COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sears, 2021 ONCA 522

DATE: 20210716

DOCKET: M52559 & M52561

Brown
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Responding Party

and

James
    Sears

Applicant

James Sears, acting in person

Ian McCuaig, assisting the applicant

Michael Bernstein, for the responding
    party

Heard: June 18, 2021 by video conference

ENDORSEMENT

I.

OVERVIEW

[1]

The applicant, James Sears, applies for leave to appeal from the order
    of the Summary Conviction Appeal Judge, Cavanagh J. (the Appeal Judge), and,
    if leave is granted, bail pending appeal.

[2]

On January 24, 2019, the applicant and his co-accused, LeRoy (Lawrence)
    St. Germaine, were found guilty on two counts of willfully promoting hatred
    against identifiable groups  Jews and women  contrary to s. 319(2) of the
Criminal
    Code
. Neither accused testified at trial. The trial judge sentenced the
    applicant to a term of imprisonment of six months on each count, to be served
    consecutively.

[3]

The convictions stemmed from statements written and published by the
    applicant and his co-accused in 22 issues of a newspaper called Your Ward
    News distributed in Toronto and online between January 2015 and June 2018.

[4]

The applicant appealed his conviction and sentence to the Superior Court
    of Justice. The Appeal Judge dismissed the appeal:
R. v. Sears,
2021
    ONSC 4272 (Appeal Reasons).

[5]

The applicant then applied before this court for leave to appeal his
    conviction and sentence pursuant to
Criminal Code
s. 839(1). As well, the
    applicant sought bail pending his appeal.

[6]

The applications came before me on Monday, June 14, 2021. I advised the
    applicant that his application for bail pending appeal would necessarily entail
    a consideration of the merits of his leave to appeal application. Although I
    had jurisdiction to hear his application for leave to appeal
[1]
,
    the practice of this court is for a panel to consider such applications in
    writing:
Criminal Code
, s. 839(1);
Practice
    Direction Concerning Criminal Appeals at the Court of Appeal for Ontario
,
    (March 1, 2017), at 7.3.6. The applicant advised that he wished to proceed
    before a single judge. I adjourned the hearing until Friday, June 18, 2021 to
    permit the applicant to file further materials.

II.

GOVERNING PRINCIPLES

[7]

An appeal to the Court of Appeal in summary conviction matters lies,
    with leave, on any ground that involves a question of law alone:
Criminal
    Code
, s. 839(1). The principles governing such applications for leave
    were summarized by this court in
R. v. Lam
, 2016 ONCA 850, at paras. 9
    and 10, leave to appeal refused, [2017] S.C.C.A. No. 2:

Section 839(1) of the
Criminal
    Code
limits appeals to this court from decisions of summary
    conviction appeal courts to grounds involving questions of law alone and
    requires that leave to appeal be granted by this court. This second level of
    appeal in summary conviction proceedings is an appeal from the decision of the
    summary conviction appeal court, not a second appeal from the decision of the
    trial court. The appeal is limited to questions of law alone and does not extend
    to questions of fact alone or of mixed fact and law, as do appeals to the
    summary conviction appeal court from decisions made at trial. Second appeals in
    summary conviction proceedings are the exception, not the rule:
R. v.
    R.(R)
, 2008 ONCA 497, 90 O.R. (3d) 641, at para. 25.

Two key variables influence the leave
    decision:

 The significance of the legal issue(s)
    raised to the general administration of criminal justice

 The merits of the proposed ground(s) of
    appeal.

Issues that have significance to the administration
    of criminal justice beyond the particular case may warrant leave to appeal,
    provided the grounds are at least arguable, even if not especially strong. And
    leave to appeal may also be granted even if the issues lack general importance,
    provided the merits appear very strong, especially if the conviction is serious
    and an applicant is facing a significant deprivation of his or her
    liberty:
R.(R.)
, at para. 37.

[8]

To those principles I would add two others. First,
    since an appeal pursuant to s. 839(1) is an appeal against the judgment of the
    summary conviction appeal court, not a second appeal of the trial judgment, the
    leave to appeal judge should determine whether the summary conviction appeal
    judge properly applied the principles governing appellate review of the trial
    decision:

John Sopinka, Mark Gelowitz & W.
    David Rankin,
Sopinka and Gelowitz on the Conduct of an Appeal
, 4th
    ed. (Toronto: LexisNexis, 2018), at §3.119;
R. v. McCammon
, 2013 MBCA
    68, 294 Man. R. (2d) 194, at paras. 21, 36;
R. v. C.S.M.
,
2004 NSCA 60, 223 N.S.R. (2d) 311, at
    para. 26.

[9]

Second, the leave to appeal test should be relaxed where the summary
    conviction appeal decision is, in effect, a decision of first instance, for
    example where the appeal court reverses a decision of the trial court by
    substituting an acquittal for a conviction:
R. v. OMeara
, 2012 ONCA
    420, 292 O.A.C. 358, at para. 25. That a new issue arose for the first
    time on the summary conviction appeal is an important contextual factor within
    which to address the
R. v. R.R.
,
    2008 ONCA 497, 90 O.R. (3d) 641,
test:
R. v. MacKay
, 2012
    ONCA 671, 112 O.R. (3d) 561, at paras. 21-22.

III.

THE APPLICANTS GROUNDS OF APPEAL

[10]

The
    applicant acts in person. As a former medical doctor, the applicant is very
    articulate. However, his written materials at times lack focus or sufficient
    legal particularity.

[11]

The
    applicants Notice of Appeal identifies six grounds of appeal, which really
    amount to five as the fourth and sixth grounds essentially relate to the same
    sentencing issue concerning the imposition of consecutive sentences. The
    applicants Notice of Application for Release Pending Appeal and Leave to
    Appeal repeats three of the grounds contained in the Notice of Appeal.

[12]

At
    the hearing on June 14, the applicant was assisted by Mr. Ian McCuaig, who was
    counsel at trial and on appeal for the applicants co-accused. In response to
    my inquiry for a more focused statement of the questions of law alone on which
    the applicant seeks leave, Mr. McCuaig sent the court an email identifying
    three issues that the applicant considers his strongest grounds of appeal. They
    are:

i.

A new issue arising from the conduct of the summary conviction appeal:
    specifically, that the mode of hearing for the appeal was changed from
    in-person to Zoom videoconference over the applicants objections, resulting in
    an unfair process for the appeal hearing;

ii.

The Appeal Judge erred in treating the direct evidence of the
actus reus
 the 22 editions of Your Ward News  as
    direct evidence for proving the
mens rea
of
    the offences. In the applicants view, the newspapers were only circumstantial
    evidence of
mens rea
and the trial judge did
    not satisfy the requirements of
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, when
    he inferred the applicants intent from the contents of the newspapers he
    edited and wrote; and

iii.

