COURT FILE NO.: CR-16-000020-00AP DATE: 20210308 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – TIMOTHY BYERS Appellant

Counsel: David Morlog, for the Crown Timothy Byers, self-represented litigant, assisted by non-lawyer agent K. Jamieson, for the Appellant

Heard: February 19, 2021

REASONS FOR JUDGMENT

HEALEY J.

Overview

[1] The appellant, Timothy Byers, has appealed the convictions registered against him in the Ontario Court of Justice on November 20, 2014 following a trial before Meijers J. He has also expressed his intention to file an application seeking an order that the judgment be set aside and a stay entered on the basis that the proceedings were an abuse of process. That would be his fourth application for a stay since the charges were laid.

[2] The appeal has been case managed by Christie J. since September 24, 2020. The appeal and the stay application were scheduled for argument on February 19, 2021, to be heard together. The hearing date was scheduled on November 20, 2020. Christie J. imposed timelines for the appellant to serve his appeal factum, along with an application record and factum for his request for a stay of proceedings.

[3] At the appellant’s request, Christie J. extended those deadlines on January 12, 2021, but expressly stated that no further extensions of time would be granted. Three days later, the appellant sent a letter to the court requesting an extension of time to serve and file his materials, and for an adjournment of the hearing date. By endorsement dated January 18, 2021, Christie J. declined to grant a further extension or to adjourn today’s date. Her endorsement stipulated that the appellant was required to serve and file his materials by January 18, 2021, as previously ordered.

[4] Having not received any of the appellant’s material by that deadline, the Crown prepared this application to dismiss the appeal pursuant to r. 40.18(4) of the Summary Conviction Appeal Rules, returnable on the scheduled hearing date. It was served on the appellant on February 4, 2021. The appellant did not file responding material.

[5] On February 19, 2021, the appellant brought an oral motion at the outset to adjourn the Crown’s application, which this court dismissed for reasons to be given in writing.

[6] Argument then proceeded on the Crown’s application to dismiss.

Background Facts

2016: Initial Proceedings

[7] The appellant was convicted by Meijers J. of four counts of Failure to File a T1 Return of Income under s. 238(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). At sentencing, Meijers J. dismissed the appellant’s s. 11(b) Charter application, the second one that he had brought in that trial proceeding, and imposed a $1,500 fine on each count, to be paid within a year.

[8] A Summary Conviction Appeal Notice was filed by the appellant’s former counsel, Mr. Isles, on January 22, 2016. It lists 15 grounds of appeal.

[9] From the outset, the appellant expressed difficulty accessing and obtaining copies of the trial record. The appellant’s early requests focused on the Crown’s responding documents for his s. 11(b) application heard on January 19, 2016. In March 2016, the court office wrote to Mr. Isles and advised that Meijers J. had used those documents as his working copy. Mr. Isles was directed to obtain a copy of the material directly from the Crown. Mr. Isles repeatedly wrote to the court office requesting those same documents in the following two months. He reiterated his request to access the court’s copy of the documents to complete the appellant’s appeal.

[10] On April 26, 2016, Dana Bush, Supervisor of Court Operations, replied to Mr. Isles and advised that his request had been sent to the trial judge. A memorandum written by Meijers J. was attached as part of the response. It advised that during the process of the s. 11(b) application, the trial judge made notes on the court copy and had taken apart some of the material. It also indicated that the trial judge was not “in a position to vouch for its integrity, though he believed what he found was complete”.

2017

Application for Documents, Fresh Evidence & Abuse of Process

[11] On February 10, 2017 the appellant filed an application requesting:

(i) an order for the clerk of the court to provide all documents and exhibits before the trial court;

(ii) an order permitting the appellant to submit fresh evidence relating to the reasonable apprehension of bias ground of the appeal;

(iii) an order that the judgment be set aside and a stay entered on the basis that the proceedings were an abuse of process in violation of sections 7 and 11(b) of the Charter.

[12] On March 27, 2017, the appellant was ordered by Lavine J. to serve and file an amended Notice of Appeal, encompassing the new grounds of appeal to be advanced. She also ordered the parties to attend a supervision hearing on April 10, 2017 to set a timetable for the perfection of the appeal, including time for the appellant to bring an application for directions with respect to documents sought from the court file and the trial judge, and the admission of fresh evidence.

[13] Mr. Isles filed a Supplementary Notice of Appeal. Among the issues raised in that Notice was that the trial judge had written on Crown documents filed with the court in respect of the applicant’s s. 11(b) application and had disassembled those documents.

[14] The parties appeared before the Superior Court on May 8, 2017 and agreed upon a timetable with respect to the filing of material for the appellant’s applications. July 17, 2017 was set as the hearing date for those applications. The first filing deadline for the appellant’s material was June 9, 2017. On June 13, 2017, having not received it, the Crown sent Mr. Isles a reminder letter. The material was not served on the Crown until July 6, 2017, almost one month after they were due and only 10 days before the hearing date. As a result, the hearing date had to be postponed to August 14, 2017.

