Court of Appeal for Ontario

Citation: R. v. Luangchaleun, 2021 ONCA 108

Date: 2021-02-18

Docket: M52039

Before: MacPherson J.A. (Motions Judge)

Between

Her Majesty the Queen

Responding Party

and

Kevin Luangchaleun

Applicant

Counsel:

Kevin Luangchaleun, acting in person

Lindsay Daviau, appearing as duty counsel

Nicole Rivers, for the responding party

Heard: February 9, 2021 by video conference

REASONS FOR DECISION

[1] More than 11 ½ years ago, on June 12, 2009, the applicant Kevin Luangchaleun was found not criminally responsible (NCR) by reason of mental disorder of assault with a weapon and criminal harassment. He has remained under the jurisdiction of the Ontario Review Board (ORB) since that date.

[2] The facts that gave rise to the underlying charges against the applicant can be briefly stated. On February 16, 2009, the applicant, while under the influence of substances, attended a restaurant in Newmarket and tried to locate the complainant who was an employee working there. He had done this on several previous occasions. This time, he became enraged and started waving a large butcher knife in the air in a threatening manner when other employees would not let him speak to the complainant or enter farther into the premises.

[3] The test on an application to extend the time to file a Notice of Appeal is “whether the applicant has demonstrated that justice requires that the extension of time be granted”: R. v. Menear, (2002), 2002 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), at para. 21. As the court said in Menear, at para. 20:

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.

[4] On the first factor, the applicant filed a Notice of Appeal on December 10, 2020. This is 11 ½ years after the NCR finding and almost as long outside the appeal period.

[5] In his affidavit, the applicant states that he has always had an intention to appeal the NCR finding. This is a bald assertion and says nothing about his intention to appeal within the appeal period.

[6] On the second factor, in the Notice of Motion one of the grounds is that the applicant “needed additional time to seek legal advice for his NCR appeal”. In his affidavit, the applicant states: “I have been unsuccessfully to have numerous counsel help over the last 11 years, and because legal aid had denied me this right to bring this appeal numerous times before this date.” Although one can have sympathy for an NCR accused trying to navigate the criminal justice appeal system, especially while continuing to be under the jurisdiction of the ORB, the applicant’s explanation does not justify an 11 ½ year delay in filing a Notice of Appeal challenging the NCR finding.

[7] On the third factor, I see no merit in the applicant’s proposed appeal against the NCR finding. Applications for an extension of time to file a Notice of Appeal and applications for the appointment of counsel pursuant to s. 684 of the Criminal Code overlap in one important respect: the tests for resolving the applications both contain as a crucial factor the merits of the appeal.

[8] On December 23, 2020, the applicant brought an application for the appointment of counsel to represent him on his application for an extension of time to file a Notice of Appeal from the NCR finding in 2009. In reasons dated January 12, 2021, Coroza J.A. dismissed the application. With respect to the merits of the proposed appeal, Coroza J.A. said, at paras. 13-16:

First, I agree with the Crown that as the application and appeal have no merit, they will not be helped by the appointment of counsel.

Second, the only grounds of appeal articulated in relation to the NCR appeal are broadly worded:

a) The court erred in fact and law;

b) The court erred in fact and law in finding the appellant NCR;

c) The court’s disposition is unreasonable in the evidence;

d) The court conducted a hearing that ignored the basic rights of procedural fairness, which created substantial prejudice to the appellant.

Nothing in the materials before me would allow this court to determine the merits of these proposed grounds of appeal.

This is not a close case. The application is dismissed.

[9] My analysis on the ‘merits of the proposed appeal’ issue on the motion for an extension of time to file a Notice of Appeal is identical to that of Coroza J.A. on the s. 684 application.

[10] For these reasons, the application for an extension of time to file a Notice of Appeal challenging the 2009 NCR ruling is dismissed.

“J.C. MacPherson J.A.”