Ontario Criminal


Appeal

PROCEDURE
No satisfactory explanation why accused missed peremptory scheduling appearance

Accused sought to re-open his summary conviction appeal against conviction for threatening death by setting aside order dismissing his appeal as abandoned and reinstating appeal. Crown opposed application. Several extensions of time were given for accused’s appeal and it was dismissed when nobody appeared on his behalf at peremptory date to set appeal hearing. Accused’s Notice of Application stated that he was in custody at correctional center and was then inpatient in psychiatric facility for 15 months, he was then released from hospital but was dissuaded from pursuing his appeal by his father and then by psychiatrist and noted that he never admitted his guilt on threatening charge to anyone with exception of his lawyer. Proposed grounds of appeal were that surveillance video did not supply any evidence of death threat, complainant’s criminal record and accused’s lack of criminal record at time, that he was inadequately represented by his trial counsel and that he pleaded guilty to get out of jail because being in detention was becoming overbearing. Application dismissed. There was really no satisfactory explanation why accused missed peremptory scheduling appearance. Accused’s trial counsel died earlier in year; if appeal were reinstated, it would have been very difficult, if not impossible, to assess whether counsel’s representation was deficient. It was not appropriate to permit accused to make calculated decision to plead guilty and then try to reverse that decision over five years later.

R. v. Tkach (Dec. 19, 2012, Ont. S.C.J., Durno J., File No. 2286/08) 104 W.C.B. (2d) 709.

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