R v Goodhart, 2012 ABQB 712

Court of Queen ’ s Bench of Alberta Citation: R v Goodhart, 2012 ABQB 712 Date: 20121116 Docket: 110004793S1 Registry: Calgary Between: Her Majesty the Queen Crown/Respondent - and - Joseph Matthew Goodhart Accused/Applicant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice E.C. Wilson _______________________________________________________ Issue [ 1 ] Im this

Summary Conviction Appeal I am asked by the Accused/Applicant (hereafter “the Accused”) to set aside an ex parte Order for Substitutional Service of the Crown’s Notice of Appeal upon the Accused. The Crown’s appeal followed the accused’s acquittal on a charge of operating a motor vehicle with a prohibited blood alcohol level contrary to s. 253 (

b) of the Criminal Code . History of Proceedings

[ 2 ] The Accused was charged on December 30, 2010. He was acquitted on Tuesday, November 22, 2011. The Crown filed its Notice of Appeal on Thursday, November 24, 2011. [ 3 ] On Friday, November 25, 2011, Cst Kochan attended the Calgary residence of the Accused. In his Document Disposition Report, Cst Kochan recorded that he was met at the door by “mother, Marilou Goodhart who was completely uncooperative. Mother would not state where he is or when he is coming back. Spoke to next door neighbour who knows Joseph.

States that he attends school in Edmonton”. [ 4 ] On Tuesday, November 29, 2011, Cst Kochan returned the unserved Notice of Appeal, along with his affidavit deposing to the above information, to the Crown’s office. [ 5 ] On Thursday, December 1, 2011, Cst Binsted conducted various inquiries in an effort to locate and serve the Notice of Appeal. Those inquiries, he deposed, involved (

i) checking Edmonton and Calgary telephone white pages; (ii) having a phone conversation with the Accused’s father who, inter alia, refused to provide the Accused’s phone number and said that he did not know the Accused’s whereabouts; (iii) trying three times to phone an Edmonton telephone number provided by the Accused when arrested the previous December. These calls “would not connect”.

Cst Binsted’s belief was that “this telephone number is no longer in service”; and (iv) attending the Calgary residence of the Accused where he spoke with the Accused’s mother who provided essentially the same information deposed to by Cst Kochan when he had attended six days earlier. [ 6 ] On Friday, December 2, 2011, Cst Binsted swore an affidavit detailing his unsuccessful efforts at locating the accused and his belief that the Accused ordinarily lived at his Calgary residence with his parents, but that the Accused was presently attending university studies in Edmonton and that his parents were actively frustrating police efforts at serving the Accused. [ 7 ] Cst Binsted deposed a belief that “prompt personal service is impractical” and that service would likely be effected by delivering the documents to any adult at the Accused’s residence or by affixing the documents on the door of the residence. [ 8 ] In the morning of Friday, December 2, 2011, Crown counsel attended upon Horner, J. seeking an ex parte Order for Substitutional Service.

The application was founded solely upon the affidavit of Cst Binsted. Horner, J. granted the Order. [ 9 ] At 12:52 hours on Friday, December 2, 2011, Cst Binsted effected the Order for Substitutional Service by affixing the documents to the front door of the Accused’s residence. [ 10 ] The Accused now moves to have the Order for Substitutional Service set aside on the basis that the affidavit of Cst Binsted contained false misrepresentations, misstatements and non- disclosure of facts on matters material to the Crown’s application for that Order.

Service of the Notice of Appeal [ 11 ] The relevant Queen’s Bench Rule governing

summary conviction appeals at the time read as follows: s. 860.3(2) Where the appellant is the prosecutor, the filed notice of appeal shall be served personally on the defendant or on such other person or in such manner as a judge may direct or authorize, within the period referred to in subsection (1) [This is now Rule 3(2) in the new

Summary Conviction Appeal Rules] [ 12 ] The time period referred to is 30 days.

[ 13 ] I interpret the above Rule as a clear direction that personal service of a Notice of Appeal is the expected methodology to be initially followed by the Crown appellant. The alternative of having a judge direct or authorize some other manner should only be proceeded with upon a showing that personal service is not likely to succeed (see Rule 11.28).