The Appeal Judge failed to address the applicants sentence ground of appeal
    that
Criminal Code
s.
718.2(a)(i)
     treating evidence that the offence was motivated by hatred based on race or
    sex as an aggravating factor  did not apply to offences under s. 319(2).

[13]

On
    these applications, I will examine those three grounds of appeal, as well as whether
    the Appeal Judge erred by letting the applicants consecutive sentences stand. Although
the applicant raised a number of other complaints with the
    trial decision during oral argument, these four grounds of appeal were the only
    ones advanced with particularity

in the Notice
    of Appeal and Notice of Application for Release Pending Appeal and Leave to
    Appeal.

IV.

FIRST GROUND: HEARING THE SUMMARY CONVICTION APPEAL BY VIDEOCONFERENCE

The events

[14]

The
    appeal hearing was scheduled to be heard in mid-October 2020. One issue on the
    appeal concerned the applicants allegation of ineffective assistance by trial
    counsel; the trial judge had dismissed an application for a mistrial by reason
    of ineffective assistance. Cross-examination on the affidavits relating to that
    issue would take place at the appeal hearing. The applicant anticipated that
    the hearing would be in-person as that was the default mode of hearing for
    self-represented persons at that point of time in the Toronto Region.

[15]

A
    case management conference was held before Akhtar J. on October 9, 2020, who
    advised that because of increasing COVID-19 infection rates in Toronto the
    appeal would be heard by Zoom videoconference. The applicant objected, arguing
    that he was entitled to see the eyes of the person that is judging me. A discussion
    ensued about whether the applicant had to comply with the general rule to wear
    a mask when entering the courthouse and the ability of supporters of the
    applicant to watch the appeal. At the end of the discussion Akhtar J. ruled:

[L]isten, I apologize for the
    miscommunication. There's clearly been miscommunication [
indiscernible
]
    with the court what, what happened. The means of infection is a game changer.
    They are surging. But I understand that there'd be over a hundred people,
    potentially, coming into the court and they would not be allowed in the
    courtroom. And who knows what they're going to be doing, whether they're going
    to be wearing masks or not, I don't know. Mr. Sears says he won't wear a mask
    because he's exempt. He won't be allowed into the courthouse, I can assure you
    of that, because that's the rule. Mr. Sears, I've done my best to accommodate
    you, and you know that, in every single day here, to try and get this on, on
    the rails and keep it on the rails. But, you have no entitlement to an in-person
    hearing. You don't decide the procedure here. The court does. And based on all
    the circumstances I've heard, including the fact that, as I say, there's going
    to be a large crowd coming, there's going  you're not going to be wearing a
    mask, and the fact that these figures today on the COVID I'm hearing, they are
    going to the Zooms and it is to be a Zoom hearing, and it will be a Zoom
    hearing.

[16]

A
    Zoom hearing of the appeal commenced before the Appeal Judge on October 13,
    2020. The applicant again raised his objection to the appeal proceeding by way
    of Zoom. He also submitted, by way of a key takeaway, that he required
    additional time to prepare properly for a Zoom hearing: he had planned to use
    large display boards at the in-person hearing but now would have to prepare a
    PowerPoint slide presentation. The Appeal Judge granted the applicants request
    for a short adjournment until November 10, 2020.

[17]

On
    November 5, a few days before the scheduled start of the hearing, the Appeal
    Judge heard a motion by the applicant to adjourn the appeal until it could be
    conducted in-person. The applicant argued that the order to proceed by Zoom
    conflicted with information on the courts website stating that
    self-represented persons must appear in person and violated his rights under
    the
Canadian Charter of Rights and Freedoms
.

[18]

The
    Appeal Judge dismissed the motion, ruling in part:

This was raised again before me on October 13,
    2020 when the applicant appeared by audio conference only, and I granted the
    requested adjournment on that occasion on the basis that it would not be fair
    for Mr. Sears to participate in the appeal by audio conference only. And at
    that time Mr. Sears agreed to secure an Internet link in order to proceed by
    Zoom, and new dates were scheduled.

Section 715.23 of the
Criminal Code
provides
    that the court may order an accused to appear by audio conference or video
    conference if the court is of the opinion that it would be appropriate, having
    regard to all the circumstances including the five specified circumstances set
    out in section 715.23.

In this case the order of Justice Akhtar as
    the case management judge is an interlocutory order and I lack jurisdiction to
    hear an appeal from that order.

And so in my view the order of Justice Akhtar
    order is - [indiscernible] the order as stands and I am not allowed to
    interfere with it on this application. If it turns out that there was a problem
    with a reasonable apprehension of bias, as Mr. Sears suggests, or any other
    issue with respect to that interlocutory order, that is properly a matter to be
    addressed through appeal proceedings, if the summary conviction appeal is
    dismissed.

[19]

Although
    the applicant informed the Appeal Judge that he might not appear on the first
    two days of the appeal hearing when the evidence on the ineffective assistance
    of counsel issue was scheduled, in fact he participated throughout the Zoom
    appeal hearing.

Positions of the parties

[20]

In
    his Notice of Application for Release Pending Appeal and Leave to Appeal and
    his Notice of Appeal, the applicant states that the decision of Akhtar J. to
    change the mode of hearing without notice was procedurally unfair because it
    contravened the stated policy of the Court that self-represented appeals would
    be heard in person. The decision prejudiced the applicant as the appeal
    included cross examination as part of an ineffective assistance claim, the
    appeal record was voluminous and the number of issues argued was significant.

[21]

The
    applicant submits that Akhtar J. lost jurisdiction by overruling the stated
    policy of the Court, which was the September 28, 2020 iteration of the
    Superior Court of Justice, Toronto Region, Notice to Profession: Toronto
    Expansion Protocol for Court Hearings During COVID-19 Pandemic. Section A.4
    dealt with matters that will continue to be heard remotely. Subsection (viii)
    concerned Summary Conviction Appeals. In the section dealing with hearings,
    para. 4 stated:

All out of custody appellants required to attend the hearings
    in person are no longer required to do so, unless self-represented. Hearings
    for self-represented appellants/applicants shall be conducted in person, unless
    in custody, in which case they will be conducted remotely.

[22]

In
    his Enhanced Book of Authorities and Unfiltered Oral Argument Notes for Summary
    Conviction Appeal (Unfiltered Argument), which the applicant filed at the
    appeal hearing and on these applications, he describes his objection to a Zoom
    appeal hearing in the following terms:

I am being denied my constitutional right to
    an in-person hearing, and instead, under threat of imprisonment, I have been
    ordered to stare into a video screen at a cluster of pixels being transmitted
    from the Ministry of Truth. I am told that the image formed on the screen
    represents the Arbitrator of Truth who I must refer to as His Honour and who
    may be a real human or an A.I. virtual image.

And the reason I am
    forbidden to meet my arbitrator in person is that the Ministry of Truth is an
    arm of a fascist government which conveniently claims that an invisible virus
    could strike dead the Ministry of Truths aged prosecutor. And my suggestion
    that he alone appear by ZOOM is rejected without a reason.

