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Provincial Offences Act - Appeals. R. v. Omiwole
In R. v. Omiwole (Ont CA, 2025) the Ontario Court of Appeal considers the test for leave to appeal under POA s.131 ['Appeal to Court of Appeal']:[8] The principles for granting leave to appeal under s. 131 of the POA are well known. They establish that a very high threshold must be met before leave will be granted. There must be a question of law alone, the resolution of which may have an impact on the jurisprudence in a way that is of interest to the public at large, and that resolution must be essential in the public interest. However, where there has been a failure of natural justice, in the sense that the defendant has not been heard, leave may be granted. See, for example, R. v. Scantlebury, 2016 ONCA 453, 350 O.A.C. 174, at paras. 12- 13. . R. v. Consolidated Homes Ltd.
In R. v. Consolidated Homes Ltd. (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown leave to appeal application (which would be the second appeal), here against an earlier appeal acquittal against a conviction under the Endangered Species Act.
Here the court considers the leave for appeal test under POA s.131(1):B. The test for leave
[12] Section 131(1) of the POA allows second-level appeals to this court “with leave of a judge of the Court of Appeal on special grounds, upon any question of law alone or as to sentence.” Section 131(2) provides further that: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. [13] Section 131 applies in cases prosecuted by information under Part III of the POA, while s. 139 provides a nearly identically worded right of appeal, with leave, in cases prosecuted by certificate under Parts I or II. Since the tests for granting leave in appeals from conviction or acquittals under ss. 131 and 139 are identical, leave decisions under one provision are “equally applicable” to leave decisions under the other: R. v. Hicks, 2014 ONCA 756, at para. 21.
(1) “Question of law alone”
[14] The first requirement of s. 131 is that the proposed appeal involve “a question of law alone”. This is the same language used in s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, which governs Crown appeals from acquittals in indictable criminal matters.
[15] As Doherty J.A. noted in R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89, at para. 48, “[i]t can be difficult to distinguish between errors of law alone and errors of mixed fact and law. At times, the distinction seems purely semantic”. In R. v. Ul-Rashid, 2013 ONCA 782, 309 C.C.C. (3d) 468, at para. 20, Weiler J.A. explained:[A] holistic approach should be taken to the leave requirements in POA matters. What constitutes a question of law must be considered concurrently with the requirement that it be essential that the matter be resolved in the public interest or for the due administration of justice. The two parts of the test for leave under s. 139 of the POA are inextricably linked: questions that raise issues requiring resolution in the public interest or for the due administration of justice can properly be viewed as raising questions of law. [16] Some guidance on the meaning of “question of law alone” can be found in the case law dealing with jurisdictional limits in criminal appeals. In R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 24-32, Cromwell J. explained that there are at least four established situations “when the trial judge’s alleged shortcomings in assessing the evidence constitute an error of law giving rise to a Crown appeal of an acquittal”, namely:i) When the trial judge makes a finding of fact for which there is no evidence;
ii) When the trial judge fails to give proper legal effect to findings of fact or to undisputed facts;
iii) When the trial judge assesses evidence based on a wrong legal principle; and
iv) When the trial judge fails to consider all of the evidence on the ultimate issue of guilt or innocence. [17] In R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 19-27, the Supreme Court of Canada held further that when a criminal conviction is set aside by an appellate court on the basis that it is “unreasonable or cannot be supported by the evidence” pursuant to s. 686(1)(a)(i) of the Criminal Code, this decision is deemed to be a “question of law” for the purpose of determining whether the Crown has a further right of appeal. As Arbour J. explained at paras. 22-23, this rule is based on policy considerations, even though the question of whether a verdict is properly supported by the evidence will very often depend on the particular facts of that case:The sole purpose of the exercise here, in identifying the reasonableness of a verdict as a question of fact, law or both, is to determine access to appellate review. One can plausibly maintain, on close scrutiny of any decision under review, that the conclusion that a verdict was unreasonable was reached sometimes mostly as a matter of law, in other cases predominantly as a matter of factual assessment. But when that exercise is undertaken as a jurisdictional threshold exercise, little is gained by embarking on such a case-by-case analysis. Rather, it is vastly preferable to look at the overall nature of these kinds of decisions, and of their implications. Ideally, threshold jurisdictional issues should be as straightforward and free of ambiguity as possible. Otherwise, as these and many similar cases illustrate, courts spend an inordinate amount of time and effort attempting to ascertain their jurisdiction, while their resources would be better employed dealing with the issues on their merits.
