Lauwers J.A.’s decision in R. v. A.E. considered several issues in appellate practice and makes for a highly interesting complement to his dissent in Kirby v. Hope Place Centres, previously discussed on the blog here. Like that case, this decision highlighted the test for granting an extension of time to file a notice of appeal, as well as how appellate practice should give special consideration to the interests of self-represented litigants, particularly those with mental health issues. Furthermore, the decision considered when leave to appeal to the Ontario Court of Appeal should be granted under the Provincial Offences Act, R.S.O. 1990, c. P-33.

The appellant had received four convictions for driving without insurance, resulting in significant fines. The justice-of-the-peace imposing sentence for one of the offences considered a subsequent offence to be an aggravating factor for the purposes of sentencing the offence committed earlier, resulting in “an arguable error of law with some merit with respect to this sentence.” The appellant’s appeals of these decisions were not only significantly delayed but also, in the words of Lauwers J.A., suffered from a “dishevelled approach”.

To further appeal to the Court of Appeal, the appellant not only needed to seek an extension of time to file an appeal, but also needed to obtain leave to appeal. Lauwers J.A. noted there was conflicting authority as to whether the Court had jurisdiction to hear some of the appeals given that an extension of time to appeal had been denied in the courts below. However, he held that the panel hearing the appeal may wish to resolve that jurisdictional issue as he granted both an extension of time and leave to appeal. In this respect, he gave an excellent discussion of the law, while simultaneously noting a need to flexibly apply it:

[15]       Since the offences in question proceeded under Part III of the Provincial Offences Act, an appeal lies to this court under section 131. While the test for leave is a high one, it should not, in my view, be inflexible. In the circumstances of this case, for the reasons that follow, I find there is an important public interest in this case, and there is an arguable issue that relates to the due administration of justice.

[16]       Although the offences are relatively serious, the applicant faces a very significant amount of fines, surcharges and costs that is draconian in its impact on him personally. The courts below were not made aware of his mental illness, and although he seems to be getting treatment, from the scanty material filed in this court, he may well have no real prospect of being able to pay these oppressive fines. Significant minimum fines for the offence of operating a motor vehicle without insurance may well have a good public policy justification, particularly in acting as a general deterrent. It is nonetheless, in my view, in the public interest to determine whether in the particular circumstances of any individual defendant or appellant, some accommodation should be made for individuals with significant personal disabilities. Although it may well have been within the power of the provincial offences appeal court to consider this issue, there was never an opportunity for that court to consider that issue, because of the manner in which the appeal proceedings unfolded, and because the applicant evidently was unable to advance the issue.

[17]       The appeal proceedings in the provincial offences appeal court on October 30, 2007 are especially problematic. As noted, the applicant had brought a motion to extend time in which to appeal three of his four convictions. From my review of the transcript of that proceeding, it is at least arguable that the court did not consider the appropriate factors in determining the issues before it, and, perhaps more importantly, closed off any opportunity for the broader public interest issue to be raised.

[18]       After being given a “brief chronology” by the prosecutor, which in my view was at least argumentative and may be viewed as prejudicing the applicant’s motion, the following exchange took place between the applicant and the court:

THE COURT: All right, thank you. What do you have to say?

A.E.: Sir, I’ve tried to pay the money but I’m a student, I don’t have money to pay and want to know if I can reduce. Right now I’m in (UNINTELLIGIBLE) and I can’t even pay my insurance right now, so I don’t know how to pay this fine.

THE COURT: Sir, your driving record is a complete and utter disgrace.

A.E.: Yes.

THE COURT: Excuse me. You have been convicted of this not once, but twice, but three times.

A.E.: Sir, the ….

THE COURT: Excuse me, I am talking to you now. The Justice reduced this. You, yourself were in court in February. The fact that you have waited until August to even challenge this persuades me that you are treating the entire system as a joke.

A.E.: No, Sir.

THE COURT: You have absolutely — I am still talking to you, please. You have absolutely no respect for your privilege of driving and have thumbed your nose at the system throughout. What do you want to say?

A.E.: Sir, I’m a student. I’m supposed to be in class right now. I’m taking – credits as a student. I’m in school from Monday to Friday.

THE COURT: You are expected to follow the same rules that apply to everyone else. You can appear before a justice and seek more time. Your matters are dismissed. Shameful. Thank you.

[19]       Numerous authorities set out the appropriate factors that a court should consider in determining whether to extend the time in which to appeal under s. 85 of the Provincial Offences Act. Among the appropriate factors, it is usually significant whether:

  • the applicant has demonstrated a bona fide intention to appeal within the prescribed appeal period;
  • the applicant has accounted for or explained the delay in initiating the appeal; and
  • the proposed appeal has merit.

And in some circumstances it will be significant whether:

  • the consequences of the conviction are out of all proportion to the penalty imposed;
  • the Crown will be prejudiced; and
  • the applicant has taken the benefit of the judgment.

[20]       I agree with Justice Nadel, in R. v. Monrad, [2012] O.J. No. 398 (C.J.), who applied, at para. 1, in the provincial offences appeal context, a principle enunciated by Justice Watt, that: “In the final analysis, the principal consideration is whether the applicant has demonstrated that justice requires that the time be extended.”

[21]       It is important to note that these are all factors, not preconditions. In the present case I think it is at least arguable that the provincial judge did not appear to take these factors into account. After this dismissal, the applicant was prevented from having the provincial offences appeal court consider the totality of the fines and surcharges. In my view, in the particular circumstances of this case, the due administration of justice is implicated, and as a consequence the broader public interest issues involved were not considered. As such I find that leave to appeal ought to be granted.

[22]       As a final note, I observe that while there was some evidence filed as to the applicant’s mental illness and his financial circumstances, it may well be insufficient for the purpose of the appeal. It would be beneficial if the applicant were assisted by counsel, who might consider whether additional fresh evidence is warranted.