R. v. Gardner, 2021 NLCA 19

Shane Gardner (appellant) v. Her Majesty the Queen (respondent/applicant) (19/94) Indexed As: R. v. Gardner 2021 NLCA 19 6 C.A.N.L.R. 497 Court of Appeal of Newfoundland and Labrador Welsh J.A. April 6, 2021

Summary: Shane Gardner pleaded guilty and was convicted of one count each of criminal harassment and breach of probation. Mr. Gardner was sentenced to 90 days imprisonment, to be served intermittently, for the criminal harassment conviction and 15 days imprisonment, concurrent, for the breach of probation. Mr. Gardner’s appeal to the

summary conviction appeal court was dismissed, in Mr. Gardner’s absence. Mr. Gardner filed a notice of appeal with this Court seeking leave to appeal the sentences. The Crown filed an application to have the notice of appeal and leave to appeal struck. Held: Application allowed. Welsh J.A.: Mr. Gardner took no steps to carry forward his appeal despite being given the opportunity to obtain counsel and being given dates by the Court by which to file his written submissions. He indicated he would be making his submissions orally (paragraph 2). There was no reasonable possibility for a successful appeal.

There was no value in delaying the matter further. The application was allowed and the notice of appeal and leave to appeal were struck (paragraphs 3-4). Counsel: Appearing on his own behalf, the appellant; Sheldon Steeves, for the respondent/applicant. The application was heard and decision rendered orally on April 6, 2021 before Welsh J.A.

The following memorandum of disposition was filed on April 7, 2021 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] On May 23, 2018, Shane Gardner pleaded guilty and was convicted of one count of criminal harassment contrary to section 264(1) of the Criminal Code for which he was sentenced on July 27, 2018, to 90 days imprisonment, to be served intermittently, and one count of breach of probation contrary to

section 733.1 of the Code for which he was sentenced to 15 days imprisonment, concurrent. [ 2 ] By notice of appeal dated August 7, 2018, Mr. Gardner appealed his sentences to the

summary conviction appeal court. That appeal was heard and dismissed, in Mr. Gardner’s absence, on October 23, 2019. Mr. Gardner says he made a mistake when writing the date in his calendar. Mr. Gardner then filed a notice of appeal and leave to appeal in this Court. The transcript of proceedings was filed on December 6, 2019. The Crown filed the appeal book on February 5, 2020. Mr. Gardner has taken no steps to carry forward his

appeal despite being given opportunities to obtain counsel, and being given dates by the Court by which to file his written submissions. Recently, he advised the Court that he would not be filing written submissions, but would rely on making his submissions orally. [ 3 ] On January 27, 2021, the Crown filed an application to have the notice of appeal and leave to appeal struck. At the hearing today, I granted the application. I considered Mr.

Gardner’s submissions, particularly with respect to the possible basis for an appeal from the sentencing judge’s decision, together with the extensive reasons provided by the sentencing judge in which the facts, aggravating and mitigating factors, the pre-sentence report and case law were considered and applied. I was satisfied that there was no reasonable possibility for a successful appeal. While that is a test that would ordinarily apply to determination of an application for leave to appeal, I could see no value in delaying the matter further. The appeal is without merit.

To set another date for additional oral submissions from Mr. Gardner would serve no purpose. [ 4 ] Accordingly, at the hearing, I struck the notice of appeal and leave to appeal. Application allowed.