Court of Queen ’ s Bench of Alberta Citation: R v Johannesson, 2016 ABQB 127 Date: 20160315 Docket: 100041961S1 Registry: Wetaskiwin Between: Her Majesty the Queen Crown - and - Jo-Ellen Johannesson Respondent - and - Haryett & Company (representing the interests of Legal Aid Alberta) Third Party Applicant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A. Sulyma _______________________________________________________ I. Introduction

[ 1 ] After Ms. Johannesson was acquitted in an impaired driving case, the Crown filed a

summary conviction notice of appeal with the Court of Queen’s Bench of Alberta. The Crown attempted service upon Ms. Johannesson by serving trial counsel. Trial counsel declined to accept service, advising she was no longer representing Ms. Johannesson and so would not accept service on her behalf. The Crown notified trial counsel of its intended ex parte application before the Court of Queen’s Bench for an order extending time for service and for substitutional service of the notice of appeal.

The chambers justice granted the requested order in camera , based on affidavit evidence, whereupon service of the notice of appeal by registered mail was unsuccessful with respect to Ms. Johannesson but successful with respect to trial counsel. [ 2 ] Trial counsel’s firm was appointed by Legal Aid Alberta to bring this application to set aside the ex parte order “as a matter of public policy and potential future costs”. The Crown vigorously opposes both the Applicant’s role in these proceedings and the substance of its application. II. Facts [ 3 ] On September 15, 2014, Ms.

Johannesson was acquitted of impaired driving and operating a motor vehicle while her ability to drive was impaired by alcohol. [ 4 ] On September 29, 2014, the Crown filed a notice of

summary conviction appeal with the Court of Queen’s Bench. The next day, September 30, the Crown provided trial counsel with a copy of the notice of appeal and a letter advising it was “...for service upon you”. The notice was provided by facsimile. [ 5 ] On October 1, 2014, trial counsel sent the Crown a letter advising that she no longer acted for Ms.

Johannesson as the trial was concluded, and that she did not have instructions to accept service of documents. [ 6 ] On October 2, 2014, the Crown sent a letter to trial counsel, together with a copy of the proposed order for substitutional service and his assistant’s affidavit, advising that he would be seeking a “fiat” on Monday, October 6. The Crown’s letter invited trial counsel and Ms. Johannesson to attend. Neither trial counsel nor counsel on this application was available to attend.

Trial counsel was served with a copy of the ex parte order for substitutional service later that day. [ 7 ] On October 6, 2014, the Crown filed an affidavit sworn by a Crown employee and paralegal (the “First Affidavit”). She attests that she reviewed the Crown’s office file, correspondence, and information available on the Justice Online Information Network (JOIN).

She attached a copy of October 1 st letter from trial counsel stating she would not accept service of the notice of appeal; a copy of the October 2 nd letter from the Crown asking her to reconsider her position in light of the “ Majewski decision” (holding that counsel is obliged to remain on the record until the appeal period has expired), as well as notice of the application for substitutional service on October 6 th ; and a copy of the JOIN data sheet containing Ms. Johannesson’s address.

The employee states that she makes the affidavit in support of an application for a “fiat”. [ 8 ] The application for substitutional service and an extension of time to serve Ms. Johannesson was heard ex parte in private chambers and granted by Sissons J in Wetaskiwin, on October 6, 2014. Accordingly, there is no transcript of what transpired. [ 9 ] Sissons J issued an ex parte order dispensing with any need for notice of the application, extended time for service of the notice of appeal by two months, and allowed for substitutional service of the notice by registered mail upon Ms.

Johannesson at an address derived from the JOIN Charge Detail Inquiry records, upon trial counsel, and at any other address listed for Ms. Johannesson within the current records of the Registrar of Motor Vehicles of the Province of Alberta (the “ ex parte order”). [ 10 ] On October 10, 2014, counsel filed this notice of motion to set aside the ex parte order for substitutional service.

The grounds for this application are that the preconditions for granting an order ex parte were not satisfied: the circumstances were not emergent ( Rule 6.4 of the Alberta Rules of Court , Alta Reg 124/2010 (“ Rules of Court ”)); there was no evidence of attempts at personal service (Rule 3(2) of the Court of Queen’s Bench of Alberta

Summary Conviction Appeal Rules , SI/2012-39 (“

Summary Conviction Appeal Rules ”)); the evidence did not explain the delay to date or why Ms. Johannesson could not be served by the 30-day deadline. Nor were the pre-conditions for granting an application for substitutional service satisfied: there was no evidence of attempts at personal service, there was no evidence setting out why service was impractical, and the evidence did not explain or justify the requirement for substitutional service (see Rule 11.28 of the Rules of Court ).

