R. v. Hayes, 2007 ONCA 816

CITATION: R. v. Hayes, 2007 ONCA 816

DATE: 20071128

DOCKET: M35734

COURT OF APPEAL FOR ONTARIO

MACPHERSON J.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

RICHARD HAYES

Applicant

Clayton C. Ruby for the applicant

Nicholas E. Devlin for the respondent

Heard: November 20, 2007

MACPHERSON J.A.:

A. OVERVIEW

[1] The applicant, Richard Hayes, seeks an extension of time within which to appeal sentence. He received a lenient sentence, based on a joint submission, for three criminal offences. The sentence was demonstrably fit.

[2] However, the conviction and sentence provoked an unusual and serious consequence. Shortly after the sentence was imposed, the band council on the reserve where the applicant lived and worked, passed a resolution banishing him from the community. The applicant departed and has not returned.

[3] The applicant has challenged the validity of the band council resolution in the Federal Court of Canada. However, he has also decided that he wants to appeal his sentence in the hope that if it is reduced to a conditional discharge, the band council might reconsider its banishment order. When the applicant reached this decision, the 30-day period for appeal had lapsed – by four days. Hence the applicant brings this application for an extension of time.

B. FACTS

[4] Richard Hayes, a non-First Nations person, has lived with his common law spouse, Donna Shilling, a First Nations woman, on the Curve Lake First Nation Indian Reserve for almost five years. Ms. Shilling, a long-time band member, owns, and she and the applicant manage, Charlie’s Bay Convenience and Marina. With some seasonal fluctuation, the business employs about eight people.

[5] On September 26, 2007, the applicant, who had no previous criminal record, pleaded guilty to three charges: possession of a controlled substance for the purpose of trafficking (marijuana, 600 g) contrary to s. 5(2) of the Controlled Drugs and Substances Act, possession of property obtained by crime (about $300 in cash) contrary to s. 354(1)(a) of the Criminal Code, and possession of a weapon for a dangerous purpose (a telescoping baton) contrary to s. 88 of the Criminal Code. The marijuana and baton were found in the couple’s residence. The money was found on the applicant’s person. Ms. Shilling was also charged; the charges against her were withdrawn immediately after the applicant was convicted and sentenced.

[6] Following a joint submission which he accepted, the trial judge, Morgan J., imposed a sentence of a $1000 fine and a $150 victim fine surcharge for the drug offence and a suspended sentence with one year’s non-reporting probation and a forfeiture order for the Criminal Code offences.

[7] Two weeks later, on October 11, 2007, the Chief of Curve Lake’s Anishinabek Police came to the convenience store and delivered band council Resolution Number 479/2007-2008-17, which provided:

THAT Rick Hayes is an undesirable due to his criminal record, which includes Possession for the Purpose of Trafficking, Possession of Marijuana, and Possession of a Prohibited Weapon. His presence being reported to Chief and Council by the Anishinabek Police Service;

AND WHEREAS Rick Hayes is not a Status Indian or a member of Curve Lake First Nation;

AND WHEREAS Rick Hayes does not have a leasehold interest on Curve Lake Indian Reserve No. 35 and 35A;

THEREFORE, he has been deemed undesirable and no longer welcome on Curve Lake Indian Reserve No. 35 and 35A. Therefore Rick Hayes is no longer allowed to reside or set foot on Curve Lake Indian Reserve No. 35 and 35A without prior written permission of Chief and Council.

THEREFORE BE IT FURTHER RESOLVED that Rick Hayes has 12 hours from receipt of this First Nation Council Resolution to remove himself and his personal belongings from Curve Lake Indian Reserve No. 35 and 35 A.

The resolution was signed by the chief and seven of the eight band councillors.

[8] The applicant and Ms. Shilling left the reserve and took up residence in a log cabin with no central heating or running water on a friend’s property about a forty-five minute drive from the reserve. Ms. Shilling drove back daily to work at the store.

[9] On the reserve, which was a population of less than 1000, almost immediately about 160 people signed a petition titled “Help Keep Rick”. At a well-attended meeting on October 22, 2007, the band council refused to reconsider its resolution.

[10] Meanwhile, the applicant and Ms. Shilling began to explore their legal options. On October 19, while Ms. Shilling was attending court in Peterborough as a witness on another matter, she spoke to an unnamed lawyer who recommended that she contact Clayton Ruby. A friend contacted Mr. Ruby’s office on October 24 and an appointment was made for October 30 – the earliest time slot Mr. Ruby had available.

