



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gatfield, 2016 ONCA 23

DATE: 20160113

DOCKET: M45553 (M36541)

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harvey Gatfield

Applicant

Mark Halfyard and Breana Vandebeek, for the applicant

Michael Bernstein, for the respondent

Heard: January 5, 2016

On application for an extension of
    time within which to seek a review of the order of Justice S. Borins of the Court
    of Appeal for Ontario, In Chambers, dated November 14, 2008.

By the Court:

I.        Background

[1]

On February 26, 2002, following a trial by judge and jury, the applicant
    Harvey Gatfield was convicted of second-degree murder.  On April 29, 2002, he
    was sentenced to life imprisonment without eligibility for parole for 18 years.

[2]

About six and one-half years after his conviction and his sentencing
    hearing, the applicant applied to a single judge of this court for an order
    extending the time within which to serve and file a notice of appeal from his
    conviction and sentence.  On November 14, 2008, for clear albeit concise reasons,
    Borins J.A. of this court dismissed the applicants extension application.  In
    so doing, he said:

The long delay since the date of the conviction  6 ½ years 
    is disturbing.  The appellants assertion that he thought it took a long time
    to process a prisoners appeal does not explain the lengthy lack of due
    diligence in pursuing the appeal.  Therefore, his lack of diligence in pursuing
    the appeal outweighs his apparent intention to appeal within the allotted
    time.  All of this is underscored by the appellants inability to provide a
    credible reason for the delay that is demonstrated by his cross-examination.

Given the long unexplained delay on the part of the appellant,
    I do not believe it is in the interests of justice to grant an extension of
    time to appeal.

[3]

More than seven years have passed since the date of Borins J.A.s
    dismissal order.  Nonetheless, the applicant now applies for an order extending
    the time to serve and file an application requesting a review of Borins J.A.s
    order and, if an extension be granted, seeks a panel review of that order with
    the objective of having it set aside and obtaining an extension of time within which
    to appeal from both his murder conviction and sentence.

[4]

By order of Epstein J.A. of this court dated October 28, 2015, the
    applicants request for an extension of time and, if an extension be granted,
    his request for a panel review of Borins J.A.s order were directed to be heard
    together by a full panel of this court.

II.       Discussion

[5]

As appears from the facts described above, the circumstances surrounding
    the current applications are most unusual.  Almost 14 years ago, a jury
    convicted the appellant of murder.  And, as we have said, the order denying the
    applicant an extension of time to appeal was itself made more than seven years
    ago.  It is incumbent on the applicant to demonstrate that the justice of the
    case requires that an extension of time to seek to set aside Borins J.A.s
    order be granted notwithstanding this lengthy delay:
R. v. Ansari
,
    2015 ONCA 891, at para. 23.

[6]

In our view, the applicant has failed to meet this burden.

[7]

First, apart from the lengthy and inadequately explained delay in moving
    initially before Borins J.A. for an extension of time within which to file a
    notice of appeal from his conviction and sentence (six and one-half years from
    the date of the applicants conviction), there is no evidence before this court
    that the applicant formed a
bona fide
intention to seek an order
    setting aside Borins J.A.s order on a timely basis.

[8]

Indeed, the evidence is to the contrary.  Based on the applicants own
    evidence on cross-examination, he did not begin to consider the option of seeking
    to set aside Borins J.A.s order of November 2008 until December 2013  five
    years after the date of the order.  Even then, the applicant did not commit to
    pursuing this option.  On the record before us, it was not until March or April
    2015 that he initiated an application aimed at securing a review of Borins
    J.A.s order.

[9]

It follows that, contrary to the applicants contention, the record
    belies the claim that the applicant moved with due diligence to set aside
    Borins J.A.s order.  The record reveals that he waited years before taking any
    steps to obtain relief from the denial of his extension application.  Even after
    he learned, at the latest, by October 2013 that he could move to set aside
    Borins J.A.s order, the applicant did not move until the spring of 2015 for an
    extension of time within which to seek a review of the order.

[10]

We
    accept that the applicants limited education and the fact of his incarceration,
    among other factors, may have contributed to difficulties in moving this matter
    forward.  However, in our view, the applicant has failed to offer a reasonable
    explanation for his very lengthy delay.