Further, the affidavit evidence did not support that the proposed appeal was meritorious. [ 11 ] On October 21, 2014, counsel appeared before Sissons J to set a date for the motion to set aside the ex parte order. At that hearing, trial counsel advised that her firm did not yet have a legal aid retainer to represent Ms. Johannesson, but that both her firm and Legal Aid Alberta had an interest in the legal question posed by this case: whether defence counsel was obliged to accept service of a notice of Crown appeal in the period after trial and before the appeal period expires; and the effect of

Summary Conviction Appeal Rule 3(2), and the Rules of Court , including the pre-conditions for an order of substitutional service under Rule 11.28, and the Rule 14.82 that mandates a formal process for withdrawal of counsel. [ 12 ] By email of Friday, November 28, 2014, Ms. Boisvert confirmed to the Crown that her firm (also that of trial counsel) did not represent Ms.

Johannesson for the appeal, but was retained by Legal Aid Alberta for the purposes of the application to set aside the ex parte order. [ 13 ] The application was set for December 18, 2014. [ 14 ] On December 1, 2014, the Crown’s employee and paralegal filed a second affidavit including documentary evidence of procedural steps in this matter (the “Second Affidavit”). Attached to the Second Affidavit, among other things, is evidence of attempted service by registered mail upon Ms.

Johannesson and trial counsel; as well as a certificate under section 5(1) of the Traffic Safety Act , RSA 2000, c T-6 endorsed by the Deputy Registrar of Motor Vehicle Services, setting out Ms. Johannesson’s addresses as shown in

those records, to November, 2014. [ 15 ] On December 2, 2014, the Crown proceeded with an application in chambers for an extension of the time granted for service of the

summary conviction notice of appeal in the ex parte order. The time limit was extended to December 18, 2014, the date set for the application to set aside the ex parte order. [ 16 ] On December 12, 2014, the Crown’s employee and paralegal filed a third affidavit (the “Third Affidavit”) attaching, among other things, an affidavit of non-service from the process server who set out detailed attempts to serve Ms. Johannesson on November 3, 13, 17, 18, 19, 27 and December 1 st , with the conclusory view that she was evading service. [ 17 ] This application proceeded to hearing May 13, June 9 th , and July 30 th , 2015. III. Legislation [ 18 ] The relevant provisions of the

Summary Conviction Appeal Rules ( Rules 3(1) , 3(2) and 8(1) , 8(3) ) include: SERVICE OF NOTICE OF APPEAL 3(1) An appellant shall deliver a notice of appeal to the clerk within 30 days after the day on which the conviction, judgment, acquittal or order was made or the sentence was imposed, whichever is the later date.

(2) If the appellant is the prosecutor, the filed notice of appeal shall be served personally on the defendant or on any other person or in any other manner that a judge may direct or authorize, within the period referred to in subsection (1). ... TIME LIMITS 8(1) A judge may, before or after the periods fixed by these Rules, (

a) order the extension or abridgment of the time within which any filing, service or transmission of any documents may be effected, or (

b) order that any filing, service or transmission of any documents that has been effected be deemed to be valid and sufficient. ...

(3) For the purposes of these Rules, any form of service that is required may be effected by delivery of the document to be served to the address for service of the counsel for the party to be served and the Rules of the appeal court as are applicable to civil matters also apply to service of documents under these Rules with any modifications that the circumstances require. (Emphasis added) [ 19 ] Various provisions of the Rules of Court relating to service of documents include: Applications without notice 6.4 Despite any other rule to the contrary, notice of an application is not required to be served on a party if an enactment so provides or permits or the Court is satisfied that (

a) no notice is necessary, or (

b) serving notice of the application might cause undue prejudice to the applicant. … Service not invalid 11.2 Service by mail or recorded mail is not invalid by reason only that (

a) the addressee refuses to accept the mail, (

b) the addressee returns the mail, (

c) in the case of recorded mail, the addressee refuses to take delivery of the recorded mail, or (

d) the addressee no longer resides or is otherwise not present at the address and has not provided the postal service with a current mailing address. … Service of documents, other than commencement documents, in Alberta 11.20 Unless the Court otherwise orders or these rules or an enactment otherwise provides, every document, other than a commencement document, that is to be served in Alberta may only be served by

(

a) a method of service described in Division 2 [Service of Commencement Documents in Alberta] for service of a commencement document, (

b) a method of service described in rule 11.21 [Service by an electronic method], (

c) recorded mail under rule 11.22 [Recorded mail service], or (

d) a method of service agreed to under rule 11.3 [Agreement between parties]. … Validating service 11.27(1) On application, the Court may make an order validating the service of a document served inside or outside Alberta in a manner that is not specified by these rules if the Court is satisfied that the method of service used brought or was likely to have brought the document to the attention of the person to be served.

(2) On application, the Court may make an order validating the service of a document served inside or outside Alberta if the Court is satisfied that the document would have been served on the person or would have come to the attention of the person if the person had not evaded service.