[11] Following the October 30 meeting, the applicant instructed Mr. Ruby to proceed on two fronts – a direct challenge to the band council’s resolution in the Federal Court (an application was filed on November 8), and an appeal from the criminal sentence. The reason for the sentence appeal route is the hope that if the sentence appeal were successful and the sentence were reduced to a conditional discharge, the applicant would have no criminal record. This in turn might encourage the band council to reconsider its resolution since the stated foundation of that resolution was that “Rick Hayes is an undesirable due to his criminal record”.

[12] By the time the applicant gave instructions to appeal his sentence, the 30-day appeal period had lapsed by four days. Accordingly, this application for an extension of time was brought.

C. ISSUE

[13] The sole issue on this appeal is whether an extension of time should be granted to the applicant to appeal his sentence.

D. ANALYSIS

[14] The test for granting an extension of time is well-known and undisputed. As expressed by the court in R. v. Menear (2002), 2002 CanLII 7570 (ON CA), 162 C.C.C. (3d) 233 at paras. 20 and 21 (Ont. C.A.):

There is no absolute rule to be applied in the exercise of the discretion whether or not to grant an extension of time. The court will, however, usually consider the following three factors:

i. whether the applicant has shown a bona fide intention to appeal within the appeal period;

ii. whether the applicant has accounted for or explained the delay; and

iii. whether there is merit to the proposed appeal.

In the end, the main consideration is whether the applicant has demonstrated that justice requires that the extension of time be granted.

[15] The respondent does not contest the applicant’s establishment of the first two factors in Menear. Although the respondent could have taken the position that the applicant did not show an intention to appeal the sentence until October 30, 2007, four days outside the 30-day appeal period, in light of the unusual circumstances in this case and the fact that the applicant was clearly exploring his legal options almost immediately after receiving the resolution, the respondent, fairly, does not advance this argument. Moreover, the applicant’s explanation for the delay – no knowledge of the resolution until the day he received it, followed by about two weeks before he met Mr. Ruby – is manifestly a reasonable explanation.

[16] The respondent opposes the application solely on the basis of the third factor in Menear. As set out succinctly in the first paragraph of its factum, the respondent’s position is:

The Crown opposes this Application on one basis: the proposed appeal has no prospect of success. The trial judge imposed a lenient sentence in accordance with a joint submission for commercial drug dealing at the pound-level. There is no ground of appeal and no chance of success. While sympathetic, the Applicant’s case finds its remedy in the civil courts, not in a criminal appeal. [Emphasis in original.]

[17] The respondent’s argument in support of this position encompasses the following propositions. First, the standard of review on sentencing generally is highly deferential: see R. v. Shropshire (1995), 102 C.C.C. (3d) 195 at para. 48 (S.C.C.). Second, it was entirely appropriate for the trial judge to accept the joint submission regarding sentence: see R. v. Cerasuolo (2001), 2001 CanLII 24172 (ON CA), 151 C.C.C. (3d) 445 at para. 8 (Ont. C.A.). Third, the sentence imposed for commercial drug trafficking was, if anything, very lenient: see Simon Armstrong et al., Sentencing Drug Offenders (Toronto: Canada Law Book, 2007), at 4-15. Fourth, collateral impacts, such as the subsequent banishment of the applicant in this case, do not justify altering a fit sentence and imposing a sentence that would be demonstrably unfit: see R. v. Spencer (2004), 2004 CanLII 5550 (ON CA), 186 C.C.C. (3d) 181 at para. 45 (Ont. C.A.). Fifth, the better route for the applicant to attack his banishment is by challenging the band council’s resolution as he has done in his recently filed application to the Federal Court of Canada. Sixth, even if the applicant’s sentence were reduced to a conditional discharge, thus removing his criminal record, this would not likely affect the band council’s decision because that decision was based on the fact that the applicant was commercially dealing drugs in the community. Thus, as the respondent puts it in its factum, “[t]he legal niceties of the difference between a discharge and a fine are of the barest of relevance to his situation.”

