Charles Govindaswamy Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Joshua M. Arnold, 2019 NSSC 348

SUPREME COURT OF Nova Scotia Citation: R. v. Govindaswamy , 2019 NSSC 348 Date: 20191121 Docket: Hfx No. 490647 Registry: Halifax Between: Charles Govindaswamy Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Joshua M. Arnold Heard: September 26, 2019, in Halifax, Nova Scotia Further written submissions: October 11, 2019 – Appellant October 24, 2019 – Respondent October 29, 2019 – Appellant Rebuttal Counsel: Donald Pressé, for the Appellant Jim Janson, for the Respondent By the Court: Overview [ 1 ] This matter involves an application to extend the time for filing a Notice of

Summary Conviction Appeal. Charles Govindaswamy was charged with failing to yield at a through highway, contrary to s. 122(2) of the Motor Vehicle Act , R.S.N.S. 1989, c. 293 , on September 6, 2017. He was charged on November 11, 2017, and pleaded guilty on November 13, 2017, without having received any legal advice or Crown disclosure. [ 2 ] On June 13, 2019, Mr. Govindaswamy was provided for the first time with some Crown disclosure, the statement of Megan Lloyd taken on September 6, 2017, which he received from his insurance company.

He subsequently hired a lawyer and obtained more Crown disclosure which included a number of eyewitness statements, dash cam footage from a third-party motor vehicle, the Halifax Regional Police investigator’s report, and the Crash Data Retrieval evidence from his own motor vehicle. As a result, he wants to make application to withdraw his guilty plea and have a trial. The Crown is opposed to an extension of the filing time. Facts [ 3 ] For the limited purpose of deciding this application, I accept the facts as described by Mr. Govindaswamy in his affidavits and as outlined in his brief: 4. Mr.

Govindaswamy was involved in a motor vehicle accident on September 6, 2017 at approximately 5:15 p.m. at the intersection of North Street and Maynard Street in Halifax, Nova Scotia. He was travelling northbound on Maynard Street, attempting to cross North Street to proceed straight onto Fuller Terrace. Traffic proceeding both eastbound and westbound on North Street was heavy in volume. 5. Immediately prior to the accident, an uninvolved motorist, Megan Lloyd, was traveling in her vehicle over the McDonald Bridge. She noted a motorcyclist proceeding behind her, who traveled so closely that Ms.

Lloyd could see details relating to his appearance, such as sunglasses and facial hair. 6. After crossing the Bridge, Ms. Lloyd proceeded west onto North Street and traveled through the intersection of North Street and

Gottingen Street. As Ms. Lloyd was traveling through the crosswalk on Gottingen Street, the motorcyclist suddenly veered into the Bus lane, passing near a cyclist who was cycling west on North Street. The motorcyclist accelerated quickly and veered back into the westbound lane on North Street in front of Ms. Lloyd’s vehicle. The motorcyclist then accelerated up North Street over the crest towards the intersection of North Street and Maynard Street. 7. At this time, Mr.

Govindaswamy was at the intersection of Maynard Street and North Street, slowly inching his vehicle out onto North Street in order to cross onto Fuller Terrace. Eastbound traffic on North Street had stopped to allow him to cross onto Fuller Terrace. Mr. Govindaswamy scanned the intersection for oncoming traffic, and he did not see the motorcyclist in the westbound lane. The motorcyclist suddenly appeared and, at the last moment, activated his front brake. Due to the high speed at which the motorcyclist traveled, he was unable to bring his vehicle to a stop before colliding with the front-passenger side of Mr.

Govindaswamy’s vehicle. 8. As noted, Mr. Govindaswamy did not see the motorcyclist until he came up over the crest. As a result of the motorcyclist’s speed, Mr. Govindaswamy did not have time to take any evasive action. He hit the brakes, but to no avail. Ms. Lloyd, who traveled behind the motorcyclist immediately prior to the accident and who witnessed the same, reported to the police that there was nothing Mr. Govindaswamy could have done to avoid the accident. 9. On September 8, 2017, Mr. Govindaswamy made his first attempt to inquire with the police about the accident but received no response. Mr.

Govindaswamy also contacted his insurer, TD Insurance, and was advised by an adjuster that he was at fault and that there was no way to determine the speed of the motorcyclist. Mr. Govindaswamy asked for a copy of the police report but he was advised that the police report would not be useful. Mr. Govindasway contacted the police again the following week. At that time, Mr. Govindaswamy was advised that the police had no information for him. Mr.

Govindaswamy contacted TD Insurance again and the adjuster assigned to his file advised him on September 27, 2017 that TD Insurance was not in possession of the police report, but they would forward the same to him upon receipt. [ 4 ] Both Mr. Govidaswamy and the Crown provided supplementary submissions addressing whether he had actually come to a full stop at the stop sign on Maynard Street before inching forward into traffic on North Street, where the collision occurred.

I decline to make a finding of fact for the purposes of this motion on that point as it is unnecessary for my analysis. [ 5 ] As noted above, Mr. Govindaswamy’s first effort to contact the police was via email on September 8, 2017, wherein he wrote: Hello Officer, My name is Charles Govindaswamy, [sic] On Sep 6th around 5:00 PM I was in an accident with a motorcycle at the maynard and north street [sic] junction. I am just checking how the motor cycle [sic] rider is doing in the hospital.

Also address on my license does not reflect my current address which is 321 Nottingham Street, Bedford NS B4A4G7 [sic] Although its up to date in the motor vehicle records. Please feel free to use this email id [sic] if you have any further questions on the incident. Thanks, Charles G. [ 6 ] Mr. Govindaswamy did not ask the police for disclosure on September 8, 2017, but he identified himself, provided his contact information and inquired as to the condition of the motorcycle driver. In his affidavit of September 5, 2019, Mr. Govindaswamy states: 2.

Since making my first Affidavit dated July 29, 2019, I recalled that I spoke with an insurance adjuster at TD Insurance by telephone around September 9, 2017, prior to receiving TD Insurance’s September 27, 2017 email. I do not remember the adjuster’s name. I asked him if I could have a copy of the police report, and he told me that there was not going to be much information in it. The adjuster advised that the motorcyclist had the right of way and that there was no way to tell how fast the motorcyclist was going. [ 7 ] Mr.

