



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hulme, 2021 ONCA 887

DATE: 20211214

DOCKET: M52801 (C66831)

Lauwers, Paciocco and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Scott Hulme

Applicant/Appellant

C. Stephen White and Kristianne C.
    Anor, for the appellant

Tanit Gilliam, for the respondent

Heard: December 9, 2021

REASONS FOR DECISION

[1]

On March 26, 2016, Daniel Scott Hulme was
    arrested while smoking cocaine in a parked motor vehicle that he had been
    operating erratically. A baggie containing hydromorphone pills and 120 tablets,
    that appeared to be oxycodone tablets, was found inside the coat Mr. Hulme was
    wearing. Two of those 120 tablets were subsequently analysed to confirm the
    chemical contents of the tablets. One tablet was found to contain fentanyl and
    the other acetylfentanyl, a fentanyl analog that, like fentanyl, is a Schedule
    I drug.

[2]

In a large bag secreted under the rear seat, 11
    fentanyl patches were located along with additional hydromorphone pills, as
    well as 665 tablets that were never analysed but which were identical in size,
    shape and colour to the fentanyl and acetylfentanyl tablets that were found in
    Mr. Hulmes coat.

[3]

At his trial, Mr. Hulme pleaded guilty to operating
    a motor vehicle while impaired by drugs, and possession of cocaine, but not
    guilty to additional charges. On January 25, 2018, he was convicted of the two
    offences to which he pleaded guilty, as well as three counts of possession for
    the purpose of trafficking, one count relating to hydromorphone, another to
    fentanyl, and another to acetylfentanyl. He was also convicted of one count of
    possession of the proceeds of crime under $5,000. In the course of her
    decision, the trial judge inferred that the 665 tablets found in the large bag
    contained fentanyl and acetylfentanyl.

[4]

On March 29, 2018, Mr. Hulme was sentenced to a
    global sentence of 7 years imprisonment. He promptly appealed. His sole
    ground of appeal, in relation to his conviction appeal, was that the trial
    judge erred in relying on circumstantial evidence to conclude that the 665
    pills contained fentanyl. As part of this appeal he also sought leave to appeal
    his sentence as harsh and excessive.

[5]

Mr. Hulmes appeal was scheduled to be heard on February
    26, 2020. On February 25, 2020, he failed to surrender into custody as required
    by his bail release order pending appeal. That release order provided that
    failure to surrender into custody in accordance with the terms of this release
    order will be deemed to constitute an abandonment of the appeal. As a result,
    his appeal was dismissed as abandoned:
R. v. Hulme
, 2020 ONCA 156.

[6]

Mr. Hulme now applies to reopen his appeal. This
    court has extraordinary jurisdiction arising from its inherent power, to
    reopen a dismissed appeal in the interests of justice, so long as the appeal
    has not been dismissed on its merits:
R. v. Larocque
, 2011 ONCA 814;
R.
    v. Rhingo
(1997), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp. 95-96, leave
    to appeal refused, [1997] S.C.C.A. No. 256;
R. v. Riad
, 2012 ONCA 300,
    at para. 4;
R. v. Smithen-Davis
, 2020 ONCA 759, 68 C.R. (7th) 75, at
    paras. 56-57. We are not persuaded that it is in the interests of justice to
    reopen Mr. Hulmes appeal.

[7]

First, the explanation Mr. Hulme has provided
    for failing to surrender into custody is problematic. Although Mr. Hulme links
    his decision not to surrender to the paranoia that resulted from his
    unmedicated mental illness, and his fear of catching COVID-19 in the
    penitentiary, there is no suggestion that Mr. Hulme was incapable of
    appreciating his obligation and the risk it entailed. In addition to a lack of
    evidence that his mental illness was intense enough to warrant sympathetic
    consideration, Mr. Hulme has not provided an explanation for why he was
    unable to obtain the required medication, leading to his decision to
    self-medicate, which is an additional breach of the bail pending appeal order.
    In the circumstances, Mr. Hulme quite rightly admits that he does not have
    a lawful excuse for failing to surrender. He is responsible for the choice he
    made not to surrender and to breach his release order, knowing that by not
    attending he would be deemed to be abandoning his appeal. The choice Mr. Hulme
    made has caused tremendous inconvenience and expense to the administration of
    justice.

[8]

Second, on their face, Mr. Hulmes grounds of
    appeal do not suggest that a miscarriage of justice has occurred. They are
    anything but strong.

[9]

Even if it was wrong of the trial judge to infer
    that the 665 tablets contained fentanyl, which is unlikely given the
    circumstantial foundation available to the trial judge for drawing that
    inference, this ground of appeal cannot realistically result in any of the
    convictions being set aside. Mr. Hulme does not challenge the fact that other
    tablets in his possession were confirmed by analysis to contain fentanyl, or
    that he possessed these other fentanyl tablets in circumstances that drive the
    conclusion that they were possessed for the purpose of trafficking.

[10]

It is not even clear that the elimination of the
    665 tablets from consideration would be likely to render Mr. Hulmes sentence
    harsh and excessive. He has a prior related record, and the range of Schedule I
    narcotics in his possession for the purpose of trafficking likely warranted the
    sentence imposed.

[11]

Third, even if we were to accept Mr. Hulmes
    explanations for the delay in bringing his application to set aside the
    dismissal of his appeal, the Crown reasonably relied upon the dismissal of the
    appeal and the ensuing forfeiture order to dispose of the evidence that had
    been seized, including the narcotics. The Crown would therefore be prejudiced
    should a retrial be ordered because the pills could not be analyzed.

[12]

Finally, the principle of finality is a material
    consideration in determining whether the interests of justice warrant reopening
    a dismissed appeal. It is now over five years since the offence was committed,
    and more than one year since the appeal was dismissed.

[13]

In all of these circumstances the application to
    reopen is therefore denied.

P. Lauwers
    J.A.

David M.
    Paciocco J.A.

J.A. Thorburn
    J.A.


