COURT OF APPEAL FOR ONTARIO

DATE: 20000912

DOCKET: M26223

CARTHY J.A. (In Chambers)

BETWEEN:

Her Majesty the Queen
(Applicant/Appellant)

and

R.C.
(Respondent)

David Finley
for the appellant

Jonathan Dawe
for the respondent

Heard: September 8, 2000

CARTHY J.A.:

[1] The Crown seeks to extend the time for service of a motion for leave to appeal and to appeal from a summary conviction appeal judgment of Hawkins J. He had set aside a conviction and directed a new trial of the respondent on a charge of sexual assault. The issue determined by Hawkins J. and the subject of the proposed appeal concerns the application of s. 278.1 of the Criminal Code to a psychiatrist’s records of joint counselling sessions with the complainant and the respondent.

[2] The judgment of Hawkins J. was released on June 6, 2000, and thus service and filing was to be completed by July 6. In accordance with the usual practice within the Crown law office the release of the reasons was followed by a multiple tiered process of consideration of the judgment and whether an appeal was justified leading to an ultimate decision to seek leave to appeal on June 30. This procedure was described in supportive terms by MacPherson J.A. in R. v. Antonangeli (2000), 2000 5721 (ON CA), 48 O.R. (3d) 606 (C.A.) at p.610, and I do not differ from him in concluding that the time spent in reaching a decision was justified and reasonable. However, I will comment later on other matters that might have been pursued prior to June 30.

[3] Friday, June 30 preceded a long weekend and on Tuesday, July 4 the final form of the legal papers was approved, a telephone call was made to respondent’s counsel on the summary conviction appeal and efforts were made to search for the respondent’s address. Counsel for the respondent said he would seek instructions and on the same day left a message saying he had spoken to his client and did not have instructions to accept service. Later the same day, an address for the respondent of 4 Halton Street was provided by the probation office.

[4] On July 5 a detective attempted service at 40 Halton and offered no explanation for the error. On July 6 the Crown law office noted the error and a further unsuccessful attempt at service was made at 4 Halton Street. This attempt was at 10:30 a.m. and although the intent of the police officer was to try again later in the day, no follow-up seems to have occurred. The remainder of the sequence leading to service on July 17 presents a picture of busy and short-staffed police officers passing the service package from one to another with service efforts made from time to time until the respondent was finally found at 4 Halton Street on July 16.

[5] As has been stated in recent reasons from this court, there is a substantial onus on the Crown in an application under s.678(2) of the Code to extend the time for appeal and I must consider a variety of factors before exercising my discretion. These factors include, an intention to appeal formed within the appeal period, reasonable diligence in attempting to locate the respondent, whether undue prejudice would flow from an extension, whether there is an arguable appeal, and overall, whether an extension is in the interests of justice.

[6] I have reviewed and compared the facts and reasoning in R. v. Rosenthal, [1998] O.J. No. 4424 (C.A.), Re Regina and Watkins (1999), 1999 1374 (ON CA), 45 O.R. (3d) 405 (C.A.) and R. v. Antonangeli, supra. It is apparent that a fine line has been drawn between individual factual circumstances which justify, or do not, an exercise of discretion.

[7] The easy factors here are intent and prejudice. It is clear the Crown had intent within the time limit and no argument of prejudice was asserted, other than continued jeopardy which is always a fact on this type of application and cannot be viewed as prejudice.

[8] I have paused over the factor of reasonable diligence in attempting to locate the respondent. While the Crown was considering whether to launch an appeal, the path of prudence would have been to set in motion a tracer on the location of the respondent and to prepare draft documents for service. This was particularly significant when it was known that the process of approval might extend to a time just short of a long weekend. Having said that, I note that the reasons in Antonangeli were released on May 30, 2000, and may have encouraged the Crown law office to continue their usual practice of reaching a decision and then attempting to locate the respondent. As stated earlier, I do not differ from the reasons or conclusion of MacPherson J.A., but he was dealing with a nine-day time period to effect service and a respondent who was out of the country and thus could not be served in any event. I am adding a rider to his observations in saying that the Crown exposes itself to a finding of no due diligence in following the procedure of not appointing counsel to do preparatory work until a decision to appeal is made.

[9] The efforts between July 4and July 6 to effect service were tainted by two errors which were correctable if urgency had not been imposed by previous activities.

[10] I am not particularly influenced by the efforts to serve the documents after July 6 because only a few days passed and the respondent was aware on July 4 of the intent to appeal and that he was being sought for service. The question in my mind is whether the failure to serve by July 6, in the circumstances I have described, stands in the way of the Crown meeting its onus.

[11] Balancing all of the factors and taking into account the lack of prejudice and the communicated intent to appeal within the time, it is my view that despite my criticisms of efforts made prior to July 6, the scales tip in favour of granting the extension by the significance of the issue of law presented and the interests of justice in its resolution. Without presuming upon the panel who will consider leave to appeal, the resolution of issues surrounding s.278 of the Code in sexual assault cases is of pre-eminent importance to the course of justice and the proposed appeal is clearly arguable.

[12] I therefore order that time for service and filing the notice of appeal and motion for leave to appeal be extended to September 18, 2000.

DATED: September 12, 2000 “J.J. Carthy J.A.”