2019 QCCA 452, 2019 QCCA 452

Vorias c. R. 2019 QCCA 452 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006935-181 (500-36-008390-174) DATE: 15 March 2019 BEFORE THE HONOURABLE PATRICK HEALY, J.A. BOBBY VORIAS APPLICANT — Accused v. HER MAJESTY THE QUEEN RESPONDENT — Prosecutrix JUDGMENT [ 1 ] Leave to appeal from a

summary-conviction appeal in the Superior Court may be granted under

section 839 of the Criminal Code [1] only on a question of law and only sparingly. Such a question must be sufficiently important and involve exceptional circumstances that compel the intervention of the court. [2] These factors were further developed in R.R. : [27] The requirement that the applicant obtain leave to appeal in s. 839 provides the mechanism whereby this court can control its

summary conviction appeal docket. Access to this court for a second appeal should be limited to those cases in which the applicant can demonstrate some exceptional circumstance justifying a further appeal. (…) [37] In

summary, leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify all cases in which leave should be granted. There are, however, two key variables — the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance to the administration of justice beyond the particular case, then cleave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable.

On the other hand, where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty. [3] [ 2 ] These principles have been adopted by appellate courts across Canada and they have been affirmed in this court with such frequency and consistency that a lengthy list of citations would be pointless. [ 3 ] The applicant seeks leave to appeal the decision of the Superior Court to dismiss the

summary-conviction appeal after successive failures to meet deadlines and undertakings for the perfection of that appeal. Counsel for the petitioner made several undertakings to the court and to opposing colleagues. The respondent eventually filed a motion to dismiss the appeal under Rule 36 of the Rules of Procedure of the Superior Court, Criminal Division . The motion was presentable on 14 December 2018. In the hours immediately preceding the hearing counsel for the petitioner transmitted the brief but it was not filed in the court.

Counsel for the respondent expressed his insistence that the motion to dismiss proceed. The court heard both counsel and granted the motion to dismiss without considering the merits of the appeal. [ 4 ] In giving judgment the court noted six failures to produce the petitioner’s brief before the motion to dismiss was filed.

The core of the court’s oral reasons are reproduced at page 11 of the transcript: (…) considérant que même si l’appelant/intimé a déposé ce jour son mémoire, uniquement après la menace de rejet de son appel, le Tribunal accueille la requête de la requérante/poursuivante, et considérant que le Tribunal estime que les échéanciers doivent être respectés et ne pas être pris à la légère; considérant qu’à moins de motifs explicatifs raisonnable – ce que le Tribunal n’a pas vu, ou que l’appelant n’a pas réussi à démontrer – une

partie qui porte une décision en appel doit se conformer aux délais prescrits par l’échéancier qui est fixé, le Tribunal accueille la requête de la requérante/poursuivante et rejette l’appel pour les motifs basés par la requérante dans sa requête. [ 5 ] The central feature of these conclusions is the absence of a satisfactory explanation for the failure to produce the brief on time. This is a question of fact. [ 6 ] Not one of the grounds advanced on the

summary-conviction appeal could be characterised as a question of law. They are

characterised by the petitioner in his notice of appeal to the

summary-conviction appeal court as mixed questions of law and fact. [ 7 ] The decision to dismiss the appeal lies within the discretion of the judge in the

summary-conviction appeal court. Nothing in the present motion concerning the exercise of that discretion could be characterised as a question of law and nothing in this motion could meet the additional criteria enumerated above that require compelling reasons for the court of appeal to intervene. In the absence of a question of law, the motion for leave to appeal must be dismissed. [ 8 ] As noted, counsel for the petitioner made several undertakings to the court and to opposing counsel concerning the perfection of the appeal in the

summary-conviction appeal court. But these undertakings were not fulfilled on time. The judge was entirely justified exercise her discretion in dismissing the appeal as she did. It is important to repeat that the judge did so due to the absence of a satisfactory explanation for these failures. This is a question of fact, or at best a mixed question of fact and law, but it cannot meet the requirement in

section 839 of the Criminal Code that leave to appeal to the Court of Appeal be granted on “a question of law alone.” Quite apart from Rule 36, the discretion of the judge to dismiss the appeal is reinforced by the discretion to dismiss recognised in

section 825(

b) of the Code where an appeal does not proceed in a timely manner. [ 9 ] The result in this matter is unfortunate because the petitioner loses the opportunity to present his appeal from the finding of guilt. This is not due to a lack of diligence on his part. [ 10 ] There is a second motion to suspend the execution of judgment. This motion could be granted only if the motion for leave were granted. As the first motion will be dismissed, the second motion must also be dismissed.

FOR THESE REASONS, THE UNDERSIGNED : [ 11 ] DISMISSES the motion seeking leave to appeal; [ 12 ] DISMISSES the motion to suspend execution of judgment; [ 13 ] ORDERS the execution of judgment not later than noon on Monday, 25 March 2019. PATRICK HEALY, J.A. Mtre Christian Gauthier Étude légale Mtre Annik Magri For applicant Mtre Alex Dalpé D.P.P.C. – Ville de Montréal For respondent Date of hearing: 8 March 2019