Personal service of court documents has always been the usual approach for commencement documents in criminal and civil litigation. [ 14 ] The Crown, in both its brief and in oral argument, spent much time in asserting that the accused’s application fails due to the absence of a sworn assertion that he had not been served with the Notice of Appeal. The Crown relies upon the comments from Hansraj v Ao , 2004 ABCA 223 at paragraph 30 et seq . [ 15 ] The Crown’s Brief at paragraph 30 states: 30.

Ultimately, in the Crown’s respectful submission, the statement by the Court of Appeal in Hansraj at paragraph 30 is the law that governs this application. The applicant is obligated to give evidence about whether he was in fact served or whether he in effect was served. He has failed to do so. As such, this application is barred by binding authorities and must be dismissed. [ 16 ] With respect, the matter of service is irrelevant. The accused is not seeking to set aside service which is what Hansraj was focussing on at paragraph 30 thereof.

The Accused is seeking to set aside the Order for Substitutional Service. Ex Parte Orders [ 17 ] Rule 6.4 permits a party to make an ex parte application. Rule 9.15(1) permits a party to make application to set aside an ex parte interlocutory order. [ 18 ] Rule 9.15(2) imposes a 20 day deadline for such applications, “unless the Court otherwise orders”. Neither counsel referenced this Rule.

I am satisfied that, in the circumstances, it is appropriate to order that the application is not time barred. [ 19 ] Rule 9.16 requires that the Rule 9.15(1) application must be decided by the judge who granted the impugned Order - Horner, J. - unless the Court otherwise orders. Neither counsel referenced this Rule. However, I infer from the materials and submissions that the parties were content to have me decide the application and I am willing to do so. Accordingly I make the necessary Order. [ 20 ] Rule 9.15(4) sets out my authority. The Court may set aside, vary or discharge an interlocutory order (

a) because information arose or was discovered after the order was made, (b) [not relevant] (

c) on other grounds that the Court considers just. [ 21 ] The Accused focuses upon Rule 9.15(4)(

a) and the presentation of information which arose or was discovered after the December 2, 2011 Order. That information comes from the cross-examination of Cst Binsted upon his affidavit and the affidavits of the Accused.

Ex Parte Applications Generally [22] A party making an ex parte application is under significant obligation involving candor and accuracy of fact. In Duke EnergyCorp. v Duke/Louis Dreyfus Canada Corp. (1998), 219 A.R. 38, 1998 ABCA 196, the Court ruled at para. 4: It is trite law that a party applying to the court ex parte has a duty of disclosure; it is sometimes said to be a duty of the utmost good faith.He or she must disclose to the court all facts material to the motion in question.

It is also settled law in Alberta (and elsewhere) that thecourt is not always compelled to set aside an order for breach of that duty, but that the court will sometimes set it aside on that groundalone. We will not attempt to define the precise circumstances in which the order will or will not be set aside for nondisclosure. Butobviously a very relevant factor is how important was the evidence not disclosed to the court on the ex parte application. [23] The significance of the duties reposing upon the ex parte applicant was clearly expressed in the judgment of Sharp, J. in U.S.A.v Friedland [1996] O.J.

No 4399 and adopted by Strathy, J. in Hostman-Steinburg Limited v. 2049669 Ontario Inc (ON.S.C.) at paragraph 21: If the party seeking [ex] parte relief fails to abide by this duty to make full and frank disclosure by omitting or misrepresenting materialfacts, the opposite party is entitled to have the injunction set aside. That is the price the Plaintiff must pay for failure to live up to theduty imposed by the law. Were it otherwise, the duty would be empty and the law would be powerless to protect the absent party. Ex Parte Application for Substitutional Service [24] Rule 11.28 governs such applications.

When considering its predecessor Rule 23 under the old Rules, the Court of Appeal saidthe following in Hansraj v Ao (2004) 2004 ABCA 238 , 354 A.R. 88: (

i) at paragraph 77: [77] Rule 23 is not a formality. Substitutional service is not a way of dispensing with service, nor a legal fiction. Substitutional servicedoes not dispense with service; it replaces personal service with some other method likely to come to the personal attention of thedefendant in question. (ii) from paragraph 78: The requirements of R. 23 are serious, and an order under it made without complying with it should be set aside.

