2012 NBCA 2, 2012 NBCA 2

COURT OF APPEAL OF NEW BRUNSWICK 89-11-CA MARK RICHARD DEE APPELLANT MARK RICHARD DEE APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Dee v. R., 2012 NBCA 2 Dee c.

R., 2012 NBCA 2 CORAM: The Honourable Justice Robertson The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Robertson L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: May 20, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 20 mai 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: November 22, 2011 Appel entendu : Le 22 novembre 2011 Judgment rendered: January 19, 2012 Jugement rendu : Le 19 janvier 2012

Counsel at hearing: Mark Richard Dee appeared in person For the respondent: Peter H. MacPhail Avocats à l’audience : Mark Richard Dee a comparu en personne Pour l’intimée : Peter H. MacPhail THE COURT The application for leave to appeal is allowed, but the appeal is dismissed. LA COUR Accueille la demande en autorisation d’appel, mais rejette l’appel. The judgment of the Court was delivered by ROBERTSON, J.A. [ 1 ] The appellant taxpayer’s appeal to the

summary conviction appeal court was dismissed pursuant to Rule 64.13(1)(

b) of the Rules of Court . While the appellant had filed a written submission, he failed to appear personally at the hearing. Instead, he sent a lawyer who had been instructed to seek only an adjournment, which was denied. The appellant appeals the dismissal and, correlatively, the refusal to grant the adjournment. The essential facts are as follows. [ 2 ] On November 17, 2009, the appellant was convicted of income tax evasion, an offence under s. 239(1) (

d) of the Income Tax Act , R.S.C., 1985, c. 1 (5th Supp.), and fined $61,460.94. The conviction stems from the appellant’s capacity as executor of his mother’s estate and his receipt of $199,000 from the estate’s law firm, which monies were provided for the singular purpose of paying estate taxes assessed in the same amount. Instead, the appellant was found to have used the monies for personal benefit, but without declaring the amount as income for the year in which it was received. [ 3 ] An appeal with respect to the

summary conviction offence was filed with the Court of Queen’s Bench on December 16, 2009. That appeal is authorized pursuant to the cumulative effect of s. 34(2) of the

Interpretation Act , R.S.C. 1985, c. I-21, and ss. 812 and 813 of the Criminal Code . The appeal hearing was set down for July 21, 2010, but the matter was adjourned on that date for reasons not attributable to either party. On the next scheduled hearing date, a further adjournment was ordered, once again for reasons not attributable to either party. On the last occasion, the appellant was offered several possible hearing dates. He chose December 21, 2010. On December 6, 2010, the appellant sought and was granted an adjournment on consent.

The Clerk’s office then presented the appellant a choice of nine possible hearing dates. The appellant did not respond to the Clerk’s invitation. By January 11, 2011, the appellant had yet to contact the Clerk’s office which had made several attempts to reach him by e- mail since he had yet to provide staff with a mailing address in Canada. On January 25, 2011, the matter was set down on the Motions List for February, 2011.

The appellant did not attend on Motions Day and the matter was again set over, this time to the Motions Day set for March 7, 2011. [ 4 ] On March 7, 2011, the appellant appeared through a lawyer who had been retained for the limited purpose of seeking an adjournment. The lawyer informed the Court of the days the appellant would be available during May. It was agreed the appeal would be heard on May 20, 2011. On May 10, the appellant sent an email requesting a further adjournment because of a conflict with business matters in Texas.

When the case was called on May 20, the appellant was not present in court but was represented by counsel who informed the appeal court judge that he was retained for the sole purpose of requesting an adjournment and “not retained to represent [the appellant] on the appeal or to conduct [the] appeal if the Court refuses the adjournment.” Counsel indicated the appellant was amenable to a hearing date in late June, early July or any time after the Labour Day weekend. The respondent Crown objected to an adjournment and instead asked that the appeal be dismissed pursuant to Rule 64.13(1)(

b) of the Rules of Court . That Rule grants an appeal court judge the authority to either dismiss or hear an appeal in the absence of the appellant in the following circumstances: the appellant fails to file a written submission or fails to appear personally or by counsel at the time fixed for the hearing of the appeal. In the present case, the appellant had filed a 92-page written submission with the Court of Queen’s Bench, addressing the wide-ranging grounds of appeal set out in his Notice of Appeal. In response, the Crown had filed a 32-page submission.

[5] The appeal court judge then heard arguments from both the appellant’s counsel and counselfor the Attorney General, who respectively spoke for and against the request for adjournment. Before reaching a decision, the appealcourt judge also had the Clerk of the Court testify as to matters related to the granting of adjournments in the Court of Queen’s Benchand to the difficulties in having the appeal set down for a hearing over the preceding months and, in particular, with respect to the failureof the appellant to respond to communications emanating from the Clerk’s office.

After hearing from the Clerk, the appeal court judgedismissed the request for an adjournment and, without more, dismissed the appeal. The oral reasons for decision focus exclusively on thedelays, attributable to the appellant, in having the appeal heard. [6] The appellant alleges error on the part of the appeal court judge in refusing to grant theadjournment. In my view, no such error has been established as contemplated by the jurisprudence. The power to grant or refuse a requestfor an adjournment is discretionary. In Thibault v. R., 2006 NBCA 9, [2006] N.B.J.

