



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Luangchaleun, 2021 ONCA 108

DATE: 20210218

DOCKET: M52039

MacPherson
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Responding Party

and

Kevin Luangchaleun

Applicant

Kevin Luangchaleun, acting in person

Lindsay Daviau, appearing as duty
    counsel

Nicole Rivers, for the responding party

Heard: February 9, 2021 by video conference

REASONS
    FOR DECISION

[1]

More than 11 ½ years ago, on June 12, 2009, the
    applicant Kevin Luangchaleun was found not criminally responsible (NCR) by
    reason of mental disorder of assault with a weapon and criminal harassment. He
    has remained under the jurisdiction of the Ontario Review Board (ORB) since
    that date.

[2]

The facts that gave rise to the underlying
    charges against the applicant can be briefly stated. On February 16, 2009, the
    applicant, while under the influence of substances, attended a restaurant in
    Newmarket and tried to locate the complainant who was an employee working
    there. He had done this on several previous occasions. This time, he became
    enraged and started waving a large butcher knife in the air in a threatening
    manner when other employees would not let him speak to the complainant or enter
    farther into the premises.

[3]

The test on an application to extend the time to
    file a Notice of Appeal is whether the applicant has demonstrated that justice
    requires that the extension of time be granted:
R. v. Menear
, (2002),
    162 C.C.C. (3d) 233 (Ont. C.A.), at para. 21. As the court said in
Menear
,
    at para. 20:

There is no absolute rule to be applied in the
    exercise of the discretion whether or not to grant an extension of time. The
    court will, however, usually consider the following three factors:

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

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

(iii) whether there is merit to the proposed
    appeal.

[4]

On the first factor, the applicant filed a
    Notice of Appeal on December 10, 2020. This is 11 ½ years after the NCR finding
    and almost as long outside the appeal period.

[5]

In his affidavit, the applicant states that he
    has always had an intention to appeal the NCR finding. This is a bald assertion
    and says nothing about his intention to appeal within the appeal period.

[6]

On the second factor, in the Notice of Motion
    one of the grounds is that the applicant needed additional time to seek legal
    advice for his NCR appeal. In his affidavit, the applicant states: I have
    been unsuccessfully to have numerous counsel help over the last 11 years, and
    because legal aid had denied me this right to bring this appeal numerous times
    before this date. Although one can have sympathy for an NCR accused trying to
    navigate the criminal justice appeal system, especially while continuing to be
    under the jurisdiction of the ORB, the applicants explanation does not justify
    an 11 ½ year delay in filing a Notice of Appeal challenging the NCR finding.

[7]

On the third factor, I see no merit in the
    applicants proposed appeal against the NCR finding. Applications for an
    extension of time to file a Notice of Appeal and applications for the
    appointment of counsel pursuant to s. 684 of the
Criminal Code
overlap
    in one important respect: the tests for resolving the applications both contain
    as a crucial factor the merits of the appeal.

[8]

On December 23, 2020, the applicant brought an
    application for the appointment of counsel to represent him on his application
    for an extension of time to file a Notice of Appeal from the NCR finding in
    2009. In reasons dated January 12, 2021, Coroza J.A. dismissed the application.
    With respect to the merits of the proposed appeal, Coroza J.A. said, at paras.
    13-16:

First, I agree with the Crown that as the
    application and appeal have no merit, they will not be helped by the
    appointment of counsel.

Second, the only grounds of appeal articulated
    in relation to the NCR appeal are broadly worded:

a)

The court erred in fact and law;

b)

The court erred in fact and law in finding the appellant NCR;

c)

The courts disposition is unreasonable in the evidence;

d)

The court conducted a hearing that ignored the basic rights of
    procedural fairness, which created substantial prejudice to the appellant.

Nothing in the materials before me would allow
    this court to determine the merits of these proposed grounds of appeal.

This is not a close case. The application is
    dismissed.

[9]

My analysis on the merits of the proposed
    appeal issue on the motion for an extension of time to file a Notice of Appeal
    is identical to that of Coroza J.A. on the s. 684 application.

[10]

For these reasons, the application for an
    extension of time to file a Notice of Appeal challenging the 2009 NCR ruling is
    dismissed.

J.C. MacPherson J.A.


