R v Unruh, 2024 ABCA 15

In the Court of Appeal of Alberta Citation: R v Unruh, 2024 ABCA 15 Date: 20240117 Docket: 2301-0140A Registry: Calgary Between: His Majesty the King Respondent - and - Justin Lee Unruh Applicant _______________________________________________________ Reasons for Decision of The Honourable Justice Jo'Anne Strekaf _______________________________________________________ Application for Leave to Appeal _______________________________________________________ Reasons for Decision of The Honourable Justice Jo'Anne Strekaf _______________________________________________________

Overview [1] The applicant is seeking leave to appeal an order denying an extension of time to appeal his conviction for various

summaryconviction offences. [2] The applicant pled guilty on February 8, 2018 before a provincial court judge (now known as a justice of the Alberta Courtof Justice) to six

summary conviction offences including three firearms offences, assault with a weapon, uttering threats and causingunnecessary pain, suffering or injury to animals. Based on a joint submission, the applicant was sentenced to a two-year conditionalsentence order, a three-year probation order, a 10-year weapons prohibition, a 10-year prohibition on his ownership of animals and wassubject to an order to forfeit all weapons and ammunition seized at the time of his arrest. [3] Appeals from

summary conviction offences are heard in Alberta by the Court of King’s Bench: Criminal Code, s 812(d).The deadline for filing a notice of appeal is 30 days: Criminal Code, s 815(1); Court of King's Bench of Alberta Criminal ProcedureRules, SI/2017-76, Rule 31(1). A King’s Bench judge may extend the time for filing a notice of appeal: Criminal Code, s 815(2). [4] Four years and seven months after the deadline to file an appeal had passed, and after completing his conditional sentenceand the majority of his probation, the applicant applied for an extension of time to file an appeal.

That application was denied: R vUnruh, 2023 ABKB 293 [Decision]. He now seeks leave to appeal that decision pursuant to s 839 of the Criminal Code. Preliminary Jurisdictional Issue [5] The Crown raises as a preliminary issue whether this Court has jurisdiction to hear an application for leave to appeal anorder denying an extension of time pursuant to s 815(2) of the Criminal Code which purports to be brought under s 839 of the CriminalCode. The Crown submits it does not, which is disputed by the applicant. [6] Section 839(1)(

a) permits an appeal to this Court with leave on any ground that involves a question of law alone against “adecision of a court in respect of an appeal under s 822”.

Section 822 refers to appeals “taken under s 813 in respect of any conviction,acquittal, sentence, verdict or order”.

Section 813 permits appeals to be brought in

summary conviction proceedings by the defendant “(i)from a conviction or order made against him, (ii) against a sentence passed on him, or (iii) against a verdict of unfit to stand trial or notcriminally responsible on account of mental disorder” and by the Crown “(

i) from an order that stays proceedings on an information ordismisses an information, (ii) against a sentence passed on a defendant, or (iii) against a verdict of not criminally responsible on accountof mental disorder or unfit to stand trial”. [7] The essence of the Crown’s submission is that this Court only has jurisdiction to grant leave to appeal a decision of asummary conviction appeal judge arising out of an order initially granted by a trial court and appealed under s 813, not from an ordergranted under s 815(2) regarding the extension of time for filing a s 813 notice of appeal. This is an unduly narrow

interpretation of thewording of s 839(1)(

a) which refers to “a decision of a court in respect of an appeal under

section 822” [emphasis added], where s 822refers to appeals taken under s 813. An order pursuant to s 815 regarding the extension of time to appeal under s 813 can properly beviewed as falling within the scope of s 839(1)(a). [8] Appellate courts in three other provinces have concluded that leave to appeal can be granted by an appellate court under s839 when a

summary conviction appeal judge has refused to extend the time required to file a notice of appeal. In R v Lenko, 2010MBCA 10 at para 3, Chartier JA stated: Let me briefly consider a preliminary matter. In this case, the appeal judge denied leave to extend time to file the notice of appeal. Is that“a decision of a [summary conviction appeal] court in respect of an appeal under s. 822” as stated in s. 839? In my view, it is. The effectof the

summary conviction appeal court’s decision (to deny leave to extend time to file) is to maintain the conviction and sentence and assuch is “in respect of an appeal under s. 822.” I find support for this conclusion in The Queen v. Dennis, (SCC), [1960]S.C.R. 286 at 293, where the Supreme Court of Canada held that a dismissal of an appeal on the basis of a preliminary objection is adecision “in respect of an appeal under

section [822]” that may be appealed to our court under s. 839. A similar conclusion was reached in R v Tung, 2016 ONCA 782 at paras 19–35. The court in R v Brabant, 2017 QCCA 1213 also heardan application under section 839(1)(

a) for leave to appeal a similar decision. [9] I am satisfied that this Court has jurisdiction to hear this application for leave to appeal. Decision Below [10] The applicant sought an extension of time to appeal on the grounds that he was a victim of a miscarriage of justice as he wasbullied by his prior lawyer into entering false guilty pleas. The circumstances are outlined in the Decision at paras 6–21. [11] The