Govindaswamy’s explanation of his contact with the police in an effort to obtain disclosure continues in his brief: 10. Mr. Govindaswamy contacted the police again. He was advised by the police that this situation was unique; they had not encountered a situation in which a motorist was contacting the police directly for information about an accident rather than going through their insurer. The police advised Mr. Govindaswamy to deal with his insurance company for information about the accident. As a result of these discussions, Mr. Govindaswamy gave up trying to obtain information about the accident. 11.

The police conducted a thorough investigation with respect to the accident, which included, inter alia , witness statements, photographs, measurements, Crash Data Retrieval information from Mr. Govindaswamy’s vehicle, and Dash Camera footage obtained from an uninvolved motorist, Adam Leblanc, who traveled two to three vehicles behind the motorcyclist prior to the accident. The Dash Camera footage captured the motorcyclist illegally passing Ms. Lloyd’s vehicle and accelerating up North Street, but it did not capture the events transpiring immediately prior to the accident or the accident itself. 12.

The Accident Description dated September 26, 2017 and authored by Constable Andrew Landry concluded that Mr. Govindaswamy was scanning the intersection and inching forward slowly at the time of the accident, but that the motorcyclist traveled at such a high rate of speed that he did not have enough time to react. Mr. Govindaswamy was not charged with any offence under the Motor Vehicle Act , supra , at this time. 13.

The Investigators Report authored by Peter Webber determined that, based on the evidence obtained during the investigation, the motorcyclist drove in an aggressive manner, and the accident could be classified as preventable. The Investigators Report concluded that no further action was required. Interestingly, the police did not calculate the speed of the motorcycle based on the skid mark evidence. 14. Despite the conclusions reached by the Initial Officers Report and the Investigators Report, Mr. Govindaswamy was ultimately

charged on November 11, 2017 for failing to yield at a through highway, contrary to s 122(2) of the Motor Vehicle Act , supra . When Mr. Govindaswamy was provided with the

Summary Offence Ticket, he asked the issuing officer, Constable Andrew Landry, why he was being charged at that late juncture. Constable Landry advised that the police had obtained Dash Camera footage from an uninvolved motorist (Mr. Leblanc), and that he was charging Mr. Govindaswamy based on his review of the footage. 15. This discussion with Constable Landry constituted the first substantive information Mr. Govindaswamy received about the accident. He had yet to receive any information from TD Insurance, and his previous discussions with the police were fruitless. 16. Mr.

Govindaswamy was a new Canadian citizen, having come to Canada in 2013. He is not familiar with the legal procedures governing Motor Vehicle Act , supra , violations. In light of Mr. Govindaswamy’s previous discussions with the police, he did not understand that he had the right to disclosure. Rather, Mr. Govindaswamy understood that he was to seek information from TD Insurance, and an adjuster with TD Insurance advised Mr. Govindaswamy that he was at fault, that there was no way to determine the speed of the motorcyclist and that the police report would not be useful. Moreover, Mr.

Govindaswamy was scheduled to travel to India on November 16,2017 to visit family for an extended period of time. He was concerned about leaving Canada without first addressing the charge. Based on the information he obtained from Constable Landry, Mr. Govindaswamy concluded that he would not have been charged unless the Dash Camera footage demonstrated that he was guilty. Under these circumstances, Mr. Govindaswamy paid the fine associated with the

Summary Offence Ticket on November 13, 2017. He did not receive any legal advice prior to doing so. 17. On June 13, 2019, TD Insurance finally forwarded to Mr. Govindaswamy part of the police report relating to the accident. This included the Investigators Report and certain witness statements, including Ms. Lloyd’s statement. Mr. Govindaswamy was surprised because he thought that this evidence demonstrated his innocence. However, he had not yet received a copy of the Dash Camera footage. 18. Still, on receiving this information from TD Insurance, Mr.

Govindaswamy retained legal representation in order to address this matter. Mr. Govindaswamy would not have entered an administrative conviction if he had known about the information forwarded to him by TD Insurance prior to November 13, 2017. Further, Mr. Govindaswamy would have appealed during the appeal period if he had had access to the information during the appeal period. 19. Mr. Govindaswamy has since received disclosure and has had an opportunity to review the Dash Camera footage obtained by the police from Mr. Leblanc. Mr. Govindaswamy is of the view that the footage does not show him to be at fault.

Rather, it confirms that the motorcyclist passed Ms. Lloyd’s vehicle illegally just before the accident and accelerated up over the crest. Had Mr. Govindaswamy seen this footage, he would not have accepted Constable Landry’s statement that the footage supported his conviction. Legislation [ 8 ] Section 122(2) of the Motor Vehicle Act states: 122

(2) The driver of a vehicle who has stopped as required by law at the entrance to a through highway shall yield to other vehicles within the intersection or approaching so closely on the through highway as to constitute an immediate hazard, but said driver having so yielded may proceed, and other vehicles approaching the intersection on the through highway shall yield to the vehicle so proceeding into or across the through highway. Issue [ 9 ] The sole issue is whether to extend the time for Mr. Govindaswamy to file his Application for Leave to Appeal and Notice of Appeal. The Legislation [ 10 ] Civil Procedure Rule 63.05 governs an application to extend time for filing a

summary conviction appeal. It states, in part: 63.05

(1) A person may start an appeal of a decision in a

summary conviction proceeding by filing a notice of appeal within one of the following periods: (

a) not more than twenty-five days after the day on which the appellant is sentenced, if the appeal is from a conviction, finding of guilt, sentence, or both a conviction or finding of guilt and a sentence; (

b) not more than twenty-five days after the day on which the decision is made, if the appeal is from a decision that is not a conviction, finding of guilt, or sentence. (2) Subsection 815(2) of the Criminal Code provides for extension of the period within which notice of an appeal is given.

