Court File and Parties

COURT FILE NO.: 2016-30000065 DATE: 20160829 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Trevor Franklin

BEFORE: R. Clark J.

COUNSEL: Counsel for the Crown, Darren Hogan The Applicant, Self-Represented

HEARD: July 20, 2016

Endorsement

Introduction

[1] On March 20, 2014, the applicant was convicted of simple assault by Hackett J. in the Ontario Court of Justice. The applicant appealed to this court. On May 18, 2016, the date set for the hearing of his appeal, he failed to attend court and his appeal was dismissed as abandoned. He now seeks to have it restored; the Crown opposes his application.

[2] The applicant has been self-represented throughout his time in this court, but it appears that, from time to time at least, he has had the benefit of legal advice from Downtown Legal Services (“DLS”), the student legal aid clinic operated by the University of Toronto’s law school.

[3] The matter was first before this court on June 9, 2014. Goldstein J. adjourned it to July 21, 2014, to give the applicant an opportunity to consult DLS and to secure transcripts.

[4] On July 21, 2014, Croll J. adjourned the matter to the Special Assignment Court on September 19, 2014.

[5] On September 19, 2014, the applicant failed to appear. MacDonnell J. adjourned the matter to October 17, 2014, with the Crown undertaking to notify the applicant.

[6] On October 17, 2014, MacDonnell J. adjourned the matter to January 9, 2015. The endorsement indicates that the defendant was to contact DLS.

[7] On January 9, 2015, MacDonnell J. adjourned the matter to January 23, 2015, with endorsement that “DLS will do an intake”.

[8] On January 23, 2015, M. Brown J. adjourned the matter to February 20, 2015, with the endorsement: “DLS to inquire as to status. No one appearing.”

[9] On February 20, 2015, the defendant failed to appear, but sent a letter requesting an adjournment. MacDonnell J. adjourned the matter to March 6, 2015.

[10] On March 6, 2014, MacDonnell J. adjourned the matter to May 22, 2014, with the endorsement: “[defendant] to raise funds for lawyer.”

[11] On May 22, 2015, MacDonald J. wrote the following endorsement:

Mr. Franklin not appearing as of 10:38 AM. He advised the Crown that he would appear at 2:30 PM, which is not acceptable. The matter is adj. to 5 June 2015 at 10AM [and] Mr. Franklin is ordered to appear then [and] to remain present until this matter is spoken to.

[12] On June 5, 2015, MacDonnell J.’s endorsement indicates that the transcripts were complete. However, since the applicant had produced only one copy, MacDonnell J. adjourned the matter to August 14, 2015, so the applicant could file the additional copies required. At the same time, he set the hearing of the appeal for December 16, 2015.

[13] On August 14, 2015, MacDonnell J. adjourned the matter to September 18, 2015, apparently on the understanding that the applicant might possibly ask for an adjournment of the December hearing date on the prospect that he might retain counsel.

[14] On September 18, 2015, the applicant failed to appear. Trotter J. adjourned the matter to the previously set date of December 16, 2015. Although the endorsement is silent, Crown counsel indicated in his oral submissions before me that Trotter J. vacated December 16 as a date for the hearing, but maintained it as a return date.

[15] On October 15, 2015, the applicant did not attend court, but, in fairness, the endorsements do not show the matter having been remanded to that date. Indeed, it is not clear to me from this record how it came to be before the court that day. However, apparently being of the understanding that Trotter J. had ordered the applicant to file a factum by no later than October 14, 2015, MacDonald J. noted the appeal “dismissed as abandoned, due to the multiple non-attendances [and] failure to file a factum.”

[16] On October 19, 2015, holding that MacDonald J. had been under a misapprehension as to what the applicant had been ordered to file as of that point, MacDonnell J. restored the appeal and adjourned it to November 13, 2015.

[17] On November 13, 2015, Campbell J. endorsed that “[t]he appellant apparently attended court today, but left for work before his matter was heard”. He then remanded the matter to November 27, 2015, to set a date for the hearing of the appeal.

[18] On November 27, 2015, Nordheimer J. set the hearing of the appeal for May 18, 2016, and set filing dates for the applicant’s and the Crown’s facta of March 16 and April 27, 2016, respectively. He then adjourned the matter to the January 8, 2016, Special Assignment Court to ensure that all the materials required had been filed.

[19] On January 8, 2016, MacDonnell J. remanded the matter to March 18, 2016.

