R. v. M/V The Marathassa, 2019 BCSC 386

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. M/V The Marathassa, 2019 BCSC 386 Date: 20190312 Docket: 27708 Registry: Vancouver Regina v. Motor Vessel "Marathassa" Before: The Honourable Madam Justice DeWitt-Van Oosten Reasons for Judgment Counsel for the Appellant: Raymond D. Leong No one appearing for M.V. Marathassa Place and Date of Hearing: Vancouver, B.C. March 11, 2019 Place and Date of Judgment: Vancouver, B.C. March 12, 2019 [ 1 ] These Reasons for Judgment were delivered as oral reasons.

They have since been edited for publication. [ 2 ] THE COURT : In January 2017, the respondent was charged with a number of pollution-related offences under three federal statutes: Canada Shipping Act , S.C. 2001, c. 26 and its regulations; Canadian Environmental Protection Act, 1999 , S.C. 1999, c. 33 ; and, Migratory Birds Convention Act, 1994 , S.C. 1994, c. 22 . [ 3 ] A

summary conviction trial proceeded in the Provincial Court of British Columbia. It consumed approximately 71 days of trial time, spanning January 3, 2018 to February 7, 2019. [ 4 ] In the course of the trial, the Crown stayed three of the counts on the Information. On September 18, 2018, the trial judge directed a verdict of acquittal in respect of a fourth count. On the remaining counts, the respondent called a defence. Ultimately, the trial judge dismissed those counts on the merits. [ 5 ] The Crown filed a Notice of Appeal from the directed verdict of acquittal within 30 days of entry.

Counsel for the respondent accepted service of that Notice of Appeal. At the material time, the Provincial Court trial had not completed. [ 6 ] After trial, the Crown filed a second Notice of Appeal in respect of all counts dismissed on the merits. The second Notice of Appeal carries the same British Columbia Supreme Court file number as the first. I understand that the Crown intends to apply for consolidation of the two Notices of Appeal, so that they are heard together as one appeal. [ 7 ] To comply with the

summary conviction appeal provisions of the Criminal Rules of the Supreme Court of British Columbia , SI/97-140 (" Criminal Rules "), the Crown was obliged to serve the respondent with its second Notice of Appeal by no later than the end of day on March 11, 2019.

The Criminal Rules require service on a "defendant" within 30 days after "pronouncement of the order under appeal". [ 8 ] The Crown has applied, ex-parte , for two orders: (1) under Rule 6(4)(c), an order that the respondent be served with the second Notice of Appeal through the lawyer who represented the respondent at the trial, rather than personally; and (2) under Rule 6(25), an extension of time to serve the Notice of Appeal to 4:00 p.m. on Wednesday, March 13, 2019. [ 9 ] The Crown's application is necessitated by the fact that the respondent is a bulk-carrier ship ("The Marathassa") and cannot be served personally.

I am told that The Marathassa is not in Canadian waters: the Crown understands that The Marathassa is likely in Australia.

There is no indication when the ship will be returning to this jurisdiction. [ 10 ] For the purpose of the prosecution in Provincial Court, The Marathassa agreed to accept service of a summons on conditions that were reduced to writing: In consideration of your refraining from seizing or detaining [The Marathassa] in any way in relation to the Incident, we hereby undertake as follows: 1. to provide irrevocable instructions to Bernard LLP or other solicitors to accept service for the Vessel and/or her present owner of any Summons related to the Incident or any Notice of Violation related to the Incident respecting an administrative monetary penalty; and

2. to pay after final appeal an amount not exceeding Three Hundred Thousand Dollars ($300,000) for any fine or administrativemonetary penalty that may be imposed against the Vessel or her present owner in relation to the Incident. [Emphasis added.] [11] Service of a summons was perfected on this basis. The Marathassa was represented by counsel at trial and advanced a defence.

