Précis: The B.C. Supreme Court held that a second notice of appeal could be served on counsel for the defendant ship as personal service on the defendant ship was not realistically available to the Crown.
Facts: The Crown made an ex-parte application in B.C. Supreme Court to effect service of a notice of appeal of the lower Court’s decision to acquit the m/v Marathassa of all summary conviction charges in relation to a discharge of oil in Canadian waters in 2015. The Crown also sought an order to extend the time for service of the notice. As the vessel was not in Canadian waters at the time when Crown sought to serve the notice, personal service could not be effected as required by the Criminal Code rule governing summary conviction appeals. The B.C. Supreme Court Criminal Rules did allow for the Court to order for service on the defendant in the manner that the Court directs.
Decision: Orders granted.
Held Under the B.C. Supreme Court Criminal Rules, if personal service of a notice of appeal cannot be perfected then an ex-parte application can be made to a judge of the appeal court for an order to serve the defendant in a manner that the appeal court directs. In finding that the ship attorned to the lower Court’s jurisdiction and was represented by the solicitor, who had also accepted service of an earlier notice of appeal relating to a directed verdict of acquittal, the alternative to personal service was justified as personal service could not be achieved through no fault of the Crown. Despite an undertaking by the vessel’s solicitor to accept the originating summons in respect of the charges tried in the lower Court and to pay after final appeal the administrative monetary penalties, the B.C. Supreme Court held that an appeal from a summary conviction was not a new originating process but rather an extension of the trial process. In granting the order extending time to serve, the Court found that the Crown acted diligently in filing the notice of appeal, that the delay in service arose since the vessel was outside of the jurisdiction, the delay had been minimal, and the extension of time to serve would not prejudice the vessel as service of the notice of appeal in relation to the directed verdict of acquittal was already known and would not catch the vessel “by surprise”.