R v McCorriston, 2018 MBCA 76

Citation: City of Winnipeg v Innocent Vision Inc, Date: 20180813 2018 MBCA 76 Docket: AR18-30-09058 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) R. M. McElhoes CITY OF WINNIPEG ) for the Applicant ) (Respondent) Respondent ) M. K. Muller ) for the Respondent - and - ) ) Chambers motion heard: innocent vision inc. ) August 2 , 2018 ) (Accused) (Appellant) Applicant ) Decision pronounced: ) August 13 , 2018 mainella JA Introduction [ 1 ] The accused moves for leave to appeal the dismissal of its

summary conviction appeal by a judge of the Court of Queen’s Bench, for want of prosecution or abandonment, to this Court. Background [ 2 ] On October 25, 2017, the accused was convicted of two counts of allowing garbage to accumulate on its property contrary to City of Winnipeg, by-law No 1/2008, Neighbourhood Liveability By-Law (1 November 2008), s 6(1). The total fine imposed was $3,700. On November 30, 2017, the accused filed a

summary conviction appeal. [ 3 ] Given the date of the offences, the accused’s right of appeal was governed by The

Summary Convictions Act , CCSM c S230 (the former Act ), since repealed by The Provincial Offences Act and Municipal By-Law Enforcement Act , SM 2013, c 47, Sch A, s 145, and replaced with The Provincial Offences Act , CCSM c P160 ( the new Act ). The former Act incorporated by reference the

summary conviction appeal proceedings set out in

Part XXVII of the Criminal Code (the Code ). The new Act has its own unique appeal proceedings which are more limited than those set out in the Code . [ 4 ] On February 16, 2018, Mr. Ackerman, the president and sole shareholder of the accused, appeared at the assignment list of the

summary conviction appeal court and was directed by the presiding judge to file the accused’s factum by March 20, 2018 and return to court at 9:00 a.m. on April 13, 2018. [ 5 ] No factum was filed and no explanation for the failure to file was provided to the respondent before the April 13, 2018 appearance. When the

summary conviction appeal assignment court commenced at 9:00 a.m. on April 13, 2018, Mr. Ackerman was not present. He was paged through the courthouse intercom system and the matter was stood down until 9:15 a.m. At 9:17 a.m., the matter was recalled, Mr. Ackerman was not present and the judge dismissed the appeal. [ 6 ] Mr. Ackerman attended to court at 9:28 a.m. The judge inquired as to why Mr. Ackerman was late for court and why he had not perfected his appeal in the required time. Mr.

Ackerman said that his sister’s ex-husband had died the week before and that he was busy with two other court cases against the City of Winnipeg related to garbage issues. The judge stated that, “under those circumstances, I am not going to change my decision.” [ 7 ] The accused argues that it is in the interests of justice to grant leave to appeal. It says its

summary conviction appeal has merit as Mr. Ackerman had displayed due diligence to address the garbage problem once he became aware of it. It says that, although the filing deadline was not met, the remedy of dismissing the appeal was unjust given Mr. Ackerman is not legally trained and there is little in the way of prejudice to the respondent. Discussion and Conclusion [ 8 ] The criteria for leave to appeal a

summary conviction matter to the Court of Appeal pursuant to section 839(1) of the Code are well kn own and were summarized by Steel JA in R v McCorriston (GJ) , 2010 MBCA 3 a s follows (at para 16):

(1) Any ground of appeal must involve a question of law alone.

(2) Even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance.

(3) The arguable case must be of sufficient importance to merit the attention of the full court. Since the case has already been reviewed by a judge of the Court of Queen’s Bench, which is the primary appellate court to review such matters, there should be a compelling reason to allow this second level of appeal. One compelling reason would be that the issue raises matters that are of significance to the administration of justice or the development of the law beyond this case. [ 9 ]

Section 825 (

b) of the Code provides the

summary conviction appeal court with the power to dismiss an appeal for want of prosecution or abandonment: Dismissal for failure to appear or want of prosecution 825 The appeal court may, on proof that notice of an appeal has been given and that . . . (

b) the appeal has not been proceeded with or has been abandoned, order that the appeal be dismissed. [ 10 ] Rule 20 .18 of the Criminal Proceedings Rules of the Manitoba Court of Queen’s Bench , SI/2016-34 (the QB Criminal Rules ), confirms that a judge may dismiss a

summary conviction appeal where the appellant has not perfected his, her or its appeal: Failure to File Appellant 20.18 A judge may dismiss an appeal if an appellant who is required to file a factum or book of authorities has not done so within the time limit set by the judge presiding at the

summary conviction appeal assignment court and has not sought an extension of time to file those documents. [ 11 ] The decision to dismiss a

summary conviction appeal for want of prosecution or abandonment is an exercise of discretion (see R v Clarke , 1981 ABCA 185 at paras 4-5 ). Absent a misapprehension of a legal principle or the evidence, the dismissal of a

summary conviction appeal pursuant to

section 825 (

b) of the Code does not raise a question of law alone (see R v Wood , 1993 CarswellAlta 518 at para 3 (CA) ; and R v Weber , 2005 ABCA 358 at para 19 ). [ 12 ] Not every departure from the QB Criminal Rules will automatically lead to the appellant losing the right to have his, her or its

summary conviction appeal decided on its merits, particularly where the transgression is minor, there is a satisfactory explanation for the non-compliance, there is merit to the appeal or there is limited prejudice to the public interest in the timely finalization of criminal proceedings (see R v Sopko , 1994 CarswellMan 118 at para 19 (CA) ). [ 13 ] Given the circumstances here, I have not been persuaded that there was a misdirection by the judge in the exercise of his discretion that amounts to a question of law alone. The QB Criminal Rules regarding

summary conviction appeals are designed to strike a balance between the interests of reviewability and finality. Litigants are expected to be diligent without being reminded. [ 14 ] It is undisputed that the accused did not comply with the QB Criminal Rules and no proactive steps were taken on its behalf to address the non-compliance. It was reasonably open to the judge to find the explanation provided by Mr. Ackerman to be unsatisfactory. The filing deadline had passed well before the death in the family.

Prioritizing other court cases where there are no deadlines is not a reasonable explanation. [ 15 ] I have read the transcript of the by-law trial as it was filed on the motion for leave to appeal. The judicial justice of the peace who heard the trial fairly reviewed the defence of due diligence with Mr. Ackerman and gave him an opportunity to establish the defence. The judicial justice of the peace noted in his reasons that no evidence was put forward by Mr.

Ackerman of “steps that he took to rectify” the garbage accumulation or “steps to prevent it from happening.” Nothing was put before me on the motion for leave to appeal that would cast doubt on that finding, let alone elevate the circumstances of this case to one of general application and importance to the administration of justice, such as to merit leave to appeal to this Court being granted (see R v Hartt , 2009 ONCA 500 at para 4 ). Disposition [ 16 ] In the result, the motion for leave to appeal is dismissed. There will be no order as to costs (see section 839(3) of the Code ).

JA