summary conviction appeal judge recognized that she had discretion to extend the time for filing the appeal based uponconsideration of the following factors outlined in R v Canto, 2015 ABCA 306: a. Whether the applicant had a bona fide intention to appeal while the right to appeal existed; b. Whether the applicant has provided an explanation justifying the failure to appeal in time; c. Whether there is an absence of serious prejudice such that it would be unjust to disturb the judgment;

d. Whether the applicant has taken the benefits of the judgment; and e. Whether the applicant has a reasonable chance of success – an arguable appeal. [ 12 ] The

summary conviction appeal judge reviewed each of the factors. Bona fide intention to appeal while the right existed [ 13 ] The

summary conviction appeal judge accepted the applicant’s sworn testimony that he had formed the intention to appeal within the 30-day appeal period (around February 20, 2018). However, the applicant failed to explain whether he was aware of the appeal period or why he did not retain counsel until May 2018, after the appeal period expired. No explanation justifying the failure to appeal in time [ 14 ] The applicant’s explanation to justify his failure to appeal in time was that he needed to obtain documents and discover information which would form the basis of his appeal and that the junior lawyer assisting his appeal counsel had health issues. [ 15 ] The

summary conviction appeal judge reviewed the chronology of events and concluded that the applicant: had instructed counsel to appeal the convictions by February 19, 2019; had sufficient information to file a complaint to the Law Society about his prior lawyer on May 8, 2019 and commence an action against him alleging negligence and breach of contract and fiduciary obligations on February 10, 2020; and was in possession of all necessary information to ground his application for an extension of time by February 10, 2020, at the latest.

While the junior lawyer’s health issues may have affected his ability to complete some documents between March 10, 2021 and October 13, 2022, “the period of delay leading up to March 10, 2021, is not justified given the information available to Unruh by February 10, 2020”: Decision at para 32 . Prejudice to the Crown [ 16 ] The

summary conviction appeal judge found the Crown was prejudiced, particularly in light of the death on March 4, 2022 of one of the complainants in relation to one of the allegations of sexual assault, who was also a witness to some of the other offences at issue. No benefit taken [ 17 ] The applicant had not taken any benefits of the conviction and guilty plea. No reasonable chance of success demonstrated [ 18 ] The

summary conviction appeal judge noted that, on appeal, the applicant would bear the burden of proving that the acts or omissions of his prior counsel constituted incompetence and that a miscarriage of justice resulted. She held there was no evidence that demonstrated incompetence in arriving at the negotiated plea deal. She concluded the applicant had not demonstrated a reasonable chance of success on appeal. Conclusion [ 19 ] After balancing the relevant factors, the

summary conviction appeal judge declined to exercise her discretion to extend time to file the notice of appeal because: (

i) the applicant had not provided an explanation which justified late filing of his appeal; (ii) serious prejudice would result; and (iii) the applicant had not demonstrated an arguable appeal. Leave to Appeal [ 20 ] The applicant seeks leave to appeal the denial of the extension of time. The test applied on an application for leave to appeal under s 839 of the Criminal Code requires the applicant to establish that: (

i) t he proposed grounds of appeal involve questions of law alone; (ii) the matter raises a reasonably arguable case of substance; and (iii) the matter is of sufficient importance to merit an appeal: R v Perkins , 2023 ABCA 350 at paras 13 –14 ; R v Bhalla , 2021 ABCA 126 at para 8 . [ 21 ] In his application, the applicant described the issue on which he was seeking leave to appeal as whether: “The

Summary Conviction Appeals Judge erred in denying leave to extend the time”. That is not a question of law alone. In the applicant’s memorandum, it is suggested that leave should be granted so the Court can clarify how counsel’s failure to act expeditiously should be factored into a decision to grant or deny an extension of time.

The applicant argues the “ Canto factors do not do enough to protect accused persons who wish to appeal from errors made by their counsel.” He now concedes there was no good explanation for at least some of the delay but argues that “there is no reason this delay should be blamed on” him and that it was instead his lawyer’s fault. This is a new argument that was not put before or addressed by the

summary conviction appeal judge. [ 22 ] To the extent the applicant is seeking to raise an issue on appeal that was not put before or addressed by the

summary conviction appeal judge, the applicant advances a form of “incompetence of counsel” argument on the grounds that the counsel who argued the motion below should not have done so because he was in a conflict of interest as he was the same counsel who had been acting for the appellant since May 2018 and was himself responsible for the delay at issue. However, the only evidence filed on the application in this Court was two of the affidavits filed in support of the extension application below.

There is no evidence from the applicant regarding the instructions, discussions and communications between he and his counsel to identify circumstances that might justify distinguishing between the applicant’s responsibility for the delay and that of his counsel, even if that was legally appropriate. [ 23 ] In the circumstances, it is difficult to identify an appropriate question of law alone for the purposes of the proposed appeal.

I am also not satisfied based upon the record before this Court that the applicant has demonstrated a sufficiently arguable case or that the there is an issue of sufficient importance that would justify an appeal.

[ 24 ] The application is dismissed. Application heard on September 21, 2023 Reasons filed at Calgary, Alberta this 17th day of January, 2024 Strekaf J.A. Appearances: S.E. Clive for the Respondent P. Sankoff for the Applicant