Docket: 1853 Her Majesty the Queen Respondent - v. -, 2010 SKCA 153

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 153 Date: 20101213 Between: Docket: 1853 Her Majesty the Queen Respondent - and - Clint A. Kimery Appellant Coram: Richards, Ottenbreit and Caldwell JJ.A. Counsel: No one appearing on behalf of the Appellant W. Dean Sinclair for the Crown Appeal:

From: Q.B.G. No. 1257/09, J.C. Regina Heard: December 13, 2010 Disposition: Dismissed (orally) Written Reasons: December 17, 2010 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell Richards J.A. I. Introduction [ 1 ] The appellant, Clint Kimery, was convicted in Traffic Court on three charges. He appealed unsuccessfully to the Court of Queen’s Bench and then appealed to this Court. [ 2 ] Mr. Kimery filed written materials but advised that he would not appear for the oral hearing.

We dismissed his appeals from the bench but indicated that, in light of the general importance of some of his arguments, written reasons would follow. These are those reasons. II. Background [ 3 ] In 2009, Mr. Kimery received three offence notice tickets. The first, served on May 20, alleged he had driven in excess of the speed limit contrary to a Regina city bylaw. The second, served on June 3, charged him with disobeying a stop sign contrary to The Traffic Safety Act , S.S. 2004, c. T-18.1.

The third, served on June 7, alleged the operation of a vehicle in excess of the speed limit provided by a Regina city bylaw. [ 4 ] Mr. Kimery says that, by way of reaction to each ticket, he wrote to the Provincial Court and requested disclosure. His requests were framed in broad terms and included reference to some matters clearly falling outside of what the Crown might have been obliged to make available to him. Mr. Kimery says he purposefully did not attend Traffic Court on the scheduled appearance dates for the offences. He was convicted in relation to each of them. [ 5 ] Mr.

Kimery appealed to the Court of Queen’s Bench, alleging that he was not required to enter pleas before receiving disclosure. His appeals were denied on the basis that he had not provided the Court with transcripts as required by s. 821(3) of the Criminal Code . [ 6 ] Mr. Kimery now asks this Court to find that his Queen’s Bench appeals were improperly dismissed. III. Analysis [ 7 ] These proceedings raise three issues: (

a) did the Court of Queen’s Bench have jurisdiction to entertain Mr. Kimery’s appeals?, (

b) should the Queen’s Bench appeals have been dismissed in reliance on s. 821(3) of the Criminal Code ?, and (

c) in any event, did Mr. Kimery’s Queen’s Bench appeals have any merit? We will deal briefly with each of these matters in turn. A. The Jurisdiction of the Court of Queen’s Bench [ 8 ] The Crown contends the Court of Queen’s Bench had no jurisdiction to entertain Mr. Kimery’s appeals. We agree. [ 9 ]

Part IV of The

Summary Offences Procedure Act, 1990 , S.S. 1990-91, c. S-63.1 (“ SOPA ”), which is applicable here, sets out special procedures governing what are called “offence notice tickets.” A person, like Mr. Kimery, who is served with such a ticket has three options. First, pursuant to s. 10, he or she may plead guilty and voluntarily pay the applicable fine. Second, pursuant to s. 19, he or she may plead not guilty by signing the not guilty plea on the offence notice and delivering it as specified. In that case, he or she will receive

a written notice of the time and place for the trial. Third, pursuant to s. 21, the person in receipt of an offence notice ticket may sign the guilty plea on the notice and indicate that he or she wishes to make submissions concerning the penalty. If this option is selected, the person will be notified of the time and place for making such submissions. [ 10 ] SOPA provides for a “default” conviction in the event a person does not elect one of the three options outlined above. Section 22(1) provides as follows: 22(1) A defendant who: (

a) has been served with an offence notice; and (

b) has not responded in the manner provided for pursuant to

section 10, 19 or 21; is deemed not to wish to dispute the charge. [ 11 ] In the circumstances contemplated by s. 22(1), a justice will examine the certificate of offence and the certificate of service or affidavit of service. If those documents are complete and regular on their face, the justice may enter a conviction. All of this is set out in s. 22(2): 22(2) In the circumstances described in subsection (1), a justice: (

a) shall examine: (

i) the certificate of offence; and (ii) the certificate of service or the affidavit of service; and (

b) if the certificates mentioned in clause (

a) are: (

i) complete and regular on their face, may, without a hearing, enter a conviction in the defendant’s absence and impose the specified penalty sum; or (ii) not complete and regular on their face, may: (

A) quash the proceedings; or (

B) on application by a prosecutor, allow any defects, if minor, to be corrected, enter a conviction and impose the specified penalty sum. [ 12 ] This is what happened to Mr. Kimery. He did not react to the offence notice tickets in any of the ways described by ss. 10, 19 and 21 of SOPA and deliberately did not appear on the dates when his charges were before the Traffic Court. As a result, he was convicted as provided by s. 22. [ 13 ] Mr. Kimery says that he did “respond” to the tickets by writing to the Provincial Court to demand disclosure. This, however, is of no significance in the present context.