[11]

Perhaps
    more importantly, the applicant has failed to demonstrate any basis for intervention
    with Borins J.A.s discretionary order.  The circumstances in which a panel of
    this court will reconsider the decision of a single judge of this court to deny
    an application for an extension of time are narrow: see for example,
R. v.
    Shea
, 2010 SCC 26, [2010] 2 S.C.R. 17.  No party is entitled to an
    extension of time as of right.  Rather, the decision to grant or refuse an
    extension is discretionary:
Ansari
, at para. 21.  This has particular
    significance where the extension sought is to seek a review of a discretionary
    decision of a single judge of this court.

[12]

The
    applicant submits that it was unreasonable for Borins J.A. to conclude, as he
    did, that the applicant had failed to advance an adequate explanation for his
    six and one-half year delay in seeking an extension of time within which to
    appeal.  He further submits that Borins J.A. erred by ignoring the applicants
    efforts, following his conviction and sentencing hearing, to initiate an
    appeal, and the factors that impeded those efforts.

[13]

Again,
    we disagree.

[14]

It
    was open to Borins J.A., on the record before him, to conclude that the
    applicant had failed to move with dispatch to ensure that an appeal was
    properly initiated before this court.  The record reveals unexplained periods
    of several years pre-2008 delay when the applicant took little, if any, steps
    to proceed with an appeal or an extension application.

[15]

Moreover,
    the record confirms that the applicant was familiar with the procedures
    involved in processing an inmate appeal.  Following his incarceration and
    before the date of his application before Borins J.A., the applicant applied in
    writing for an extension of time to appeal from his convictions on other
    offences.  That application was dismissed by this court on October 22, 2007:
R.
    v. Gatfield
, M34771, October 22, 2007.  In refusing the extension
    application, this court stated, at paras. 6 and 9:

The overriding consideration on a motion for an extension of
    time to file a notice of appeal is whether the interest of justice requires the
    application be granted.  In answering this question, the court will consider
    whether the applicant had a
bona fide
intention to appeal within the
    appeal period, the explanation for the delay in filing, and whether there is
    merit to the appeal.

.

The Crown submits that despite the evidence of the applicants
bona
    fide
intention, the applicant did not demonstrate appropriate diligence in
    pursing his appeal over the five years between his original attempt to file a
    Notice of Appeal in March 2002 and his second Notice of Appeal filed on
    February 21, 2007.  We agree that the long unexplained delay on the part of the
    applicant during that period is troubling.  The applicants lack of diligence
    in pursuing his appeal outweighs his
bona fide
intention to appeal
    within the allotted period in determining the interests of justice. The vague
    assertion that he needed to deal with another charge does not explain five
    years of lack of diligence in pursuing the appeal.

In our view, these comments are also apposite here.

[16]

Nor
    do we see any ground on which to conclude that Borins J.A. ignored any relevant
    factors in deciding to deny the applicants extension application.  Justice
    Borins had a full record of the applicants activities in connection with his
    proposed appeals before him, including the transcript of the applicants
    cross-examination on his affidavit filed in support of the extension
    application.  His reasons afford no basis for concluding that he ignored any
    salient part of that record, or the evidence relied on by the applicant as an
    explanation for his delay.

[17]

Finally,
    we agree with the Crown that the nature of these applications is relevant to
    the question whether the discretionary relief sought should be granted.  The issue
    before us is not whether the applicants proposed appeals from conviction and
    sentence have merit.  Rather, the issue is whether it is in the interests of
    justice to permit the applicant, after extraordinary delay, to seek to set
    aside Borins J.A.s dismissal order.

[18]

That
    said, we have nonetheless reviewed the trial judges charge to the jury in
    light of the proposed grounds of appeal identified by the applicant (which, we
    note, include two grounds not raised before Borins J.A.).  Having done so, we
    are far from persuaded that there is any substantive merit to the proposed
    conviction appeal.  Nor do we think it likely that a panel of this court would
    regard the sentence imposed as manifestly unfit or tainted by any error in
    principle.

III.      Disposition

[19]

For these reasons, the application for an extension of time to seek a
    review of the order of Borins J.A. by a panel of this court is dismissed.  It
    is therefore unnecessary to further address the merits of that proposed review.

[20]

We
    thank all counsel for their helpful and considered submissions in this matter.

E.A. Cronk J.A.

M. Tulloch J.A.

K. van Rensburg J.A.


