R v Pomehichuk

R. v. Pomehichuk

2009 ONCJ 218
Ontario Court of Justice — Justice Y. Renaud | May 14, 2009

Background

Wayne Pomehichuk, a long-haul truck driver from Manitoba, was convicted on September 12, 2008 of three Highway Traffic Act offences: two counts of failing to maintain a daily log (section 190(3)) totalling $800 in fines, and one count of driving after 12 hours on duty (section 13(3), O.Reg. 555/06) for $400. Over seven months later, in May 2009, Pomehichuk filed applications seeking an extension of time to appeal under section 85 of the Provincial Offences Act and authorization to appeal without paying the fines under section 111(2).

His explanation was simple: "I left my tickets in my logbook and forgot all about them. My license is my livelihood and I must fight these tickets to stay on the road." He claimed he handed the logbook to his company and had "a defence to the charge," but provided no details about what that defence might be or when he actually discovered the convictions.

Issues

1. Should the court grant an extension of time to appeal given the lengthy unexplained delay?
2. Should the court waive the requirement to pay fines before filing an appeal?
3. Can these applications be heard without giving notice to the prosecution?

The Court's Analysis of Extension Applications

Justice Renaud applied the three-part test from R. v. Menear: whether the applicant showed a bona fide intention to appeal within the appeal period; whether the delay was explained; and whether there was merit to the proposed appeal. Pomehichuk failed spectacularly on all three counts.

The judge was particularly critical of several deficiencies: Pomehichuk provided no information about when he learned of the convictions, offered no clear reason for the 7.5-month delay, gave no details supporting his claim that he couldn't afford the fines, provided no reason why the court should hear the application without notice to the prosecution, and failed to offer any grounds of appeal that would show he actually had a defence.

Under Ontario Regulation 722/94, motions for extensions normally require service on the opposite party unless certain exceptions apply. The judge noted that while courts can sometimes proceed without notice in exceptional circumstances—like hospitalization or urgent situations—this case presented none of those factors.

The Court's Conditional Order

Rather than dismissing the applications outright, Justice Renaud took an educational approach. He adjourned the matter with strict conditions: Pomehichuk had until June 5, 2009 to serve the applications on the prosecution, file a proper notice of appeal with specific grounds, and provide a detailed affidavit explaining when and how he learned of the convictions, what happened with his company, his financial circumstances, and his addresses since September 2008.

The judge emphasized that "provincial offence appeals are time-consuming and parties who participate should either devote the effort necessary to diligently prepare the appeals in a timely manner or consider accepting the outcome of the trial."

Key Takeaway

Forgetting about your tickets is not a valid excuse for missing appeal deadlines, and courts expect detailed explanations and proper grounds when granting extensions.

If you need an extension of time to appeal, you must provide specific details about when you learned of the conviction, explain the delay, demonstrate that your appeal has merit, and usually give notice to the prosecution. Vague claims about having "a defence" won't cut it.