R. v. Marshall, 2011 NLCA 63

Date: 20111004 Docket: 10/85 Citation: R. v. Marshall , 2011 NLCA 63 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : RALPH MARSHALL, JR. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Wells, Welsh and Harrington, JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador Trial Division (General) 200901T3150 Application and Appeal Heard: September 23, 2011 Decision Rendered: September 23, 2011 Reasons for Oral Decision Filed: October 4, 2011 Reasons for Decision per Wells, J.A. Concurred in by: Welsh and Harrington, JJ.A.

The Appellant appearing on his own behalf Counsel for the Respondent: Sheldon Steeves REASONS FOR ORAL DECISION Wells, J.A.: [ 1 ] The appellant appeals an order of a

summary conviction appeal court (SCAC) judge on a preliminary application, dismissing his appeal of convictions by a Provincial Court judge for uttering threats and breaches of probation. [ 2 ] The offence date was August 25, 2008. The appellant was tried in the Provincial Court on March 4, 2009 and, on July 2, 2009, was sentenced to six months imprisonment to be served conditionally. Ancillary orders relating to possession of firearms and the provision of DNA samples were also made. [ 3 ] On July 10, 2009 the appellant filed a notice of appeal with the

summary conviction appeal court. On July 23, 2009, the

appellant’s conditional sentence was terminated after he was found to have breached the terms of his conditional sentence. [ 4 ] On October 1, 2009, the transcript of the proceeding in Provincial Court was filed with the SCAC. In December, 2009 the Crown applied to strike the notice of appeal. It was heard on January 28, 2010 and dismissed.

The hearing of the appeal was adjourned to March 16, 2010 to allow the appellant time to obtain counsel. [ 5 ] On March 16, 2010, before the SCAC, the appellant reported that he had been denied representation by the Legal Aid Commission but that he was “still waiting for an appeal to the board on the 23rd as far as I know”. He also indicated that continuing medical problems made it difficult for him to act for himself.

However, the presiding justice ordered that the appellant file a statement of fact and law by May 14, 2010, that the Crown file by May 21, 2010, and set May 28, 2010 for the appeal to be heard, “whether you have counsel or not”. [ 6 ] When the appellant failed to file the required document by May 14, 2010, the Crown, on May 20, 2010, filed another notice to strike the appeal. On May 28, 2010, the appellant sought a postponement. He referred to his continuing efforts to obtain counsel and his continuing health problems. He also reported that he had not received the transcript.

In his words: … Somebody sent the transcripts to HMP for me. I didn’t get ‘em. When I left – now, I – I’m after finding this out ever since February or March, I’m looking for the transcripts. I’ve been beating a path here in St. John’s looking for transcripts and can’t find ‘em. Apparently, they went to HMP around August sometime. When I was in hospital, they went to the hospital. They went from the hospital back to HMP again, and now I’m after finding out they’re going from HMP back to Legal Aid, and Legal Aid don’t know where they’re at. I’ve contacted Mrs.

Patricia Ricketts, Ricketts – Richards or Ricketts – that does the transcripts for down to Provincial Court, and this was the path – she confirmed that this is the path they went on, and Mr.

Hogan requested ‘em in August sometime, and she said for me to get ‘em again I gotta pay for ‘em, and I can’t afford to pay for ‘em – I’m not working, I’m unemployed; and I can’t find out where I got to go to apply for a lawyer to how to get the Courts to approve a lawyer for me or what the next steps – I can’t get anybody to tell me anything. [ 7 ] The SCAC judge noted that the appellant’s sentence had already been served and inquired as to why, in that circumstance, the matter was so important to him.

He responded with “Well, it is important to me to clear my name, your honour, cause I think there was a lot of injustice done here…”. [ 8 ] The SCAC judge also noted that: … This matter was before me in January, and we had the same discussion – except for the transcript – and the transcript, the transcript was done in October and has been available since then. Now, I appreciate there may have been some mix-up in where it got sent given your circumstances at the time, but January was 5 months ago, and that’s plenty of time to get these matters straightened out. The transcript I don’t think is the issue.

The issue is whether there’s - you’ve convinced me that there’s merit to your appeal and whether the transcript does make a difference, and, I’ve already said it doesn’t. [ 9 ] He commented further: … You were represented by very competent counsel. I’ve reviewed the transcript of the hearing, and you had an opportunity to be heard, you had an opportunity to present evidence, the judge in that hearing had an opportunity to hear both, and he, he decided after hearing all of the evidence.

