Law Times

March 18, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | MARCH 18, 2019 3 BY JULIUS MELNITZER For Law Times THE jurisdictional basis for summary conviction sentence appeals in Ontario was front and centre in a recent ruling by the Ontario Court of Appeal. Following the court's deci- sion last week in R. v. Monte- sano, criminal lawyers say those filing summary conviction sen- tence appeals would be well ad- vised to heed the court's advice should they have any desire to have a matter referred back to the trial judge, following a suc- cessful summary conviction sentencing appeal. "In future cases, it may be helpful to include in the notice of appeal a brief reference to the jurisdictional basis for the appeal so that the scope of ap- pellate relief available is readily ascertainable," the court wrote. "We consider such a course a matter of good practice, not a condition precedent to a valid notice of appeal." The issue arose after Clau- dio Montesano, represented in the Court of Appeal by Nicolas Rouleau of Nicolas M. Rouleau PC in Toronto and Daniel Ci- arabellini, a criminal lawyer in Toronto, pleaded guilty in 2016 to a charge of assaulting his wife. Montesano asked Justice Bruce Pugsley of the Ontario Court of Justice, who presided over the summary conviction proceeding, for a discharge. Pugsley refused, citing a hand- written notation on Montesa- no's criminal record indicating that he had in 2011 obtained an absolute discharge for a previous assault against his wife. Instead, Pugsley imposed a suspended sentence with a 12-month pro- bationary period. Montesano appealed to the Ontario Superior Court of Jus- tice. There, in December 2017, Justice Bonnie Wein, in her ca- pacity as a judge of the Summa- ry Convictions Appeal Court, concluded that Pugsley had erred in considering the earlier discharge. It was inadmissible, she ruled, because it had been expunged from Montesano's record pursuant to the Criminal Records Act. Wein then remit- ted the matter back to the OCJ for sentencing. The Crown sought and ob- tained leave to appeal Wein's decision on two grounds: first, that Wein had no jurisdiction to remit the matter to the OCJ for a new sentencing hearing; and second, that her interpretation of the CRA was too broad. The jurisdictional issue — not considered in any previous jurisprudence — arises because there are two avenues for ap- peals in summary conviction proceedings. The first is found in s. 813(a)(ii) of the Criminal Code. This section specifically provides for an "appeal against a sentence" but limits the appeal judge to dismissing the appeal or varying the sentence. But s. 830(1) provides another avenue of appeal from summary conviction proceedings "on grounds of legal and jurisdic- tional error" where the parties agree to hear the appeal based on the transcript or an agreed statement of facts. In this case, s. 829 specifically allows the ap- peal judge "to remit the matter to the summary conviction court." The difficulty is that s. 830(1), which allows appeals from a "conviction," a "judgment," a "verdict of acquittal," a "verdict of not criminally responsible by reason of mental disorder," a "verdict of unfit to stand trial" and "other final order or deter- mination" does not specifically include "sentence" as a matter subject to appeal. Although Montesano's no- tice of appeal did not specify the right of appeal invoked, it did state that the appeal was one against "sentence" and that the relief sought was a variation of the sentence imposed at trial. Consequently, the court suggested that, going forward, counsel ought to reference the jurisdictional basis for their summary conviction sentence appeals "so that the scope of ap- pellate relief available is readily ascertainable." Arguably, that leaves open the question of whether s. 830 (1) provides a jurisdictional basis for sentence appeals. "What the court really said in Montesano was, 'Nice try, fellows, but this really is a sen- tence appeal and we're going to assume that you proceeded by the usual route, which means there's no jurisdiction for a new sentencing hearing," says crim- inal lawyer Daniel Brodsky of Toronto. "In future, however, if you want us to refer a sentencing back to the summary conviction court, let us know in the notice of appeal that that's the route you're going and we'll give you the opportunity to convince us that we have the power to do that and should do it on the facts of your case." On the evidentiary issue, the court ruled that evidence of the earlier discharge was inadmis- sible, but that "the Crown was entitled to put before the court the factual reality that the inci- dent on which there has been a plea is not the first incident." That ruling, says Frank Ad- dario, a Toronto criminal law- yer, is consistent with the dis- charge legislation. "The existence of a prior inci- dent involving domestic abuse is relevant to whether a subsequent discharge is in the public inter- est," he says. LT Daniel Brodsky says that, in a recent ruling, a court found that there was 'no jurisdiction for a new sentencing hearing.' NEWS OCA rethinks sentencing appeals One firm. 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