Appeals from Justices of the Peace

Today's Court of Appeal decision in R. v. Horan, 2008 ONCA 589 makes it clear that appeals from Justices of the Peace are to be treated the same as appeals from any other judicial officer and allowed sparingly. Here a judge hearing an appeal from a Justice of the Peace, in effect, reconsidered the case and convicted where there had been acquittals.



The Court of Appeal held this to be an error.



The Court writes:



[1] This appeal under the Provincial Offences Act, R.S.O. 1990, c. P.33, raises a question of appellate procedure under that Act. The appellant Modern Niagara Toronto Inc. was acquitted by Quon J.P. on four charges contrary to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. The justice of the peace found that the actus reus of two of the offences was not made out. He found that the appellant had made out the due diligence or reasonable mistake of fact defence to the other two offences.



[2] The Crown successfully appealed to the Provincial Offences Appeal Court. Lane J. found the appellant guilty on three of the counts and imposed a fine of $135,000.[1] On that appeal, the Crown was permitted to rely on a new theory of liability to overturn the acquittals. In addition, the appeal judge stated that she was raising two new issues that were dispositive of the appeal in favour of the Crown. The appellant first learned of these new issues when the appeal judge released her reasons.



[3] In granting special leave to appeal to this court, MacPherson J.A. stated: "There is a fundamental issue of fairness raised by the way in which the appeal judge heard and determined the appeal."



[4] In our view, the appellant was denied a fair hearing of its appeal in the Provincial Offences Appeal Court. While the appellant raises other issues, the fair hearing issues are sufficient to dispose of the matter. We would allow the appeal and remit the matter to the Provincial Offences Appeal Court for a new hearing before a different judge.