[15] On August 14, De Sa J. heard the appellant’s application for the production of the trial judge’s copy of the Crown’s s. 11(b) material, and for a stay of proceedings on the basis that his appeal rights were irreparably impaired by the inability to obtain those documents. Both applications were dismissed on September 12, 2017. Justice De Sa found that the appellant’s claim that the filed documents were somehow different from the material served on the appellant at the time of the hearing was speculative at best and did not pass the “air of reality” test. He requested that the Crown assist the appellant by providing another copy of its material.

[16] On September 25, 2017 the Crown provided Mr. Isles with an additional copy of the Crown’s responding s.11(b) documents that were the subject matter of the application before De Sa J.

[17] The appellant’s application for an order admitting fresh evidence on the appeal was heard on December 11, 2017. The Crown did not oppose the application, taking the position that the fresh evidence was not relevant to the ultimate issues on appeal. The appeal was scheduled to be spoken to on January 29, 2018.

2018

Application for Documents & Direction

[18] On January 29, 2018 the appellant filed a Notice of Intent to Act in Person, along with an application for disclosure of all documents and exhibits that were before the trial court, including the Informations, all notices of motion/application, motion records and factums. Since that date the appellant has represented himself, with the assistance of a non-lawyer agent, Ms. Jamieson.

[19] The application came before me on February 26, 2018, at which time I ordered the Clerk of the Trial Court and Clerk of the Appeal Court to copy and provide to the appellant all exhibits from the trial and any documents in the trial record within 20 days, except for the Crown’s s. 11(b) responding record previously produced by the Crown. I further ordered that if the appellant believed documents were missing, he was to give notice to the Superior Court office within 10 days of receipt of the documents in order to schedule an appointment to review the court file.

Application for Contempt Order & Stay of Proceedings

[20] On March 21, 2018 the appellant filed an application requesting that the Crown, the Clerk of the Ontario Court of Justice and the Clerk of the Superior Court of Justice be cited for contempt of my order and requesting a stay of proceedings on the grounds of abuse of process. He also sought costs of the application on a “substantial indemnity basis”. In the grounds for the application, the appellant submitted that the court staff, in deliberate defiance of my order, were “aiding and abetting the spoliation and destruction of documents in relation to the file and contributing to the abuse caused by the Crown and the Honourable Justice E.J. Meijers.”

[21] On April 9, 2018, Minden J. made a further order directing the Court Operations Supervisor to make a full written report to the court regarding how much of the court file from the trial proceedings had been provided to the appellant, as the appellant continued to assert that he was missing documents from the court file. His applications were adjourned to June 4, 2018.

[22] On that date, Bird J. inspected the chart prepared by the Court Operations Supervisor and determined that the chart indicated not everything in the court file had been provided, and the explanation for not producing them did not satisfy Minden J.’s order. She noted that what was necessary to comply with the order was for the appellant to be provided with a copy of all outstanding material, subject to it being edited to remove any comments, markings or other work product of the trial judge. Once any necessary redactions were made, the new copy was to be provided to both the appellant and the Crown within 30 days. She did not deal with the appellant’s contempt application, adjourning it to August 22, 2018, but did note that the appellant’s application as currently drafted did not provide a basis for the relief that he sought.

[23] On August 22, 2018, after a full hearing, McCarthy J. dismissed the applications for a stay based on abuse of process, contempt and various related relief.

[24] The appeal then sat dormant for over a year.

2019 & 2020

Supervision Hearing

[25] The Crown requested a supervision hearing and sought dismissal of the appeal. On October 28, 2019 a supervision hearing commenced before Lavine J. At that hearing the appellant filed responding materials in which he expressed an intention to pursue the appeal, and so the Crown withdrew its application for summary dismissal. The appellant had not yet filed the required transcripts; Lavine J. ordered him to file all transcripts within 30 days. The supervision hearing was adjourned to January 6, 2020.

[26] The supervision hearing was presided over by Casullo J. On the day of the hearing the appellant provided the Crown with additional material in support of a request for a stay application. Casullo J. did not deal with the request for a stay because of the lack of notice. However, she provided the appellant with another opportunity to attend to inspect the court file and required him to provide all documents required for the appeal to the Crown within 20 days of attending the court office. Justice Casullo then directed the Crown to draft the appeal book and to bring an application for the appointment of a case management judge on or before March 31, 2020. Justice Casullo ordered the appellant to file his factum within 45 days of receiving the appeal book.

Application for the Appointment of a Case Management Judge

[27] After Casullo J. ordered the Crown to bring an application for the appointment of a case management judge, Mr. Morlog contacted the trial coordinator, who in turn contacted the Senior Regional Justice. Although the date of March 6, 2020 was first offered, the Crown could not accommodate that date and took the next available one offered, which was March 27, 2020. According to the affidavit of Daniela Rosella-Good, legal assistant with the Public Prosecution Service of Canada, Mr. Morlog was working almost exclusively on an assigned trial in the Brampton office from January 29 to March 4, 2020. Within that timeframe he could not prepare application material for case management or the appeal book, which had also been ordered to be filed by March 31, 2020. The Crown brought an application to extend the time to file the appeal book.