Through this representation, and its participation in the trial process, The Marathassa attorned to the jurisdiction of the Provincial Court. [12] As noted, when the Crown filed its Notice of Appeal from the directed verdict of acquittal, it provided a copy to the lawyer forThe Marathassa.

The lawyer initially objected to being served on grounds that the conditions of the "irrevocable undertaking" foracceptance of the summons as an initiating document, did not include any notice of appeal. [13] Instructions were then sought from The Marathassa and legal counsel for the ship subsequently advised the Crown that servicewould be accepted.

Again, a number of conditions were attached, including that the hearing of the appeal from the directed verdict notproceed before the end of 2018; the Crown comply with all transcript requirements set out in the Criminal Rules; and, service of theNotice of Appeal was to be viewed (or treated) as having taken place under the terms of the original undertaking. [14] The Crown agreed to these conditions; however, in its response, expressed its view that: … all appeals arising from [the] criminal trial should be heard together.

This would include any defence appeals and any further Crownappeals … [15] On February 7, 2019, the remaining counts against The Marathassa were dismissed. [16] Counsel for The Marathassa was advised on March 4, 2019 that the Crown would appeal those dismissals, in addition to thedirected verdict. The lawyer was asked if he would accept service of the second Notice of Appeal. The Crown was told that the requestwould be considered and instructions sought from The Marathassa. [17] The Crown filed its second Notice of Appeal on March 5, 2019.

A copy of the Notice of Appeal has been informally providedto counsel for The Marathassa. On March 6, the Crown was told that the lawyer has not received instructions on whether to acceptservice on behalf of The Marathassa. [18] The issue before me is whether I should grant the orders sought by the Crown. No one appeared on The Marathassa's behalf atthe ex parte application, although the Crown advised the respondent's lawyer that the application would be made. [19] On reviewing the materials filed by the Crown, I am of the view that the orders should be granted. [20] The Court has statutory jurisdiction to do so.

Under s. 482(1) of the Criminal Code, R.S.C. 1985, c. C-46, superior courts ofcriminal jurisdiction are empowered to make rules of court governing the prosecutions and appeals that fall within their jurisdiction. Pursuant to s. 815(1) of the Code, this includes rules specific to the manner in which notice of an appeal from a

summary convictionproceeding is provided to the other side, and the allowable period for filing and service. In R. v. Marton, 2016 ONCA 691, the authorityof superior courts to establish rules governing

summary conviction appeals was affirmed, including rules applicable to the manner inwhich service may be perfected. [21] The Criminal Rules of this Court, applicable to

summary conviction appeals, mandate personal service of a notice of appeal. However, the Rules also provide that where a notice of appeal cannot be served "on the defendant personally, the prosecutor may applyex parte to a judge of the appeal court for an order to serve the defendant in the manner that the appeal court directs": Rule 6(4)(c). [22] The Marathassa participated in the Provincial Court trial, put forward a defence to the charges against it, and was represented bylegal counsel.

It was obviously a "defendant" in the Court below, within the meaning of Rule 6(4)(c). [23] I am satisfied that personal service of the second Notice of Appeal on The Marathassa is not realistically available to theCrown. I understand the respondent is in Australia. An alternative to personal service has been shown as justified. Through no fault ofthe Crown, personal service cannot be achieved: R. v. Gruener (1979), (ON CA), 46 C.C.C. (2d) 88 (Ont. C.A.). [24] Legal counsel for The Marathassa agreed to accept service of a summons for the purpose of the Provincial Court proceedings.