(3) If service is validated by the Court under this rule, service is effected on the date specified in the order. Substitutional service 11.28(1) If service of a document, inside or outside Alberta, is impractical, the Court may, on application, make an order for substitutional service.

(2) The application must be supported by an affidavit (

a) setting out why service is impractical, (

b) proposing an alternative method of service, and (

c) stating why the alternative method of service is likely to bring the document to the attention of the person to be served.

(3) Unless otherwise ordered, an order for substitutional service of a document must be served with the document except when substitutional service is by advertisement, in which case the advertisement must contain a reference to the order.

(4) If a document is served in accordance with an order for substitutional service, service is effected on the date specified in the order. Dispensing with service 11.29(1) On application, the Court may make an order dispensing with service, inside or outside Alberta, if service of a document by a method prescribed by these rules is impractical or impossible.

(2) The application must be supported by an affidavit (

a) setting out that all reasonable efforts to serve the document have been exhausted or are impractical or impossible, (

b) stating why there is no or little likelihood that the issue will be disputed, and (

c) stating that no other method of serving the document is or appears to be available. …

Setting aside service 11.31(1) A defendant may apply to the Court to set aside … (

b) an order for substitutional service of a commencement document, ... [ 20 ] Also relevant to this application are the Rules of Court relating to lawyers of record: Lawyer of Record 2.24(1) The lawyer or firm of lawyers whose name appears on a commencement document, pleading, affidavit or other document filed or served in an action as acting for a party is a lawyer of record for that party.

(2) When there is a lawyer of record, the party for whom the lawyer of record acts may not self-represent unless the Court permits.

(3) A lawyer of record remains a lawyer of record until the lawyer ceases to be a lawyer of record under these rules. Duties of lawyer of record 2.25(1) The duties of a lawyer of record include: (

a) to conduct the action in a manner that furthers the purpose and intention of these rules described in rule 1.2 [ Purpose and intention of these rules ]; (

b) to continue to act as lawyer of record while the lawyer is recorded in that capacity.

(2) On application, the Court may direct a lawyer of record to disclose the address of the party for whom the lawyer acts. Verifying lawyer of record 2.26(1) If a person who is served with a commencement document, pleading or other document asks a lawyer or firm of lawyers if the lawyer or firm is a lawyer of record in an action, application or proceeding, the lawyer must respond to the question in writing as soon as practicable.

(2) If a lawyer or firm of lawyers whose name appears as a lawyer of record in an action denies being the lawyer of record, (

a) every application and proceeding in the action is stayed, and (

b) no further application, proceeding or step may be taken in the action without the Court’s permission. [ 21 ] Lastly, various rules relating to appeals apply:

PART 14: Appeals Division 1 The Right to Appeal Subdivision 1

Interpretation and Application

Definitions 14.1(1) In this Part, (a) “appeal” means an appeal to the Court of Appeal governed by this Part; (b) “appellant” means a person who under an enactment or these rules (

i) files an application for permission to appeal to the Court of Appeal, or

(ii) files a notice of appeal; … Lawyer of record and litigation representative 14.82 Unless otherwise ordered, (

a) the lawyer of record in the court appealed from continues as the lawyer of record on the appeal until ceasing to be so in accordance with

Part 2, [ The Parties to Litigation ] Division 4, [ Lawyer of Record ] and …

Part 61 RULES OF THE COURT OF APPEAL OF ALBERTA AS TO CRIMINAL APPEALS 839 In these Rules, unless the context otherwise requires:- (1) “Appellant” means any person entitled to appeal to the Court under

Part XVIII of the Code, or

Section 771 of the Code, or under The

Summary Convictions Act of Alberta, and includes the Attorney-General. … General 840(1) These Rules shall apply to appeals to the Court under: … (ii) The

Summary Convictions Act of Alberta. …

(3) In all matters not provided for by these Rules, the Rules of Court respecting civil appeals shall apply mutatis mutandis save that there shall be no cross appeal, and Rule 509 shall not apply.

FILING AND SERVING NOTICE OF APPEAL Criminal Code Reference s 607(1) 844(1) The filing and serving of a notice of appeal shall be effected: … (iii) in an appeal by the Attorney-General, by filing two (2) copies of the notice of appeal with the registrar and by personal service on the person in respect of whose trial disposition the appeal is brought, unless otherwise ordered by an Appellate judge; provided that where substitutional service is ordered, no appeal shall be argued without leave of the Court, and on such application for leave, the Court may gave further directions as to service. IV.

