R. v. Mercier, 2011 NSCA 58

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Mercier, 2011 NSCA 58 Date: 20110609 Docket: CAC 334444 Registry: Halifax Between: Roger Edouard Mercier Applicant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Peter M. S. Bryson Motion Heard: May 5, 2011, in Chambers Held: Motion for extension of time under Rule 90.37(12)(

h) is dismissed. Counsel: Applicant in person Mark Scott, for the respondent Decision : [ 1 ] In 2005 Roger Edouard Mercier was charged with touching a young person under the age of 14, contrary to s. 151 of the Criminal Code , and with committing a sexual assault on the same complainant in contravention of s. 271(1)(

a) of the Code . The Crown proceeded summarily and Mr. Mercier was convicted of the sexual assault in August 2007. The s. 151 charge was stayed. He appealed his conviction to the

summary conviction appeal court (SCAC) which dismissed his appeal. Mr. Mercier was not able to file a notice of appeal in time, and eventually he moved before a judge of this Court for an extension of time to file his application for leave to appeal and his proposed notice of appeal.

[ 2 ] In a lengthy and carefully considered decision issued on January 19, 2011, the Honourable Justice Duncan R. Beveridge dismissed Mr. Mercier’s motion, ( 2011 NSCA 8 ). Justice Beveridge’s decision provides a useful history of proceedings which requires no repetition here. [ 3 ] Mr. Mercier wished to challenge Justice Beveridge’s dismissal of his motion. At first he pursued leave to appeal to the Supreme Court of Canada.

Eventually, he learned that the Nova Scotia Civil Procedure Rules (Rules) provide that the Chief Justice can grant leave to have a panel of the court review the order of a single judge in Chambers. Again, however, Mr. Mercier was late pursuing the motion for leave to review, although I am satisfied it was through no fault of his own. Since he was out of time, Mr. Mercier brought a motion in Chambers for leave to extend time to have his motion for leave to review heard by the Chief Justice. Mr.

Mercier’s written and oral arguments were largely directed to alleged shortcomings in the decision of Justice Beveridge, although the trial judge and SCAC did not escape his censure. For its part, the Crown opposed Mr. Mercier’s motion for leave on two broad grounds; firstly, the Crown argued that the Court of Appeal has no jurisdiction to review the decision of Justice Beveridge; and secondly, Mr. Mercier’s proposed grounds of appeal lack merit. [ 4 ] For convenience, I will address the motion under the following categories: 1. Procedure; 2. Jurisdiction of the Court of Appeal; 3.

The test to be applied for leave to extend time in these circumstances; 4. Application of the test in this case. 1. Procedure [ 5 ] Under the Rules, an order of a single judge of the Court of Appeal in Chambers is final, subject only to review under Rule 90.38. Relevant provisions of that Rule are: Review of order of judge 90.38 . . .

(2) An order of a judge of the Court of Appeal in chambers is a final order of the Court of Appeal, subject only to review under this Rule 90.38.

(3) An order of a judge in chambers that disposes of an appeal may be reviewed by a panel of the Court of Appeal, with leave of the Chief Justice.

(4) A party who requests leave to review an order of a judge must file a notice of motion for leave to review with the Chief Justice and deliver the notice to the other parties to the appeal, no more than seven days after the date of the order to be reviewed.

(5) A party who opposes a motion for leave to review must file with the Chief Justice, and deliver to the other parties, a reply no more than seven days after the date of the filing of the motion for leave to review.

(6) The Chief Justice may do any of the following on a motion for leave to review: (

a) dismiss the motion for leave to review; (

b) set the motion down for hearing; (

c) grant leave to review the order of the judge in chambers if the Chief Justice is satisfied that the judge acted without authority under the rules, or the order is inconsistent with an earlier decision of a judge in chambers or the Court of Appeal, or that a hearing by a panel is necessary to prevent an injustice. . . .

(10) An order granting leave to appeal under this Rule 90.38 is a final order of the Court of Appeal and is not subject to further review. [ 6 ] Rule 90 applies to civil appeals. Rule 91 applies to criminal appeals. But Rule 91 incorporates the Rules to the extent that they are not inconsistent with Rule 91: 91.02

(1) This Rule is made under subsections 482(1) and (3) of the Code.