Whether a conviction can be said to be unreasonable, or not supported by the evidence, imports in every case the application of a legal standard. The process by which this standard is applied inevitably entails a review of the facts of the case. I will say more about the review process below. As a jurisdictional issue of appellate access, the application of that legal standard is enough to make the question a question of law. It is of no import to suggest that it is not a “pure question of law”, or that it is not a “question of law alone”. (2) “Special grounds” and the requirement that granting leave be “essential in the public interest or for the due administration of justice”
[18] As noted above, even when a proposed POA appeal to this court presents a question of law alone, the party seeking leave must also establish “special grounds” and show that it is “essential in the public interest or for the due administration of justice that leave be granted”: see ss. 131(1) and (2); see also ss. 139(1) and (2). The focus is not on whether the subject-matter of the case is of interest or importance to the public, but whether the proposed appeal raises significant legal issues that should be resolved by this court: see R. v. Rankin, 2007 ONCA 127, 216 C.C.C. (3d) 481, at para. 30; Ontario (Ministry of the Environment and Climate Change) v. Sunrise Propane Energy Group Inc., 2018 ONCA 461, 17 C.E.L.R. (4th) 174, at para. 16.
[19] This court’s jurisprudence holds that first-level POA appeal judgments “are intended to be final”, and that leave to appeal to this court should be granted “only in exceptional cases raising issues of broad public importance”: Rankin, at para. 26; Sunrise Propane Energy Group Inc., at para. 15. The threshold for granting leave is “very high”: Antorisa Investments Ltd. v. Vaughan (City), 2012 ONCA 586, 1 M.P.L.R. (5th) 240, at para. 8; Hicks, at para. 21. It is not enough for a party seeking leave to demonstrate that it has a strong argument that the decision below was wrong. As Carthy J.A. explained in R. v. Zakarow (1990), 1990 CanLII 6991 (ON CA), 74 O.R. (2d) 621 (C.A.), at pp. 625-26:There must be special grounds on a question of law and it must be essential in the public interest or for the due administration of justice that leave be granted. No matter how wrong the judgment under appeal may be, these other criteria must be met.
Similarly, in Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13, 328 D.L.R. (4th) 343, at para. 35, Watt J.A. explained:Demonstration of error in the judgment below, without more, does not satiate the demands of ss. 131(1) and (2). The other criteria of the subsections must be met. The error must involve a question of law alone, not a question of fact or of mixed fact and law. The resolution of the questions of law in the circumstances must be essential in the public interest (not merely the interest of the litigants), or for the due administration of justice. [Citations omitted; emphasis in original.] . Ontario (Labour) v. Bondfield Construction Company Limited
In Ontario (Labour) v. Bondfield Construction Company Limited (Ont CA, 2023) the Court of Appeal considered a s.131 POA leave to appeal motion. Here the court comments on POA costs in a leave to appeal:[30] In its factum, J.M.R. had requested costs of this motion. During argument, counsel for J.M.R. conceded that the costs would not normally be awarded on a motion for leave under the POA: R. v. Rankin, (2007) 2007 ONCA 426 (CanLII), 86 O.R. (3d) 399 (C.A.) at paras. 3-5; R. v. Felderhof, (2003) 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481 (C.A.), at para. 100. I see no basis for awarding costs in this case. . Ontario (Labour) v. Bondfield Construction Company Limited
In Ontario (Labour) v. Bondfield Construction Company Limited (Ont CA, 2023) the Court of Appeal considered a s.131 POA leave to appeal motion:Test under s. 131 of the POA
[10] Sections 131(1) and (2) of the POA set out the test for determining whether leave to appeal from an appeal judgment of the Ontario Court of Justice to the Court of Appeal should be granted:131(1) A defendant or the prosecutor or the Attorney General by way of intervention may appeal from the judgment of the court to the Court of Appeal, with leave of a judge of the Court of Appeal on special grounds, upon any question of law alone or as to sentence.
