Does a single judge have jurisdiction to determine leave to appeal a summary conviction matter? Yes

R. v. Metin, 2013 ONCA 21 holds:

[10]       Does a single judge of this court have jurisdiction to determine an application for leave to appeal? The starting point for answering this question is s. 839(1) of theCriminal Code which provides:

839(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, against

(a) a decision of a court in respect of an appeal under section 822; or

(b) a decision of an appeal court under section 834, except where that court is the court of appeal. [Emphasis added.]

[11]       In my view, the wording of this provision is clear: if leave to appeal a particular decision to the Court of Appeal is required, the application for leave may be determined by that court (i.e. a panel of the court) or by "a judge thereof" (i.e. a single judge). I simply cannot see any ambiguity in the relevant words of this provision.

[12]       In addition, I observe that there are many examples in Ontario of a single judge dealing with leave to appeal applications pursuant to either s. 839(1) or similar provisions of the Criminal Code. Single judges have dismissed applications for leave in appeals relating to impaired driving and other driving offences: see, for example, R. v. Pea (2008), 93 O.R. (3d) 67 (C.A.); R. v. Davies, July 7, 2011, unreported (C.A.); and R. v. Ismail, August 10, 2012, unreported (C.A.). Similarly, single judges have refused leave in some sentence appeals: see, for example, R. v. Brochu, October 14, 2008, unreported (C.A.); and R. v. Nwaiku, February 7, 2012, unreported (C.A.).

[13]       Finally, interpreting s. 839(1) in this fashion is, in my view, consistent with the principal theme of R. (R.), the leading Ontario case dealing with the process for determining leave to appeal applications. The thrust of R. (R.) is that the integrity of the relevant Criminal Code provisions is respected by a clear demarcation between a leave to appeal and the appeal itself. As expressed by Doherty J.A., at paras. 42-43:

Proceeding as if there was a right of appeal to this court on the merits in summary proceedings flies in the face of the Criminal Code.  It will also, in at least some cases, unnecessarily prolong what should be expeditious proceedings.  Ignoring the leave requirement also gives individuals with financial resources a real advantage.  Legal Aid funding for summary proceedings in this court is very limited; therefore, persons who can fund their own appeals have a real advantage under the present regime in that they get two full appeals.  Finally, treating all summary conviction matters as appeals on the merits minimizes the significance and value of the role played by the Superior Court in the summary proceeding appellate process.  Routinely treating appeals in summary conviction proceedings as if they were appeals as of right from the trial decision undervalues the review carried out by Superior Court judges.

The leave requirement in s. 839 can perform its proper function only if it is addressed separately from the ultimate merits of the appeal.  A separate preliminary consideration of the question of leave should also quickly eliminate those cases from the system that do not warrant leave to appeal.  In my experience, most summary conviction matters brought to this court should fail at the leave to appeal stage. 

[14]       In my view, either party's resort, in a summary conviction appeal proceeding, to a single judge of this court for the determination of an application for leave to appeal will, in many cases, result in a conclusive determination of the case[1]. By and large, this outcome would be expeditious, cost effective and entirely fair. Fortunately, the plain meaning of the words in s. 839(1) of the Criminal Codepermits this result.