Section 22(1) of SOPA requires that a person must respond in one of the fashions described in ss. 10, 19 and 21. Mr. Kimery did not do this and did not challenge the “offence notice tickets” scheme itself. As a result,

Part IV of SOPA , as drafted, sets out the rules which govern these appeals. [ 14 ] All of this leads to the jurisdictional issue referred to above. SOPA , in s. 23 , sets out the procedure a person must follow if he or she wishes to take issue with a default conviction. That procedure involves an appearance before a justice, not an appeal to the Court of Queen’s Bench.

Section 23 reads as follows: 23(1) If not more than 15 days have elapsed since the conviction first came to the attention of the offender, the offender may appear before a justice to request a hearing on the grounds that the offender did not have an opportunity: (

a) to dispute the charge; or (

b) to appear in person or by agent at the trial.

(2) If: (

a) an offender makes an appearance pursuant to subsection (1); and (

b) after hearing any evidence of the offender, the justice is satisfied that the offender did not have an opportunity to dispute the charge or appear in person or by agent at the trial and that it would be equitable to do so;

the justice shall: (

c) set aside the conviction; and (

d) either: (

i) give the defendant a notice of trial in accordance with

section 19; or (ii) enter a conviction and proceed in accordance with

section 21. [ 15 ] Mr. Kimery did not proceed pursuant to s. 23. Rather, he relied on the general rights of appeal found in the

summary convictions provisions of the Criminal Code which are incorporated in SOPA by virtue of s. 4(4) of that Act. However, it is important to note the wording of s. 4(4): 4(4) Subject to this Act , any other Act or any regulation, Parts XXII, XXVI and XXVII, other than

section 840, and sections 20, 21, 22, 484 and 527 insofar as it relates to a witness, sections 718.3 , 719 , subsection 732(1) and

section 734.8 of the Criminal Code , as amended from time to time, apply, with any necessary modification, to: (

a) summary conviction proceedings before justices; and (

b) appeals from convictions, acquittals, sentencing or other orders made under

summary conviction proceedings. [emphasis added] [ 16 ] As the underlined portion of the subsection indicates, the relevant Criminal Code provisions apply “[s]ubject to this Act.” In other words, the appeal procedures found in the Code are displaced or modified to the extent the wording of SOPA requires. [ 17 ] This is significant because, as noted, SOPA creates a special regime for default convictions which has no parallel in the Code . The “request for a hearing” process set out in s. 23 is an integral part of that regime.

As a consequence, s. 23 must be taken as operating as an exception to the general rights of appeal and appeal procedures incorporated in SOPA by virtue of s. 4(4) . [ 18 ] As explained, Mr. Kimery did not seek a hearing as contemplated by s. 23. It necessarily follows that his appeal to the Court of Queen’s Bench was improperly initiated and that the Court of Queen’s Bench had no jurisdiction to entertain it.

In other words, the Court of Queen’s Bench should have rejected his appeal on the basis of a lack of jurisdiction. (In fairness to the Queen’s Bench judge, we note that the jurisdictional issue was not raised with him.) B. Section 821(3) of the Code [ 19 ] Section 821(3) of the Code refers to the obligation of an appellant from a

summary conviction court to furnish the Court of Queen’s Bench with a transcript. It says this: 821(3) Where the evidence on a trial before a

summary conviction court has been taken by a stenograp her duly sworn or by a sound recording apparatus, the appellant shall, unless the appeal court otherwise orders or the rules referred to in

section 815 otherwise provide, cause a transcript thereof, certified by the stenographer or in accordance with subse ction 540(6), as the case may be, to be furnished to the appeal court and the respondent for use on the appeal. [ 20 ] The Crown submits, and we agree, that s. 821(3) was not applicable here. As the subsection itself indicates, it applies only “[w]here the evidence on a trial before a

summary conviction court” has been taken by a stenographer or recorded. In this case, there was no “evidence” and hence s. 821(3) did not engage. Mr. Kimery’s appeals should not have been dismissed on the basis that he had failed to comply with it. C. The Merits of Mr. Kimery’s Appeal [ 21 ] Finally, in the interest of helping Mr. Kimery more fully understand his situation, it may be useful to say a word about the merits of his appeal to the Court of Queen’s Bench. As noted above, Mr.

Kimery argued in that Court that he was entitled to disclosure and that he was entitled to receive it before entering a plea. [ 22 ] Mr. Kimery’s argument suffered from two central problems. First, there was no evidence before the Court to establish what he had requested by way of disclosure or to establish that his request had ever come to the attention of the Crown. The Court of Queen’s Bench

had copies of letters that Mr. Kimery, in argument, said he had sent to the Provincial Court but that is all it had. There was no properevidentiary record in relation to any of this. [23] Second, and more fundamentally, Mr. Kimery should understand that not every failure by the Crown to provide informationdemanded by way of disclosure will result in a conviction being overturned. In order to obtain a new trial, a person appealing from aconviction is required to demonstrate one of two things: (

a) that it is reasonably possible the non-disclosed material affected thereliability of the conviction, or (

b) that trial fairness was denied. See, for example: R. v. Dixon, (SCC), [1998] 1S.C.R. 244. The simple failure of the Crown to respond to a request for disclosure does not, in and of itself, mean a conviction must beoverturned. IV. Conclusion [24] For the reasons outlined above, we conclude that Mr. Kimery’s appeals must be dismissed.