TRENT WHITE APPLICANT/APPELLANT AND: HIS MAJESTY THE KING RESPONDENT, 2023 NLCA 28

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : R. v. White, 2023 NLCA 28 Date : September 20, 2023 Docket Number : 201901H0005 BETWEEN: TRENT WHITE APPLICANT/APPELLANT AND: HIS MAJESTY THE KING RESPONDENT Coram: L.R. Hoegg, F.P. O’Brien and K.J. O’Brien JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Corner Brook 1318A00216 Appeal Heard: May 17 and 18, 2023 Judgment Rendered: September 20, 2023 Reasons for Judgment by: K.J. O’Brien JA Concurred in by: L.R. Hoegg and F.P. O’Brien, JJ.A. Counsel for the Appellant: Robert W. Buckingham Counsel for the Respondent: Dana E. Sullivan Authorities Cited:

CASES CITED: R. v. White, 2021 NLCA 39, 6 C.A.N.L.R. 698; R. v. White, 2022 SCC 7, rev’g 2021 NLCA 39, 6 C.A.N.L.R. 698; R.v. Meer, 2016 SCC 5, [2016] 1 S.C.R. 23; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. White, (NL PC);R. v. White, (NL PC); Law Society of Newfoundland v. Fahey, 2000 NFCA 19; R. v. Brenton, 2016 NLCA 66, 1C.A.N.L.R. 290; R. v. Parranto, 2021 SCC 46; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Canto, 2015 ABCA 306; R. v.Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301. STATUTES CONSIDERED: Criminal Code,

section 536. RULES CONSIDERED: Court of Appeal Criminal Appeal Rules (2002), SI/2002-96, rules 3(3)(a), 9(3). K. J. O’Brien J.A.: OVERVIEW [1] This appeal is about Mr. White’s claim of ineffective assistance of counsel at trial. The trial judge convicted Mr. White ofassault, aggravated assault, and damage to property. He found that Mr. White had attempted to throw his partner, Jessica Decker, overthe side of his fishing vessel while at sea. Ms. Decker managed to hold on to the side of the vessel until two crewmembers helped herback on board. The trial judge also found that Mr. White threw Ms.

Decker’s cellphone overboard. Mr. White appealed the convictionson the basis that his trial lawyer’s representation was ineffective and resulted in a miscarriage of justice. [2] This decision is also about whether Mr. White should be granted an extension of time to seek leave to appeal his sentence.When he filed his Notice of Appeal against conviction, he did not seek leave to appeal his sentence.

He did not give notice that he wantedto appeal his sentence until approximately four years and three months after he was sentenced. [3] This matter has an unusual history in that this is the second time that the parties have argued the merits of Mr. White’sconviction before this Court. Following the first hearing, a majority of this Court allowed Mr. White’s appeal (R. v. White, 2021 NLCA39, 6 C.A.N.L.R. 698). The majority held that his lawyer’s failure to obtain Mr. White’s instructions regarding his election as to mode oftrial under

section 536 of the Criminal Code undermined trial fairness and resulted in a miscarriage of justice. The Court ordered a newtrial. Justice Hoegg dissented. She would not have ordered a new trial because, even if Mr. White’s counsel had improperly chosen themode of trial, Mr. White failed to show any resulting prejudice that made his trial unfair or that was otherwise serious enough to warranta new trial. Appeal to the Supreme Court of Canada [4] The Crown appealed this Court’s decision to the Supreme Court of Canada.

The Supreme Court allowed the appeal, agreeingwith Justice Hoegg that the claim of ineffective assistance of counsel was not made out because, even if Mr. White had been denied theright to choose his mode of trial, he had not established a miscarriage of justice (R. v. White, 2022 SCC 7, at para. 6 [White – SCC]). [5] The Supreme Court held that an accused who is denied the right to make an informed choice about mode of trial must showsubjective prejudice in order to establish a miscarriage of justice.