(3) The notice of appeal must be filed at the office of the prothonotary responsible for scheduling sittings of the Supreme Court of Nova Scotia in the municipality where the proceeding under appeal was heard, unless the prothonotary or a judge permits otherwise. … [ 11 ]

Section 815 of the Criminal Code states: Notice of appeal 815

(1) An appellant who proposes to appeal to the appeal court shall give notice of appeal in such manner and within such period as may be directed by rules of court. Extension of time

(2) The appeal court or a judge thereof may extend the time within which notice of appeal may be given.

[12] Mr. Govindaswamy is clearly long out of time to file an appeal pursuant to Rule 63.05(1), and would require an extension oftime for filing in order to apply to have his guilty plea withdrawn, pursuant to Rule 63.05(2) and s. 815(2) of the Criminal Code. Framework for Analysis Factors to consider on an application to extend the filing time on appeal [13] In R. v. Alkhatib, 2013 NSCA 91, the applicant was appealing from a conviction entered under the MVA. Dealing specificallywith provisions governing appeals to the Court of Appeal, Justice Bryson referred to R. v.

R.E.M., 2011 NSCA 8, explained the exerciseof discretion in such cases: [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 sectionprovides: 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 ofappeal 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 forleave 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) ascalculated 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. … [Emphasis added] [14] This test was also mentioned in Brooks v. Soto, 2013 NSCA 7, where Bryson J.A. stated: [4] In Bellefontaine v.

Schneiderman, 2006 NSCA 96, Bateman J.A. described how the discretion is usually exercised: [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... [5] Although courts most commonly allude to the three-part test in Jollymore, supra, the ultimate question is whether justicerequires that an extension be granted: ... [Emphasis added] [15] Justice Beveridge discussed the application of this test in Cummings v.

Nova Scotia (Minister of Community Services), 2011NSCA 2: [19] Even a cursory review of reported decisions on requests to extend time reveals a wide array of circumstances behind the failureby a prospective appellant to pursue an appeal within the prescribed time.

It is for this reason that the three part test is really aconvenient list of factors or guidelines that should be considered in determining what is the ultimate question – whether or not justicerequires that an extension of time be granted. ... … [30] The ultimate question is whether or not I am satisfied that justice requires that the requested extension of time be granted. … [16] Therefore, guidelines as to whether or not an extension of time should be allowed, such that an appeal can be filed, include:

• A bona fide intention to appeal during the appeal period; • Any reasonable excuse for the delay; • The merits of the appeal; and • Whether justice requires that the extension be granted. [17] In R.E.M., the court discussed the assessment of the merits of the proposed appeal, as follows: 45 As stressed earlier, the ultimate question is whether or not the interests of justice require the extension of time to be granted. It cannotbe in the interests of justice to extend time in order for a prospective appellant to pursue an appeal that has no merit.

To do so wastesprosecutorial and judicial resources and reflects negatively on the administration of justice. … 49 What constitutes an arguable ground of appeal has been addressed a number of times in the civil context where an appellant seeks astay of execution or enforcement of a lower court's order pending appeal. One of the prerequisites for a stay that an appellant mustdemonstrate is that he or she has an arguable appeal. An oft quoted exposition of what constitutes an arguable issue was written byFreeman J.A. in Coughlan et al. v.

Westminer Canada Ltd. et al. (1994), (NS CA), 125 N.S.R. (2d) 171 at para. 11: "An arguable issue" would be raised by any ground of appeal which, if successfully demonstrated by the appellant, could result in theappeal being allowed. That is, it must be relevant to the outcome of the appeal; and not be based on an erroneous principle of law. It mustbe a ground available to the applicant; if a right to appeal is limited to a question of law alone, there could be no arguable issue basedmerely on alleged errors of fact.

An arguable issue must be reasonably specific as to the errors it alleges on the part of the trial judge; ageneral allegation of error may not suffice. But if a notice of appeal contains realistic grounds which, if established, appear of sufficientsubstance to be capable of convincing a panel of the court to allow the appeal, the Chambers judge hearing the application should notspeculate as to the outcome nor look further into the merits. Neither evidence nor arguments relevant to the outcome of the appeal shouldbe considered.

Once the grounds of appeal are shown to contain an arguable issue, the working assumption of the Chambers judge is thatthe outcome of the appeal is in doubt: either side could be successful. 50 This approach has been consistently applied by this Court. For example, in MacCulloch v. McInnes, Cooper & Robertson (2000),2000 NSCA 92 , 186 N.S.R. (2d) 398, Cromwell J.A., as he then was, wrote: [4] The appellants must show that there is an arguable issue raised on appeal. This is not a difficult threshold to meet.

What is required isa notice of appeal which contains realistic grounds which, if established, appear of sufficient substance to be capable of convincing apanel of the court to allow the appeal: see Freeman J.A., in Coughlan et al v. Westminer Canada Ltd. et al. (1993), (NS CA), 125 N.S.R. (2d) 171; 349 A.P.R. 171 (C.A.).

It is not my role as a Chambers judge hearing a stay application to enter into asearching examination of the merits of the appeal or to speculate about its probable outcome but simply to determine whether thearguable issue threshold has been reached. 51 I see no reason why the same approach is not appropriate to the requirement that a prospective appellant in a criminal case show heor she has an arguable issue. [18] In Alkhatib, the court also provided some factors to consider regarding the merits of the appeal and stated: [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. [19] Justice Beverage emphasised in Cummings: [27] In my opinion, the more merit an applicant can demonstrate in the proposed grounds of appeal, the more that weakness of anexcuse and/or the absence of a bona fide intention to appeal within the prescribed time period may fade in significance. ... [20] It is not my role as Chambers Judge to enter into a searching examination of the probable outcome of the appeal.

However, Imust consider whether there are realistic grounds of appeal which, if established, appear of sufficient substance as to be capable ofconvincing the appeal court to allow the appeal. [21] Mr. Govindaswamy also says that because he was self-represented at the time of his guilty plea and throughout the subsequentappeal period, and because he was completely unaware of the process for obtaining disclosure, he should be given some latitude. Herelies on H.(G.S.) v. Children’s Aid Society of Cape Breton, 2003 NSCA 84, for this proposition. In that case, Oland J.A. stated: XV.

