Regina v. Antonangeli [Indexed as: R. v. Antonangeli]

48 O.R. (3d) 606

[2000] O.J. No. 1870

Docket No. M25862

Court of Appeal for Ontario

MacPherson J.A.

(In Chambers)

May 30, 2000

Criminal law -- Appeals -- Extension of time for appeal -- Crown not serving notice of appeal on accused within prescribed 30-day period -- Decision whether or not to appeal taking 20 days -- Accused on vacation outside Canada when Crown attempted to serve him with notice of appeal -- Decision to appeal acquittal should not be made lightly -- Length of decision- making period reasonable -- Crown reasonably diligent in attempting to locate accused for service -- Crown appeal eminently arguable -- Extension of time for serving notice of appeal granted.

The accused was convicted of driving over 80. The summary conviction appeal court allowed his appeal, quashed the conviction and entered an acquittal. The Crown decided to appeal, but the notice of appeal was not served on the accused within the prescribed 30-day period. The decision to appeal was made within the 30-day period, but took 20 of those days. By the time the Crown took steps to serve the accused with the notice of appeal, the accused was on a trip to the United States. He returned one day after the expiry of the 30-day period and the Crown served him with the relevant documents one day later. The Crown brought an application for an order extending the time for serving the notice of appeal.

Held, the application should be granted.

A Crown appeal in a criminal case should be undertaken only after the most careful consideration. In Ontario, a decision to appeal requires positive recommendations from the original counsel and the senior Crown Attorney in the region, followed by a positive decision by the Crown Law Office -- Criminal. This type of structured decision-making should be welcomed, but takes time. In this case, it took 20 days, which was reasonable. The Crown Attorney with carriage of the appeal and the police were reasonably diligent in their efforts to serve the accused with the appropriate documents within the 30-day time period. The accused did not claim that he was prejudiced by service two days outside the statutory period. The Crown's appeal was eminently arguable, and raised an important and contentious issue. It was in the interests of justice to extend the time within which the Crown could appeal.

APPLICATION for an order extending the time for giving notice of appeal.

R. v. Finley, [1995] A.J. No. 829 (C.A.), consd Other cases referred to R. v. Huff, [1990] O.J. No. 5153; R. v. Rosenthal, [1998] O.J. No. 4424 (C.A.); R. v. Watkins (1999), 1999 1374 (ON CA), 45 O.R. (3d) 405 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 10
Criminal Code, R.S.C. 1985, c. C-46, ss. 253(1), 678(2) Rules and regulations referred to Ontario Court of Appeal Criminal Appeal Rules, SI/93-169, rule 4(1)

Tara Dier, for applicant. Louie R. Genova, for respondent.

MACPHERSON J.A. (in Chambers): --

Introduction

[1] Pursuant to s. 678(2) of the Criminal Code, R.S.C. 1985, c. C-46, the Crown seeks leave to extend the time within which notice of appeal may be given. The application is necessary because the Crown did not serve the notice of appeal on the respondent, Vincenzo Antonangeli, within the 30-day period prescribed by rule 4(1) of the Ontario Court of Appeal Criminal Appeal Rules, SI/93-169.

A. Facts

[2] On August 31, 1999, the respondent was found guilty after a trial before Libman J. of the Ontario Court of Justice of an offence under s. 253(1) of the Criminal Code, operating a motor vehicle with a blood alcohol reading exceeding 80 milligrams of alcohol in 100 millilitres of blood.

[3] The respondent appealed. On April 7, 2000, Dyson J., sitting as a summary conviction appeal court judge, allowed the appeal, quashed the conviction and entered an acquittal.

[4] The Crown decided to appeal Dyson J.'s decision to this court. By the time the Crown took steps to serve the respondent with the notice of application for leave to appeal and the notice of appeal, the respondent was on a golf trip to the United States. He did not return to Brampton until May 8, one day after the expiry of the 30-day notice period. The Crown served the respondent with the relevant documents on May 9.