[20] On March 18, 2016, the applicant appeared before MacDonnell J. There was discussion concerning certain materials that the applicant insisted he had filed, but which were not in either the Crown’s or the Court’s file. Following that, the applicant asked that the May 18 hearing date be adjourned because he expected to be out of the province for employment purposes on that date. Citing the lengthy history of the matter and the fact that the hearing date had been set for quite some time, MacDonnell J. refused the applicant’s request, to which the applicant responded, [1] “I wonder if I was Caucasian if I would get this type of feedback. Probably not.”

[21] On May 13, 2016, someone [2] appeared before McMahon J. and, on the applicant’s behalf, sought to adjourn the May 18 hearing date, indicating that the applicant was out of town. According to McMahon J.’s endorsement, that person produced documentation in support of this contention. I note, parenthetically, however, that a one-page flight itinerary (now found in the court file) reflects that the applicant had a reservation on a flight to Winnipeg on May 17, 2016, returning to Toronto on May 19. I mention that because, assuming that, on May 13, the applicant had not yet left for Winnipeg (as, on its face, the itinerary would seem to suggest), I find it odd that he would not have come to court to make his own request to adjourn the matter. In any event, referring to MacDonnell J.’s remarks on March 18, [3] McMahon J. refused the request for adjournment.

[22] On May 18, 2016, the applicant failed to appear; someone [4] appeared on his behalf, however, and, once again, sought an adjournment. Croll J. refused the application to adjourn and dismissed the appeal as abandoned.

[23] On July 19, 2016, the date this application was heard, it was first spoken to at 10:16 a.m. Yet again, the applicant was not in attendance. In light of the applicant’s various late attendances in the past, on my own motion I held the matter down. The hearing of this application commenced at 12:38 p.m. When asked why he was not in attendance at 10:00 a.m., as required, the applicant explained that he works in Oshawa and the travel to court had been, in his words, “a challenge”; he offered no further elaboration.

The Applicant’s Position

[24] The applicant made oral submissions on this application, but, with respect, those submissions did not advance his request to have his appeal restored. In short, he added nothing to what was before MacDonnell J. when he refused the adjournment request in March, nothing to what was before McMahon J. on May 13, and nothing to what, on May 18, was before Croll J. Instead, he simply reiterated what he had told MacDonnell J. on March 18, namely, that he would not been able to attend on May 18 because of work obligations.

[25] The applicant also contended that the appeal should be restored because some of the considerable delay in this case had been occasioned because the materials he claims to have filed, namely, trial transcripts, had been lost by the court. Two points are apposite.

[26] First, there is no evidence to this effect. Rather, there is only the applicant’s bare assertion of this by way of submission. It is trite to observe that the applicant cannot give evidence from the floor of the court. It was open to him to file affidavit evidence to this effect, but he did not do so. In light of the fact that on March 18, 2016, neither the Crown file nor the court file contained the materials in question, it strikes me as far more likely that the applicant simply had not filed them as of that time.

[27] Second, and more important, the applicant’s appeal was not dismissed either because transcripts were missing in March 2016 or because of any delay involved. Rather, it was dismissed because, despite MacDonnell having expressly warned him in clear terms of this potential outcome, the applicant ignored that warning and failed to appear as directed to argue his appeal.

The Position of the Respondent

[28] The respondent’s principal position is that Croll J.’s dismissal of the applicant’s appeal was a final order and, that being so, the applicant’s only recourse is to appeal her order to the Court of Appeal for Ontario. I disagree. Just as MacDonnell J. saw fit to restore the appeal notwithstanding MacDonald J.’s order, relying on the authorities to which I will momentarily refer I am of the view that I have the discretion to restore it. The only question is whether, in all the circumstances, to do so would be a proper exercise of that discretion. To inform that decision, I turn to the applicable legal principles.

The Applicable Principles

Adjournments

[29] In Barrette v. R., [1977] 2 S.C.R. 121, Pigeon, J., stated:

It is true that a decision on an application for adjournment is in the judge's discretion. It is, however, a judicial discretion so that his decision may be reviewed on appeal if it is based on reasons which are not well founded in law. This right of review is especially wide when the consequence of the exercise of discretion is that someone is deprived of his rights, whether in criminal or in civil proceedings.

[30] In R. v. Anderson, [2013] A.J. No. 450, 2013 ABCA 160, the court held:

A decision to grant or refuse an adjournment is discretionary: R. v. White, 2010 ABCA 66 at para. 14. This discretion must be exercised judicially, that is, for proper and sound reasons: R. v. Barrette, [1977] 2 SCR 121, at 124-125. The test for appellate review is whether the trial judge has given sufficient weight to all the relevant considerations: White, at para 15.

