COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marton, 2016 ONCA 401

DATE: 20160520

DOCKET: M46455

Hoy A.C.J.O. (In Chambers)

BETWEEN

Her Majesty the Queen

Applicant

and

Daniel Marton

Respondent

Karen Papadopoulos, for the applicant

No one appearing for the respondent

Heard: May 16, 2016

ENDORSEMENT

[1] The Crown seeks (1) an order dispensing with notice to the respondent, Daniel Marton, of this application; (2) an extension of time for the service and filing of a notice of appeal of the April 4, 2016, order of the application judge (the “Application NOA”); and (3) an order permitting substituted service of the Application NOA on the respondent.

Background in Brief

[2] The respondent was charged with dangerous operation of a motor vehicle under s. 249(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. The Crown proceeded summarily. The respondent was acquitted.

[3] The Crown sought to appeal the acquittal and, to that end, attempted to personally serve the respondent with a notice of appeal of the dismissal of the dangerous operation charge (the “Dismissal NOA”). It was unsuccessful in doing so and brought an application before the application judge in the Superior Court of Justice for an order directing substituted service of, or dispensing with service of, the Dismissal NOA.

[4] On April 4, 2016, the application judge concluded that he did not have jurisdiction to order substituted service in the case of summary conviction appeals and dismissed the Crown’s application. The Crown seeks to appeal that order to this court. It submits that the application judge erred in law in concluding that the Superior Court of Justice did not have jurisdiction to order substituted service in the case of summary conviction appeals. However, once again, the Crown was unable to serve the notice of appeal on the respondent.

Attempts to Serve Respondent

[5] In support of this application, the Crown has filed the affidavit of P.C. Hulsman, sworn May 5, 2016, detailing efforts undertaken by the police to serve the respondent with the Dismissal NOA and the Application NOA.

[6] Between February 19, 2016, and February 26, 2016, P.C. Hulsman attempted to locate and serve the respondent with the Dismissal NOA.

[7] P.C. Hulsman left messages at the home and cell phone numbers that the respondent had provided to police at the time of his arrest. He also left two messages with the respondent’s trial counsel, letting him know that the Crown was appealing the dismissal and was seeking the respondent’s contact information. Respondent’s trial counsel responded to the second message but did not provide any information about the respondent’s whereabouts.

[8] The respondent’s registered address is at 12109 Heart Lake Road, Caledon. Based on surveillance conducted by the police, P.C. Hulsman concluded that it is the residence of the respondent’s family. Frontal and aerial photographs of the residence are attached to P.C. Hulsman’s affidavit. The residence is enclosed by a security fence and a locked gate that does not permit access to the front door without the permission of a resident. There are security cameras at the front door, there is no mechanism to type in a security code at the gate, and there is no buzzer.

[9] The police have conducted surveillance at the residence in their attempts to serve both the Dismissal NOA and the Application NOA.

[10] On February 20, 2016, an OPP officer attended at the respondent’s family’s residence. After a period of surveillance, the respondent’s mother appeared. She was confrontational and refused to provide any information about her son’s whereabouts.

[11] After this, P.C. Hulsman left further telephone messages, including on the respondent’s parents’ phone. He explained that he was calling to get in touch with the respondent to serve him with the Dismissal NOA.

[12] P.C. Hulsman also contacted the respondent’s insurer. It had the same contact information for the respondent as P.C. Hulsman.

[13] The respondent had testified at trial that he was attending school in Hamilton. P.C. Hulsman contacted McMaster University and Mohawk College, but neither had any record of the respondent. Local police data bases and the Ministry of Transportation database similarly had no records for the respondent.

[14] After the application judge denied the application for substituted service of the Dismissal NOA, P.C. Hulsman asked Detective Constable Bruce Powell, of the Criminal Investigations Branch, to assist in locating the respondent. Detective Constable Powell advised P.C. Hulsman that he received information that the respondent was possibly employed at Maple Leaf Foods Hamilton and of previous addresses in Hamilton associated with the respondent. After further investigation, Detective Constable Hulsman advised that the respondent did not live at any of the addresses and had quit his job at Maple Leaf Foods Hamilton in August 2015.

[15] The Crown advised P.C. Hulsman that it was appealing the application judge’s order on April 28, 2016. However, he was not working that day and did not retrieve the Crown’s message until May 2, 2016. P.C. Hulsman then attempted to serve the Application NOA on the respondent.

