Ontario Criminal


Appeal

PROCEDURE
Court has no jurisdiction to hear appeal lacking proper service

Crown appealed accused’s acquittal for driving over .08. Accused submitted that appeal had not been properly constituted and reviewing court has no jurisdiction to hear it. Crown applied for extension of time to serve its notice of appeal although no order for extension was sought until hearing of appeal itself. Crown served courtesy copy of notice of appeal by facsimile on accused’s trial counsel before 30 day appeal deadline but trial counsel advised that he was not instructed to accept service of notice of appeal and was not retained to argue appeal. Police were instructed to serve accused with notice of appeal but service was not effected until six days past deadline. Application dismissed. Accused did not waive objections to manner of service. Crown did not make any effort to seek order extending time to serve notice of appeal, even though it was on notice of objection and issued application for that relief. Proper service is foundation of jurisdiction as there was no power in court to ratify service after fact, court was without jurisdiction to hear appeal. While there was evidence that Crown had bona fide intention to appeal within appeal period, and merit to proposed appeal, there was no evidence accounting for delay in serving accused.

R. v. Bouchard (Dec. 14, 2012, Ont. S.C.J., Pierce R.S.J., File No. CR-12-07-AP) Decision at 98 W.C.B. (2d) 318 was affirmed. 104 W.C.B. (2d) 607.

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