Issues [ 22 ] The issues in this application are: a. was the Crown’s service of the appeal notice on trial counsel valid?

b. does counsel or Legal Aid Alberta have status to bring this application? c. should the application to set aside the ex parte order for substitutional service be granted? d. should the Crown’s alternative application, that service be deemed valid under Rule 11.27, be granted? e. should the Applicant be awarded costs? V. Analysis 1. Arguments of the Parties The Applicant Firm representing the interests of Legal Aid Alberta [23] The Applicant has succinctly set out its position as the operation of the relevant Rules in her letter of December 2, 2014: (

a) Rule 14.82, relied on by the Crown, does not apply to criminal appeals. In the 2014 Alberta Rules of Court (Fradsham: Carswell,2014), Rule 14.1 states: “The Alberta Rules of Court (Alta. Reg. 390/68) continue to apply to appeals to the Court of Appeal”. (

b) Appendix 11 (page 1213 of the 2014 Rules) outlines the framework for civil appeals in

Part 39 and criminal appeals in

Part 61(page 1328 of the Rules) to the Alberta Court of Appeal. In

Part 61, Rule 840 states: “These Rules apply to appeal to the Court under: . . .(ii) The

Summary Convictions Act of Alberta.” (

c) The proper method of service of a notice of appeal is then provided for in Rule 844, which states: “The filing and serving of anotice of appeal shall be effected: ... (iii) in an appeal by the Attorney-General, by filing two (2) copies of the notice of appeal with theregistrar and by personal service on the person in respect of whose trial disposition the appeal is brought, unless otherwise ordered by anAppellate judge; provided that where substitutional service is ordered, no appeal shall be argued without leave of the Court, and on suchapplication for leave, the Court may give further directions as to service.” (Page 1333) (

d) These rules inform with greater specificity the rules that are directly applicable, as contained in Rules 3 and 8 of the Court ofQueen’s Bench of Alberta

Summary Conviction Appeal Rules, SI/2012-39 and interpreted by Alberta courts. As indicated in the case lawalready provided, the rules for criminal appeals to the Court of Queen’s Bench and the Court of Appeal must be consistent to ensureuniformity and fairness. (

e) Simply stated, there is no rule in criminal appeals that allows for service on trial counsel absent prior authorization. When thesection of rules relied on by the Crown is read as a whole, [it is clear] that Part and Rule 14.82 apply to civil court appeals. Thatparticular rule is inconsistent with the clear rules requiring personal service on the respondent in all criminal appeals unless otherwiseordered by a Court. It is respectfully submitted that to read Rule 14.82, a civil rule, as applicable to criminal appeals would be contraryand inconsistent with the rules specifically outlined for service in criminal appeals. (

f) As an aside, it is unclear to this writer whether Rule 14.82 still exists as it is not contained anywhere in the printed version of thecurrent Rules, however, it is available on Canlii.org. [24] The Applicant submits that Rule 14.81(1) is mutually inconsistent with Rule 840(3) and only consistent with the proceduregoverning criminal appeals to the Court of Appeal. Indeed, Rule 14 and

Part 14 contemplate civil appeals whereas Rule 3(2) of theSummary Conviction Appeal Rules maintains differences between civil and criminal proceedings.

Rule 3(2) is short and clear where theCrown is the appellant. [25] The Applicant submitted a number of authorities to support its view: Alberta Wheat Pool and Federal Grain Limited vButler et al, [1970] AJ No 125; Greter v Bradburn, 2005 ABQB 264; R v Goodhart, 2012 ABQB 712; R v Ruffo, (ON CA), [1982] OJ No 155, 1 CCC (3d) 358 (Ont CA); R v Higgins, 2009 ABQB 147; R v Bandesha, 2013 ABCA 181; R v Smart,2013 ABCA 442; Alexander v Cherry, 2007 ABCA 128; R v Chan, 2012 ABCA 250; R v Roberge, 2005 SCC 48; R v Viccars, 2004ABCA 294; R v Garcia (2005), (ON CA), 194 CCC (3d) 361 (Ont CA); Court of Queen’s Bench for AlbertaSummary Conviction Appeal Rules, SI/2012-39. [26] The Applicant submits that the Crown position would require defence counsel to assume the role of process server.

TheApplicant highlights the practical considerations, posing rhetorical questions. What if counsel of record cannot locate the former client?The analysis of Hillier J in R v Majewski, October 10, 2013, unreported, Wetaskiwin, assumes defence counsel can file a notice ofwithdrawal, but after acquittal, the trial judge is functus.

