R. v. Crockwell, 2014 NLCA 49

Date: 201412 02 Docket: 1 3/16 Citation: R. v. Crockwell , 2014 NLCA 49 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: LEO CROCKWELL APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Green C.J.N.L. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201101G3917 (2013 NLTD(G) 23) Application Heard: December 2, 2014 Judgment Rendered: December 2, 2014 Memorandum of Disposition Filed: December 10, 2014 Counsel for the Appellant: Self Represented Not Appearing Counsel for the Respondent: Vikas Khaldahar Counsel for the Attorney General: David Rodgers MEMORANDUM OF DISPOSITION

Green C.J.N.L.: [ 1 ] At a hearing held on December 2, 2014 the appellant’s application for appointment of counsel under s. 684 of the Criminal Code was dismissed and his notice of appeal was struck out. [ 2 ] Leo Crockwell was convicted, following trial by judge and jury, of assault with a weapon, use of a firearm while committing an indictable offence, use of a firearm in a careless manner, mischief, and intentionally discharging a firearm while being reckless as to the life or safety of another person. He was sentenced to a total of four years for all offences, less time served: R. v.

Crockwell , 2013 NLTD(G) 23, 333 Nfld. & P.E.I.R. 55 . On subsequent application, a judge of the Trial Division declared that Mr. Crockwell’s statutory remission time had to be recalculated: Crockwell v. Gambin & Rogerson (December 19 2013), St. John’s 201301G5482 (NLTD). As a result, he was released from prison on December 20, 2013. Procedural History [ 3 ] Mr. Crockwell appealed both conviction and sentence by notice of appeal filed on March 11, 2013. He was not represented by counsel at that time. He was provided with information as to the procedure to be followed with respect to processing his appeal.

He applied for legal aid but his application was denied. In accordance with rule 11(4)(

a) of the Supreme Court of Newfoundland and Labrador – Court of Appeal Criminal Appeal Rules , SI/2002-96 ( Criminal Appeal Rules ) the Crown prepared and filed the Appeal Book on June 7, 2013 and the transcript of the trial evidence on November 1, 2013. Mr. Crockwell did nothing thereafter to advance his appeal. [ 4 ] The Crown filed an application on January 23, 2014 to have a date set for Mr. Crockwell to file his factum. On February 7, 2014 I extended the filing deadline to June 1, 2014. Mr. Crockwell raised the question of arranging for legal counsel.

I told him he could obtain information from the Court Registry about how to make an application under s. 684 of the Criminal Code and that if he intended to do so, he should do it quickly. [ 5 ] Subsequently, on May 8, 2014, about three-and-a-half weeks before the rescheduled factum filing deadline, Mr. Crockwell filed an application in which he requested that the Court assign counsel. The Court notified the Attorney General of the existence of the application. On May 9, 2014 the Court acknowledged receipt of the application and referred Mr.

Crockwell to past case law in this Court which discussed the test to be applied in determining whether counsel should be appointed. The Deputy Registrar invited Mr. Crockwell to make any submissions in writing with copy to the Crown. [ 6 ] Mr. Crockwell made no further submissions to the Court nor did he request the Court to set the application down for hearing. Because of inaction on Mr. Crockwell’s part, I gave instructions to the Deputy Registrar to set a hearing date for October 21, 2014 to address the counsel issue. He was served with a written notice to that effect by Canada Post.

The tracking response filed with the Court indicated that the package was “successfully delivered.” Following that delivery, however, Mr. Crockwell became increasingly argumentative, uncommunicative and demonstrated avoidance behaviour whenever attempts were made to contact him. [ 7 ] Prior to the hearing date, the Deputy Registrar managed to contact Mr. Crockwell by telephone to determine his intentions. He indicated he did not want to appear in person because he feared arrest in connection with warrants relating to other matters. He was told he could appear by teleconference.

He nevertheless indicated that he did not want “anything set up”. He was told that the matter would be called on October 21 st and he could not unilaterally stop it. On October 14, 2014 Mr. Crockwell telephoned the Court to acknowledge receipt of the documents sent by the Court giving notice of the October 21 st hearing but said that he was returning them to the Court. Counsel for the Attorney General prepared a brief of argument in opposition to the appointment of counsel and tried to have it served on Mr. Crockwell but was unsuccessful.

