R. v. Nichols Gravel Ltd.: Appellate Jurisdiction on a Second Appeal from Provincial Offences Act Conviction

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Whether appeals from Ontario Court of Justice decisions under the Provincial Offences Act are to be brought to the Court of Appeal or Superior Court depends on the procedural facts of the case. Justice Pardu of the Ontario Court of Appeal addressed the relevant factors in this respect in her June 12, 2014 decision in R. v. Nichols Gravel Ltd.

The appellants were convicted by a justice-of-the-peace of operating a quarry without a license. Their appeal from conviction was dismissed by a judge of the Ontario Court of Justice. The appellants then purported to bring a further appeal to the Superior Court. In the context of a motion for directions, the Superior Court judge determined the Superior Court did not have jurisdiction to hear a further appeal, holding that the proper appellate route was to the Court of Appeal, with leave.

On a motion for leave to appeal that decision, Pardu J.A. endorsed the Superior Court  judge’s conclusion, holding that the Provincial Offences Act, when read as a whole, made it clear that second appeals from convictions are to be brought in the Court of Appeal, with leave:

[7]       The moving parties rely on s. 116 (2)(b) of the Provincial Offences Act, which provides that the appeal shall be “where the appeal is from the decision of a provincial judge, to the Superior Court of Justice.” Read literally, they submit that this permits an appeal from the decision of Harris J. to the Superior Court of Justice. This ignores however s. 116 (1) which reads as follows:

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. 2009, c. 33, Sched. 4, s. 1 (54).

[8]       In referring to an appeal from conviction, dismissal, a finding of mental disorder, a sentence or any other order as to costs, s. 116 (1) is intended to refer only to a first appeal, following a decision at first instance. Subsection 116(2) specifies the route for an appeal under subsection (1):

An appeal under subsection (1) shall be,

(a) where the appeal is from the decision of a justice of the peace, to the Ontario Court of Justice presided over by a provincial judge; or

(b) where the appeal is from the decision of a provincial judge, to the Superior Court of Justice. R.S.O. 1990, c. P.33, s. 116 (2); 2000, c. 26, Sched. A, s. 13 (5, 6).

[9]       Section 131 provides for a second level of appeal with leave, to the Court of Appeal from the court to which the first appeal was taken, either the provincial judge or the Superior Court of Justice.

[10]     The interpretation urged by the moving parties would result in a three separate appellate reviews of a decision of a Justice of the Peace in prosecutions under Part III of the Provincial Offences Act, a result unlikely to have been intended and excluded in any event by the language of s. 116.

[11]      Section 131 (2) of the Provincial Offences Act provides:

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

[12]     Leave will not be granted where it is apparent that there is little chance of success. The Superior Court of Justice did not have jurisdiction to hear the appeal from Harris J. I am not persuaded that it is essential in the public interest or for the due administration of justice that leave be granted and the motion for leave is dismissed.

[Emphases added]

Topics:  Appeals, Canada, Jurisdiction, Licensing Rules

Published In: General Business Updates, Criminal Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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