Fadi Alkhatib Appellant v. Her Majesty The Queen Respondent Judge: The Honourable Justice Peter M.S. Bryson Application, 2013 NSCA 91

Nova Scotia Court of Appeal Citation: R. v. Alkhatib , 2013 NSCA 91 Date: 20130813 Docket: CAC 416366 Registry: Halifax Between: Fadi Alkhatib Appellant v. Her Majesty The Queen Respondent Judge: The Honourable Justice Peter M.S. Bryson Application Heard: August 1, 2013, in Halifax, Nova Scotia, in Chambers Written Release August 13, 2013 Held: Motion to extend time to file a notice for leave to appeal is dismissed, per reasons for judgment of Bryson, J.A. Counsel: Fadi Alkhatib, appellant in person Joshua Judah, for the respondent Reasons for judgment: [ 1 ] Fadi Alkhatib applies to extend time to file a notice of appeal of the dismissal of his

summary conviction appeal (“SCAC”) before The Honourable Justice Felix Cacchione. Background: [ 2 ] The background to this appeal is set out in the Crown’s motion brief which is reproduced here for ease of reference: 1. On June 15, 2011, Mr. Alkhatib was charged with driving a motor vehicle while his licence or privilege of obtaining a licence was canceled, revoked or suspended. 2. The ticket provided a deadline of August 19, 2011, by which Mr. Alkhatib was to indicate if he wished to dispute the charge. He failed to do so and a conviction was entered on August 20, 2011. 3.

On January 29, 2012, five months after the conviction was entered, Mr. Alkhatib appeared in the Dartmouth Provincial Court and requested that the conviction be set aside and a Trial Date scheduled. The Court granted the Motion and set the Trial for March 14, 2012. 4. The Trial was held on March 14, 2012, and a conviction was entered. 5. Mr. Alkhatib filed a Notice of

Summary Conviction Appeal with the Supreme Court of Nova Scotia on April 20, 2012. The Notice stated, “The appellant acknowledges that subsection 821(3) of the Criminal Code requires the appellant to cause a transcript to be furnished to the court and the respondent. The appellant has made arrangements for transcription, has made inquiries about when it will

be ready, and is able to deliver it no later than 28th/April/12.” 6. The matter appeared in Crownside on April 26, 2012, but was adjourned so Mr. Alkhatib could obtain a lawyer. 7. The matter returned to Crownside on June 7, 2012. Mr. Alkhatib had not filed the transcript. The Honourable Justice M. Heather Robertson set the Appeal Hearing date as October 10, 2012, and ordered Mr. Alkhatib to file the transcript and Appellant factum by September 19, 2012. 8. Mr. Alkhatib failed to file the transcript and Factum by September 26, 2012, the due date of the Crown’s factum. 9.

On September 26, 2012, the Crown filed the Respondent’s factum with the Court and provided a copy to Mr. Alkhatib. The only issue raised by the Crown was in regard to the failure to provide a transcript. The Crown requested that the Appeal be dismissed. 10. On the Hearing date of October 10, 2012, The Honourable Justice A. David MacAdam advised Mr. Alkhatib that a transcript was required and adjourned the matter to Crownside on November 22, 2012. 11. At the November 22, 2012, Crownside appearance, The Honourable Justice Arthur D. W. Pickup advised Mr. Alkhatib that a transcript was required. The due date for Mr.

Alkhatib’s factum and for the transcript was set for February 13, 2013, and the Appeal Hearing was set for March 6, 2013. The due date for the Crown’s factum was set for February 20, 2013. 12. Mr. Alkhatib failed to file the required material by February 20, 2013. The Crown filed its factum with the Court and provided a copy to Mr. Alkhatib on February 20, 2013. Once again, the only issue raised by the Crown was in regard to the failure to provide a transcript. The Crown requested that the Appeal be dismissed. 13. On the Hearing date of March 6, 2013, Mr.

Alkhatib had not filed the required documents with the Court. The Honourable Justice Felix A. Cacchione dismissed the Appeal. [ 3 ] At the time of his appeal before Justice Cacchione, Mr. Alkhatib was in Syria visiting relatives. His sister attended in his stead. After briefly reviewing the history of proceedings, Justice Cacchione said: THE COURT: And then on November the 22nd of last year the hearing was set for today’s date. He was supposed to have his brief by February the 13th. There’s no brief. There’s no transcript.

This matter has been going on for quite a long time. [ 4 ] He concluded: THE COURT: I recognize that your brother is not here, but it is his appeal. MS. ALKHATIB: Right. THE COURT: And he certainly should have made arrangements to either have a lawyer appear on his behalf or at the very minimum get a transcript of the proceedings in the Provincial Court which led to this appeal. He didn’t do that. MS. ALKHATIB: Okay. THE COURT: All right? As a result, I’m going to dismiss the appeal. MS. ALKHATIB: Okay. THE COURT: All right? That’s it. The appeal is dismissed without costs. [ 5 ] Mr.

