



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Sidhu,









2016 BCCA 23




Date: 20160114

Docket: CA41882

Between:

Regina

Respondent

And

Manjit Singh Sidhu

Appellant

Restriction on Publication:
A publication ban has been imposed
under
s. 486.5(1) of the
Criminal Code
restricting the publication,
broadcasting or
transmission in any way of evidence that could identify a victim or witness.
This publication ban applies indefinitely unless otherwise ordered.




Before:



The Honourable Madam Justice Saunders

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Fitch




On appeal from: an
order of the Provincial Court of British Columbia, dated
May 29, 2014 (
R. v. Sidhu
, 2014 BCSC 1335, Vancouver Registry No. 26562)

Oral Reasons for Judgment




Counsel for the Appellant:



G. Botting





Counsel for the Respondent:



M. Mereigh





Place and Date of Hearing:



Vancouver, British
  Columbia

January 14, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 14, 2016








Summary:

Appeal from
an order dismissing the appellants application to extend the time to file a
notice of appeal from summary conviction by 16 days. The appellant was
convicted in the Provincial Court of one count of sexual assault contrary to s.
271(b) of the Criminal Code, R.S.C. 1985, c. C-46. Held: appeal allowed;
extension of time granted. The summary conviction appeal judge erred in law in
failing to have due regard for all of the factors on an application to extend
the time to bring an appeal, particularly whether granting an extension was in
the interests of justice.

[1]

KIRKPATRICK J.A.
:
The appellant, Manjit Singh
Sidhu, was convicted in the Provincial Court on November 12, 2013 of one count
of sexual assault contrary to s. 271(b) of the
Criminal Code
,
R.S.C. 1985, c. C-46
(a summary conviction
offence). He was sentenced on March 7, 2014, to a 40-day conditional sentence
and 12 months probation.

[2]

Mr. Sidhu filed his application to appeal the summary
conviction on April 23, 2014. The time limit for filing a notice of appeal
expired on April 7, 2014.

[3]

Mr. Sidhus application for an extension of time was
heard in the Supreme Court on May 28, 2014. In brief reasons, the summary
conviction appeal judge dismissed Mr. Sidhus application. The judge was
evidently referred to the three-part test for granting an extension of time to
file an appeal set out in
R. v. Menear
,
[2002] O.J. No. 244 (C.A.). He accepted that Mr. Sidhu had
satisfied the first two factors  a
bona fide
intention to appeal and a satisfactory explanation for the delay in filing the
notice of appeal.

[4]

However, the judge concluded that the appeal was
without merit, stating:

[2]        This case turns entirely upon
assessment of credibility in an alleged sexual assault where the learned trial
judge heard all of the evidence and pronounced upon the lack of credibility of
the accused.

[3]        The trial judge specifically
addressed the principles that are to be considered in the determination of
whether, in the situation of where an accused testifies, a reasonable doubt has
been raised. After doing so, she rejected his evidence and found in favour of
the evidence of the Crown.

[4]        I do
not see this as being a case of the trial judge choosing between the Crown and
the accuseds evidence. There was, in my view, a complete analysis of the
situation before the trial judge on the evidence adduced. I am not satisfied
that there is a meritorious appeal in this matter that is worthy of
investigation.

[5]

The application for an extension of time was accordingly dismissed.

[6]

Mr. Sidhu then sought leave to appeal the decision that
denied the extension of time. On February 6, 2015, a judge of this Court
granted leave to appeal the order of the summary conviction appeal judge.

[7]

In the materials filed on appeal, Mr. Sidhu has not
identified any error on the part of the summary conviction appeal judge which
is, of course, the order appealed from. Rather, he has focused his attention on
the merits of the appeal from the decision of the Provincial Court.

[8]

However, while the summary conviction appeal judge
necessarily addressed the merits of the appeal as a factor to be considered, he
did not address the merits in detail The decision was currently under appeal strictly
procedural in that it denied an extension of time to permit Mr. Sidhu to appeal
the summary conviction. The issue for us is whether the summary conviction
appeal judge erred in refusing to grant an extension of time to file the
appeal.