He did, however, have the brief, in a bag, tied to the front door of the residence, the address for which Mr. Crockwell had given the Court for service. [ 8 ] The matter was called on October 21, 2014. Mr. Crockwell did not appear, nor could he be reached by telephone. I issued an order enlarging the matter to November 4, 2014 to give Mr. Crockwell a further chance to respond. I also directed the Attorney General to give notice to Mr. Crockwell of the request to have Mr.

Crockwell’s application for counsel dismissed and that if he did not appear in person or by teleconference on November 4, 2014 the application would be heard in his absence and possibly dismissed. I also directed that the Attorney General’s brief be delivered to Mr. Crockwell again. Service was to be effected by delivery by courier to Mr. Crockwell’s service address and affixed to the front door if there was no one there to receive it, and, as well, to be sent by ordinary mail to his service address. [ 9 ] When the courier attempted to deliver the materials to Mr.

Crockwell’s address, he was met at the door by someone other than Mr. Crockwell who refused to accept the materials and would not indicate Mr. Crockwell’s whereabouts. The materials were also sent by ordinary mail to the post office address Mr. Crockwell gave the court as his address for service, but the mail was not picked up by him. [ 10 ] The matter was called in front of Barry J.A. on November 4, 2014. Mr. Crockwell again did not appear. On that date, the Crown also filed an application to dismiss Mr. Crockwell’s appeal for want of prosecution.

Barry J.A. ordered that the matter be enlarged to December 2, 2014 and notice of the new hearing date be given to Mr. Crockwell with the admonition that Mr. Crockwell’s application for appointment of counsel would be finally decided and that the Crown’s application for dismissal of the appeal would also be heard. Service was to be effected by registered mail, ordinary mail and by telephone. [ 11 ] The materials sent to Mr.

Crockwell included a letter from the Deputy Registrar reminding him that: As outlined in a letter sent to your attention from this Court on October 21 st , 2014, the rules of court require that you must provide an address and other contact information to the Court so that you can be advised of matters affecting your case. If that information is not kept up to date, you run the risk that matters will proceed in court without your knowledge and to your prejudice. It is not in your interest

to ignore attempts by the court to contact you because decisions can be made in your absence. [ 12 ] Counsel for the Crown subsequently filed an affidavit deposing to the fact that the materials sent to Mr. Crockwell by Priority Post had been returned with the notation that they had been “refused by addressee”. Counsel for the Attorney General also deposed that following the hearing in front of Barry J.A. on November 4, 2014, he had two telephone conversations with a person who identified himself as Leo Crockwell. Counsel deposed that although Mr.

Crockwell was angry when he heard that counsel was representing the Attorney General, he “appeared to understand” when he was told about the request to dismiss his application for counsel and in fact referenced the brief of law that counsel had filed, thus confirming that he had received and was aware of it. When counsel told Mr. Crockwell that the hearing would be heard on December 2, 2014 he became angry again and said “nothing is going to be [expletive deleted] decided on December 2 nd ” before hanging up.

Although he did not expressly say so in his affidavit, counsel for the Attorney General also confirmed in court on December 2, 2014 that in his conversation with Mr. Crockwell, he also told him that the Crown’s application for dismissal of the appeal would be dealt with. I accept his assertion in that regard as an officer of the court. [ 13 ] When the matter came before me on December 2, 2014, Mr. Crockwell did not appear. I directed that the Deputy Registrar attempt to contact him by telephone in the courtroom.

The call was unanswered but an answering machine indicated that the number was Leo Crockwell’s. [ 14 ] Counsel for the Attorney General and counsel for the Crown (for the Director of Public Prosecutions) requested that the matters nevertheless be dealt with. I acceded to that request. Application for Appointment of Counsel [ 15 ] I was satisfied that Mr. Crockwell was aware that his application for appointment of counsel was scheduled to be heard and dealt with on the December 2 nd hearing date. He was given the option of appearing by telephone if he did not wish to appear in person. He chose neither.

It is obvious from his utterances on the telephone to the Deputy Registrar and to counsel for the Attorney General that he was aware that he was in jeopardy of having the matter dealt with if he did not participate. Further, it is clear that he has attempted to avoid legal process and, for whatever reason, has decided that he would attempt unilaterally to frustrate any attempt to proceed with the application. [ 16 ] It would be open to the Court to dismiss Mr.

