Misener,
Dist.
Ct.
J.:
—This
proceeding
is,
in
effect,
a
motion
to
quash
an
appeal
that
the
Crown
has
launched
from
the
acquittals
of
Mr.
Sommers
directed
on
February
16,
1987
by
His
Honour
Judge
Charles,
a
judge
of
the
Criminal
Division
of
the
Provincial
Court.
The
issue
at
stake
is
the
propriety
of
the
service
and
filing
of
the
notice
of
appeal.
Counsel
agree
that
proper
service
and
proper
filing
of
a
notice
of
appeal
are
conditions
precedent
to
the
jurisdiction
of
this
Court
to
entertain
any
summary
conviction
appeal.
They
disagree,
however,
as
to
whether
either
requirement
was
satisfied
in
this
case.
This
narrow
issue
was
fully
argued
on
December
3,
1987.
I
was
obliged
to
reserve
my
disposition
of
it.
I
have
decided
that
the
service
of
the
notice
of
appeal
upon
Mr.
Sommers
was
not
properly
effected,
that
the
appeal
is
therefore
a
nullity,
and
that
it
ought
to
be
quashed
unconditionally.
The
able
efforts
of
counsel
require
me
to
give
somewhat
lengthy
written
reasons
for
the
disposition
I
have
made.
First,
the
background.
The
respondent,
Kenneth
D.
Sommers,
was
charged,
in
an
information
sworn
by
one
Gordon
G.
Ellis
on
March
1,
1985,
with
six
counts
of
a
violation
of
the
provisions
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
as
amended.
In
more
specific
terms,
he
was
charged
with
five
counts,
alleging
that
in
the
taxation
years
1978,
1979,
1980,
1981
and
1982
he
made
a
false
or
deceptive
statement
on
his
tax
returns
by
failing
to
properly
declare
his
income
contrary
to
paragraph
239(1)(a)
of
the
Act,
and
with
one
count
alleging
that
in
those
five
years
he
wilfully
evaded
or
attempted
to
evade
the
payment
of
$100,669.84
in
income
tax
by
failing
to
declare
income
in
the
total
sum
of
$255,471.84,
contrary
to
paragraph
239(1)(d)
of
the
Act.
His
trial
on
those
charges
commenced
before
His
Honour
Judge
Charles
in
the
Provincial
Court
(Criminal
Division)
at
Woodstock
on
May
12,
1986
and
continued
for
a
period
of
30
days
that
for
some
reason
was
spread
over
the
months
of
May,
August,
and
October
of
that
year.
As
I
understand
it,
the
evidence
and
the
submissions
of
counsel
were
completed
on
October
23,
1986.
Judgment
was
reserved.
On
February
16,
1987
Judge
Charles
delivered
his
judgment.
He
found
the
accused
not
guilty
of
all
the
offences
alleged
and
accordingly
directed
acquittals
on
all
counts.
Since
the
final
disposition
of
the
trial
was
made
on
February
16,
1987,
it
follows
of
course
that
the
30
days
allowed
by
the
Rules
for
the
service
of
the
notice
of
appeal
expired
on
March
18,
1987.
On
Monday,
March
16,
1987,
counsel
for
the
Crown
brought
a
motion
before
me
ex
parte
for
an
order
extending
the
time
for
service
of
the
notice
of
appeal
upon
Mr.
Sommers
for
a
further
period
of
30
days.
I
was
presented
with
an
affidavit
of
one
Margaret
Clark,
an
employee
of
Revenue
Canada
Taxation.
In
that
affidavit
Margaret
Clark
deposed
that
instructions
to
appeal
had
been
received
by
counsel
on
March
11,
1987,
that
a
notice
of
appeal
was
filed
in
the
office
of
the
Clerk
of
the
Court
on
March
16,
1987,
and
that
counsel
gave
instructions
to
serve
the
respondent
on
March
12,
1987.
Margaret
Clark
further
deposed
that
she
herself
then
instructed
one
Constable
Walker
to
effect
the
service,
and
that
she
was
subsequently
advised
by
Constable
Walker
that
he
attended
at
42
Fuhr
Street,
Tavistock,
Ontario,
the
residence
of
the
respondent,
on
March
13,
1987
and
found
no
one
at
these
premises;
that
he
then,
on
the
same
day,
attended
at
35
Elizabeth
Street,
Tavistock,
Ontario,
the
respondent's
place
of
business,
and
was
advised
by
James
Sommers,
the
respondent's
brother,
that
the
respondent
was
out
of
the
country
until
sometime
after
March
17,
1987;
and
that
he
(Constable
Walker)
was
therefore
unable
to
effect
service
upon
the
respondent.
On
the
basis
of
that
affidavit
evidence,
I
granted
on
order
on
March
16,
1987
extending
the
time
for
service
of
the
notice
of
appeal
for
a
further
period
of
30
days.
The
notice
of
appeal
was
in
fact
served
personally
upon
the
respondent
Mr.
Sommers
on
March
23,
1987.