[31] For an exposition of the factors to be considered in deciding whether the discretion to refuse an adjournment application was exercised judicially, see R. v. Beals (1993), 126 N.S.R. (2d) 130 (C.A.). Although the aforementioned cases dealt with the refusal to grant an adjournment at trial, in my view they are, to some extent at least, apposite to a consideration of the refusal to grant an adjournment of the hearing of an appeal.

Restoration of an Appeal

[32] In R. v. Tkach, [2012] O.J. No. 6048, 2012 ONSC 7188, Durno J. stated:

Whether to permit an appeal to be reinstated requires the exercise of what the Court of Appeal has referred to as the "extraordinary jurisdiction to reopen an appeal": R. v. Larocque 2011 ONCA 814. The test is whether it is in the interests of justice to do so: R. v. Riad 2012 ONCA 300. To determine whether the applicant has met that criterion involves an examination of the background to this application, why the appeal was dismissed as abandoned and why the applicant submits the appeal should be re-opened.

[33] In R. v. Blaker (1983), 46 B.C.L.R. 344, at p. 352, the following test on reinstatement applications was articulated:

[A]n appellate court has jurisdiction to vary or to set aside an order disposing of an appeal in a criminal case if the order disposing of the appeal was made on a basis other than on the merits and if in all the circumstances the court thinks that the order should be varied or be set aside, that is, if it is in the interests of justice that the order should be varied or set aside. I hasten to add that the phrase "interests of justice" involves a consideration of several things, not simply the interests of the accused. It involves, also, the interest of the state in insuring that people who commit offences are duly convicted and punished and the interest of the state in having finality to a proceeding.

[34] In R. v. Findlay, [1996] B.C.J. No. 1754, 79 B.C.A.C. 106, referring to p. 353 of Blaker, the court stated, “[w]riting for the majority, Craig J.A. concluded that a ‘heavy onus’ rests upon an Applicant seeking to have a previously dismissed appeal resurrected by the Court.”

[35] In R. v. Henry (1997), 100 B.C.A.C. 183, the court made clear that to set aside an order dismissing an appeal as abandoned requires “exceptional circumstances”.

The Principles Applied

[36] Having heard the applicant today, I am not persuaded that it is in the interests of justice that this appeal be restored. I say that for the following reasons.

Refusal to grant an adjournment

[37] To begin, throughout the more than two years this matter has been extant the applicant has, in my view, consistently demonstrated a cavalier attitude toward both the appeal process in general and, more particularly, his specific obligations and responsibilities pertaining thereto. He appeared late, or not at all, on numerous occasions and failed to perfect the appeal in a timely way. Although his appeal was once dismissed as abandoned for what MacDonald J. perceived as the applicant’s lack of diligence in pursuing it, the applicant did not mend his ways once MacDonnell J. restored it. Even today, when seeking the exceptional remedy of having his appeal restored, the applicant appeared late. Yet, despite his attitude, the applicant has had the benefit of numerous indulgences by the court.

[38] In terms of his refusal to grant the applicant an adjournment, MacDonnell J. was very familiar with this matter, having been the jurist who dealt with it on the majority of occasions it had been before the court. Despite what I consider to be the applicant’s failure to pursue his appeal with diligence, which must have been evident to MacDonnell J., in my view MacDonnell J. went to some length on various occasions to ensure that the applicant was treated fairly. In saying that, I am particularly mindful of his having restored the appeal after MacDonald J. had earlier dismissed it as abandoned.

[39] Unlike most of the cases referred to supra, concerning the propriety or otherwise of refusing an adjournment (where the accused suffered some disadvantage by being forced on to trial), nothing on this appeal would have been any different in terms of the manner in which it would have unfolded on any later date, had the accused been granted the adjournment he sought. No additional material would have been available to him on any later date that was not available on May 18 and, whenever his appeal was heard, he would have been self-represented.

[40] The only difference was, the applicant says, that he was unavailable on May 18. But, his unavailability was a function of his having made a choice. Despite having been told in no uncertain terms on March 18, 2016, that the matter would proceed on the scheduled date, and despite having had that refusal reiterated to his agent on May 13, 2016, the applicant failed to attend on the date set for the hearing of the appeal. Rather than appear in court, as he had been clearly directed to do, he chose, instead, to fulfill what he says was an employment commitment. Based what I have read in this matter and by what he said in oral submissions, I am left with the clear impression that the applicant is of the view that he had an absolute right to an adjournment simply because it happened to be inconvenient for him to attend court. But that is not the law; rather, as the authorities make plain, whether to grant an adjournment or not is a matter within the discretion of the court.

