Date: 20010330
Docket: 00-T-45
Neutral Citation: 2001 FCT 264
BETWEEN:
DAMON GREGORY HORNE
Applicant
- and -
MINISTER OF JUSTICE AND
ATTORNEY GENERAL OF CANADA
Respondents
[1] The applicant seeks an extension of time to file his application for judicial review of the refusal by the Minister of Justice to exercise the discretionary remedies contemplated by section 690 of the Criminal Code, R.S.C. 1985, c. C-46.
[2] This provision allows the Minister of Justice to direct a new trial or a new hearing if, after inquiry, the Minister is satisfied that in the circumstances a new trial or hearing should be directed. The Minister may also refer to an appellate court any question on which the assistance of that court is desired.
[3] The decision of the Minister is dated October 23, 2000 and was received by the applicant on October 26, 2000.
[4] The applicant should have made his application for judicial review on November 25, 2000, which would have been within thirty days after the time the decision was first communicated to him, as prescribed by subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7. The applicant failed to do so.
[5] Initially, the applicant had erroneously sought to file a notice of appeal. In a letter dated November 23, 2000, which he received five days later, he was advised by a Registry officer of the Court of Appeal that his notice of appeal could not be accepted for filing.
[6] On December 5, 2000, the applicant filed this motion for an extension of time, some nine days beyond the time prescribed for commencing his application for judicial review.
[7] It is useful to review one of the leading cases on the criteria to be used in exercising the discretion to grant an extension of time under subsection 18.1(2). In Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (C.A.), the applicant sought an extension for the filing of his application for judicial review some twelve months after the decision of the Immigration Appeal Board. In the words of Chief Justice Thurlow (at page 272):
The underlying consideration ... which, it seems to me, must be borne in mind in dealing with any application of this kind, is whether, in the circumstances presented, to do justice between the parties calls for the grant of the extension.
He added that (at pages 277-78):
... in the end, whether or not the explanation justifies the necessary extension must depend on the facts of the particular case and it would, in my opinion, be wrong to attempt to lay down rules which would fetter a discretionary power which Parliament has not ... fettered.
[8] In separate reasons, Justice Marceau emphasized that where the "ultimate search for justice" prevails "over the necessity of setting the parties' rights to rest", the extension ought to be granted. He also speaks of the balancing of the relevant factors (at page 282):
The imposition of time limits to dispute the validity of a legal decision is of course meant to give effect to a basic idea of our legal thinking that, in the interest of society as a whole, litigation must come to an end (interest reipublicae ut sit finis litium), and the general principles adopted by the courts in dealing with applications to extend those limits were developed with that in mind. Only if the ultimate search for justice, in the circumstances of a case, appears to prevail over the necessity of setting the parties' rights to rest will leave to appeal out of time be granted. Hence the requirement to consider various factors, such as the nature of the right involved in the proceedings, the remedy sought, the effect of the judgment rendered, the state of execution of that judgment, the prejudice to the other litigants in the dispute, the time lapsed since the rendering of the judgment, the reaction of the applicant to it, his reason for having failed to exercise his right of appeal sooner, the seriousness of his contentions against the validity of the judgment. It seems to me that, in order to properly evaluate the situation and draw a valid conclusion, a balancing of the various factors involved is essential. For example, a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay. [Emphasis added.]
[9] The applicant's motion for an extension of time was made in writing pursuant to Rule 369. However, in an effort to assure that the arguments of both parties could be stated as clearly as possible, oral representations were received during a telephone conference call.
[10] In assessing whether the applicant has established "an arguable case" (Grewal, at page 277), I am mindful of the statement of Justice Marceau that "a compelling explanation for the delay may lead to a positive response even if the action against the judgment appears weak". In particular, I have considered the following factors: (a) at all material times, the applicant has been incarcerated and self-represented; (b) he demonstrated an intention to challenge the decision of the Minister of Justice within thirty days of its communication to him; (c) his attempt to file a notice of appeal was not an unreasonable error for a self-represented litigant; and (d) had the notice of appeal been erroneously filed by the Registry officer, his originating notice of motion may have been salvaged by the operation of Rule 49 and Rule 57 of the Federal Court Rules, 1998.
[11] It was these factors which moved me to assess the applicant's written submissions and oral representations with great care in an attempt to identify an arguable case or even the suggestion of an arguable case.
[12] In his reply submissions, the applicant acknowledged that his arguable case appeared to be "a little weak". He has filed voluminous documentation, most if not all of which appears to have been produced in support of his section 690 application. I have reviewed these documents together with the Minister's letter of decision. I have examined in particular the extracts from the testimony, the exhibits, the case law and the few other documents the applicant highlighted in his oral submissions. All of the applicant's material was considered to determine whether an arguable case exists that the Minister made a reviewable error in her appreciation of his presentation.
[13] None of this material is persuasive. There is no affidavit to support the documents or explain the specific purpose of their production. The applicant's submissions, both written and oral, have been unfocussed and unrelated to the requirement that he establish an arguable case. I have reviewed the applicant's material with a mind open to identify some merit to his position at the lowest end of the spectrum of what might constitute an arguable case. Nonetheless, there is nothing in the applicant's submissions which satisfies me that he has even come close to establishing an arguable case.
[14] Similarly, the applicant's suggestion that the respondent's position is weakened by her failure to proceed to any cross-examination on his affidavit is devoid of any merit.
[15] Accordingly, in the exercise of the discretion conferred by subsection 18.1(2), I am not satisfied that the extension of time in this proceeding is warranted. While the applicant may have explained his failure to file his application for judicial review within the prescribed time, he has fallen far short of establishing an arguable case. Even when applying the balancing test suggested by Justice Marceau in Grewal, supra paragraphs 8 and 10, this motion must be dismissed. If the applicant can obtain new material information from provincial authorities, as he suggests, the outcome of this motion will not preclude his renewing an application under section 690.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
March 30, 2001