Alkhatib’s motion to this Court first went forward before Justice Oland some weeks ago. He was advised to file transcripts. He has now filed a transcript of the appeal hearing before Justice Cacchione and of the original Provincial Court hearing of March 14, 2012. The Law: [ 6 ] Appeals to this Court from a

summary conviction appeal court are confined to questions of law ( Criminal Code s. 839(1)). [ 7 ] In R. v. R.E.M. , 2011 NSCA 8 Justice Beveridge summarized the law in cases such as this: [36] The authority to extend the time to file documents initiating an appeal is found in s. 678(2) of the Criminal Code . This

section provides: 678.

(1) An appellant who proposes to appeal to the court of appeal or to obtain the leave of that court to appeal shall give notice of appeal or notice of his application for leave to appeal in such manner and within such period as may be directed by rules of court.

(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given. [37] By virtue of s. 839(2) of the Code , this provision applies to appeals from the SCAC. Pursuant to this Court’s rule-making powers (s. 482 of the Code ) the Civil Procedure Rules provide that the time period to start an appeal is no more than twenty-five days (91.02) as calculated by Rule 94.02 but can be extended under s. 678 or Rule 91.04. Rule 91.04 simply provides:

91.04

(1) Any time prescribed by this Rule may be extended or abridged by a judge of the Court of Appeal or the Court of Appealbefore or after the time has expired.

(2) A person who seeks an extension or abridgment of a time period in the Code or this Rule may make a motion to a judge of theCourt of Appeal or the Court of Appeal under a provision in the Code, such as subsection 678(2), under Rule 2 - General, or undersubsection (1) of this Rule. … [39] Both in Nova Scotia, and elsewhere, the criteria to be considered in the exercise of this discretion has been generally the same.

TheCourt should consider such issues as whether the applicant has demonstrated he had a bona fide intention to appeal within the appealperiod, a reasonable excuse for the delay, prejudice arising from the delay, and the merits of the proposed appeal. Ultimately, thediscretion must be exercised according to what the interests of justice require. (See R. v Paramasivan (1996), (NSCA), 155 N.S.R. (2d) 373; R. v. Pettigrew (1996), 1996 NSCA 17 , 149 N.S.R. (2d) 303; R. v. Butler, 2002 NSCA 55; R. v.Roberge, 2005 SCC 48.) Intention to Appeal within the Appeal Period: [8] Mr.

Alkhatib acknowledges that he was aware from his sister that Justice Cacchione dismissed his

summary convictionappeal because he had not filed transcripts as he had been repeatedly advised to do. Nevertheless, when he returned from Syria, he didnothing to appeal Justice Cacchione’s decision. In his initial affidavit, Mr. Alkhatib said that he was “unaware there was time left [on hissuspension] until June 5/13” and he “didn’t know I had a month to appeal”. [9] In a second affidavit, Mr. Alkhatib deposed that he didn’t pursue an appeal because his work

schedule was “always againstthe time when court is opened”; he didn’t “have the money to bring it back to court”; he “hadn’t received paperwork for court over onemonth from the day this ticket dealt with in court”; and most tellingly “I didn’t have my licence, this ticket cost me suspension it washard finding drives. I’m off usually by 4/5 with bus was impossible making it before court closed”. But it is clear from Mr. Alkhatib’sevidence that he was driving after he returned to Canada and after his SCAC appeal was dismissed.

During questioning by the Court headmitted that he was stopped again by police this spring and only then learned that his licence was still suspended. This is relevant intwo ways; first, it contradicts Mr. Alkhatib’s assertion that he was unable to get to court because he couldn’t drive – clearly he wasdriving until the police stopped him again. Second, it makes it clear that he had no intention of appealing Justice Cacchione’s decisionuntil he learned that his suspension had not expired. [10] I am not satisfied that Mr. Alkhatib had a bona fide intention to appeal during the appeal period.

Reasonable Excuse for Delay in Launching Appeal: [11] The Crown points out that there was a three month delay between dismissal of the SCAC appeal and the filing of Mr.Alkhatib’s motion to extend time to appeal. Mr. Alkhatib made no attempt to contact the court or the Crown by telephone, fax or emailor to send documents via regular post. Nor did he attempt to have someone attend court on his behalf, although his sister was able toattend his SCAC appeal for him. There is no evidence Mr. Alkhatib attempted to be excused from work so he could deal with the courtduring business hours. Moreover, Mr.