[28] The March 27, 2020 date for the application requesting case management was suspended as a result of the Covid-19 pandemic. On June 25, 2020 the Chief Justice issued a notice to the profession regarding the phased reopening of the courts. He issued an order adjourning all Superior Court criminal matters originally scheduled in March 2020 to September 15, 2020.

[29] In an email dated July 2, 2020 from Mr. Morlog to the appellant, he wrote: “as I know that this matter has been ongoing for quite some time and both parties wish for your appeal to be heard as soon as possible, I have contacted the trial coordinator in Barrie to inquire about rescheduling the Crown’s application for the appointment of a case management judge. I will advise you as soon as I hear back from the court about a date”.

[30] On July 2, 2020, the Crown received two bankers’ boxes of documents from the appellant for the appeal book. Earlier, following the order of Casullo J., the appellant had provided a box containing loose documents and a letter indicating he was dissatisfied with the completeness of the file. After receiving the latter batch of documents, the Crown compiled a three-volume draft appeal book and served it on the appellant on July 24, 2020.

[31] In another email to the appellant, dated July 16, 2020, Mr. Morlog advised that the date of September 3, 2020 has been secured and gave him the details of the conference call. That date did not proceed because the appellant did not call in; Justice Christie, who presided over the teleconference, adjourned the application to September 24, 2020. Again, Mr. Morlog provided the call-in details to the appellant in a letter dated September 4, 2020, delivered by a process server. The appellant responded by letter indicating that he had not received the earlier emails, citing his intermittent Internet access and learning disability as interfering with the receipt of same.

[32] On September 24, 2020, the Crown’s application for the appointment of a case management judge was granted on consent, and Christie J. appointed herself as case management judge. On that date the appellant advised the court that he had not had an opportunity to compare the contents of the appeal books to the court file to ensure that all necessary documents had been included in the record. She adjourned the matter to November 2, 2020, in person, and ordered that the complete file was to be in the courtroom.

[33] On November 2, 2020 the parties, with the assistance of Christie J., had the opportunity to review the court file and compare it to the appeal books. Her endorsement indicates that it took a full day. She endorsed:

A conclusion was ultimately reached on what should be included/not included and both parties are aware of the changes that need to be made to the appeal books, currently in draft form. It is to be noted that for the purposes of developing the appeal books, the entire court file for this matter was available in court and accessible to both parties throughout the day. The Registrar assisted with copying documents and provided the documents to each party when requested to do so. At the end of the exercise the parties were content that adequate time and opportunity was provided to gather documents from the court file for the appeal books.

[34] She further endorsed that “Mr. Byers must still be given access to the court file in order to prepare his application and appeal, if he requires it, between now and the hearing. It was agreed that the Crown will prepare the appeal books and make best efforts to have them completed, served and filed by November 30, 2020.”

[35] There was also a discussion about the potential for creating an agreed statement of fact in relation to the Informations and charges. A schedule was created for the exchange of a draft. Both parties agreed that the application for a stay and appeal could be heard together by the same judge. The parties also agreed to set a target date of February 19, 2021 for the hearing of the appeal and stay application. A further case management conference was scheduled for November 20, 2020.

[36] On November 20, 2020, Christie J. conducted the hearing by teleconference. Her endorsement notes that much of it was spent working on an agreed statement of facts, which was ultimately reached. Significantly, she endorsed “the draft appeal books (3 volumes), previously provided to Mr. Byers and the court, can now be considered filed with the court, with the agreement of Mr. Byers”. Work was still underway on the supplementary appeal book. The appellant advised the court that he would like an opportunity to compare the supplementary appeal book with documents from the court file at another in-person appearance. Justice Christie was willing to provide that accommodation; she stated in her endorsement that the court would endeavor to set it up sometime during the week of November 30, 2020, if possible. Mr. Morlog provided dates on which he would be available and the appellant said that he would make himself available anytime.

[37] Justice Christie also set out a schedule for written material to be exchanged, with page restrictions and restrictions on oral arguments. The first deadline was that the appellant’s appeal factum, application record and factum were to be served on the Crown by courier and filed with the court office by January 8, 2021.

[38] The next case management conference was held on December 3, 2020, again by teleconference. In her endorsement, Christie J. explained that the health and safety concerns at the courthouse prevented an in-person appearance at that time. After hearing some concerns expressed on behalf of the appellant with respect to the supplementary appeal book, she ordered that it could now be filed with the court. Further concerns were expressed with respect to the original appeal books, despite the appellant’s earlier consent to it being filed.

[39] The endorsement goes on to indicate that another in-person appearance would be scheduled as soon as possible. I infer that this was intended to facilitate another review by the appellant of the court file, because he wanted to include photographs of documents from the court file in his application record, as well as make comparisons between the documents in the appeal book and those in the court file. The court suggested December 29; the appellant was available but Mr. Morlog was not. However, Christie J. took the view that there was no reason to change any of the previously established schedule. She reiterated the timelines, confirming that the appellant’s appeal factum, and application record for the stay and factum were all to be served and filed by January 8, 2021. It is important to note that she made that order despite knowing that there was uncertainty with respect to whether the appellant would be able to have the desired access to the court file to make his photographs and comparisons. As it turned out, after December 26, 2020, all in-person attendances at the courthouse were cancelled, other than those deemed to be absolutely necessary.

