R. v. F.H., 2016 NSCA 70

Nova Scotia Court of Appeal Citation: R. v. F.H. , 2016 NSCA 70 Date: 20160927 Docket: CAC 450452 Registry: Halifax Between: F.H. Applicant v. Her Majesty the Queen Respondent Restriction on Publication:

Section 486.4 of Criminal Code Judge: The Honourable Justice Joel E. Fichaud in chambers Motion Heard: September 22, 2016, in Halifax, Nova Scotia Held: Motion for extension of time to file notice of appeal dismissed Counsel: The Applicant F.H. on his own behalf Marian Fortune-Stone, Q.C., for the Respondent Order restricting publication – sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with stepdaughter), 155 (buggery or bestiality),157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code,chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs(a)(

i) to (iii). Reasons for judgment: [1] Mr. F.H. moves for an extension of time to file and serve a notice of appeal from his convictions and sentences for sexualoffences under the Criminal Code. [2] F.H. was indicted and tried for indecent assault, gross indecency, buggery, sexual intercourse with a female under the age of14, and incest, contrary to ss. 149(1), 157, 155, 146(1) and 150(1) of the Criminal Code (1972) and for sexual assault contrary to s.246.1(1)(

a) of the Criminal Code, (S.C. 1980-83). Justice Patrick Murray presided over the trial in the Supreme Court in November2014. F.H. was represented by counsel at the trial. [3] The charges related to F.H.’s daughter when she was a child and living with F.H. and her mother, brother and sister in theirfamily home. [4] F.H. elected trial by jury. Five witnesses testified for the Crown. These included the victim. F.H. testified and denied theallegations. The outcome turned on credibility.

On November 7, 2014, the jury returned verdicts of guilty on the 6 charges in theindictment. [5] On February 4, 2015, Justice Murray sentenced F.H. to 9 years in federal custody: sexual assault - 2 years consecutive; buggery - 4 years consecutive; incest – 3 years consecutive; indecent assault – 3 years concurrent; gross indecency – 3 years concurrent;sexual assault with a female under the age of 14 – 3 years concurrent. [6] On February 4, 2015, F.H. was taken into custody and, on February 12, 2015, taken to the federal Springhill Institute.

In earlyJune 2015, he was transferred to the federal Dorchester Institute, where he remains. [7] By s. 678(1) of the Criminal Code, an appeal is governed by this Court’s Civil Procedure Rules. Rule 91.09 permits the filingof a notice of appeal within 25 days from the date of sentence, the interval to be calculated according to Rule 94.02.

By Rule 91.10(1)(b),the appellant is to deliver the notice of appeal to the Crown within those 25 days. [8] F.H.’s period for filing and delivery of a notice of appeal expired on March 12, 2015. [9] F.H.’s motion to extend and his proposed notice of appeal were filed on April 20, 2016, thirteen months late. [10] Section 678(2) of the Code and Civil Procedure Rule 91.04 permit a judge of the Court of Appeal, before or after the expiry ofthe period, to extend the time for filing and service of a notice of appeal. [11] In R. v.

R.E.M., 2011 NSCA 8, Justice Beveridge summarized the criteria that govern this motion: [39] … The Court should consider such issues as whether the applicant has demonstrated he had a bona fide intention to appeal withinthe appeal period, a reasonable excuse for the delay, prejudice arising from the delay, and the merits of the proposed appeal. Ultimately,the discretion 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 , [2005] 2 S.C.R. 469.) To similar effect: Cormier v. Graham, 2015 NSCA 17, paras. 10-12; R. v. Derbyshire, 2015 NSCA 23, para 11; R. v. Spencer, 2015NSCA 99, para. 10. [12] In R. v. Roberge, 2005 SCC 48 , [2005] 2 S.C.R. 469, the Supreme Court of Canada’s chambers panel of three justicessaid: 6. The power to extend time under special circumstances in s. 59(1) of the Act [Supreme Court Act, R.S.C. 1985, c. S-26] is adiscretionary one.

