SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: SCA(P) 2215/12
Date: 2013 03 05
RE: R. v. Andrew G. LEE
Before: Hill J.
Counsel:
E. Taylor, for the Crown
A.G. Lee, in person
Heard: March 5, 2013
ENDORSEMENT
[1] On September 5, 2012, after a trial, Mr. Lee was convicted of dangerous operation of a motor vehicle. He then filed a Form 2 Notice of Appeal against conviction received by the Court on October 1, 2012.
[2] On January 9, 2013, the appellant was sentenced to a $1500 fine and a 9-month driving prohibition.
[3] Mr. Lee is currently a self-represented appellant.
[4] The appellant was before this Court on January 11, 2013 in response to a Summary Conviction Appeal (SCA) Notice of Supervision Hearing pursuant to Rules 40.14 and 40.18 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (the Rules). The SCA Supervision hearing was adjourned to February 22 and then to April 19, 2013 at 10:00 a.m.
[5] On February 27, 2013 the Court received another Form 2 Notice of Appeal which purports to launch an appeal against sentence. On the same date, the appellant filed a Form 1 Notice of Application applying to stay, pending appeal, the driving prohibition and fine imposed at trial, together with a brief affidavit pleading why he wishes reinstatement of his right to drive a motor vehicle.
[6] The appellant was advised that his material before the Court is significantly defective, non-compliant with the Rules of Court and, even extending leeway to a self-represented appellant, inadequate to permit the Court to deliberate upon the application.
[7] Firstly, there is no material in the file to indicate that a Notice of Appeal against sentence was served and filed within 30 days of the January 9, 2013 sentencing date as required by section 815 of the Criminal Code and Rule 40.05. Accordingly, the appellant must apply for an extension of time to file his Notice of Appeal against sentence as provided by Rules 2, 3, 6, and 40.03. This requires at a minimum a Notice of Application to Extend the Time to File a Notice of Appeal Against Sentence and an affidavit addressing issues relevant to the application including the following:
(1) was there an intention on the part of the appellant to appeal sentence within the 30-day period following January 9, 2013?
(2) what is the reason that the appellant failed to file his Notice of Appeal against sentence within that 30-day period?
(3) what diligence did the appellant apply to try to comply with the Rule respecting time-of-filing?
(4) is the appeal against sentence frivolous or not?
[8] On the last point, an appellant must demonstrate that the appeal against sentence has some merit, in the sense of being arguable, even if not likely to succeed. Ordinarily, discharge of showing this requires a copy of the transcript of the Reasons for Sentence, an affidavit from trial counsel, or other material demonstrating possible error by the sentencing court in its determination of the fitness of sentence.
[9] The appellant’s application for a stay of the driving prohibition engages section 261 of the Criminal Code and Rule 41.03(1)(2)(3)(4) and Rule 41.04(1)(2). In addition to a Notice of Application, and the affidavit described in Rule 41.03(1)(c) and (2), the application filed must answer these questions:
(1) is the appeal against conviction and/or sentence frivolous or not?
(2) is it in the public interest to allow the appellant to operate a motor vehicle pending hearing of the appeal considering any prior driving or criminal record, problems with alcohol, et cetera?
(3) would there be a particular undue hardship caused to the appellant if he was unable to drive pending the hearing of his appeal?
[10] Again, in discharging the onus of showing that the appeal is not frivolous, the Court must be apprised of specific grounds of appeal in any Notice of Appeal, including any Supplementary Notice of Appeal, and the relative merits of those grounds as may be disclosed in such filed material as a transcript of a ruling or reasons for judgment of the trial court, or an affidavit from trial counsel, or from equally reliable materials.
[11] The appellant’s application to stay the payment of the imposed fine pending hearing of the appeal engages sections 822(1) and 683(5)(a) of the Criminal Code as well as the Rule 41 subsections already described. Apart from filing material as described in relation to the stay of the driving prohibition, the appellant’s affidavit must indicate why it would be a hardship or otherwise unfair to pay the fine before the appeal is heard by the Court.
[12] Mr. Lee represented to the Court that he may retain a lawyer to assist in these applications and to take on the appeal. He was encouraged to do so.
[13] At the appellant’s request, the applications described in this endorsement are adjourned to March 19, 2013 at 11:00 a.m. to permit him to file materials complying with the relevant Rules and these directions.
[14] This endorsement has been emailed to the appellant at the email address he provided the Registrar of the Court (drewtec83@gmail.com) with reference to the Rules and Criminal Code sections hyperlinked for his reference.
[15] The April 19, 2013 SCA Supervision Hearing appearance remains.
Hill J.
DATE: March 5, 2013
COURT FILE NO.: SCA(P) 2215/12
DATE: 2013 03 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Andrew G. LEE
COUNSEL:
E. Taylor, for the Crown
A.G. Lee, in person
HEARD: March 5, 2013
ENDORSEMENT
Hill J.
DATE: March 5, 2013