[9]

In
R. v. Roberge
,
2005 SCC 48, the Supreme Court of Canada summarized the factors to
be considered on an application to extend the time for leave to appeal in that
Court:

6          The power to extend time under
special circumstances in s. 59(1) of the Act is a discretionary one. Although
the Court has traditionally adopted a generous approach in granting extensions
of time, a number of factors guide it in the exercise of its discretion,
including:

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.

The ultimate
question is always whether, in all the circumstances and considering the
factors referred to above, the justice of the case requires that an extension
of time be granted.

[10]

To similar effect is this Courts
decision in
R. v. M.A.G.,
2002 BCCA 413, in which Esson J.A. examined the test for an
extension of time to file an appeal in the criminal law context:

[27]
I return to the language of
Macfarlane J.A. in
Smith

(quoted

supra
,

para.
11) [
R. v. Smith
, [1990]
B.C.J. No. 2933 (C.A.)] which for convenience I repeat here:

[4]
The appellant in order to
obtain an extension of time must satisfy certain rules. The governing principle
on which this Court acts on applications to extend time for doing an act is
that the applicant must establish special circumstances.

[5]
In considering whether there are special circumstances this
Court has always taken into account such factors as whether: (1) the applicant
had a
bona fide
intention to appeal before the expiration date of the
appeal date; (2) informed the respondent either expressly or impliedly of his
intention; (3) the respondent would not be unduly prejudiced by an extension of
time; (4) there is merit in the appeal in the sense that there is a reasonably
arguable ground; (5) it is in the interest of justice, that is the interest of
the parties, that an extension be granted. How much weight will be given to any
of these factors in determining whether there are special circumstances will
depend on the circumstances of each case.

[28]
My
first observation is that the list of five factors set out in para. 5 are
points which the court takes into account in deciding whether there are
special circumstances which justify granting an extension. The five factors
should not, although they sometimes are, be treated as an exhaustive checklist
of conditions, all of which the applicant must meet in order to succeed on the
application. The governing principle is that the applicant must establish
special circumstances. In making that determination, the matter must be
approached on the basis that the weight to be given to any factor will depend
on the circumstances of each case.
In my view, it
must follow that in some cases the weight to be given to one or more criteria
will be negligible because it is so heavily outweighed by the weight which must
be given to others.

[11]

The summary conviction appeal judge confined his
consideration to only three of the factors set out in
R. v. Menear
. However,
in Minear, at para. 21, the Court stated:

Depending on the case, the court may take into consideration
other factors such as whether the consequences of the conviction are out of
proportion to the penalty imposed, whether the Crown will be prejudiced and
whether the applicant has taken the benefit of the judgment.
In the end, the
main consideration is whether the applicant has demonstrated that justice
requires that the extension of time be granted.


[Emphasis added.]

[12]

The issue thus devolves to this  whether in all of the
circumstances, and considering the factors to be applied on an application for
an extension of time, does the justice of the case require that an extension of
time be granted.

[13]

Having regard to the relevant considerations, it is
clear that there was a
bona fide
intention to
appeal; the delay was minimal, and was explained; no undue prejudice to the
Crown is raised; and the appeal has reasonably arguable grounds.

[14]

In my opinion, it can be said that the summary
conviction appeal judge erred in law in failing to have due regard to all of
the applicable factors and, most importantly, whether the granting of an
extension of time was in the interests of justice.

[15]

I would allow the appeal, grant the extension of time
for filing the notice of appeal in the summary conviction appeal court to April
23, 2014, and remit the matter to the Supreme Court for the hearing of the
summary conviction appeal.

[16]

SAUNDERS J.A.
: I agree.

[17]

FITCH J.A.
: I agree.

[18]

SAUNDERS J.A.
: The order will be entered in the terms expressed
by Madam Justice Kirkpatrick. I will say that our order will not be filed until
the order giving leave to appeal has first been filed.

The Honourable Madam Justice Kirkpatrick


