R v Walker, 2017 SKCA 91

Court of Appeal for Saskatchewan Docket: CACR3011 Citation: R v Walker , 2017 SKCA 91 Date: 2017-10-20 Between: James R.T. Walker Applicant And Her Majesty the Queen Respondent Before: Jackson J.A. (in Chambers) Disposition: Application denied On Application From: Provincial Court, Saskatoon Application Heard: September 27, 2017 Counsel: James Walker on his own behalf Dean Sinclair, Q.C., for the Respondent Jackson J.A. [ 1 ] On June 5, 2017, James Walker was convicted of one count of breaking and entering a garage with the intent to commit an indictable offence contrary to s. 348(1) (

a) of the Criminal Code , RSC 1985, c C-46, and one count of unlawfully possessing marihuana contrary to s. 4(1) of the Controlled Drugs and Substances Act , SC 1996, c 19. He was sentenced that same day. Rule 8(1) of The Court of Appeal Criminal Appeal Rules (Saskatchewan) requires that a notice of appeal must be filed within 30 days of the imposition of the sentence. On September 13, 2017, Mr.

Walker applied in Court of Appeal Chambers for an order extending the time to appeal from his convictions. [ 2 ] The usual criteria guiding a judge’s discretion when determining whether an extension of time should granted are as follows (see R v Morin , 2005 SKCA 37 at 6, 195 CCC (3d) 190 [ Morin ] ) : (

a) whether the applicant has shown a bona fide intention to appeal within the appeal period; (

b) whether the applicant has accounted for or explained the delay; (

c) whether the Crown would be unduly prejudiced by the extension of time; (

d) whether there is merit to the proposed appeal in the sense that there is a reasonably arguable ground of appeal; and (

e) whether the interests of justice weigh in favour of extending the time to appeal. [ 3 ] The fifth criterion from Morin is applied as an overarching consideration: R v Woods , 2006 SKCA 123 at para 12 , 285 Sask R 314 ; R v Colhoun , 2010 SKCA 140 at para 6 , 362 Sask R 306 ; R v Dunsford , 2012 SKCA 79 at para 5 , [2012] 11 WWR 38 ; R v Bahadur , 2010 SKCA 103 at paras 12 and 14 , 259 CCC (3d) 81 ; R v Smith , 2017 SKCA 81 at paras 95 and 97 ; R v Dustyhorn , 2017 SKCA 82 at paras 5 and 6 . These authorities also demonstrate that the Morin factors are a guide to the exercise of a discretionary power.

Depending on the circumstances of any given case, other factors may be relevant and one or more factor may assume a more dominant role. [ 4 ] In Mr. Walker’s case, it is clear that he did not show a bona fide intention to appeal within the appeal period. It was only over time that he became convinced that he had been wrongly convicted. He believed he had discovered a basis upon which the police officer’s testimony could have been challenged.

On the question of prejudice, I note that the Crown would suffer no more prejudice than would usually arise from an appeal from a conviction. [ 5 ] As to the merits of the appeal, Mr. Walker believes he was framed by the police. He asserts he has new evidence that the Court should consider. According to Mr. Walker, the police acted on a tip received from an individual residing at a specific address. Mr. Walker spoke to someone at that address and was told that no one residing there had called the police.

He says the police officer discovered him in his own garage, which is when they found him to be in possession of the drugs. On the basis of this new evidence from his neighbour, he submits he now has the means to challenge the credibility of the police officer and would therefore like the opportunity to attempt to persuade the Court of Appeal to order a new trial. [ 6 ] When this matter was heard in Chambers, Mr. Walker did not yet have any affidavit evidence from his neighbour to support his claim. In light of this, I reserved the matter, allowing Mr.

Walker to file whatever evidence he intended to file. [ 7 ] I have now been advised by Mr. Walker that he will not be filing any evidence. In my view, without any evidence that could serve as the basis of an application to adduce fresh evidence in the Court of Appeal – if I were to grant leave – Mr. Walker’s appeal is not reasonably arguable.

Indeed, there would be no basis upon which his appeal could succeed. [ 8 ] Of course, a Chambers judge always has the discretion to grant an extension of time to appeal if the interests of justice weigh in favour of doing so, but I cannot come to that conclusion in this case. [ 9 ] Accordingly, after weighing the relevant factors, I must refuse his application to extend the time to appeal.

“Jackson J.A.” Jackson J.A.