(2) The Civil Procedure Rules as a whole and in particular Rule 90 apply to this Rule with any necessary modifications and when not inconsistent with this Rule.

(3) The procedures in Rule 90 for motions made to a judge of the Court of Appeal and to the Court of Appeal apply to motions made under this Rule. [ 7 ] In this case, Justice Beveridge’s decision disposed of Mr. Mercier’s appeal because he declined to extend the time for Mr. Mercier to seek leave of the full Court and, if granted, have the Court consider the merits of his appeal. Accordingly, the process of review of a Chambers judge’s decision under Rule 90.38(1) was potentially available to Mr. Mercier. [ 8 ] For reasons discussed further below, Mr.

Mercier did not pursue a motion for leave to review Justice Beveridge’s order within seven days, as required by Rule 90.39(4). But Rule 90.37(12)(

h) permits a motion to a Chambers judge of the Court of Appeal to extend time where a time prescribed by Rule 90 has been missed: 90.37

(12) A judge of the Court of Appeal hearing a motion, in addition to any other powers, may order any of the following: . . . (

h) that any time prescribed by this Rule 90 be extended or abridged before or after the expiration thereof.

[9] The combined effect of Rule 90.38 and 90.37(12)(

h) is neatly summarized by Justice Fichaud in Luke v. Luke, 2009 NSCA23, at para. 14: [14] Once a chambers judge dismisses an appeal after a Registrar's motion, the appellant is left with the process in Rule 90.38. Rule90.38(2) says that the chambers judge's order is "a final order of the Court of Appeal, subject only to review under this Rule 90.38". Rule90.38's predecessor, the former Rule 62.36, formalized the inherent process that Justice Bateman discussed in Hoffman v. Lamb, 2003NSCA 101.

Under Rule 90.38(4) the applicant must file with the Chief Justice of the Court of Appeal and serve the other parties with anotice of motion for leave to review. The notice must be filed and served "no more than seven days after the date of the order to bereviewed". The order to be reviewed is the January 24, 2008 dismissal of Ms. Luke's 2007 appeal. So Ms. Luke's time has expired andshe must apply for an extension of the seven days under Rule 90.37(12)(h). 2.

Jurisdiction [10] The Crown argues that courts of appeal are creatures of statute and their jurisdiction is derived from the statutes and rules ofprocedure which are subordinate statutory law. Moreover, those rules cannot be inconsistent with the statute that authorizes theircreation. [11] In this case, the Crown says that the Criminal Code does not allow for appeal or review of the Chambers judge’s decisiondismissing a motion to extend time to file an appeal. To the extent that the Civil Procedure Rules can be construed to permit this, theyare ultra vires the Criminal Code. The Crown refers to R. v.

Butchko., 2004 SKCA 159 at paras. 11 to 13; R. v. Miller, 2000 BCCA 329at paras. 30 to 36; R. v. Moolla, 2008 SKCA 143 at para. 5; R. v. Giesbrecht, 2008 MBCA 102 at paras. 9 to 24, 34 to 38; R. v. Harness,2005 ABCA 245 at paras. 8 to 32; R. v. O’Malley, (BC CA), [1997] B.C.J. No. 2048 (C.A.) at paras. 7 to 17; and R. v.Melanson, [2006] N.B.J. No. 360 (C.A. in Chambers) at para. 2. [12] To summarize the Crown’s position, it says that s. 678(2) of the Code permits the Court of Appeal or a judge thereof to extendtime but not both.

The jurisdiction is concurrent; so that if a single judge exercises jurisdiction, the full court is precluded from doing soand certainly cannot sit in “appeal” of the Chambers judge’s decision. [13] The Supreme Court of Canada has emphasized the limited and statutory jurisdiction to entertain appeals. In Kourtessis v.M.N.R., (SCC), [1993] 2 S.C.R. 53, Justice La Forest, speaking for the court, said this at p. 69: Appeals are solely creatures of statute; see R. v. Meltzer, (SCC), [1989] 1 S.C.R. 1764, at p. 1773. There is no inherentjurisdiction in any appeal court.

