“Our system of justice cannot operate effectively if directions and orders designed to advance a party’s appeal are flouted and ignored. The conduct of this appeal is unfair to all justice system participants be they opposing counsel, members of the judiciary or court administration, complainants, or other litigants wanting to have their cases heard,” wrote Justices Sarah Pepall, David Paciocco and Lise Favreau for the Court of Appeal.
“Rarely will an appeal be deemed to be abandoned over the appellant’s objection. However, here the non-compliance has been egregious, warnings have been repeatedly disregarded, and the court has no confidence that this appeal will be advanced. We conclude from the inactivity that the appeal should be deemed to be abandoned as the Crown requests,” they concluded.
In R. v. S.M.C., 2023 ONCA 47 the court heard that the appellant had been convicted of “one count of sexual assault” in May 2019 and was sentenced in November 2019 to “two years less a day.”
Shortly after sentencing, the appellant filed a Notice of Appeal. The court noted that “Since that time there have been over a dozen appeal management conference calls, a Status Court appearance, and three Purge Court appearances” and the appellant has “still not perfected his appeal.”
“As a result of an ineffective assistance of counsel claim,” the court explained, “the matter has been in appeal management since April of 2020.”
In July 2022, Justice Steve Coroza “directed that if there was no progress with respect to the completion of the fresh evidence record, the matter would be placed in Status Court on September 20, 2022, and then potentially Purge Court.” This direction was made after “more than two years of appeal management.”
According to court documents, “Neither the appellant nor his counsel attended at the Status Court” in September 2022, so Justice Coroza “directed that the matter be placed on the October 28, 2022 Purge Court list.”
In October, the presiding panel “adjourned the matter to Purge Court on November 25, 2022 and directed that the appellant and his counsel were to be in attendance on that date.” The panel also directed that “the other grounds of appeal were to be perfected and counsel for the appellant was to contact the Crown by November 4, 2022 and schedule cross-examination on the fresh evidence affidavit.”
However, the court noted, the “other grounds of appeal were not perfected by November 25, 2022” and the “panel presiding in Purge Court on November 25, 2022 ordered that by November 30, 2022” appellate counsel, Rocco Achampong, “was to arrange a case conference with Paciocco J.A. to be scheduled at the earliest convenience of Crown counsel and Paciocco J.A.”
In December 2022, the court noted that Justice Paciocco “held a further case conference” and found that “the factum had not been completed, served and filed as required and confirmation of the booking of the cross-examinations had not been sent to the Crown.”
According to court documents, Justice Paciocco “directed that the matter be listed for Purge Court for December 22, 2022 but could be delisted if the appeal was perfected by December 22, 2022, and Mr. Achampong had provided confirmation to Crown counsel that the cross-examinations for the fresh evidence had been scheduled.”
However, the court stressed, “If these conditions were not met, both Mr. Achampong and the appellant were to attend the December 22 Purge Court and, ‘absent exceptionally cogent and verifiable explanations, it [was] recommended that the appeal be dismissed as abandoned.’ ”
The court noted that there “continued to be non-compliance with the directions given” and on December 21, 2022, the Crown “wrote to the Court asking that the appeal be dismissed as abandoned.”
The presiding panel granted the appellant an extension until Jan. 6, 2023, to “perfect the appeal” and directed the appellant to “comply with all other terms of Paciocco J.A.’s December 12, 2022 direction …”
But, the decision noted, there “continued to be non-compliance with the terms of the directions” and the appellant “has still not perfected his appeal.”
Therefore, on Jan. 9, the Crown “wrote a detailed letter to the Court asking that the appeal be dismissed as abandoned.”
The Crown, the appellant and counsel, attended court via video or audio on Jan. 11.
“At that time,” the court emphasized, “despite his non-compliance, the lack of perfection of the appeal, the repeated warnings and no change in the status, the appellant indicated that it was not his intention to abandon his appeal.”
“Rather, he stated that he had a two-hour Legal Aid certificate for an opinion on the merits of his appeal. This was the first that the Crown had heard of any Legal Aid certificate, and Mr. Achampong offered that the first he heard of it was that afternoon,” the court added, stressing that the “system of justice cannot operate effectively if directions and orders designed to advance a party’s appeal are flouted and ignored.”
In a decision released Jan. 25, a unanimous court ordered that “the appeal be dismissed as abandoned.”
Appellate counsel, Achampong, told The Lawyer’s Daily that “it really does break my heart because, in my respectful submission, the underlying trial decision of guilt was not sound."
He said it was “interesting that the court’s timeline retraced two years of case management conferences with Justice Paciocco” because “the bulk of that time period was really waiting for the trial counsel's affidavit in response to the claim for ineffective assistance of counsel.”
“Once that came in, they put the heat on the appellant,” he added, noting that the “issue” after his client “received the affidavit” was setting up examination — “examinations of people, cross-examination, which was actually booked with video plus transcription.”
“The client simply could not go on. Hence the mention of a Legal Aid opinion certificate, because at some point my office was footing the bill. We thought this was a gross miscarriage of justice,” he explained.
“I truly do believe that his [the client’s] conviction was wrongful, but at some point, my office could not foot the bill for the appeal going forward,” he said, noting the lack of funding “was troublesome.”
“The issue of costs became a prominent issue that could not be resolved within the court’s timeframe, and it actually does break my heart,” Achampong stressed.
According to court documents, the appellant “has now served his sentence.”
The Ministry of the Attorney General, on behalf of the Crown, declined to comment on the decision.
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