Subjective prejudice requires that the accused demonstrate areasonable possibility that they would have acted differently, if they had been given the choice. Mr. White had not established subjectiveprejudice. [6] Additionally, the Supreme Court held that Mr. White’s request for a new trial could not succeed on the basis of unfairnessbecause the defect he alleged was not “so serious that it shakes public confidence in the administration of justice” (para. 9). [7] The Supreme Court returned Mr.

White’s matter to this Court to address his remaining grounds of appeal, all of which werefurther alleged incidents of ineffective assistance. This Court had not addressed these other allegations in its first decision. When thematter returned to this Court, two judges of the original appeal panel had retired. A new panel, which included the remaining judge ofthe original panel, was convened to hear the matter. Issue Remaining on Conviction Appeal [8] In essence, one issue remains on the conviction appeal: Did Mr.

White receive ineffective assistance of counsel that resulted in a miscarriage of justice because his lawyer failed: i. to properly engage with him both before and during trial; ii. to properly prepare and review the case with him; and iii. to prepare him for direct examination and cross-examination.

Summary of Decision [9] For the reasons that follow, I would dismiss Mr. White’s conviction appeal. He has not established that his lawyer’s acts oromissions fell outside the wide range of reasonable professional assistance. Nor has he established that he has been prejudiced by hislawyer’s representation such that a miscarriage of justice occurred.

[ 10 ] I would also deny Mr. White’s application for an extension of time to amend his Notice of Appeal to seek leave to appeal his sentence. Mr. White does not allege that the trial judge erred in deciding his sentence. Rather, he submits that since his sentence was passed, his personal circumstances have changed such that the sentence is now unfit. For the reasons that follow, I would hold that this is not sufficient reason for granting an extension.

WHAT IS REQUIRED TO ESTABLISH INEFFECTIVE ASSISTANCE OF COUNSEL? [ 11 ] To succeed on a claim of ineffective assistance of counsel, an appellant must establish that (1) counsel’s acts or omissions constituted incompetence (the performance requirement); and (2) a miscarriage of justice resulted (the prejudice component) ( R. v. Meer , 2016 SCC 5 , [2016] 1 S.C.R. 23, at para. 2 ; R. v. G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520, at para. 26 ; White – SCC , at para. 6). [ 12 ] Incompetence is determined on a reasonableness standard.

There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance and hindsight plays no role in the assessment ( G.D.B. , at para. 27 ). [ 13 ] The appellant may establish a miscarriage of justice by showing that the appearance of trial fairness was undermined or that the verdict was rendered unreliable ( G.D.B. , at para. 28 ). The standard for establishing a miscarriage of justice on the basis of trial unfairness is high. The defect must be so serious that it shakes public confidence in the administration of justice ( White – SCC , at para. 9). HAS MR.

WHITE ESTABLISHED INEFFECTIVE ASSISTANCE OF COUNSEL? [ 14 ] Mr. White alleges that his trial counsel failed to properly engage with him both before and during trial, to properly prepare and review the case with him, and to prepare him for direct examination and cross-examination. Specifically, he submits that his lawyer erred by failing to: call Ms. Decker as a witness; review disclosure with him; consult with him prior to questioning witnesses; advise him on what to expect during his own testimony; make adequate closing submissions to the trial judge; and consult with him before making them. [ 15 ] Mr.

White submits that these instances of ineffective assistance undermined the reliability of the verdict and thus caused a miscarriage of justice. The Basis of the Trial Judge’s Verdict [ 16 ] Because Mr. White alleges that his lawyer’s omissions rendered the verdict unreliable, it is helpful to review the basis for the verdict before considering each of the alleged failings. [ 17 ] The trial judge heard evidence from everyone who was on Mr. White’s vessel that day. [ 18 ] The trial judge found the Crown’s key witnesses, two crewmembers who had witnessed the aftermath of what had occurred between Mr. White and Ms.