B. Issue

[5] The sole issue posed by this application is whether the court, pursuant to s. 678(2) of the Criminal Code, should exercise its discretion and extend the time within which notice of application for leave to appeal and notice of appeal may be given.

C. Analysis

[6] In R. v. Watkins (1999), 1999 1374 (ON CA), 45 O.R. (3d) 405 at p. 408 (C.A.), Goudge J.A. referred to "the substantial onus" on the Crown in an application under s. 678(2). He also set out clearly the factors that must be considered on this type of application, at p. 407:

. . . on a motion such as this a number of considerations are in play in the required exercise of judicial discretion. These include whether there is a bona fide intention to appeal formed within the required time, whether reasonable diligence was exercised in attempting to locate the party for service, whether undue prejudice would result to the respondent by an extension of time, whether there is an arguable appeal, and overall, whether the extension of time is in the interests of justice.

(a) Timely intention to appeal

[7] Dyson J. rendered his decision on April 7. The Crown made its formal decision to apply for leave to appeal on April 27. The decision was made within the 30-day period, but it used up 20 of those days.

[8] I find no fault with the Crown's decision-making process, including the time it took to make the decision. On April 11, Elaine Penelagan, the Crown Attorney who had argued the summary conviction appeal, prepared a checklist for a Crown Attorney requesting a Crown appeal. On April 13, Paul Culver, the Crown Attorney for the Toronto Region, prepared a memorandum agreeing with the request.

[9] A package of documents, including the Penelagan request and checklist and the Culver memorandum, was forwarded to the Crown Law Office - Criminal and received on April 18, 2000.

[10] In accordance with the office practice of the Crown Law Office - Criminal, the request for appeal was circulated to three counsel for review. In light of the time constraints inherent in the 30-day appeal period, the review commenced without the benefit of the written reasons of the summary conviction appeal court.

[11] The request for an appeal in this matter was approved by Carol Brewer, the Acting Director of the Crown Law Office - Criminal, on April 27. On April 28, Crown Attorney Beverley Brown learned that she had carriage of the appeal. On the same day, Ms. Brown took initial steps to set in motion the service of the appropriate documents on the respondent.

[12] The respondent relied on the decision of the Alberta Court of Appeal in R. v. Finley, [1995] A.J. No. 829. In that case, the court was critical of the decision-making process relating to criminal appeals in Alberta's Crown office. Harradence J.A. said, at paras. 2 and 3:

Twenty-three days of the 30-day appeal period were taken up by the Crown in deciding whether they would proceed with the appeal. The Crown cannot claim that there has been a problem with service during a period of time when it is the source of that problem. The Crown has submitted a guide to the procedure it uses when determining whether an appeal should be pursued. Before a notice of appeal is filed, a case may pass through four levels of decision makers. Those decision makers include the Crown prosecutor assigned to the case, Chief Crown Prosecutor, Appeals and Criminal Law Policy Branch and finally, in some cases, the Assistant Deputy Minister. In the instant case the Assistant Deputy Minister was not part of the procedure and the majority of the delay seems to have occurred within the Appeals Criminal Law Policy Branch. The Crown points out that part of this period involved Good Friday and Easter Monday, but I do not consider this to be an acceptable explanation for the delay.

After considering the material presented by the Crown with a view to explaining the procedure in determining whether to launch an appeal, I am left wondering if the reason for the delay is not due to the four levels of decision makers needed to determine if an appeal should be sought. However, it is not for the court to comment on the internal workings of the Department of Justice. If the Department wants to have a four-step procedure for obtaining instructions to appeal that is their choice, but they cannot then use that as a reason for delay.

[13] It seems that the Ontario and Alberta decision-making processes are similar. With respect, I do not share Harradence J.A.'s negative view of the Crown's decision-making process. In my view, a Crown appeal in a criminal case should be undertaken only after the most careful consideration. By definition, the context for the decision is that a person has been acquitted of a criminal offence. For the Crown to seek to overturn such a disposition is a serious matter indeed.