[23]

The Crown submits that this ground of appeal does not involve a
    question of law alone. Sections 683(2.1) and 822(1) of the
Criminal Code
provide a summary conviction appeal judge with the statutory power to order an
    appeal hearing to proceed by videoconference. Akhtar J.s exercise of that
    statutory power does not give rise to a question of law alone. In any event,
    the applicants particular complaints about the mode of hearing do not have
    significance to the administration of justice beyond the four corners of the
    case.

Analysis

[24]

I
    do not understand the applicant to be taking the position that Akhtar J. lacked
    the power to direct a videoconference appeal hearing. That is understandable
    given that s. 683(2.1) of the
Criminal Code
, which applies to summary
    conviction appeals by reason of s. 822(1), states: In proceedings under this
    section, the court of appeal may order that a party appear by audioconference
    or videoconference, if the technological means is satisfactory to the court.
[2]

[25]

Instead,
    I understand the applicant to be arguing that Akhtar J. improperly exercised
    his power to order a videoconference hearing because the Notice to Profession
    then in force contemplated in-person hearings for summary conviction appeals
    where the appellant was self-represented.

[26]

I
    am not persuaded that a challenge to a procedural decision made within the
    jurisdiction of a summary conviction appeal judge raises a question of law
    alone within the meaning of s. 839(1) of the
Criminal Code
:
R. v. Bresnark
, 2013
    ONCA 110, at para. 7.

[27]

Even
    if the ruling could be characterized as a breach of procedural fairness giving
    rise to a question of law alone, the merits of this ground are very weak for
    two reasons. First, as disclosed in his reasons, Akhtar J. exercised his
    discretion to direct a Zoom hearing at a time of increasing public health
    concerns with the start of the COVID-19 second wave in Ontario, which
    resulted in the cancellation of most in-person attendances. Second, the
    prejudice the applicant sought to avoid  namely, impediments to adducing
viva
    voce
evidence and cross-examining on the issue of ineffective assistance
    of counsel   evidently did not materialize for he has not sought leave to
    appeal the Appeal Judges dismissal of his ineffective assistance of counsel
    claim.

[28]

Nor
    does this ground of appeal involve a matter of significance to the general
    administration of criminal justice: it concerns the exercise of judicial
    discretion on a specific set of facts at a point of time when there were unique
    public health concerns.

[29]

Accordingly,
    treating this ground of appeal as a new issue arising from the appeal hearing,
    I do not see it satisfying even a relaxed application of the
R.R.
principles regarding s. 839(1) leaves to appeal.

V.

SECOND GROUND:  CHALLENGING THE FINDINGS ON THE ELEMENTS OF THE OFFENCES

[30]

The
    22 issues of Your Ward News were marked as Exhibit 2 at trial. The trial judge
    wrote:

After considering the entirety of Exhibit 2, a consistent and
    obvious theme that radiated from this publication was hatred. It was at times
    contradictory in that love was professed to Jews and some women. It was at
    times satirical in that humour and exaggeration were employed to make the point.
    But hatred of Jews and women was overwhelmingly the message.

[31]

The
    trial judge went on to find that: (i) both men intended to publish hate. No
    other intent can be inferred from a complete reading of this newspaper; (ii) there
    exists significant evidence of the promotion of that hatred which undeniably
    illustrates their intent to pass on to others the message of hate towards Jews
    and women; and (iii) both men were fully aware of the unrelenting promotion
    of hate in YWN and intended that hatred to be delivered to others.

[32]

The
    applicant appealed those findings, advancing his objections under several
    discrete grounds of appeal, contending that the trial judge: provided
    insufficient reasons; failed to read the publications as a whole and failed to
    consider the published words in their context; wrongly treated the 22 issues of
    Your Ward News as direct evidence from which he could infer intent; failed to
    consider alternate, non-criminal meanings for the published words; and
    misapprehended the evidence thereby rendering the verdict unreasonable. The
    Appeal Judge rejected the applicants objections.

[33]

On
    these applications, the applicant repeats his challenge to the trial judges
    findings, organizing his complaints under two grounds of appeal contained in
    his Notice of Appeal and Notice of Application for Release Pending Appeal and
    Leave to Appeal: (i) the Appeal Judge improperly applied the test for promotion
    of hatred and erred in concluding that statements made by the applicant
    constituted promotion of hatred; and (ii) the Appeal Judge improperly applied
    the law relating to circumstantial evidence with respect to the issue of
    wilfulness.

[34]

In
    comprehensive reasons, the Appeal Judge dealt with each submission. His reasons
    disclose that he:

i.

correctly identified the applicable scope of appellate review: Appeal
    Reasons, at paras. 15-19; 23; 39-42; 49-50; 55; 57; 61; and 67;

ii.

correctly identified the governing legal principles set out in
R. v. Keegstra
, [1990] 3 S.C.R. 697, and found that the
    trial judge had given himself the direction recommended in that case: Appeal
    Reasons, at paras. 31-33;

iii.

accurately summarized the facts and principles in
Villaroman
, seeing no error in the trial judges finding that the
    contents of the 22 issues of Your Ward News constituted direct evidence of the
    statements made by the applicant from which the intention of the applicant
    could be inferred: Appeal Reasons, at paras. 34-37;

iv.

on the latter point, properly referred to and applied the observation in
Keegstra
, at p. 778, that [t]o determine if
    the promotion of hatred was intended, the trier will usually make an inference
    as to the necessary
mens rea
based
    upon the statements made: Appeal Reasons, at para. 65;

v.

Accurately read the trial judges reasons as stating that he had read
    the entirety of all 22 issues of Your Ward News, had assessed the statements
    made in context, and understood the distinction between hate speech and merely
    offensive or distasteful statements: Appeal Reasons, at paras. 33, 46, 58-61;
    and

vi.

As part of the process of appellate review, reviewed the evidence of the
    issues of Your Ward News marked as Exhibit 2 at trial: Appeal Reasons, at
    paras. 56-61.

[35]

That
    process of appellate review led the Appeal Judge to conclude, at paras. 58 and
    61:

In his reasons, the trial judge found that [w]hen all 22
    issues are examined, one is left with unfocused and absurd opinions,
    contradictory messages, and scattershot ramblings. Except for its stated claims
    of being the worlds largest anti-Marxist publication, YWN exhibits no unifying
    concept. This finding is reasonably supported by the evidence.

Based on my review of the published issues of YWN marked at
    trial as Exhibit 2, I am satisfied that there was ample evidence upon which the
    trial judge could reasonably make these findings and reach these conclusions.
    Statements described by the trial judge in paragraphs 11 and 12 of his reasons
    as communicating hatred, within the meaning of that term in
Keegstra
, against women and Jews are found in the issues
    of YWN received in evidence. The trial judges reasons show why he decided as
    he did, and they show a logical connection between why he decided as he did and
    the evidence that was the basis for his decision. The 22 issues of YWN received
    in evidence provide the basis for public accountability of the trial judges
    reasons. The trial judges reasons, read in the context of the evidence at
    trial and the submissions made by counsel, do not foreclose appellate review.

