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                                                 SUPREME COURT OF CANADA

 

 

Citation:  R. v. Roberge, [2005] 2 S.C.R. 469, 2005 SCC 48

 

Date:  20050818

Docket:  30896

 

Between:

Roger Joseph Roberge

Applicant

v.

Her Majesty the Queen

Respondent

 

Coram: McLachlin C.J. and Binnie and Charron JJ.

 

 

Reasons for Judgment (motion to extend the time in which to serve and file the application for leave):

(paras. 1- 8)

 

 

 

 

 

McLachlin C.J. and Binnie and Charron JJ.

 

 

______________________________


R. v. Roberge, [2005] 2 S.C.R. 469, 2005 SCC 48

 

Roger Joseph Roberge                                                                                    Applicant

 

v.

 

Her Majesty The Queen                                                                               Respondent

 

Indexed as:  R. v. Roberge

 

Neutral citation: 2005 SCC 48. 

 

File No.:  30896.

 

2005: August 18. 

 

Present:  McLachlin C.J. and Binnie and Charron JJ.

 

motion for an extension of time to apply for leave to appeal

 

Practice Supreme Court of Canada Motion to extend time to file application for leave to appeal Factors guiding exercise of Court’s discretion to extend time Motion dismissed.

 

Statutes and Regulations Cited

 

Criminal Code, R.S.C. 1985, c. C-46, s. 254(3) .

 

Supreme Court Act, R.S.C. 1985, c. S-26, ss. 58(1) (a), 59(1) .


 

MOTION for an extension of time to apply for leave to appeal. Motion dismissed.

 

Written submissions by R. S. Prithipaul, for the applicant.

 

Written submissions by Lane Wiegers, for the respondent.

 

The following order was delivered by

 

1                                   The Court — The applicant in this matter, Roger Joseph Roberge, seeks leave to appeal from a judgment of the Court of Appeal for Saskatchewan rendered from the Bench on October 19, 2004, allowing the Crown’s appeal and ordering a new trial for the applicant on a charge of refusal to comply with a demand made under s. 254(3)  of the Criminal Code, R.S.C. 1985, c. C-46 : (2004), 254 Sask. R. 181 , 2004  SKCA 145.  The applicant has also applied for an order extending the time within which to serve and file the application for leave to appeal.  The respondent opposes both the application for leave to appeal and the request for an extension of time.

 


2                                   Section 58(1) (a) of the Supreme Court Act, R.S.C. 1985, c. S-26  (the “Act ”), provides that where leave to appeal is required, the notice of application for leave to appeal and all materials necessary for the application shall be served and filed within 60 days after the judgment appealed from.  In the present case, the delay for filing an application for leave to appeal from the judgment of the Court of Appeal for Saskatchewan expired on December 20, 2004.  Nevertheless, the present application for leave to appeal was not filed with the Court until April 19, 2005 — some six months after the judgment of the Court of Appeal for Saskatchewan and four months after the expiry of the time prescribed in s. 58(1) (a) of the Act .

 

3                                   Section 59(1)  of the Act  provides that, under special circumstances, the Court or a judge may extend the time prescribed by s. 58(1) (a).  Counsel for the applicant has sworn an affidavit explaining the delay in bringing this leave application.

 

4                                   In his affidavit, counsel for the applicant affirms that he received instructions to proceed with an application for leave to appeal on October 20, 2004.  The applicant’s intention to seek leave to appeal was initially communicated to Crown counsel by letter dated October 28, 2004.  However, he did not file his application for leave to appeal until April 19, 2005.

 

5                                   In explaining this delay, counsel for the applicant states that a senior partner at his firm, his father-in-law, was seriously injured in a motorcycle accident on September 26, 2004 and was unable to return to work until December 2004.  He subsequently departed on January 4, 2005, for a previously scheduled vacation of about two and one half months.  Moreover, another lawyer at the same firm was expecting a child and, shortly after the motorcycle accident, was required by her physician to reduce her workload.  She subsequently departed on maternity leave on February 15, 2005.  As a result of these events, counsel for the applicant and his wife were required to take over the trials originally scheduled for their colleagues as well as manage their own caseloads and oversee the law office.  Although he started working on the application for leave to appeal during the Christmas break of 2004, he states that he was only able to complete the written materials in April once his senior partner returned from vacation.

 


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.

 


7                                   Notwithstanding our sympathy for the difficulties experienced by counsel for the applicant’s colleagues, we are all of the view that this is not a case in which an extension of time should be granted.  Although the affidavit evidence indicates that the applicant formed a bona fide intention to seek leave to appeal and that intention was communicated to the respondent within the prescribed time, the delay in this case is not adequately explained.  The four-month delay beyond the 60 days prescribed under the Act  is lengthy.  The affidavit filed in this case demonstrates, in our view, that much of the delay can be ascribed to a failure to accord necessary priority to this application for leave to appeal.  Ultimately, an application for leave to appeal to this Court must be viewed as a matter of priority that cannot be put off indefinitely until it can be accommodated within counsel’s schedule.

 

8                                   For these reasons, the application for an extension of time is dismissed.

 

Motion dismissed.

 

Solicitors for the applicant:  Gunn & Prithipaul, Edmonton.

 

Solicitor for the respondent:  Saskatchewan Justice, Regina.

 

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