Applications to Set Aside Ex Parte Substitutional Service Orders [25] Some additional references to the Court of Appeal’s decision in Hansraj, supra, may help inform this application before me: [81] The onus of proof is on the plaintiff, even on a motion to set aside the ex parte order for substitutional service: McGillis v. Hirtle,supra. [82] Therefore, if the respondent is entitled now to attack the order for substitutional service, in that event he can benefit from the factthat it is completely without some of the evidentiary support mandated by law.

[84] We must recall that the order permitting service was given ex parte. Someone affected by an ex parte order may move to set it aside: rule 387(2). That may be done upon any ground which would have sufficed originally to deny the order on the merits, had it been opposed at the time. Indeed, a motion to set aside is often treated as a de novo hearing of the original application (assuming, of course, that there is no operative bar to the motion to set it aside, such as delay). Lack of proper evidence would certainly suffice to set aside.

The party later moving to set it aside is also entitled to give new evidence which either rebuts the evidence used originally to get the order, or which establishes some legal bar to granting the order.

And the order can also be set aside if the original evidence failed to disclose material facts, given the duty of good faith lying upon anyone making an ex parte application. [ 26 ] Unlike Horner, J. who only had Cst Binsted’s December 2, 2011 affidavit before her, I have, in addition, a transcript of the officer’s cross-examination on that affidavit, plus two affidavits from the accused. [ 27 ] The focus of my inquiry is Rule 11.28(2)(a) - that the affidavit must set out why personal service is impractical. [ 28 ] Constable Binsted’s affidavit contained this conclusory belief at paragraph 41: I believe that prompt personal service of the within Notice of Appeal upon the Respondent is impractical. [ 29 ] A lack of promptness is not sufficient to show personal service is impractical - see Re Conan Doyle ’s Will Trusts [1971] 2 All E.R. 1377 at 1379 .

Indeed there were approximately three weeks remaining in the 30 day appeal period. Thus Horner, J. would undoubtedly be misled by the deponent’s assertion which ties impracticality of service to an almost immediate time requirement to have the Order issue. [ 30 ] Constable Binsted’s affidavit contained this belief at paragraph 40(c): the Respondent’s parents are actively refusing to provide police with any information concerning the Respondent’s whereabouts and are doing so in an effort to frustrate service of the within Notice of Appeal upon him. [ 31 ] The significance of such a statement is obvious.

Indeed it smacks of a deliberately coordinated obstruction of the police by the parents. Frustrated by such parental action, the officer turns to the Court for assistance. [ 32 ] However, when cross-examined, Cst Binsted admitted that he didn’t know if the persons he spoke with were the Accused’s parents at all. He just presumed they were. Had Horner, J. been made aware of such a qualification, I am satisfied that the “sting” of paragraph 40(

c) would have been entirely removed. Indeed, one wonders if any comment like that found in paragraph 40(

c) would have been proffered if it was only based upon the officer’s hunch. [ 33 ] Cst Binsted said this at paragraph 34 in relation to him trying to telephone the Accused three times at the Edmonton telephone number that the Accused had provided when arrested in December 2010: 34 My telephone calls to this number would not connect. I believe this telephone number is no longer in service. [ 34 ] This aspect of the affidavit is very troubling.

While he deposed on December 2, 2011 to attempting three telephone calls, his notes made at the time on December 1, 2011 - one day earlier - show that he only attempted two telephone calls. [ 35 ] The officer’s two or three attempted calls that “would not connect” is inexplicable given the Accused’s unchallenged affidavit, with attached proof, that that telephone number did belong to the Accused and that it was fully operational. How it could,

repeatedly, fail to connect makes no sense. [ 36 ] But the purported explanation was provided by the officer when he deposed that he believed that the number was no longer in service. [ 37 ] I have no doubt that Horner, J. would have accepted that belief as the only conceivable explanation for a repeated failure to connect. [ 38 ] But during cross-examination Cst Binsted testified that he had actually received a message that the number was out of service. If anything then, this elevated his asserted “belief” to the receipt of actual proof. [ 39 ] But in either circumstance Cst Binsted was wrong.