[36]

The
    applicant has not identified any error of law that tainted the Appeal Judges
    analysis. As I understand his submissions, the applicant simply repeats his
    disagreements with how the trial judge applied the law to the specific facts of
    his case and complains that the Appeal Judge did not apply the law to the facts
    in a different way. This ground of appeal is fact-focused and does not engage a
    question of law alone.

VI.

THIRD GROUND: APPLICATION OF S. 718.2(
a)(i
)
    TO OFFENCES UNDER S. 319(2)

[37]

In
    his reasons for sentence, the trial judge identified, as an aggravating factor,
    that
Criminal Code
s. 718.2(a)(i) provides that where offences are
    motivated by hate, the sentences ought to be increased. That section deems to
    be an aggravating circumstance evidence that the offence was motivated by
    bias, prejudice or hate based on race, national or ethnic origin, language,
    colour, religion, sex, age, mental or physical disability, sexual orientation,
    or gender identity or expression, or on any other similar factor.

[38]

In
    his factum on appeal, the applicant enumerated 10 errors committed by the trial
    judge in his sentence, including misapplying Section 718.2(a)(i), as
    Parliament never meant it to redundify Section 319. In his Unfiltered
    Argument, the applicant contended that since some speakers during the
    Parliamentary debate over the enactment of s. 718.2 gave examples of hate
    motivated crimes causing physical harm to people and the then Minister of
    Justice, Allan Rock, stated the proposed amendment had nothing to do with
    policing or punishing the way people think or the views they hold, it follows
    that s. 718.2(a)(i) applies only to violent crime against an individual. Since
    the applicant did not commit such a crime, he contends that the trial judge
    erred by relying on s. 718.2(a)(i) as part of his determination of sentence.

[39]

In
    oral submissions, the applicant complained that the Appeal Judge failed to deal
    with his ground of appeal involving s. 718.2(a)(i). He contends that s. 718.2(a)(i)
    applies only to cases other than hate speech under
Criminal Code
s. 319.

[40]

No
    doubt the proper interpretation of a provision of the
Criminal Code
involves a question of law. So, too, the proper interpretation of a provision
    of the
Criminal Code
is an issue of significance to the administration
    of criminal justice beyond the particular case. Yet, the applicant offers no
    arguable grounds for his position outlined above. On its face, s. 718.2(a)(i)
    applies to all offences in the
Criminal Code
; it identifies no
    exception. The applicant advances no plausible argument based on the principles
    of statutory interpretation that would create an exception where none exists.

[41]

However,
    I have considered the applicants submission from a different angle. Perhaps
    the applicant is attempting to argue that by taking into account the statutory
    aggravating factors in s. 718.2(a)(i) the trial judge, in effect, impermissibly
    considered elements of the offence under s. 319(2) as aggravating factors. Characterizing
    an element of the offence as an aggravating factor is a reviewable error:
R.
    v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 42;
R. v. Adan
,
    2019 ONCA 709, at para. 106. Nevertheless, numerous cases have found no such error
    where a sentencing judge has taken into account statutory aggravating factors
    that are themselves elements of the offence:
R. v. Tejeda-Rosario
, 2010 ONCA 367, 262 O.A.C. 228, at paras. 12-13;
R. v.
    B.S.
, 2019 ONCA 72, at para. 12;
R. v.
    S.C.W.
, 2019 BCCA 405, at paras. 27-36;
R. v.
    JAS.
, 2019 ABCA 376, at paras. 18-19. In any event, even
    where a sentencing judge errs, appellate intervention requires demonstrating
    that the error had an impact on the sentence. In the present case,
the
    Appeal Judge considered whether the trial judge had erred by imposing a
    demonstrably unfit sentence. He concluded, at para. 136, that the applicant had
    not shown that the trial judge imposed a demonstrably unfit sentence. The
    applicant has not identified any arguable error of law in the Appeal Judges
    review of this aspect of the sentence.

[42]

Consequently,
    this ground of appeal does not satisfy the principles in
R.R.

VII.

FOURTH GROUND: IMPOSITION OF CONSECUTIVE SENTENCES

[43]

The
    trial judge sentenced the applicant to the maximum sentence of six months on
    each of the two counts, to be served consecutively. In determining that the
    sentences should be consecutive, the trial judge applied the decision of this
    court in
R. v. Gummer
(1983), 1 O.A.C. 141, [1983] O.J. No. 181 (C.A).

[44]

Gummer
involved convictions for dangerous driving and failing to stop. In setting
    aside the imposition of concurrent sentences and making them consecutive, this
    court stated at para. 13:

We do not consider the rule that sentences for offences arising
    out of the same transaction or incident should normally be concurrent
    necessarily applies where the offences constitute invasions of different
    legally-protected interests, although the principle of totality must be kept in
    mind. The offences of dangerous driving and failing to remain protect
    different social interests. The offence of dangerous driving is to protect the
    public from driving of the proscribed kind. The offence of failing to remain
    under s. 233(2) of the Code imposes a duty on the person having the care of a
    motor vehicle which has been involved in an accident, whether or not fault is
    attributable to him in respect of the accident, to remain and discharge the
    duties imposed upon him in such circumstances.

[45]

The
    trial judge stated, at para. 12:

In this case, identifiable groups, those being women and Jews,
    have separate, legally-protected interests. The defendant could promote hatred
    against one and not the other, or vice versa. He promoted hatred against both.
    In addition, the hate was promoted against both groups not from one incident,
    but many, and consistently over a period of three years.

[46]

On
    his appeal from sentence, the applicant submitted that the trial judge
    committed an error in principle by deciding that the sentence for each count
    should be served consecutively rather than concurrently. The Appeal Judge did
    not accept that submission. The Appeal Judge properly recited the deference
    owed to a sentencing decision absent an error in principle or demonstrably
    unfit sentence. In the case before him, the Appeal Judge concluded that the
    trial judge did not err in principle by ordering that the sentence on each
    count be served consecutively, stating at paras. 129-130:

Counsel for Mr. St. Germaine submits that the only relevant
    interest for a sentencing judge to consider is societys interest, and that the
    trial judge erred by identifying two separate interests. I disagree with this
    submission. Society has an interest in discouraging hate crimes against
    different groups and, just as in
Gummer
, the
    trial judge concluded in respect of the charges against the appellants, that
    there were two separate societal interests, discouraging hatred against women
    and discouraging hatred against Jews.