Would the notice be filed in Provincial Court or Queen’s Bench after the noticeof appeal is filed? [27] The Applicant relies upon the decisions of Wilson J in R v Goodhart, 2012 ABQB 712, and R v Higgins, 2009 ABQB 147, assupportive of its position. [28] Further, the Applicant maintains that the Crown has not presented a clear authority for the principle that the Crown on asummary conviction appeal can serve trial counsel with the Notice of Appeal. The Respondent Crown [29] The Crown submits that this case concerns the proper procedural steps for the Crown to effect service of a

summaryconviction notice of appeal after trial. The Crown submits that the correct

interpretation of the Rules governing service of a

Summary

Conviction Appeal notice are:

i) Rules 3(2) and 8(3) of the

Summary Conviction Appeal Rules as well as Rules 14.81(1)(

a) and 14.82(

a) of the Rules of Courtgovern service of a notice of appeal by a prosecutor. ii) Although the general rule under the

Summary Conviction Appeal Rule 3(2) is that the prosecutor must personally serve theRespondent, each of

Summary Conviction Appeal Rule 8(3) and (2), and Rules of Court 14.81(1)(

a) and 14.82(a), permits service to beeffected by serving the notice of appeal on a respondent’s counsel of record. [30] In this case, the Crown completed service on September 30, 2014, by serving the notice of appeal on Haryett & Company,counsel of record. This was within the appeal period and long before the ex parte order. [31] The Crown relies on the principle that service on a party’s lawyer has long been good service at common law. Thisresponsibility arises from the solicitor being on the record and founds obligations to the Court and opposing counsel.

This duty continuesuntil judgment is entered, until counsel is discharged, and substitutes another solicitor on the record.

Authority for this proposition,argues the Crown, lies in three Alberta Court of Appeal cases: Kipnes v Alberta (Attorney General) (1966), (AB CA),56 WWR 474, 4 CCC 387; Harder v Hayter (1975), (AB CA), 4 WWR 765, 1975 CarswellAlta 45; and R vCanmore Coal Co (1920), (AB CA), 15 Alta LR 531, 34 CCC 48 (Alta CA). [32] In addition, the Crown submitted a number of cases to support its view that the judicial decision is not final until the appealperiod expires and that a notice of appeal may be served on counsel of record: Lady de la Pole v Dick (1885), 29 Ch Div 351, 54 LJ Ch940, 52 LT 457 (CA), William A Stevenson & Jean E Côté, Civil Procedure Handbook, vol 1, (Juriliber: Edmonton, 2003), Gary DWatson and Derek McKay, Holmested and Watson: Ontario Civil Procedure, vol 3 (Carswell: Toronto) § 15, Hett v Pong (1890), 1890CanLII 35 (SCC), 18 SCR 290, 1890 CarswellBC 3 (SCC), Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 per Binnie J. [33] The Crown further relied upon the reasons of Hillier J in Majewski, but submitted the decisions of Wilson J in Goodhart andHiggins are distinguishable and of limited precedential value. [34] The Crown takes the position there is no bright line “severing the practice and procedure in criminal and non-criminalappellate proceedings.” The Crown submits that where circumstances arise that are not covered specifically by the criminal rules, thecivil rules apply.

The Crown points to the Alberta Rules of Court that govern the practice and procedure in the Court of Queen’s Benchof Alberta and the Court of Appeal of Alberta. These were passed in 2010 and also applied to every appeal existing on September 1,2014. [35] The Crown submits that the

Summary Conviction Appeal Rules incorporate civil Rules of Court expressly, as can be seen inSummary Conviction Appeal Rules 3(1), 3(2) and 8(1), 8(3). In the Crown’s view, Rules 8(1) and (3) modify the Rule 3(2). On a properreading of the

Summary Conviction Appeal Rules and the Rules of Court, a lawyer’s duty to the Court prevails. [36] The Crown argues that in the alternative, based on the entirety of the evidence, service on the Respondent should be deemedvalid service under Rule 11.27. 2. Decision A. Was the Crown’s service of the appeal notice on trial counsel valid? [37] The procedural steps leading to this application are: September 15, 2014: Ms. Johannesson’s acquittal. September 29, 2014: Crown filed notice of

summary conviction appeal. September 30, 2014: Crown served trial counsel with notice of

summary conviction appeal. October 1, 2014: trial counsel wrote to crown that she no longer represented Ms. Johannesson and would not accept service ofnotice of appeal. October 2, 2014: Crown wrote to trial counsel advising that an application for an ex parte substitutional service order wouldproceed October 6, and she advised of unavailability. October 6, 2014: Sissons J granted substitutional service order ex parte in private chambers.

October 10, 2014: counsel representing the interests of Legal Aid Alberta filed this application to set aside the ex parte order. [38] The Crown has proceeded throughout on the basis of its understanding that the applicable Rules permitted service on trialcounsel and service pursuant to the ex parte order. In a nut shell, the Crown takes the view that the various Rules oblige trial counsel toremain on the record after judgment is rendered on a

summary conviction matter and until the appeal period expires. Further, the Crownargues that in any event, it has valid service as it obtained the ex parte order for substitutional service and effected service within the timepermitted by that order (the Rules contemplate service is made out where the recipient declines to accept service). [39] The Applicant interprets the Rules to require personal service of the

summary conviction appeal notice upon the subject ofthat appeal, in this case, Ms. Johannesson. She argues there are policy and practical reasons for this: the defence lawyer’s brief ends withthe trial and the defence counsel cannot be visited with the responsibility of service upon the accused, an obligation that is bestundertaken by the Crown with its ample resources. Secondly, the Applicant argues that the pre-conditions to the granting of an order for