Obviously
therefore
service
was
effected
5
days
after
the
expiration
of
the
30
days
ordinarily
allowed
but
at
a
time
well
within
the
extended
period
of
time
and,
I
think
it
fair
to
say,
as
promptly
as
could
be
reasonably
expected
following
the
date
of
my
order.
Proof
of
service
of
the
notice
of
appeal
was
filed
with
the
Clerk
of
the
Court
on
April
14,
1987
—
some
two
days
prior
to
the
expiration
of
the
extended
time.
And
for
what
it
might
be
worth,
I
note
that
four
different
reporters
took
the
evidence
at
the
trial,
and
the
certificates
certifying
the
ordering
of
the
evidence
are
dated
March
13,
1987
with
respect
to
three
of
them
and
March
23,
1987
with
respect
to
the
fourth.
The
appeal
was
first
placed
on
a
list
for
the
hearing
of
summary
conviction
appeals
on
April
6,
1987.
Mr.
Giffen
appeared
at
that
time.
Although
there
seems
to
have
been
some
misunderstanding,
it
was
at
least
the
intention
of
counsel
for
the
Crown
that
Mr.
Giffen
should
appear
as
well
as
agent
for
the
Crown
since
both
sides
were
agreed
that
the
whole
matter
should
be
adjourned.
In
any
event,
it
was,
as
I
have
said,
only
Mr.
Giffen
who
appeared.
He
advised
me
of
his
intention
to
dispute
my
jurisdiction
to
hear
the
appeal.
In
the
event,
I
made
the
following
endorsement.
Mr.
Giffen
appearing
for
the
respondent,
no
one
appearing
for
the
appellant,
but
Mr.
Giffen
consenting
to
an
adjournment
in
any
event,
subject
to
right
to
argue
my
jurisdiction
in
view
of
ex
parte
extension
of
time
to
appeal,
adjourned
to
September
8,
1987.
On
August
26,
1987,
in
compliance
with
a
request
made
by
Crown
Counsel,
Mr.
Giffen
advised
Crown
Counsel
by
letter
of
the
particulars
upon
which
he
based
his
objection
to
jurisdiction.
His
letter
read
as
follows:
You
and
your
client
have
failed
to
comply
with
Rules
3
and
13
of
the
Summary
Conviction
Appeal
Rules
and
Section
750
of
the
Criminal
Code
of
Canada,
and
also
the
General
Rules
of
Practice
and
Evidence
in
the
ex
parte
motion
that
you
(brought).
Such
compliance
is
a
condition
precedent
to
the
jurisdiction
of
the
District
(Court)
to
entertain
the
appeal.
I
will
be
requesting
that
the
appeal
to
the
District
Court
be
dismissed
for
lack
of
jurisdiction.
September
8,
1987
—
the
date
to
which
the
appeal
had
been
adjourned
on
April
6
—
was
the
next
regular
sittings
of
the
Court
for
the
hearing
of
summary
conviction
appeals.
On
that
date,
and
with
the
consent
of
counsel,
I
fixed
December
3,
1987
at
10
a.m.
as
the
date
for
the
hearing
of
Mr.
Giffen’s
motion
to
quash
the
appeal
for
lack
of
jurisdiction.
That
I
think
is
a
sufficient
statement
of
the
background.
Before
turning
to
the
submissions
that
were
addressed
on
the
issue
of
jurisdiction,
I
think
that
I
should
set
out
section
750
of
the
Criminal
Code,
R.S.C.
1970,
c.
C-34,
and
the
relevant
portions
of
Rule
3
and
Rule
13
of
the
Summary
Conviction
Appeal
Rules.
Sec.
750(1)
—
An
appellant
who
proposes
to
appeal
to
the
appeal
court
shall
give
notice
of
appeal
in
such
manner
and
within
such
period
as
may
be
directed
by
rules
of
court.
(2)
The
appeal
court
or
a
judge
thereof
may
at
any
time
extend
the
time
limit
within
which
the
notice
of
appeal
may
be
given.
Rule
3
(1)
the
appellant
shall
within
30
days
the
conviction
or
order
was
made
or
the
sentence
was
imposed,
whichever
is
the
later,
(a)
file
the
notice
of
appeal
with
the
Clerk;
and
(d)
.
.
.
cause
the
notice
of
appeal
to
be
served
on
the
respondent
personally
.
.
.
(2)
The
appellant
shall
.
.
.
file
with
the
Clerk
proof
of
service
of
the
Notice
of
Appeal
in
affidavit
form,
not
later
than
10
days
after
the
last
day
for
service
of
the
Notice
of
Appeal.
Rule
13
-
Extension
or
abridgement
of
time,
and
non-compliance.
(1)
Any
time
limited
by
these
rules
may
be
extended
or
abridged
by
a
judge,
before
or
after
the
expiration
of
the
time
prescribed,
(2)
Notice
of
an
application
to
extend
or
abridge
time
shall,
unless
made
on
consent
or
unless
otherwise
ordered
by
a
judge,
be
given
to
the
opposite
party.
