


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ontario (Review Board), 2018 ONCA 50

DATE: 20180123

DOCKET: M48247 (C59882)

Rouleau, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Moving party (Respondent)

and

The Ontario Review Board

Responding party (Respondent)

and

The Person in Charge, Centre for Addiction and
    Mental Health

Responding party (Respondent)

and

Elizabeth Petroniuk

Responding party (Appellant)

Graham Jenner, for the appellant

Gavin S. Mackenzie, for the respondent The Person in
    Charge, Centre for Addiction and Mental Health

Dena Bonnet, for the respondent Her Majesty the Queen

Heard: January 11, 2018

REASONS FOR DECISION

[1]

The Crown, the respondent on appeal, moves to quash the appeal for lack
    of jurisdiction. The appeal is from the decision of Trotter J. dated December
    1, 2014. That decision dismissed Ms. Petroniuks application challenging the
    constitutionality of s. 672.56 of the
Criminal Code
.

[2]

The application, which sought relief under s. 52 of the
Charter
,
    it was brought by notice of application and constitutional issue under r. 27.03
    of the
Criminal Proceedings Rules

for the Superior of Justice
    (Ontario)
, (SI/2012-7). Initially, a request for
mandamus

was combined with the constitutional
    challenge, but it became moot before the application was heard. Only the
Charter
application proceeded to hearing on the merits.

[3]

The Crown maintains that there is no provision in either the
Criminal
    Code
or the
Criminal Proceedings Rules
(the criminal rules) for
    an appeal to this court of stand-alone
Charter
applications such as
    the one that was brought in this case. According to the Crown, the only route
    of appeal is to the Supreme Court of Canada with leave under s. 40(1) of the
Supreme Court Act
, R.S.C.
    1985, c. S-26.

[4]

Ms. Petroniuk agrees with the Crown but argues that the matter having
    been brought under the criminal rules was, in effect, an error. In fact, once
    the request for
mandamus
became moot and only the
Charter
application
    went forward, the matter should not have proceeded under the criminal rules. The
    application was neither in a criminal proceeding nor did it relate to an
    active criminal court proceeding. It ought to have proceeded as an application under
    s. 14.05(3)(g.1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
. An appeal
    from such a decision, therefore, would lie to this court pursuant to s. 6(1)(b)
    of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43
.

[5]

The procedural irregularity of having referred to the criminal rather
    than the civil rules did not, in Ms. Petroniuks submission, prejudice any
    party or impact the proceedings in any substantial way.

[6]

The Crown contends that some parties would not have been part of the
    application if Ms. Petroniuk had brought it under the civil rules. We are
    mindful that the Ontario Review Board and the hospital, the Centre for
    Addiction and Mental Health, might not have been included in the proceedings
.
However, the hospital has acknowledged
    that it is not prejudiced by this court treating the application as if it had been
    brought under the civil rules. As for the Ontario Review Board, it has not
    participated in this motion.

[7]

The Crown also acknowledges that it was not prejudiced by the
    application having been brought pursuant to the criminal rather than the civil
    rules
.

Nonetheless, it maintains
    that this court should quash the appeal and leave it to Ms. Petroniuk to
    seek leave to appeal directly to the Supreme Court of Canada.

[8]

In our view, the motion must be dismissed. We see no reason not to treat
    this proceeding as a civil proceeding. It is apparent to us that the procedure
    adopted in this case was irregular and in error. However, the error was not raised
    by the parties in the court below nor commented on by the application judge.

[9]

The Supreme Court cases cited by the Crown are of no help to it. In the
    cases of
R. v. Laba
,
[1994] 3 S.C.R. 965, and
R. v. Keegstra
,
[1995] 2 S.C.R. 381, the constitutional challenges were
    made in the context of ongoing criminal proceedings. That is unlike the present
    matter, which is in effect a civil proceeding in the form of a stand-alone
    application for a declaration that the legislation is unconstitutional.

[10]

In
    a situation such as this one, we agree with the Alberta Court of Appeals
    comment in
R. v. White
, 2008 ABCA 294, 93 Alta. L.R. (4th) 239, affd
    on other grounds 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 30, that [t]he
    substance of the procedure (which must prevail over its form) was however civil
    and declaratory in nature. The fact that the wrong rules were followed here should
    not preclude an appeal. The substance of the procedure must prevail over its
    form. In the circumstances, it is therefore open to this court to exercise its
    discretion and hear the appeal despite the procedural error committed in the
    court below.

[11]

As
    a result, the motion is dismissed.

Paul Rouleau J.A.

David Watt J.A.

David Brown J.A.