Nowadays, however, this basic proposition tends at times to be forgotten. Appeals to appellate courtsand to the Supreme Court of Canada have become so established and routine that there is a widespread expectation that there must besome way to appeal the decision of a court of first instance. But it remains true that there is no right of appeal on any matter unlessprovided for by the relevant legislature. [14] Justice La Forest went on to explain why provincial civil procedure should not, generally speaking, be mixed with criminalprocedure (p. 80-82).

The admixture of provincial civil procedure with criminal procedure could, I fear, result in an unpredictable mish-mash where, inapplying federal procedural law, one would forever be looking over one's shoulder to see what procedure the provinces have adopted(and this may differ from province to province) to see if there was something there that one judge or another would like to add if he orshe found the federal law inadequate.

And I see no reason in principle why appeals could not be read in for other interlocutoryproceedings, or indeed why other provincial rules of procedure might not be adopted, as was attempted in Lafleur. That, barring federaladoption, is in my view constitutionally unacceptable. It is certainly impractical. In dealing with procedure, and particularly criminalprocedure, it is important to know what one should do next.

That is why, no doubt, Parliament adopted a comprehensive procedure underthe Criminal Code, and that is why it adopted that procedure for the enforcement of penal provisions in other statutes, including theIncome Tax Act. . . . ...More recently, McIntyre J. in Meltzer, supra, at pp. 1769-70, made it clear (citing with approval a passage from Laycraft C.J.A. in R. v.Cass (1985), 1985 ABCA 128 , 71 A.R. 248) that a provincial statute or rule of court relating to civil matters that purported togovern an appeal from a criminal law matter would be ultra vires.

Nor are Canadian courts alone in resisting an admixture of civil and criminal procedure. The British courts have done the same, a factthat is all the more significant because Great Britain is a unitary state and because criminal procedure in that country is in no way limitedto situations that would in Canada be considered criminal for constitutional purposes (the British approach is amply discussed inStorgoff). The practical considerations to which I have referred earlier underlie this approach. [15] But the broad statements from Kourtessis have not always been applied, particularly by this Court. In R. v.

Keating (1991), (NS CA), 106 N.S.R. (2d) 63, in R. v. Dempsey (1995), 1995 NSCA 68 , 138 N.S.R. (2d) 110 and R. v.Wood, 1999 NSCA 124, and R. v. MacIntosh, 2008 NSCA 73, our Court or judges of our Court have applied sections of the CriminalCode (specifically ss. 683(3) and 482 and their predecessors) together with the Civil Procedure Rules to extend jurisdiction to stayproceedings pending appeals, although Justice Bateman points out in MacIntosh that some doubt has been cast on Keating and Dempseyby other courts of appeal.

And with all due respect to the Supreme Court in Kourtessis, s. 482 of the Code invites courts of criminaljurisdiction to make rules of procedure which may differ from province to province. [16] There also appears to be some divergence in the case law regarding the extent of the court’s jurisdiction to extend time,depending on whether an appeal flows from conviction for an indictable or

summary conviction offence. For example, in R. v. Gelz(1990), (BC CA), 55 C.C.C. (3d) 425, the British Columbia Court of Appeal said that s. 839(2) of the Code –incorporating ss. 673-689 – does not apply unless the appellant first obtains leave to appeal. This would preclude extensions of timeunder s. 678, absent leave under 839(1). Gelz has been affirmed in B.C. and followed elsewhere: R. v. Stojanovski, 2002 BCCA 679,para. 4, R. v. Gillespie (1997), (MB CA), 115 Man.R. (2d) 161, 115 C.C.C. (3d) 461 (C.A.), R. v. Johnson, 2001ABCA 161, 155 C.C.C. (3d) 506, R. v. Lighting, [1993] A.J. No. 404 (C.A.), and R. v.

Scherba (2001), (ON CA), 54O.R. (3d) 555 (C.A.). [17] Scherba is particularly unhelpful to Mr. Mercier’s ultimate purpose here. It decides that a panel lacks jurisdiction to review asingle judge’s denial of leave under s. 839(1) based on a combination of Ontario’s civil and criminal procedure rules and is notcontemplated by the rule making authority of s. 482 of the Code. Gillespie is worse for Mr.

