R v Jorowski, 2020 MBCA 43

Citation: R v Jorowski, 2020 MBCA 43 Date: 20200427 Docket: AR19-30-09390 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : her majesty the queen ) M. Buchart ) for the Applicant ) (Respondent) Respondent ) D. C.

Sahulka ) for the Respondent - and - ) ) Chambers motion heard: catherine jorowski ) April 2, 2020 ) ) Decision pronounced: (Accused) (Appellant) Applicant ) April 27, 2020 michel A. monnin JA [ 1 ] The accused seeks leave to appeal two orders made by two judges of the Court of Queen’s Bench in the same proceeding. [ 2 ] In a notice of motion filed on December 16, 2019, the accused sets out the relief she is seeking in these words: [L]eave to appeal to a full panel of the Court of Appeal from the judgment in court file no. CR18-01-36601 of the Honourable Mr.

Justice Champagne of the Court of Queen’s Bench pronounced on November 15, 2019, including the order of the Honourable Madam Justice Bond of the Court of Queen’s Bench made on July 18, 2019, deciding the applicant’s motion brought in that same proceeding; . . . [ 3 ] The order made by Champagne J was one in which he dismissed the accused’s appeal for her failing to advance the matter expeditiously as well as failing to request that the guilty plea she entered be set aside.

The order made by Bond J was one denying the accused’s request that she be represented on her appeal by a person who was not a lawyer. [ 4 ] In order to better understand how this application came before me and how I will dispose of it, I will set out how this matter progressed before in the Provincial Court, as well as the Court of Queen’s Bench. [ 5 ] The accused was issued a provincial offence notice (the PON) for speeding contrary to section 95(1) of The Highway Traffic Act , CCSM c H60 , on June 4, 2016.

The PON was issued as a result of photo-radar enforcement. [ 6 ] A hearing date was set for November 30, 2017. However, on October 30, 2017, the accused filed a notice of application seeking a stay of proceedings alleging that her rights under

section 11(

b) of the Canadian Charter of Rights and Freedoms had been breached because of the delay in her coming to trial. That application was denied on December 19, 2017. [ 7 ] On December 28, 2017, the accused entered a guilty plea to the PON and was assessed a fine which was paid. [ 8 ] On January 17, 2018, the accused filed a notice of appeal in the Court of Queen’s Bench seeking to set aside her conviction, alleging error in the denial of her delay application. [ 9 ] Nothing further transpired until October 19, 2018, when the matter appeared on what I conclude was an assignment docket in the Court of Queen’s Bench.

At this time, the accused informed the Court, for the first time since filing her notice seeking leave to appeal, that she wished to be represented in her appeal by a non-lawyer. The Crown objected to this request and the matter was adjourned for a hearing of the motion. On July18, 2019, Bond J delivered her reasons, denying the motion. [ 10 ] Following Bond J’s decision, the matter was adjourned to September 13, 2019, before Champagne J. At this time, the accused was represented by counsel, as she had been when her motion for representation was argued. The matter was adjourned to November 15, 2019.

[ 11 ] On that date, counsel appeared on the accused’s behalf, but she was not in attendance. Following is a transcript of the exchange that took place between the accused’s counsel and the Court: MR. NEWMAN: This is a situation where I am counsel of record for [the accused]. I’ve had conversation with Ms. Malaviya about how best to deal with this matter. I sought instructions over the past week from [the accused]. Her request, which came to me last night was that she is asking for an adjournment to decide what she wants to do with this appeal.

I can tell you that this has been put over since, I believe my first appearance two months ago. We’ve had those discussions about this case specifically, there’s obviously similar to the Eisbrenner matter, a number of transcripts that I had to review. THE COURT: I’ve reviewed it, this is now getting very dated and I think the offence was two years ago or approximately -- MR. NEWMAN: Yes. THE COURT: -- two years ago. And again, the offence is a -- it’s a simple speeding ticket. MR. NEWMAN: And I appreciate all of that.

Obviously as -- as subsequent counsel in respect to this matter, I had pressed [the accused] with respect to that saying I’m not entirely convinced that if you’re asking for adjournment at this stage for instructions that you’re going to succeed. Having said that, her instructions to me are to ask this Court for an adjournment in order to seek to decide -- THE COURT: Formalize a position. MR. NEWMAN: -- final instructions to me on that front, yes. THE COURT: Ms. Malaviya, do you have a position or a submission on the request for the adjournment? Submissions by Ms. Malaviya MS.

MALAVIYA: We are opposed to the adjournment. As Your Lordship has noted, this matter is extremely dated, it’s been on this list any -- a number of times. The issue that needed to initially have been determined was whether or not as Your Lordship’s aware, Mr. (INDISCERNIBLE) would be allowed to represent [the accused]. That decision was made some number of months ago. I know that Mr. Newman wasn’t immediately retained but certainly some discussions happened early on and as he indicated, we had more formal discussions at the September appearance. So she’s has two months to think about it.

