R v Hodgson, 2021 NUCA 20

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Hodgson, 2021 NUCA 20 Date: 20211112 Docket: 08-21-010-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent (Appellant) - and - Daniel Hodgson Applicant (Respondent) _______________________________________________________ Reasons for Decision of The Honourable Justice Frans Slatter _______________________________________________________ Application to Strike Appeal

_______________________________________________________ Reasons for Decision of The Honourable Justice Frans Slatter _______________________________________________________ [1] The Crown has appealed the respondent’s acquittal on a charge of second degree murder. The respondent has applied tostrike out the appeal on the basis that it was filed out of time. The Crown argues that the appeal was not filed out of time, but in thealternative brings a cross application to extend the time to appeal. [2] The respondent was acquitted on May 12, 2021.

On that date, the Rules of the Court of Appeal for the Northwest Territoriesas to Criminal Appeals, SOR/78-68 required that an appeal from conviction or acquittal be filed within 60 days, making the deadlineJuly 12, 2021. [3] The Crown filed its appeal on June 17, 2021, and served it the next day. [4] However, on June 1, 2021, the new Rules of the Court of Appeal for Nunavut Respecting Criminal Appeals came into effect.Rule 6(2)(

c) of the new Rules provides that an appeal must be lodged within one month of the date of the decision.[1] [5] The position of the Crown is that since the acquittal occurred while the previous Rules were in force, the appeal was filed intime, within the 60-day deadline then in place. The respondent argues that once the new Rules came into force on June 1, 2021, the newdeadline applied. Accordingly, the respondent argues the Crown had to file and serve its appeal by Monday, June 14, 2021, and theappeal was filed late. [6] The new Rules do not contain any transitional provisions.

The respondent relies on the common law presumption thatprocedural rules apply to pending or ongoing proceedings: R. v Chouhan, 2021 SCC 26 at paras. 91-92; R. v Dineley, 2012 SCC 58 atpara. 10, [2012] 3 SCR 272.

That presumption, however, can be displaced where the context suggests otherwise, and in any event, thelaw does not always treat limitation periods as having no substantive impact: Chouhan at para. 173 (Abella J. dissenting in part); Martinv Perrie, (SCC), [1986] 1 SCR 41 at pp. 47-49; Tolofson v Jensen, (SCC), [1994] 3 SCR 1022 at pp.1070-71; Maxwell v Murphy (1957), 96 CLR 261 at p. 277 (Aust HC). [7] G. Mew, D. Rolf, D.

Zacks, The Law of Limitations (3d ed) (Toronto: LexisNexis, 2016) at §1.64 points out that using thedistinction between procedural and substantive provisions to evaluate the effect of new limitation periods is not straightforward, becausewhile limitation statutes may appear to be procedural, they can nevertheless have the substantive effect of extinguishing a right of actionor right of appeal: 1.64 Accordingly, the label that is applied to a limitation statute is not as important as the effect that application of the statute in a givencase would have upon existing rights and obligations.

A right is no less so because it arises under

an act that is classified as procedural:an accrued entitlement on the part of a defendant to plead the lapse of the limitation period as an answer to the future institution ofproceedings is just as much a “right” as any other statutory or contractual protection against a future suit. The authors summarize the principles in §1.66:

(4) If time is abridged so as to deprive a plaintiff of the ability to institute proceedings which, under the existing law would not havebeen time-barred, the plaintiff will be entitled to the benefit of the unabridged limitation period. When applied to appeals, an appellant should not be deprived of a right to appeal that would have existed but for the abridgment of thetime in the amended rule. [8] The same point is made in R. Sullivan, Sullivan on the Construction of Statutes (6th ed) (Markham: LexisNexis, 2014) at§25.117: §25.117 Limitation of actions.

To determine the temporal application of limitation of action provisions, the courts appropriately rely onthe basic principle that purely procedural provisions do not affect substantive rights. When a new limitation of action provision comesinto force, it may extend or shorten the period within which an action must be commenced. If the provision comes into force before theperiod has lapsed, and if applying it would not have the effect of extinguishing the right of action, then its application to those facts aresaid to be purely procedural.

In such a case, for both parties, the only thing that is lost or gained is time. However, when the effect ofapplying the new provision is either to extinguish an action that was still viable when the provision came into force, or to revive anaction that was barred, more than time is at stake. In such a case, the provision affects the substantive rights of the parties and cannot beconsidered purely procedural. (Emphasis added) In this case, applying the new Rule would have the effect of “extinguishing the right of appeal that was still viable when the provisioncame into force”.

As such, it should be regarded as being substantive, not procedural. [9] Chouhan at para. 92 described procedural amendments as those that assume that litigation already exists. Proceduralamendments “alter the method by which a litigant conducts an action”. Substantive amendments, on the other hand, “change the content

or existence of a right, defence, or cause of action”. In this case, the change in the time limit for commencing an appeal is properly characterized as having substantive effect. There was no litigation (i.e. appeal) commenced at the time that the Rule changed.

Rather, the amendment affected the existence of the right to commence an appeal, not just the method of prosecuting an appeal. [ 10 ] If the respondent’s argument was correct, it would appear, for example, that any right to appeal from a verdict rendered in April 2021 (by the Crown or an accused) would have disappeared on June 1, 2021, unless an appeal had been filed in May 2021.

In the absence of clear wording to that effect, the shortening of the time to appeal in the new Rules should not be interpreted as having been intended to eliminate potential appeals existing as of June 1, 2021. [ 11 ] In any event, the deadline for appealing can be extended by the court in appropriate circumstances under s. 678(2) of the Criminal Code .

A six-part test was set out in R. v Roberge , 2005 SCC 48 at para. 6 , [2005] 2 SCR 469 , but the Court concluded: “The ultimate question is always whether, in all the circumstances and considering the factors referred to above, the justice of the case requires that an extension of time be granted.” In this case, the Crown had a bona fide intention to appeal within the time limit, and any delay is explained by the uncertainty over which time limit applied.

If necessary, an extension would be granted. [ 12 ] In conclusion, the enactment of the new Rules did not have the effect of truncating the period of time within which the Crown could file an appeal from the respondent’s acquittal. The appeal was accordingly filed in time, and the respondent’s application to strike it out is dismissed. If it had been necessary, the Crown’s cross-application to extend the time would have been granted. [ 13 ] The application to extend the time to file the Appeal Record, due to unavoidable delays in preparing the transcripts, is granted.

The appeal will be spoken to on March 16, 2022. Application heard on November 10, 2021 Reasons filed at Iqaluit, Nunavut this 12th day of November, 2021 Slatter J.A. Appearances: J. Laborde for the Respondent M. Martin for the Applicant