Decker, to be credible and reliable. Although there were some differences between their evidence, it was generally consistent. These men testified that they were in the wheelhouse when they heard Ms. Decker screaming. As a result, they ran to the back of the vessel where they saw half of her body over the side of the vessel. She was screaming for help. One of the crewmembers testified that one of her legs was still on board and that she was hanging on to a fish pan that was on the deck. Mr. White was behind her doing nothing to assist and appeared angry. One or both of the crewmembers pulled Ms.

Decker on board to safety. [ 19 ] The trial judge found a third crewmember, who testified for the defence, had not witnessed the main events in question, but had seen Mr. White throw Ms. Decker’s phone overboard. [ 20 ] The trial judge found Mr. White’s testimony to be “purposefully disingenuous” and “unreliable, incredible, and fanciful”. Mr. White denied assaulting Ms. Decker. Although he testified in detail about certain aspects of the fishing voyage, he could not recall Ms. Decker hanging over the side of the vessel, or yelling out for help.

He could also not recall the two crewmembers running to the back of the vessel to rescue her. Mr. White conceded that he had thrown Ms. Decker’s phone overboard. [ 21 ] As will be reviewed below, Ms. Decker did not initially testify at the trial. However, following a defence application to reopen the trial, the judge heard her evidence. Ms. Decker testified that she had lied when she had told the police that Mr. White had picked her up and thrown her, pushed her over the side of the boat, and said he was going to kill her. She testified that she had tripped and fallen while arguing with Mr.

White but could not “fully remember” how she had come to be over the side of the boat. The trial judge did not believe Ms. Decker’s evidence. [ 22 ] In both his original decision on conviction and his decision on the reopening application, the trial judge reviewed the evidence and the applicable law in detail. He was ultimately convinced beyond a reasonable doubt that the Crown had established that Mr. White used force to cause Ms. Decker to be hanging off the vessel, in rough waters at sea.

He found that her life was endangered and that, given the conditions, it would have been objectively foreseeable that her life was being endangered. He also found that the Crown had established that Mr. White purposely damaged Ms. Decker’s cell phone. He entered convictions for all counts accordingly. [ 23 ] Although Mr. White alleges no error in fact or law by the trial judge, he submits that the verdicts are unreliable because of his lawyer’s errors, which I will now review. Failure to Call Ms. Decker [ 24 ] The Crown had subpoenaed Ms. Decker for Mr. White’s trial but by the end of the Crown’s case, Mr.

White’s lawyer was aware that the Crown was choosing not to call Ms. Decker as a witness. He was also aware that Ms. Decker was present in the courthouse and available to the defence as a witness. [ 25 ] Mr. White’s lawyer attested to these events in an affidavit that was filed in the court below. According to that affidavit, Mr. White’s lawyer spoke with Ms. Decker twice before he made the decision not to call her. The first time she told him that the events in

relation to the charges had not occurred, and the second time she told him that she was having trouble remembering the events inquestion. Mr. White’s lawyer had a copy of Ms. Decker’s police statement. Based on the information that he had, he believed that Ms.Decker’s credibility would be substantially challenged during cross-examination by the Crown and so he chose not to call Ms. Decker asa witness. [26] The trial thus proceeded without testimony from Ms. Decker. Mr. White was convicted of all charges (R. v. White, (NL PC)). [27] Following his conviction, but prior to sentencing, Mr. White changed lawyers.

His new lawyer (not his present lawyer) appliedto reopen the trial to have Ms. Decker testify. This application was successful (R. v. White, (NL PC), the “Applicationto Reopen Decision”). The trial judge’s decision to reopen the trial and hear Ms. Decker’s evidence was not appealed. Nevertheless, twoaspects of it are relevant to this appeal. [28] First, the trial judge found that Mr. White’s trial lawyer’s decision not to call Ms. Decker as a witness was reasonable andtactical (Application to Reopen Decision, at para. 67). [29] Second, as already noted, the trial judge did not find Ms.

