R. v. Sawicki, 2013 NLCA 35

Date: 201305 17 Docket: 13/33 Citation: R. v. Sawicki , 2013 NLCA 35 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN APPLICANT AND: CHRISTOPHER SAWICKI RESPONDENT Coram: Green C.J.N.L. Tribunal Appealed From: Newfoundland and Labrador Review Board (Part XX.1, Criminal Code of Canada) Application Heard: May 14, 2013 Judgment Rendered: May 17, 2013 Reasons for Judgment by Green C.J.N.L. Counsel for the Applicant: Robin Fowler Counsel for the Respondent: Joan Dawson

Green C.J.N.L.: [1] A Review Board established under

section 672.38 of the Criminal Code made an order under

section 672.54 dischargingChristopher Sawicki absolutely from his detention resulting from a finding, on January 15, 2010, following trial by jury, that he was notcriminally responsible on account of mental disorder (NCR-MD) for offences including first degree murder. [2] The Attorney General failed to file an appeal to this Court against the order of absolute discharge within the fifteen-day appealperiod stipulated by

section 672.72(2). [3] The question for this Court is whether the Crown’s application for an extension of time in which to file an appeal should begranted. The Power to Extend Time to Appeal and How it Should be Exercised [4] Subsections 672.72(1) and (2) of the Code provide as follows:

(1) Any party may appeal against a disposition made by a court or a Review Board, or a placement decision made by a Review Board, tothe court of appeal for the province where the disposition or placement decision was made on any ground of appeal that raises a questionof law or fact alone or of mixed law and fact.

(2) An appellant shall give notice of an appeal against a disposition or placement decision in the manner directed by the applicable rulesof court within fifteen days after the day on which the appellant receives a copy of the placement decision or disposition and the reasonsfor it or within any further time that the court of appeal, or a judge of that court, may direct. [5] A judge of this Court has the discretion under subsection 672.72(2) to extend the appeal period to “any further time that [thejudge] may direct”. This discretion must, of course, be exercised judicially according to principle.

The Criminal Code does not, however,identify the factors or considerations that should be taken into account in exercising the discretion. [6] In principle, the kinds of factors that the Court may take into account in deciding whether to allow an extension of time to filean appeal from a conviction or sentence for a criminal offence under subsection 678(2) of the Code should be equally applicable undersection 672.72. In the absence of having been shown any case where a different test has been applied under

section 672.72, I will, withone caveat, approach the question in the same manner as if the factors under

section 678 apply. [7] The caveat I mentioned is that, arguably, the public interest, as opposed to the interests of the parties, should perhaps play amarginally greater role in extension applications under

section 672.72. I say this even though the public interest in ensuring the protectionof citizens from crime and ensuring a fair process is something that must be borne in mind in any criminal-related appeal, the fact that thewhole focus of a Review Board hearing is whether the NCR-MD accused continues to be “a significant threat to the safety of the public”(paragraph 672.54(a)) brings protection of the public interest to the forefront in the process. [8] In R. v. Greeley (1990), (NL CA), 80 Nfld. & P.E.I.R. 234 (NFCA), Goodridge C.J.N., dealing with anapplication by the Crown to extend time to appeal from a decision of a

summary conviction appeal judge overturning a trial convictionfor a breathalyzer offence, stated: There are four considerations generally taken by a court of appeal on an application of this nature. They are as follows: 1. That the applicant has shown a bona fide intention to appeal within the time limited. 2. That there is some merit to the appeal. 3. That the applicant acted with reasonable diligence or has a reasonable excuse for the delay in not having started the appeal procedurewithin the time limited. 4.

That refusal of the application would amount to a denial of justice. [citations omitted] I would add to the list considerations (1) as to whether an important question of law is in issue, and (2) as to whether there is prejudice tothe other party existing not due to the appeal but due to the delay. [9] These factors are essentially the same ones that have been enunciated by the Supreme Court of Canada as being applicable toapplications for extensions of time to appeal to that Court: R. v. Roberge, 2005 SCC 48, [2005] 2 S.C.R. 469.

