Court concerned that accused may not have had full and fair opportunity to argue motion

RIGHT OF APPEAL

Court concerned that accused may not have had full and fair opportunity to argue motion

Accused applied for leave to appeal under s. 131 of Provincial Offences Act (Ont.). As result of pre-trial negotiations, accused pleaded guilty to provincial offence regarding zoning by-law. Joint submission consisted of fine of $3,500 payable over course of one year. When fine bore unexpected surcharge, accused appealed fine levied by trial justice. Matter was not perfected within 30 days of accused receiving notice from court that transcript was ready to be picked up. Accused showed up on date of appeal with transcript in hand and explained that there had been two deaths in family and that he had been in and out of town. When accused indicated that his mother could not afford to pay fine because she was old and sick, court dismissed appeal for lack of valid grounds. Accused argued that delay was largely result of tardiness in transcript preparation by court office, and that appeal should have been allowed to continue. Application allowed. Accused had right to appeal. Accused reasonably explained delay in producing transcript that led to motion, and missing transcript was available. Having reviewed transcript, court was concerned that accused, who represented his mother, may not have had full and fair opportunity to argue motion or appeal. It was in interests of due administration of justice that leave be granted.
R. v. Massara (Aug. 15, 2013, Ont. C.A., P. Lauwers J.A., In Chambers, File No. CA M42705) 113 W.C.B. (2d) 611.