(3)
Non-compliance
with
the
rules
may
render
an
appeal
void,
but
any
amendments
may
be
ordered
by
a
judge
as
may
seem
just
in
the
circumstances.
I
can
now
turn
directly
to
the
issue
at
stake
here.
The
validity
of
Mr.
Giffen’s
submission
that
the
service
or
filing
of
the
notice
of
appeal
is
defective
is
dependent
entirely
on
the
validity
of
his
submission
that
my
order
extending
the
time
for
service
dated
March
16,
1987
is
itself
fatally
flawed,
either
on
its
face
or
by
reason
of
the
manner
in
which
it
was
obtained.
He
submits
that
that
order
is
so
flawed
for
three
reasons,
any
one
of
which
is
sufficient.
First,
he
submits
the
order
is
void
on
its
face
because
it
does
not,
by
its
expressed
terms,
extend
the
time
for
the
filing
of
the
notice
of
appeal.
Second,
he
submits
that
it
should
be
declared
void
because
of
the
insufficiency
of
the
material
that
was
placed
before
me
at
the
time
the
application
was
made.
Third,
he
submits
that
Crown
Counsel
did
not
prove
that
it
was
impossible
to
give
Mr.
Sommers
notice
of
the
application
to
extend
the
time
for
service
of
the
notice
of
appeal,
and,
absent
that
proof,
then
the
exercise
of
my
discretion
in
granting
leave
to
bring
the
application
ex
parte
pursuant
to
Rule
13(2)
was
not
a
judicial
exercise
of
that
discretion,
and
the
resulting
order
is
therefore
void.
I
shall
deal
with
each
of
the
reasons
in
the
order
in
which
I
have
just
set
them
out.
Mr.
Giffen
supports
his
first
reason
with
the
authority
of
R.
v.
Holmes
(1982),
40
O.R.
(2d)
707;
2
C.C.C.
(3d)
471
(Ontario
C.A.).
In
that
case,
Martin,
J.A.,
in
delivering
the
reasons
for
the
judgment
of
the
court,
said
this
at
pp.
477-78
[C.C.C.]:
.
.
.
The
court
[in
R.
v.
Ruffo
(1982),
1
C.C.C.
(3d)
358]
held
that,
although
s.
750
[of
the
Criminal
Code]
no
longer
specifies
the
time
within
which
the
notice
of
appeal
must
be
served,
but
now
leaves
that
to
be
determined
by
Rules
of
Court,
service
of
the
notice
of
appeal
within
the
time
prescribed
by
the
Rules
of
Court
continues
to
be
a
condition
precedent
to
the
jurisdiction
of
the
court
to
entertain
the
appeal.
Under
Rule
3
of
the
Ontario
Summary
Conviction
Appeal
Rules,
where
the
respondent
is
the
accused,
the
notice
of
appeal
must
be
served
on
the
respondent
personally
.
.
.
within
30
days
from
the
acquittal.
Where
the
notice
of
appeal
is
not
served
upon
the
respondent
within
the
prescribed
time,
in
the
absence
of
a
valid
order
extending
the
time
for
service,
the
summary
conviction
appeal
court
does
not
have
jurisdiction
to
entertain
the
appeal.
This
is
so
because
compliance
with
the
time
prescribed
for
serving
and
filing
the
notice
of
appeal
is
a
condition
precedent
to
the
court's
jurisdiction,
and
Rule
3
can
only
be
complied
with
if
there
is
a
valid
order
extending
the
time
for
service
and
filing
the
notice
of
appeal.
Mr.
Giffen
has
fastened
upon
the
last
sentence
of
the
portion
of
the
reasons
for
judgment
that
I
have
just
quoted.
He
emphasizes
that
Martin,
J.A.
clearly
states
that,
absent
service
of
and
filing
of
the
notice
of
appeal
within
30
days
of
the
acquittal,
jurisdiction
can
only
exist
if
there
is
a
valid
order
"extending
the
time
for
service
and
filing
the
notice
of
appeal".
Mr.
Giffen
then
submits
that
since
my
order
extends
the
time
for
service
but
is
silent
as
to
any
extension
for
filing,
the
order
is
therefore
invalid.
I
do
not
agree
and
I
say
that
Martin,
J.A.
did
not
intend
the
meaning
that
Mr.
Giffen
attributes
to
him.
The
simple
fact
is
that
Rule
3
governs
the
procedure
for
filing
as
well
as
for
service
and
Rule
13
only
comes
into
play
where
a
time
prescribed
by
Rule
3
is
not
performed
or
cannot
be
performed
within
that
prescribed
time.
Rule
3
requires
two
filings,
not
one,
and
the
fact
that
both
filings
may
be
done
at
the
same
time
—
and
probably
are
in
the
usual
course
—
with
the
same
sheaf
of
papers
is
of
no
significance.
The
first
filing
is
the
filing
of
the
notice
of
appeal,
whether
served
or
not.