Instructions were also obtained to accept service of the Notice of Appeal filed in respect of the directed verdict of acquittal. Consistentwith the approach already taken, I am satisfied it is appropriate for this Court to order that service of the second Notice of Appeal occurthe same way, by providing a copy of the Notice of Appeal to counsel who represented The Marathassa at the

summary conviction trial. [25] I understand that The Marathassa takes the position that the original undertaking to accept service of a summons does notextend to an appeal from dismissal initiated by the Crown, which The Marathassa presumably views as separate and distinct proceedings. [26] As I read the conditions of the undertaking, set out earlier, they explicitly contemplate the possibility of appeal proceedingsforming part of the process between the state and The Marathassa. I am told that the reference to a "final appeal" in the second conditionof the undertaking, from The Marathassa's perspective, includes only appeal(

s) filed by the respondent, not the Crown. [27] This limitation is not readily apparent from the face of the undertaking. It must have been known, at the time the undertakingwas formulated, delivered and accepted, that both sides to a

summary conviction proceeding have statutory rights of appeal. Had it beenintended that the words "final appeal" applied to only appeals filed by The Marathassa, I would have expected to see specific wording tothat effect. [28] In any event, at law,

summary conviction appeal proceedings do not constitute a new or originating process, divorced from thetrial. In R. v. Smith, 1999 BCCA 747, the Court of Appeal for British Columbia held that a notice of appeal is not an "originating

instrument". Rather, "[i]t is simply an extension of the trial process": at para. 19. In light of this principle, I consider a fair

interpretation of the undertaking entered into by The Marathassa to extend to service of the Crown's second Notice of Appeal, consistent with the approach taken when the Crown filed its first appeal from the directed verdict. [ 29 ] I am told that The Marathassa is no longer owned by the same person or entity that held ownership at the time the undertaking to accept service was provided. In my view, this makes no substantive difference to the issues before me.

The undertaking, which I have found applies to service of the second Notice of Appeal as authorized by the Criminal Rules , is "irrevocable". [ 30 ] Rule 6(25) of the Criminal Rules authorizes the Court to extend the time for serving a notice of appeal. [ 31 ] In R. v. Roberge , 2005 SCC 48 , the Supreme Court delineated a number of factors to guide the determination of whether an extension should be granted.

Applying those factors to the matter before me, I find: • the Crown has demonstrated a bona fide intention to appeal the counts that were dismissed on the merits by the Provincial Court; • it moved diligently in filing the second Notice of Appeal, making sure that counsel for the respondent was aware of the intention to do so; • there has been no delay in filing the Notice of Appeal; • the delay in service of the Notice of Appeal arises solely from the fact that The Marathassa cannot be served personally and, as such, the Crown must make an application for an alternate methodology; • the delay has been minimal; • granting an extension of time to serve will not prejudice The Marathassa.

The respondent has already accepted service of the Notice of Appeal from the directed verdict of acquittal and is moving toward a hearing on that matter. Counsel for The Marathassa was told by the Crown, at that time, that if additional appeals arose out of the Provincial Court proceedings, the Crown anticipated they would be heard together. A second Notice of Appeal, focussed on the subsequent dismissals, cannot have caught The Marathassa by surprise; and, • The Crown has articulable grounds of appeal to pursue.

It intends to challenge a Charter- based ruling made in the Court below; the subsequent s. 24(2) analysis conducted by the trial judge; and, it seeks to challenge the judge's determination on the exercise of due diligence by The Marathassa. Under s. 813(

b) of the Criminal Code , the Crown can appeal on grounds of fact, mixed fact and law, or law alone. [ 32 ] In all of the circumstances, I consider that the "justice of the case requires that an extension of time be granted": R. v. Roberge at p. 471. [ 33 ] I heard submissions on this application on March 11, 2019. I reserved judgment to allow sufficient time for me to review the Crown's materials.

I granted the Crown's application for an extension of time to 9:00 a.m. this morning, in light of the reserved judgment. [ 34 ] For the reasons provided, I hereby allow the Crown to serve its second Notice of Appeal on The Marathassa in the manner sought by counsel for the Public Prosecution Service of Canada. [ 35 ] To give the Crown sufficient time to perfect its service, I also allow a further extension of the time to serve until 4:00 p.m. on Wednesday, March 13, 2019. "DeWitt-Van Oosten J."