Decker’s evidence to be reliable or honest. He considered it in thecontext of the totality of the evidence presented at trial and concluded that it did not cause him to alter his verdicts of conviction(Application to Reopen Decision, at paras. 121-128). [30] This case involved intimate partner violence. Ms. Decker initially gave a detailed statement to the police that was generallycorroborated by the evidence of the two crewmembers who testified for the Crown. By the day of trial, Ms. Decker wanted to recant herstatement. The trial judge suggested that by this time Ms.

Decker may have felt regret about having implicated her partner (Applicationto Reopen Decision, at para. 126). Regardless of the reason for her change in position, the Crown decided not to call her as a witness.Ms. Decker told Mr. White’s lawyer that the events had not occurred but also that she was having trouble remembering them. In thesecircumstances, I agree that Mr. White’s lawyer’s decision not to call Ms. Decker was reasonable and tactical. The decision was wellwithin the wide range of reasonable professional assistance. [31] Moreover, given that the trial judge ultimately heard Ms.

Decker’s testimony, there has been no prejudice to Mr. White. Icannot agree with Mr. White’s submission on appeal that if the trial judge had heard from Ms. Decker earlier in the trial, the verdictmight have been different. This is pure speculation with no evidentiary basis. The trial judge gave a detailed and considered assessmentof Ms. Decker’s testimony and his findings as to her credibility and its ultimate effect on the trial result have not been challenged. Review of Disclosure [32] Mr.

White filed fresh evidence before this Court by way of an affidavit, which addressed his lawyer’s representation of him attrial. Mr. White was cross-examined on his affidavit at the first hearing before this Court. The transcript of that cross-examination wasavailable to the panel at the second hearing. [33] Mr. White’s trial lawyer did not file evidence or participate in the appeal so Mr. White’s evidence is uncontested. [34] In his affidavit, Mr.

White addressed his pre-trial meetings with his lawyer: [I]n preparation for trial, besides preparing at Court on the trial date [my lawyer] may have met with me two (2) times. One time forabout half an hour. The other time I do not recall how long but it was not for very long. [T]hroughout the time he represented me I may have had four (4) or five (5) brief telephone calls with [him], and this mostly was mecalling [him]. [35] During cross-examination, Mr. White added that one of the phone calls was approximately 30 or 40 minutes.

He also addedthat he met with his lawyer at the courthouse prior to the start of trial for 20 minutes or so. [36] Mr. White did not provide much detail about what was discussed during these meetings and calls. It is clear from the cross-examination transcript that his memory of his interactions with his lawyer was poor. As such, I am unable to determine to what extentMr. White’s lawyer reviewed disclosure with him. Nevertheless, Mr. White was certain that his lawyer did not provide him with a copyof the disclosure or a

summary of the witness statements. [37] A competent lawyer will review the Crown’s case with an accused prior to trial. However, there is no one way to do this. Somelawyers may give the accused a copy of disclosure, some may allow the accused to review disclosure at their office, some may reviewthe Crown’s case orally with the accused, and some may use a combination of methods.

Lawyers may take different approaches fordifferent cases depending on factors such as: the nature and volume of the disclosure; the accused’s familiarity with the Crown’s caseindependent of the disclosure; and the personal attributes of the accused, such as, age, experience with the justice system, level of literacyor education, and cognitive ability. [38] If Mr. White’s lawyer did not review the Crown’s case with him at all prior to trial, that would be an error and outside of therange of reasonable professional assistance. However, to succeed on a claim of ineffective assistance of counsel, Mr.

White must alsoestablish that he was prejudiced as a result of the error. He has not done that. [39] Mr. White claims that his lawyer’s failure to review disclosure with him rendered the trial result unreliable but he has notexplained how. He has not identified any information in the disclosure that he did not know or explained how his knowledge of thatinformation prior to trial could have affected the outcome. [40] The trial judge’s decision to convict was based on his consideration of the evidence and his credibility assessments. Mr.

