R v Van Wissen, 2016 MBCA 108

Citation: R v Van Wissen, 2016 MBCA 108 Date: 20161121 Docket: AR16-30-08579 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) M. D. Glazer ) for the Appellant Respondent ) ) J. M. Mann ) for the Respondent - and - ) ) Chambers motion heard: ) November 17, 2016 SCHUYLER FRANCIS VAN WISSEN ) ) Decision pronounced: (Accused) Appellant ) November 21, 2016 CHARTIER CJM [ 1 ] The accused is appealing his conviction for first degree murder. He seeks to increase the length of his factum from the upper limit of 30 pages to 60 pages.

The only supporting material for his motion is an affidavit filed by the assistant to the accused’s counsel. Counsel for the accused did not file a motion brief, nor did he file a draft factum. [ 2 ] An appellate court has the inherent authority to control its own process. Practice directives are a well-known process by which courts regulate and control their procedures and practices. One such directive was issued in July of 2003 and dealt with, inter alia , the preparation of material for the court.

With respect to the length of factums, Guideline 3.5 of the Manitoba, Court of Appeal Practice Guidelines , (July 2003), online: <www.manitobacourts.mb.ca/site/assets/files/1139/practice_guidelines.pdf> states: “The Court reserves the right to reject factums of excessive length. Any factum exceeding 30 pages is subject to review.

If rejected, a more concise factum must be filed on a timely basis.” [ 3 ] Moreover, r 29(3) of the Manitoba, Court of Appeal Rules , Man Reg 555/88R states: A judge may, without a hearing, reject a factum on the grounds of excessive length and may give directions regarding the maximum length, in which case the factum shall be redone and refiled within the next 10 days. [ 4 ] When our rules and practice directives are read together, it is clear that a factum longer than 30 pages is subject to review and, if rejected, it is to be redone and refiled within the next 10 days.

What is also clear from the above is that a draft factum should have been filed with this motion. How can a judge “review” or “reject” a factum if it does not exist? As was stated by Groberman JA in Sga’nisim Sim’augit (Chief Mountain) et al v Canada (Attorney General) et al , 2012 BCCA 69 , 317 BCAC 50 : “The provision of such a document is of considerable assistance to the court in evaluating whether a lengthy factum should be allowed, and, if so, what length is appropriate” (at para 5).

For this reason, counsel are typically expected to file a draft factum with their motion. [ 5 ] Four reasons motivate the accused’s request for a lengthier factum: 1) there are 24 grounds of appeal; 2) there are 16 volumes of transcripts; 3) there is a 32-page decision from the judge in first instance; and 4) there is a 357-page appeal book. There is nothing remarkable about reasons 2 to 4. In fact, they are typical in murder conviction appeals. What is also typical is that the 30-page limit is respected even in more complex cases such as murder appeals.

Indeed, and as was stated in Chief Mountain , the 30-page upper limit was established for the more complex cases (at paras 6-7): As a general rule, the 30-page limit for a factum provides adequate space in which counsel can set out the facts relevant to the appeal, describe the errors that they allege were made by the court or tribunal appealed from, outline the arguments that they will present and set

out the remedies that they seek on appeal. The 30-page limit has been set with a view to reasonably complex cases – simpler cases canoften be dealt with adequately in much shorter factums. While, in a difficult case, the 30-page limit requires counsel to focus their arguments and write concisely, it has proven adequate for mostcases.

The court discourages the filing of factums that are verbose or which deal with matters in too fine a detail or with matters that arenot pertinent to the appeal [6] In Chief Mountain, Groberman JA noted that the legal argument was fairly complex and broad-ranging given theappellants’ basic premise that the Nisga’a final agreement was inconsistent with the Constitution Act, 1867, in that it created a third orderof government not contemplated by the constitution. Nonetheless, he concluded that a lengthy factum was not necessary.

He noted thatthe 30-page upper limit forced appellate counsel to focus their arguments when dealing with difficult appeals and that the Court wouldcontinue to discourage verbose factums. [7] The principles set out in Chief Mountain align with R v Henderson (WE), 2012 MBCA 93, 284 ManR (2d) 164, anappeal where counsel raised 23 grounds of appeal and where this Court sought to dissuade the use of “a shotgun approach to appellateadvocacy” (at para 51), and encouraged counsel to “focus on those issues which have real substance” (ibid).

As I wrote in Henderson (atpara 50): Courts expect counsel to be of assistance in the appellate process. They expect counsel not to waste the court’s valuable resources bysimply dumping the appeal on the court’s lap. Counsel are expected to have sufficient confidence to prioritize their arguments, toseparate the wheat from the chaff and to provide fully developed arguments on what should be the real points for appellate review.

Notonly is this in the best interests of their clients; it is in the best interests of the administration of justice. [8] The accused advised that he now intends to argue only 20 grounds of appeal. Whether it is 24 or 20, there is no basisto conclude that raising so many grounds will be helpful. Moreover, it is highly unusual. A quick analysis of shows that, in thelast three years, our Court has pronounced itself on 20 murder conviction appeals. Ten were first degree murder appeals and ten weresecond degree. The average number of grounds was 3.4 for first degree murders and 3.3 grounds for second degree.

As the data shows,the number of issues raised in this appeal is excessive. One of an appellate court’s roles is to correct error within standard of reviewconstraints. It is not an opportunity to simply reargue all unfavorable decisions in first instance and hope for a different result. [9] While there may be exceptional cases which warrant an increase in the length of the factum, I have not beenpersuaded that this appeal is one of them.

In the end, the inescapable conclusion I reach is that the accused’s request to double the sizeof his factum arises essentially because of the unfocussed nature of his appeal, as evidenced by the 20 grounds he raises.

That factcannot and is not, in and of itself, reason to grant the motion. [10] In the end, the accused has a choice: focus his arguments on those issues which have the best chance to succeedon appellate review, or be left with less expansive arguments which deprive the Court of the benefit of a more comprehensive argumenton the most significant issues. [11] For these above reasons, the motion is denied. CJM