[18] I agree with a substantial portion of the respondent’s arguments. In my view, the sentence was almost certainly fit when it was imposed; it would be nearly impossible to dislodge it in a straightforward sentence appeal. I also think that the more direct route to challenge the band council resolution is the judicial review application already launched by the applicant in the Federal Court of Canada. Finally, although the respondent’s proposition that the band council would not alter its resolution in the face of a new sentence of a conditional sentence is in the realm of speculation, it strikes me as more likely right than wrong.

[19] Nevertheless, although this is a close case, I conclude that, in the language of Menear, “justice requires that the extension of time be granted.”

[20] There is a narrow category of cases in which an extension of time has been granted where the consequences of a conviction and/or sentence, not known at the time the conviction and/or sentence was handed down, are profoundly disproportionate to them.

[21] In R. v. Hetsberger (1979), 1979 CanLII 2977 (ON CA), 47 C.C.C. (2d) 154 (Ont. C.A.), Weatherston J.A. granted an extension of time to appeal a minor conviction that resulted in a sentence of one day in jail and a fine of $400, because a later consequence – possible deportation – was “out of all proportion to the penalty imposed” (p. 155).

[22] Similarly in R. v. Gaudreault (1992), 1992 CanLII 3320 (QC CA), 76 C.C.C. (3d) 188 (Que. C.A.), Fish J.A., citing Hetsberger, permitted an extension to appeal a conviction by a lawyer. He explained, at p. 191:

Though the delays for appeal have long expired, it is relatively recently that Gaudreault learned of a serious and unexpected consequence of his guilty pleas. He became aware only in February of this year that the Bar of Quebec had suspended him from the practise of law for three months plus one day, beginning January 13, 1992 on the particular grounds of his convictions in this case. [Emphasis in original.]

[23] It is true that both Hetsberger and Gaudreault involved proposed conviction appeals and that the chambers judges found that there was at least an arguable ground of appeal against conviction. The present case is a proposed sentence appeal and, in my view, there would be no merit to the appeal if it is viewed through the lens of a straightforward appeal. However, I am not persuaded that these differences should control the result in this application. Both Weatherston J.A. and Fish J.A. were clearly moved by what they regarded as a “consequence … out of all proportion to the penalty imposed” (Hetsberger at 155) and “the drastic and unanticipated result of the conviction” (Gaudreault at 191). That is the analogy I would draw between these cases and this application.

[24] Finally, there is a third case directly on point that I find persuasive. In R. v. Litvinov, [1996] A.J. No. 1110 (Alta. Q.B.), Veit J. granted an extension of time to appeal a sentence of a fine of $300, a victim surcharge of $125 and six months’ probation, as well as to seek a conditional discharge because the criminal conviction might serve as a bar to the applicant becoming a landed immigrant. Veit J. stated, at para. 3, that “Mr. Litvinov pleaded guilty to that offence without consideration for the serious immigration effects of entering the verdict; immigration effects may be disproportionate to Mr. Litvinov’s culpability.” She explained the applicant’s situation in the following fashion, at paras. 16 and 17:

This is not a situation in which the appellant contends that the sentence imposed was wrong; manifestly on the basis of the arguments before it, it is not.

Rather, this is a case where the offender says there is a point that I did not mention during the sentence hearing. I didn’t raise it because I did not realize that it was important. It would be unfair if I were not allowed to raise it.

[25] It strikes me that the applicant is in a similar position to Mr. Litvinov. A particularly serious consequence of the conviction of the applicant – his banishment from his home, business and community – has arisen. He wants an opportunity to persuade this court that, in light of this consequence alone (I observe that this is analogous to a fresh evidence application), he should receive a different sentence.

[26] I recognize that granting an extension of time to appeal a conviction or sentence comes at a cost and that such an order “should be made only in exceptional circumstances where there is real concern that an injustice may have occurred”: see R. v. Closs, 1998 CanLII 1921 (ON CA), [1998] O.J. No. 172 at para. 8 (C.A.). In my view, this is such a case. The very short missing of the appeal period (four days) coupled with the unexpected and drastic consequences flowing from the applicant’s first criminal conviction lead me to conclude, in the language from Menear, that the applicant has demonstrated that justice requires that the extension of time be granted.

E. DISPOSITION

[27] The application for an extension of time to file a notice of appeal is granted. The applicant may file a notice of appeal within seven days of the release of this judgment.

RELEASED: November 28, 2007 (“JM”)

“J.C. MacPherson J.A.”