The Crown proceeded with a two-count information against each
    appellant and it acted within its discretion to do so. The trial judge had
    reviewed the collection of the 22 issues of YWN that were introduced into
    evidence, and he was well situated to decide whether the communications against
    women and against Jews in those issues should properly be treated as part of
    the same conduct against two groups who do not not enjoy separate protected
    interests, such that concurrent sentences would be proper. The trial judge,
    having reviewed the 22 issues, concluded that the communications promoting
    hatred were directed against separate identifiable groups, women and Jews, and
    each has a separate legally protected interest.

[47]

On
    this application, the applicant submits that the Appeal Judge erred in law in
    allowing the order for consecutive sentences to stand.

[48]

I
    am not persuaded that this ground of appeal amounts to a question of law
    alone. The Appeal Judge properly identified the principles governing his
    appellate review of the trial judges sentence. The applicant does not identify
    any conflict within the jurisprudence relevant to the circumstances of his
    sentence. Finally, as pointed out in Clayton C. Ruby,
Sentencing,
10th ed.
(Toronto: LexisNexis, 2020), at
    §14.18, it becomes a
fact-specific inquiry
of
    whether the nexus between offences is sufficiently or insufficiently close to
    merit either consecutive or concurrent sentences. [Emphasis added.]

VIII.

DISPOSITION

[49]

For
    the reasons set out above, I am not satisfied that the applicants proposed
    appeal meets the requirements of
Criminal Code
s. 839(1), as
    interpreted by
R.R
. Accordingly, the application for leave to appeal
    is dismissed. It follows that the application for bail pending appeal is
    also dismissed.

David
    Brown J.A.

[1]

Section
    839(1) of the
Criminal Code
states, in part:
    Subject to subsection (1.1), an appeal to the court of appeal as defined in
    section 673 may, with leave of that court
or a judge thereof
, be taken on any ground that
    involves a question of law alone  [Emphasis added.]

[2]

The decision of this court in
Woods (Re),
2021
    ONCA 190, 154 O.R. (3d) 481, to which the applicant directed my attention, has
    no application to the present case.
Woods
involved proceedings under
    Part XX.1 of the
Criminal Code
. This court held, at para. 33, that Part
    XX.1 of the
Criminal Code
did not provide the Ontario Review Board with
    the authority to conduct its hearing by videoconference without the consent of
    the NCR accused. Part XX.1 has no application to the present case, which
    concerns the powers of judges on summary conviction appeals.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grant, 2021 ONCA 519

DATE: 20210715

DOCKET: M52394

(C69275)

Brown
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Responding
    Party

(Respondent)

and

James
    Jahkyn Grant

Applicant

(Appellant)

George Singh, for the applicant

James Clark, for the responding party

Heard: June 17, 2021 by video conference

ENDORSEMENT

I.

OVERVIEW

[1]

The applicant, James Jahkyn Grant, applies for
    his release pending his appeal from his conviction by a jury of importing into
    Canada a controlled substance, namely 2.5 kilograms of cocaine. The cocaine was
    found hidden in a piece of the applicants luggage when he attempted to clear
    customs at Pearson International Airport upon his return from Aruba.

[2]

The applicant was convicted by a jury on August
    13, 2019. Sentence was passed on June 17, 2021. The sentencing judge imposed a
    custodial sentence of 4.5 years. After deducting approximately one year for
    pre-trial custody, the resulting sentence to be served is 3.5 years.

[3]

The main grounds of appeal asserted by the
    applicant on his appeal are:

(i)

The trial judge inadequately charged the jury on
    the requisite knowledge to establish the offence;

(ii)

The trial judge failed to properly answer a question asked by the
    jury during their deliberations that sought to clarify some evidence and failed
    to permit the defence to properly address the evidence;

(iii)

On a pre-trial application that sought to stay the charge by reason
    of the violation of the applicants rights under s. 11(b) of the
Canadian
    Charter of Rights and Freedoms
, Justice Harris erred in calculating the
    total amount of defence delay; and

(iv)

On a subsequent pre-trial
Charter
application, Justice André
    failed to address various factual inconsistencies in the evidence, resulting in
    his erroneous dismissal of the application.

[4]

The Crown opposes the application for three
    reasons: (i) the proposed grounds of appeal are devoid of merit; (ii) the
    applicant is unlikely to surrender into custody; and (iii) the public interest
    favours his detention as the reviewability interest in his appeal is weak while
    the enforceability interest points strongly in favour of his ongoing detention.

[5]

Since only a few transcripts of the pre-trial
    proceeding were filed on this application, the applicant relies primarily upon
    the written reasons of the application judges, the charge to the jury, and the
    reasons for sentence. The applicants counsel, Mr. George Singh, has filed an
    affidavit opining on the merits of the appeal.
[1]
Mr. Singh also appeared as lead counsel on this application. Consequently, I am
    obliged to treat his affidavit as a form of argument, not opinion evidence.

[6]

The applicant proposes release with bail of
    $10,000, without deposit, with two sureties, his wife and sister. Both acted as
    his sureties while on pre-sentence interim release.

II.

NOT FRIVOLOUS:
Criminal Code

s
. 679(3)(
a
)

[7]

The bar for establishing that an appeal is not
    frivolous is very low:
R. v. Oland
, 2017 SCC 17, [2017] 1
    S.C.R. 250, at para. 20. As described by Watt J.A. in
R. v. Manasseri
,
    2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38: An appeal is not frivolous if
    the proposed grounds of appeal raise arguable issues. An applicant need not
    establish a likelihood, much less a certainty of success on appeal, but must be
    able to point to a viable ground of appeal that would warrant appellate
    intervention if established. The purpose of the not frivolous threshold is
    to require the applicant to demonstrate that the appeal has some merit. If
    this were not so, the appellate process could be abused by those intent on
    forestalling the execution of a custodial sentence:
R. v. T.S.D
.,
    2020 ONCA 773, at para. 24.

[8]

I shall assess each of the applicants grounds
    of appeal against this standard.

A.      Charge to the jury

[9]

As his first ground of appeal, the applicant
    submits the trial judge inadequately charged the jury on the requisite
    knowledge required to establish the offence. According to a written copy of
    part of the charge, when instructing the jury on the elements of the offence
    the trial judge stated:

The Crown is required to prove that [the applicant]
    actually knew or was aware that the substance was a controlled substance, in
    this case cocaine. [The applicant] does not have to know the technical term for
    the substance but must know that it is a controlled substance.

[10]

As I understand the applicants submission, he
    does not take issue with that part of the charge. Instead, he submits that when
    the trial judge summarized the Crowns position for the jury he referred
    several times to what the applicant must have known. The applicant submits
    that without a correcting or clarifying instruction, those references would
    have misled the jury about the applicable legal requirements for knowledge.

[11]

The written copy of the charge included in the
    record does not contain the judges summary of the Crowns position. Nor does
    the record contain the transcript of the charge, pre-charge conference or any
    post-charge objections.
[2]
Consequently, the applicant has failed to file the evidentiary record necessary
    to assess whether this ground of appeal is not frivolous.