I am of the view that generally, some degree of latitude in the application of the Rules should be considered for self-represented litigants. There will be those who are knowledgeable of procedural or substantive requirements through study, considerableexperience in the courts, or other means. However, the applicant here who spoke at length in chambers did not strike me as being one ofthose. Analysis 1) Bona Fide intention to appeal [22] Mr. Govindaswamy concedes that he did not have an intention to appeal during the time period provided.

He did not form anintention to appeal until he received the first piece of evidence making up Crown disclosure that was sent to him by his insurancecompany on June 13, 2019. He says that he would have filed an appeal notice within the requisite time if he had had access to theCrown disclosure during that time period.

2) Any reasonable excuse for the delay [ 23 ] On September 8, 2017, Mr. Govindaswamy emailed the police asking about the driver of the motorcycle. He received no reply. Approximately one week later, he telephoned the police and was told that they did not have any information for him. [ 24 ] Mr. Govindaswamy then contacted TD Insurance, his insurer. TD sent him an email on September 27, 2017, telling him that they would email him a copy of the police report when they receive it.

He then contacted the police for a third time and “was advised that they had not encountered a situation where the person involved in a motor vehicle accident was contacting them directly rather than going through their insurance company. The police officer told me to contact my insurance company for further information.” Mr. Govindaswamy did not hear from his insurance company again about this during the relevant time period. [ 25 ] On November 11, 2017, Mr. Govindaswamy was charged by Constable Andrew Landry. According to Mr. Govindaswamy: 7.

When I was charged on November 11, 2017, I asked Officer Andrew Landry why I was being charged so late. Mr. Landry advised me that they had obtained Dash Camera footage and that they had decided to charge me based on that footage. I thought this meant that I was guilty and that I did not have a choice but to pay the fine. I was scheduled to go to India to visit my family on November 16, 2017. I was planning on staying in India for approximately one month. I wanted to make sure that I had addressed the ticket before I went away. I paid the fine on November 13, 2017 without attending court. 8.

I did not understand that I had the right to have disclosure of the police investigation before I pleaded guilty, and I was not told that I did have the right to disclosure. I have never been involved in a Motor Vehicle Act offence before and I have never been charged under this legislation. I am unfamiliar with the procedure. I did not have a lawyer or receive legal advice, and I had not received disclosure of the police file. I understood I was to obtain information about the accident from my insurance company. [ 26 ] Mr.

Govindaswamy’s excuse for the delay is that he was unaware that the police had collected a variety of witness statements and investigatory reports. He did not become aware of any of that evidence until his insurance company sent it to him on June 13, 2019. He then hired a lawyer and obtained the remainder of his disclosure.

According to the Crown disclosure put before me on this application, the following evidence was collected by members of the Halifax Regional Police Service, mainly on September 6, 2017, and some shortly thereafter: • Written statement of Megan Lloyd taken September 6, 2017; • Written statement of J.

Michael Lee taken September 6, 2017; • Written statement of Blaine Yatabe taken September 6, 2017; • Written statement of Adam LeBlanc taken September 6, 2017; • Dash Cam footage taken by Adam LeBlanc on September 6, 2017; • Can-say of Neil Sanford taken September 6, 2017; • General Occurrence Report from Ilya Neilson and Andre Habib dated September 6, 2017; • Crash Data Recorder File Information created on September 6, 2017; • General Occurrence Report from Andrew Landry dated September 16, 2017; • General Occurrence Hardcopy Investigators Report from Peter Webber dated September 27, 2017; • Narrative Text Hardcopy from Andrew Landry dated November 11, 2017; and • Three photographs - undated. [ 27 ] Mr.

Govindaswamy says that the disclosure is exculpatory, that he is factually innocent, and that he should be allowed to withdraw his guilty plea. The Crown says the disclosure is inculpatory. Without delving too deeply into the nuances of the evidence, my review of the disclosure is that it is mainly exculpatory and would assist Mr. Govindaswamy at a trial. This includes the dash cam footage referred to by Constable Landry when he charged Mr. Govindaswamy on November 11, 2017. For the purpose of this application I accept Mr. Govindaswamy’s description of the disclosure: 9.

On June 13, 2019, my insurance company, TD Insurance, provided me with information about the accident. The information included part of the Police Report, which contained a statement from an eyewitness, Megan Lloyd. I had not seen this statement before and I did not know about it. In her statement, Ms. Lloyd said that the motorcyclist was traveling behind her on the MacDonald Bridge prior to the accident. Ms. Lloyd said that the motorcyclist tailgated her the whole way across the bridge and traveled so close that she could see his facial hair and sunglasses. Ms.

Lloyd said that after crossing the bridge, the motorcyclist then passed her vehicle illegally in a bus lane at a high rate of speed. Ms. Lloyd said that she saw my vehicle inching out from Maynard Street trying to travel across North Street onto Fuller Terrace. Ms. Lloyd said the motorcyclist was traveling so fast that there was nothing I could have done to avoid the accident. Ms. Lloyd’s witness statement is attached to this affidavit as Exhibit “D”. 10. The information TD Insurance gave me on June 13, 2019 also included an Investigator’s Report by Peter Webber.

The Investigator’s Report stated that an uninvolved motorist captured Dash Camera footage of the accident. The Investigator’s Report stated that a video was obtained from the Dash Camera footage which shows the motorcyclist driving in an aggressive manner going around a line of traffic. The Investigator’s Report stated that the motorcycle then braked in an attempt to avoid an accident before colliding with

my vehicle. The Investigator’s Report states that the accident could be classified as a preventable accident and that no further action was required. I understand this to mean that I should not have been charged. The Investigator’s Report appears to place responsibility for the accident on the motorcyclist. Attached to this affidavit as Exhibit “E” is a copy of the Investigator’s Report. [Govindaswamy Affidavit, sworn July 19, 2019] … a. The “Accident Description”, which is attached to this Affidavit as Exhibit “A”, was authored by Constable Andrew Landry on September 16, 2017.

