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.