B.      Trial judges response to a question
    from the jury

[12]

At trial, the applicant testified that he had
    stayed at a particular resort for his entire stay in Aruba. During their
    deliberations, the jury asked a question about a document that showed the
    applicant stayed at the resort for a shorter period of time.

[13]

The applicant submits the trial judge did not
    permit any opportunity to clarify the answer he provided to the jury nor the
    ability for defence nor the crown to solicit a proper answer to the question.

[14]

The record does not contain the transcript of
    this portion of the trial. Instead, it contains what appears to be the
    reporters partial annotation of the audio recording.
[3]
The document contains less
    than 20 lines of annotation for a discussion between the trial judge and
    counsel that lasts about 19 minutes. Since it does not provide the entirety of
    the discussion, I cannot assess the legal adequacy of the trial judges
    approach and, therefore, cannot assess whether this ground of appeal is not
    frivolous.

C.      The s. 11(b) ruling

[15]

Justice Harris heard the s. 11(b) application on
    November 26, 2018. At that point of time, the total delay from the date the
    applicant was charged, January 25, 2015, to the prospective trial date, January
    14, 2019, was just short of four years, exceeding the presumptive ceiling of 30
    months established by
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631. In
    the result, the application judge attributed 22 months of the delay to defence
    conduct or waiver, leaving a net delay of about 26 months, which fell under
Jordan
s
    presumptive ceiling: 2018 ONSC 7260.

[16]

The applicants notice of appeal states that Justice
    Harris erred in calculating the total amount of delay for the purposes of
    11(b) application based on a misinterpretation of the facts presented in
    support of the delay in the matter being heard within a reasonable time as
    permitted by law. Counsel did not elaborate on this ground of appeal in his
    affidavit of merits.

[17]

In oral submissions counsel submitted that the
    particulars of this ground of appeal are: (i) there was an element of bias on
    the part of the application judge as he described several instances of conduct
    by the applicant as the particular brand of juridical nihilism espoused by the
    applicant; (ii) the trial judge considered some affidavit evidence filed by
    the Crown without affording the defence an opportunity to cross-examine on it;
    and (iii) the trial judge incorrectly calculated delay attributable to defence
    conduct or waiver. Counsel submitted that a fair analysis of the events would
    conclude that the applicant was not responsible for any of the delay.

Allegation of bias

[18]

As described by Justice Harris, at many steps
    along the way the applicant challenged the authority of the court, as well as
    that of police officers who attempted to fingerprint him. The application judge
    commented: In his many appearances, the applicant often referred to himself as
    an indefinable spirit created by flesh and blood and as an aboriginal sovereign
    on his land. The application judges reasons reproduce portions of the
    transcripts of some of the proceedings in which such conduct occurred. The
    applicants conduct, as disclosed in those transcripts, led the application
    judge to state, at paras. 20 and 21:

With respect to a number of the incidents, the
    applicant and his counsel blame others. I am very skeptical. On the contrary,
    from the many conflicts which have occurred with the full gamut of personnel in
    the administration of justice, including judges, court officers, police
    officers, and lawyers, a portrait of the applicant emerges. The applicant is
    not merely egocentric. He does not see himself so much as the centre of the
    universe as a separate and complete universe on to himself. He refuses to
    acknowledge the authority of the state over him. The applicant is a judicial
    nihilist. This is a particularly convenient stance for a man charged with a
    serious criminal offence.

For the purpose of clarity, although it should
    be unnecessary to say, there was not a scintilla of sense let alone legal merit
    to any of the applicants positions with respect to the authority of judicial
    officers over him. The applicant is subject to the same authority and jurisdiction
    of the court as any other accused person. To take one of the more egregious
    examples, failing to appear because he feels hard done by in the system cannot
    be tolerated.

[19]

The applicant contends that the application
    judges use of the term judicial nihilist displays bias against him. I am not
    persuaded that this ground of appeal surpasses the not frivolous standard.
    Other courts have employed strong language to describe the conduct of those who
    act in court in ways similar to those employed by the applicant:
R. v.
    Cassista
, 2013 ONCJ 305;
R. v. Duncan
(2012), 2013 ONCJ 160; and
Meads
    v. Meads
, 2012 ABQB 571, 74 Alta. L.R. (5th) 1. In any event, a reading of
    the application judges reasons discloses that he took an evidence-based
    approach to the arguments advanced by the applicant on his s. 11(b) motion.

The treatment of affidavits filed
    by the Crown just prior to the s. 11(b) hearing

[20]

The transcript of the 11(b) hearing reveals that
    the application previously had been adjourned, following which the applicant
    filed supplementary materials. Just before the November 26, 2018 hearing date,
    the Crown filed some responding materials. The application judge acceded to
    defence counsels request for a few hours to review the Crowns materials.

[21]

Upon resuming, the application judge proposed
    that the hearing proceed, with the issue of cross-examination on the Crowns
    supplemental affidavits left to another day:

THE COURT: Why cant we proceed here today and
    leave the affidavit issue for another day? We can argue everything today as is
    and then we come to cross examine on the affidavits at some other date.

MR. SINGH: Im prepared to do that Your
    Honour. Just a moment, let me just confer with my client. Yes Your Honour, the
    preference is to be able to complete today. However, if thats the only way
    this matter will proceed we do want to start today. We dont want to delay any
    further.

[22]

The parties then proceeded to make their
    submissions on the 11(b) application. At the conclusion of the submissions,
    defence counsel again raised the issue of the Crowns supplemental affidavits.
    Defence counsel requested that the court not consider certain affidavits unless
    cross-examination was permitted, to which the application judge responded:

THE COURT: Okay, Ill consider that long with everything
    else. And Ill reserve then and if I need you to come back Ill let you know.

[23]

The court then permitted the applicant to file
    several videos of his interaction with court security and institution officers
    that had not previously been filed as part of his application materials.

[24]

The reasons of the application judge disclose
    that he did not find it necessary to consider the affidavits and determine what
    in fact had taken place on certain occasions. He wrote, at para. 19:

I have been asked to determine what actually
    occurred during some of the incidents during the movement of this case through
    the system such as in the flagpole incident for example. In cases in which the
    conduct in question is not captured on the record, a motions judge is in no
    position to hold mini-trials to resolve factual disputes concerning the
    applicants many conflicts with those in the administration of criminal
    justice. Furthermore, such an approach would be contrary to the letter and
    spirit of
Jordan
. The Supreme Court has concluded that the
    hearing of 11(b) motions should be streamlined just as the substantive criteria
    have been from the previous
Askov/Morin
structure.

[25]

Instead, the application judge examined five
    periods of delay that the Crown contended were either defence delay or waiver. It
    is apparent from the reasons that the application judge did not rely on the
    contested affidavits to determine which periods of delay were attributable to
    defence conduct or waiver. This ground of appeal therefore does not exceed the
    not frivolous threshold.

Errors in attributing delay to the defence

[26]

The next aspect of this ground of appeal alleges
    that the application judge wrongly attributed time to defence delay.

