ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-07-AP
DATE: 2012-12-14
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. Peter Keen , for the Appellant
Appellant
- and -
MANDY PATRICIA BOUCHARD
Mr. Irwin Z. Isenstein , for the Respondent
Respondent
HEARD: Heard October 29, 2012 at Kenora, Ontario
Regional Senior Justice H.M. Pierce
Reasons on Summary Conviction Appeal
Introduction
[ 1 ] The Crown appeals from a verdict of acquittal by the Honourable Mr. Justice D. Fraser on a charge that the respondent operated a motor vehicle when her blood alcohol concentration exceeded eighty milligrams of alcohol in one hundred millilitres of blood.
[ 2 ] The Crown raises four issues on appeal:
that the trial judge erred in law in finding a breach of the respondent’s s. 9 rights under the Charter of Rights and Freedoms by virtue of the respondent being lodged in a cell before and between breath sampling ;
that he erred in law in finding that the removal of the respondent’s bra while she was in custody constituted a breach of her s. 8 Charter rights, and in excluding the results from her breath testing as a remedy for the breach;
that he erred in law in finding that the breath samples were not obtained “as soon as practicable;” and
that he erred in law in excluding the results from the breath testing pursuant to s. 24(2) of the Charter of Rights and Freedoms without conducting a legal analysis prescribed by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353.
[ 3 ] Before considering the merits of the appeal, it is necessary to deal with a preliminary objection raised by the respondent: that the appeal has not been properly served. The respondent submits that the appeal has not been properly constituted and the reviewing court has no jurisdiction to hear it.
Service of the Notice of Appeal
[ 4 ] The Crown applies for an extension of the time to serve its notice of appeal, pursuant to Rules 2.01 , 3.02 , and 40.18 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) SI/2012-7 (“the Rules”). This application is dated January 18, 2012. However, no order for an extension was sought until the hearing of the appeal itself.
[ 5 ] The facts related to service are that the respondent was acquitted of the charge on November 24, 2011. Service of the notice of appeal was required within 30 days. Having regard for the intervening Christmas and Boxing Day holidays, as defined in Rule 3.01(1) , service of the notice of appeal was required by December 27, 2011.
[ 6 ] The Crown served a courtesy copy of the notice of appeal by facsimile on the respondent’s trial counsel on December 19, 2012. On December 20, 2011, trial counsel advised that he was not instructed to accept service of the notice of appeal and was not retained to argue the appeal.
[ 7 ] On December 19, 2011, the Ontario Provincial Police were instructed to serve the respondent with the notice of appeal. However, service was not effected until January 2, 2012, some six days past the deadline. The affidavit of service was returned to the Crown’s Attorney’s office on January 13, 2012 and filed in the Superior Court of Justice the same day.
[ 8 ] On January 5, 2012, counsel for the respondent advised the appellant that he was retained to act on the appeal; however, he told the appellant that the time for service had expired. He advised the appellant to “take all necessary steps to rectify this.”
[ 9 ] On January 18, 2012, the appellant issued an application seeking an order for extension of the time requirements for serving the respondent with the notice of appeal. The applicant sought an order at the hearing of the appeal for an extension of the time for serving the notice of appeal, in effect, to ratify the service that was out of time.
[ 10 ] The respondent’s position is that the Crown is obliged to apply for an extension before serving the notice of appeal and then serve in accordance with that order. She contends, based on R. v. Holmes, (1982) 1982 (ON CA) , 40 O.R. (2d) 707 (C.A.), para. 14 , and R. v. Henderson, 2011 ONSC 2392 , 234 C.R.R. (2d) 184, that the court has no jurisdiction to ratify service nunc pro tunc or retroactively . The respondent also submits that a validly served notice of appeal is a necessary pre-condition to the court’s jurisdiction to hear an appeal.
[ 11 ] The Crown submits that leave to extend the time for appeal should be granted. It argues that Henderson follows Holmes without distinguishing the applicable factors. At best, the Crown’s submissions on this point were cursory. It was clear that the Crown focused its attention on merits of the appeal.
Analysis
[ 12 ] I accept that the respondent did not waive its objections to the manner of service.
[ 13 ] A consideration of the court’s jurisdiction to hear this appeal begins with s. 815 of the Criminal Code , dealing with extension of time to appeal:
(1) An appellant who proposes to appeal to the appeal court shall give notice of appeal in such manner and within such period as may be directed by rules of court.
(2) The appeal court or judge thereof may at any time extend the time within which notice of appeal may be given.
[ 14 ] Rule 2.01 of the Rules states:
A judge of the court may only dispense with compliance with any rule where and to the extent it is necessary in the interests of justice to do so.
[ 15 ] This rule is amplified by rule 3.02 dealing with extension or abridgment of times in the following terms:
(1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order in accordance with rule 2.01 , on such terms as are just.
(2) An application for an order extending time may be made before or after the expiration of the time prescribed.
[ 16 ] Finally, rule 40.03(1) provides:
Any time limited by this rule may be extended or abridged by a judge, before or after the expiration of the time prescribed, in accordance with rule 3.02 , except that the time limited by subrule 40.16(1) for making an application under subsection 822(4) of the Code [for trial de novo] shall not be extended pursuant to rule 3.02 .