substitutional service have not been met, so the ex parte order should be set aside. The Crown application to now rectify that problem with an order deeming service valid cannot be justified. [ 40 ] The answer to this problem lies in an interpretative analysis of the Rules to determine the duties of Crown and defence, where the accused person is acquitted at a trial in provincial court, and the Crown launches a

summary conviction appeal against that decision. [ 41 ] There are specific Rules applicable to

summary conviction appeals in Alberta found in the

Summary Conviction Appeal Rules . Rule 3(2) provides that if the appellant is the prosecutor, the notice of appeal shall be served personally on the defendant or on any other person or in any other manner that a judge may direct, within the 30-day appeal period.

Rule 8, titled “Time Limits”, provides for a judge to order an extensions or abridgement of time for filing or service. [ 42 ] Rule 8(3) provides that for the purposes of these Rules, any form of service that is required “... may be effected by delivery of the document to be served to the address for service of the counsel for the party to be served, and the Rules of the appeal court as are applicable to civil matters also apply to service of documents under these rules with any modification that the circumstances require” (emphasis added).

By definition, the “appeal court” means the Court of Queen’s Bench of Alberta. The Rules of Court pertaining to service of documents in civil matters apply, with modifications as required. [ 43 ] The clear and specific rule is that the Crown is required to personally serve the accused person with the notice of

summary conviction appeal. To reconcile Rule 3(2) with Rule 8(3), the latter Rule, insofar as it permits service upon counsel, must mean that counsel may be served where that counsel is counsel of record for the accused person. In this case, trial counsel advised forthwith that her retainer ended with the trial. The Crown was then left to its other options. [ 44 ] In the context of criminal trials in provincial court, many of which are funded by the Legal Aid Society of Alberta, the Crown cannot assume, as it did in this case, that trial counsel continues to represent the accused after the trial is concluded.

Trial counsel would then presumptively be expected to undertake the task of the Crown to effect service, as set out in Rule 8(1) . Such an onerous burden cannot be imposed upon defence counsel without specific language to that effect, such as that found in the Court of Appeal Rules. Where the Crown is the appellant, it has the resources to serve the accused as respondent. These resources include access to police services well familiar with the task of service of documents, and access to Motor Vehicles Registry and other data banks for location purposes.

The Rules sensibly require the Crown to undertake the efforts to locate an accused for service purposes. [ 45 ] It is a simple matter for the Crown to determine in any given case, whether the defence counsel’s retainer continues after trial – the Crown can put the question to trial counsel at the conclusion of trial, or in a phone call when the Crown decides to file an appeal. Or, the Crown may choose to attempt service upon trial counsel, but it does so at its peril. The primacy of Rule 3(2) requires that the accused person, now respondent to the appeal, be personally served.

The Crown cannot simply disregard Rule 3(2) requiring personal service because the accused was represented by counsel at trial. If defence counsel agrees to accept service, then Rule 8(1) permits an exception to Rule 3(2). [ 46 ]

Part 14 of the Alberta Rules of Court (“ Court of Appeal Rules ”) does not state that its terms apply to

summary conviction appeals. Rule 14.82 provides that the lawyer of record in the court appealed from continues as the lawyer of record on the appeal until ceasing to be so in accordance with

Part 2, Division 4, of the Rules.

Part 2, Division 4 of the Court of Appeal Rules sets out the process required for removal from the record. [ 47 ] Notably, however,

Part 61 of the Court of Appeal Rules , by its express terms, does state that it applies to

summary conviction appeals. Those terms re-affirm and are consistent with the

Summary Conviction Appeal Rules that require personal service of a notice of appeal on the accused. Rule 844(1) (iii) provides for filing and service of the notice of appeal “in an appeal by the Attorney-General, by filing two (2) copies of the notice of appeal with the registrar and by personal service on the person in respect of whose trial disposition the appeal is brought, unless otherwise ordered by an Appellate judge; provided that where substitutional service is ordered, no appeal shall be argued without leave of the Court, and on such application for leave, the Court may give further directions as to service ” (emphasis added). [ 48 ] In my view, on a plain reading of the

Summary Conviction Appeal Rules and the Court of Appeal Rules , the Crown is required to personally serve notice of a

summary conviction appeal upon the subject of the appeal . The Crown cannot presumptively serve trial counsel after the trial is concluded. In this case, the Crown did not perfect service of the notice of

summary conviction appeal by service upon trial counsel. [ 49 ] I take comfort in this

interpretation from the views of Wilson J of this Court, formerly experienced Crown and defence counsel, in the case of R v Goodhart , 2012 ABQB 712 . In Goodhart , Wilson J had occasion to consider an application to set aside an order for substitutional service of a

summary conviction notice of appeal. There, he granted an application to set aside the order for substitutional service because the affidavit relied upon to obtain the order was deficient. Wilson J wrote, at para 13: 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. [ 50 ] As noted by the Court in Goodhart at para 50 , the remarks of Wittmann JA (as he then was) in R v Quenneville , 2003 ABCA 185 at para 8 are apt: 8 These criteria were referred to and applied in R v Finley , [1995] AJ No 829 , where Harradence, JA said: 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 on him a notice of appeal.