Although the Court has traditionally adopted a generous approach in granting extensions of time, a number of factorsguide it in the exercise of its discretion, including: 1. Whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposing partywithin the prescribed time; 2. Whether counsel moved diligently; 3. Whether a proper explanation for the delay has been offered;

4. The extent of the delay; 5. Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and 6. The merits of the application for leave to appeal.

The ultimate question is always whether, in all the circumstances and considering the factors referred to above, the justice of the case requires that an extension of time be granted. [ 13 ] In Roberge , the Supreme Court denied the extension where the applicant insufficiently explained the four month delay: 7. … Although the affidavit evidence indicates that the applicant formed a bona fide intention to seek leave to appeal and that intention was communicated to the respondent within the prescribed time, the delay in this case is not adequately explained.

The four-month delay beyond the 60 days prescribed under the Act is lengthy. The affidavit filed in this case demonstrates, in our view, that much of the delay can be ascribed to a failure to accord necessary priority to this application for leave to appeal. … [ 14 ] The principal factor upon which F.H.’s motion turns is whether there is a reasonable explanation for F.H.’s thirteen month delay from March 2015 to April 2016. [ 15 ] F.H.’s affidavit of April 20, 2016, filed for this motion, says “I did not fully understand my rights to appeal”, until he “found out from some of the inmates”.

At the chambers motion, he testified that, after he learnt the appeal process from other inmates, he acted promptly. [ 16 ] At the hearing of the motion, F.H. testified and was cross-examined by counsel for the Crown. The Crown filed affidavits of three employees of Correctional Service Canada: Ms. Nancy Cormier, Manager of Assessment and Intervention at Springhill Institution; Mr. Andrew Sherman, F.H.’s parole officer at Dorchester Institution; and Ms. Vicki Estabrooks, a Sentence Management Officer at Dorchester. Ms.

Cormier also testified about interviews with, and information given to F.H. during his time at Springhill. [ 17 ] F.H.’s proposed notice of appeal cites as a ground “lawyer not able to handle case”. His affidavit, that he “did not fully understand my rights to appeal”, also puts in issue the substance of his legal advice. F.H. has impliedly waived solicitor-client privilege on the facts pertinent to his allegations: R. v. Marriott , 2013 NSCA 12 , paras. 31-42 . Mr. Adam Rodgers, F.H.’s trial counsel, and Mr.

Peter Mancini, Q.C., Nova Scotia Legal Aid’s Service Delivery Director from 2010 to December 1, 2015, filed affidavits on the extension motion. [ 18 ] After Ms. Cormier, Mr. Sherman, Ms. Estabrooks, Mr. Rodgers and Mr. Mancini testified to their affidavits, F.H. declined to question any of them. [ 19 ] F.H.’s cross-examination, and the evidence of these five witnesses belie Mr. F.H.’s version. From the outset in February 2015, F.H. was told, and understood, how to start a prisoner appeal, and was given the opportunity to do so. I refer to the following evidence, which I accept. [ 20 ] F.H.’s trial counsel, Mr.

Rodgers, deposed: 19. Perhaps most relevant for this application is the claim by [F.H.] that he was unaware of his ability to file an appeal of the case. This is completely untrue. We discussed appeals several times, particularly towards the end of the trial.

In particular, as we were awaiting the jury verdict, [F.H.] and I, along with [S.H.], his spouse, had extensive discussions about the case, the possibility of conviction, the sentence he may receive should he get convicted and the concerns he had with the impact a period of incarceration would have on his physical health, and the possibility of an appeal. … [ 21 ] Ms.

Cormier explained that, upon F.H.’s admission to Springhill in February 2015, he was given an Orientation Package that informed him “he has the right to communicate with a lawyer on any legal matter and that Legal Aid services are available as is access to a Commissioner of Oaths”. Her affidavit states that “Nova Scotia Appeal Forms or New Brunswick Appeal Forms as well as applications for Legal Aid are also available upon request of the inmate”.

The Orientation Package says “there are telephones located in each housing unit for the use of those inmates housed there” and: Inmates are permitted to have reasonable access to the administrative telephones to contact police or legal counsel in a safe and confidential manner. Such access will not be unreasonably denied. Normally, a request should be made to your Parole Officer, Unit Manager or the Correctional Supervisor on Duty. The Package states: You have the right to communicate with a lawyer on any legal matter.

