R. v. Clarke, 2017 NLCA 61

William Clarke (appellant) v. Her Majesty the Queen (applicant/respondent) (16/83) Indexed As: R. v. Clarke 2017 NLCA 61 2 C.A.N.L.R. 266 Court of Appeal of Newfoundland and Labrador Green C.J.N.L. October 11, 2017

Summary: The respondent Crown applied under rule 10(2) (

a) of the Criminal Appeal Rules to strike out an application by William Clarke to extend time to file a notice of appeal regarding his conviction and sentence on charges of possessing child pornography and making it available to others. Mr. Clarke had taken no steps to prosecute the appeal for 11 months. Held: Application allowed. Green C.J.N.L.: Mr. Clarke filed an appeal of his convictions well out of time and therefore required an extension of time to file a notice of appeal. He attended several court appearances.

At his last appearance, he explained to the presiding judge that he wished to withdraw his application for an extension of time. The presiding judge explained his options to him and adjourned the matter sine die to give him an opportunity to consider his position further. He had done nothing since that time. At the hearing of the Crown’s application, Mr. Clarke confirmed that (

i) he had not obtained legal counsel due to lack of financial resources; (ii) he had not applied for state-funded counsel under

section 684 of the Criminal Code because he did not trust the Attorney General as he was a member of the same government that sponsors the local legal aid scheme, with which he had been dissatisfied in respect of his representation at his trial; and (iii) he was not prepared to argue the case himself because he did not consider himself to be qualified to do so. While not going so far as to expressly withdraw his application, he essentially acknowledged that it would be “just as well” that it be struck out because he did not foresee the situation changing in the future. Mr.

Clarke had ample opportunity to address the issues necessary to process his application and proposed appeal. By rejecting other means to obtain and make use of legal advice and representation and by unreasonably refusing to attempt to deal with the matter himself, Mr. Clarke has removed other options for keeping this matter alive from consideration. There was no alternative but to strike the appeal. Counsel: Appearing on his own behalf, the appellant; Lisa Stead, for the applicant/respondent. This application was heard and decision rendered orally on October 10, 2017 by Green C.J.N.L.

The following Memorandum of Disposition was filed on October 11, 2017 by Green C.J.N.L. ______________________________________________________________ Green C.J.N.L.: [ 1 ] The Crown applied to strike out an application by William Clarke to extend time to file a notice of appeal regarding his conviction and sentence on charges of possessing child pornography and making it available to others.

[ 2 ] Mr. Clarke was convicted of the offences on January 14, 2016 and sentenced on February 22, 2016. He did not attempt to file a notice of appeal until July 14, 2016, well out of time under thirty day appeal period stipulated by rule 3 of the Supreme Court of Newfoundland and Labrador – Court of Appeal Criminal Appeal Rules (2002) , SI 2002-96 (“Criminal Appeal Rules”). At the suggestion of the Registry, he included a request for extension of time on the form of notice of appeal.

He claimed he was not informed by his lawyer about time restrictions for his appeal and after he was incarcerated he was “denied access” to any appeal information by his classification officer. [ 3 ] Mr. Clarke’s application for extension was set for September 6, 2016. It was opposed by Crown counsel who asked for an opportunity to challenge Mr. Clarke’s assertions about why he did not appeal earlier. Mr.

Clarke was told to file a proper application verified by affidavit dealing with the factors (which were explained to him) that the Court normally considers when dealing with such applications, and that he might be cross-examined on his affidavit. The matter was set over to October 18, 2016. In the meantime, Mr. Clarke filed a handwritten statement setting out, amongst other things, what he believed were some of the errors committed by the trial judge in his understanding of the evidence relating to the manner in which Mr.