The Court in Roberge alsoreminded us, however, that “the ultimate question is always whether, in all the circumstances and considering the factors referred to …the justice of the case requires that an extension of time be granted.” That also accords with Goodridge C.J.N.’s observation in Greeley: The granting of an extension of time, being a discretionary matter, is not to be fettered by judicial pronouncements … All of the abovefactors and any other valid factors that may be urged are considered globally in the exercise of that discretion.

No single factor isnecessarily determinative of the question whether to allow or refuse an extension. The Context for the Current Application [10] The decision of the Review Board was released and delivered to counsel for the Attorney General on April 5, 2013 late in theworkday as he was leaving the office on a two-week vacation. He left a note to the Senior Crown Attorney indicating he needed todiscuss the decision when he returned from vacation to determine whether the decision should be appealed. Counsel deposed on this

application that his “mistake and assumption was that we would have 30 days to file an appeal” (the normal appeal period for criminal appeals) rather than the fifteen days stipulated by subsection 672.72(2). Taking account of weekend and statutory holidays, the appeal period was in fact due to expire on April 23, 2013, the day Crown counsel was due to return to work from his vacation. [ 11 ] The Senior Crown Counsel to whom Crown counsel directed his note was not in her office when the decision was received and did not return until April 9. Upon her return she reviewed the decision.

She deposed that she “had concerns with some of the reasoning by the Review Board in determining that an absolute discharge was appropriate in the circumstances” and intended to discuss the merit of an appeal with Crown counsel on his return. She says that she felt it was necessary to hear Crown counsel’s view of the decision given his familiarity with the matter. [ 12 ] Senior Crown Counsel deposed that she, also, was under the mistaken belief that the appeal period was thirty days and that there would have been plenty of time to discuss the matter with Crown counsel on his return.

Upon his return on the 23 rd , counsel met, and Senior Crown requested that Crown counsel prepare an analytical memorandum. She then left the province on other business. Upon her return on April 26 th , Crown counsel advised her that he had discovered that the appeal period had expired. [ 13 ] Crown counsel deposed that upon receiving instructions to prepare the memorandum on the 23 rd , he did so and concluded that “an appeal is viable”.

It is not clear from his affidavit, however, whether he reached that conclusion on the 23 rd , the last day for filing the appeal, or subsequently. [ 14 ] On these facts, the Attorney General seeks an extension of time. Application of Applicable Principles [ 15 ] I will consider each of the factors outlined in Greeley , and those that I have added, bearing in mind that ultimately, no single factor is determinative of the question and that the discretion whether to extend time must be exercised, to use Roberge ’s terminology, as the justice of the case requires. (

a) Bona fide intention to appeal within the appeal period? [ 16 ] Because it cannot be said with certainty that Crown counsel made the decision to recommend an appeal to the Senior Crown counsel within the fifteen day appeal period, it cannot be concluded that there was a bona fide intention to appeal within the time limited. [ 17 ] What is clear, however, is that the Senior Crown counsel was concerned about the reasoning in the decision and both she and Crown counsel took steps, within the period, to address the question of whether an appeal should be taken, even if a final decision was not made until later. [ 18 ] Counsel also submits that the Crown should not be faulted from proceeding carefully and responsibly to address whether an appeal was warranted, rather than filing an immediate knee-jerk pro forma notice of appeal with the possibility of having to withdraw it later if upon reflection it was determined that there was no basis for an appeal.

He cited R. v. Chan , 2012 ABCA 250 , 292 C.C.C. (3d) 19 where the different issue of service of a notice of appeal on the respondent outside the applicable period was engaged.

Noting that the Crown acted with “reasonable diligence”, Slatter J.A. observed that “[t]he Crown is entitled to a certain amount of time to order transcripts, review the file, conduct research, and engage its internal decision-making processes” (paragraph 33) and there was nothing inherently unreasonable in adopting such a policy of reflection and analysis before filing an appeal instead of filing immediate appeals and then abandoning those that were later determined not to be justified.

