Jun 2, 2020

MLB Headnote and Key Numbers

R. v. A.E., 2016 ONCA 243 (CanLII)

R. v. A.E. (2016), 348 O.A.C. 68 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. AP.011

Her Majesty the Queen (respondent) v. A.E (appellant)

(C58069; C58070; 2016 ONCA 243)

Indexed As: R. v. A.E.

Ontario Court of Appeal

Feldman, MacPherson and Miller, JJ.A.

April 4, 2016.

Summary:

Between 2005 and 2006, the appellant was convicted of four separate offences of driving without insurance, contrary to the Compulsory Automobile Insurance Act. He was sentenced to fines for each conviction. Following the fourth sentence, the appellant faced fines of $17,000 together with a 25% surcharge. The appellant did not seek to appeal his sentences until late 2007. The appellant appealed from the 2007 judgment of Libman, J., refusing to grant an extension of time to appeal the first three sentences. He also appealed from the 2011 judgment of Harris, J., which granted the extension of time to appeal the fourth sentence and extended the time to pay the $2,000 fine, but refused to reduce that fine. The appellant sought a suspension of his sentence or, in the alternative, that the fines be reduced. He also sought to file fresh evidence. Leave to appeal was granted, subject to the finding on whether the Court of Appeal had jurisdiction to entertain an appeal from a refusal to extend the time to appeal the original sentences under s. 85 of the Provincial Offences Act (POA).

The Ontario Court of Appeal concluded that the Court had jurisdiction to hear an appeal, with leave, from a refusal to extend the time to appeal under s. 85 of the POA. On the basis of the fresh evidence of the appellant's mental illness and inability to pay the substantial total fines, the Court reduced the total fines to $5,000 with two years to pay.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5629

Punishments (sentence) - Fines, penalties and compensation orders - Considerations on imposing fine - [See Criminal Law - Topic 7472.1].

Criminal Law - Topic 7471

Summary conviction proceedings - Appeals - General - Evidence on appeal - Fresh evidence - The underlying decision was the denial of an extension of time to appeal the fines imposed for driving without insurance contrary to s. 2(1)(a) of the Compulsory Automobile Insurance Act - Some fresh evidence that the appellant suffered from a mental illness and had minimal earnings was placed before the court on the application for leave to appeal - Leave was granted - The Ontario Court of Appeal admitted the fresh evidence on the basis that it meet the Palmer criteria in respect of the decision to deny an extension of time to appeal - "I am satisfied that had the motion judge had this evidence, he may well have taken a different view of the reason for the appellant's delay in appealing and of the circumstances of his convictions and sentences generally, and may thus have granted the extension of time to appeal. I conclude that although the motion judge made no error on the record before him, had he had the fresh evidence, he would have had the basis to grant the extension of time to appeal." - See paragraphs 40 to 48.

Criminal Law - Topic 7472.1

Summary conviction proceedings - Appeals - General - Appeal from sentence - The underlying decision was the denial of an extension of time to appeal the fines imposed for four convictions for driving without insurance contrary to s. 2(1)(a) of the Compulsory Automobile Insurance Act - Following the fourth sentence, the appellant faced fines of $17,000 together with a 25% surcharge - The Ontario Court of Appeal admitted the fresh evidence relating to the appellant's mental illness and inability to pay the fines, and, in light of that evidence, reduced the total fines to $5,000 with two years to pay - "This appeal comes down to whether it is in the interests of justice to relieve the appellant of his fines and whether they are unduly oppressive. ... In my view, it is not in the interests of justice for the appellant to be fully relieved of these fines, so that he can immediately drive again. The specific deterrence purpose of the fines remains essential. However, given the appellant's mental illness and its detrimental effect on his ability to earn money to pay the fines, it is also in the interests of justice that the total amount of the fines be reduced, to give the appellant the hope and opportunity to pay the reduced fines and be able to get on with his life." - See paragraphs 49 to 59.

Criminal Law - Topic 7607

Summary conviction proceedings - Appeal to a court of appeal - When available - General - [See Trials - Topic 1183].

Motor Vehicles - Topic 4285

Offences - Appeals - Extension of time for - [See Trials - Topic 1189].

Motor Vehicles - Topic 4329

Offences - Sentence - Particular offences - Driving uninsured vehicle - [See Criminal Law - Topic 7472.1].

Trials - Topic 1152

Summary convictions - Evidence - Appeals - [See Criminal Law - Topic 7471].

Trials - Topic 1183

Summary convictions - Appeals - Jurisdiction - The underlying decision was the denial of an extension of time to appeal the fines imposed for driving without insurance contrary to s. 2(1)(a) of the Compulsory Automobile Insurance Act - Leave to appeal was granted, subject to the issue of jurisdiction - The Ontario Court of Appeal concluded that the Court had jurisdiction to hear an appeal, with leave, from a refusal to extend the time to appeal under s. 85 of the Provincial Offences Act (POA) - "The issue of whether an appeal lies to this court, with leave, from the dismissal of a motion to extend the time to appeal under s. 85(1) of the POA, which does not include a right of appeal, has been the subject of conflicting decisions of single judges of this court sitting on motions, but has not been considered by a panel of the court. As this court's jurisdiction over POA matters is statutory, its jurisdiction must be found in the POA and the proper interpretation of the governing provisions. The governing sections of the POA are s. 85(1),(2), s.116(1),(2) and s. 131(1),(2) ... The effect of this analysis is that this court does have jurisdiction to grant leave to appeal under s. 131 of the POA from a judgment that denies an extension of time to appeal under s. 116. However, because of the strict requirements of s. 131(2) governing the granting of leave, coupled with the deference owed to discretionary decisions such as denying an extension of time to appeal, leave to appeal to this court from such decisions will necessarily be rarely granted." - See paragraphs 20 to 35.

Trials - Topic 1189

Summary convictions - Appeals - Notice of appeal - Extension of time for - A motion judge refused to grant an extension of time to appeal the fines imposed on convictions for driving without insurance - The appellant had told the judge that he was a student, and that he was not able to pay the fines - The judge observed that the appellant waited until August (after being in court in February) before he attempted to challenge the sentences, and concluded that the appellant was "treating the entire system as a joke." - Leave to appeal was granted - The Ontario Court of Appeal held that the motion judge did not err in his discretionary decision to deny an extension of time to appeal - "I agree that the hearing before the motion judge can be viewed as somewhat perfunctory. However, in the context of a busy Ontario Court of Justice docket, I would not view the proceeding as failing to give the appellant the opportunity to be heard, nor did the motion judge fail to apply the correct test. His conclusion indicates that he was not satisfied that the appellant formed the intention to appeal within the 30 day appeal period, nor that the justice of the case required an extension of time." - See paragraphs 36 to 39.

Counsel:

A.E., acting in person;

Lisa Feinberg, amicus curiae;

Joanne Stuart, for the respondent.

This sentence appeal was heard on September 9, 2015, before Feldman, MacPherson and Miller, JJ.A., of the Ontario Court of Appeal. In reasons written by Feldman, J.A., the Court delivered the following judgment, released on April 4, 2016.