Clarke’s computer would have captured the images that formed the basis of the charges. [ 4 ] At the October 18 hearing, Harrington J.A. discussed the matter of legal representation with Mr. Clarke. He confirmed that an application for legal aid had been denied, as had an appeal from that decision. Mr. Clarke was informed of his right to apply under

section 684 of the Criminal Code for appointment of counsel at the expense of the Attorney General and was also told that he could attend the Legal Assistance Clinic operated under the auspices of the Court of Appeal whereby free legal advice could be provided to self-represented litigants. The matter was adjourned to November 15, 2016 to enable an application for state-funded counsel to be made. [ 5 ] Justice Hoegg presided over the November hearing. Mr. Clarke confirmed that he had attended the Court’s Legal Assistance Clinic. He did not, however, file a

section 684 application for appointment of counsel. Somewhat inconsistently, he indicated he wanted to withdraw his application for extension of time. Hoegg J.A., instead, adjourned the matter sine die to give him an opportunity to consider his position further. She also indicated that he could bring the matter back before the court if he decided to proceed with an application for counsel funding or with the extension application on his own behalf, or the Crown could, alternatively, apply to strike the appeal, if he did nothing. [ 6 ] Since the November appearance in 2016, Mr.

Clarke has done nothing with respect to this matter. He has now served his sentence and was released from prison in May of 2017. Mr. Clarke says he thought that following his appearance before Hoegg J.A., the matter was “settled” and that he did not have to do anything further. I do not accept this explanation. The record is clear that he was told of his options with respect to obtaining legal assistance either by way of a

section 684 application or a visit to the Legal Assistance Clinic and that if he did nothing the Crown could move to strike the application. [ 7 ] That, of course, is what the Crown did by application filed on August 28, 2017 under rule 10(2)(

a) of the Criminal Appeal Rules. Although the rule refers to striking an “appeal” for failure to comply with the rules, the definition of “appeal’ in section 1(1), which includes an application for leave to appeal, is broad enough to wrap Mr. Clarke’s application for extension into s. 10(2)(a). In any event the Court has inherent or incidental jurisdiction to control its own process by striking out moribund applications that have little or no prospect of proceeding. [ 8 ] The Crown’s application was called before me on September 5, 2017. At that time, Mr.

Clarke asked for more time to deal with the matter by way of possibly getting legal assistance. I enlarged the application to October 10, 2017, indicating that at that time he would have to have legal counsel appear for him or, if not, he would have to have had filed the necessary material to support his application to extend time (as had been explained to him on September 6, 2016, almost one year earlier) and be prepared to make submissions on his own behalf.

Failure to do one of those two things would result in the Court considering and dealing with the Crown’s application strike. [ 9 ] At the hearing on October 10, 2017, Mr. Clarke confirmed that (

i) he had not obtained legal counsel due to lack of financial resources; (ii) he had not applied for state-funded counsel under

section 684 of the Criminal Code because he did not “trust” the Attorney General as he was a member of the same government that sponsors the local legal aid scheme, with which he had been dissatisfied in respect of his representation at his trial; and (iii) he was not prepared to argue the case himself because he did not consider himself to be qualified to do so.

While not going so far as to expressly withdraw his application, he essentially acknowledged that it would be “just as well” that it be struck out because he did not foresee the situation changing in the future. [ 10 ] Under these circumstances, and considering the history of the matter, I concluded that there was no basis for doing anything else but to strike out the application. His legal options were fully explained to him. He had the benefit of advice from the Court’s Legal Assistance Clinic. He had applied for, and been denied, legal aid. He has had ten months to apply for state-funded legal counsel under

section 684 but has failed or refused to do so and he refuses to deal with the matter himself. I am satisfied that Mr. Clarke is an intelligent and articulate man who is capable of arguing his point of view, both orally and in writing, in this relatively straightforward case. While it is true that there may be matters of computer technology that may be engaged, Mr.

Clare has demonstrated to me in what he had filed in the Court that he is able to explain, in basic English, the computer concepts that he feels are important to be considered in assessing the evidence presented at trial and the reasoning of the trial judge. This is not a case where an appellant would be completely out of his or her depth in being able to present an appeal, or an application in relation thereto, on his or her own behalf. [ 11 ] Mr. Clarke has had ample opportunity to address the issues necessary to process his application and proposed appeal.

By rejecting other means to obtain and make use of legal advice and representation and by refusing (in my view, unreasonably) to attempt to deal with the matter himself, Mr. Clarke has removed other options for keeping this matter alive from consideration. There is no alternative but to strike the appeal. The principle of finality of proceedings should be applied to bring this matter to an end. [ 12 ] Accordingly, I made an order at the conclusion of the hearing striking out Mr. Clarke’s application for extension of time to appeal.

Application allowed .