[27]

The longest such period of time ran from April
    15, 2016 until January 31, 2017. The application judge described the events at
    para. 26:

After leaving the court
    twice in the midst of the March 23, 2016 appearance before Justice Durno and
    being warned that an arrest warrant would be issued, the applicant was required
    to reattend on April 15, 2016. On April 1, 2016 he was served with a pre-trial
    conference form but was reluctant to accept service. He failed to attend on
    April 15, 2016 and a bench warrant was issued for his arrest. He was not
    arrested until the New Year and appeared before the court January 31, 2017.

[28]

The applicants position was that the delay from
    April 15 until November 16, 2016 should be the shared responsibility of the
    Crown and defence, with the remainder treated as institutional delay because
    the applicant was in custody on another matter on November 16, 2016. According
    to the applicant, the primary fault lay with the authorities for not executing
    the arrest warrant more quickly.

[29]

The application judge rejected that submission
    writing, at para. 28:

These arguments are totally devoid of merit
    and I dismiss them out of hand.  It was the applicants obligation to attend
    court and, having missed it, it was his obligation to bring his failure to
    appear to the attention of the authorities. There is not one iota of evidence
    that the police were negligent. The burden falling on the applicant, this
    argument fails. This time period is the responsibility of the defence:
Jordan
at para. 63.

[30]

The second significant period of time, which the
    application judge also characterized as delay attributable to the defence, was a
    period of almost five months: February 2, 2017  April 25, 2017; and May 25,
    2017  July 28, 2017. During the first period, the applicant was attempting to
    retain a lawyer; during the second, the Crown and court were prepared to set a
    trial date but counsel for the applicant was not.

[31]

On appeal, the applicant will argue that the
    application judge erred in attributing those periods of time to defence delay
    instead of inherent delay. I recognize that the characterization of periods of
    delay, and the ultimate decision concerning the reasonableness of a period of
    delay, is reviewable on a standard of correctness; the underlying findings of
    fact are reviewable on a standard of palpable and overriding error:
R. v.
    Konstantakos
,
2014 ONCA
    21
, 315 O.A.C. 123, at para.
5
;
R. v. Williamson
,
    2014 ONCA 598, 324 O.A.C. 231, at para. 29, affd 2016 SCC 28, [2016] 1 S.C.R.
    741;
R. v. Pauls
, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, affd
    2021 SCC 2, 453 D.L.R. (4th) 189.

[32]

Nevertheless, as to the April 15, 2016 to
    January 31, 2017 period of time, one condition of the applicants interim
    release was that he would attend[] thereafter as required by the court in
    order to be dealt with according to law. It appears uncontested that the applicant
    did not do so. The case law recognizes that the allocation of responsibility
    for delay resulting from an accuseds failure to appear in accordance with
    terms of release involves, in part, a consideration of the knowledge of the
    Crown about the accuseds whereabouts and whether the accuseds inability to
    appear was due to reasons beyond his control:
R. v. J.K.
, 2021 ONCA
    256, 155 O.R. (3d) 427, at paras. 38-45. Here, however, the applicant has not
    provided any evidence on those matters that would enable me to assess the
    strength of the application judges conclusion that the applicants arguments
    are totally devoid of merit.

[33]

As to the other periods of time,
Jordan
includes within delay attributable to the defence delay caused solely by the
    conduct of the defence and delay caused when the court and Crown are ready to
    proceed but the defence is not.

[34]

In those circumstances, on the evidentiary
    record before me I conclude that this ground of appeal does not surpass the
    not frivolous threshold.

D.      Errors in dismissing the 2019
    pre-trial stay application

[35]

A few months prior to trial, the applicant
    sought a stay of the charge on the basis that on numerous occasions state
    agents violated his ss. 2, 7, 8, 9, 10, 12, and 15
Charter
rights. The
    application took 11 days to argue. Justice André dismissed the application:
    2019 ONSC 3616.

[36]

In his notice of appeal the applicant states
    that
Justice André
erred
    in dismissing the application by not addressing the various factual
    inconsistencies of the evidence put forth in the Crowns case. Applicants
    counsel did not elaborate on this ground in his affidavit of merits. In oral
    submissions, counsel stated that the particulars of this ground of appeal were:
    (i) a reasonable apprehension of bias on the part of Justice André; (ii) some officers
    admitted to lying but the application judge made no comment; and (iii) witness
    dishonesty.

[37]

Justice Andrés reasons run some 30 pages. He
    examined in detail each of the eight incidents in which the applicant alleged
    that his
Charter
rights had been violated by a judge, police officer
    or court security officer. The allegations against the judges also included
    allegations of reasonable apprehension of bias. Justice André gave extensive
    reasons why he did not find a
Charter
violation in any of the
    incidents. The applicants grounds of appeal submitted before me lack
    sufficient particularity to enable an evidence-based assessment of their
    merits:
Oland
, at para. 45. Since the applicant bears the burden of
    establishing that his appeal is not frivolous, I am not satisfied that he has
    met that burden for this ground of appeal.

E.      Conclusion

[38]

For the reasons set out above, based on the
    record filed on this application I am not satisfied that the applicant has
    established that his appeal is not frivolous.

[39]

Although that is sufficient to determine this
    application given the conjunctive nature of the s. 679(3) criteria, I will
    consider the other two criteria.

III.

SURRENDER INTO CUSTODY:
CRIMINAL CODE

s
. 679(3)(
b
)

[40]

The second criterion the applicant must
    establish is that he will surrender himself into custody in accordance with the
    terms of the release order. I am not satisfied that the applicant has satisfied
    this criterion for the following reasons.

[41]

First, as mentioned above, the applicant failed
    to attend court on April 15, 2016, contrary to the terms of his interim release
    dated January 30, 2015. A bench warrant was issued. He was arrested early the
    following year and appeared before the court on January 31, 2017. The applicant
    does not address this issue in his supporting affidavit. Although his proposed
    sureties depose that they had no issues with ensuring the applicant complied
    with his conditions of interim release, they were acting as sureties during the
    time the applicant failed to appear in 2016 and 2017. I therefore give little
    weight to their present assurances.

[42]

Second, the applicant provided no information in
    his supporting affidavit about any employment or source of income for the
    period prior to the hearing of his appeal. In his reasons, the sentencing judge
    wrote that the applicant reported that he was a principal and administrator of
    Rouge Ontario Cathedral Kynship but did not provide any proof of income. Simply
    put, the applicant has not provided the court with evidence of a concrete
    release plan.

[43]

Third, I am concerned about the applicants
    history of aggressively challenging the authority of the court in the criminal
    proceeding against him. While the applicant did not repeat his failure to
    attend court following his arrest in January 2017, my concern about his failure
    to comply with a term of his interim release is compounded by the observation
    made by MacPherson J.A. in
R. v. Patterson
(2000), 135 O.A.C. 324
    (C.A.), at para. 11, that flight before trial and flight after conviction and
    the imposition of a serious custodial sentence are very different scenarios:
    When optimism and hope recede, thoughts of flight might well advance. I
    appreciate that the applicant has deposed that he has five children whom he
    supports and is active in their daily lives. However, his affidavit lacks
    concrete details about his release plans.