Crockwell’s application for counsel on the basis that he did not proceed with the presentation of his application, by filing argument or by appearing, when called upon to do so. However, inasmuch as the basis of his argument can be gleaned from material initially filed with his original application, the better approach is to consider the application on its merits on the basis of what is already before the Court. [ 17 ]

Section 684 of the Criminal Code allows a judge of this Court to assign counsel to act on behalf of an appellant where it “appears desirable in the interests of justice” that the appellant have legal assistance and where it appears the appellant has not sufficient means to obtain that assistance. [ 18 ] Generally, there are four considerations to be addressed in the exercise of the discretion conferred by

section 684 : (

i) does the applicant have the means to engage legal counsel on his appeal; (ii) if not, will legal Aid provide legal counsel; (iii) are there serious (not frivolous) issues to be dealt with on the appeal; and (iv) will the appellant be able adequately to present his case and will the Court be able properly to decide the case without the assistance of counsel. See R. v. Ryan, 2008 NLCA 42 , 277 Nfld. & P.E.I.R. 167; R. v. Ikkusek , 2009 NLCA 39 , 287 Nfld. & P.E.I.R. 73; R. v.

Marshall, 2011 NLCA 26 . [ 19 ] In this case, it is accepted that the first two factors (lack of financial means and unwillingness of legal aid to assist) have been satisfied. Even if it can be said there are serious issues to be dealt with on the appeal, in my view the application fails on the application of the fourth factor. It is apparent from the contents of Mr. Crockwell’s application which included the material he submitted to the Legal Aid Commission by way of appeal from a denial of legal aid, that Mr.

Crockwell is a reasonably articulate individual who is capable of presenting his thoughts, ideas and arguments clearly in writing in a focused manner. In his appeal submission to the Legal Aid Commission, he clearly identified specific errors that he felt were made at his trial. He understands the arguments he plans to make on his appeal.

Furthermore, in his one appearance in Court before me on February 7, 2014, he presented as well-spoken and possessed of a level of intelligence necessary to enable him express himself in a clear manner. [ 20 ] It is also apparent from the material already filed by him that his disagreement with the trial decision is based primarily on his belief that the trial judge improperly charged the jury with respect to one specific matter and that the trial judge improperly admitted into evidence certain information about his prior detention in the Waterford hospital.

These discrete issues are ones that, having been isolated and identified by Mr. Crockwell, this Court can deal with adequately without the assistance of counsel. [ 21 ] Accordingly, I am satisfied, on the material presently before the Court, that Mr. Crockwell does not need the assistance of counsel to present his case, nor is counsel necessary to enable the Court properly to decide the appeal. In the words of Ikkusek at paragraph 9 , “a fair and just result is still likely to be obtainable” if Mr. Crockwell is not represented by counsel.

Application to dismiss for want of prosecution [ 22 ] Rules 10 and 17 of the Criminal Appeal Rules provides in pertinent part: 10.

(2) Where a party to an appeal or counsel fails to perfect the appeal within a period of 6 months after the filing of the transcript or, where no transcript is filed, within a period of 12 months after the filing of the notice of appeal, or a party of their counsel otherwise fails to comply with these Rules, the court, on application of any other party to the appeal or of its own motion, on giving to the parties such notice, if any, as the Registrar is able to effect, or without notice if reasonable notice cannot be effected, may (

a) strike out the appeal; (

b) direct the appellant to perfect the appeal within a specified time;

… 17.(1) … within 60 days after being notified that the evidence has been transcribed, or if no evidence is to be transcribed, within 60 days after the filing of the notice of appeal, an appellant shall (

a) serve on each party … (ii) a copy of the appellant’s factum, if one is required [ 23 ] The transcript was filed on November 1, 2013. It has therefore been over one year since the notice of appeal was filed. On February 7, 2013, Mr. Crockwell had been ordered to proceed to perfection of his appeal by filing his factum by June 1, 2014. He did not do so.

He has not complied with rule 17(1) or the order of February 7, 2014 and the authority to strike is engaged under rule 10(2) because 6 months has elapsed after the filing of the transcript. [ 24 ] He did, however, file an application for appointment of counsel a little more than three weeks before the deadline which, as previously indicated, he did not proceed with. There is no apparent justification for the delinquency in failing to take the steps necessary to perfect the appeal or in proceeding with the application for appointment of counsel. [ 25 ] In R. v.

Mercer , 2005 NLCA 10 , 245 Nfld. & P.E.I.R. 50 a case of a Crown appeal, Roberts J.A. writing for the Court, said this regarding an argument that an appeal should be struck out on the basis of non-compliance with the Criminal Appeal Rules by not perfecting the appeal within the stipulated time limits: [65] … the bona fide intention of the Crown to proceed with the appeal was never in issue. Nor is the appeal frivolous. [66] … In the case of criminal appeals, apart from those filed prior to January 1, 2000, there is no provision for deemed abandonment.