Mercier, denying any capacity of court rulesto create a right of appeal. [18] Gelz, Scherba and Gillespie all suggest that there is no discretion to entertain an extension of time argument (s. 678), once leavehas been denied (s. 839(1)) On the other hand, the concurrent jurisdiction of a panel and a single judge under s. 678(2) can permit a“rehearing” or “reconsideration” in changed circumstances: R. v. Walker (1978), (QC CA), 46 C.C.C. (2d) 124 (Que.C.A.); R. v. Lamontagne (1997), (QC CA), 66 Q.A.C. 204 (C.A.); R. v. Melanson (2006) (NBCA), 305 N.B.R. (2d) 91 (C.A. Chambers).

So there is an apparent divergence of the jurisdiction to extend time between

summaryconviction and indictable appeals. [19] Having carefully reviewed the matter and the submissions of the parties, I am not prepared to decide Mr. Mercier’s motion onthe basis of the “non jurisdiction” argument advanced by the Crown. First, that argument would be better addressed to a panel reviewingJustice Beveridge’s decision, assuming leave to do so had been granted by the Chief Justice, or by the Chief Justice when deciding theleave motion.

Second, the case law is arguably inconsistent, at least regarding whether there is concurrent jurisdiction in a panel or asingle judge under ss. 678(2) and 839(1) of the Code. Third, there are important arguments that should be more extensively exploredwith respect to the interplay of Rules 90 and 91, and ss. 482, 678 and 839 of the Code. [20] Accordingly, for the purposes of Mr. Mercier’s motion, I am prepared to assume the jurisdiction to entertain it, withoutultimately deciding that question. 3. Test for leave to extend time [21] The discretion granted to a judge of the court under Rule 90.37(12)(

h) is very broad. It is most commonly considered in thecontext of extending the time for filing an appeal. Justice Beveridge’s decision describes the test for extending time in a criminal context(at para. 39). He goes on to explain how the “merits” consideration has been differently approached by various courts, (paras. 41 to 43). [22] In Bellefontaine v. Schneiderman, 2006 NSCA 96, Bateman J.A. described how the discretion should be exercised in a civilcontext:

[3] A three-part test is generally applied by this Court on an application to extend the time for filing a notice of appeal, requiring thatthe applicant demonstrate (Jollymore Estate Re (2001), 2001 NSCA 116 , 196 N.S.R. (2d) 177 (C.A. in Chambers) at para.22): (1) the applicant had a bona fide intention to appeal when the right to appeal existed; (2) the applicant had a reasonable excuse for the delay in not having launched the appeal within the prescribed time; and (3) there are compelling or exceptional circumstances present which would warrant an extension of time, not the least of whichbeing that there is a strong case for error at trial and real grounds justifying appellate interference. [4] Where justice requires that the application be granted, the judge may allow an extension even if the three part test is not strictlymet (Tibbetts v.

Tibbetts (1992), (NS CA), 112 N.S.R. (2d) 173 (C.A. in Chambers)). [23] Ultimately, the question is whether or not justice requires that an extension of time be granted (Farrell v. Casavant, 2010NSCA 71, at para. 17 and Cummings v. Nova Scotia (Community Service), 2011 NSCA 2, at para. 19). [24] Both the civil and criminal “tests” for extension of time involve some consideration of the merits of the proposed appeal. Themerits would also be scrutinized under a leave to appeal test pursuant to s. 839(1).

However, in this case, the “merits” consideration hasto take into account the criteria that the Chief Justice applies when deciding whether to grant leave for review under Rule 90.38. Subparagraph 6 of that Rule allows the Chief Justice to grant leave if he is “...satisfied that the judge acted without authority under therules, or the order is inconsistent with an earlier decision of a judge in chambers or the Court of Appeal, or that a hearing by a panel isnecessary to prevent an injustice.” [25] In Marshall v.

Town of Truro, 2009 NSCA 89, at para. 10, the Chief Justice elaborated on the third basis for granting leave toreview an order of a judge in Chambers: [10] It occurs to me that to warrant a review by a panel of this court, an aggrieved party must present a highly compelling case. Inother words ,the potential for injustice must be clear and significant. Furthermore, one must presume that any potential injustice wouldhave been obvious to the judge who granted the order under review. Therefore, I would expect to grant such relief only in veryexceptional circumstances.

