R v Simpson, 2024 ABCA 53

In the Court of Appeal of Alberta Citation: R v Simpson, 2024 ABCA 53 Date: 20240216 Docket: 2303-0107A Registry: Edmonton Between: His Majesty the King Respondent - and - Shannon Leigh Simpson Applicant _______________________________________________________ Reasons for Decision of The Honourable Justice Frans Slatter _______________________________________________________ Application to Restore Appeal _______________________________________________________ Reasons for Decision of The Honourable Justice Frans Slatter _______________________________________________________

[ 1 ] The appellant tendered a consent order to restore this appeal. Since this was the third application to restore the appeal, the Edmonton List Manager directed counsel to speak to it. [ 2 ] The appeal was filed on May 30, 2023. It was struck for the first time on October 5, 2023 for failure to file the appeal record on time. The appeal was restored by consent on October 6, 2023 on the condition that the appeal record be filed by November 30, 2023. The appeal record was not filed by that deadline, and the appeal was struck for a second time on December 1, 2023.

The appeal was restored, again by consent, on December 4, 2023. The appeal record was filed that same day and in accordance with the Rules, the appellant’s factum was due on February 5, 2024. The factum was not filed, and the appeal was struck for a third time on February 6, 2024. [ 3 ] The appellant has now applied to restore her appeal for the third time.

The Crown has consented to all of these restorations, undoubtedly being of the view that the Court is unlikely to revoke the appellant’s bail or strike her appeal due to oversight of her counsel. [ 4 ] The Criminal Appeal Rules are designed to enable the orderly and efficient processing of appeals. The Court expects the deadlines in those Rules to be followed; they are not just suggestions. Missed deadlines, and the applications to restore the appeal, place an unnecessary burden on the Crown office, the Case Management Officers and the Registrar.

Further, it is a condition of the appellant’s judicial interim release that she prosecute her appeal “with due diligence, and in particular comply with any deadlines and directions in the Rules of Court”. Missing deadlines therefore directly impacts her liberty interests. [ 5 ] The Case Management Officers have a wide discretion to extend filing deadlines. If there is a legitimate reason why a particular deadline cannot be met, counsel must contact the Case Management Officer to seek an extension.

Allowing the appeal to be struck in the anticipation that it can be restored is not an acceptable option. [ 6 ] Counsel should also be aware that the parties are not able to extend the deadlines in the Appeal Rules by consent. Rules 14.2(3) and 16.3 effectively require an application to the Case Management Officer for any extension. [ 7 ] Costs awards are rarely made in criminal proceedings, meaning that there is no direct disincentive to missing deadlines.

There is however, Rule 10.49: 10.49(1) The Court may order a party, lawyer or other person to pay to the court clerk a penalty in an amount determined by the Court if (

a) the party, lawyer or other person contravenes or fails to comply with these rules or a practice note or direction of the Court without adequate excuse, and (

b) the contravention or failure to comply, in the Court’s opinion, has interfered with or may interfere with the proper or efficient administration of justice. In this case counsel was called upon to show cause why a penalty should not be assessed under this rule, given that this was the third application to restore the appeal. [ 8 ] While explanations were given for missing the applicable deadlines, there was no explanation as to why extensions were not requested. If counsel wish to maintain an appellate practice, they must ensure that they have systems in place to allow them to comply with the Rules .

Further, this counsel has missed deadlines in other appeals, indicating that his failure to comply with the Rules may interfere with the proper administration of justice. [ 9 ] Counsel should note that there are fees imposed under R. 14.65(1)(

b) and

Schedule B for restoring a civil appeal: $200 for the first restoration, $500 for the second restoration, and $1,000 for any subsequent restoration. These fees are not imposed in criminal appeals because they engage the liberty of the subject. They may, however, provide some guidance for the type of penalty that would be assessed under R. 10.49 where missed deadlines interfere with the administration of justice. [ 10 ] This may be the first time in which a penalty has been imposed for the failure to meet filing deadlines in a criminal appeal.

Accordingly, a modest penalty was imposed in this case, although this does not necessarily set the standard for future cases. [ 11 ] The appeal is restored. Counsel must immediately contact the Case Management Officer and

schedule the oral argument of this appeal at the first convenient opportunity. The appellant’s factum must be filed no later than April 2, 2024. Application heard on February 15, 2024 Reasons filed at Edmonton, Alberta this 16th day of February, 2024

Slatter J.A.