In the absence of attempts by the accused to evade service or some other circumstance beyond the Crown's control, it will be a rare day (if ever) that this Court will exercise its discretion to extend the time for service on a Crown appeal.

[51] In granting the application in the Majewsky matter, the chambers judge did not have the benefit of full argument or theauthorities as have I. [52] Furthermore, I can distinguish the facts of the three appellate cases the Crown relies on (Kipnes, Harder, and Canmore CoalCo) in support of its argument as none of them deal with

summary conviction appeals. Indeed, in Canmore Coal Co, the Court stated,“… when the Rule or

section does not exact personal service, that service on such a solicitor is proper service” (at para 9). Here, Rule3(2) of the

Summary Conviction Appeal Rules expressly requires personal service. [53] Therefore, on the basis of a literal

interpretation of the various Rules, the authorities, and sound public policy, I conclude thata Crown-issued notice of

summary conviction appeal must be personally served on the respondent to the appeal. B. Does counsel or Legal Aid Alberta have status to bring this application? [54] The Crown purported to serve trial counsel with the notice of the

summary conviction appeal. With that action, Crowncounsel drew that lawyer’s law firm into the fray. The question of whether or not trial counsel is obliged to act upon that

summaryconviction appeal notice and, in turn, attempt to serve the Accused, is a question that materially affects trial counsel and her firm. Ithardly lies in the mouth of the Crown to object to their participation. [55] Moreover, the rights of the accused person in these circumstances must be protected. Surely it is a reasonable stance for trialcounsel to attempt to have this issue determined by the appeal court that will hear the appeal. [56] Finally, Legal Aid Alberta is also materially affected by the answer to the question raised by this application.

If trial counsel ispresumptively on the record until the appeal period expires, then there is an obligation to respond to the notice of appeal and to take stepsto serve the subject of the criminal proceedings with the notice of

summary conviction appeal. Legal Aid Alberta will be implicated bythe need to assure a retainer for that purpose, to cover both legal costs and disbursements. [57] It is unbecoming the Crown to take issue with the status of the Applicant in these proceedings when it has precipitated thatvery participation by its actions, which are by no means obviously correct under the Rules. [58] The Applicant has status to bring this application on its own behalf and representing the interests of Legal Aid Alberta. C. Should the application to set aside the ex parte order for substitutional service be granted? [59] As noted above, Rule 8 of the

Summary Conviction Appeal Rules addresses some of the relevant considerations about serviceof documents. In addition, the Rules of Court pertaining to service of documents in civil matters apply, with modifications as required. [60] Rule 11.28(1) of the Rules of Court provides that if service of a document is impractical, the Court may, on application, makean order for substitutional service. Rule 11.28 (2) requires that the application be supported by an affidavit: (

a) setting out why service is impractical, (

b) proposing an alternative method of service, and (

c) stating why the alternative method of service is likely to bring the document to the attention of the person to be served. [61] The First Affidavit does not comport with the requirements of Rule 11.28(1). It does not state why personal service isimpractical.

It does not propose an alternative method of service or state why such alternative method of service is likely to bring thedocument to the attention of the person to be served. [62] Therefore, the ex parte order extending time for service of the notice of appeal and substitutional service was granted withoutthe evidence required. [63] In Hansraj v Ao, 2004 ABCA 223, the Court of Appeal observed that lack of proper evidence would suffice to set aside anorder for substitutional service, at para 81-84: 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. 83 This topic was treated in Queen's Bench chambers, and in appellate argument, as part of other issues.

But I find it helpful to treat itseparately. 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:R. 387(2). That may be done upon any ground which would have sufficed originally to deny the order on the merits, had it been opposedat the time. Indeed, a motion to set aside is often treated as a de novo hearing of the original application (assuming, of course, that thereis no operative bar to the motion to set it aside, such as delay). Lack of proper evidence would certainly suffice to set aside.