Otherwise, this provision might be simply viewed as an opportunity for a rehearing; a consequence thatwould be clearly unintended and unnecessary. In fact, it would be ill advised to allow such a provision to serve as an opportunity for arehearing. Indeed, courts in similar contexts have discouraged such approaches. [26] The Chief Justice then went on to quote by analogy from other courts of appeal: [11] For example, in Chandos Construction Ltd. v.

Alberta (Minister of Alberta Infrastructure), 2008 ABCA 14, the AlbertaCourt of Appeal noted: ¶ 5 This Court has, on numerous occasions, emphasized that exceptional circumstances are required before an application forre-argument will be granted, and that re-hearings are to be discouraged: Strichen v. Stewart, 2005 ABCA 201, 367 A.R. 188; PortageCredit Union Ltd. v. D.E.R. Auctions Ltd. (#2) (1994), 1994 ABCA 50 , 18 Alta L.R. (3d) 185. ¶ 6 Hunt, J.A., summarized the governing principles in Luscar Ltd. v. Smoky River Coal Limited, 1999 ABCA 252, 244 A.R. 196at para. 4:

Those authorities make it clear that leave should not be granted lightly. There must be a reason for the re-argument: Nova, An AlbertaCorporation v. Guelph Engineering Co. and Daniel Valve Co. et al. (1989), 1989 ABCA 311 , 102 A.R. 350 at 351 (C.A.).Among the factors to be taken into account are whether there is a risk of a miscarriage of justice (Terra Energy Ltd. v. KilbornEngineering Alberta Ltd. 1999 ABCA 129 , [1999] A.J. No. 444 (Q.L.) at para. 6 (C.A.)); whether the new arguments wouldaffect the outcome (Arrowhead Auto & Truck Parts Ltd. v.

Calgary (City) (1997), 196 A.R. and 141 W.A.C. 57 (C.A.) at 57-58));and whether the parties had the opportunity to address the issue in the original hearing (Nova, supra, at 352). [12] As well, the Manitoba Court of Appeal in Willman v. Ducks Unlimited (Canada), 2005 MBCA 13, recently observed: ¶ 3 The principles regarding rehearings, or reconsiderations, as they were sometimes called, were expressed by Twaddle J.A. inAbraham v.

Wingate Properties Limited (1985), (MB CA), 37 Man.R. (2d) 267 (C.A.) (at para. 1): ...this court will not in the ordinary course grant an application for reconsideration unless there is a patent error on the face of the reasonsdelivered or a point for argument not raised at the hearing of the appeal and which arises out of the judgment delivered, which pointcould not reasonably have been foreseen and dealt with at the original hearing. . . . ¶ 9 The facts of any particular situation must be carefully and, I suggest, critically examined in order to determine if the circumstancesare so exceptional as to warrant a rehearing.

The focus should be on ascertaining whether, for example, the court has made a patent erroron a central point, or the appeal was decided on a legal issue which counsel truly had no opportunity to address, or there has been, on amaterial aspect, a demonstrable oversight of fact or law by the court, such as an error in calculation, or reliance on a repealed statute.

Bearing in mind the public interest in finality of litigation, I respectfully agree with the rigorous approach articulated by the PrivyCouncil in In re Payment of Compensation to Civil Servants under Art. 10 of Agreement for a Treaty Between Great Britain andIreland, [1929] A.C. 242 (H.L.), "such an indulgence [rehearing] will be granted in very exceptional circumstances only. It is of thenature of an extraordinarium remedium" (at p. 252).

In my view, the threshold which an applicant must cross should be high, not only toavoid the risk of rehearing requests being made following an appeal judgment, almost as a matter of course, but, more importantly, toensure that rehearings are granted only in exceptional circumstances, where the interests of justice manifestly compel such a course ofaction. ¶ 10 Circumstances beyond those discussed herein may be identified that in other cases might be so exceptional as to warrant arehearing. Confining this

summary of factors to those that might be relevant here, on the present state of the law, any of the followingcircumstances should be recognized as exceptional, thus warranting a rehearing (assuming the certificate of decision has not yet beenfiled): 1) there is a patent error on a material point on the face of the reasons; 2) the appeal was decided on a point of law that counsel had no opportunity to address, and which point could not have reasonablybeen foreseen and dealt with at the hearing; or 3) the court has clearly overlooked or misapprehended the evidence or the law in a significant respect and there is a consequentialserious risk of miscarriage of justice.