Assuming
the
case
of
an
appeal
by
the
Crown
from
an
acquittal
(the
precise
case
here),
this
must
be
done
within
30
days
of
the
date
of
the
acquittal,
absent
an
extension
of
time
for
this
filing
made
pursuant
to
Rule
13.
The
second
filing
is
proof
by
way
of
affidavit
that
the
notice
of
appeal
has
been
served
within
the
30
days
from
the
acquittal
(assuming
the
time
for
service
of
the
notice
of
appeal
has
not
been
extended
pursuant
to
Rule
13).
The
fact
that
a
copy
of
the
notice
of
appeal
will
be
attached
as
part
of
this
filing
only
means
that
a
copy
must
be
attached
to
identify
in
the
affidavit
the
particular
document
that
has
been
served.
This
second
filing
must
be
done
not
later
than
ten
days
after
the
last
day
for
service
of
the
notice
of
appeal.
Therefore
the
time
for
filing
proof
of
service
is,
absent
any
extension
of
time
for
service,
within
40
days
of
the
date
of
the
acquittal,
although
again
the
time
for
the
second
filing
may
be
extended
pursuant
to
Rule
13.
In
this
case
Crown
Counsel
filed
a
notice
of
appeal
with
the
Clerk
of
the
Court
on
March
16,
1987,
2
days
prior
to
the
30
days
provided
by
Rule
3.
The
only
time
that
needed
extending
up
to
and
including
March
18,
1987
was
therefore
the
time
for
service
of
the
notice
of
appeal
upon
the
respondent.
That
time
was
extended
on
March
16,
1987
for
a
further
period
of
30
days
—
in
other
words
to
and
including
April
15,
1987.
Therefore
the
time
for
filing
proof
of
service
expired
on
April
25,
1987.
Proof
of
service
was
filed
with
the
Clerk
of
this
Court
on
April
14,
1987.
Therefore
the
only
time
limit
that
needed
extending
in
this
case
at
any
time
was
the
time
limit
for
service
of
the
notice
of
appeal,
and
it
was
therefore
that
time
limit
and
only
that
time
limit
that
was
in
fact
extended.
There
is
therefore
no
merit
to
Mr.
Giffen’s
first
reason.
I
need
only
add
the
acknowledgement
that
what
I
have
just
said
represents
the
adoption
of
Miss
Schlemmer's
submissions
made
on
December
3.
I
am
obliged
to
say
that
I
never
really
understood
Mr.
Giffen’s
second
reason
when
he
was
arguing
it
on
December
3,
and
I
still
do
not
understand
it.
It
seemed
to
have
three
separate
aspects
to
it.
Two
of
them
were
derived
from
an
affidavit
that
Mr.
Giffen
filed
on
this
motion
to
quash.
It
is
an
affidavit
sworn
by
Constable
Walker
on
August
6,
1987
—
the
same
Constable
Walker
referred
to
in
the
affidavit
of
Margaret
Clark
that
formed
the
evidentiary
basis
for
the
order
I
made
on
March
16,1987
extending
the
time
for
service
of
the
notice
of
appeal.
In
his
affidavit,
Constable
Walker
deposes
that
he
did
in
fact
attend
at
35
Elizabeth
Street
in
Tavistock
on
March
13,1987
in
an
attempt
to
locate
the
respondent
in
order
to
serve
him
with
the
notice
of
appeal.
He
deposes
further
that
he
spoke
to
the
respondent's
brother,
and
that
the
brother
told
him
that
the
respondent
was
in
the
United
States,
had
been
there
for
a
few
days,
and
was
expected
to
return
to
Tavistock
early
the
following
week.
He
deposes
further
that
neither
he
(Constable
Walker)
nor
the
brother
of
the
respondent
mentioned
any
specific
date
of
any
kind,
nor
did
he
(Constable
Walker)
enquire
at
all
as
to
the
specific
whereabouts
of
the
respondent,
or
where
he
might
be
contacted
or
found.
As
I
mentioned
earlier,
Margaret
Clark
deposed
that
Constable
Walker
told
her
that
the
brother
told
him
(Constable
Walker)
that
the
respondent
was
"out
of
the
country
until
sometime
after
March
17,1987"
—
March
17
being
the
Tuesday
of
the
week
following
Constable
Walker's
attendance
at
35
Elizabeth
Street.
Mr.
Giffen
says
first
that
the
August
6
affidavit
of
Constable
Walker
contradicts
the
affidavit
of
Margaret
Clark,
that
I
should
prefer
the
affidavit
of
Constable
Walker
to
that
of
Margaret
Clark,
that
I
was
therefore
misled
on
the
application
to
extend
the
time
for
service
of
the
notice
of
appeal,
and
because
I
was
misled
I
should
declare
that
the
order
extending
the
time
for
service
to
be
void.
