA
proceedings is 13 to 15 months. While I accept that a judgment appealable
    under s. 139 may in some circumstances be described as a decision, I am not
    persuaded that s. 139 extends to a decision in the sense York suggests.

[18]

The
    decision of the provincial court appeal judge in this case was that the stay
    of proceedings should be set aside because there was no breach of s. 11(b).
    Given his factual finding that the net delay was 10 months and 22 days, the
    decision below would have been the same had the appeal judge not opined that
    a shorter presumptive delay ceiling applied for Part I
POA
proceedings. The proposed appeal seeks an advisory opinion of this court that
    is detached from the underlying facts. Ontario courts have repeatedly held that
    appeals cannot be based on a disagreement with certain determinations within
    the reasons for judgment:
Canadian Express Ltd. v. Blair
(1991), 6
    O.R. (3d) 212 (Div. Ct.);
Aetna Life Insurance Co. of Canada v. Ungerman
(1992), 17 C.P.C. (3d) 383 (Ont. Gen. Div.),
Grand River Enterprises v.
    Burnham
, [2005] O.J. No. 952 (C.A.), at para. 10; and
Almrei v. Canada
    (Attorney General)
, 2012 ONCA 779, at paras. 7-10.

[19]

This
    court can address the important question of the appropriate presumptive delay
    ceiling for Part I
POA
proceedings in another case in which the appeal
    is properly constituted.

[20]

The
    motion for leave to appeal is dismissed. In dismissing this motion, I should
    not be understood as approving the provincial court appeal judges view that
the appropriate presumptive ceiling for Part I proceedings
    is in the 13 to 15 month range
.

R.G. Juriansz J.A.


