Court File and Parties

COURT FILE NO.: 15-390 DATE: 2016-08-04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Malhotra

BEFORE: Ray, J

COUNSEL: Lauren Rock, Counsel, for the Crown /applicant Matthew Wolfson, Counsel, for the respondent

HEARD: August 3, 2016 at Pembroke

Endorsement

[1] The Crown seeks an order extending the time for an appeal to the Superior Court of Justice from the decision of Selkirk, J of the Ontario Court of Justice dated March 4, 2016 acquitting the respondent of fraud in the amount of $1,350 (s 380, CCC). The respondent moves to dismiss the Crown’s application for failure to comply with the times provided for the appeal.

[2] The respondent was acquitted by Selkirk, J on March 4, 2016. In his very brief reasons after a one day trial, while he conceded that a fraud had been proven, he was not satisfied that the respondent was the perpetrator of the fraud.

[3] The Crown relies on the affidavit of an assistant in the Crown office along with various exhibits. The respondent filed the affidavit of his trial counsel, Mr Anber.

[4] On March 8, 2016 Ms Rock told Mr Anber during another matter, that she was “probably going to appeal the Malhotra decision”. He asked her the grounds for the appeal, she did not “disclose any articulable ground”. He did tell her that she would have to be sure to serve Mr Malhotra personally since his retainer was at an end.

[5] The Crown prepared a Notice of Appeal dated March 11, 2016. The grounds are perfunctory and unhelpful for any understanding of the grounds of the appeal.

[6] April 4, 2016 Mr Anbar received a faxed copy of the Notice of Appeal - the first juridical day after the 30 day period. By email, he again reminded her that he did not represent Mr Malhotra. Notwithstanding Mr Anbar’s advice to Ms Rock, she filed the Notice of Appeal with the Court on April 4, 2016 with an affidavit of service on Mr Anbar.

[7] The trial transcript was ready April 1, 2016, and received by the Crown April 7, 2016.

[8] Mr Malhotra was apparently served April 8, 2016 with the Notice of Appeal. The affidavit of service is unsigned and is not proof of service. The respondent has not challenged that he was served on April 8 with the Notice of Appeal.

[9] Mr Anbar says he was served with the transcripts July 15, 2016. However the Crown evidence is that on May 17, 2016, the Crown served the respondent with the transcript and this application. The Crown did not respond to Mr Anbar’s affidavit that he did not receive the transcript until July 15. The only evidence in the Crowns application was the affidavit of an assistant, and an email chain concerning the whereabouts of the unsigned affidavit of service on Mr Malhotra.

[10] The application was filed by the Crown with a return date of May 30, 2016, however, Ms Rock was unavailable. Mr Anbar proposed several dates in July, August and September. Of those dates, the next available date from the Court was August 3, 2016. The Crown took no active part in arranging an early date for the hearing of the application.

[11] On July 8, the respondent served the Crown with his Notice of Application which detailed his grounds. July 26, the respondent served the Crown with his application record, which included the affidavit of the trial counsel Mr Anbar, a factum, and book of authorities. No responding materials were filed by the Crown.

[12] Three factors are usually considered by the Court on an application to extend the time for the appeal: evidence of a bona fide intention to appeal within the appeal period, the explanation for the delay, and whether there is merit to the appeal. (R. v. Menear, [2002] O.J. No. 244 (Ont. C.A.) at para. 20).

a. It seems clear that the Crown formed the intention to appeal within the appeal period;

b. It seems clear that the Crown knew it would not be able to serve the Notice of Appeal within the 30 day period. It knew that service on the respondent’s counsel would not be sufficient. No evidence is before me and no submissions were made to show why the Crown failed to bring this application before the expiry of the appeal period. A lower threshold applies when the application is brought to extend the time, before its expiry.

There is no evidence concerning why it took 4 days after the expiry of the time to serve the respondent. The affidavit of service is not evidence of service at all. The only evidence from the Crown is that enquiries were made from time to time about the whereabouts of the affidavit of service. And finally when it arrived in the Crown’s office, it was not treated seriously, and just filed away.

Of concern is that the Crown received the transcripts April 7 but failed to serve them on the respondent until July 15 – three months later. The Crown did not respond to the respondent’s evidence that Mr Anbar received the transcripts July 15, not May 17.

The record shows that it was the respondent and the Court that worked diligently to have the application heard as promptly as possible.

c. The Crown took no steps to satisfy me that the appeal has merit short of advising me that that was her opinion. She provided no evidence other than obscure references to the transcript in oral argument and an unmarked document she said was an exhibit. The onus on the applicant has been held to be a low one – that is to say – that it is not a frivolous appeal. (R. v. Bhandal, [2005] O.J. No. 1913, para. 15).

[13] The onus is on the Crown to persuade this court to exercise its discretion to initiate an appeal out of time. The Crown has not met that onus.

[14] Overall, what I see is a lack of attention and concern about the progress of the appeal. The Crown has simply not taken this appeal seriously. There is no evidence concerning the delay up to April 8, 2016 when the respondent was allegedly served, no explanation concerning the delay to May 16, 2016 – 5 weeks - before the application was launched; and no explanation why the application did not proceed on May 30, 2016 as originally scheduled; and then no accounting for the delay to the hearing of this application yesterday. It is open for me to infer that if the respondent had not taken the initiative, it still may not have been heard.

[15] The three month delay in providing the respondent with the trial transcripts is disturbing, but was never explained.

[16] While the Crown may have an arguable case for an appeal, the judge had evidence before him - or rather an absence of evidence – that was consistent with his finding that he was not satisfied beyond a reasonable doubt the respondent was the perpetrator of the fraud.

[17] The respondent’s application is granted and the Crown application is dismissed.

Ray, J Date: August 4, 2016