R v Dustyhorn, 2017 SKCA 82

Court of Appeal for Saskatchewan Docket: CACR3006 Citation: R v Dustyhorn , 2017 SKCA 82 Date: 2017-10-02 Between: David Dustyhorn Applicant/Proposed Appellant And Her Majesty the Queen Respondent/Proposed Respondent Before: Richards C.J.S. (in Chambers) Disposition: Application granted On Application From: CRIM 174 of 2016, Regina Application Heard: September 13, 2017 Counsel: David W. Andrews, Q.C., for the Applicant W. Dean Sinclair, Q.C., for the Respondent Richards C.J.S. [ 1 ] Mr. Dustyhorn was convicted of a number of offences including arson under s. 434 of the Criminal Code .

He was sentenced to a total of 49 months in prison. The Crown has appealed that sentence. Mr. Dustyhorn seeks an extension of the time for appealing the arson conviction. [ 2 ] The key features of the timeline underpinning this application are as follows: • March 10, 2017 – Mr. Dustyhorn was convicted. • June 14, 2017 – Mr. Dustyhorn was sentenced. • June 26, 2017 – the Crown filed its notice of appeal against the sentence. • July 11, 2017 – Mr. Dustyhorn was served with the Crown’s notice of appeal. • July 25, 2017 – the Crown sent a courtesy letter to Mr.

Dustyhorn’s counsel advising of its appeal. • July 28, 2017 – Mr. Dustyhorn’s counsel advised the Crown that Mr. Dustyhorn wanted to appeal the arson conviction and sought the Crown’s consent for an extension of time for bringing the appeal. • August 11, 2017 – the Crown advised that it would not consent to an order extending the time for appealing the arson decision. • August 28, 2017 – Mr. Dustyhorn filed an application seeking an extension of the time for appealing the arson conviction. [ 3 ]

Section 8 of The Court of Appeal Criminal Appeal Rules (Saskatchewan) provides that an appeal shall be commenced by filing a notice of appeal within 30 days after the date of the imposition of sentence. However, s. 678(2) of the Criminal Code allows the Court, or one of its judges, to extend this time.

It reads as follows: 678(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. [ 4 ] A number of matters have been identified as considerations to be taken into account when deciding whether to extend the time for appealing a decision. In R v Roberge , 2005 SCC 48 , [2005] 2 SCR 469, albeit dealing with s. 59(1) of the Supreme Court Act , RSC 1985, c S-26, rather than s. 678(2) of the Code , the Supreme Court identified the following factors: 1.

Whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposing party within 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. [ 5 ] The Saskatchewan decision that is perhaps most frequently cited in relation to s. 678(2) is R v Morin , 2005 SKCA 37 , 195 CCC (3d) 190.

It suggests that another of the factors to be considered is whether the “interests of justice” weigh in favour of extending the time to appeal. I would note, however, that the interests of justice is really the end-of-the-day issue that must be decided in a s. 678(2) application. In other words, the interests of justice consideration is not just a factor like whether the applicant formed an intention to

appeal before the appeal period expired or whether the applicant satisfactorily explained the delay. As the Supreme Court said in R vRoberge at paragraph 6, “[t]he ultimate question is always whether, in all the circumstances and considering [the relevant factors], thejustice of the case requires that an extension of time be granted.” [6] Relatedly, I also note that the considerations listed above are not in the nature of necessary pre-conditions, each of whichmust be satisfied before the time to appeal can be extended.

Rather, they represent something more in the nature of a framework fordeliberation or a roster of considerations to be taken into account when exercising discretion pursuant to s. 678(2). See: R v Woods, 2006SKCA 123, 285 Sask R 314 (in Chambers); R v Menear (2002), (ON CA), 162 CCC (3d) 233 (Ont CA); R vArganda, 2011 MBCA 24, 269 CCC (3d) 88 (in Chambers); R v Garland, 2008 ONCA 134 (in Chambers). The failure of an applicant tosatisfy one of the above considerations is not necessarily fatal to his or her application for additional time for commencing an appeal.