[16] On May 2, 2016, P.C. Hulsman and Officer Schultz conducted surveillance on the respondent’s family’s residence for approximately 4.5 hours. For 2.5 hours, they were parked on the driveway in front of the gate. P.C. Hulsman called the home phone ten times and the respondent’s phone twice. No one answered and no one entered or exited the residence. The officers pointed their car’s lights at the residence to get the attention of anyone at home. P.C. Hulsman saw a female appear in front of one of the windows inside the residence.

[17] On May 3, 2016, P.C. Hulsman returned to the respondent’s family’s residence with Officer Fletcher. After approximately 2.5 hours, a white Volvo exited. P.C. Hulsman stopped the vehicle. It was driven by the respondent’s brother, who refused to answer any questions about the respondent’s whereabouts or to put the officers in contact with the respondent or their parents. The officers parked their vehicle in front of the locked gate and called the house phone and the respondent’s cell phone again. No one exited the house or answered either phone. The officers left messages identifying themselves, explaining why they needed to contact the respondent, and asking the respondent and his family to call them back.

[18] On May 2 and 3, 2016, P.C. Hulsman also conducted multiple searches of local databases and the Police Information Portal. He also asked Detective Constable Powell to conduct further database investigations in an effort to locate the respondent.

[19] P.C. Hulsman states, at para. 24 of his affidavit:

I have made every possible attempt to personally serve [the respondent] with the [Application NOA] within the required time period. No person at [the respondent’s] home address would cooperate with the police despite repeated visits to the home. [Despite] my efforts, I have not uncovered any record of [the respondent] attending a post-secondary institution or any record of current employment for him. I have exhausted all investigative means of finding [the respondent]. It is my belief that he lives at home with his family as 12109 Heart Lake Road in Caledon and is evading service of the [Application NOA]. I further believe that leaving a copy of the [Application NOA] at this address will bring the fact of the appeal to his attention.

Notice of this Application

[20] Under s. 815(2) of the Criminal Code, a judge of this court may extend “the time within which notice of appeal may be given.” As noted by Martin J.A. in R. v. Ruffo (1982), 1982 3821 (ON CA), 1 C.C.C. (3d) 358 (Ont. C.A.), at p. 368, “granting of an application to extend the time for appealing without notice to the opposite party is…exceptional and the onus lies on the party seeking an ex parte order to extend the time for appealing to bring himself within an exception.” In general, the moving party must provide evidence (either by way of an affidavit, documentary evidence, or viva voce evidence) that it is impossible to give notice of the application.

[21] In this case, I conclude that P.C. Hulsman’s evidence is sufficient to discharge the onus for justifying an ex parte application. Therefore, notice of this application to the respondent is dispensed with.

Extension of Time

[22] A court hearing an application like this one will consider whether (i) the applicant has shown a bona fide intention to appeal within the appeal period; (ii) the applicant has accounted for or explained the delay; and (iii) there is merit to the proposed appeal. There is no absolute rule to be applied: R. v. Menear (2002), 2002 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), at p. 239.

[23] Justice clearly requires that an extension of time be granted. The Crown has demonstrated a bona fide intention to appeal the application judge’s order within the appeal period. It has explained that the delay is due to its inability to serve the respondent, despite its considerable efforts. And the proposed appeal is clearly arguable. An extension of time to June 13, 2016, is therefore granted.

Substituted Service

[24] The Crown submits that this court has jurisdiction to direct substituted service of the Application NOA pursuant to ss. 839 and 678.1 of the Criminal Code. Further, it submits that in the circumstances, the court should direct substituted service of the Application NOA.

[25] I agree with the Crown that this court has jurisdiction to direct substituted service of the Application NOA.

[26] Section 678.1 provide as follows:

Where a respondent cannot be found after reasonable efforts have been made to serve the respondent with a notice of appeal or notice of an application for leave to appeal, service of the notice of appeal or the notice of the application for leave to appeal may be effected substitutionally in the manner and within the period directed by a judge of the court of appeal.

[27] Pursuant to s. 839(2), s. 678.1 will apply “with such modifications as the circumstances require” to any appeal under s. 839. Section 839(1) provides as follows:

Subject to subsection (1.1), an appeal to the court of appeal…may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone, against

(a) a decision of a court in respect of an appeal under section 822; or

(b) a decision of an appeal court under section 834, except where that court is the court of appeal. [Emphasis added.]

