Docket: CACR1997 Harry Samuel Dunsford Applicant - v. -, 2012 SKCA 79

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 79 Date: 20120816 Between: Docket: CACR1997 Harry Samuel Dunsford Applicant - and - Her Majesty the Queen Respondent Before: Ottenbreit J.A. (in Chambers) Counsel: James T.D. Scott, for the Applicant W. Dean Sinclair, for the Respondent

Application: From: QBJ 15 of 2008, J.C. of Saskatoon Heard: July 25, 2012 Disposition: Time Extended Written Reasons: August 16, 2012 By: The Honourable Mr. Justice Ottenbreit Ottenbreit J.A. [1] Harry Samuel Dunsford was convicted of aggravated assault and after a dangerous offender hearing was sentenced to anindeterminate period of incarceration. He has appealed his sentence and now applies to extend the time to appeal his conviction as welland also amend the grounds of his sentence appeal. [2] This application is governed by s. 678(2) of the Criminal Code, R.S.C. 1985, c.

C-46, and Rule 7(2) of The Court of AppealCriminal Appeal Rules (Saskatchewan). The applicable principles are set forth in R. v. Morin, 2005 SKCA 37, 195 C.C.C. (3d) 190where Cameron J.A. set out the factors which must be taken into consideration: 6 Only in "special circumstances" are the courts willing to extend the time for appeal as they are empowered to do by section 678(2)of the Criminal Code or its equivalent. In assessing the circumstances with this in mind, the courts have conventionally employed thefollowing criteria: (

i) Did the applicant have a bona fide intention to appeal before the time for appeal expired? (ii) Has the applicant satisfactorily explained why he did not exercise his right of appeal within the prescribed time? (iii) Would the respondent be unduly prejudiced by an extension of time? (iv) Is there merit in the proposed appeal, which is to say does it raise a reasonably arguable issue? (

v) Do the interests of justice weigh in favour of extending the time for appeal? [3] The principles enunciated in Morin are not stages that need to be surpassed in order for an extension of time to be granted. All of thefactors are to be considered and the degree of weight to be afforded to each factor will depend on the circumstances of the case. This ismade clear by Richards J.A. in R. v. Woods, 2006 SKCA 123, 285 Sask.R. 314: 12 … Fourth, and not insignificantly, the cases do not apply the considerations listed in R. v.

Morin as if they are mandatorypreconditions, each one of which must be clearly satisfied before the time to appeal can be extended. Rather, the considerations representsomething more in the nature of a framework for deliberation. See: R. v. Menear, (2001), (ON CA), 162 C.C.C. (3d)233 (Ont. C.A.). The failure of an applicant to satisfy one of the Morin considerations is not necessarily fatal to his or her application foradditional time for commencing an appeal. …

[ 4 ] Other courts of appeal take the same view. The Manitoba Court of Appeal in R. v. Arganda , 2011 MBCA 24 , 269 C.C.C. (3d) 88: 6 But as noted in R. v. Truong (H.M.) , 2007 ABCA 127 , 404 A.R. 277 (at para. 6 ): .... These elements are factors only, however, and the court retains the discretion to relieve the applicant from failure to fulfil any of these requirements where special circumstances so warrant, to prevent a miscarriage of justice .... [ 5 ] In short, the main consideration in determining whether or not to grant an extension of the time to appeal is if it would be in the interests of justice.

The criteria from Morin are helpful factors to consider but they do not amount to a rigid test ( R. v. Garland , 2008 ONCA 134 at para. 3 ). [ 6 ] The material submitted on this application as a whole discloses the following germane background facts:

(1) Mr. Dunsford was convicted of aggravated assault on April 29, 2009;

(2) Mr. Dunsford did not testify or call any evidence to dispute the Crown’s case during the trial;

(3) Counsel for Mr. Dunsford did not argue that he should be acquitted at the trial;

(4) The Crown’s case at trial was based on Mr. Dunsford’s confession and on DNA evidence linking him to the crime;

(5) In August of 2009 the trial judge raised with Mr. Dunsford’s counsel at the time the point that if his conviction appeal was to be filed, that it should be considered before the dangerous offender proceedings;

(6) At the dangerous offender proceedings, Mr. Dunsford applied for an interpreter who spoke Saulteaux because this was his first language and he claimed he had difficulty understanding the proceedings;

(7) After a two day hearing at which Mr. Dunsford called two witnesses and the Crown called several witnesses, the trial judge dismissed Mr. Dunsford’s application for an interpreter. The trial judge found that there was no sound evidence supporting the notion that Mr. Dunsford required an interpreter;

(8) The dangerous offender hearing proceeded without an interpreter. Mr. Dunsford was found to be a dangerous offender on March 16, 2011;

(9) On April 7, 2011 Mr. Dunsford signed a Notice of Appeal appealing his sentence only. The grounds therein in part related to his lack of an interpreter during the dangerous offender hearing;

(10) Mr. Dunsford filed a new Notice of Appeal dated January 13, 2012 appealing his sentence. The grounds therein related to the lack of an interpreter;

(11) On May 28, 2012 Mr. Dunsford’s new counsel applied to extend the time for Mr. Dunsford to appeal the conviction. [ 7 ] Mr. Dunsford filed an affidavit on this application swearing that he does not know how to read or write, that he cannot understand what is going on in court and that he has a hard time understanding what people tell him about the law. He also swears that he wants to appeal his conviction and he didn’t know he could appeal his sentence and conviction. [ 8 ] The affidavit of Sheila Fleischhacker, a social worker at the Regional Psychiatric Centre in Saskatoon indicates that Mr.

