R. v. Thomas (Motion), [1990] 1 S.C.R. 713
Erik James Thomas Applicant
v.
Her Majesty The Queen Respondent
indexed as: r. v. thomas
File No.: 21758.
1990: March 19; 1990: April 5.
Present: Wilson, Sopinka and McLachlin JJ.
applications for an extension of time and for leave to appeal
Criminal law ‑‑ Appeal to Supreme Court of Canada ‑‑ Murder ‑‑ Accused's conviction under s. 213(a) of Criminal Code upheld by Court of Appeal ‑‑ Supreme Court of Canada's decision in Vaillancourt striking down s. 213(d) of the Code rendered ten months after Court of Appeal's decision ‑‑ Accused seeking to raise in Supreme Court the invalidity of s. 213(a) of the Code ‑‑ Accused's applications for an extension of time within which to apply for leave to appeal and for leave to appeal to Supreme Court made almost three years after Court of Appeal's decision ‑‑ Applications dismissed ‑‑ Evidence disclosing no intention to appeal to Supreme Court within prescribed time ‑‑ Delay not adequately explained ‑‑ Accused's case no longer in judicial system ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 691(1)(b) ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, s. 59(1).
Practice ‑‑ Supreme Court of Canada ‑‑ Applications for an extension of time within which to apply for leave to appeal and for leave to appeal ‑‑ Accused's applications to Supreme Court of Canada made almost three years after Court of Appeal affirmed accused's conviction ‑‑ Evidence disclosing no intention to appeal to Supreme Court within prescribed time ‑‑ Delay not adequately explained ‑‑ Accused's case no longer in judicial system ‑‑ Applications dismissed.
Cases Cited
Applied: R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246; referred to: R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 21, 213(a) [rep. & sub. 1974‑75‑76, c. 93, s. 13; rep. & sub. 1980‑81‑82‑83, c. 125, s. 15], 618(1)(b).
Criminal Code, R.S.C., 1985, c. C‑46, s. 691(1)(b) [rep. & sub. c. 34 (3rd Supp.), s. 10].
Supreme Court Act, R.S.C., 1985, c. S‑26, s. 59(1) [rep. & sub. c. 34 (3rd Supp.), s. 6].
APPLICATIONS for an extension of time within which to apply for leave to appeal and for leave to appeal to the Supreme Court of Canada. Applications dismissed.
William Roe, for the applicant.
William F. Ehrcke, for the respondent.
//Sopinka J.//
The judgment of the Court was delivered by
Sopinka J. -- This is an application for (1) an extension of time pursuant to s. 59(1) of the Supreme Court Act, R.S.C., 1985, c. S-26, and if granted, (2) leave to appeal pursuant to s. 691(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46.
The applicant was convicted of second degree murder in 1984. The trial judge had instructed the jury on, inter alia, the operation of ss. 21(2) and 213(a) (now s. 230(a)) of the Criminal Code, R.S.C. 1970, c. C-34. The applicant appealed to the Court of Appeal of British Columbia and while his appeal was pending, the appeal in R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636 had been argued and reserved. The applicant's appeal was heard by the British Columbia Court of Appeal on January 26, 1987 and dismissed the same day: (1987), 1 W.C.B. (2d) 270. No constitutional issue was raised in the appeal which was limited to a complaint with respect to expert evidence.
The Vaillancourt case was argued on December 10, 1986 and released December 3, 1987 striking down then s. 213(d) of the Criminal Code (now s. 230(d)) on the basis that to constitute the charge of murder, at least objective foreseeability of the death of the victim was required in order to conform with the principles of fundamental justice.
At the time the applicant's appeal was dismissed, s. 618(1)(b) (now s. 691(1)(b)) of the Criminal Code provided that an application for leave must be made within "twenty-one days after the judgment appealed from is pronounced or within such extended time as the Supreme Court of Canada or a judge thereof may, for special reasons, allow." His Notice of Application, dated December 9, 1989, is thus nearly three years beyond the prescribed time. The applicant swore an affidavit, submitted with his application, to account for the delay. It included the following assertions: he believes himself to have been wrongly convicted, and has sought throughout to indicate his innocence; at the time of his appeal he was not aware, nor does he believe his lawyer to have been aware, of the pending decision in R. v. Vaillancourt; after his appeal was dismissed, his lawyer contacted him, and he requested that his lawyer send the Court of Appeal's oral reasons; he was aware that the Supreme Court of Canada heard appeals, but was ignorant of the correct procedures for applying for leave; this ignorance and difficulties in obtaining legal aid funding account for his not applying for leave until December 1989. Apart from the applicant's belief that he was wrongly convicted, the evidence discloses no intention to appeal within the prescribed time. He deposes he was aware that the Supreme Court heard appeals, but does not appear to have raised the possibility with his lawyer.
The appropriate test that applies to an appellant who seeks to raise the invalidity of a law under which he or she was convicted on grounds arising out of a subsequent decision of this Court is indicated in R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246. In that case, the Court wrote, at p. 257:
The appropriate test is whether or not the accused is still in the judicial system. As expressed in the Crown's factum, this test affords a means of striking a balance between the "wholly impractical dream of providing perfect justice to all those convicted under the overruled authority and the practical necessity of having some finality in the criminal process". [Emphasis added.]
If the appellant wishes to raise the invalidity of ss. 213(a) and 21(2) of the Criminal Code, he must meet that test. To be in the judicial system one of the following must apply:
an appeal has been launched to this Court;
an application for leave has been made within the time; or
an application for an extension of time is granted based on the criteria that normally apply in such cases.
In a case in which the applicant alleges that he or she was convicted under a provision which has since been declared invalid, he or she should not be placed in a worse position than any other applicant. On the other hand, since we cannot do perfect justice, the applicant should not artificially be brought into the system.
In the circumstances of this case, applying conventional principles, an extension of time should not be granted because:
(a) there was no intention established to appeal within the time; and
(b) the delay has not been adequately explained.
Accordingly, the application for an extension of time is dismissed. The application for leave to appeal which is dependent on an extension of time is also dismissed.
Applications dismissed.
Solicitors for the applicant: Roe & Olson, Saskatoon.
Solicitor for the respondent: The Ministry of the Attorney General, Vancouver.