Constable Landry reported that the motorcyclist, Veh 1, was “travelling West on North St at Maynard St at a high rate of speed, weaving in out of traffic”, and that my vehicle, Veh 2, was “inching his way across the intersection” at North Street and Maynard Street. Constable Landry reported further that: While Veh 2 was checking Westbound traffic to make sure it was clear, Veh 1 travelling at such a rate of speed so as not to be able to react smashed into the front passenger side of Veh 2. b.

The “Follow Up Report #Hp 1”, which is attached to this Affidavit as Exhibit “B”, notes that the scene of the accident was photographed. A photograph depicting the accident scene from the west is attached to this Affidavit as Exhibit “C”. A photograph showing the accident scene from the east is attached to this Affidavit as Exhibit “D”. The “Follow Up Report #Hp 1” states that the motorcycle had skid damage to the front tire. The skid mark in the westbound lane of North Street was photographed, which is attached hereto as Exhibit “E”. c.

Neil Sanford provided a civilian witness Can Say Statement, which is attached as Exhibit “F” to this Affidavit. Mr. Sanford stated that he was on the roof of 2581 Maynard Street at the time of the accident. He stated that he heard a motorcycle “rev” its engine and that it sounded like the motorcycle was accelerating. Mr. Sanford stated that he then heard screeching of tires and a crash. d. J. Michael Lee provided a Witness Statement, which is attached to this Affidavit as Exhibit “G”. Dr. Lee stated that he was travelling east on North Street at the time of the accident. Dr.

Lee was proceeding east on North Street and was passing a Laundromat when he then heard the motorcyclist “gun” the engine and screech forward. Dr. Lee wondered “what’s the hurry?” He looked into his rear view mirror and saw the motorcyclist smash into my vehicle. Dr. Lee described the motorcyclist as rapidly accelerating and estimated that the motorcyclist may have reached 50 kph before hitting my vehicle. e. In his Witness Statement, which is attached to this Affidavit as Exhibit “H”, Blaine Yatabe stated that he was driving towards the bridge, traveling eastbound on North Street.

He stated that he heard the motorcycle “revving up” the engine, and it appeared that the motorcycle was traveling fast. Mr. Yatabe stated that he observed my vehicle inching out slowly into the intersection. Mr. Yatabe stated that he did not see the crash, but heard it. f. Civilian witness Adam Leblanc provided a Witness Statement, which is attached to this Affidavit as Exhibit “I”. Mr. Leblanc stated that he had a Dash Camera operating in his vehicle at the time of the accident. g. Dash Camera footage was obtained from Mr. Leblanc, and a copy of the footage is attached to this Affidavit as Exhibit “J”.

The Dash Camera footage shows Mr. Leblanc at the intersection of North Street and Gottingen Street. The footage shows a green light and a flashing left green arrow. Mr. Leblanc’s vehicle proceeds slowly from a stop through the intersection. He is travelling behind a silver Hyundai bearing an Ontario license plate. In front of the silver Hyundai is the motorcyclist, who is proceeding behind Ms. Lloyd’s vehicle. The footage shows that Ms. Lloyd’s vehicle is the first vehicle in this line of traffic proceeding west on North Street. Mr. Leblanc’s voice can be heard on the footage talking with a woman on the phone.

The footage shows that when Ms. Lloyd’s vehicle travels through the crosswalk on Gottingen Street, the motorcyclist veers into a “bus only” lane, passing near a cyclist who was traveling westbound on North Street. The footage then shows the motorcyclist moving back into the proper lane directly in front of Ms. Lloyd’s vehicle. Mr. Leblanc can be heard laughing at the motorcyclist’s actions, stating “that was — that was thrilling”. The footage shows Mr. Leblanc’s vehicle proceeding over a crest. The view of the motorcyclist is blocked by the crest and the traffic directly in front of Mr. Leblanc. As Mr.

Leblanc’s vehicle travels over the crest, the footage shows my vehicle stopped on North Street. The footage shows Mr. Leblanc’s vehicle approaching the scene of the accident, and the motorcycle is not visible until Ms. Lloyd’s vehicle is near the crosswalk on North Street at Maynard Street. The footage shows that the accident has already occurred. The footage does not show the impact. The footage shows that Ms. Lloyd was in the best position of all of the witnesses to observe the accident. h. The “Crash Data Retrieval” (CDR) obtained from my vehicle is attached to this Affidavit as Exhibit “J”.

Page 9 of the CDR included Pre-Crash Data taken from my vehicle in the five seconds immediately prior to the accident. The Pre-Crash Data shows that my vehicle was not moving 3.5 seconds prior to the accident. The Pre-Crash Data shows that at 2.5 seconds prior to the accident, my vehicle was traveling at 6 kph. At 1.5 seconds before the accident, my vehicle was traveling at 8 kph. The Pre-Crash Data shows that 0.5 seconds before the accident, my brake was engaged and my vehicle was traveling at 12 kph. At the moment of impact, my brake was engaged and my vehicle was traveling at 6 kph. i.

Constable Landry’s “Officers Notes” dated November 11, 2017, which is attached hereto as Exhibit “K” describes Ms. Lloyd’s evidence and states that it appears that I had no time to react. Constable Landry’s notes conclude by stating that he issued me a

Summary Offence Ticket on November 11, 2017 for failing to yield at a through highway. Disclosure [ 28 ] During the course of the hearing, I asked counsel whether there was any obligation on the police or the Crown to disclose Crown material in advance of plea in a Motor Vehicle Act case. Counsel were provided an opportunity to file briefs on this issue subsequent to the hearing. [ 29 ] Mr. Govindaswamy concedes that there is no authority in Nova Scotia to support the proposition that the Crown is obligated to provide disclosure in advance of entering a plea when an individual is charged under the Motor Vehicle Act . He points to the decision of

