Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211214 DOCKET: M52801 (C66831)

Lauwers, Paciocco and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Daniel Scott Hulme Applicant/Appellant

Counsel: C. Stephen White and Kristianne C. Anor, for the appellant Tanit Gilliam, for the respondent

Heard: December 9, 2021

Reasons for Decision

[1] On March 26, 2016, Daniel Scott Hulme was arrested while smoking cocaine in a parked motor vehicle that he had been operating erratically. A baggie containing hydromorphone pills and 120 tablets, that appeared to be oxycodone tablets, was found inside the coat Mr. Hulme was wearing. Two of those 120 tablets were subsequently analysed to confirm the chemical contents of the tablets. One tablet was found to contain fentanyl and the other acetylfentanyl, a fentanyl analog that, like fentanyl, is a Schedule I drug.

[2] In a large bag secreted under the rear seat, 11 fentanyl patches were located along with additional hydromorphone pills, as well as 665 tablets that were never analysed but which were identical in size, shape and colour to the fentanyl and acetylfentanyl tablets that were found in Mr. Hulme’s coat.

[3] At his trial, Mr. Hulme pleaded guilty to operating a motor vehicle while impaired by drugs, and possession of cocaine, but not guilty to additional charges. On January 25, 2018, he was convicted of the two offences to which he pleaded guilty, as well as three counts of possession for the purpose of trafficking, one count relating to hydromorphone, another to fentanyl, and another to acetylfentanyl. He was also convicted of one count of possession of the proceeds of crime under $5,000. In the course of her decision, the trial judge inferred that the 665 tablets found in the large bag contained fentanyl and acetylfentanyl.

[4] On March 29, 2018, Mr. Hulme was sentenced to a global sentence of 7 years’ imprisonment. He promptly appealed. His sole ground of appeal, in relation to his conviction appeal, was that the trial judge erred in relying on circumstantial evidence to conclude that the 665 pills contained fentanyl. As part of this appeal he also sought leave to appeal his sentence as harsh and excessive.

[5] Mr. Hulme’s appeal was scheduled to be heard on February 26, 2020. On February 25, 2020, he failed to surrender into custody as required by his bail release order pending appeal. That release order provided that “failure to surrender into custody in accordance with the terms of this release order will be deemed to constitute an abandonment of the appeal”. As a result, his appeal was dismissed as abandoned: R. v. Hulme, 2020 ONCA 156.

[6] Mr. Hulme now applies to reopen his appeal. This court has “extraordinary jurisdiction” arising from its inherent power, to reopen a dismissed appeal in the interests of justice, so long as the appeal has not been dismissed on its merits: R. v. Larocque, 2011 ONCA 814; R. v. Rhingo (1997), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp. 95-96, leave to appeal refused, [1997] S.C.C.A. No. 256; R. v. Riad, 2012 ONCA 300, at para. 4; R. v. Smithen-Davis, 2020 ONCA 759, 68 C.R. (7th) 75, at paras. 56-57. We are not persuaded that it is in the interests of justice to reopen Mr. Hulme’s appeal.

[7] First, the explanation Mr. Hulme has provided for failing to surrender into custody is problematic. Although Mr. Hulme links his decision not to surrender to the paranoia that resulted from his unmedicated mental illness, and his fear of catching COVID-19 in the penitentiary, there is no suggestion that Mr. Hulme was incapable of appreciating his obligation and the risk it entailed. In addition to a lack of evidence that his mental illness was intense enough to warrant sympathetic consideration, Mr. Hulme has not provided an explanation for why he was “unable” to obtain the required medication, leading to his decision to self-medicate, which is an additional breach of the bail pending appeal order. In the circumstances, Mr. Hulme quite rightly admits that he does not have a lawful excuse for failing to surrender. He is responsible for the choice he made not to surrender and to breach his release order, knowing that by not attending he would be deemed to be abandoning his appeal. The choice Mr. Hulme made has caused tremendous inconvenience and expense to the administration of justice.

[8] Second, on their face, Mr. Hulme’s grounds of appeal do not suggest that a miscarriage of justice has occurred. They are anything but strong.

[9] Even if it was wrong of the trial judge to infer that the 665 tablets contained fentanyl, which is unlikely given the circumstantial foundation available to the trial judge for drawing that inference, this ground of appeal cannot realistically result in any of the convictions being set aside. Mr. Hulme does not challenge the fact that other tablets in his possession were confirmed by analysis to contain fentanyl, or that he possessed these other fentanyl tablets in circumstances that drive the conclusion that they were possessed for the purpose of trafficking.

[10] It is not even clear that the elimination of the 665 tablets from consideration would be likely to render Mr. Hulme’s sentence harsh and excessive. He has a prior related record, and the range of Schedule I narcotics in his possession for the purpose of trafficking likely warranted the sentence imposed.

[11] Third, even if we were to accept Mr. Hulme’s explanations for the delay in bringing his application to set aside the dismissal of his appeal, the Crown reasonably relied upon the dismissal of the appeal and the ensuing forfeiture order to dispose of the evidence that had been seized, including the narcotics. The Crown would therefore be prejudiced should a retrial be ordered because the pills could not be analyzed.

[12] Finally, the principle of finality is a material consideration in determining whether the interests of justice warrant reopening a dismissed appeal. It is now over five years since the offence was committed, and more than one year since the appeal was dismissed.

[13] In all of these circumstances the application to reopen is therefore denied.

“P. Lauwers J.A.”

“David M. Paciocco J.A.”

“J.A. Thorburn J.A.”