R. v. R.E.M., 2011 NSCA 8

• Judge: Beveridge, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 09, 2010
• Jurisdiction: Nova Scotia
• Citations: 2011 NSCA 8;(2011), 299 N.S.R.(2d) 258 (CA)

R. v. R.E.M. (2011), 299 N.S.R.(2d) 258 (CA);

    947 A.P.R. 258

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JA.029

R.E.M. (applicant) v. Her Majesty the Queen (respondent)

(CAC 334444; 2011 NSCA 8)

Indexed As: R. v. R.E.M.

Nova Scotia Court of Appeal

Beveridge, J.A.

January 19, 2011.

Summary:

The accused was convicted of touching, for a sexual purpose, a person under the age of 14 and sexual assault. The Crown proceeded summarily. The accused was sentenced to time served given the length of time he had spent in pre-trial custody. The accused appealed. Boudreau, J., dismissed the appeal. He brought a motion for an extension of time to file an application for leave to appeal and a notice of appeal.

The Nova Scotia Court of Appeal, per Beveridge, J.A., dismissed the motion.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 7468

Summary conviction proceedings - Appeals - General - Extension of time for appealing - The accused was convicted of touching, for a sexual purpose, a person under the age of 14 and sexual assault - The Crown proceeded summarily - The accused appealed - Boudreau, J., dismissed the appeal - He brought a motion for an extension of time to file an application for leave to appeal and a notice of appeal - The Crown conceded that the accused had a bona fide intention to appeal within the appeal period and had a reasonable excuse for not being able to do so - There was also no issue about his diligence in pursuing his appeal, nor any prejudice alleged by the Crown if the extension were to be granted - However, the Crown argued that it was not in the interests of justice to extend the time because the accused's proposed grounds of appeal were devoid of merit - The Nova Scotia Court of Appeal, per Beveridge, J.A., agreed and dismissed the motion - The court could not discern any arguable issue upon which leave to appeal could be granted.

Criminal Law - Topic 7468

Summary conviction proceedings - Appeals - General - Extension of time for appealing - The accused was convicted of touching, for a sexual purpose, a person under the age of 14 and sexual assault - The Crown proceeded summarily - The accused appealed - His appeal was dismissed by a Summary Conviction Appeal Court (SCAC) judge - He brought a motion for an extension of time to file an application for leave to appeal and a notice of appeal - The Nova Scotia Court of Appeal, per Beveridge, J.A., stated that "Ordinarily the interest of justice would militate in favour of granting an extension, even from a SCAC, if the applicant had a bona fide intention to appeal within the time period, and has a reasonable excuse for not having done so. To do otherwise would be to deprive the applicant of his or her opportunity to have a panel of this Court determine if leave should be granted, and if so, address the substance of the appeal. An examination of the merits of a proposed appeal should be a limited one due to the frequent lack of a complete record and detailed submissions. It is decidedly not the role of the Chambers judge to engage in measuring the chances of success, allowing the extension if convinced the applicant has a reasonable or strong or some other adjective to measure the merits, but dismiss the application if not so satisfied. However, the applicant must be able to identify and set out a ground that is at least arguable." - See paragraphs 70 to 72.

Cases Noticed:

R. v. W.(D.) - see R. v. D.W.

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 18].

R. v. Paramasivan (P.) (1996), 155 N.S.R.(2d) 373; 457 A.P.R. 373 (C.A.), refd to. [para. 39].

R. v. Pettigrew (D.W.) (1996), 149 N.S.R.(2d) 303; 432 A.P.R. 303 (C.A.), refd to. [para. 39].

R. v. Butler (D.P.) (2002), 204 N.S.R.(2d) 278; 639 A.P.R. 278; 2002 NSCA 55, refd to. [para. 39].

R. v. Roberge (R.J.) (2005), 337 N.R. 389; 269 Sask.R. 37; 357 W.A.C. 37; 2005 SCC 48, refd to. [para. 39].

R. v. Stapledon (J.K.) (2000), 225 N.B.R.(2d) 260; 578 A.P.R. 260 (C.A.), refd to. [para. 43].

R. v. Gautreau (N.), [2004] N.B.R.(2d) Uned. 109 (C.A.), refd to. [para. 43].

R. v. Morin (W.J.) (2005), 257 Sask.R. 307; 342 W.A.C. 307; 195 C.C.C.(3d) 190 (C.A.), refd to. [para. 43].

R. v. Brittain (B.K.) (2008), 311 Sask.R. 175; 428 W.A.C. 175; 2008 SKCA 104, refd to. [para. 43].

R. v. Hayes (R.) (2007), 231 O.A.C. 163; 2007 ONCA 816, refd to. [para. 46].

R. v. Garland (T.), [2008] O.A.C. Uned. 691; 2008 ONCA 134, refd to. [para. 46].

R. v. Junkert, [2009] O.J. No. 2979 (C.A.), refd to. [para. 46].

R. v. Price (D.) (2010), 266 O.A.C. 97; 2010 ONCA 541, refd to. [para. 47].

R. v. R.R. (2008), 238 O.A.C. 242; 2008 ONCA 497, refd to. [para. 47].

R. v. MacNeil (J.P.) (2009), 277 N.S.R.(2d) 22; 882 A.P.R. 22; 2009 NSCA 46, refd to. [para. 47].

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 49].

MacCulloch v. McInnes, Cooper & Robertson (2000), 186 N.S.R.(2d) 398; 581 A.P.R. 398 (C.A.), refd to. [para. 50].

Counsel:

Applicant, in person;

Mark A. Scott, for the respondent.

This motion was heard in Chambers, on December 9, 2010, by Beveridge, J.A., of the Nova Scotia Court of Appeal, who delivered the following reasons for decision on January 19, 2011.