In nearly all circumstances, you may correspond with a lawyer confidentially. … Legal Aid lawyer services are also available and can be contacted through our Visits & Correspondence Department via an Inmate Request Form. … [ 22 ] The affidavit of Mr. Sherman, F.H.’s parole officer, speaks to F.H.’s time at Dorchester form early June 2015: 7. [F.H.] arrived at Dorchester Institution on June 4 th , 2015; 8. During our first meeting in June 2015, I encouraged [F.H.] to call a legal aid lawyer for advice; 9. The numbers are available near the unit phones and I can also look numbers up if needed;

10. I also told him at that meeting that he could put in an inmate request to Sentence Management at Dorchester for further information about appeals; 11. If offenders have specific questions regarding the appeal process, I generally contact our Sentence Management department for information, contact their specific lawyer for clarification, or contact the Crown directly. … 29.

Based on the information that I did provide to him and my asking about his progress on his appeal, [F.H.] has known since June 2015 that I would have assisted him in obtaining information about the appeal process and would have followed up for him, if asked, through the Sentence Management Department. [ 23 ] Mr. Mancini’s affidavit says that Nova Scotia Legal Aid’s first contact from F.H. respecting an appeal was a letter from F.H. received by Legal Aid on October 28, 2015. Mr. Mancini replied to F.H. by a letter of October 29, 2015, stating: … There is a time limit to appeal a finding of guilt and a sentence.

It is usually 30 days after the sentencing hearing. If in fact you were sentenced in February of 2014, you are more than a year beyond the time limit. A court can grant permission for an individual to extend the time of an appeal but that is an application that you must make when you file your Notice of Appeal. If you wish to file a Notice of Appeal there are individuals at the Institution who may be able to assist you in this regard. If you file a Notice of Appeal then a copy of the documents will be forwarded to Legal Aid and we will assess your case for merit.

The reason that you should file the appeal as a prisoner is because the transcript of the proceedings will be arranged and prepared by the Crown. If you wish to discuss the matter with me, please write to me and we will set up a telephone conference to discuss the matter. Mr. Mancini’s affidavit continues: 10. That I believe that I may have had a brief conversation with [F.H.] shortly after that letter was sent to him and reiterated that process. 11. That I never heard from {F.H.} after that and closed the file. 12.

That at no time was I ever solicitor of record for [F.H.] or engaged to represent him in any proceeding. [ 24 ] Ms. Estabrooks’s affidavit attached extracts from F.H.’s Sentence Management file at Dorchester. She said “the first reference to an appeal is by way of an inmate request that he submitted to Sentence Management at Dorchester Penitentiary on April 7, 2016 stating that he had a prisoner appeal paper and he requested a Commissioner of Oaths”. Ms.

Estabrooks said she “met with him on April 20, 2016 and received his Notice of Appeal and Affidavit which I faxed to the Nova Scotia Court of Appeal and then sent the original and copies by tracked mail”. [ 25 ] In November 2014, Mr. Rodgers explained F.H.’s appeal rights to his client. In February 2015 at Springhill, F.H. was informed that the appeal form was available at the Institution, and was given the opportunity to initiate a prisoner appeal. In June 2015, at Dorchester, F.H. was told that Sentence Management would assist with the paper-work to initiate an appeal. In October 2015, Mr.

Mancini told F.H. that the time limit had long passed, a motion to extend was required, and the Institution would assist with the mechanics, after which F.H. waited another 5 months. [ 26 ] F.H., who has a college degree in theology, is fully literate with an acute intellect. I do not accept F.H.’s assertion that he didn’t understand any of this until his appeal rights were explained by other inmates shortly before he filed this motion in April of 2016. [ 27 ] All the factors are weighed. In the circumstances here, the absence of any credible and reasonable explanation for this lengthy delay is pivotal.

I dismiss F.H.’s motion to extend the time for filing a notice of appeal. Fichaud, J.A.