I
know
of
no
reason
why
I
should
prefer
the
affidavit
of
Constable
Walker
to
that
of
Margaret
Clark,
and
indeed
on
the
basis
of
the
close
temporal
relationship
between
the
conversation
that
Margaret
Clark
had
with
Constable
Walker
and
the
date
when
Margatet
Clark
swore
her
affidavit,
there
is
very
good
reason
to
prefer
Margaret
Clark's
affidavit.
But
even
if
I
did
prefer
the
affidavit
of
Constable
Walker,
I
do
not
think
that
there
is
any
real
contradiction
between
the
two
affidavits.
Even
if
there
is
a
real
contradiction
to
some,
I
am
perfectly
certain
that
my
understanding
of
the
facts
would
have
been
no
different,
had
I
read
the
August
6,
1987
affidavit
of
Constable
Walker
on
March
16,
1987,
than
it
was
as
a
result
of
reading
the
affidavit
of
Margaret
Clark
on
March
16,
1987.
Constable
Walker
clearly
states
in
his
affidavit
that
the
brother
did
not
know
when
the
respondent
would
be
returning
from
the
United
States
but
that
it
would
be
sometime
in
the
early
part
of
the
following
week.
Assuming
that
that
is
precisely
what
Constable
Walker
told
Margaret
Clark,
then
Margaret
Clark
obviously
chose
to
interpret
all
that
to
mean
that
the
information
that
Constable
Walker
received
from
the
brother
was
that
the
respondent
would
be
out
of
the
country
until
sometime
after
Tuesday
of
the
following
week.
And
that
is
essentially
how
I
would
have
interpreted
it
as
well.
To
me,
the
phrase
"sometime
in
the
early
part
of
the
week"
inevitably
means
"sometime
after
Monday
and
very
likely
not
until
sometime
on
Wednesday".
As
for
the
substitution
of
the
phrase
"out
of
the
country"
for
"in
the
United
States"
I
say
without
any
doubt
at
all
that
when
I
read
Margaret
Clark's
affidavit,
I
assumed
that
the
belief
was
that
the
respondent
was
in
the
United
States.
So,
as
I
have
said,
while
some
might
have
been
misled,
it
would
be
completely
wrong
for
me
to
say
that
I
was
misled
in
the
least.
A
second
aspect
to
the
argument
was
the
submission
that
the
Crown,
on
the
ex
parte
application
to
extend
the
time
for
service
of
the
notice
of
appeal,
failed
to
make
a
full
and
frank
disclosure
of
all
the
relevant
circumstances.
Mr.
Giffen
submits
that
such
a
failure
should
result
in
the
rescission
of
the
order
that
I
made,
and
he
relies
upon
Chitel
et
al.
v.
Rothbart
(1983),
39
O.R.
(2d)
513;
141
D.L.R.
(3d)
268
(Ont.
C.A.)
for
the
propriety
of
that
result.
He
submits
that
the
affidavit
of
Constable
Walker
of
August
6,
1987
demonstrates
Crown
Counsel's
failure.
Again,
I
can
only
repeat
that
I
cannot
think
of
anything
that
the
affidavit
of
Constable
Walker
discloses
that
the
affidavit
of
Margaret
Clark
failed
to
disclose.
Margaret
Clark
simply
deposed
that
Constable
Walker
told
her
that
the
respondent's
brother
had
told
him
(Constable
Walker)
that
the
respondent
was
out
of
the
country
and
would
not
be
returning
until
after
the
following
Tuesday
(March
17).
By
necessary
implication,
Margaret
Clark
stated
that
the
Crown
was
relying
on
Constable
Walker's
inability
to
actually
effect
service
upon
the
respondent
and
upon
the
brother's
statement
as
to
the
respondent's
absence
from
Canada
and
the
respondent's
expressed
intention
as
to
when
he
would
be
returning,
and
on
nothing
else.
All
that
Margaret
Clark
stated
is
true.
None
of
it
misled
me
because
she
made
it
perfectly
clear
that
that
was
all
that
she
was
relying
upon.
And
by
necessary
implication,
Margaret
Clark
deposed
that
Constable
Walker
was
not
instructed
to
and
did
not
inquire
as
to
the
precise
whereabouts
of
the
respondent,
the
precise
date,
if
in
fact
a
precise
date
existed,
for
his
anticipated
return,
or
anything
else.
So
it
is
not
a
case
of
failing
to
disclose
something
within
the
knowledge
of
the
Crown;
at
worst,
it
is
a
case
of
inadequate
inquiry
—
and
if
indeed
it
is
a
case
of
inadequate
inquiry,
the
inadequacy
was
perfectly
apparent
on
the
face
of
Margaret
Clark's
affidavit.
The
third
aspect
to
this
second
reason
that
Mr.
Giffen
advanced
is
that
the
failure
to
file
an
affidavit
of
Constable
Walker
in
addition
to
the
affidavit
of
Margaret
Clark
on
the
motion
for
the
extension
of
the
time
for
service
of
the
notice
of
appeal
is
per
se
fatal
to
the
validity
of
my
order.