Asnoted, the overriding consideration in determining whether or not to grant an extension of the time to appeal is always whether it wouldbe in the interests of justice to do so. [7] With that background, let me now turn to the various factors that, in the particular circumstances of Mr. Dustyhorn’sapplication, serve to inform the question of whether it is in the interests of justice that the time for filing a notice of appeal be extended. [8] The first consideration is whether Mr. Dustyhorn formed a bona fide intention to appeal within the prescribed time period.On this front, counsel for Mr.

Dustyhorn avers that, immediately following the trial judge’s conviction decision, he expressed concernsabout the arson conviction to the prosecutor and advised Mr. Dustyhorn that he was prepared to appeal that conviction. The Crownasked for a sentence of thirteen years, with eight of those years being for the arson conviction. The trial judge imposed a total sentence offour years, including a four-year sentence on the arson matter. Counsel for Mr. Dustyhorn says that he then discussed matters with Mr.Dustyhorn and that they decided to wait to see if the Crown appealed the sentence.

If the Crown did appeal, their plan was to appeal thearson conviction. Thus, Mr. Dustyhorn did form an intention to appeal within the prescribed period, albeit an intention that wasconditional on whether the Crown took issue with the sentence. [9] Second, there is no suggestion here that counsel for Mr. Dustyhorn did not move diligently. Mr. Dustyhorn was servedpersonally with the Crown’s notice of appeal on July 11, 2017, but that development was not communicated, for reasons unexplained, tohis counsel.

On July 26, 2017, when counsel learned of the Crown’s appeal, he expeditiously contacted the Crown to advise of Mr.Dustyhorn’s desire to appeal and to seek the Crown’s consent in that regard. [10] Third, as to whether a proper explanation for the delay has been offered by Mr. Dustyhorn, the situation is somewhat unclear.Unusually, Mr. Dustyhorn himself has not filed an affidavit and thus I do not know why, on being served with the Crown’s notice ofappeal, he did not immediately contact his counsel. It is possible to imagine that the complications of being incarcerated got in the wayof Mr.

Dustyhorn acting promptly but, given the factual record before me, that is mere speculation. [11] The fourth consideration is the extent of the delay. It is not significant in that the time for filing a notice of appeal expired onJuly 14, 2017, 30 days after the sentencing decision was delivered. Mr. Dustyhorn’s counsel advised the Crown of Mr.

Dustyhorn’sdesire to appeal and sought the Crown’s consent by a communication dated July 28, 2017. [12] Fifth, there is no suggestion here that extending the time for filing a notice of appeal will prejudice the Crown in any way. [13] Sixth, it is necessary to consider the merits of the proposed appeal. As I understand it, Mr. Dustyhorn proposes to argue thatthe trial judge erred by (

a) finding that arson contrary to s. 434 of the Code is an included offence in relation to arson contrary to s.433(a), (

b) equating the notion of “willfully” causing damage by fire (the offence charged) with the notion of “intentionally” causingdamage by fire (the wording of s. 434), and (

c) finding that Mr. Dustyhorn intentionally caused damage by fire when the facts acceptedcould not support such an inference. The Crown suggests that these grounds are close to being frivolous in nature. I agree that, on theface of things, the merits of Mr. Dustyhorn’s proposed appeal appear to be rather weak. [14] As is obvious, some of the relevant considerations in this case weigh in favour of extending the time in which Mr. Dustyhornmay file a notice of appeal and some weigh against it. All things considered, although this case is close to the line, I conclude that it is inthe interests of justice that Mr.

Dustyhorn be allowed to appeal his conviction for arson. [15] The grounds of appeal that counsel for Mr. Dustyhorn identified during argument go beyond those laid out in the notice ofappeal filed as part of Mr. Dustyhorn’s application. Accordingly, and in order to accommodate this situation, Mr. Dustyhorn shall haveleave to file a notice of appeal on or before October 5, 2017. “Richards C.J.S.” Richards C.J.S.