Slatter J.A. referred, without disapproval, to the Crown’s assertion that this latter approach would not necessarily be in the public interest because it would unnecessarily engage court resources and keep in jeopardy a number of acquitted accused persons. [ 19 ] I agree that it is not unreasonable for the Crown to adopt a cautious and reflective approach to determining whether to engage the appeal process. That does not, however, mean that the Crown may routinely justify not filing within the appropriate appeal period simply because it wishes to take longer to think about the matter.

Here, however, the circumstances of counsel being away from the office, the prompt attention to the file when counsel were present and the mistake as to the applicable appeal period demonstrate that the Crown in this case was not simply arbitrarily attempting to extend the appeal period to its own benefit. [ 20 ] The purpose of addressing this factor in deciding whether to allow an extension is to ensure that the Crown addresses the potential of an appeal in a timely manner and is not approaching the matter, following expiration of the period, with second thoughts after either having initially decided not to appeal or simply having neglected to consider the matter seriously before.

Viewed in this light, the fact that a final intention to appeal may not have been reached during the appeal period is not crucial, provided there is evidence – as there is here – that the Crown in good faith seriously addressed the issue of appeal within the applicable period and has a reasonable explanation why the final decision to appeal was taken soon thereafter rather than within the period. [ 21 ] Thus, although the record does not support the technical conclusion that the Crown had formed an intention to appeal within the appeal period, I would not be prepared to deny an extension of time for this reason alone. (

b) Merit of the Proposed Appeal [ 22 ] If a proposed appeal has no merit, there is generally no point in granting an extension of time to appeal. This does not require the Court hearing the application for extension to decide the issues in the case. The Court must, however, decide whether there is some arguable point that deserves to be considered on appeal. If there is none, then there will be little or no point in proceeding. The bar is of necessity a low one, in view of the fact that the record is incomplete and the Court has not heard full substantive arguments.

The test is often expressed as: whether the appeal is frivolous, in the sense of it having no realistic chance of success; or whether there is any discernible merit in the appeal; or whether there is any arguable case. [ 23 ] In this case, the sole proposed ground of appeal is stated by the Crown to be:

That the Review Board erred in law by limiting its application of “significant risk” under 672.54 to the present time and did not considerthe potential of further risk. It is necessary, therefore, to consider how the Review Board reached its Decision, which it stated as follows: The Board has given careful consideration to the evidence and summations in this case. We are cognizant of the seriousness of the offences which brought the Accused under our purview. We are also mindful of the test set out in [Winko v.

British Columbia (Forensic Psychiatric Institution), (SCC), [1999]2 S.C.R. 625] in deciding what an appropriate disposition should be. … The Board accepts the evidence of Dr. Ladha that since that time [of his remand in custody in 2008] his condition has remained stableand the Accused has been cooperative in keeping it under control. He presently has no symptoms of his disorder. We are satisfied that the Accused shows insight into his illness and the need to continue taking medications to keep it under control.

The Board is also satisfied that at this point in time the Accused is not a significant threat to the safety of the public within the meaningof 672.54 of the Criminal Code. He has been reintegrating into the community through unsupervised passes and subsequently full discharge. He has been completelycompliant with Board conditions. Is it proper to delay an absolute discharge solely on the nature of the offence committed?

If so what is the proper time to wait? … In the Winko case (supra) the Supreme Court indicated that when a NCR-MD accused is no longer a significant risk for the safety of thepublic an absolute discharge is the appropriate disposition. (Emphasis added.) [24] Counsel for the Attorney General submits, relying on Orlowski v. British Columbia (1992), (BC CA), 75C.C.C. (3d) 138 (BCCA), that it is not enough to look only “at the present time” but the Review Board must also determine if there is a“future” significant risk..

He focuses on this statement by McEachern C.J. in Orlowski: [36] … if the Board is concerned that an accused with an appropriate history is not a present significant threat and will not become one ifhe continues with his prescribed medications, but the Board also has the opinion that he may be a significant threat if he does not take hismedication, then the Board cannot be said to have an opinion that the accused is not a significant threat.