No. 49 (QL), this Court stated as follows on thequestion of the standard of review that applies to a decision of this type: It is settled law that the power to grant or deny an adjournment is in the judge's discretion, which he shall exercise judiciously (seeBarrette v. The Queen, (SCC), [1977] 2 S.C.R. 121 and Manhas v. The Queen, (SCC), [1980] 1S.C.R. 591). A decision on an adjournment may be reviewed on appeal if it is based on reasons which are not well founded in law.

Theburden is on the appellant to establish that the judge did not apply the right principles when he exercised his discretion. [para. 2] [7] In the present case, it cannot be said that the appeal court judge erred in the exercise of herdiscretion to refuse the adjournment. There is a sufficient factual basis to support the denial of the adjournment request. That said, therefusal to grant the adjournment was not sufficient, in my opinion, to support the decision to dismiss the appeal and accordingly, theappeal judge erred. However, the error is one that is without consequence.

Let me explain. [8] This is not a case of dismissal for want of prosecution as provided for under s. 825(

b) of theCriminal Code.

Section 825(

b) provides for the dismissal of an appeal for “want of prosecution” in cases where the “appeal has not beenproceeded with” or “has been abandoned”. In my view, neither of those two circumstances applies in the present case. The appellant didproceed with his appeal in the sense that he filed written arguments and performed all necessary steps in advance of the hearing. Thequestion is whether the fact he was not present in Court ready to argue, when the adjournment was denied, constitutes a failure toproceed with the appeal. In my view, it does not.

Support for this position is found in Rule 64.13(1)(b), which provides that if anappellant “fails to appear personally or by counsel at the time fixed for hearing of the appeal, the appeal court may dismiss the appeal ormay hear the appeal in the absence of the appellant.” Obviously, the appellant did appear by counsel at the time fixed for the hearing ofhis appeal. The problem is that his counsel was engaged for the limited purpose of seeking an adjournment and was not prepared to makeoral submissions on the merit of the appeal.

But this limited mandate does not automatically warrant a finding that the appeal has beenabandoned or should be dismissed for want of prosecution. [9] Having refused the adjournment, the appeal court judge was required to rule on theconsequences of the appellant’s failure to be present at the hearing to argue his appeal or to have counsel ready to do so. With respect,the judge did not appear to address her mind to the broader issue pertaining to the merits of the appeal and its disposition in light of theappeal record placed before her. She simply denied the adjournment and dismissed the appeal.

There was, however, another option: tohear the appeal in the absence of the appellant. The failure to consider this option qualifies as an error of law. Had she done so, theappeal judge would have weighed all relevant factors, including the following: (1) the appellant had taken all necessary steps to bring hisappeal to a hearing; (2) the appellant had filed extensive written arguments: and (3) there was no actual prejudice to the respondentCrown, such as might have been the case if, for example, no written arguments had been filed.

Cumulatively, these factors lead one tothe irresistible conclusion that, having denied the adjournment, the option of hearing the matter in the appellant’s absence was the onlyone that would result in a just determination of the appeal. It should follow that once the appeal court judge decided against the grantingof an adjournment she was obligated to rule on the merits of the appeal based on the record that was before her, after first decidingwhether it was necessary to hear from Crown counsel with respect to matters raised in the written submissions.

All of these facts lendsupport to the allegation the appeal court judge erred in failing to hear the appeal in the absence of the appellant. The alleged error is onewhich qualifies as a question of law alone and, therefore, falls within s. 839(1). [10] This is not to say that a judge can never dismiss an appeal for want of prosecution where anappellant fails to appear at the hearing or appears by counsel with a limited mandate to simply ask for an adjournment.

If other factorspoint to a failure to proceed with the appeal, such as, for example, failure to follow critical steps in the appeal process or the absence ofwritten arguments, or if prejudice to the respondent is shown, such as where the grounds of appeal are so ambiguous the respondentcannot reply, a judge may very well be justified to simply dismiss the appeal. However, that is not the situation in the present case. [11] Although I find an error of law in the appeal court judge’s dismissal of the appellant’s appeal,this does not necessarily resolve this appeal in his favour.

Section 686(1)(b)(iii) of the Criminal Code, made applicable to

summaryconviction appeals to the Court of Appeal by virtue of s. 839(2), provides that where an appeal might otherwise be allowed on thegrounds of a wrong decision on a question of law, the appeal can nevertheless be dismissed if the Court of Appeal is of the opinion that

no substantial wrong or miscarriage of justice has occurred. In assessing whether a substantial wrong or miscarriage of justice has occurred it is necessary to review the entirety of Mr. Dee’s submission, the Crown’s reply and the underlying decisions. I have, in essence, undertaken the task the

summary conviction appeal court judge should have undertaken. In my view, had the appeal court judge proceeded to hear the appeal in the appellant’s absence and had she determined the appeal on the basis of the written materials filed, the appeal would have been dismissed. A review of the grounds of appeal reveals that the appellant was effectively asking the appeal court judge to re-try his case. The law is clear that this is not the role of an appellate court: R. v. Fowler , 2006 NBCA 90 , 304 N.B.R. (2d) 106, at para. 17 and the cases cited therein.

The appellant’s 92-page submission clearly reveals that he seeks to relitigate all of the issues, most of which are factual, which the trial judge dealt with in comprehensive reasons. [ 12 ] For the above reasons, I would allow the application for leave to appeal but dismiss the appeal. ____________________________________ J.T. ROBERTSON, J.A. WE CONCUR: ________________________________________ B. RICHARD BELL, J.A. _________________________________________ BRADLEY V. GREEN, J.A.