The partylater moving to set it aside is also entitled to give new evidence which either rebuts the evidence used originally to get the order, orwhich establishes some legal bar to granting the order. And the order can also be set aside if the original evidence failed to disclosematerial facts, given the duty of good faith lying upon anyone making an ex parte application. [64] As well, in R v Ruffo, (ON CA), [1982] OJ No 155, the Ontario Court of Appeal considered an argumentthat two ex parte orders extending the time for filing and service of a notice of

summary conviction appeal were a nullity, resulting in an

absence of jurisdiction in the appeal court to entertain the appeal. [ 65 ] Counsel for the respondent accused in that case argued that the motions judge granted ex parte orders without an evidentiary basis. That case considers the authorities concerning when a court may grant an ex parte order for extension of time to file and serve a notice of

summary conviction appeal. The Court stated, at paras 23 and 27, that as a general rule, notice of an application to extend time for service and filing of the notice of appeal must be given to the respondent, but may be dispensed with where it is impossible to give notice because the respondent cannot be found. The Court wrote, at para 27: … That case [Neal], as I have already indicated, stands for the proposition that ordinarily notice of an application to extend the time for appealing must be given to the other party.

The granting of an application to extend the time for appealing without notice to the opposite party is, therefore, exceptional and the onus lies on the party seeking an ex parte order to extend the time for appealing to bring himself within an exception. Save, perhaps, in the most unusual circumstances, that onus can only be discharged on the basis of evidence either by way of affidavit, documentary or viva voce evidence.

A mere representation by counsel applying for the ex parte order cannot, in my view, constitute a sufficient basis for dispensing with notice of the application, at all events, where there is no record of what representation, if any, was made. In the present case, there is nothing which indicates that the Judge had before him any evidence to provide a basis for making an ex parte order; indeed, the record indicates an absence of any evidence. [ 66 ] The ex parte order in this case granted an order for substitutional service as well as an order for extension of time.

In the case of R v Higgins , 2009 ABQB 147 , Wilson J wrote a thorough dissertation on the Rules, outlining practical procedures and jurisprudence pertaining to ex parte orders for extension of time to file and serve notice for

summary conviction appeals. There is no point served in reiterating the law as set out in Higgins . Suffice to say, in this case, there was no evidentiary basis to grant the ex parte order to extend time under

Summary Conviction Rule 8 (1) (

b) or for substitutional service under Rule 11.28 (1). The ex parte order based upon submissions of counsel in private chambers cannot meet the requirements of the Rules. The ex parte order must be set aside. D. Should the Crown’s alternative application, that service be deemed valid under Rule 11.27, be granted? [ 67 ] Ultimately, in filing the Second Affidavit and the Third Affidavit, the Crown provided evidence that met the requirements of Rule 11.28(1).

However, the underlying problem is that the order permitting this attempted service has been set aside as there was no evidence upon which that order could be granted. To allow the Crown to succeed by deeming the service valid under Rule 11.27 would be to allow the Crown to do indirectly what it cannot do directly: serve the accused person substitutionally without a court order permitting it to do so. [ 68 ] Therefore, I dismiss the application to deem valid the service of the

summary conviction notice of appeal upon Ms. Johannesson. [ 69 ] In any event, the effluxion of time has overtaken this matter, largely attributable to institutional delay. The accused person should not be prejudiced by this delay in having to face this appeal when the acquittal was entered September 18, 2014 for impaired driving charges that arose January 1, 2010. E. Should the Applicant be awarded costs? [ 70 ] Since this application to set aside the ex parte order for substitutional service is brought under the civil Rules of Court , those Rules apply to answer the question of costs.

The general rule is that a successful party to an application is entitled to a costs award against an unsuccessful party under Rule 10.29. However, the parties have leave to apply to me for a costs adjudication. VI. Conclusion [ 71 ] The questions posed by this application are answered as follows: a. On the basis of a literal

interpretation of the Rules, the authorities, and sound public policy, I conclude that the Rules require that the Crown’s notice of

summary conviction appeal be served personally on the Respondent to the appeal, unless a court otherwise orders. b. The Applicant has status to bring this application on its own behalf and representing the interests of Legal Aid Alberta. c. The ex parte order for an extension of time and for substitutional service must be set aside. The affidavit evidence upon which the order was granted did not meet the requirements of Rule 11.28(1) nor did the evidence establish a basis for an extension of time for filing and service of the notice of appeal under Rule 8(1)(b). Representations made by counsel in private chambers do not suffice. d. The application to deem service of the notice of

summary conviction appeal valid is dismissed, since the order permitting such service has been set aside, and service was therefore effected without a court order. If I am wrong in this, I conclude that in any event, the effluxion of time has overtaken this matter, largely attributable to institutional delay. The accused person should not be prejudiced by this delay in having to face this appeal when the acquittal was entered September 18, 2014 for impaired driving charges that arose January 1, 2010. [ 72 ] I am grateful to counsel for their thorough treatment of the issues.

Heard on May 13 th , June 9 th and July 30 th , 2015. Dated at the City of Wetaskiwin, Alberta this 14 th day of March, 2016. D.A. Sulyma J.C.Q.B.A. Appearances: Trent Wilson agent for, Levi Cammack for the Crown Danielle Boisvert, Haryett & Company for the Appellant