COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gatfield, 2016 ONCA 23

DATE: 20160113

DOCKET: M45553 (M36541)

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harvey Gatfield

Applicant

Mark Halfyard and Breana Vandebeek, for the applicant

Michael Bernstein, for the respondent

Heard: January 5, 2016

On application for an extension of time within which to seek a review of the order of Justice S. Borins of the Court of Appeal for Ontario, In Chambers, dated November 14, 2008.

By the Court:

I. Background

[1] On February 26, 2002, following a trial by judge and jury, the applicant Harvey Gatfield was convicted of second-degree murder. On April 29, 2002, he was sentenced to life imprisonment without eligibility for parole for 18 years.

[2] About six and one-half years after his conviction and his sentencing hearing, the applicant applied to a single judge of this court for an order extending the time within which to serve and file a notice of appeal from his conviction and sentence. On November 14, 2008, for clear albeit concise reasons, Borins J.A. of this court dismissed the applicant’s extension application. In so doing, he said:

The long delay since the date of the conviction – 6 ½ years – is disturbing. The appellant’s assertion that he thought it took a long time to process a prisoner’s appeal does not explain the lengthy lack of due diligence in pursuing the appeal. Therefore, his lack of diligence in pursuing the appeal outweighs his apparent intention to appeal within the allotted time. All of this is underscored by the appellant’s inability to provide a credible reason for the delay that is demonstrated by his cross-examination.

Given the long unexplained delay on the part of the appellant, I do not believe it is in the interests of justice to grant an extension of time to appeal.

[3] More than seven years have passed since the date of Borins J.A.’s dismissal order. Nonetheless, the applicant now applies for an order extending the time to serve and file an application requesting a review of Borins J.A.’s order and, if an extension be granted, seeks a panel review of that order with the objective of having it set aside and obtaining an extension of time within which to appeal from both his murder conviction and sentence.

[4] By order of Epstein J.A. of this court dated October 28, 2015, the applicant’s request for an extension of time and, if an extension be granted, his request for a panel review of Borins J.A.’s order were directed to be heard together by a full panel of this court.

II. Discussion

[5] As appears from the facts described above, the circumstances surrounding the current applications are most unusual. Almost 14 years ago, a jury convicted the appellant of murder. And, as we have said, the order denying the applicant an extension of time to appeal was itself made more than seven years ago. It is incumbent on the applicant to demonstrate that the justice of the case requires that an extension of time to seek to set aside Borins J.A.’s order be granted notwithstanding this lengthy delay: R. v. Ansari, 2015 ONCA 891, at para. 23.

[6] In our view, the applicant has failed to meet this burden.

[7] First, apart from the lengthy and inadequately explained delay in moving initially before Borins J.A. for an extension of time within which to file a notice of appeal from his conviction and sentence (six and one-half years from the date of the applicant’s conviction), there is no evidence before this court that the applicant formed a bona fide intention to seek an order setting aside Borins J.A.’s order on a timely basis.

[8] Indeed, the evidence is to the contrary. Based on the applicant’s own evidence on cross-examination, he did not begin to consider the option of seeking to set aside Borins J.A.’s order of November 2008 until December 2013 – five years after the date of the order. Even then, the applicant did not commit to pursuing this option. On the record before us, it was not until March or April 2015 that he initiated an application aimed at securing a review of Borins J.A.’s order.

[9] It follows that, contrary to the applicant’s contention, the record belies the claim that the applicant moved with due diligence to set aside Borins J.A.’s order. The record reveals that he waited years before taking any steps to obtain relief from the denial of his extension application. Even after he learned, at the latest, by October 2013 that he could move to set aside Borins J.A.’s order, the applicant did not move until the spring of 2015 for an extension of time within which to seek a review of the order.

[10] We accept that the applicant’s limited education and the fact of his incarceration, among other factors, may have contributed to difficulties in moving this matter forward. However, in our view, the applicant has failed to offer a reasonable explanation for his very lengthy delay.