The word “threat”, in my view,has a future connotation. (Emphasis added.) [25] From this counsel argues that the Board must consider the potential of future risk, which it did not do in the present case. Had itdone so, an argument could be made that there should be a delay in making an absolute discharge in favour of continued furthersupervision. This was the same argument made by counsel at the Review Board hearing but was rejected by the Board. It is this pointthat the Crown wishes to argue on appeal. [26] Counsel for Mr. Sawicki submits that there is no merit in this ground of appeal.

She points out that the whole process of theReview Board is to determine whether the accused “is not a significant threat to the safety of the public” (paragraph 672.54(a)) and thatnecessarily entails an assessment of risk. [27] I agree with counsel for Mr. Sawicki. “Risk” by its nature implies the possibility of events occurring in the future. TheConcise Oxford Dictionary, 7th ed., defines “risk” as: “n. hazard, chance of or of bad consequences, loss, etc. exposure to mischance”.Whenever risk is assessed, it necessarily involves consideration of future potentialities.

Qualifying the word by talking of “future” riskadds nothing unless one is referring to risk that is assessed in the future and not currently. But the Supreme Court in Winko makes itclear that it is the current assessment of risk of a future threat to the safety of the public that the Review Board must undertake: [62] … 2. A “significant threat to the safety of the public” means a real risk of physical or psychological harm to members of the public that isserious in the sense of going beyond the mere trivial or annoying. The conduct giving rise to the harm must be criminal in nature. 3.

There is no presumption that the NCR accused poses a significant threat to the safety of the public.

Restrictions on his or her libertycan only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actuallyconstitutes such a threat. … (Emphasis added.) [28] In Winko, McLachlin J., writing for the majority, disapproved of Orlowski to the extent that it might suggest that uncertainty asto future threat could justify continuing restraint on an NCR-MD accused: [49] …Since there must be a positive finding of a significant risk to the safety of the public to engage the provisions of the Code and

support restrictions on liberty, something less – i.e. uncertainty – cannot suffice. It follows that I do not share the view attributed to Orlowski No. 1 , supra , that if the court or Review Board cannot resolve the questions of whether the NCR accused constitutes a significant threat to public safety, it can continue to restrain the liberty of the accused through an order for a conditional discharge or detention.

If the court or Review Board cannot resolve the issue, it must grant an unconditional discharge. … [ 29 ] Counsel for the Attorney General nevertheless submitted that it was arguable that the Review Board in this case did not follow the “test” outlined at paragraph 57 in Winko relating to assessment of potential harm which has a “future connotation” to it.

There, McLachlin J. stated: [57] … To engage these provisions of the Criminal Code , the threat posed must be more than speculative in nature; it must be supported by evidence … The threat must also be “significant”, both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A miniscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold. Finally, the conduct or activity creating the harm must be criminal in nature … In short,

Part XX.1 can only maintain its authority over an NCR accused where the court or Review Board concludes that the individual poses a significant risk of committing a serious criminal offence. If that finding of significant risk cannot be made, there is no power in

Part XX.1 to maintain restraints on the NCR accused’s liberty. [ 30 ] There is nothing in this passage that qualifies the other statements in Winko or suggests that a Review Board must do something more than assess the potential for significant risk at the time of the hearing. I do not see how this can advance the Crown’s argument.

In fact, in this case, it is difficult, from the evidence presented to the Review Board, to see how the Board could have decided otherwise than it did. [ 31 ] It is clear from the Supreme Court in Winko , therefore, that if a Review Board determines that, at the time of the hearing, there is no significant threat to public safety (which necessarily involves considering future potentialities), there must be an absolute discharge. [ 32 ] The Review Board accepted and relied on the uncontradicted evidence of Dr. Ladha that Mr.