Alkhatib’s explanations for not filing his appeal sooner are contradictory as discussed above. Clearly he was able to drive for some considerable period during the appeal period, until he was again caught driving while suspended. Mr. Alkhatib’s excuses for not appealing are not reasonable. Issue Three – Compelling or Exceptional Circumstances: [12] Exceptional circumstances often involve the strength of any proposed grounds of appeal. That is something which this Courtwill consider when deciding whether to grant leave from a

summary conviction appeal. [13] Justice Farrar in R. v Pottie, 2013 NSCA 68 explained the standard of review for

summary conviction appeals: [15] In the recent decision of R. v. Francis, 2011 NSCA 113, Fichaud, J.A. considered the standard of review to be applied in anappeal pursuant to s. 839(1)(

a) of the Criminal Code. In

summary, there are two standards of review at play in

summary convictionmatters; the first is the standard of review to be applied by the SCAC judge when reviewing the trial decision; and the second being thestandard we apply to the decision of the SCAC judge. [16] The standard of review for the SCAC judge when reviewing the trial judge’s decision, absent an error of law or miscarriage ofjustice, is whether the trial judge’s findings are reasonable or cannot be supported by the evidence.

In undertaking this analysis theSCAC court is entitled to review the evidence at trial, re-examine it and re-weigh it, but only for the purposes of determining whether itis reasonably capable of supporting the trial judge’s conclusions. The SCAC is not entitled to substitute its view of the evidence for thatof the trial judge. [17] Our jurisdiction is grounded in the error alleged to have been committed by the SCAC judge. It is not a de novo appeal from thetrial judge.

This Court must determine whether the SCAC judge erred in law in the statement or application of the principles governingits review (see Francis, ¶7; see also R. v. R.H.L., 2008 NSCA 100; R. v. Travers, 2001 NSCA 71; R. v. Nickerson, 1999 NSCA 168,¶6). This distinction is important when considering whether to grant leave; the error we must identify is in the SCAC judge’s decision. [14] In this case the narrow question is whether Justice Cacchione was correct to dismiss Mr. Alkhatib’s appeal. In light of theextensive record of advice to Mr.

Alkhatib about filing a transcript and his failure to act on that advice, it is hard to see how Mr. Alkhatibwould be successful in obtaining leave to appeal, let alone successfully appealing Justice Cacchione’s decision. As Justice Farrar said inPottie: [21] The Crown, in its factum, has accurately summarized the principles that have emerged from the case law to guide provincial

appellate courts when deciding whether to grant leave to appeal from a SCAC decision. They are: 1. Leave to appeal should be granted sparingly. A second appeal in

summary conviction cases should be the exception and not the rule. [see R. R. at ¶25 and ¶37; R. v. Chatur , 2012 BCCA 163 at ¶18; R. v. Paterson , 2009 ONCA 331 at ¶1] 2. Leave to appeal should be limited to those cases in which the appellant can demonstrate exceptional circumstances that justify a further appeal. [see R.R. , ¶27; R. v. Dickson , 2012 MBCA 2 , ¶14; R. v. M. (R.W.) , 2011 MBCA 74 , ¶32] 3. Appeals involving well-settled areas of law will not raise issues that have significance to the administration of justice beyond a particular case. [see R. v. Zaky, 2010 ABCA 95 at ¶10; R. v. Im , 2009 ONCA 101 at ¶17; R. v. Hengeveld , 2010 ONCA 60 at ¶5; R.

R) at ¶31] 4. If the appeal does not raise an issue significant to the administration of justice, an appeal that is merely “arguable” on its merits should not be granted leave to appeal. Leave to appeal should only be granted where there appears to be a clear error by the SCAC. [see M. (R.W.) at ¶37; R.R. at ¶32] 5. A second level of appeal is an appeal of the SCAC justice. It is to see if he or she made an error of law. The second level of appeal is not meant to be a second appeal of the provincial court decision. [see R.R. at ¶24; Chatur at ¶17] 6.

The fitness or leniency of a sentence is a factor a provincial appellate court can consider when deciding whether to grant leave. [see Chatur at ¶19; Im at ¶22] [ 15 ] In my view, exceptional circumstances might exist in a case like this if the original Provincial Court decision, which the SCAC judge did not have an opportunity to consider on the merits, was apparently wrong in law. Mr. Alkhatib’s defence at trial was that he was not aware that his licence had been suspended at the time that he was originally stopped and which resulted in his conviction.

However, that argument was made by him to the adjudicator at trial and rejected. Mr. Alkhatib would know of the infractions that led to his suspension. He apparently did nothing to inform himself regarding the consequences of those infractions. There was a due diligence defence available to Mr. Alkhatib ( R. v. Wile, 2001 NSCA 183 ), but on the record before this Court, there is no basis to suggest that the adjudicator was wrong to enter a conviction. Accordingly, that cannot constitute an exceptional circumstance that would warrant an extension of time in this case. Mr.

Alkhatib suggests no other exceptional circumstance. Conclusion: [ 16 ] Mr. Alkhatib’s motion to extend time to file a notice for leave to appeal and appeal the SCAC decision is dismissed, without costs. Bryson, J.A.