[44]

Taken together, these factors lead me to
    conclude that a real risk exists that the applicant would not surrender himself
    into custody in accordance with the terms of a release order.

IV.

PUBLIC INTEREST:
CRIMINAL CODE

s
. 679(3)(
c
)

[45]

The public interest criterion consists of two
    components: public safety and public confidence in the administration of
    justice:
Oland
, at para. 23.

[46]

There is no suggestion in the present case that
    the applicants release would jeopardize public safety.

[47]

The public confidence criterion requires
    balancing several factors: the seriousness of the offence; the strength of the
    grounds of appeal; public safety; and flight risks:
Oland
, at para. 47.

[48]

Given my conclusion above on the first
    criterion, the applicants grounds of appeal do not clearly surpass the not
    frivolous criterion:
Oland
, at para. 44. By contrast, the
    enforceability interest in the present case is strong: the applicant has been
    convicted of a very serious criminal offence and there is a risk that he would
    not surrender into custody. In my view, the enforceability interest far
    outweighs the reviewability interest:
Oland
, at para. 50.

[49]

I conclude that the applicant has not
    established that his detention is not necessary in the public interest.

DISPOSITION

[50]

For these reasons, I dismiss the application.

[51]

However, given the applicants family situation,
    I am prepared to give directions pursuant to
Criminal Code
s. 679(10)
    to expedite the hearing of this appeal. If the applicant perfects his appeal by
    August 31, 2021, I direct that the hearing of his appeal take place no later
    than December 17, 2021, with 2.5 hours of oral argument allocated for the
    appeal.

David
    Brown J.A.

[1]

Although
    the copy of the affidavit included in the application record contains the entirety
    of counsels treatment of the grounds of appeal, it is missing a few
    introductory pages. Two efforts by the courts Executive Legal Officer to
    obtain from applicants counsel copies of the missing pages proved
    unsuccessful.

[2]
The applicant
    filed summary annotations of some portions of the trial leading up to the
    charge. This document did not contain any active links to an audio recording.
    In any event, it was the obligation of the applicant to file a proper
    transcription of the relevant portions of the trial on this application.

[3]

Again,
    this
document did not contain any active links to an audio
    recording.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario College of Teachers v.
    Bouragba, 2021 ONCA 508

DATE:  20210714

DOCKET: M52510

(C69405)

Brown, Roberts and Zarnett JJ.A.

BETWEEN

The Ontario College of Teachers

Plaintiff

(Respondent/Responding
    Party)

and

Ahmed Bouragba

Defendant

(Appellant/Moving
    Party)

Ahmed Bouragba, acting in person

Charlotte-Anne Malischewski, for the
    responding party

Heard: July 2, 2021 by video conference

REASONS FOR DECISION

[1]

By order dated June 14, 2021, Zarnett J.A.
    ordered that the motion by the appellant, Ahmed Bouragba, be heard by a panel.

[2]

Mr. Bouragba has filed in this court an appeal
    from the order of Master Brott dated March 22, 2021 (the Order). He has also
    filed an appeal from the Order to the Divisional Court. Mr. Bouragba now moves
    to transfer his Divisional Court appeal to this court so that they can be heard
    together.

[3]

To transfer his appeal from the Divisional Court
    to this court, Mr. Bouragba must demonstrate that his appeal already filed with
    this court lies to this court, as required by s. 6(2) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43 (
CJA
).

[4]

The responding party, The Ontario College of
    Teachers (College), started a defamation action against Mr. Bouragba. He
    moved under
CJA
s. 137.1 to dismiss the action. His motion was
    dismissed. This court allowed his appeal and sent his s. 137.1 motion back to
    the Superior Court to be heard by a different judge:
Ontario College of
    Teachers v. Bouragba
, 2019 ONCA 1028, 51 C.P.C. (8
th
) 280,
    leave to appeal to S.C.C. refused, 39229 (October 29, 2020).

[5]

The College then moved under r. 23.01 of the
Rules
    of Civil Procedure
seeking leave to discontinue its action, with prejudice
    to the College. Mr. Bouragba opposed the motion. Master Brott granted the
    motion. The first three paragraphs of her Order read as follows:

1. THIS COURT ORDERS that this action is
    discontinued.

2. THIS COURT ORDERS that the discontinuance
    of this action shall be deemed a bar to any subsequent action or actions
    brought by the Plaintiff arising from the same causes of action asserted within
    this action.

3. THIS COURT ORDERS that the discontinuance
    of this action shall be deemed to have ended the Defendants motion brought
    under section 137.1 of the
Courts of Justice Act
, R.S.O. 1990, c. C.
    43.

[6]

Mr. Bouragba submits that an appeal of the Order
    lies to this court pursuant to
CJA
s. 6(1)(d), which states that an
    appeal lies to the Court of Appeal from  (d) an order made under section
    137.1.

[7]

We disagree. An order made under section 137.1
    within the meaning of
CJA
s. 6(1)(d) is an order made by a judge of
    the Superior Court of Justice. This is clear from the language of s. 137.1,
    which authorizes a judge to make orders that: (i) dismiss a proceeding (s.
    137.1(3)); (ii) refuse to dismiss a proceeding (s. 137.1(4)); (iii) amend a
    pleading (s. 137.1(6)); (iv) award costs (s. 137.1(7) and (8); or award damages
    to the moving party (s. 137.1(9)).

[8]

A case management master, such as Master Brott,
    is not a judge. Consequently, her Order was not an order made by a judge,
    within the meaning of
CJA
s. 137.1, and therefore not an order made
    under section 137.1 within the meaning of
CJA
s. 6(1)(d). It follows
    that no appeal from the Order lies to this court.  We would observe that the
    issue of this courts jurisdiction to hear an appeal under
CJA
s.
    6(1)(d) was not raised in the case of
Bruyea v. Canada (Veteran Affairs)
,
    2019 ONCA 599, 439 D.L.R. (4
th
) 193. However, in
Bruyea
, at
    para. 14, the court did point out the significance of s. 137.1s use of the
    word judge instead of court, in respect of the authority of a master.

[9]

Accordingly, Mr. Bouragba has not demonstrated
    that an appeal of the Order lies to this court for the purposes of the
    transfer provisions in
CJA
s. 6(2).

[10]

Mr. Bouragbas transfer
    motion is dismissed. The proper court to consider his appeal from the Order is
    the Divisional Court:
CJA
s.
19(1)(c)
.

[11]

There shall be no order
    as to the costs of this motion.

David Brown J.A.

L.B. Roberts J.A.

B. Zarnett J.A.