And as -- this is a straightforward matter in our respectful view and I know that’s not to be -- necessarily to be decided today but there is no merit to it. There is no area of law that’s been identified as a result of which our position will be that leave should be denied. And there really isn’t a basis and -- a legitimate one in our respectful view to grant a further adjournment at this point. Ruling THE COURT: Thank you. This is number 9 on the list, [the accused]. Mr. Newman is here representing her and I believe he has represented her for the last couple of months as he indicated.

His request today on her behalf is for an adjournment of the matter as [the accused] wants further time to consider what course of action she might take. I’ve considered the matter carefully. I’ve reviewed the file in advance of Court this morning. The actual speeding ticket goes back to December the 28th of 2017. The matter has wound its way through the court system for a number of different reasons, most of them not related to whether or not [the accused] was speeding.

Having said that, [the accused] has had close to two years to assess this file and to consider the matter and certainly the last two months under the assistance of Mr. Newman as her lawyer she’s had the opportunity to

consider her position. A further adjournment at this time is not going to be granted and the application for the adjournment is denied. Submissions by Mr. Newman MR. NEWMAN: I know one of the challenges with respect to this matter is that in the Provincial Court there was a hearing of a motion in relation to a delay on this matter. I understand that procedurally what happened is after the delay motion was denied, [the accused] then voluntarily entered a guilty plea in Provincial Court receiving a fine of $150 inclusive of costs.

Whether or not that now necessitates an application in front of this Court in order to withdraw the guilty plea in order for the appeal to proceed is a -- perhaps a threshold issue for you to decide. If you make the decision that this is simply a consequence of the loss of the defence, which was the delay motion and that although procedurally what should have happened is a finding of guilty by a judge, then you may say, I’m not in agreement with the Crown that I need to withdraw this guilty plea that is simply a consequence of the denial of the delay application.

I understand that the Crown will likely say to you she entered a guilty plea, she can’t appeal unless she withdraws the guilty plea. So I think that needs to be dealt with now as a threshold issue. My position to you would be that she does not need to seek to withdraw the guilty plea, that is merely a technicality that arose out of the denial of the delay motion. And as such, that I shouldn’t necessarily need to apply to you to have the guilty plea withdrawn. Obviously if you disagree with that position then I think the appeal will be at an end. THE COURT: I think the appeal is at an end.

I don’t think I need to hear from the Crown, Mr. Newman. [The accused] entered a guilty plea and that was free and voluntarily done, I think it was before a Provincial Court judge -- MR.NEWMAN: Yes. THE COURT: -- the plea inquiry would have taken place. There’s no further grounds for an appeal. MR. NEWMAN: Thank you very much for that. THE COURT: Thank you. [ 12 ] The test that an applicant must meet in order to be successful on a leave application is well established.

It was restated in City of Winnipeg v Innocent Vision Inc , 2018 MBCA 76 ( Innocent Vision ) as follows (at para 8): The criteria for leave to appeal a

summary conviction matter to the Court of Appeal pursuant to section 839(1) of the Code [ Criminal Code ] are well known and were summarized by Steel JA in R v McCorriston (GJ) , 2010 MBCA 3 as 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. [ 13 ] At the outset of the hearing, I pointed out to the accused’s counsel that the sole focus of the brief he had filed in support of her application, was on the errors she alleges were made by Bond J when she dismissed her application to be represented by a non- lawyer.

The brief is silent as to why leave should be granted with respect to Champagne J’s dismissal of her appeal proper and, as well, the brief is silent with respect to the delay decision in the Provincial Court, which was the reason for originally seeking leave to appeal. [ 14 ] In his oral argument, counsel for the accused did not stray from what was set out in the brief.

In other words, he failed to articulate what point of law was to be the subject of the appeal from Champagne J’s decision, that the accused’s case was an arguable one or that it was a case of sufficient importance to merit the attention of the full Court. [ 15 ] The issue of delay, which was raised in the notice of appeal filed in January of 2018, and the issue of representation, are not stand-alone grounds of appeal.

They only arise as potential grounds if Champagne J granted the motion for leave to appeal from the decision of the Provincial Court. [ 16 ] Champagne J’s order was a discretionary one and he exercised it on the basis that the matter was dated, that the accused was not advancing a particularly compelling case with respect to the offence itself and, in my view, more importantly, that the accused had failed to advance the matter diligently. Quite to the contrary, it appears that the accused has attempted to stall the inevitable from the time the PON was issued.

Mainella JA dealt with a similar set of facts in Innocent Vision . He stated the following (at paras 11, 13): 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 ). 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 [ Criminal Proceedings Rules of the Manitoba Court of Queen’s Bench , SI/2016-34 ] 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. [ 17 ] What the Court stated in that case applies to this case. There was no error in law in Champagne J’s dismissal of the accused’s appeal and the exercise of his discretion does not amount to a question of law alone. [ 18 ] Accordingly, the application for leave is denied. JA