[11] Perhaps more importantly, the applicant has failed to demonstrate any basis for intervention with Borins J.A.’s discretionary order. The circumstances in which a panel of this court will reconsider the decision of a single judge of this court to deny an application for an extension of time are narrow: see for example, R. v. Shea, 2010 SCC 26, [2010] 2 S.C.R. 17. No party is entitled to an extension of time as of right. Rather, the decision to grant or refuse an extension is discretionary: Ansari, at para. 21. This has particular significance where the extension sought is to seek a review of a discretionary decision of a single judge of this court.

[12] The applicant submits that it was unreasonable for Borins J.A. to conclude, as he did, that the applicant had failed to advance an adequate explanation for his six and one-half year delay in seeking an extension of time within which to appeal. He further submits that Borins J.A. erred by ignoring the applicant’s efforts, following his conviction and sentencing hearing, to initiate an appeal, and the factors that impeded those efforts.

[13] Again, we disagree.

[14] It was open to Borins J.A., on the record before him, to conclude that the applicant had failed to move with dispatch to ensure that an appeal was properly initiated before this court. The record reveals unexplained periods of several years’ pre-2008 delay when the applicant took little, if any, steps to proceed with an appeal or an extension application.

[15] Moreover, the record confirms that the applicant was familiar with the procedures involved in processing an inmate appeal. Following his incarceration and before the date of his application before Borins J.A., the applicant applied in writing for an extension of time to appeal from his convictions on other offences. That application was dismissed by this court on October 22, 2007: R. v. Gatfield, M34771, October 22, 2007. In refusing the extension application, this court stated, at paras. 6 and 9:

The overriding consideration on a motion for an extension of time to file a notice of appeal is whether the interest of justice requires the application be granted. In answering this question, the court will consider whether the applicant had a bona fide intention to appeal within the appeal period, the explanation for the delay in filing, and whether there is merit to the appeal.

The Crown submits that despite the evidence of the applicant’s bona fide intention, the applicant did not demonstrate appropriate diligence in pursing his appeal over the five years between his original attempt to file a Notice of Appeal in March 2002 and his second Notice of Appeal filed on February 21, 2007. We agree that the long unexplained delay on the part of the applicant during that period is troubling. The applicant’s lack of diligence in pursuing his appeal outweighs his bona fide intention to appeal within the allotted period in determining the interests of justice. The vague assertion that he needed to deal with another charge does not explain five years of lack of diligence in pursuing the appeal.

In our view, these comments are also apposite here.

[16] Nor do we see any ground on which to conclude that Borins J.A. ignored any relevant factors in deciding to deny the applicant’s extension application. Justice Borins had a full record of the applicant’s activities in connection with his proposed appeals before him, including the transcript of the applicant’s cross-examination on his affidavit filed in support of the extension application. His reasons afford no basis for concluding that he ignored any salient part of that record, or the evidence relied on by the applicant as an explanation for his delay.

[17] Finally, we agree with the Crown that the nature of these applications is relevant to the question whether the discretionary relief sought should be granted. The issue before us is not whether the applicant’s proposed appeals from conviction and sentence have merit. Rather, the issue is whether it is in the interests of justice to permit the applicant, after extraordinary delay, to seek to set aside Borins J.A.’s dismissal order.

[18] That said, we have nonetheless reviewed the trial judge’s charge to the jury in light of the proposed grounds of appeal identified by the applicant (which, we note, include two grounds not raised before Borins J.A.). Having done so, we are far from persuaded that there is any substantive merit to the proposed conviction appeal. Nor do we think it likely that a panel of this court would regard the sentence imposed as manifestly unfit or tainted by any error in principle.

III. Disposition

[19] For these reasons, the application for an extension of time to seek a review of the order of Borins J.A. by a panel of this court is dismissed. It is therefore unnecessary to further address the merits of that proposed review.

[20] We thank all counsel for their helpful and considered submissions in this matter.

“E.A. Cronk J.A.”

“M. Tulloch J.A.”

“K. van Rensburg J.A.”