The Crown appealed my client’s acquittal.  However, they were two weeks late in filing the notice of appeal.  I successfully had the appeal dismissed.

[2007] O.J. No. 1300

1 G.M. MILLER J.:– The Crown applies for an extension of time to commence an appeal of the Respondent’s acquittal on charges of Sexual Assault and Assault with a Weapon. The Crown seeks to cross-appeal the Respondent’s appeal from his conviction on a charge of Assault arising from the same trial.

2 Both parties agree that this Court’s discretion to grant an extension of time to appeal must be guided by consideration of the factors set out by the Supreme Court of Canada in R. v. Roberge, [2005] S.C.J. No. 49 at paragraph 6, notwithstanding that court was considering s. 59(1) of the Supreme Court Act, R.S.C. 1985, c. S-26. Those factors are listed as follows:

1. 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. 2.             Whether counsel moved diligently;
3. 3.             Whether a proper explanation for the delay has been offered;
4. 4.             The extent of the delay;
5. 5.             Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and
6. 6.             The merits of the application for leave to appeal.

3 These factors are not exhaustive, however, and the ultimate question is always whether, in all of the circumstances and considering the factors referred to above, the justice of the case requires that an extension of time be granted, Roberge, supra, at para 6.

4 The evidence in support of the application, in particular the affidavit of the trial Crown, Charon Kerr, establishes that the Crown did not form a bona fide intention to appeal within the appeal period, and indeed had formed a clear intention not to appeal, notwithstanding her opinion that grounds to appeal existed. The affidavit establishes that the decision not to appeal was taken out of consideration for the complainant and a concern that she might be subject to harassment by the Respondent should the Crown undertake an appeal. Ms. Kerr asserts in her affidavit that the reason for the Crown declining to appeal “evaporated” when Mr. Venkatesh filed his appeal.

5 Given the decision by the Crown not to appeal, no intent to appeal was communicated to the Respondent within the appeal period, nor did the Crown Communicate to Mr. Venkatesh an intent to appeal his acquittals if he appealed his conviction.

6 The Respondent filed his appeal on the last day available for him to do so within the Rules. While the Respondent’s Notice of Appeal was received at the Crown Attorney’s office on that day, due to administrative procedures within that office, it did not come to the attention of Ms. Kerr until twelve days later. I am satisfied that once Ms. Kerr became aware of the Respondent’s appeal, the Crown moved diligently to cross-appeal. Notice of this application was filed within three days.

7 The delay, while not extensive, could have been attenuated had there been in place a method of immediately advising the trial Crown when an appeal had been filed.

8 The delay in filing the cross-appeal, in and of itself, does not unduly prejudice the Respondent, although his decision to appeal on a single count and on a narrow issue appears to have been undertaken on the understanding that the Crown was not appealing his acquittal on the other charges. Permitting the Crown to cross-appeal would put an entirely different complexion an the appeal itself. Denying the extension of time would prohibit the Crown from making any appeal of this matter.

Merits of the Appeal

9 The Applicant asserts several errors by the trial judge, cumulatively amounting to a “miscarriage of justice,” and argues that the justice of the case requires that an extension of time be granted. The Respondent argues that any errors are minor in nature, had no impact whatever on the trial judge’s findings with respect to the charge of Assault with a Weapon, and were of little significance with respect to the charge of Sexual Assault.

10 It is conceded by the Respondent that the trial judge erred in doing the internet search, ultra curium, that is referred to at paragraph 95 of her Reasons for Judgment. The trial judge apparently discovered, through the internet search, that the man the complainant had been having an affair with had been promoted in his job. It is not clear why this fact was included in the Reasons for Judgment, but it appears to have had no discernable impact upon the decisions made by the trial judge with respect to credibility of the complainant.