In the result, the Chief Justice dismissed the application for leave in Marshall. [27] By contrast, leave was granted in R. v. Liberatore, 2010 NSCA 26. In that case, the appellant had failed to file his factum intime and after ample warning, the Chambers judge dismissed his appeal. The appellant immediately applied for leave to review underRule 90.38. Leave was granted on the basis that the failure to file the appellant’s factum was that of his lawyer and not the appellantpersonally. This may not have been apparent to the Chambers judge who dismissed the appeal for failure to abide by the Rules. As

well, the Chief Justice was satisfied that the appeal did not appear to be frivolous. He summarized his reasons at para. 18: [18] Thus, I am left with a dilemma. On these facts, it was perfectly reasonable for the Chambers judge to dismiss this appeal without further notice to the appellant. However, it is now clear that the appellant would be denied his right of appeal through no fault of his own and in circumstances where the appeal may have merit. This raises sufficient apprehension for me to grant leave to avoid a potential injustice.

Of course, as Rule 90.38 prescribes, it will be ultimately up to a panel of this court to decide if the appeal should proceed. I am, at this stage, simply satisfied that this is one of those exceptional cases where leave should be granted. [ 28 ] Parenthetically, the panel reviewing the

summary dismissal of Mr. Liberatore’s appeal reinstated it ( 2010 NSCA 33 ) and, ultimately, the appeal was successful and a new trial was ordered ( 2010 NSCA 82 ). [ 29 ] Accordingly, in my view, any exercise of discretion involving a consideration of the “merits” of Mr. Mercier’s motion must be informed by the test which the Chief Justice would apply under Rule 90.38. 4. Application of the test in this case [ 30 ] Mr. Mercier presented unchallenged affidavit evidence that he had always intended to “appeal” the decision of Justice Beveridge and attempted to do so.

Initially, he pursued further relief by seeking leave to appeal from the Supreme Court of Canada. The Registry of the Supreme Court informed Mr. Mercier that the Supreme Court lacked jurisdiction to hear Mr. Mercier’s “appeal”. Mr. Mercier appears to have pursued enquiries with the office of the Registrar of the Nova Scotia Court of Appeal and ultimately learned of the review process under Rule 90.38. He then learned that he was too late to invoke that process. So he had to seek leave to extend time to do so. [ 31 ] I am satisfied that Mr.

Mercier had a bona fide intention to “appeal” Justice Beveridge’s decision and that he has a reasonable excuse for the delay in failing to seek leave under Rule 90.38. The real question is whether Mr.

Mercier has a potentially “highly compelling” case for leave under Rule 90.38. [ 32 ] It is clear from Justice Beveridge’s decision that he acted within the authority of the Rules and that his decision is not inconsistent with an earlier decision of a Chambers judge or the Court of Appeal in the context of denying leave to extend time to appeal, which are the first two considerations the Chief Justice must address when deciding whether to grant leave (sub-Rule 6(

c) of 90.38). Ultimately then, the question for the Chief Justice would be whether leave is necessary to “prevent an injustice”. As informed by Marshall and Liberatore , that means a finding of “exceptional circumstances”. Examples include: (

a) A patent error on a material point in a decision which leave is sought to review; (

b) The decision was decided on a point that the parties had no opportunity to address. (

c) The Chambers judge clearly overlooked or misapprehended the evidence or the law in a significant respect and there is consequently a serious risk of a miscarriage of justice. [ 33 ] In exercising his discretion, the Chief Justice would review Justice Beveridge’s decision with the foregoing in mind. [ 34 ] Appeals from

summary conviction appeal courts are on questions of law alone and require leave ( Code s. 839). Accordingly, Justice Beveridge’s consideration of the merits of Mr. Mercier’s proposed appeal would have been confined to questions of law. That, in turn, would circumscribe what the Chief Justice would consider when deciding whether Justice Beveridge’s decision should be referred

to a panel for review. [ 35 ] Many of Mr. Mercier’s arguments complain that Justice Beveridge simply did not deal with issues he raised. In other cases he says that Justice Beveridge erred in his analysis or conclusions. Mr. Mercier’s arguments can be approached as follows: (