[ 17 ] The factors to be considered by the court in considering whether to grant an application for extension of time to appeal were set out by the Court of Appeal in R. v. Menear, 2002 7570 (ON CA) , [2002] O.J. No. 244 . At para 20, the court held that the following three factors will usually be considered:
(1) whether the applicant has shown a bona fide intention to appeal within the appeal period;
(2) whether the applicant has accounted for or explained the delay; and
(3) whether there is merit to the proposed appeal.
[ 18 ] The Court held that this list was not exhaustive and cited other factors that could be considered, including whether the consequences of conviction were out of proportion to the penalty imposed; whether the Crown will be prejudiced; and whether the applicant has “taken the benefit of the judgment:” (para. 21). The onus is on the applicant to show that justice demands that the extension of time be granted.
[ 19 ] In R. v. Holmes , the Court of Appeal dealt with a Crown appeal from acquittals for impaired driving and failing to provide a breath sample. The notice of appeal was served on the respondent 32 days after the acquittal, or two days after time for service of the notice of appeal had lapsed. On the last day to serve the notice of appeal, the police attended three times at the respondent’s home in an effort to serve him. They continued their search for the respondent the following day, without success. Finally, they were able to locate and serve him the following day, September 14th. Service was therefore two days late. On September 19 th , an order issued extending the time for service of the notice of appeal “to and including the 14 th day of September, 1980.” In other words, the court ratified service as it had been effected, nunc pro tunc. The Crown was not obliged to re-serve the respondent after the order was granted.
[ 20 ] No objection was made to the service when the appeal came on for argument. A new trial was ordered and an appeal was taken in relation to one count on which the accused was convicted at the second trial. That appeal was dismissed.
[ 21 ] Mr. Holmes sought leave to appeal in the Court of Appeal, arguing, for the first time, that the appeal court of the first instance had no jurisdiction to entertain the Crown’s appeal because of improper service. The court agreed. It held that if there is not a valid order extending the time for service of the appeal, and there has not been compliance with the rules for service and filing, the court does not have jurisdiction to entertain the appeal: para. 14.
[ 22 ] At para. 19, the court criticized the process for ratifying service nunc pro tunc , which the court characterized as “a more serious error.” It held:
In my opinion, a judge extending the time for service is not empowered to validate the prior service of the notice of appeal made out of time… [citations omitted]. In my view, where service of the notice of appeal is out of time and thereafter an order is made extending the time for service, the notice of appeal must be re-served within the extended time.
[ 23 ] The reasoning from Holmes was adopted in R. v. Henderson as recently as 2011. The text of the Rules remains the same today as it did when considered by Mr. Justice Ricchetti in Henderson .
[ 24 ] Mr. Henderson was served with the Crown’s notice of appeal in a summary conviction matter 21 days after the appeal period lapsed. At the hearing of the appeal, the Crown sought a nunc pro tunc order ratifying service of its notice of appeal. At no time did the Crown seek an order extending the time to serve Henderson and then attempt to re-serve him. The court concluded that service of the notice of appeal was defective and could not be ratified by a nunc pro tunc order. It also concluded that because service of the notice of appeal was a nullity, the court was without jurisdiction to hear the appeal.
[ 25 ] Reluctantly, I have reached the same conclusion in this case. The Crown did not make any effort to seek an order extending time to serve the notice of appeal, even though it was on notice of the objection and issued an application for that relief on January 18, 2012. Proper service is the foundation of jurisdiction. As there is no power in the court to ratify service after the fact, I am without jurisdiction to hear the appeal.
[ 26 ] Even if the jurisprudence permitted the court to ratify service nunc pro tunc, I am not persuaded that the Crown has demonstrated grounds, as set out in Menear , to issue a remedial order.
[ 27 ] While there is evidence that the Crown had a bona fide intention to appeal within the appeal period, and merit to the proposed appeal, there is no evidence accounting for the delay in serving the respondent. The affidavit in support of the Crown’s application to extend time to serve the notice of appeal contains three paragraphs sworn by an administrative assistant in the Crown Attorney’s office:
(1) On December 19, 2011, I gave the Notice of Appeal for R. vs. Mandy Bouchard to Cst. Joel Stoliker of the Ontario Provincial Police, Kenora Detachment which [sic] verbal instructions to have the document served on the accused [sic].
(2) On January 13, 2012, Cst. Joel Stoliker gave me the Affidavit of Service of Cst. Riley Williams.
(3) On January 13, 2012 I filed said Affidavit with the Superior Court of Justice, Northwest Region in the Kenora Courthouse.
[ 28 ] There is no evidence whether the police were instructed to serve the document on or before December 27 th ; no indication of what efforts police made to locate and serve the respondent and no explanation for the delay in service. Consequently, the application for leave to extend the time to appeal also fails on the Menear factors.
[ 29 ] The appeal is therefore dismissed.
Regional Senior Justice H.M. Pierce
Released: December 14, 2012
COURT FILE NO.: CR-12-07-AP
DATE: 2012-12-14
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJEST THE QUEEN Appellant - and – MANDY PATRICIA BOUCHARD Respondent REASONS ON SUMMARY CONVICTION APPEAL Pierce RSJ.
Released: December 14, 2012
/nf