2021

First Request for Extension of Time to Filing Materials

[40] Three days after the January 8 deadline had expired, Ms. Jamieson wrote to the trial coordinator on behalf of the appellant, requesting an extension for the filing of his material to “no later than January 18, 2021.” The sole reason given for being unable to meet the deadline was that she had been unable to have the documents printed, tabbed and bound to have them couriered to the Crown and the court due to the most recent Covid-19 related restrictions. The Crown consented to the request in light of the increased provincial restrictions, even though it would leave the Crown much less time to respond before the scheduled hearing date.

[41] In the result, on January 12, 2021, Christie J. granted an extension to the appellant and revised the timeline for service applicable to both parties. The new date for service and filing of the appellant’s material was January 18, 2021. In doing so, she noted that it was concerning that the request was being made by the appellant several days after the deadline set by the court was missed. However, in the highly unusual circumstances posed by the lockdown throughout the province, she agreed to grant the extension but added “however, it should be clear that there will be no further extensions given for this material.” And in bold and underlined for emphasis, Christie J. added “as for the appeal/application, it remains firmly scheduled for February 19, 2021 at 9:30 a.m.”.

Second Request for Extension of Time to File Materials

[42] On January 15, 2021, Ms. Jamieson on behalf of the appellant wrote directly to Christie J.’s judicial assistant asking that, if appropriate, the correspondence be brought to her attention. The upshot of the correspondence was that the appellant sought an extension for the filing of his material to February 17, 2021, and an adjournment of the hearing date.

[43] In the request the appellant sought to remind the court that the Crown had not complied with deadlines in the past. In particular, the appellant noted that the order of Casullo J. required the Crown to prepare and file appeal books and an application for case management on or before March 31, 2020, and this deadline was not met. In his submission, the appellant fails to note that he did not provide his copies of documents to the Crown until July 2020, even though he was ordered by Casullo J. to attend the court office on January 20, 2020, and within 20 days thereafter provide the Crown with the documents he believed were necessary for his appeal. His submission also fails to take into consideration that the Crown’s application for case management was initially scheduled to be heard on March 27, 2020, and that regular operations of the Superior Court of Justice were suspended effective March 18, 2020.

[44] In the letter of January 15, 2021, Ms. Jamieson again referred to the fact that the imposition on January 14, 2021 of the province-wide lockdown, coupled with the voluminous nature of the application and appeal material, gave the appellant no choice but to request an additional 30-day extension. It was also noted that the appellant had not been permitted to review the complete court file once more prior to submitting his material, as had been contemplated during the last case management conference. The appellant suggested a revised timeline, which would require vacating the February 19 hearing date. He also suggested that the application and appeal could be heard on a date scheduled by the court any time after March 7, 2021.

[45] The Crown opposed an adjournment, for various reasons set out in a letter to the trial coordinator dated January 18, 2021.

[46] Justice Christie rendered her decision regarding the adjournment request on that same date. It provides:

Having reviewed the letter from Ms. Jamieson dated January 15, 2021 and the email from the Crown dated January 18, 2021, this court declines to grant any further extensions or adjournments. The schedule for the exchange of materials remains as previously ordered, meaning that Mr. Byers must serve and file his material by email before the end of the day today.

[47] One of the purposes of setting out the history of this matter in such detail was to satisfy myself, as I now am, that throughout the three years since the appellant became self-represented he has never raised the spectre of an intention to retain counsel to assist him with his appeal or stay application.

[48] Further context is required. The appellant’s material indicates that he resides in Utopia, Ontario, which uncontrovertibly falls within the jurisdiction of the Simcoe Muskoka Health Unit. On January 14, 2021 at 12:01 a.m. the Stay-At-Home Order under the Emergency Management and Civil Protection Act, O. Reg 11/21 went into effect (the “Stay-At-Home Order). It required every individual to remain in their place of residence at all times unless necessary for any of the purposes set out in the regulation.

[49] “Health, safety and legal purposes” are outlined in ss.1(15) to (18). Subsection 1(17) allows for “attending a place as required by law or in relation to the administration of justice”. I find that leaving a residence for the purpose of copying filings, sending them electronically or by courier, and/or filing them in person or electronically in order to satisfy the order of Christie J. would fall within either of the defined legal purposes.

[50] At s. 2 of the Stay-At-Home Order, persons are prohibited from attending a place or business that is required to be closed under the Stage 1 Order, except to the extent that temporary access to the closed business or place is permitted under ss. 1(6) of the Stage 1 Order.

