R. v. Otte, 2012 MBCA 88

Citation: R. v. Otte, 2012 MBCA 88 Date: 20120918 Docket: AR 12-30-07800 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) T. Otte HER MAJESTY THE QUEEN ) on his own behalf ) (Respondent) Respondent ) R. N. Malaviya ) for the Respondent - and - ) ) ) Chambers motion heard: TYRONE OTTE ) August 30, 2012 ) (Accused) (Appellant) Applicant ) Decision pronounced: ) September 18, 2012 MARC M. MONNIN J.A. 1 On January 17, 2008, after a trial in the Provincial Court, Mr. Otte was convicted of having care and control of a motor vehicle while having a blood alcohol concentration exceeding 80 mg of alcohol in 100 ml of blood.

On May 17, 2012, over four years later, he moved before the Court of Queen’s Bench seeking an extension of time to apply for leave to appeal the conviction. That request was denied. Mr. Otte now moves before this court for:

a) AN ORDER granting extension of time for applying for leave to appeal under s. 678 of the Criminal Code of Canada ;

b) AN ORDER granting leave to appeal from the decision of the Honourable Justice MccAley [ sic ], of the Court of Queen’s Bench, Winnipeg Centre, pronounced on the 17 th day of May, 2012 …. Effectively, for an order acquitting the accused of the charge, and returning the fine paid and the vehicle impound fee paid. 2 The motion for extension of time was originally set to be heard on September 13, 2012. What came on before me on August 30, 2012, was a notice of motion by Mr.

Otte requesting that the Crown Attorney at the trial before the Provincial Court be compelled to attend at the September 13, 2012 hearing and be cross-examined on what had transpired before the Provincial Court judge. When advised by me that whatever the Crown Attorney recalled was irrelevant as the transcript of what occurred before the Provincial Court judge was what a court on appeal would consider, Mr. Otte agreed to withdraw his motion. He then asked that the substantive motion to extend time and to be granted leave to appeal should proceed.

After Crown counsel considered her position, she agreed to argue the motion which then proceeded before me. 3 It should be noted that the only transcripts before me are of the proceedings in the Court of Queen’s Bench and no transcripts were ordered either at the Queen’s Bench or at this court with respect to the trial before the Provincial Court in 2008. I understand that costs are a factor. 4 Mr. Otte’ s position is that he was wrongfully convicted at trial because his counsel did not properly argue before that court that his car could not start.

He was of the view that he could not be convicted of being in care and control of a motor vehicle since it was a non-functioning vehicle. However, according to Mr. Otte’s affidavit filed on this application, an officer testified at trial that she was able to start the vehicle. 5 Before the Court of Queen’s Bench, Mr. Otte’s position was that he did not appeal the decision within the time allowed because of frustration with the legal system.

He explained to me that he had been involved in civil proceedings which had gone all the way to the Supreme Court of Canada and left him disillusioned with respect to the administration of justice in our province. 6 In denying Mr. Otte’s request to extend time, the Queen’s Bench judge concluded that four years was too long of a delay. In her view, there was “no justifiable basis upon which to grant an extension of time.”

7 The Court of Queen’s Bench is the

summary conviction appeal court in this province (see s. 812 of the CriminalCode). Being out of time to file a notice of appeal, Mr. Otte required an order from a judge of that court extending the time for him to doso. It is the decision of that court which is before me. 8 As noted by Hamilton J.A. in R. v. D.B.R., 2005 MBCA 21, an order to extend time is a discretionary order. Such adiscretionary decision is to be reviewed according to a highly deferential standard.

An appellate court is only justified in intervening ifthe motion judge has misdirected herself or if the decision is so clearly wrong as to amount to an injustice. (See Elsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367 at 1375). 9 The criteria by which a judge would normally consider an application for extension of time are:

a) was there a continuous intention to appeal from a time within the period when the appeal should have been commenced;

b) was there a reasonable explanation for delay; and

c) are there arguable grounds of appeal. See R. v. Mohammed (F.) (1989), (MB CA), 61 Man.R. (2d) 192 (C.A.), and D.B.R. 10 As well, as noted in R. v. Arganda (J.R.), 2011 MBCA 24 at para. 6, 262 Man.R. (2d) 244, the court retains thediscretion to relieve the applicant for failure to fulfill these requirements where “special circumstances so warrant” to prevent amiscarriage of justice. 11 Mr. Otte had his treating physician file a letter from him stating that he expressed to the latter that he had an intentionto appeal his conviction. The letter states that the reason for the delay was that Mr.

Otte was too upset with the previous miscarriage ofjustice with respect to his suit against the Winnipeg Sherriff’s Office to proceed with the appeal of the decision of the Provincial Court. 12 While the letter is not in the affidavit format which this court usually accepts on such motions, I will consider it for thepurposes of this motion. 13 My review of the proceedings before Justice McCawley, including submissions of Mr.

Otte and of counsel, as well asher brief reasons, suggest that she based her decision primarily on the second criteria which I have outlined above, namely, that there wasno reasonable explanation for the delay. She did not find that Mr. Otte’s disillusionment with the administration of justice was asufficient reason to explain a four-year delay. 14 I cannot conclude that she misdirected herself by that ruling. Accepting, for the purpose of this motion, that Mr.

Ottedid have an intention to appeal, I am also of the view that his displeasure with our judicial system is not a reasonable explanation for thedelay. 15 Furthermore, Mr. Otte was unable to satisfy me that he has a fairly arguable case or that the denial of leave will lead toa miscarriage of justice. Those two conclusions are interrelated. In my view, a decision by the trial court that the vehicle was capable ofbeing driven, a finding challenged by Mr. Otte, is a factual one. On appeal of a finding of fact, Mr.

Otte will have to convince thesummary conviction appeal court that the Provincial Court judge made a palpable and overriding error by preferring the evidence of thepolice officer over his. He has not presented any evidence which would allow him to do so. At best, he has his recollection that thevehicle was incapable of being driven. He has not provided either the Court of Queen’s Bench or this court with any other evidence.

Therefore, I fail to see how he would be able to meet the third criteria. 16 Given that his appeal has little, if any, chance of success, I do not find that denial of this motion would result in amiscarriage of justice. 17 Accordingly, I find no reason to set aside the decision of the Queen’s Bench judge denying the extension of time forfiling an appeal nor granting leave to the applicant to appeal to this court that decision. 18 The application is dismissed. J.A.