CITATION: R. v. Junkert, 2009 ONCA 922

DATE: 20090714

DOCKET: M37772

COURT OF APPEAL FOR ONTARIO

Epstein J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Junkert

Appellant

Alan D. Gold, for the appellant

Kim Crosbie, for the respondent

Heard: July 9, 2009

ENDORSEMENT

[1] The applicant, Matthew Junkert, seeks an extension of time to appeal from his conviction on January 15, 2009 of impaired driving causing death, dangerous driving causing death and driving a motor vehicle having a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood and from the sentence subsequently imposed.

Background Facts

[2] On November 29, 2006, Mr. Junkert was driving a car that struck and killed a pedestrian. He was arrested at the scene and was later charged with the offences noted above as well as criminal negligence causing death.

[3] The primary issues the trial judge faced involved the admissibility of certain evidence gathered at the time of Mr. Junkert’s arrest and causation.

[4] The trial judge admitted the challenged evidence and at the end of a detailed analysis, concluded that he was satisfied beyond a reasonable doubt that Mr. Junkert was guilty of all of the charged offences except that of criminal negligence causing death.

[5] On April 27, 2009 the trial judge sentenced Mr. Junkert to five years imprisonment and was sent to the Millhaven Institution.

Analysis

[6] The criteria the applicant must demonstrate to obtain the extension are well established: see R. v. Menear (2002), 2002 7570 (ON CA), 162 C.C.C. (3d) 233 at para. 20 (Ont. C.A.).

• He must show that he had a bona fide intention to appeal within the appeal period;

• He must account for or explain the delay in bringing his motion to extend the time; and

• He must show that his proposed appeal has merit.

[7] Fairly, the Crown does not take issue that Mr. Junkert has met the first two criteria. The Crown submits, however, that I should refuse the extension because the appeal has no merit.

[8] I disagree. In my view Mr. Junkert has met all three criteria and has shown that the interests of justice warrant the extension he seeks.

1. Bona Fide Intention to Appeal within the Thirty-Day Appeal Period.

[9] It is clear that Mr. Junkert had a bona fide intention to appeal within the appeal period. This is demonstrated by the timely contact with Mr. Gold’s office. Therefore he has satisfied the first criterion.

2. Explanation for the Delay

[10] The explanation for the brief delay in filing the notice of appeal lies in problems associated with internal procedures at Millhaven. This is the chronology of what happened.

[11] Mr. Junkert’s father contacted Mr. Gold with a view to retaining him as appellate counsel. He told Mr. Gold that he was making arrangements to obtain the required retainer and that Mr. Junkert was filing an inmate notice of appeal.

[12] On several occasions after Mr. Gold was retained, a summer student at his office, went to the office of the Registrar of the Court of Appeal to obtain a copy of the inmate notice of appeal. He was advised that a notice had not yet been filed.

[13] In fact, Mr. Junkert was attempting to file an inmate notice of appeal but was encountering difficulties. On May 25, 2009, he asked to see a Legal Aid representative for the purpose of obtaining assistance and documentation necessary to complete the inmate appeal documents. The meeting, originally scheduled for June 10, 2009, had been adjourned to June 17, 2009. This meeting was again postponed. No explanation was given for these delays.

[14] On June 26, 2009, Mr. Junkert, who apparently had limited access to a telephone, called Mr. Gold’s office and advised that on the various dates set for the meeting with a legal aid lawyer he had not been taken out of his cell.

[15] Mr. Junkert was ultimately able to file an inmate notice of appeal on June 22, 2009.

[16] The delay is short and Mr. Junkert has satisfactorily accounted for it.

3. Merit of the Appeal and Prejudice

[17] The Crown argues that I should not grant the extension on the basis that the appeal has no merit.

[18] Mr. Gold’s response is two-fold. First, he strenuously argues that in circum-stances such as this where the Crown takes no issue over the first two tests, it is simply unfair to force the applicant to satisfy the third prong of the test. More specifically, if, as in this case, there is a clear intention to appeal within the appeal period and the delay is brief and of no fault to the applicant, forcing the applicant to demonstrate that the appeal has merit, unfairly deprives him of what otherwise would be an appeal as of right.

[19] While this argument is compelling, the authorities do not support Mr. Gold’s submission and, in any event, in my view the concern he expresses is met within the balancing of the Menear test, that includes taking into account the interests of justice.

[20] First, I note that this court has consistently considered all three prongs of the Menear test, even when the first two prongs are either not contested by the Crown, or are met. For instance, in R. v. Stirling, [2005] O.J. No. 5341, Feldman J.A. held that the applicant met the first two factors yet went on to consider the third before reaching an ultimate decision. It should be noted, however, that she approached the issue of the merit of the appeal “on a facial reading of the record before the court” (emphasis added).

[21] Similarly, in R. v. Hayes (2007), 2007 ONCA 816, 231 O.A.C. 163 (Ont. C.A.), the Crown did not contest the first two prongs, but opposed the application solely on the basis of the third factor in Menear. In that case, the applicant sought to appeal his sentence, which had been determined on the basis of a joint submission. MacPherson J.A. considered the third prong and held that it was not met: the sentence was almost certainly fit when it was imposed, and it would be nearly impossible to dislodge it in a straightforward sentence appeal. Nevertheless, MacPherson J.A. granted the application on one of the further factors set out in Sterling, namely, the consequence of the sentence, not known at the time it was handed down, was profoundly disproportionate to the sentence itself. Specifically, the applicant was banished from his First Nations reserve on account of his conviction.

[22] Finally, in R. v. Garland, 2008 ONCA 134, Laskin J.A. considered the third factor even though the Crown conceded that the first two had been met. Justice Laskin held that the third criterion had also been met, and granted the application.

[23] In my view, the response to Mr. Gold’s submissions concerning the import of the third prong in circumstances where the first two are not contested or clearly met is through the balancing that invariably takes place in order to determine the interests of justice. I underline the point expressed by Laskin J.A. in Garland to the effect that the Menear criteria do not amount to a rigid test.

[24] This takes me to Mr. Gold’s second submission under this aspect of the test – that the appeal has merit.

[25] The merit of Mr. Junkert’s appeal is set out in the June 16, 2009 letter from Mr. Junkert’s trial counsel to Mr. Gold in which trial counsel expresses concern about the trial judge’s treatment of the evidence of the accident reconstructionists, the section 8 Charter application and the 20 months of house arrest in arriving at a fit sentence. While Mr. Junkert may have an uphill battle, I cannot say that the appeal is hopeless.

[26] In the end, as Feldman J.A. emphasized in Sterling, the focus must be on the interests of justice. And in the circumstances here, I have no hesitation in concluding that the interests of justice favour allowing the requested extension of time.

Disposition

[27] I grant the motion and extend the time for Mr. Junkert to serve and file a notice of appeal until 15 days after the release of these reasons.

“G.J. Epstein J.A.”