The
suggestion
is
that
the
Crown
has
the
obligation
to
tender
"the
best
evidence”
on
any
such
application
and
that
the
affidavit
of
Margaret
Clark
alone
is
insufficient
because
her
affidavit
is
based
on
hearsay.
All
1
can
say
is
that
whether
or
not
Margaret
Clark's
evidence
is
hearsay
depends
on
how
you
look
at
it.
It
is
not
hearsay
at
all
if
the
concern
is
whether
or
not
Constable
Walker
told
her
what
she
says
he
told
her.
If
however
the
concern
is
whether
or
not
what
Constable
Walker
said
as
to
the
whereabouts
of
the
respondent
was
true,
then
it
is
hearsay.
But
if
that
is
the
concern,
then
the
affidavit
of
Constable
Walker
would
be
hearsay
as
well.
The
only
difference
between
the
two
affidavits
is
that
one
constains
hearsay
at
least
three
times
over,
and
the
other
contains
hearsay
at
least
two
times
over.
Obviously
what
the
brother
told
Constable
Walker
was
something
(at
minimum)
that
the
respondent
told
his
brother
before
leaving
Tavistock.
The
statement
of
the
brother
to
Constable
Walker
is
hearsay.
The
statement
by
Constable
Walker
to
Margaret
Clark
is
hearsay.
Finally
the
statement
by
Margaret
Clark
in
her
affidavit
is
hearsay.
I
really
see
no
significance
in
my
being
asked
to
act
upon
what
is
at
least
triple
hearsay,
instead
of
only
what
is
at
least
double
hearsay
—
and
I
am
not
inclined
to
say
that
double
hearsay
is
more
reliable
than
triple
hearsay
—
especially
when
I
now
know
that,
at
least
as
far
as
my
understanding
is
concerned,
Margaret
Clark
stated
it
correctly
in
her
affidavit.
Accordingly,
I
see
no
merit
in
Mr.
Giffen’s
second
reason.
I
think
that
I
should
now
re-state,
in
more
detail,
Mr.
Giffen’s
third
reason
for
his
submission
that
the
order
of
March
16,
1987
extending
the
time
for
service
of
the
notice
of
appeal
is
void.
He
submits
that,
prima
facie,
Rule
13
requires
that
an
application
to
extend
the
time
for
service
of
the
notice
of
appeal
be
made
only
upon
notice
to
the
respondent.
He
concedes
that
Rule
13
does,
however,
vest
a
discretion
in
a
judge
to
expressly
permit
such
an
application
ex
parte.
He
submits
however
that
that
discretion
can
only
be
judicially
exercised
where
the
material
discloses
that
it
is
impossible
to
give
notice
of
the
application
to
the
respondent.
He
submits
that
in
this
case
the
material
filed
on
the
application
on
March
16,
1987
(i.e.
the
affidavit
of
Margaret
Clark)
does
not
show
that
it
was
impossible
to
give
notice
to
the
respondent.
Therefore
the
discretion
that
I
exercised
in
expressly
permitting
the
application
to
be
brought
without
notice
was
improperly
exercised
and
the
resulting
order
is
void.
While
it
adds
nothing
to
these
reasons,
I
feel
compelled
to
say
that,
had
the
matter
been
res
integra,
I
would
not
have
circumscribed
the
undoubted
discretion
that
Rule
13
vests
so
stringently,
and
indeed,
I
would
have
held
that,
in
all
the
circumstances
of
this
case,
the
application
was
properly
brought
ex
parte
and
the
resulting
order
was
valid.
It
would
be
wrong
for
me
to
go
further
than
that
since
I
agree
with
Mr.
Giffen
that
that
disposition
is
not
open
to
me
and
that
authority
compels
me
to
reach
the
opposite
conclusion.
I
propose
therefore
to
set
out
that
authority
as
briefly
as
I
can,
and
to
apply
it
as
I
understand
it
to
the
facts
of
this
case.
I
need
only
deal
with
two
cases.
The
first
is
R.
v.
Ruffo
(1982),
1
C.C.C.
(3d)
358
(Ont.
C.A.).
In
that
case,
the
accused
was
acquitted
in
Provincial
Court
on
July
23,
1981.
On
September
24,
1981,
the
County
Court
Judge
on
ex
parte
application
extended
the
time
for
filing
and
serving
a
notice
of
appeal
to
October
31,
1981.
On
October
28,
1981,
a
further
ex
parte
order
was
made
extending
the
time
for
filing
and
serving
a
notice
of
appeal
to
December
31.
Both
orders
were
made
without
benefit
of
any
supporting
material.
When
the
appeal
came
on
for
hearing
on
March
8,
1982,
counsel
for
the
respondent
contended
that
the
ex
parte
orders
were
invalid
and
that
the
County
Court
Judge
was
therefore
without
jurisdiction.
The
County
Court
Judge
(i.e.
the
appeal
court)
refused
to
give
effect
to
that
submission,
heard
the
appeal,
reversed
the
trial
judge,
and
directed
the
entry
of
a
finding
of
guilt
and
a
formal
conviction.