[51] The Stage 1 Order referred to is O. Reg. 82/20 : Rules for Areas in Stage 1, enacted under Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17. A review of that regulation shows that even when the area under the jurisdiction of the Simcoe Muskoka Health Unit was in the “grey” (lockdown) zone between December 26, 2020 until it moved into the red zone on February 16, 2021, retail stores that provide copying services – drug stores, big box stores such as Walmart and Staples – have all been permitted to operate, albeit at reduced capacity. These services were therefore available to the appellant during this time.

Appellant’s Request for an Adjournment

[52] Not only did the appellant not file his facta and application by the deadline, he did not serve them before the hearing date of February 19, 2021. Nor did he file an affidavit setting out why the deadline was not met. The appellant’s correspondence of January 11 refers in vague terms to an “inability” to meet the deadline due to Covid-19 restrictions but does not elaborate. The appellant’s correspondence of January 15 refers to only essential travel being permitted due to the “lock down mode”, and that that, coupled with the voluminous nature of the application and appeal material, necessitated the 30-day extension.

[53] Crown counsel, instead of waiting for February 19 to make an oral motion to dismiss, served his application to dismiss in advance. It was served by courier on February 4, 2021. The appellant acknowledged that he received it. He did not serve a responding record, or even an affidavit to explain his default.

[54] At the outset of the hearing, the appellant brought an oral motion to adjourn the Crown’s application. He asked that this court set a new timetable for filing of material for the appeal. This new timetable was to take into account that the appellant had, just the preceding day, retained his former counsel Mr. Isles. Mr. Isles had purportedly agreed to come back on the case but would need time to review the matter. As indicated earlier, I did not grant the adjournment, for reasons to be provided.

[55] In making his argument for an adjournment, the appellant raised all the same arguments set out by Ms. Jamieson in the correspondence directed to Christie J. on January 15, 2021. Additionally, he argued that he has never delayed these matters, and that the delay rests at the feet of court staff and the Crown, who he alleged have withheld, altered, forged or destroyed parts of the court file, including the original charging documents.

[56] These arguments have all been previously considered and disposed of in earlier appearances before this court, but more importantly, the appellant has had ample opportunity to raise them with Christie J. during the case management conferences, before timelines were set. As the case management judge, she had an in-depth understanding of the case and its history, yet she declined to grant a further extension to the appellant.

[57] The appellant advised the court that it was when the “lockdown” occurred that he decided that he needed to retain counsel, as he was overwhelmed by the amount of material and realized that he needed help beyond that which Ms. Jamieson has been providing.

[58] The Crown submits that this is the first time that the appellant has indicated that he intended to retain counsel, which I have concluded is the case. Justice Christie’s endorsements do not mention such issue. Her endorsements contain a careful summary of what occurred at each attendance, with a view to ensuring that no outstanding issues would delay or thwart the hearing of the matter. Had the appellant expressed an intention to retain counsel, it stands to reason that she would have both noted this important fact and have taken it into account in the scheduling. Further, the issue is not raised in Ms. Jamieson’s correspondence of January 11, 2021 or January 15, 2021. I find as a fact that the appellant first raised this issue on the morning of the hearing of the appeal.

[59] The clear inference to be made is that the appellant did not decide to retain his former counsel until faced with the Crown’s application to dismiss. During the course of the argument he indicated that he did not have a copy of the Crown’s application, as he had given it to Mr. Isles. Yet even in the face of the Crown’s application, the appellant has not so much as provided a letter to the court from Mr. Isles confirming his retainer or its scope, or explaining why Mr. Isles could not attend by video or audio conference to speak to the matter on the scheduled date if he is in fact retained. The appellant submitted that Mr. Isles would be in a position to attend a hearing any time after March 7, 2021 but provided no evidence about Mr. Isles availability, or confirmation from counsel that he could meet such a deadline.

[60] This last-minute contact with former counsel appears to have been undertaken in an attempt to circumvent the timelines ordered by Christie J., as a bid to force this court’s hand to grant the adjournment that she denied. I find that this was a deliberate manipulation to try to obtain the desired adjournment.

[61] Litigants are not “entitled as of right to an adjournment to retain counsel”: Wagg v. Canada, 2003 FCA 303, at para. 20.

[62] In R. v. Wood, at para. 7, the court held that “whether or not an accused acted diligently and honestly in exercising his right to counsel or whether the accused sought to manipulate the system to his advantage by orchestrating delay is a finding of fact that is entitled to deference in the absence of palpable and overriding error.” I find that the appellant has not acted diligently in exercising his right to counsel and is in fact seeking to manipulate the system to his advantage. Justice Christie set a “hard deadline” for the filing of his documents and the hearing itself. She twice repeated that order. The appellant seeks to avoid that deadline even though nothing changed between November 20, 2020 and the hearing date that would prevent the applicant from serving and filing his material. The appellant is seeking to have this court overturn Christie J.’s orders.