Moir J. in R. v. Murray, 2010 NSSC 296. In that case Moir J. discussed R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326,where Sopinka J. set out the Crown’s disclosure obligations in criminal matters. Justice Moir considered Sopinka J.’s commentsregarding the possible differences in disclosure obligations between

summary conviction and indictable offences, as well as possibledifferences in Crown obligations when dealing with an unrepresented accused. Justice Moir stated: 18 The Crown refers to para. 26 of R. v. Stinchcombe, (SCC), [1991] S.C.J. No. 83 where Justice Sopinka, who wrotefor a unanimous court, pointed out that "The general principles referred to herein arise in the context of indictable offences." Thedisclosure obligation arose from the right to make full answer and defence as entrenched by s. 7 of the Charter. Justice Sopinka warnedthat in

summary conviction offences the right "may be of a more limited nature". He left the question of "the extent to which the generalprinciples of disclosure extend to

summary conviction offences" for a future decision but said "In view of the number and variety ofstatutes which create such offences, consideration would have to be given as to when to draw the line." 19 On the basis of those remarks in Stinchcombe, the Crown submits that "initial relevant disclosure" is provided through delivery of theticket when the charge was laid. "Further disclosure, after the initial disclosure, means that the Appellant must ask." 20 The law and practice of Crown disclosure in criminal cases developed in the twenty years since Stinchcombe was decided.

We havemoved from the Crown position in Stinchcombe (the content of witness statements does not have to be disclosed) to an expectation that isinconsistent with the two parties attending for trial, one with a contemporaneous statement prepared by the principal witness in his fileand the other without knowledge of it. The present practice appears to include the preparation of a disclosure package that includes allrelevant information in the prosecutor's possession. One does not expect defence counsel to have to ask for this disclosure.

It appearsfrom the cases that the contentious issues usually concern what is, or is not, relevant or obligations of the Crown for disclosure ofrelevant documents that are not necessarily in its possession. 21 Stinchcombe itself shows that "He did not request it." is no answer, at least not in cases of accuseds who act on their own. Thequestion is whether it is an answer in speeding cases. 22 The first thing to observe about the Crown's position is that the paragraph it relies on in Stinchcombe decides nothing. "A decision asto the extent to which the general principles of disclosure extend to

summary conviction offences should be left to a case in which theissue arises in such proceedings." 23 The Supreme Court of Canada has not, as far as I am aware, dealt with the issue of disclosure in less serious cases. However, theweight of authority is with these propositions: 1.The requirement for Crown disclosure as established by Stinchcombe applies to all charges. 2.The extent of disclosure, the application of the principle in Stinchcombe, may be relaxed for lesser charges, but not necessarilyaccording to the distinction between indictable offences and

summary conviction offences. 3.In less serious cases, the extent of required disclosure depends on a number of factors, many of which have now been identified by thecourts. … 26 Thus, the state of the law in Nova Scotia is that in speeding cases the Crown's obligation for disclosure may extend to materialsrequested by the defence and shown to be relevant although they are not directly in the possession of the prosecutor. 27 R. v. Driscoll-Rogers, 2008 ONCJ 581 , [2008] O.J. No. 4572 (C.J.) was also a speeding case.

It held that "the nature of thisoffence" was such that "disclosure can be simple and brief" (para. 21). The Crown had provided the officer's notes. The accused arguedthat she was entitled to an explanation of the notes and to the operating procedures for the speed tracking device. The court held that theproduction of the notes was sufficient. 28 R. v. Collins, [2010] A.J. No. 666 (P.C.) was also a speeding case. Judge Rosborough said at para. 50: Pre-trial disclosure of the case for the prosecution is intended to assist the accused in making full answer and defence and, ultimately,enjoy a fair trial.

That principle maintains regardless of whether the offence is criminal or regulatory; simple or complex. The applicationof that principle will vary, however, depending on a variety of factors to be discussed below. These factors include the seriousness of the offence, the complexity of the case, and the range of penalty (para. 61). 29 The court also took into account the large volume of speeding offences (para. 61).

I think that this consideration is within anotherfactor recognized by the courts in settling the limits of disclosure for less serious offences, the ease with which the prosecution can makethe requested disclosure: Toronto (City) v. Canada Land Corp., [2006] O.J.

No. 4489 (O.C.J.). 30 The court in Collins concluded that the duty of disclosure in speeding cases "will generally be satisfied by providing the accused witha copy of the violation ticket and the sheriff's notes on the obverse of that ticket" (para. 94). 31 In my assessment, the least disclosure required in a speeding case is the production of witness statements actually in the possession ofthe prosecutor, particularly the contemporaneous statement recorded on the reverse of the ticket, the very document delivered to thecity's legal department so that a file can be opened and the prosecution is set up. 32 Even at the minimum level of the factors of seriousness, complexity, and penalty the right to disclosure exists.

Further, theseriousness factor should not be overemphasized. A person who will never face an indictable offence may find a less serious charge tobe personally important and, as Mr. Murray pointed out, the loss of driving privileges for six months by a single parent may have seriousconsequences for him and his children.

33 Further, the absence of great seriousness, complexity, and penalty must be balanced against the ease of disclosure. In my view, thecaution raised by Justice Sopinka at para. 26 is out of concern for fairness to the public in keeping the voluminous

summary offenceproceedings efficient. Here, the disclosure would be as easy as sending a photocopy of the reverse of the ticket to the accused at theaddress provided. The requirement would not be onerous in light of the volume of speeding charges if it arose on request by the accusedor on instruction of an accused who acts on his own, subjects to be discussed under the next title. 34 The factors aside, the prospect of two parties appearing for trial, one with a contemporaneous statement from the principal witnessand one without, appears unfair to me.

Disclosure of such a statement is so basic to fairness that it should be in the minimum of what isrequired even in cases that are the least serious. Justice Sopinka said at para. 30 of Stinchcombe "There is virtually no disagreement thatstatements in the possession of the Crown obtained from witnesses it proposes to call should be produced." [30] The Crown relies on Murray as the only authority in Nova Scotia on the issue of Crown disclosure obligations in Motor VehicleAct prosecutions. The Crown says that prior to an accused being charged with a Motor Vehicle offence, there simply is no file todisclose.