[28] The application judge’s decision is “a decision of a court in respect of an appeal under section 822” of the Criminal Code within the meaning of s. 839(1)(a) . The words “in respect of” are very broad. A decision that the court does not have jurisdiction to direct substituted service of a notice of an appeal under s. 822 is a decision in respect of an appeal under s. 822. That conclusion is supported by R. v. Robertson(1978), 1978 2352 (ON CA), 45 C.C.C. (2d) 344 (Ont. C.A.), where Dubin J.A. concluded a County Court judge’s decision that he lacked the jurisdiction to set aside a notice of abandonment was “a decision in respect of an appeal under” the relevant section. Dubin J.A. rejected the Crown’s argument that this court’s jurisdiction was restricted to decisions on the merits of the appeal. See also R. v. Belaroui (2004), 2004 9844 (QC CA), 186 C.C.C. (3d) 386 (Que. C.A. [In Chambers]) at paras. 10-26.

[29] Accordingly, s. 678.1 of the Code is applicable. As indicated above, that section specifically provides that a judge of this court may order substituted service where a respondent cannot be found after reasonable efforts have been made to serve him.

[30] I note that the Crown does not have an automatic right of appeal in this case. Section 839 provides that an appeal may be taken on any ground that involves a question of law alone, with leave of the court or a judge thereof. Therefore, I believe that what the Crown is attempting to serve is properly called a “Notice of Application for Leave to Appeal and Notice of Appeal”. Possibly, the Crown has described the document as a Notice of Appeal because of the court’s current practice to hear the application for leave to appeal at the time that the appeal is heard.

[31] The next question is whether I should direct substituted service.

[32] The Crown submits that it has met the two conditions for obtaining such an order articulated by Thorson J.A. in R. v. Gruener(1979), 1979 3030 (ON CA), 46 C.C.C. (2d) 88 (Ont. C.A. [In Chambers]): (i) personal service on the respondent is demonstrably not possible, through no fault of the party obliged to affect the service; and (ii) the proposed method of substituted service will in all probability, if not certainty, be effective to bring notice to the respondent.

[33] The Criminal Code did not specifically provide for substituted service when Gruener was decided. Since then, s. 678.1 of the Code was enacted. As noted above, it provides that a judge of this court may order substituted service where a respondent cannot be found after reasonable efforts have been made to serve him. It does not precisely track the first condition in Gruener. However, the reasonableness of the Crown’s efforts to serve a respondent and the effectiveness of the proposed substituted service must still be assessed in light of the possible jeopardy to the respondent’s liberty as a result of the Crown’s appeal. Therefore, Gruener provides helpful guidance.

[34] An appeal to this court could affect the ability of the Crown to pursue an appeal of the dismissal of the dangerous operation charge and, if the Crown successfully appealed the dismissal, the respondent could be imprisoned for up to six months. Therefore, the proposed appeal to this court jeopardizes the respondent’s liberty interest, albeit not directly.

[35] The Crown decided to appeal the application judge’s order near the end of the appeal period. As a result, P.C. Hulsman had a very limited time during which to attempt to affect personal service of the Application NOA (or the Notice of Application for Leave to Appeal and Notice of Appeal, as the case may be). I fully appreciate the efforts taken by the Crown to serve the Dismissal NOA and the record supports the inference that the respondent is evading service. Nonetheless, P.C. Hulsman’s efforts to serve the Application NOA (or the Notice of Application for Leave to Appeal and Notice of Appeal, as the case may be) essentially took place over a two-day period (May 2 and 3, 2016).

[36] At this point, I decline to direct substituted service. The Crown may, however, continue its efforts to personally serve the respondent during the extension of time that I have granted. If unsuccessful, those further efforts, and evidence thereof, may well warrant the requested order for substituted service.

Disposition

[37] For the reasons provided, the Crown’s application for an extension of time and for dispending with notice of this application to the respondent is granted but the application for substituted service is dismissed. The Crown shall serve and file the Application NOA (or the Notice of Application for Leave to Appeal and Notice of Appeal, as the case may be) on or before June 13, 2016.

“Alexandra Hoy A.C.J.O.”