[63] Further, in R. v. Patel, 2018 ONCA 541, at para. 3, the court noted that the right to counsel is not an unlimited right. The right must be balanced against the timely disposition of cases. In the appellant’s case, it has been five years since his Notice of Appeal was filed and he has yet to perfect his appeal. Although he experienced difficulty obtaining original documents from the record, it can fairly be said that many judges have provided significant accommodation to attempt to alleviate not only the real problem that he had at the outset in obtaining copies of original documents, but also the appellant’s heightened suspicions of irregular dealings by the Crown, court employees and even the trial judge. This culminated in the day long case conference on November 2, 2020, during which Christie J. supervised the file review and the content of the appeal books and supplementary appeal book. And on November 20, 2020 the appellant and Ms. Jamieson agreed that they had started to prepare their written arguments and already had all of the documents contained in the supplementary appeal books. As a result, Christie J. determined that the appellant would not be prejudiced by the scheduling of the hearing date and imposition of a timetable.

[64] With all of the accommodation that has been provided to the appellant, it cannot be said that he has been deprived of the right to pursue his appeal or his application for a stay, such that an adjournment is required in order to remedy procedural unfairness or its appearance.

[65] I also take into account that the appellant has filed and argued several applications while being self-represented. Because he has advised the court that he suffers from dyslexia or a learning disability, he has always required the assistance of his non-lawyer agent, Ms. Jamieson. The court has consistently permitted her to be involved to provide that support.

[66] I also take into account that this court has no proof beyond the appellant’s word that Mr. Isles has agreed to be retained, nor any information about his availability or how long it will take him to prepare the outstanding facta and application. I note that even when Mr. Isles was retained, the record shows that a court-imposed filing deadline was overlooked in June 2017 by almost one month.

[67] As another reason for seeking an adjournment, the appellant argues that the Crown failed to give 30 days’ notice of its application to dismiss as required by r. 6.05 (1) of the Criminal Proceedings Rules. This is a spurious argument. Once the appellant sought his first extension of the timeline for filing, it was no longer possible for the Crown to provide 30 days’ notice of an application to dismiss in the face of the default. The Crown served its material two weeks before the hearing date, rather than waiting for the last moment, and gave notice, rather than making an oral motion to dismiss on the hearing date.

[68] The appellant also objects to the manner of service. The Crown’s application was served by courier, which is technically not permissible service under the Rules. This objection to being served by courier is also specious, because at the case management conference on November 2, 2020 the appellant expressly chose courier as the preferred method of service. When Christie J. set the timetable for exchange of material on November 20, she ordered that the Crown’s material was to be served by courier. As I glean from the record, this was to accommodate the appellant’s lack of reliable internet/email service, and to satisfy the appellant’s complaints that documents had not previously been received due to that problem.

[69] As all grounds for seeking the adjournment of the Crown’s application to dismiss were without merit in the circumstances, the request was denied.

Application for Summary Dismissal

[70] The Crown seeks an order dismissing the appeal for non-compliance pursuant to r. 40.18(4) of the Summary Conviction Appeal Rules, being Part IV of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (SI/2012-7). The non-compliance is the appellant’s failure to file his factum and associated application materials in accordance with the revised timeline of January 18, 2021.

[71] It must be remembered that this is the Crown’s second application for summary dismissal, the first having been abandoned when the appellant expressed a desire to proceed with his appeal in October 2019. The appellant has had prior warning that this mechanism exists.

[72] Rule 40.18 sets out the procedure to be followed to trigger a supervision hearing. There have already been two supervision hearings scheduled for this appeal, so it is well past the point at which the clerk would be compelled to place the appeal before a judge for review for any of the reasons referenced in r. 40.18(1)(a)-(g). Subsection 40.18(4) authorizes the court at a supervision hearing to make any order concerning the appeal as he or she deems appropriate, including dismissing the appeal as abandoned.

[73] The Crown could also have resorted to r. 40.03(2), which permits any party to the appeal to apply to the court for directions regarding the appeal, on notice. While the Crown opted to apply under the supervision hearing provisions, there is ample jurisdiction for the appeal court to control the appeal process and dismiss where warranted.

[74] There are no reported cases providing guidance to this court on the test or standard to be applied when considering whether to dismiss an appeal pursuant to r. 40.18(4) of the Summary Conviction Appeal Rules. No authorities were provided by the Crown.

[75] However, in R. v. Villanti, 2020 ONCA 436 the Court of Appeal recently reviewed the standard to be applied when considering whether to dismiss an appeal to that court pursuant to the Criminal Appeal Rules, SI/93-169, which govern appeals in the Court of Appeal. In Villanti the appellant Crown had failed to serve and file its factum in the time prescribed by the Criminal Appeal Rules. The Crown eventually served its factum, but it was 287 days late. The Crown had no reasonable explanation for the delay. The respondents applied to dismiss the Crown’s appeal for failing to perfect in accordance with the Rules.

[76] Justice Watt reviewed the various means available for a respondent to seek dismissal of an appeal in that court, one of which was r. 20. Like r. 40.18 of the Summary Conviction Appeal Rules, r. 20 of the Criminal Appeal Rules permits the registrar to take certain steps that may lead to an unperfected appeal being placed before the court. Under r. 20(3), a panel of the Court of Appeal considering an appeal referred to it by the registrar has the discretion to make various orders, including dismissing the appeal as abandoned.