The unchallenged affidavit of the Accused was that this number was fully operational and never out of service. [ 40 ] How the officer could be so wrong and could come up with variations on how he reached certain conclusions is baffling. [ 41 ] But his mistaken claims would have misled Horner, J. to conclude that the officer had run out of reasonable and expected avenues in this search for the Accused’s whereabouts. [ 42 ] In other words, the Accused was no longer available to be contacted through the only direct source given by the Accused to the officer.

The officer could not proceed through an obvious indirect route because the parents were deliberately frustrating his efforts. [ 43 ] Through a combination of misinformation and misleading information in the affidavit, Horner, J. was led to grant the Substitutional Service Order. The various deficiencies in Cst Binsted’s affidavit combined to mislead Horner, J. to conclude that personal service was impractical. [ 44 ] The requirement for the full and fair provision of information seems to have also been omitted when the officer did an Edmonton white pages search for the Accused’s name.

He didn’t locate the accused but did locate the phone number of a relative of the Accused. There appears to have been no effort taken to contact that relative for a lead on the Accused’s whereabouts. [ 45 ] The omission of any detail of what he had learned meant that the judge knew nothing of it. Had she been made aware, she may have directed some inquiry be undertaken since at that point it could not be said that further attempts at personal service would be impractical. [ 46 ] Cst Binsted properly turned his efforts at locating the Accused to Edmonton.

His information was that the Accused was attending university and the Accused’s affidavit confirms that was so. Yet those efforts as detailed in his affidavit raise some serious concerns about what he actually did and did not do. [ 47 ] Simple inquiries to the telephone service provider would have told him that the telephone number was in service.

Armed with that information he would have undoubtedly tried to contact the Accused again before applying for a Substitutional Service Order. [ 48 ] Notwithstanding Cst Binsted’s information that the Accused was a student at the University of Alberta, no effort was made to contact the Campus Security to see what information they might have available regarding the Accused’s Edmonton residential location. Nor did Cst Binsted contact the Edmonton Police Service to seek their assistance in liaising with Campus Security or otherwise.

[ 49 ] What is notable about this essentially one man “investigation” is that it was both deficient and seemingly motivated by haste, i.e. there were approximately three weeks remaining in the 30 day appeal period. Obvious inquiries were not conducted and no reason for failing to do so is forthcoming. [ 50 ] Bluntly stated, the Court expects more when the substitutional service applicant is the Crown. As was said by Harradence, J.A. in R v Finley [1995] A.J.

No 829 and subsequently repeated in R v Quenneville 2003 ABCA 185 at paragraph 8 by Wittmann, J.A. (as he then was): It must be remembered that, unlike the accused or an ordinary litigant, the Crown has at its disposal a vast array of investigative and administrative machinery which can easily be employed to locate an accused and serve him a notice of appeal. [ 51 ] Nothing even remotely reflecting these comments occurred here. [ 52 ] In my view, whether one examines this application from a consideration of how Horner, J. was misled by Cst Binsted’s affidavit or from a de novo consideration by myself, the result is the same.

The impugned Order must be set aside due to a deficiency in proper proof that personal service was impractical. [ 53 ] The Crown submitted that such a decision would be prejudicial to the Crown as the effect is that the appeal is dismissed. I recognize that any dismissal of an appeal on grounds other than on the merits is a decision not be lightly made. But, as was earlier noted, the case law holds that an applicant runs such a risk if it fails to meet the responsibilities imposed by the law on ex parte applications. In essence it only has itself to blame.

Nevertheless I did read the trial transcript and the grounds listed in the Notice of Appeal. Clearly, the trial judge is not alleged to have made a decision that presents potential precedental difficulties for the Crown or that presents an

interpretation upon the law which may be problematic for future prosecution. Simply stated, it seem that the Crown’s contention is that this was an unreasonably arrived at acquittal. Accordingly I find the prejudice to the Crown’s interests in the appeal to be minimal at best. By comparison, the prejudice to the Accused, if I permitted this irregularly prepared appeal to proceed further, is great. [ 54 ] In the result I set aside the Order for Substitutional Service and quash the appeal. Heard on the 8 th day of November, 2012. Dated at the City of Calgary, Alberta this 16 th day of November, 2012. E.C. Wilson J.C.Q.B.A. Appearances: Andrew S. Barg

for the Crown/Respondent Noel C. O’Brien, Q.C. for the Accused/Applicant