Whitehas not identified any information that he might have given his lawyer, or the judge directly in his evidence, had he fully reviewed

disclosure. Mr. White has not pointed to anything in the disclosure that might have affected the trial judge’s findings. For example, he has not identified prior inconsistent statements or inconsistencies that might have affected the trial judge’s credibility assessments had he been aware of them. [ 41 ] In short, even if his lawyer failed to review disclosure with him, Mr. White has not established that this renders the verdict unreliable. Failure to Consult Mr. White During the Trial [ 42 ] Mr.

White states that his lawyer did not consult with him after each of the Crown witnesses gave evidence to discuss his position with respect to the evidence and to prepare for cross-examination. [ 43 ] There is no requirement that a lawyer do as Mr. White suggests. Trials are complex processes with many moving parts. They are inherently unpredictable and each is unique. There is thus a wide range of acceptable ways for lawyers to consult with their clients and to prepare for cross-examination. [ 44 ] Mr. White does not state that he tried to consult with his lawyer after each witness.

Nor has he identified how his input into cross-examination might have affected the trial result. His lawyer’s cross-examination of the witnesses does not suggest that his lawyer was ill-prepared. His lawyer challenged the Crown witnesses’ perception of events, questioned them about their alcohol consumption, and had them clarify that they did not see how Ms. Decker got to the position in which they found her. [ 45 ] Mr. White has not shown that his lawyer’s conduct on cross-examination fell below the wide range of reasonable professional assistance.

Even accepting that the cross-examinations may have been different had Mr. White had more input, this is not sufficient to establish a miscarriage of justice. A new trial is not warranted simply because cross-examination of witnesses might have been more effective. Preparing Mr. White for Testifying [ 46 ] In his affidavit, Mr. White states: [My lawyer] did not meet with me to discuss my cross-examination by the Crown Attorney, which questions the Crown Attorney would ask on cross-examination or to prepare me for cross-examination before the trial date.

There is a possibility he may have discussed those questions with me on the day of trial when we attended at Provincial Court, but I do not remember. [ 47 ] During cross-examination, Mr. White stated that he knew the allegation for aggravated assault was for attempting to throw his girlfriend overboard. He also testified as follows: Q. Did [your lawyer] indicate you would be asked questions about Jessica’s phone going overboard, and how that occurred? A. He told me the Crown was going to ask me questions. Questions about these events that I was charged with. Q. Right A. There was no details.

It was pretty simple, okay? The Crown’s gonna question you. They may question you hard on this or that or whatever aspect. Like this is it. … [...] Q. Now you’re indicating that [your lawyer] didn’t prepare you for cross examination. Did he tell you that the Crown would be allowed to ask leading questions which are questions that might suggest an answer, you should listen carefully, answer as best as you can? A. Yeah, ten minutes. Ten minutes. He may have told me that the Crown was going to ask me some tough questions. [ 48 ] Mr. White thus concedes that his lawyer did some preparation with him. Mr.

White’s complaint is that the preparation was insufficient. [ 49 ] Given that Mr. White does not remember the full extent of his lawyer’s discussions with him, I am unable to find that the preparation fell below the standard of reasonable professional assistance. Even if it did, Mr. White has not established that more preparation could have affected the trial outcome. [ 50 ] Mr. White’s lawyer told him that the Crown might ask hard questions about the allegation that he had attempted to throw Ms. Decker overboard. After all, that was what the trial was about.

Yet, when he was asked about that critical event and its aftermath as witnessed by the crewmembers, he could not recall what happened. Mr. White has not alleged before this Court that his answers to this line of cross-examination would have been different had his lawyer better prepared him. Nor has he submitted that there was further relevant evidence that he could have given had he been better prepared. [ 51 ] Either Mr. White really had selective memory about the events of that fishing trip or he was dishonest about his recollection. The trial judge found it was the latter. Mr.

White has not put forward any evidence to establish that better preparation by his lawyer could have affected that finding or the ultimate result of the trial. Closing Submissions [ 52 ] Mr. White submits that his lawyer did not take a break after the close of evidence to discuss closing submissions with him and that he had no input into the closing submissions. Mr. White does not state that he tried to consult with his lawyer at this time.

