Omar v Alberta, 2024 ABKB 39

Court of King’s Bench of Alberta Citation: Omar v Alberta, 2024 ABKB 39 Date: 20240122 Docket: 230663387S1 Registry: Edmonton Between: Mohammed Ibrahim Omar Appellant - and - His Majesty the King Respondent _______________________________________________________ Reasons for Judgment of the Honourable Justice N. Whitling _______________________________________________________ Appeal from the Conviction by Commissioner M. Gallo Dated the 6 th day of April, 2023 Docket: A98655255R [ 1 ] This proceeding was commenced as an appeal from the Appellant’s conviction for the offence of speeding contrary to s. 115(2)(

p) of the Traffic Safety Act , SA c T-6. That conviction resulted from a guilty plea that was entered on the Appellant’s behalf by a person who purportedly acted as his agent. In support of this appeal, the Appellant has filed evidence to the effect that the agent had no instructions to enter a guilty plea on his behalf.

[ 2 ] In the Crown’s initial response to this appeal, I was invited to dismiss it on the basis of R v Grovet , 2020 ABQB 571 . In that case, Justice Richardson held that a person who has been convicted of a provincial offence as a result of “failing to dispute the charge or failing to appear at trial” will not be permitted to appeal to this court without first exhausting a set aside application to the Court of Justice pursuant to s. 38 of the Provincial Offences Procedures Act , SA c P-34 (“ POPA ”).

That provision reads as follows: 38(1) Where a defendant has an excuse for failing to dispute the charge or failing to appear in person or by agent at a trial, the defendant or the defendant’s agent may, if not more than 30 days have elapsed since the conviction first came to the attention of the defendant, file a written application with the Court, deemed to have been made under oath, and a justice on being satisfied by the written application that the defendant has established on a balance of probabilities that the defendant’s excuse is reasonable shall set aside the conviction and (

a) cause a notice of trial to be given to the defendant, or (

b) proceed in accordance with

section 35. [Emphasis added] [ 3 ] The Appellant acknowledges that no such set aside application was brought or determined in the present case. However, in reply to the Crown’s reliance upon Grovet , counsel for the Appellant advised that the current practice of the Court of Justice is to refuse to accept applications pursuant to s. 38 of the POPA where the conviction at issue was the product of a guilty plea. He was accorded an opportunity to submit evidence on this point, which he did. That evidence includes the following paragraph: 13.

On or about April 14, 2023, I contacted the Edmonton Court to find out what my options were and asked if I am able to complete what is called a set aside application, because I was not present for the guilty plea and it came to my attention only on April 13, 2023. I was told by court staff that I would have to attend the criminal counter to file a

summary conviction appeal as the matter was resolved with a guilty plea. The Court indicated that an application to set aside a conviction is not available for guilty plea[s] and that I would have to file a

summary conviction appeal. I do not have this in writing, as these communications were via telephone. [ 4 ] For the purposes of the present appeal only, Crown counsel has elected not to cross-examine the Appellant or to otherwise dispute the Appellant’s version of events respecting his practical inability to commence s. 38 proceedings in the Court of Justice before appealing to this court. [ 5 ] The net result of these circumstances is that the evidence before me indicates that the Appellant has been placed in an untenable Catch-22 situation.

He has been told by this Court in Grovet that he must bring a set aside application in the Court of Justice before appealing to this Court, and he has been told by the Court of Justice that he cannot bring a set aside application and must instead bring an appeal directly to this Court. [ 6 ] In an effort to achieve justice both in this case and in future cases, Crown counsel has very fairly proposed that I grant an order in the nature of mandamus directing the Court of Justice to hear and determine a set aside application pursuant to s. 38.

Upon further discussion regarding the potential procedural issues implicated by such an approach, Crown counsel indicated a willingness to consent to an order converting this proceeding into a judicial review application, and to waiving any limitation period that may be applicable to such a proceeding. Counsel for the Appellant expressed agreement with this approach. [ 7 ] I conclude that it is appropriate to grant the order agreed upon by the parties.

The clear implication of Justice Richardson’s reasons at paragraphs 1, 10 and 11 is that the words “failing to dispute the charge” in s. 38 of the POPA include a guilty plea. In other words, that provision includes a right on the part of a person who has pleaded guilty to apply to have the guilty plea set aside. Such applications are not to be commenced in this court under the guise of a

summary conviction appeal. [ 8 ] In light of the above I hereby order as follows: 1. This

summary conviction appeal is converted into an application for judicial review. 2. The Alberta Court of Justice is directed to accept for filing an application from Mr. Omar pursuant to s. 38 of the Provincial Offences Procedures Act , SA c P-34 to set aside his conviction provided that such an application is submitted for filing within 30 days of the date of these reasons, and to hear and determine that application in the ordinary course. Heard on the 16 th day of November, 2023. Dated at the City of Edmonton, Alberta this 22 nd day of January, 2024. N.J. Whitling J.C.K.B.A. Appearances:

Tanya J. Kelm for the Appellant Rayne Thompson for the Respondent