[77] Justice Watt noted that few authorities have considered the standard to be applied, or the circumstances in which an appeal may be dismissed as abandoned for failure to perfect in accordance with the Rules: at para. 62. However, he set out a non-exhaustive list of considerations:

(i) the length of the delay beyond the perfection deadline;

(ii) an explanation for the delay;

(iii) the steps taken, if any, by the respondent on appeal to ensure timely perfection;

(iv) the effect of delay on the respondent;

(v) the significance of the issues on appeal to the administration of justice; and

(vi) the conduct of the delinquent party.

[78] He noted that the remedial authority of the court to dismiss for failure to perfect in accordance with the Rules is discretionary, and requires the court to consider all the circumstances to determine whether the interests of justice favour dismissal, or some lesser remedy: at paras. 70-72. After considering each of the factors, and balancing the competing interests, the court in Villanti was not persuaded that it was in the interests of justice to dismiss the Crown’s appeal.

[79] However, it was noted that dismissal is a remedy that remains available in appropriate cases. Citing R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 32-33, Watt J. stated “[a]s at the trial level, inaction has its price”.

[80] It must be borne in mind that unlike the Crown in Villanti, the appellant is years past the deadline for perfecting his appeal and has had the intervention of case management to get the appeal back on track and keep it there. A significant amount of judicial resources has been given to this appeal to ensure that it is heard on its merits. Further, Mr. Byers has not complied with a clear order, two, in fact, that set a deadline for his factum to be served and filed. Nonetheless, this court recognizes that a dismissal is the harshest of remedies, one which should be imposed only if required in the interests of justice. There is no provision in the Summary Conviction Appeal Rules, the Criminal Code, or the Provincial Practice Direction/Amendment to the Criminal Proceedings Rules Regarding Criminal Proceedings, effective August 12, 2020, which requires this court to dismiss the appeal.

[81] I turn now to the application of the factors from Villanti to the circumstances of this case.

[82] First, the length of the delay is extraordinary. The Notice of Appeal was filed over five years ago. Justice Christie’s last orders required the factum to be filed on January 18, 2021 at the latest. Thirty days after that, on the date set for argument, the factum was still not ready. However, this is obviously not a delay of simply 30 days. Case management was invoked because the appellant was not moving his appeal forward on his own.

[83] Second, the explanation for the delay is less straight forward. The Summary Conviction Appeal Rules set out timelines that are to be met for the timely disposition of summary conviction appeals. Under r. 40.10(1), the appellant was to serve and file his appeal book within 15 days after receiving notice that the transcript of evidence was ready. Rule 40.11(4) requires a factum was to be filed within 90 days of receiving the Court Reporter’s Completion Certificate. While I am unable to locate the Completion Certificate in the material, the only mention of the non-availability of the transcripts in the record appears in Lavine J.’s endorsement of October 28, 2019, at which time they had still not been filed. That was three and a half years after the appeal was launched.

[84] Primarily, it has been the appellant’s difficulty in accessing the trial material that delayed the creation of the appeal book. However, the Crown took over that task by court order, and completed it last summer. It is important to note that the court’s endorsements never reference any obstruction by the Crown with respect to the appellant’s ability to access the court file. As the endorsements document, it has been within the office of Court Operations where the bottleneck has taken place.

[85] Although the appellant spent much of his time in argument on this application dealing with his problematic access to the court file, as previously stated, this was all canvassed and resolved during the case management meetings.

[86] The explanation for not filing the factum by the deadline became even less clear as the appellant presented his case for the adjournment. As previously indicated, he told the court that he wanted to adjourn the Crown’s application to dismiss and the argument of the appeal in order to retain counsel, because of being overwhelmed by the number of documents. But the number of documents in the appeal books and supplementary appeal book is nothing new. The appellant has been familiar with the documents for a very long time, and he has been actively involved in compiling what has gone into the record. Inexplicably, at the very end of argument the appellant told the court that he was “ready to go” with the appeal. He stated that even though some documents that were before the trial judge are missing or destroyed, he has done his due diligence and is satisfied that the appeal can go ahead with the documents that are now in the appeal book and the supplementary appeal book. So what changed between the date the deadlines were set and the date of the hearing? Nothing other than the impossibility of accommodating the appellant’s wish to have one final look at the court file.

[87] Finally, the explanation provided in the appellant’s correspondence that linked his inability to file the factums and stay application to the “shut down” is unsustainable given the availability of resources that remained open to him in the community under the Stage 1 Order.

[88] Looking at the appellant’s conduct throughout the appeal holistically, he has at times shown a bona fide intention to proceed with his appeal, although on his own terms and at his own pace. There is much about his conduct that signals a lack of cooperation and obstructionism, but this seems to be based more on a lack of trust in the justice system and its participants than a reluctance to have the appeal decided. But there are other aspects of his conduct that show that delay itself is the goal, such as not taking any steps for a year and not heeding Christie, J.’s orders when the hearing date was within reach. Then throwing in the suggestion of counsel on the day scheduled for the appeal and offering unreasonable excuses for not being ready.