[ 53 ] There is no requirement that lawyers consult with their clients about final submissions after the close of evidence. Therefore, a failure to do so, on its own, is not proof of ineffective assistance. [ 54 ] Additionally, Mr. White has not suggested anything he could have said to his lawyer, had he been consulted, that might have affected the trial outcome. [ 55 ] In my view, the final submissions were reasonable and competent. The lawyer focused on there being no direct evidence of an assault. He highlighted inconsistencies between the evidence of the two crewmembers who had responded to Ms.

Decker’s screams. He noted that his client denied committing an assault. He characterized his client’s evidence as “very forthright”, noting that Mr. White had not denied other evidence that might have made him look bad. He reasonably conceded that Mr. White had thrown the phone overboard. [ 56 ] The lawyer did not review the evidence or the applicable law in detail, but it was not necessary for him to do so. The evidence and the final submissions took place on the same day, so the testimony was fresh in everyone’s minds. The trial judge was experienced and the case did not raise any unusual questions of law.

Notably, Mr. White does not allege that the trial judge made any legal or factual errors. [ 57 ] Mr. White has not established that his lawyer’s failure to consult him regarding final submissions led to a miscarriage of justice. Cumulative Potential Effect [ 58 ] In the event that this Court does not find any of the identified failures constitutes a miscarriage of justice on its own, Mr. White submits that the cumulative effect of those failures is sufficient to meet the threshold. However, there is nothing to consider cumulatively as Mr.

White has not established that any of his lawyer’s acts or omissions fell outside of the wide range of reasonable professional assistance. It is not enough to suggest that a lawyer could have done better. To succeed in a claim for ineffective counsel, Mr. White has to first establish that his lawyer was incompetent. He has not done that. [ 59 ] Even if he had established incompetence, that would not be sufficient. Mr. White alleges a miscarriage of justice based on an unreliable verdict and the onus is on him to establish it. He has not done so.

There is nothing in the trial record, or in the fresh evidence introduced in this Court, to establish that the trial result is unreliable because of Mr. White’s lawyer’s performance. [ 60 ] For the foregoing reasons, I would dismiss Mr. White’s conviction appeal. SHOULD MR. WHITE BE GRANTED AN EXTENSION OF TIME TO SEEK LEAVE TO APPEAL HIS SENTENCE? [ 61 ] It is helpful to give a timeline of events to explain why this issue is now before this Court. Timeline of Events [ 62 ] The trial judge sentenced Mr. White on January 10, 2019. On January 25, 2019, Mr.

White filed a Notice of Appeal, appealing only his convictions. The first panel of this Court heard the appeal and gave its decision on June 25, 2021. As already noted, the Crown appealed that decision to the Supreme Court of Canada. The Supreme Court of Canada gave its decision on March 18, 2022, returning the matter to this Court for determination of the remaining grounds of the conviction appeal. [ 63 ] Mr. White’s present lawyer represented him at the first hearing of his conviction appeal before this Court. Two other lawyers represented Mr. White before the Supreme Court of Canada.

At a status meeting before this Court on November 7, 2022, Mr. White was self-represented but was arranging for legal counsel. On January 10, 2023, Mr. White’s present lawyer emailed this Court to advise that he would be representing Mr. White at the continuation of the appeal. [ 64 ] On March 7, 2023, this Court heard a pre-hearing application for directions filed by the Crown. At that hearing, Mr. White’s lawyer raised, for the first time, the possibility of Mr. White adding a ground of appeal to seek leave to appeal his sentence. Mr. White filed the application to do so on April 21, 2023.

The application was heard at the same time as the continuation of the conviction appeal. [ 65 ] In short, Mr. White has applied for an extension of time to file an application seeking leave to appeal his sentence approximately four years and three months after he was sentenced. An extension of time would be necessary because the time limit to file a Notice of Appeal seeking leave to appeal sentence is not later than 30 days from the date of sentencing ( Court of Appeal Criminal Appeal Rules (2002) , SI/2002-96, rule 3(3) (a)).