The
case
then
proceeded
to
the
Court
of
Appeal,
where
the
validity
of
the
ex
parte
orders
extending
the
time
for
filing
and
serving
the
notice
of
appeal
was
again
raised.
Martin,
J.A.,
in
delivering
the
reasons
for
judgment
of
the
Court
of
Appeal,
devoted
considerable
time
to
the
question
of
when,
if
at
all,
an
order
may
be
made
ex
parte
pursuant
to
Rule
13
of
the
Summary
Conviction
Appeal
Rules.
He
concluded
that
Neal
v.
A.G.
Sask.
et
al.,
[1977]
2
S.C.R.
624;
56
C.C.C.
(2d)
128,
a
decision
of
the
Supreme
Court
of
Canada,
should
not
be
construed
as
holding
that
an
order
extending
the
time
for
service
can
never
be
made
ex
parte.
At
pages
366-67
[C.C.C.]
he
said
this:
In
my
view,
the
Neal
case
merely
makes
it
clear,
as
a
general
rule,
notice
of
an
application
to
extend
the
time
for
service
.
.
.
of
the
notice
of
appeal
must
be
given
to
the
respondent.
[The
Neal
case]
did
not
affect
the
rule
that
notice
may
be
dispensed
with
where
it
is
impossible
to
give
notice
because
the
respondent
cannot
be
found.
In
Wills
&
Sons
v.
McSherry
[1913]
1
K.B.
20,
the
respondents
in
an
appeal
by
way
of
stated
cases
were
seamen
who
had
been
successful
in
a
claim
for
extra
wages.
They
had
not
been
served
with
notice
in
writing
of
the
appeal
together
with
a
copy
of
the
stated
case,
as
required
by
s.
2
of
the
Summary
Jurisdiction
Act,
1857.
The
respondents
had
left
the
country
and
every
effort
had
been
made
without
success
to
find
and
serve
them.
The
court
held
that
in
those
circumstances
it
had
jurisdiction
to
entertain
the
appeal.
In
Dennis
v.
The
Queen
(1958)
121
C.C.C.
129],
Fauteux
J.
said
that
the
decision
in
Wills
&
Sons
v.
McSherry
rested
upon
the
application
of
the
maxim
lex
non
cogit
ad
impossibilia
aut
inutilia.
Fauteux
J.
appears,
however,
to
have
been
of
the
view
that
this
principle
was
inapplicable
to
the
provisions
of
the
predecessor
of
s.
750
providing
for
service
of
the
notice
of
appeal
on
the
respondent,
which
were
conditions
precedent
to
the
exercise
of
jurisdiction.
Section
750,
however,
is
silent
as
to
the
procedure
to
be
followed
on
an
application
to
extend
the
time
for
service
and
filing
of
the
notice
of
appeal.
The
common
law
rule
requiring
notice
to
be
given
to
the
opposite
party
founded
on
the
maxim
audi
alteram
partem
is,
in
my
view,
subject
to
the
maxim
referred
to
by
Fauteux
J.
that
the
law
does
not
compel
a
person
to
do
that
which
he
cannot
possibly
perform,
and
notice
of
an
application
to
extend
the
time
for
appealing
may
be
dispensed
with
where
the
appellant
has
done
everything
in
his
power
to
effect
service
of
the
notice
of
the
application
and
it
is
clearly
impossible
for
him
to
do
so.
I
find
no
inconsistency
between
the
provisions
of
Section
750
of
the
Code
and
the
provisions
of
Rules
13(1)
and
(2)
which,
in
my
view,
are
validly
made.
Consequently,
a
judge
on
an
application
under
Rule
13(1)
to
extend
the
time
for
appealing
may,
in
appropriate
circumstances,
order
that
notice
to
the
opposite
party
be
dispensed
with.
Martin,
J.A.
then
makes
it
clear
that,
unless
the
applicant
can
show
that
he
brings
himself
within
the
exception
to
this
general
rule
requiring
notice,
an
order
extending
the
time
granted
without
notice
to
the
other
party
is
a
nullity,
and
there
is
then
no
jurisdiction
to
hear
the
appeal.
Just
11
months
later,
the
Ontario
Court
of
Appeal
had
the
occasion
to
pass
upon
the
same
issue
again.
And
again
Martin,
J.A.
delivered
the
reasons
for
the
judgment
of
the
Court.
That
case
is
R.
v.
Holmes,
supra.
At
page
479
of
the
report
[C.C.C.],
Martin,
J.A.
succinctly
states
the
ratio
of
Ruffo.
He
says
this:
In
R.
v.
Ruffo,
.
.
.
this
court
held
that
the
judgment
of
the
Supreme
Court
of
Canada
in
the
Neal
case
should
not
be
construed
as
holding
that
an
order
extending
the
time
for
service
and
filing
of
the
notice
of
appeal
can
never
be
made
ex
parte,
and
that
an
ex
parte
order
extending
the
time
for
service
and
filing
the
notice
of
appeal
may
be
made
where
it
is
impossible
to
serve
notice
of
the
application
to
extend
the
time
on
the
respondent
because
he
cannot
be
found.