Additionally, they say that, on the facts, Mr. Govindaswamy never actually requested his disclosure, and that he pleaded guiltybecause he thought he was guilty. The Crown adds: 20. The

Summary Proceedings Act and

Summary Offence Tickets Regulations set out the procedures and forms relevant to

summaryoffence tickets. The Act and Regulations do not require police to inform a person of their ability to request disclosure every time thatthey issue a ticket. The Act allows for service of a ticket by registered mail and for service of a parking ticket by placing the ticket onthe vehicle. Both of these methods of issuing a ticket would require legislative change to include a requirement of informing an accusedof their ability to request disclosure. 21. Further, the back of the ticket, as set out in the regulations, provides information about the effect of a guilty plea and the rights ofthe defendant.

If the legislature intended to require enforcement officers to provide other information to a defendant, it could haveincluded the information on the ticket. 22. The legislature established the appropriate time in the process to inform a defendant of their ability to request disclosure. Thattime is when a defendant files “Form A-1 – Notice of Intention to Appear in Court” (Attached to this brief at Tab 3). When a defendantcompletes this form they are notified in writing: “You are entitled to request disclosure concerning the circumstances of your offencefrom the Crown.

You may contact the Court for the address of the local Crown office”. Form A-1 is in the

Summary Offence TicketsRegulations. The notice is consistent with Justice Moir’s decision in Murray, paragraph 39. 23. A due diligence defence is not available to the defendant. There was no obligation on the police. [31] However, Mr. Govindaswamy says that: 29. Mr. Govindaswamy should have been advised [sic] disclosure process before he paid the fine.

While Moir J found that unfairnessusually does not result from a decision to plead guilty to a regulatory offence without knowledge of the ability to request disclosure,significant unfairness arises in this case, where there were a number of requests made to the police for information about the accident. Itis necessary in this case to recognize an obligation on the part of the police to advise Mr.

Govindaswamy of the right to requestdisclosure on the basis that he showed an interest in his defence and in exercising his rights by making repeated requests for disclosure. [32] The Supreme Court of Canada has rendered many decisions regarding disclosure in Criminal Code matters, but not in respect ofregulatory matters such as Motor Vehicle Act offences. In Stinchcombe, Sopinka J. stated: 28.

With respect to timing, I agree with the recommendation of the Law Reform Commission of Canada in both of its reports that initialdisclosure should occur before the accused is called upon to elect the mode of trial or to plead. These are crucial steps which theaccused must take which affect his or her rights in a fundamental way. It will be of great assistance to the accused to know what are thestrengths and weaknesses of the Crown's case before committing on these issues.

As I have pointed out above, the system will alsoprofit from early disclosure as it will foster the resolution of many charges without trial, through increased numbers of withdrawals andpleas of guilty. The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made atany time after the charge. Provided the request for disclosure has been timely, it should be complied with so as to enable the accusedsufficient time before election or plea to consider the information.

In the rare cases in which the accused is unrepresented, Crowncounsel should advise the accused of the right to disclosure and a plea should not be taken unless the trial judge is satisfied that this hasbeen done. At this stage, the Crown's brief will often not be complete and disclosure will be limited by this fact. Nevertheless, theobligation to disclose is a continuing one and disclosure must be completed when additional information is received. [Emphasis added] [33] Justice Sopinka went on to explain: 34.

No request was made in this case for disclosure prior to pleading or electing the mode of trial and this issue does not, therefore,arise. [34] Stinchcombe confirmed that the Crown is obligated to disclose the fruits of the investigation, meaning all relevant information,including information that could assist in raising a defence or assisting the defence in determining the conduct of their case. An accusedmust know and be able to meet the case against him or her. Every accused has the right to make full answer and defence. [35] In R. v.

Egger, (SCC), [1993] 2 S.C.R. 451, Sopinka J. expanded on the comments in Stinchcombe regardingthe timing of disclosure: 21. Finally, as to the timing of disclosure, the Court held in Stinchcombe that initial disclosure should occur before the accused is calledupon to elect the mode of trial or to plead. The reason for this was that "[t]hese are crucial steps which the accused must take whichaffect his or her rights in a fundamental way" (at p. 342).

This reasoning does not apply just to the fundamental steps of election orpleading, but to any situation in which the accused is expected to take steps which affect or may affect his or her right to make fullanswer and defence. The Crown's disclosure obligation in such circumstances extends at least to the disclosure of information which is

relevant and necessary for the accused to make a decision whether or not to take such steps. [Emphasis added] [36] Justice Moir held that the disclosure obligations on the Crown in Motor Vehicle Act cases are different than those in indictableCriminal Code matters.

Therefore, the timing of disclosure as held in Murray for Motor Vehicle Act matters is seemingly at odds withthe timing of disclosure as outlined by the Supreme Court of Canada in indictable criminal cases. [37] Considering the test for extending time to appeal, it is not necessary for me to determine whether or not I agree with Moir J.regarding disclosure obligations in Motor Vehicle Act matters on the facts of the instant case. This application can be decided without afinal determination of that legal issue. Analysis [38] While Mr.

Govindaswamy did not formally request “disclosure” from the Crown prior to entering his guilty plea, he did ask thepolice for information about the case, albeit most of his requests were before he was actually charged. His discussions with ConstableLandry occurred simultaneously with his being charged.

Whether or not, as Moir J. determined in Murray, all of the Stinchcombestandards do not strictly apply to the timing of disclosure (prior to plea) when dealing with regulatory offences like the Motor VehicleAct, fairness is still of paramount importance. [39] Charter principles must always be kept in mind when dealing with criminal or quasi-criminal matters. The words of Charron J.in R. v.

McNeil, 2009 SCC 3, must therefore be considered in determining whether the interests of justice require an extension of time inthis case: 23 Under our Canadian system of law enforcement, the general duty to investigate crime falls on the police, not the Crown. The fruits ofthe investigation against an accused person, therefore, will generally have been gathered, and any resulting criminal charge laid, by thepolice. While the roles of the Crown and the police are separate and distinct, the police have a duty to participate in prosecutions: see, forexample, s. 42(1)(

e) of the Ontario Police Services Act. Of particular relevance here is the police's duty to participate in the disclosureprocess. The means by which the Crown comes to be in possession of the fruits of the investigation lies in the corollary duty of policeinvestigators to disclose to the Crown all relevant material in their possession. The police's obligation to disclose all material pertainingto the investigation of an accused to the prosecuting Crown was recognized long before Stinchcombe. The state of the law was wellsummed up by the Honourable G.