11 The Applicant asserts that the trial judge misapprehended the evidence by characterizing the behaviour of the Respondent as that of a man intent on romantically re-connecting with his wife in the face of evidence from the complainant that the Respondent had at times verbally abused her and threatened her with violence. A trier of fact may accept all, part or none of any witness’ evidence, and further, may accord different weight to different parts of the evidence that the trier of fact has accepted. R. v. Howe, [2005] O.J. No. 39 at para. 44 (C.A.). The trial judge here had an opportunity to assess the evidence of the complainant over three days of testimony, and I cannot say that the evidence before her was not reasonably capable of supporting the conclusion she came to R. v. Burns, [1994] S.C.J. No. 30 at para. 14.

12 The Applicant asserts that the trial judge misapprehended the evidence in assessing the testimony of the complainant with respect to the fact that she did not, at the time, report to anyone that she had been assaulted with a chair in November of 2004, and did not cry out for help during the sexual incident in March of 2005. While there can be misconceptions surrounding reasons why victims do and do not report or complain of being assaulted, R. v. Seaboyer, [1991] S.C.J. No. 62 paras. 139 and 146, it is nonetheless appropriate for a trial judge to consider a failure to report or complain as a factor in assessing the credibility and reliability of a complainant in a trial. An overview of the Reasons for Judgment does not reveal that the trial judge relied on any such misconception, and indeed shows a sensitivity to issues surrounding spousal sexual assault.

13 The Applicant asserts that it was an error of few for the trial judge to describe the complainant’s use of the word “rape” as an exaggeration and dramatization of what had occurred to her. In law, non-consensual sexual contact Is an inherently violent act. R. v. McGraw (1991), 66 C.C.C. (3d) 517 (S.C.C.). The trial judge was not commenting, however, on the legal definition of rape, but an how the word is “commonly used.” There appears to be no evidentiary foundation for this conclusion and it would seem to stretch the bounds of appropriate judicial notice, R. v. Spence, [2005] S.C.J. No. 74.

14 Nonetheless, the extent to which the trial judge relied upon the proposition that “rape is commonly used to describe violent sexual acts” appears to be quite minimal. Indeed, the trial judge predicates her description of the complainant’s report by saying “even If I accepted all of her evidence.” It is clear, from an overview of the Reasons for Judgment that the trial judge did not accept all of the complainant’s evidence, and in fact rejected most of it. The trial judge here had an opportunity to assess the evidence of the complainant over three days of testimony, and I cannot say that the evidence before her was not reasonably capable of supporting the conclusion she came to independent of any view about the common use of the word rape.

15 The Applicant asserts that the trial judge erred in applying the air of reality test to the Respondent’s defence of mistaken belief in consent. While there are numerous examples, set out in paragraphs 29 and 30 of the Applicant’s Amended Notice of Application, of evidence which would seem to preclude an air of reality to a defence of mistaken belief in consent, there is no indication that the trial judge accepted that evidence. The fact that the evidence was uncontradicted does not absolve the trier of fact from a careful analysis of that evidence to determine whether it will be accepted. It is clear that the trial judge did not accept all of the complainant’s evidence, and in fact rejected most of it. The trial judge here had an opportunity to assess the evidence of the complainant over three days of testimony, and I cannot say that the evidence before her was not reasonably capable of supporting the conclusion she came to.

16 The Applicant asserts that the trial judge erred in her application of s. 273.2(a)(ii) and s. 273.2(b) of the Criminal Code in the face of the complainant’s evidence as to the circumstances preceding the night of the sexual incident. Again, there is no indication that the trial judge accepted that evidence. It is clear that the trial judge did not accept all of the complainant’s evidence, and in fact rejected most of it. I cannot say that the evidence before her was not reasonably capable of supporting the conclusion she came to.

17 Notwithstanding that there is relatively little prejudice to the Respondent caused by the Applicant’s short delay in filing the appeal material, I cannot ignore that the Applicant formed a clear intention not to appeal, which intention changed only once the Respondent filed his appeal. While I accept that there is a significant societal interest in careful and considered judicial resolution of the issues relating to spousal sexual assault, in assessing the relative merits of the proposed cross-appeal, I am not persuaded that the justice of the case requires an extension of time be granted.

G.M. MILLER J.