Unreasonable Delay by the Crown results in Dismissal of Crown's Application to Extend Appeal of Fraud Charges

Posted: January 16, 2018
By: The Law Firm of Ted Yoannou

The courts do not look favourably on parties in a legal action who are unprepared, waste the court’s time and resources, or cause unreasonable delays. This issue was addressed in a 2016 case, wherein the Crown asked an Ontario court for an extension in the time to prepare for their appeal of a case involving a man who was acquitted on a fraud charge. The respondent moved to dismiss the Crown’s application due to the Crown’s failure to comply with the timelines provided for the appeal.

The Court dismissed the Crown’s application to extend the appeal date for several reasons: the Crown did not articulate meaningful grounds for their appeal; the Crown failed to serve various documents on a timely basis, without explaining their reasons for delay; and in all their actions, the Crown failed to show that they took the appeal seriously.  

In the original trial for this case, the judge acquitted the respondent on the charge of fraud in the amount of $1,350 because the judge was not convinced beyond a reasonable doubt that the respondent was the perpetrator of the fraud, although it was conceded that a fraud had been committed.  Following this decision, the Crown served a notice of appeal to the respondent, but the Crown did not “disclose any articulable ground” for their appeal. The grounds stated in the notice were criticized for being “perfunctory and unhelpful for any understanding of the grounds”.  The notice was unsigned by the respondent although he did not challenge having received the notice.

In R. v Malhotra, Justice Ray referred to R. V. Menear (2002) for three criteria that the Court generally considers when ruling on an application to extend the time allowed for an appeal: 1) evidence of a genuine intention to appeal within the original appeal period; 2) the explanation for the delay; and 3) whether the appeal has merit.

In the current case, the judge concluded that the Crown clearly formed the intention to appeal within the original appeal period.  It also seemed clear that the Crown was aware it would not be able to serve the Notice of Appeal within the 30-day period and was also aware that service on the respondent’s counsel would not be sufficient. Yet, there was no evidence produced to show why the Crown was unable to bring the application before the appeal period expired or why it took until 4 days after the expiry to serve the respondent.

Justice Ray stated “an affidavit of service is not evidence of service at all”. The only evidence that the Crown was able to provide is that it made occasional enquiries about the whereabouts of the affidavit of service; however, when it was finally received, the affidavit was just filed away and not treated seriously.  Of particular concern is the fact that the Crown received transcripts on April 7th but did not serve them to the respondent until more than three months later, on July 15th, but the Crown never provided an explanation for the delay.  By contrast, the respondent and the Court diligently worked to have the application heard as quickly as possible.

On the third criteria, Justice Ray concluded that the Crown provided the Court with no grounds that the appeal has merit, other than stating that it was the ‘opinion’ of the Crown.  For such applications, the onus that is on the applicant is a fairly low onus to show that it is not a frivolous appeal (citing R. v. Bhandal (2005)). The judge found that the Crown had not met that onus.  

Justice Ray concluded that the Crown exercised a lack of attention and concern about the progress of their appeal, suggesting that the appeal was simply not taken seriously.  He also found that there was no explanation for the delay up to April 8 when the respondent was allegedly served; no explanation for the delay to May 16 which was 5 weeks before the application was commenced; and no explanation why the application did not proceed as originally scheduled on May 30th.  There was also no explanation for the delay to the current hearing of this application. 

For all the above reasons, Justice Ray granted the respondent’s application to dismiss the Crown’s application due to the Crown’s failure to comply with the timeline set out for the appeal.

Any criminal conviction, even for a lesser offence such as fraud or theft under $5000, will result in a significant impact on the accused's future prospects and life.  At the Law Firm of Ted Yoannou, we apply our considerable experience and dedication to ensuring that all our clients receive a zealous and effective defence.

 

This article has been prepared for and posted by The Law Firm of Ted Yoannou. While we make every effort to post useful and factual information, the material found here should not be interpreted as legal advice. Please contact us if you wish to review your own individual circumstances, , 416‑650‑1011.
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