[89] The appellant has also expended more time and effort seeking a stay of the trial proceedings and censure of justice participants than he has directed toward perfecting his appeal.

[90] Third is to consider the steps taken by the Crown to ensure timely perfection. In this case the Crown has never faltered in its attempts to get to a disposition of the appeal. When Mr. Isles was still retained, Crown counsel wrote to remind him of the deadlines imposed by the court in relation to the appellant’s applications. The Crown consented to the appellant’s application for the admission of fresh evidence. The Crown brought an application for a supervision hearing in September 2019 after the appellant had taken no steps in the appeal since August 2018.

[91] After case management was instituted the Crown cooperated with the appellant to extend the filing deadlines even though it meant less time for Mr. Morlog to prepare responding factums.

[92] There is no delay in this appeal that can be attributed to the Crown.

[93] Fourth is to consider the effect of delay in perfection on the respondent. The Crown’s ability to respond to the appeal has not been compromised by the appellant’s failure to meet the deadline.

[94] Fifth is the significance of the issues on appeal to the administration of justice. The appellant was convicted of failing to file tax returns for the years 2006 to 2009 inclusive and fined a total of $6,000. He brought at least two applications for a stay of the proceeding due to delay, one during the trial and one at sentencing. Both were dismissed.

[95] The Notice of Appeal sets out expansive grounds of appeal, most of which do not elevate this case to one of importance beyond the interests of the appellant. But both the Notice of Appeal and The Supplementary Notice of Appeal allege, inter alia, reasonable apprehension of bias on the part of the trial judge, lack of disclosure, and undue delay.

[96] Provided the basis of the argument is not frivolous, an alleged infringement of a Charter right is a serious matter, as is an appeal that raises issues of judicial integrity and the administration of justice.

[97] Additionally, it is necessary to consider the effect of Christie J.’s orders of January 12 and 18, 2021. There is inherent unfairness in treating parties differently when it comes to the requirement to adhere to court orders, even where one of those parties is self-represented. The Crown was ordered to compile the appellant’s appeal book, and to seek case management. The Crown complied. This court has gone to considerable lengths to ensure that the appellant can effectively present his appeal and to ensure that the process is balanced and fair. But self-represented litigants do not get a pass when it comes to complying with court orders, particularly after already being told that no further extensions will be permitted. There must be fairness to both parties in the process, which will not occur if court orders are treated as binding on one to a lesser degree than the other.

[98] The court in Villanti completed its analysis with a balancing of the competing interests: at paras. 100-05.

[99] The appellant had significant difficulties obtaining the documents needed for the appeal book. He received ample accommodation and assistance from the court to obtain those documents. By the time Christie J. set the date for the hearing of the appeal and the filing deadlines, those difficulties no longer had bearing on the timelines for hearing the appeal.

[100] The appellant was given a deadline. He asked for an extension after the first deadline had passed and received the cooperation of the Crown and the indulgence of the court. He was told there would be no further extensions. He nonetheless requested another extension, excusing his failure on the pandemic and volume of material, excuses that do not have merit.

[101] It had been contemplated that the appellant would have a final chance to inspect the court file. The cancellation of all but the most necessary in-person hearings throughout December and January frustrated that goal. Yet Christie J. was aware of the problem when she denied the last extension/adjournment request. I infer that she was of the view that such inspection of the court file was not needed to provide the appellant with a full and fair hearing. I have no evidence to the contrary.

[102] Despite a full month between the deadline and the date set for argument, the appellant still did not have a completed factum ready for the appeal. His excuse was that he wanted to re-hire Mr. Isles, who has not been involved for over three years. Nothing changed, in terms of volume of material or the issues on appeal, between the date case management began and the date set for the hearing.

[103] The appellant said that he was ready to argue the appeal. He said he was content with the appeal book and supplementary appeal book, with the qualifier that he still believed documents were missing and/or altered. But he said he still wanted time to allow Mr. Isles to prepare to argue the appeal, and presumably prepare and file the overdue documents.

[104] He sought to retain Mr. Isles at the last minute to attempt to circumvent Christie J’s deadline, bargaining that this court would permit that to occur.

[105] The charges for which the appellant was convicted are not matters of general importance. Some of the issues raised in the appeal, those relating to the administration of justice – disclosure, delay and bias – are important and it would be preferable that they be disposed of on their merits.

[106] And if the appellant had complied with the orders and had his material filed as required, he would have had that full appeal hearing on February 16, instead of being faced with this motion to dismiss.

[107] Weighing and balancing these competing interests, I am persuaded that the Crown’s application to dismiss the appeal must succeed. It is in the interests of justice to ensure that court orders are respected, and not just when it suits a litigant. “Inaction has its price”, and inaction in the face of two clear orders must, I determine, result in the ultimate price of having the appeal dismissed.

[108] For these reasons, the Crown’s motion for summary dismissal of the appeal is granted.

HEALEY J. Released: March 8, 2021