R. v. Cody

Date: 20091118 Docket: 09/007 Citation: 2009 NLCA 64 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: JAMES CODY APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Green, C.J.N.L. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division, St. John’s 200801T5319 Appeal Heard: November 17, 2009 Judgment Rendered: November 17, 2009 Memorandum of Disposition Filed: November 18, 2009 The Appellant not appearing and not represented Counsel for the Respondent: Stephen R. Dawson MEMORANDUM OF DISPOSITION Green, C.J.N.L. [1] The Crown applied to strike out the appellant’s notice of appeal on the ground that the appellant had failed to take any step towards the perfection Page: 2 of the appeal as required by the Court of Appeal Criminal Appeal Rules SI/2002-96. [2] The decision which the appellant is purporting to appeal to this court is a decision of a Trial Division judge, acting as a summary conviction appeal judge, dismissing an application to extend time to appeal a conviction under the Highway Traffic Act, RSNL 1990, c. H-3 in the Provincial Court. The dismissal of the extension application occurred as a result of the appellant’s non-appearance at the time it was called in court (he did appear later in the day, after the matter had already been disposed of). [3] In his notice of appeal in this court against the dismissal for non- appearance, the appellant asserts that he missed the court time “because of mechanical problems”. [4] The transcript of the proceeding in the summary conviction appeal court was filed in this court on February 4, 2009 and a copy of it was sent on the same day to the appellant at the address he provided to the court. No steps have been taken by the appellant to perfect the appeal since that time. [5] Rule 17(1) of the Court of Appeal Criminal Appeal Rules requires an appellant to file and serve his or her factum within sixty days after having been notified that the evidence has been transcribed. [6] Rule 10(2) provides in relevant part: 10(2) Where a party to an appeal or counsel fails to perfect the appeal within a period of 6 months after the filing of the transcript … or a party otherwise fails to comply with these rules the Court, on application of any other party to the appeal or of its own motion, on giving the parties such notice, if any, as the Registrar is able to effect …may (a) strike out the appeal. [7] The Crown’s application was served on the appellant on November 2, 2009. The appellant did not appear on the hearing of the application to strike in this Court on November 17, 2009. Crown counsel advised the Court that he had had a telephone conversation with the appellant on November 2, 2009 in response to the service of the application on him, at which time the appellant told him he would not be appearing because he was traveling to Alberta. Crown counsel advised the appellant that he should Page: 3 nevertheless have someone else – either counsel or a representative – appear for him to explain the situation. No such representative appeared.1 [8] After hearing from Crown counsel, and not having any explanation from the appellant for the delay in perfecting the appeal, I struck out the notice of appeal. [9] Generally, the Court will not strike out a notice of appeal for failure to comply strictly with the time limits set out in the rules of court provided there is some reasonable explanation forthcoming for the non-compliance. See, R. v. Mercer, 2005 NLCA 10, 245 Nfld. & P.E.I.R. 50 at para. 67. The more usual remedy would be to grant an indulgence and impose further filing deadlines that are to be strictly complied with. Here, however, no explanation was available for the considerable delay in perfecting the appeal - despite the appellant being given an opportunity to provide such an explanation. The appellant was served with the application on November 2, 2009, was told by Crown counsel that he should have someone appear on his behalf and made no attempt to contact the court or to file anything to explain his circumstances.2 [10] In R. v. Hadi Al Shehabi, 2007 NLCA 56, Wells C.J.N.L. identified five non-exhaustive factors to be considered in determining whether an application to strike a notice of appeal for non-compliance with the time requirements of the rules should be granted: (i) whether the appeal discloses any arguable case; (ii) whether the appellant had, since filing the appeal, a bona fide intention to proceed with the appeal; (iii) whether there is a reasonable excuse for the failure to proceed with the appeal; (iv) the timeliness of the appellant’s actions in response to the application to strike; and (v) the presence of any exceptional or special circumstances justifying or working against the fairness of any dismissal. [11] In this case, the failure of the appellant to respond to the Crown’s application or to appear at the hearing or to contact, or file something in, the 1 Subsequent to the disposition in this matter, a gentleman appeared at the court Registry purporting to speak on the appellant’s behalf. He stated that he had been contacted by the appellant on November 13, 2009 with a request that he appear in the appellant’s stead. He said that he thought he had to appear in the Provincial Court in a different building, who directed him to the Trial Division (the summary conviction appeal court) in another building, who ultimately directed him to the Court of Appeal in yet another building. By the time he arrived in the Court of Appeal, the matter had already been disposed of. The only way in which the matter could be resurrected in this Court now is for the appellant to apply under Rule 10(6) to reinstate the appeal ex debito justiciae. 2 Even his attempt to get someone to appear on his behalf was also, apparently, a belated one – two working days before the hearing. Page: 4 court to explain his circumstances means that there is nothing before the court to enable me to conclude that factors (ii) through (iv) of the Hadi Al Shehabi factors have been satisfied. Furthermore there is nothing of an exceptional or special nature (factor (v)) that would justify refusing to dismiss the appeal. The fact that the appellant was planning to be out of the province at the time of the hearing does not, in itself, amount to an exceptional or special circumstance in light of the time the appellant had to take steps to bring any explanation or statement of his situation to the attention of the court. [12] As to the first factor (whether the appellant has an arguable case) it is to be noted that this is an appeal from a summary conviction appeal court. Appeals to this Court from a summary conviction appeal court are governed by s. 839 of the Criminal Code.3 It provides that appeals in such matters may, with leave, be taken “on any ground that involves a question of law alone”. [13] The decision which the appellant is purporting to appeal here is a discretionary decision to dismiss a case for non-appearance on an application to extend the time for appealing. The issue will be whether the summary conviction appeal judge properly exercised her discretion in that regard, according to proper principle. That is not likely to be regarded as a “question of law alone”. It may be, therefore, that this court does not have jurisdiction to hear the appeal in any event. [14] Furthermore, this Court’s authority to hear appeals from a summary conviction appeal court relates to a “decision” of that court on the merits of the appeal. See sections 839 and 834 of the Code. The authority of a summary conviction appeal court to make orders for the extension of time are dealt with in subsection 815(2); there is no express provision for appeal of such decisions to this Court. Thus, it is not clear that the summary conviction appeal court’s refusal to extend the time to appeal the conviction is a decision that can be the subject of an appeal to this Court. [15] Although it is not necessary to decide these questions of jurisdiction, it can be said that on its face the appellant’s appeal has questionable legal merit. 3 Pursuant to s. 6 of the Provincial Offences Act, SNL 1995, c. P-31.1, Part XXVII of the Criminal Code, which deals with summary conviction offences, applies to provincial offences, including offences under the Highway Traffic Act. Page: 5 [16] In the circumstances, therefore, the notice of appeal was struck out. J. D. Green, C.J.N.L.