Sawicki has not had any symptoms of his bi-polar disorder since 2008, is compliant with his requirement for medication (and is supported in this by his spouse), has lived safely in the community “without incident of dangerous or inappropriate behavior” since December 2011, and “should receive an absolute discharge”. No evidence was led to the contrary. The Board concluded on the evidence of five years of stability (while in hospital, out on supervised passes and residing outside hospital on conditions) that notwithstanding the seriousness of the index offence, Mr.

Sawicki was not a significant threat to the safety of the public. [ 33 ] This went directly to the Crown’s central point that because of the gravity of the offence, “a longer period of supervision is necessary to ensure that the risk to the community inherent on any relapse no longer exists.” (Review Board decision, p. 13). That was specifically rejected by the Board. [ 34 ] It may be that what the Crown is really seeking to do here is to argue for an

interpretation of the legislation that would allow a Review Board to place continued restrictions on an NCR-MD accused’s liberty if there is uncertainty as to what might occur in the future even though, at the time of the hearing, the Review Board is fully satisfied that at that point in time there is no significant threat or risk to the safety of the public. That sort of argument is, in my view, foreclosed by the decision in Winko .

This Court is constrained by precedent from entertaining such a submission. [ 35 ] It is therefore not open to the Crown to argue in this case that because of the gravity of the index offence and the theoretical possibility that, despite all of the evidence to the contrary and a lack of evidence that he ceased to do so in the past, Mr. Sawicki might cease taking his medications in the future and that because of that a longer period of supervision is necessary to demonstrate he will in fact continue to take his medications.

As Winko established, “[a] past offence committed while the NCR-MD accused suffered from a mental illness is not, by itself, evidence that the NCR-MD accused continues to pose a significant risk to the safety of the public” (paragraph 62, item 6). [ 36 ] The Board acknowledged Winko as stating the principles to be applied and purported to follow it. To the extent Orlowski conflicts with Winko , the latter must prevail. I cannot see how a question of law, as to the enunciation of the law or its application, is raised on the facts of this case.

Nor is the Crown submitting that there was any unreasonable finding of fact or that any of its submissions were not addressed by the Board. Indeed, it would be hard to see how it could be suggested that there was any unreasonable finding of, or palpable or overriding error in, fact in view of the fact that the evidence of Mr. Sawicki’s present condition was uncontradicted. [ 37 ] I am not therefore able to discern, even recognizing that the threshold is a very low one, any potential merit in this appeal. (

c) Reasonable Diligence and Reasonable Excuse [ 38 ] I accept that the Crown acted with reasonable diligence is trying to make a measured and prudent assessment of the merits of the appeal. This is not a case of Crown inattention or prevarication. [ 39 ] Counsel also submits that the circumstances, in particular the bona fide mistake as to the length of the appeal period, disclose a reasonable excuse for not filing within the fifteen-day appeal period. [ 40 ] Counsel for Mr.

Sawicki, however, says that the offered excuse is simply one of inadvertence and that this does not in itself constitute a reasonable excuse. In Greeley , Goodridge, C.J.N. observed: In this case the failure to appeal was due solely to inadvertence in the Department of Justice.

To grant an extension purely on that basis amounts to nothing more than extending the time allowed by statute without any juridical reason for doing so. [ 41 ] In Greeley , however, an extension of time was not granted based on a combination of factors, including the absence of an intention to appeal within the appeal period, the absence of anything on the record to indicate the appeal had merit and the absence of an indication whether there was any question of law which demanded consideration. Further, there was no evidence – unlike here – that the

Crown had ever given any consideration to the merits of appealing until after the appeal period had expired. [ 42 ] I do not read Greeley as standing for the proposition that failure, through inadvertence, to file within the applicable period ipso facto disentitles an applicant from obtaining an extension of time to appeal. In civil cases, this Court has sometimes regarded inadvertence, based on a misunderstanding of the law, as fatal and sometimes not, depending on the other circumstances surrounding the particular case. See Stockwood v. Hayden , 2010 NLCA 39 , 298 Nfld. & P.E.I.R. 145 and Foote v.