[14] In my view, the decision-making process in the Ontario Crown office should be welcomed, not criticized. A review that requires positive recommendations for appeal at two levels (the original counsel and the senior Crown Attorney in the region) followed by a positive decision at a third level (the Crown Law Office - Criminal), where the decision-maker has a view not only of the discrete case but also of the administration of justice on a province-wide basis, is, in my view, both a fair process and, importantly, a process that in many cases will benefit the person who has been acquitted of a criminal offence.

[15] Of course, this type of structured decision-making process takes time. In Finley, the final decision was not made for 23 days. In the present case, it took 20 days. I do not think the 20-day period is at all unreasonable. The Crown should be encouraged not to jump quickly and launch appeals without truly careful reflection. A good, careful decision- making process, like Ontario's, will require a few days to produce a considered final decision. Twenty days, as the actual progress of the file in this case demonstrates, is a reasonable, not an unreasonable, period of time.

(b) Reasonable diligence in attempting to locate party for service

[16] The attempts made by the Crown Attorney with carriage of the appeal and by the police to serve the respondent with the appropriate documents within the 30-day period easily comply with the "reasonable diligence" factor. This is not a case like R. v. Rosenthal, [1998] O.J. No. 4424 (C.A.), relied on by the respondent, where the Crown did not send the documents to the police until two days before the 30-day period expired, and where the police did not try to serve the respondent until the last possible day.

[17] In the present case, the Crown Attorney took steps commencing April 28 to locate the respondent. She spoke to the Crown Attorney who had handled the summary conviction appeal and received information about the respondent's vehicle licence number, residence and place of business. She tried to contact the respondent's lawyer. She delivered the documents to the police and confirmed that they had been received by May 2. Later that day, when she learned that the respondent might be out of the country, she renewed her efforts to contact his counsel. When she did talk to him, he told her that he did not have instructions to accept service on behalf of his client.

[18] The police were also diligent in trying to serve the respondent. Constable Bridgette Brosseau attended at the respondent's home and business office on May 2. At the office, employees told her that the respondent was in the United States on a golfing trip and would not return until May 8. On May 9, Constable John DeSouza personally served the respondent with the documents. [See Note 1 at end of document]

[19] In my view, this chronology of the efforts of the Crown and the police establishes that they exercised reasonable diligence in trying to serve the respondent with the relevant documents within the 30-day period prescribed by the Criminal Appeal Rules. The reason that the period was missed had nothing to do with their efforts; rather, the reason was the mundane one that the respondent was away on vacation.

(c) Prejudice to the respondent

[20] Neither the respondent in his affidavit nor his counsel in his able submissions claims that the respondent is prejudiced by service two days outside the statutory period.

(d) Arguable appeal

[21] The operative word with respect to this factor is "arguable". The appeal must have some merit, some prospect of success. The test is no higher than that; it does not, for example, require the court to evaluate the appeal in terms of certainty, or even likelihood, of success.

[22] The Crown's appeal in this case is eminently arguable. The main issue raised in the appeal relates to the admissibility of statements of an accused made at the roadside in the course of an investigation for drinking and driving, prior to the police officer providing s. 10
Charter rights to the accused. This issue arises in the case of R. v. Huff, [1990] O.J. No. 5153, which is scheduled to be argued in this court on August 11, 2000. In my view, the issue is an important and contentious one; it is also, therefore, an arguable one.

(e) Interests of justice

[23] This is, in a sense, an umbrella factor. I suspect that it would be utilized as a balancing factor if some of the other Watkins factors favoured the Crown, while others favoured the respondent. Since I have found in favour of the Crown on all four of the specific factors, it follows that it is in the interests of justice to extend the time within which the Crown can appeal in this case.

Disposition

[24] The application for an order extending the time for filing the notice of application for leave to appeal and notice of appeal against the summary conviction appeal judgment of Dyson J. dated April 7, 2000 is granted. Crown counsel undertook to file these documents by May 29. The order should reflect this date.

Application granted.

Notes

Note 1: There is no suggestion that the respondent was trying to evade service at any time from April 28 to May 9. In his affidavit, the respondent states -- and I accept -- that he was out of the country from April 28 to May 8 on "a previously scheduled golf vacation."