Nevertheless, the Court can, on its own motion or on an application by an opposing party, pursuant to rule 10(2) of the Criminal Appeal Rules , take steps to move the appeal forward, or even to strike the appeal, six months after the filing of the transcript or twelve months after the filing of the Notice of Appeal if there is no transcript. Furthermore, an opposing party can apply to the Court for relief or directions whenever the rules are not being complied with.

In other words, if the respondents here had applied anytime after sixty days from the filing of the transcript asking the Court to set a date for the filing of the Crown’s appeal book and factum, barring very cogent reasons for further a delay, the Court would have directed the Crown to perfect its appeal within a specified time.

Such applications are not unusual. [67] This Court, however, is never likely to strike an otherwise bona fide appeal because of a relatively minor non-compliance with the rules. … [O]nly in cases where there is an egregious failure to comply with the rules will the court deprive an appellant of his or her right to be heard. … [ 26 ] In this case, there is no indication of any bona fide intention on the part of Mr. Crockwell to proceed with his appeal. On the contrary, there is every indication that he wishes to avoid dealing with the Court or to engage the processes necessary to bring the appeal to a conclusion.

He has given no explanation as to why he has not moved forward and he has made no request for any further extension of time. In fact, this is one of those cases mentioned in Mercer where the respondent had already applied to the Court to set a date for the filing of the appellant’s factum, which the Court did, effectively giving Mr. Crockwell a further four months to act. He did not do so, nor did he provide any explanation or request for a further indulgence. I am satisfied that Mr. Crockwell is attempting, for his own reasons, to frustrate the appeal process.

This is apparent from his attempts to avoid service of process and his refusal to accept material sent to him. Under the circumstances, Mr. Crockwell’s non-compliance is not merely minor. It can be characterized as egregious within the meaning of Mercer . Furthermore, based on the events as they have unfolded to date, there is nothing to indicate that the appeal will ever be brought to a conclusion if it is left to Mr. Crockwell to move forward.

In these circumstances, it is right and proper for the Crown to have brought the application it did. [ 27 ] Crown counsel has also submitted that the appeal in this case is frivolous. Clearly, the stronger the potential merits of an appeal, the greater will be the reluctance of the Court to strike it out for non-compliance. Nevertheless, in an egregious case of non-compliance, especially where the appellant appears to want to frustrate the process and effectively work against the spirit and intent of the rules – as is the case here – even a case that cannot be characterized as frivolous can be struck out.

In this case, it is not necessary to engage in a detailed analysis of the strength of the appeal. It is sufficient to say that given the nature of the appeal points that have been identified to date and the submissions by the Crown with respect to them, as to how they were dealt with at trial and the explanations as to why they may not be meritorious, I am not satisfied that the grounds of appeal are sufficiently strong to justify not striking out the appeal. [ 28 ] I am satisfied that Mr.

Crockwell knew enough of what was scheduled for December 2 nd so that he could appreciate his appeal rights would be in jeopardy if he did not respond. In any event, even if there were some concern as to the degree of knowledge of the details of the Crown’s application which Mr. Crockwell may have had, I note that rule 10(1) only requires “such notice, if any, as the Registrar is able to effect” and that the Court may proceed even “without notice if reasonable notice cannot be effected.” That fits the circumstances here. I am satisfied that reasonable efforts were made to provide full notice to Mr.

Crockwell of the Crown’s application. To the extent that Mr. Crockwell may not have received, accepted or read the material that was sent to him, I find as a fact that, because of his intransigence and unwillingness to receive such material, reasonable notice could not be effected. [ 29 ] Accordingly, I concluded that this was a case where the notice of appeal should be struck out. I note that the Crown asked that the appeal be “dismissed”. I would use, instead, the words “strike out” for two reasons. First, that is the terminology in rule 10(2).

Secondly, the notion of dismissal implies a determination of the appeal on its merits, whereas a striking out can occur, as in this case, for a broader variety of reasons based on rule non-compliance, thereby leaving open the theoretical possibility that the appeal could be reinstated on proper grounds. [ 30 ] For the foregoing reasons, I dismissed Mr. Crockwell’s application for counsel under s. 684 of the Criminal Code and acceded

to the Crown’s application by striking out the notice of appeal. J. D. Green C.J.N.L.