In its March 11, 2014 decision in R. v. Courtice Auto Wreckers Limited, the Ontario Court of Appeal considered a discrete but important issue in appellate practice: what appeal route should be undertaken by the Crown when it seeks to set aside a decision by a trial court to stay a proceeding commenced under Ontario’s Provincial Offences Act, as a remedy under the Canadian Charter of Rights and Freedoms (the “Charter”)? The Crown argued that an appeal was the appropriate route. The respondent argued that the Crown needed to turn to the prerogative writ of certiorari. Case law had previously been very divided on this issue. For a unanimous Court of Appeal, Rouleau J.A. agreed with the Crown that an appeal is the proper route.

The Respondent had been charged with violating Ontario’s Environmental Protection Act. Due to a variety of reasons, the trial was delayed and eventually a justice-of-peace entered a stay of proceedings as a remedy for a breach of s. 11(b) of the Charter (which guarantees the right to a trial within a reasonable time). The Crown sought to appeal to a judge of the Ontario Court of Justice but the judge agreed with the respondent that the Act gave no right of appeal from a judicial stay. The appeal was correspondingly quashed.

Section 116(1) of the Act reads:

Where a proceeding is commenced by information under Part III, the defendant or the prosecutor or the Attorney General by way of intervention may appeal from,

(a) a conviction;

(b) a dismissal;

(c) a finding as to ability, because of mental disorder, to conduct a defence;

(d) a sentence; or

(e) any other order as to costs

The Crown argued that “dismissal” would include a stay pursuant to the Charter as it is tantamount to acquittal. The Respondent argued that a stay is not a dismissal as the matter has not been heard on the merits. It instead turned to s. 140(1) of the Act:

140(1) On application, the Superior Court of Justice may by order grant any relief in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari.

Rouleau J.A. observed that the Supreme Court of Canada had previously observed in R. v. Jewett (in the context of a criminal trial) that a decision of a trial court imposing a permanent stay for abuse of process was “tantamount to acquittal” for determining the Crown’s appeal rights under the Criminal Code. The Supreme Court also held in Jewett:

While a stay of proceedings of this nature will have the same result as an acquittal and will be such a final determination of the issues that it will sustain a plea of autrefois acquit, its assimilation to an acquittal should only be for purposes of enabling an appeal by the Crown. Otherwise, the two concepts are not equated. The stay of proceedings for abuse of process is given as a substitute for an acquittal because, while on the merits the accused may not deserve an acquittal, the Crown by its abuse of process is disentitled to a conviction.

The Respondent argued that this case was distinguishable because, as paraphrased by the Court:

[19]     The respondent points first to the fact that the Criminal Code was amended to specifically provide the Crown with a right of appeal from an order staying proceedings, in what is now s. 676. No similar amendment was made to the Act.

[20]     Further, the respondent explains that the context in Jewitt was quite different from the circumstances at issue here. If the Supreme Court had concluded in Jewitt that the term “acquittal” in what was then s. 605(1)(a) of the Code did not encompass a judicial stay, the Crown would have been unable to pursue the matter further. This is because the stay at issue in Jewitt was imposed by a superior court, and the prerogative writs are not available to review decisions of courts of inherent jurisdiction. The respondent argues that the circumstances at issue here are quite different. The stay imposed in favour of Courtice was imposed by a court of inferior jurisdiction and, as noted earlier, the Act specifically provides that where no right of appeal is provided for in the statute, the Crown can resort to the prerogative writs, including certiorari. In short, the respondent submits that the Supreme Court’s interpretation of the term “acquittal” in Jewitt was driven by the need to provide the Crown with a route by which to challenge a stay, and that no such imperative exists here.

Rouleau J.A. disagreed, finding Jewitt directly on point. He found that nothing turned on the subsequent amendments to the Criminal Code, being merely reflective of the state of the law as opposed to changing it. He also found that the difference in the use of the word “acquittal” in the Criminal Code as opposed to “dismissal” in the Act was immaterial.

With respect to the issue of the prerogative writs, Rouleau J.A. noted:

[30]       Although I acknowledge that there is a significant difference between the statutory frameworks at issue in Jewitt and under consideration here with respect to the availability of the prerogative writs, I agree with the response given by Maloney J. when the same submission was made to him in Boise Cascade. In Boise Cascade, Maloney J. stated that nowhere in Jewitt “is it suggested that an attempt is being made to fill any legislative gap which may have existed. In my opinion, it would be inappropriate to disregard those cases on the basis of the reasoning suggested by the respondents.”

[31]       In its factum, the respondent takes the position that Maloney J. was wrong. It submits that paragraph 55 of Jewitt “addresses the importance of providing the Crown this right of appeal in the absence of express language granting such a right.” I do not read paragraph 55 in that way. Paragraph 55 of Jewitt (at pp. 147-48) reads as follows:

On a true reading of s. 605(1)(a) of the Code, to determine whether a stay of proceedings is a judgment or verdict of acquittal, we must look to the substance of the action of the trial judge and not the label he used in disposing of the case. Substance and not form should govern. Whatever the words used, the judge intended to make a final order disposing of the charge against the respondent. If the order of the Court effectively brings the proceedings to a final conclusion in favour of an accused then I am of opinion that, irrespective of the terminology used, it is tantamount to a judgment or verdict of acquittal and therefore appealable by the Crown.

[32]       In this passage, the Court is simply reaffirming its conclusion that where a court’s order brings a proceeding to a final conclusion in favour of an accused such as to give rise to the defence of autrefois acquit in a later proceeding, the order is an “acquittal” for the purposes of the Crown’s right of appeal. By the same reasoning, the stay granted in this case is a “dismissal” for the purposes of the Crown’s right of appeal, and the Crown may therefore appeal under s. 116(1)(b) of the Act.

[33]       In any event, certiorari would not have been available to the Crown. Generally speaking, it is only on the basis of jurisdictional error that superior courts issue prerogative writs in their supervisory role over courts of limited jurisdiction. Here, it is conceded that the justice of the peace had the jurisdiction to order a stay. Accepting for the purposes of this appeal that he issued the stay in error, this is an error of law that was within his jurisdiction. The prerogative writs would therefore not, as the respondent suggests, provide the Crown with a remedy in this case.

Finally, Rouleau J.A. noted that the purpose of the Act is to address provincial offences more expeditiously and effectively than criminal offences. In this regard, he noted that “challenging the correctness of a judicial stay by way of an appeal rather than through an application in the Superior Court is simpler and more straightforward than via the prerogative writs” (para. 35).

He consequently allowed the appeal and remitted the matter back to the Ontario Court of Justice to hear the appeal on the merits.