Dunsford’s verbal comprehension, working memory and processing speed abilities fall within the extremely low range and that he has difficulty

understanding what he has been told, expressing himself and communicating with others. [ 9 ] The proposed Notice of Appeal of the conviction sets forth five grounds as follows: 1. The learned trial Judge erred in law and in fact when he did not take Harry Samuel Dunsford’s cognitive ability into consideration when he found that Harry Samuel Dunsford’s video taped interview with police was voluntary; 2.

The learned trial Judge erred in law and in fact when he did not take Harry Samuel Dunsford’s lack of understanding of the English language into consideration when he found that Harry Samuel Dunsford’s video taped interview with police was voluntary; 3. The learned trial Judge erred in law when he found that Harry Samuel Dunsford’s right to be informed promptly of the reasons for his arrest and detention pursuant to

section 10(

a) of the Charter of Rights and Freedoms was not breached in circumstances where the learned trial Judge had found as fact that the police did not inform Harry Samuel Dunsford of the reasons for his arrest for 72 hours after his arrest; 4.

The learned trial Judge erred in law when he did not take responsibility for ensuring that the proceedings were fair and in accordance with the principles of natural justice in that the learned trial Judge failed to make an inquiry of Harry Samuel Dunsford as to whether he had difficulty understanding the proceeding in circumstances where the learned trial Judge knew that Harry Samuel Dunsford was a member of the Little Grand Rapids First Nation and that Harry Samuel Dunsford did not speak English as a first language; 5.

That Harry Samuel Dunsford’s right to full answer and defence was breached when he was not provided with an interpreter during the trial pursuant to Sections 7 , 14 , 15 and 25 of the Charter ; [ 10 ] For the reasons which follow, Mr. Dunsford’s applications to extend the time to appeal his conviction and amend the grounds of his sentence appeal are granted. [ 11 ] Applying the first criteria set out in Morin , it is not clear that Mr. Dunsford had an intention to appeal his conviction. The Crown makes valid points that Mr.

Dunsford was represented by counsel throughout, was advised upon conviction that an appeal should be filed before the dangerous offender hearing started and the first and second Notices of Appeal which Mr. Dunsford did file refer to issues arising out of the dangerous offender hearing. Moreover, the Crown points to various apparent admissions of guilt which Mr. Dunsford made during the dangerous offender assessment process and after sentencing which the Crown says underline his lack of intention to appeal his conviction. Whether these admissions arise because Mr.

Dunsford had no true intention to appeal or because he was attempting to be co-operative in order to benefit himself during the dangerous offender process and afterwards, is unclear. Mr. Dunsford’s explanation for his failure to file a conviction appeal is, in a nutshell, that he has an inability to understand what is happening to him. There is some evidence of that on the materials before me. It is possible that despite the assistance and advice of counsel, Mr.

Dunsford really does have difficulty understanding the law and procedures respecting his conviction and sentencing and that has resulted in his failure to file a conviction appeal. Likewise, Mr. Dunsford has been without the assistance of counsel from the time of the sentencing to just recently and both Notices of Appeal of sentence which were filed by Mr. Dunsford were done so without the benefit of counsel. On the whole, however, I am not satisfied that Mr.

Dunsford has proven that he had an intention to appeal within the time limited. [ 12 ] With respect to the issues of whether the Crown will be unduly prejudiced by an extension of time and whether there are arguable issues in the appeal, the Crown admits that there will be no great prejudice and that Mr. Dunsford does, in fact, have some reasonably arguable grounds of appeal.

I take the admission respecting the grounds as an admission that there is some merit in the proposed grounds in terms of the Morin factors despite the Crown’s position that those grounds will inevitably fail to win the day. [ 13 ] This leaves the last factor in Morin , i.e. , whether the interests of justice weigh in favour of extending the time for appeal. The Crown argues that it would be pointless to order a new trial given Mr. Dunsford’s post-conviction admissions of guilt.

However, this ignores the arguable issues respecting his conviction in the first place. [ 14 ] The Crown on this application also emphasized Mr. Dunsford’s lack of bona fide intention. However, it would, in this case, be unwise to give this factor undue weight. The Crown has admitted that there would be no prejudice to allow Mr. Dunsford time to appeal his conviction and that Mr. Dunsford has set forth some reasonably arguable grounds of appeal. In this case these factors should be given greater weight.

Despite the fact that there is not a completely satisfactory explanation of why a conviction appeal was not undertaken sooner and I am not completely satisfied that there was a bona fide intention to appeal within the time limited, in my view, the interests of justice require that the time be extended for Mr. Dunsford to appeal his conviction. [ 15 ] There will be an order accordingly that the time allowed for Mr. Dunsford to file his Notice of Appeal of his conviction in this

matter be extended to and including 15 days from the date of this decision. The amendments to the Notice of Appeal of sentence are granted. The Notice of Appeal of conviction and sentence shall be in the form filed on this application. Insofar as leave may be required by s. 675 of the Criminal Code that matter is for the panel hearing the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 16 th day of August, A.D. 2012. “Ottenbreit J.A.” Ottenbreit J.A.