Court File and Parties

COURT FILE NO.: CR-23-008-AP DATE: June 1, 2023 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Lemieux

BEFORE: Justice J.S. Richard

COUNSEL: Michael A. Crystal, Counsel for the Provincial Crown (Applicant) Andrew Perrin, Counsel for Mr. Lemieux (Respondent)

HEARD: June 1, 2023

ENDORSEMENT

[1] Following a trial that was conducted in the Ontario Court of Justice in November and December 2022, the Respondent, Michael Lemieux, was found not guilty of assault on January 17, 2023. The decision of Justice Perron, more specifically, was based on a finding that the Respondent’s s.7 and s.9 Charter rights had been breached. In his reasons, he found that the North Bay Police Service had used excessive force in arresting the Respondent causing him to suffer a serious injury.

[2] The Crown wants to appeal this decision, and has brought an Application seeking to have service of the Notice of Appeal on the Respondent’s counsel of record validated as substituted service, and/or personal service on the accused dispensed with. In the alternative, the Crown seeks an extension of the timeline for filing the Notice of Appeal in order to serve the Respondent personally.

Chronology:

[3] The facts relevant to this Application are as follows:

i. On January 17, 2023, the Respondent is found not guilty, and reasons are delivered by Justice Perron;

ii. The Crown deems it inappropriate to have the North Bay Police Service serve the Respondent personally due to the excessive force finding. The Crown therefore decides not to serve the Respondent personally;

iii. On February 16, 2023:

• the Crown emails a copy of the Notice of Appeal to the direct work email of Respondent’s counsel (2:10pm), and to Respondent counsel’s general office email (11:56 a.m.);
• The Crown also delivers a physical copy to Respondent counsel’s office on that same day;
• Notice of Appeal is filed with the Court.

iv. On February 17, 2023, an associate at Respondent counsel’s firm confirms receipt of the Notice of Appeal by way of an email, in which he states: “We received your notice and look forward to reviewing your materials.”

Notice of Appeal

[4] The Crown’s right to appeal stems from s.813 of the Criminal Code. In order to exercise this right, the Crown must “serve and file the notice of appeal (…) within 30 days after the day on which the sentence was imposed” (s.815 Criminal Code (“CC”); rule 40.05 of the Criminal Proceedings Rules for the Superior Court of Justice, hereinafter the “Rules”). Rule 40.06(b)(ii) then goes on to state that the Respondent must be served personally.

[5] Rule 3.01(1)(a) specifies that “where there is a reference to a number of days between two events, they shall be counted by excluding the day on which the first event happens and including the day on which the second event happens.” By these calculations, the Crown’s Notice of Appeal needed to be served by no later than February 16, 2023 at 4 p.m.

[6] Rule 40.06 expressly states that personal service must be effected “on each respondent.” Again, at rule 5.01(3), the Rules expressly state that “the notice of appeal shall be served personally on each person in respect of whom an appeal is brought against an acquittal.” Personal service requires that a copy of the document be left with the individual (rule 5.02(1)(a)).

[7] It is uncontested that the Respondent was not served personally within the required timeframe. It is also uncontested that where the Rules permit alternatives to personal service, emailing a copy of a document to the solicitor of record constitutes valid service. The Notice of Appeal was sent to the solicitor of record within 30 days of the decision being rendered, but service requirements will therefore only be satisfied if this court makes an order for substituted service pursuant to rule 5.04.

Substituted service

[8] Rule 5.04(1) provides:

5.04(1) Where it appears to the court that it is impractical for any reason to effect prompt personal service of a notice of application, notice of appeal or any other document required to be served personally or by alternative service under these rules, the court may make an order for substituted service or, where necessary in the interest of justice, may dispense with service. [Emphasis added]

[9] Simply put, if the court finds that personal service would be impractical, it may make an order for substituted service. If it does not find that it would be impractical, it may dispense with service altogether if it deems it necessary to do so in the interests of justice.

[10] The Crown submits that the typical procedure for service on an individual in this jurisdiction is to have the North Bay Police Service complete personal service on a respondent. It posits, furthermore, that it would have been inappropriate to serve the Respondent personally based on Justice Perron’s finding that excessive force had been used against him by the North Bay Police Service. On that basis, it asks this Court to order substituted service, or dispense with service personal altogether on the basis that his counsel of record was served.

[11] While I agree with the Crown that this Court has the jurisdiction and authority to order substituted service (R. v. Marton, 2016 ONCA 691 at para.5), rule 5.04 does not allow for substituted service on the basis that personal service would be “inappropriate.” In contrast to the circumstances of R. v. Marton, the Crown made no attempts to serve the Respondent. The Crown has not put forward any argument or evidence as to why it would be impractical to serve the Respondent personally and, so, has put the cart before the horse in bringing this Application for substituted service.