[41] For his part, the applicant suggested in his oral submissions that he was only told in February that his appeal would be heard on May 18, 2015, but I reject his submission. The record makes plain that Nordheimer J. set the date on November 27, 2015.

[42] As noted above, the applicant failed to appear on May 18 because, ostensibly, he was obliged to be out of the province for employment. I say “ostensibly” advisedly because that was the submission he made on March 18, which was subsequently advanced on his behalf on May 13 and 18, but I note that, as distinct from submissions to this effect, there was no actual evidence before any of MacDonnell, McMahon, or Croll JJ. that this was the case. The only evidence before this court that that was the case is the applicant’s affidavit filed in support of this application and all it contains is the bare assertion that the applicant “was out of the province for employment and could not attend [his] appeal court date.”

[43] I have, however, considerable difficulty with the applicant’s position concerning his unavailability. On March 18, 2016, [5] the applicant told MacDonnell J. that he had to be out of the province for a “four day event”, but, in his submissions in this court, he said that he was required to be in Winnipeg for “two weeks”. In contrast to those two propositions, which are in themselves inconsistent, the aforementioned airline itinerary, which I gather was the “documentation” McMahon J. mentioned the applicant’s agent having presented to him on May 13, 2016, indicates that the applicant had a reservation to fly to Winnipeg on May 17 and a return reservation for May 19, 2016.

[44] I hasten to add that, even taking the applicant’s submission at face value, the fact (if it was a fact) that he was obliged to be out of the province on May 18, did not automatically entitle him to an adjournment of a hearing that had been scheduled for many months. On the contrary, whether to adjourn the appeal was a matter to be decided in the discretion of McDonnell, McMahon and Croll JJ., each in his and her turn.

[45] In the final analysis, it is not apparent to me that MacDonnell, McMahon or Croll JJ. erred in the seriatim exercise of their discretion in refusing to grant the adjournment.

Merits of the appeal

[46] I turn next to the merits of the appeal.

[47] To begin, in his notice of appeal the applicant indicated that he seeks to call fresh evidence, but he has not subsequently, either orally or in writing, given any indication of what such evidence would consist and has taken no steps that I can see to demonstrate that this court ought to grant him leave to file fresh evidence.

[48] Having read the reasons for judgment of the experienced trial judge, as well as the applicant’s notice of appeal and his written argument, I am firmly of the view that the two grounds he raises are unmeritorious.

[49] I note, parenthetically, it appears that the applicant never did perfect the appeal by filing a factum, as such. Instead, I have gleaned the substance of his grounds of appeal from a memorandum he prepared in his effort to have the May 18 hearing adjourned. The memorandum is undated, but its reference to the March 18 appearance makes it self-evident that it was written after that date. The memo sets out two grounds of appeal.

[50] In the first ground, the applicant alleges incompetence on the part of his trial counsel, but he has failed to state any particulars with respect to this ground. Given the absence of anything in the trial transcript that appears to me to support the applicant’s claim of incompetence and the difficulty for an appellant, generally, to achieve success on this ground of appeal, I see no merit to this ground.

[51] In the second ground, the applicant challenges the trial judge’s findings of credibility. But, in my respectful view, the trial judge’s decision was thorough and well reasoned, and her ultimate conclusion entirely justifiable. In essence, what the applicant seeks is to have this court retry his case.

Result

[52] In the result, the applicant has failed to demonstrate the exceptional circumstances the authorities require to justify reinstating an appeal and, thus, has not met the heavy onus cast upon him on such an application. As earlier stated, I am of the opinion that it is not in the interests of justice to reinstate this appeal and the application is hereby dismissed.

R. Clark J. Date: August 29, 2016

[1] Transcript of Proceedings, March 18, 2016, at p. 8. [2] Whose name is not mentioned in the record. [3] The court file presently contains a transcript of the March 18, 2016, proceedings in this matter. It would appear from McMahon J.’s endorsement that a copy of that transcript was already in the court file as of May 13, 2016. [4] As with the person who appeared for the applicant on May 13, 2016, the name of the person who appeared for him on May 18 is not mentioned in the record. [5] Transcript of Proceedings, March 18, 2016, at p. 6.