a) Lack of disclosure/ineffective counsel; (

b) Alleged improprieties related to Crown opposition to his motion to extend; (

c) Conviction under the wrong

section of the Code ; (

d) Failure to give reasons for a stay of the s. 151 charge. (

a) Disclosure/Ineffective counsel [ 36 ] Mr. Mercier said that he could not obtain documents from Mr. Church, one of his previous lawyers, supportive of a fresh evidence motion regarding the alleged shortcomings of counsel’s representation of him. Mr. Mercier said that he had been kept “in the dark” by his lawyer regarding decisions taken on his behalf before the SCAC.

But Justice Beveridge clearly dealt with the substance of his allegations: [65] Beyond the bare assertion of incompetence of trial counsel, neither he nor his two counsel in the SCAC proceedings, demonstrated incompetence of trial counsel, and just as importantly, how any deficiency in advocacy created an arguable issue of having caused a miscarriage of justice. No examples of missed objections, failure to cross-examine, or lead evidence about what the complainant told others, were ever put forward at any time. Mr. Mercier acknowledged he had full disclosure at trial.

There is no indication that the complainant said different things about the incident in her video statement or in her comments to others about what happened. [66] In addition to my earlier observations about the role of counsel in deciding what arguments are advanced on appeal, I am far from satisfied that Mr. Church did in fact abandon the fresh evidence application and incompetence of trial counsel argument without his knowledge and consent. Included in Mr. Mercier's materials is a letter from Mr. Church dated May 28, 2010 to Mr. Mercier. A number of documents are identified as being enclosed with that letter.

One of these is the letter to the SCAC judge of May 10, 2010 advising the Court of the abandonment and Church's reasons for doing so. In the letter of May 28, 2010, Mr. Church wrote to Mr. Mercier " I read this letter [the one of May 10, 2010] to you prior to the appeal". There is no evidence before me that this is not so. [67] The applicant submitted some materials he says Mr. Smith should have provided to Mr. Church that would have demonstrated incompetence by trial counsel, by virtue of trial counsel's failure to follow instructions at trial. I have read those materials.

There is nothing in them that would have even the slightest bearing on the issue of effectiveness of trial counsel. The suggestion that Mr. Smith was incompetent is groundless and has no merit. Justice Beveridge went to the heart of Mr. Mercier’s argument. Mr. Mercier raised no arguable issue here for appeal and Justice Beveridge’s decision requires no review on this ground. (

b) Alleged improprieties of Crown opposition to Motion to Extend: [ 37 ] Mr. Mercier says that the Crown did not promptly indicate that it would oppose his original application for leave to extend

time to appeal and that he did not see a couple of letters from the Crown to the Court until some months after they were filed. He asserts that there is no “proof of service” of this correspondence on him. The Crown’s position is that it withheld expressing a view on the merits of Mr. Mercier’s motion until seeing the proposed notice of appeal at which time the Crown opposed an extension of time on the basis that the appeal lacked merit. The Crown’s position here was perfectly reasonable. But more fundamentally, Mr.

Mercier was not prejudiced in any way because he was well aware prior to the hearing before Justice Beveridge of the Crown’s position opposing his motion. There was no basis to “estop” the Crown from opposing the motion and there was no denial of natural justice because Mr. Mercier had ample opportunity to address the Crown’s arguments. Justice Beveridge concluded on this point: [52] Mr. Mercier is self-represented. Nonetheless, as noted earlier, he is an intelligent and articulate individual. He filed a package of materials on August 27, 2010 that included his proposed Notice of Appeal.

It contains just over eight pages of single spaced typed grounds of appeal, including explanations and supporting argument. He was clearly put on notice by the Crown through its letter of September 1, 2010 that its sole objection to an extension of time was that the proposed grounds sought to be raised were issues that were not before the SCAC, or are attempts to re-argue the case heard by the trial judge or raise irrelevant matters. Mr. Mercier’s argument on this issue is without merit and would not justify the exercise of any extraordinary jurisdiction by the Chief Justice under Rule 90.38. (

c) Conviction under wrong Code

section [ 38 ] Next, Mr. Mercier complains that he was actually convicted under s. 271(1)(