So I, I guess from where I sit there’s been plenty of opportunity to try to move this matter forward, and the Crown has a right to either have the matter – and you have the right to either have the matter heard or have it dealt with. So I’m satisfied that the amount of delay warrants that the appeal be dismissed. So I’m granting the Crown’s application, and, Mr.

Marshall, if you have a problem with your lawyer, there are other avenues to pursue, and you’ve already mentioned some of them; so – but on this matter, you haven’t convinced me that the – your appeal has merit sufficient that I should have the matter delayed even further. … [ 10 ] The appellant appealed that decision to this Court. Upon doing so, he applied to this Court to have counsel appointed, pursuant to

section 684 of the Criminal Code . In a Memorandum of Disposition filed April 21, 2011, ( 2011 NLCA 26 ) the Chief Justice denied the application of the appellant. The Chief Justice noted that an appeal to this Court requires leave and must relate to a question of law pursuant to

section 839 of the Code . He wrote a synopsis of the basis on which the appellant is appealing to this Court as follows: [4] The essence of the appellant’s appellate argument in this Court is that the

summary conviction appeal judge erred in principle in his application of s. 825 of the Criminal Code . That

section provides that the court may dismiss an appeal where “the appeal has not been proceeded with or has been abandoned”. The argument, as explained to me, is that notwithstanding two previous appearances between January and May 2010, where the appellant’s medical conditions, difficulties with obtaining the transcript of the original trial and delays in determining whether he qualified for legal aid were mentioned, the

summary conviction appeal judge should not have dismissed the appeal on grounds of delay; instead, he should have granted a further postponement and ordered the production of the transcript before the appeal was dealt with on its merits. [ 11 ] The Chief Justice determined that the issues on the appeal were not complex and that the appellant could present his appeal himself. As a result, he denied the application for the assignment of legal counsel under

section 684 of the Criminal Code . The appeal was scheduled to be heard on May 23, 2010. Shortly before the scheduled hearing date the appellant, again applied for appointment of counsel, pursuant to

section 684 of the Code, on the ground that since the earlier application he had suffered a minor stroke that had affected his speech. [ 12 ] The panel of this Court that was scheduled to hear the appeal heard that application two days before the scheduled hearing of the appeal. The Crown acknowledges that the appellant’s ability to speak and present his appeal has deteriorated further.

After hearing argument by the appellant and the Crown, the application for appointment of counsel was adjourned on the basis that, at the appeal hearing, the Court would hear first from the Crown, as to why the appeal should not be allowed and the appeal before the SCAC re- instated. Only if the Court were of the view that the Crown’s argument was persuasive would it be necessary to hear from the appellant and give further consideration to the application for appointment of counsel.

[ 13 ] At the conclusion of the Crown’s presentation at the appeal, the Court concluded it was not necessary for the Court to hear from the appellant. The appeal was allowed, the dismissal of the appellant’s appeal to the SCAC was set aside and that appeal was referred back to the SCAC for hearing. What follows are the reasons for that decision. [ 14 ] There is nothing in the comments of the SCAC judge to explain why he concluded that he was not satisfied that there is merit in the appellant’s appeal or why he concluded that the transcript would not “make a difference” to the appeal.

As a result, it becomes necessary for this Court to consider the transcript, in the context of the position the appellant wishes to argue, in order to determine whether the SCAC judge erred in law in dismissing the appeal in the manner in which he did. [ 15 ] Based on that review of the transcript and the appellant’s factum filed in this Court, it is clear that the transcript of evidence which the appellant had been seeking to locate is relevant to what is potentially an arguable case. Whether the appeal will succeed or not, it cannot be said to be frivolous.

In fairness to the SCAC judge, he did not, as we did, have the benefit of the factum the appellant filed in this Court.

However, the comments the appellant made to the SCAC judge, together with the transcript can lead only to a conclusion that the appeal was not frivolous, the transcript was relevant and, up to the time of dismissal of the appeal by the SCAC judge, the appellant did not have access to the transcript. [ 16 ] It is clear from the comments of the SCAC judge, excerpted in paragraphs 8 and 9 above, that he erred in failing to consider that the transcript was not, in fact, available to the appellant during the five months to which he referred, and erred in concluding that the transcript would make no difference to the appellant’s appeal.

This constitutes error in law. [ 17 ] As a result, leave to appeal was granted, the appeal was allowed, the decision of the SCAC judge was set aside and the matter was referred back to the SCAC for hearing of the appeal on its merits. C. K. Wells. J. a. I concur: B. G. Welsh, J.A. I concur: M. F. Harrington, J.A.