I
would
readily
agree
with
Miss
Schlemmer
that
both
Ruffo
and
Holmes
are,
on
their
facts,
different
from
this
case.
I
agree
as
well
that
it
might
be
permissible
to
say
that
there
may
be
other
grounds
upon
which
a
judge
might
validly
entertain
an
ex
parte
application
to
extend
the
time.
But
where
the
ground
advanced
for
bringing
the
application
ex
parte
is
the
inability
to
effect
service
of
the
notice
of
the
application
because
of
the
unavailability
of
the
respondent
—
and
that
is
the
case
here
—
it
seems
to
me
that
Ruffo
and
Holmes
clearly
declare
that
the
condition
precedent
to
a
valid
order
being
made
is
proof
that
it
is
impossible
to
give
notice
to
the
respondent
of
the
application
because
he
cannot
be
found.
Applying
that
principle
to
this
case,
it
seems
to
me
that,
had
I
directed
my
mind
to
that
requirement
on
March
16,
1987,
I
would
not
have
been
satisfied
that
“it
was
impossible
to
serve
(the
respondent)
with
notice
of
the
application
to
extend
the
time
because
he
(could)
not
be
found".
Crown
Counsel
knew
of
course
that
Mr.
Giffen
had
acted
as
the
respondent's
counsel
during
the
many
days
of
trial.
No
effort
was
made
to
enquire
of
Mr.
Giffen
as
to
the
respondent's
whereabouts,
or
indeed
to
determine
whether
or
not
Mr.
Giffen
had
instructions
to
act,
or,
if
not
that,
could
himself
immediately
locate
the
respondent.
No
effort
was
made
to
advise
the
brother
of
the
intention
to
bring
the
application
and
to
inform
the
brother
to
in
turn
contact
the
respondent
and
advise
him
orally
of
the
time
and
place
of
the
intended
application.
Without
labouring
the
factual
aspects
further,
it
is
surely
right
for
me
to
say
that
there
was
a
very
real
possibility
that
a
minimum
of
effort
would
have
resulted
in
ample
notice,
oral
or
otherwise,
being
given
to
the
respondent
of
the
nature
of
the
intended
application,
and
of
the
time
and
place
for
its
hearing.
Accordingly,
since
I
am
not
satisfied
that
the
Crown
brought
itself
within
the
exception
to
the
general
rule
that
notice
of
an
application
for
an
order
to
extend
time
for
service
is
a
condition
to
the
validity
of
any
such
order,
the
order
that
I
made
on
March
16,
1987
must
be
declared
to
be
a
nullity
and
I
have
therefore
no
jurisdiction
to
entertain
an
appeal
on
the
merits,
and
the
appeal
must
therefore
be
quashed.
Miss
Schlemmer
submitted
that,
should
I
consider
myself
compelled
to
reach
the
conclusion
that
I
have
now
reached,
then
I
should
grant
leave
to
the
Crown
to
bring
a
new
application,
on
notice
to
the
respondent,
to
extend
the
time
for
service
of
the
notice
of
appeal
to
some
date
in
the
future.
I
am
not
at
all
sure
that
the
Crown
needs
my
leave
to
bring
a
new
application
pursuant
to
Rule
13,
but
if
it
does,
then
I
would
not
be
disposed,
at
least
on
the
information
I
now
have,
to
grant
leave.
The
allegations
that
form
the
basis
for
the
charges
relate
to
conduct
that
occurred
between
1978
and
1982.
The
charges
were
laid
on
March
1,
1985,
nearly
three
years
ago.
The
trial
proceeded
throughout
a
six-month
period
in
1986
with
judgment
finally
being
delivered
on
February
16,
1987.
In
short,
ten
years
will
soon
have
passed
since
the
happening
of
at
least
part
of
the
alleged
misconduct,
and
one
year
since
the
final
disposition
at
trial.
The
Crown
had
a
fair
opportunity
to
pursue
an
appeal
as
of
right
from
that
disposition,
and
must
be
taken
to
have
failed,
through
no
fault
of
the
respondent,
in
pursuing
that
opportunity
expeditiously
and
properly.
Had
it
done
so,
and
had
it
succeeded
in
its
appeal,
the
undoubted
order
would
be
a
new
trial.
In
short
this
whole
proceeding
has
lasted
a
long
time
and
has
the
potential
for
continuing
into
the
next
decade.
It
does
not
seem
to
me
to
be
in
the
interests
of
the
fair
administration
of
justice
for
a
court
to
become
a
party
to
that
further
protraction
through
the
exercise
of
a
discretionary
power.
I
have
accordingly
endorsed
the
notice
of
appeal
as
follows:
January
11,
1988
For
written
reasons
given,
the
appeal
is
quashed
for
lack
of
jurisdiction
to
entertain
the
appeal.
Appeal
dismissed.
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