b) of the Code rather than s. 271(1)(a). He says that the SCAC did not deal with this. The record shows that the police originally proceeded by way of indictment. The Crown chose to proceed summarily and so Mr. Mercier was convicted under subsection (1)(b), not (1)(

a) of 271. Justice Beveridge commented: [68] I gave full rein to Mr. Mercier throughout the almost full day hearing of his motion to extend time. He went through some of his proposed grounds of appeal, and voiced additional complaints. The complaints he added also have no merit. They ranged from such things as complaining about being convicted of an offence under s. 271(1) (

a) of the Criminal Code when the Crown had proceeded summarily, to assertions Mr. Church did not argue forcefully enough, and the SCAC judge did not have sufficient time to read the trial record and properly assess the appeal. [69] The

section number of the Criminal Code is mere surplusage, and no complaint was made to the SCAC about this, and hence is not an issue appealable to this Court. The complaints against Mr. Church and the SCAC judge are completely without substance. But then Mr. Mercier says that the RCMP have a record that he was convicted of an indictable offence – 271(1)(a). Whether the RCMP records indeed are incorrect, as Mr. Mercier alleges, is of no relevance and does not constitute a valid ground of appeal. It would not attract an exercise of discretion by the Chief Justice under Rule 90.38. (

d) Section 151 stay – failure to give reasons [ 39 ] Having convicted Mr. Mercier of sexual assault, the trial judge stayed the s. 151 charge of touching, but without reasons. Mr. Mercier says he is entitled to reasons and cites R. v. Trueman , 2008 SKQB 335 . Trueman dealt with ss. 253(

b) and 253(

a) of the Code . The former involves exceeding the allowable blood/alcohol content while operating inter alia a motor vehicle; the latter describes the same while impaired. Mr. Trueman was found guilty under 253(

b) and a conditional stay was entered under 253(a). No findings of fact were made with respect to whether the evidence would justify a conviction under 253(a). The SCAC in Trueman said: 21 This is not a preferred method to follow. The Crown has charged the accused with two offences, and evidence was led on both. A finding of guilty or not guilty should have been made in respect of both offences. If appropriate, a conditional stay on one of the charges could then have been entered. It would then allow counsel to make an informed decision whether an appeal is warranted.

Counsel for either Crown or the defence may take issue with the legal and factual analysis of a finding on one charge but determine that the resolution on the second charge would stand in any event. This obviously would have an impact on a decision to appeal and allow the parties to utilize the resources at their disposal most appropriately. [ 40 ] Assuming, without deciding, that Trueman is correct, it is clearly distinguishable . The essential elements of 253(

b) and 253(

a) are distinct. A finding of guilt under one does not necessarily involve factual findings which establish essential elements of the other.

The same is not true in Mr. Mercier’s case where the elements for a s. 151 finding of guilt are similar to those for a s. 271 finding. A stay of the s. 151 charge in all the circumstances was required. In any event, this is precisely the kind of “omission” which does not require explicit reasons if the trial judge was clearly alive to and resolved central issues before the court, ( R. v. R.E.M. , 2008 SCC 51 ). [ 41 ] Mr. Mercier complains that Justice Beveridge made unnecessary comments regarding his remand and the Crown’s withdrawal of a dangerous offender application.

These alleged “improprieties” are nothing of the kind but are natural and proper contextual comments for any judge to make. They have nothing to do with the jurisdiction which the Chief Justice would exercise in deciding whether to refer to a panel for review. [ 42 ] There is no hint of any issue raised by Mr. Mercier which would constitute an “exceptional circumstance” warranting a review to “prevent an injustice” as required by Rule 90.38(6). Mr.

Mercier alleges nothing which even arguably rises to a patent error on a material point; or that he had no opportunity to address; or that there has been any misrepresentation of the law; or anything suggesting a serious risk of a miscarriage of justice in this case. Conclusion: [ 43 ] Assuming, without deciding, that I have jurisdiction to entertain Mr. Mercier’s motion, I am satisfied that there is no merit to Mr. Mercier’s request for a review and thus no basis for extending time to allow for it.

There is simply nothing upon which the Chief Justice could exercise his discretion to refer the matter to a panel for review. [ 44 ] Mr. Mercier’s motion is dismissed. Bryson, J.A.