Fitzgerald , 2003 NLCA 25 , 225 Nfld. & P.E.I.R. 64. [ 43 ] I prefer to regard an inadvertent mistake as to the length of the applicable appeal period as a factor to be taken into consideration but not fatal in itself. (

d) Denial of Justice? [ 44 ] As to whether refusal of an extension would amount to a denial of justice, counsel for the Attorney General submitted that refusing to allow the Crown to argue on appeal that, contrary to the conclusion of the Review Board, Mr. Sawicki constitutes a significant risk to the safety of the public because of a concern (unsupported by the evidence but an inference to be drawn from the seriousness of the index offence) that he might decline to take his medications in the future, would amount to a “denial of justice”. [ 45 ] That presupposes that there is merit in the appeal, which I have already concluded that there is not. (

e) Important Question of Law? [ 46 ] I have already concluded, in my discussion concerning the merits of the proposed appeal that the Crown has not demonstrated how any arguable proposition of law is engaged in this case, given the application by the Review Board of the Winko principles and the evidentiary record. (

f) Prejudice [ 47 ] Neither party argued the existence of prejudice as a factor affecting the decision here. [ 48 ] I will consider under this topic, however, whether there might be prejudice to the public interest if this appeal were not allowed to proceed. I indicated previously that there may be a case for arguing that because protection of the public is the central focus of a Review Board hearing, the public interest ought to have a greater role to play in extension applications under

Part XX.1 than under other Parts of the Code . [ 49 ] Without deciding this point, I would say that the absence of any discernible basis for the appeal in any event eliminates this factor from consideration here. It is difficult to see how there would be prejudice to the public interest if an extension were denied in circumstances where it is determined that the appeal would have no chance of success if it proceeded.

On the other hand, if the appeal were considered just to be weak, as opposed to having no realistic chance of success, consideration of the public interest, in terms of protection of the public from possible threats of danger, or deciding an important question of law that has not yet been definitively decided, might well tip the scales in favour of granting an extension. [ 50 ] In this case, however, I do not perceive this case to be weak but essentially non-existent.

The law on the point raised by the Crown has been settled by the Supreme Court of Canada, by which, of course, this Court and the Review Board are bound. (

g) Global Consideration of the Individual Factors and the Overall Justice of the Case [ 51 ] The first factor ( bona fide intention to appeal) is relatively neutral in its effect. Although it was technically not complied with, the Crown acted in a manner that does not justify refusing an extension for that reason. [ 52 ] The second factor (appeal merits) strongly favours denying an extension because there would be little or no point in allowing an appeal to proceed on a ground that had no discernible merit.

Even if the appeal had been filed within time, if the respondent had applied to strike the notice of appeal on the basis that it had no merit, it would have been granted because the Crown cannot identify any point that was capable of being argued with any realistic chance of success. [ 53 ] The third factor (reasonable diligence/excuse) marginally favours extending time.

I have concluded that the Crown cannot be accused of not showing reasonable diligence in addressing whether an appeal should be taken and that inadvertence in mistaking the applicable appeal period, while not to be encouraged, could be regarded as an excuse in the circumstances here, so as not to disentitle the Crown from an extension. [ 54 ] The fourth factor (denial of justice) does not favour an extension because the Crown is not being deprived of an opportunity to argue a point that has any realistic chance of success. [ 55 ] The fifth factor (important question of law) does not favour an extension because the Crown has not been able to identify such a question that needs to be decided within the umbrella of the statement of law in Winko . [ 56 ] The sixth factor (prejudice) is neutral in its effect. [ 57 ] Taking all factors into consideration, I have concluded that the justice of the case does not favour granting an extension of time to appeal.

I see no point in allowing the appeal to proceed where the Crown was unable to demonstrate any legal point or any possible error of fact or mixed fact and law that has any realistic chance of success on the appeal. Conclusion and Disposition [ 58 ] The application for extension of time to appeal the disposition of the Review Board dated April 5, 2013 is dismissed.

_________________________________ J. D. Green C.J.N.L.