Factors Relevant to an Application to Extend Time for Filing or Amending a Notice of Appeal [ 66 ] Rule 9(3) of the Court of Appeal Criminal Appeal Rules (2002) sets out the filing requirements for an application to extend the time to file a Notice of Appeal: 9(3) An application to extend or abridge the time for filing a notice of appeal shall include an affidavit and any other relevant material indicating (

a) the potential merits of the appeal, including any questions of law that may be in issue on the appeal; (

b) an explanation for the failure to have filed the notice of appeal in accordance with the time limits prescribed by these Rules; (

c) whether the applicant had demonstrated an intention to appeal within the appeal period; (

d) the existence of any prejudice to the intended respondent and any third parties if the appeal were allowed to proceed; (

e) the existence of any special circumstances that might cause an injustice to the applicant if the application were refused; and

(

f) any other information or factors as might reasonably have a bearing on the application. [ 67 ] In Law Society of Newfoundland v. Fahey , 2000 NFCA 19 , at paragraph 3 , this Court set out a non-exhaustive list of factors to consider for applications to extend time for filing a Notice of Appeal. In R. v. Brenton , 2016 NLCA 66 , 1 C.A.N.L.R. 290, this Court confirmed that the same factors apply to criminal cases.

They are: 1. whether the appellant had a bona fide (or good faith) intention to appeal within the appeal period; 2. whether there is a reasonable excuse for the failure to comply with the rule; 3. the potential merits of the appeal; and 4. the presence of any exceptional or special circumstances justifying or working against the fairness of an extension. The Parties’ Submissions Good faith intention to appeal within the appeal period [ 68 ] Although Mr. White appealed his conviction within time, he does not submit that he showed any good faith intention to appeal his sentence during the 30-day appeal period.

Reasonable excuse for failing to comply with the rule [ 69 ] Mr. White submits that he did not seek to appeal his sentence earlier because he did not know the matter would be delayed for such a long period. Mr. White successfully applied for judicial interim release before this Court on February 5, 2019, and has been living in the community under conditions since then. He submits that the conditions are difficult and that it is “a struggle to survive” under them.

He notes that if he had served his sentence immediately, he would have completed it by now. [ 70 ] In response, Crown counsel submits that there is no evidence that Mr. White or his counsel moved diligently to seek leave to appeal sentence, and that Mr. White offers no reasonable excuse for this delay. The Crown characterizes the delay as “tremendous” and notes that Mr. White waited until well after the Supreme Court of Canada had given its decision to file the present application. The potential merits of the appeal [ 71 ] Mr.

White does not allege that the trial judge made any error in principle on sentencing nor that the trial judge imposed a demonstrably unfit sentence. Rather, he submits that the time that he has been under release conditions and the changes in his circumstances over this period serve the purposes of denunciation and rehabilitation and may establish grounds that his sentence is now unfit. [ 72 ] Crown counsel submits that there is no merit to the appeal. She notes that Mr. White has not provided any evidence of rehabilitation or details of his changes in circumstances.

She further submits that the trial judge did not err in passing sentence and that Mr. White’s submission does not adequately consider the importance of deterrence, both general and specific, in sentencing for cases involving intimate partner violence. Exceptional or special circumstances and the fairness of an extension [ 73 ] Mr. White submits that spending in excess of four years on release conditions creates exceptional or special circumstances such that it would be an injustice to deny him the opportunity to amend the grounds of his appeal.

He submits that the long release period was caused by the unique litigation history of this matter. [ 74 ] Mr. White submits that during this time he has successfully reintegrated in the community, rehabilitated himself, maintained steady employment and avoided further criminal sanctions. He submits that with his current antecedents, the sentence imposed by the trial judge is unreasonable. [ 75 ] Finally, Mr.