(2) 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. [11] This is a high bar and leave is granted sparingly. No matter how wrong the appeal judgment may be, this court must be satisfied that both criteria are met: R. v. Zakarow, (1990) 1990 CanLII 6991 (ON CA), 74 O.R. (2d) 621 (C.A.), at pp. 625-26; Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13, 328 D.L.R. (4th) 343, at paras. 33-36; R. v. Scantlebury, 2016 ONCA 453, 350 O.A.C. 174, at para. 12.
[12] As this court stated in R. v. Rankin, 2007 ONCA 127, 221 O.A.C. 184, at para. 30, “[l]eave under s. 131 is to be granted only if the appeal raises questions of law on which this court’s guidance is essential in the public interest or for the due administration of justice.” . Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town)
In Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town) (Ont CA, 2021) the Court of Appeal considered some intervention motions made in the course of POA appeals originally brought under the Endangered Species Act:[10] In determining motions for leave to intervene as a friend of the court pursuant to Rule 13.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court will generally consider “the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (3d) 164 (C.A.), at p. 167; Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 10; Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at para. 8.
Nature of the Case and the Issues which Arise
[11] Where a criminal appeal raises no constitutional issue, or where the liberty of the subject is involved, leave to intervene is granted sparingly: see e.g., Gajewski (Re), 2020 ONCA 4, 149 O.R. (3d) 145, at para. 27; R. v. Roks, 2010 ONCA 182, 275 O.A.C. 146, at para. 11. The appellant cites this proposition to argue against granting leave. However, this appeal concerns a conviction under the POA, a quasi-criminal matter. Importantly, the appellant is not an individual facing a criminal conviction and its liberty is not at stake. The appeal does raise issues of significance to the appellant but the provincial offence at issue is, in fact, a wrong against the community as a whole, engaging a legal issue of a very public nature that is of interest to a wide segment of the community: see Gajewski (Re), at para. 34.
[12] In my view, the nature of the case and the issues which arise from the appeal overwhelmingly favour the proposed interveners on this motion. The proposed interveners seek to intervene on the interpretation of s. 10(1) of the ESA, which is a question of law. This provision has broad application and its interpretation may have profound implications for species at risk in Ontario, as well as the large number of people whose behaviour is subject to the statute. I agree with the proposed interveners that this court has recognized this issue is of public importance and transcends the dispute between the immediate parties by granting leave to appeal. Moreover, this will also be this court’s first opportunity to consider what “damage” means in s. 10(1) of the ESA, making informed contributions on the subject even more valuable. . R. v. Pahal
In R. v. Pahal (Ont CA, 2023) the Court of Appeal would apply an appellate information-correcting provision [POA s.117(1)(a.1)], here to a by-law traffic charge:[50] First, he points out that the charges in the Information refer only to the 2016 Waterloo Traffic By-law, they do not refer to the 2018 Amending By-law. He submits it was not therefore open to the Justice of the Peace, nor is it open to this court, to find him guilty of offences not charged and of which he did not have notice, the latter being a requirement of s. 11(c) of the Charter.
[51] I would not accept this argument. Immediately after the Agreed Statement of Facts was filed as an exhibit at trial and before any witnesses were called, the municipal prosecutor asked that certified copies of the 2016 Waterloo Traffic By-law and 2018 Amending By-law be filed as exhibits. The paralegal representing the respondent objected on the basis that the Information did not refer to the 2018 Amending By-law or state that the 2016 Waterloo Traffic By-law had been amended. The Justice of the Peace permitted certified copies of both by-laws to be filed. The paralegal representing the respondent did not ask at that time that the Information be quashed or request any other remedy, such as an adjournment. Nor is there any indication on the record before us that the paralegal sought any remedy later in the proceedings[6].
[52] In the circumstances, if necessary, I would order that both charges in the Information be amended under s. 117(1)(a.1) of the Provincial Offences Act, R.S.O. 1990, c. P.33[7] so that the 2016 Waterloo Traffic By-law is referred to as “as amended”. Even assuming it was necessary that the words “as amended” should have been set out in the Information, given that certified copies of both relevant by-laws were filed at trial and the respondent did not request an adjournment, I see no basis for finding that he was in any way prejudiced by the omission of the words “as amended”.
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