[12] While it may be true that it is typical procedure to have individuals served by the police in this jurisdiction, it was not the only option. Personal service only requires leaving a copy of the document with the individual. It does not require it to be delivered by a police officer. The Crown could have hired a process server to satisfy this requirement. As such, I find that the Crown has not satisfied the test of impracticality such that it could allow the court to make an order for substituted service.

Dispensing with service

[13] In the alternative to substituted service, rule 5.04 allows for a court to dispense with personal service altogether where it can be shown to be in the interest of justice. Given the emphasis of personal service on a respondent in multiple sections of the rules, especially on appeal of an acquittal, I find that personal service on the Respondent is in fact required on the basis of the interests of justice, and not the other way around. Accordingly, personal service of the Notice of Appeal on the Respondent may not be dispensed with.

Extension of service

[14] The portion of rule 40.03 relevant to the order sought by the Crown is as follows:

40.03(1) 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 (…)

[15] Rule 3.02 allows for an extension on the basis of rule 2.01, which allows a court, when necessary in the interests of justice to do so, to “dispense with compliance with any rule”, and that it may do so “on such terms that are just”.

[16] As was pointed out by the Ontario Court of Appeal in R. v. Ansari, 2015 ONCA 891, this remedy is discretionary, and:

[19] (…) Neither the Criminal Code nor the Criminal Appeal Rules frames a test to be applied or describes any factors to be considered in deciding whether the extension should be granted.

[17] It goes on to state that although non-exhaustive, some of the relevant factors that “may be considered when an extension of time is sought include, but are not limited to” the following:

(i) whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposite party within the time prescribed for filing the applicable notice;

(ii) whether the applicant has accounted for or explained the delay in filing the notice; and

(iii) whether the proposed appeal has merit. (emphasis added)

(R. v. Ansari, at para. 22. See also R. v. Bailey, 2022 ONCA 507)

[18] As emphasized by the Ontario Court of Appeal in both of the above-mentioned cases, the overarching consideration is whether the applicant has demonstrated that the justice requires that the extension, and in that analysis, other factors, such as the length of the delay, may require consideration (R. v. Ansari, at para. 23).

[19] The Crown may have misjudged its options with respect to personal service, but it clearly provided indirect notice of its intention to appeal within the specified timeframe. Notice may not have been sufficient to satisfy rule 5.01(3), rule 40.05 and rule 40.06, but the Crown did provide some significant notice within the prescribed timeframe. There is therefore no doubt that it showed a bona fide intention to appeal within the appeal period by signaling its intention to the Respondent’s solicitor of record within the required timeframe.

[20] Secondly, the Crown was able to explain the delay in great detail by explaining its internal appeal process, which I found to be a reasonable explanation. That is not to say that the Crown’s internal process obviates its requirement to meet timeframes imposed by the Rules. While I accept that the Crown’s own process is stringent and useful in ensuring that careful thought is given to appeals brought forward by the Crown, it is not a free pass on timeframes imposed by the Rules. The Crown ought to have been prepared for service to be conducted on February 16, 2023, in the event that it received the green light on its own internal process. With that said, the delay was accounted and explained under the circumstances, and although insufficient, notice was provided.

[21] Finally, this Court is not tasked with assessing the strength of an appellant’s case, as that will be for the appellate court to review and decide. This Court must simply ensure that there is some merit to the grounds to appeal, thus acting as a gatekeeper for frivolous or baseless claims. Given the reasons for the acquittal, and the argument that there was a misapplication of multiple legal tests, it cannot be said that the appeal is devoid of merit (R. v. Menear, 2002 CanLII 7570 (ON CA), [2002] O.J. No. 244 (ONCA) at para 20, R. v. Ansari, [2015] ONCA 891 ).

[22] Before ordering substituted service or dispensing service on the Respondent, the Crown must at least attempt to serve the Respondent personally, which it did not do. Given all of the circumstances, however, and in considering the factors already mentioned, it would be against the interests of justice not to permit the Crown an extension to fully satisfy the requirement of personal service on the Respondent.

[23] As such an order to extend the time to serve the Respondent with the notice of appeal personally is granted pursuant to rule 40.03(1), and the Crown shall have a further 30 days from today’s date to effect personal service on the Respondent. This will satisfy both the interests of justice, and the finality the Respondent is seeking.

Amending style of cause

[24] The Crown’s request to amend the style of cause on the Notice of Appeal such that it reads “His Majesty the King” is also granted pursuant to Rule 40.09(1)

Justice J. S. Richard

June 1, 2023