White submits that there is no prejudice to the Crown, or to any third parties, if the appeal is allowed to proceed. [ 76 ] Crown counsel does not agree that the passage of time creates special circumstances. Although she concedes that there is no prejudice to the Crown’s position on the possible sentencing appeal, she submits that allowing the appeal to be pursued after almost four and a half years would bring the administration of justice into disrepute and undermine the principle of finality in legal proceedings. Analysis of the Relevant Factors [ 77 ] I would not grant Mr.

White’s application for an extension of time to seek leave to appeal sentence for the following reasons. [ 78 ] First, Mr. White has not established that there is merit to his intended sentence appeal. An appellate court may not vary a sentence on appeal unless the sentence is demonstrably unfit or the sentencing judge made an error in principle that impacts the sentence ( R. v. Parranto , 2021 SCC 46 , at para. 30 ; R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 , at paras. 11 , 67). Mr. White has not identified any error in principle or argued that the sentence was demonstrably unfit when it was pronounced.

Appeal courts should not intervene in sentence simply because the circumstances at the time of appeal are different than they were at the time of sentencing. [ 79 ] Second, Mr. White has not been diligent in pursuing a sentence appeal and has offered no reasonable excuse for the delay. It is noteworthy that approximately a year passed between the Supreme Court of Canada’s decision returning the matter to this Court and Mr. White filing the present application.

In the interim, it was the Crown that contacted the registry of this Court to move the matter along when, as noted in the Crown’s factum, it “appeared to stagnate”.

[ 80 ] Third, although this file has an unusual litigation history, that does not equate to special or exceptional circumstances justifying a significant time extension. Neither does the fact that Mr. White has spent a long time pending appeal under judicial interim release conditions. Mr. White chose to seek judicial interim release pending appeal and was free to revoke that choice at any time. [ 81 ] Ultimately, in all of the circumstances, the justice of this case requires that the principle of finality of proceedings prevail.

The principle of finality is that once a judgment is entered, and the appeal period has expired, a decision is final. Finality is important for the Crown, witnesses, and other people affected by a case. It brings certainty and allows people to move on with their lives. It allows limited resources to be spent on other matters. Finality is also important for accused people. As noted in R. v. Canto , 2015 ABCA 306 , at paragraph 24 : The doctrine of finality is of equal importance to the Crown and the accused. An accused who has been acquitted cannot be tried again.

After expiry of the appeal period, the Crown can not seek to reopen an acquittal (or conviction on a lesser and included offence) based on a later change in evidentiary or substantive law. Nor could the Crown seek a harsher sentence based on later changes in sentencing law. Given their obvious importance, some of these aspects of finality are reflected in s. 11(g), (h), and (

i) of the Charter . [ 82 ] The principle of finality is not absolute. When its rigid application might lead to a miscarriage of justice, the finality principle must yield (see R. v. Calnen , 2019 SCC 6 , [2019] 1 S.C.R. 301, at para. 70 ). When considering an application to extend time to file an appeal, the Fahey factors assist judges in deciding what justice requires in the circumstances. [ 83 ] In Mr. White’s circumstances, allowing an extension of time would not be just and could harm the reputation of the administration of justice. Granting Mr.

White’s application would risk encouraging convicted people to pursue appeals of low merit after the appeal period has expired with the goal of having more time in the community under judicial interim release to improve their personal circumstances for a reconsideration of their sentence. Appeals are to correct errors made by the court below, not to provide time for rehabilitation and reintegration into society, as important as these principles are. [ 84 ] For the foregoing reasons, I would dismiss Mr. White’s application for an extension of time to amend his Notice of Appeal to seek leave to appeal his sentence.

DISPOSITION [ 85 ] I would dismiss Mr. White’s conviction appeal. I would also dismiss Mr. White’s application for an extension of time to amend his Notice of Appeal to seek leave to appeal his sentence. _____________________________ K.J. O’Brien J.A. I Concur: _____________________________ L.R. Hoegg J.A. I Concur: _____________________________ F.P. O’Brien J.A.