Arthur Martin, Q.C., in his Report of the Attorney General's Advisory Committee on ChargeScreening, Disclosure, and Resolution Discussions (1993) ("Martin Report"), at pp. 167-68: It is well settled and accepted by all, including the police, that the police, although operating independently of Crown counsel, have aduty to disclose to Crown counsel all relevant information uncovered during the investigation of a crime, including information whichassists the accused... .

As one commentator has observed, "the duty of the police to disclose relevant information about a case, to theCrown, is a duty that existed before [Stinchcombe, supra]". 24 The corollary duty of the police to disclose to the Crown the fruits of the investigation is now well recognized in the appellatejurisprudence. ... It is also widely acknowledged that the Crown cannot explain a failure to disclose relevant material on the basis that theinvestigating police force failed to disclose it to the Crown. ... … 49 The Crown is not an ordinary litigant.

As a minister of justice, the Crown’s undivided loyalty is to the proper administration ofjustice. As such, Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter. Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfill its duty as an officerof the court without inquiring further and obtaining the information if it is reasonably feasible to do so. [40] Additionally, in R. v.

Dixon, (SCC), [1998] 1 S.C.R. 244, Cory J. discussed the Crown’s duty to disclose andstated: 21 Clearly the threshold requirement for disclosure is set quite low. As a result, a broad range of material, whether exculpatory orinculpatory, is subject to disclosure. ... In particular, "all statements obtained from persons who have provided relevant information to theauthorities should be produced notwithstanding that they are not proposed as Crown witnesses" (p. 345).

The Crown's duty to disclose istherefore triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer anddefence. ... 22 The obligation resting upon the Crown to disclose material gives rise to a corresponding constitutional right of the accused to thedisclosure of all material which meets the Stinchcombe threshold.

As Sopinka J. recently wrote for the majority of this Court in R. v.Carosella, (SCC), [1997] 1 S.C.R. 80, at p. 106: The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer anddefence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. Breach of that obligation is a breach of theaccused's constitutional rights without the requirement of an additional showing of prejudice.

Thus, where an accused demonstrates a reasonable possibility that the undisclosed information could have been used in meeting the casefor the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he has alsoestablished the impairment of his Charter right to disclosure. … 33 The evidence required to meet this burden and the factors to be considered will differ according to the particular right at issue and theparticular remedy sought.

For example, where a court is persuaded that undisclosed information meets the Stinchcombe threshold, anaccused has met his burden to establish a violation of his Charter right to disclosure. As noted above, the appropriate remedy for such a

violation is, at trial, an order for production or an adjournment. Where non-disclosure is raised on an appeal from a conviction, an accused must, as a threshold matter, establish a violation of the right to disclosure. Further, the accused bears the additional burden of demonstrating on a balance of probabilities that the right to make full answer and defence was impaired as a result of the failure to disclose. 34 This burden is discharged where an accused demonstrates that there is a reasonable possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process. ...

Imposing a test based on a reasonable possibility strikes a fair balance between an accused's interest in a fair trial and the public's interest in the efficient administration of justice. It recognizes the difficulty of reconstructing accurately the trial process, and avoids the undesirable effect of undermining the Crown's disclosure obligations. This would be the result if the Crown were placed in a better position by withholding rather than disclosing information of relatively low probative value. However, the reasonable possibility to be shown under this test must not be entirely speculative.

It must be based on reasonably possible uses of the non-disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosure. If this possibility is shown to exist, then the right to make full answer and defence was impaired. [ 41 ] Whether or not the Crown had a specific duty to disclose prior to plea, in the specific circumstances of this case the manner in which disclosure was handled contributed to establishing a reasonable excuse for the delay. 3.

Merits of the appeal [ 42 ] I accept for the purpose of this application that the Crown disclosure is mainly exculpatory. That said, initially the police told Mr. Govindaswamy that he would have to obtain disclosure from his insurer. The disclosure obligations on the police were not explained to him in any further detail. Constable Landry told him on November 11, 2017, that he was being charged as a result of the dash cam footage, implying that it was inculpatory. Mr. Govindaswamy was not aware of the potentially exculpatory evidence collected by the police prior to entering his guilty plea.

This gives credence to Mr. Govindaswamy’s claim that he has an arguable issue, and that there is a reasonable basis to conclude that his appeal may have merit. 4. Whether justice requires that the extension be granted [ 43 ] Mr. Govindaswamy was self-represented when he entered his guilty plea. He pleaded guilty without the benefit of Crown disclosure. The police had conducted an investigation of the accident and the disclosure was mainly exculpatory. Yet, when Mr. Govindaswamy attempted to obtain information about the case from the police they did not provide him with any disclosure.

When Constable Landry charged him he said he had done so on the basis of the dash cam footage. The dash cam footage shows the motorcycle stopped in a line of traffic coming off the McDonald Bridge; the motorcycle accelerating rapidly away from a standstill; the motorcycle weaving into the bus lane to pass slower moving vehicles; and the motorcycle continuing to accelerate toward Fuller Terrace. The dash cam footage does not show the collision a few seconds later between the motorcycle and Mr.

Govindaswamy’s vehicle, however, several of the witness statements in the disclosure do reference witnessing the collision. Some of the statements are exculpatory and one, that of Adam LeBlanc (who later provided the dash cam footage), was either inculpatory or neutral. [ 44 ] Mr.

Govindaswamy says that due to a constellation of factors he was misled as to the nature of the evidence the police had in their possession and his resulting culpability. [ 45 ] Based on all of the evidence presented on this motion, and the test for extending the time for an appeal, in the unique circumstances of this case, the interests of justice require that an extension of time be granted. Conclusion [ 46 ] Mr. Govindaswamy’s motion to extend time for the appeal is granted. Arnold, J.