) ) HER MAJESTY THE QUEEN Respondent – v. –, 2010 ONSC 2458

CITATION : R. v. Stewart 2010-04-26 ONSC 2458 COURT FILE NO.: 07-181 and 09-071 DATE: 20100426 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – STEVEN STEWART Appellant ) ) ) ) ) ) ) ))) M. Minns, for the Crown H. Doan, for the Appellant ) ) HEARD: April 14, 2010 On appeal from the judgment of Mr. Justice G. Palmer Dated May 17, 2007 howden j.: [ 1 ] On May 17, 2007, Steven Stewart pleaded guilty to two counts of impaired driving in the Ontario Court of Justice, one from January 4 and the other from January 11, 2007. He was represented by his counsel David Wilcox.

A third count alleging noncompliance with an undertaking was withdrawn at the prosecution’s request. He was sentenced the same day following a joint submission to 1 day in custody following 134 days of pre-trial time and a 3-year driving prohibition on the January 4th charge. The sentence on the January 11 th charge was the same, to run concurrent with the first. [ 2 ] Thereafter, the Appellant wrote out a notice of appeal and filed it within the 30-day time limit for appeal on June 15, 2007.

From that time, the appellate rules, criminal law procedure and substance were ignored primarily by the defence and even by the court administration.

It is important to an understanding of this decision to set out the steps that were followed amid the lengthy delays and even a subsequent decision to abandon the appeal: June 15, 2007 Notice of appeal was filed complaining of bail being withheld and non-disclosure by the Crown before plea, and stating “that his toxicology was clean” and “new evidence of prescription … drugs would most likely” have led to his acquittal if he had been informed. (The Crown was not served as it should have been.

The Court staff noted on the notice that it was sent to the Office of the Crown Attorney on June 18.) March 3, 2008 The Crown brought forward an application to dismiss the appeal for want of prosecution. Since the previous June, no attempt had been made by the Appellant to perfect the appeal. He retained counsel only one week before this date. The court dismissed the Crown’s application on the understanding that the filing deadlines prior to the hearing were to be complied with. The appeal was scheduled for hearing on June 2, 2008. June 2, 2008 No filings by the Appellant’s counsel were carried out.

The Appellant’s counsel was not present when the case was first called for hearing. When it was called again, the following exchange occurred:

Prosecutor: Yes, your Honour, I believe Mr. Doan is here on Mr. Stewart’s matter. The Court: Mr. Doan. Mr. Stewart’s case was called and he was before the court. He told me that your assistant told him that you were en route and, in fact, he was right. About ten after ten you got here. Mr. Doan: Well, sir, if I may, I apologize for not being gowned. A short colloquy followed on gowns. Then: The Court: Well, that explains it, now that you have told me where you keep them. Mr. Doan: In any event, sir, I wrote a letter this morning. We have decided to abandon the appeal.

The Court: What is your initial or first name, sir? Mr. Doan: H.J., sir. The Court: Thank you. That is correct, is it, Mr. Stewart? S. Stewart: Pardon me? The Court: That is correct, is it? You are abandoning the appeal? S. Stewart: Yes. The Court: Thank you. All right, I have endorsed as follows: Accused is present in person with counsel, H. J. Doan. Appeal abandoned at the request of the accused. March 9, 2009 A document headed “Notice of Appeal” and dated November 3, 2008, under Mr. Doan’s name as counsel, was accepted by the Court office and a new file opened as if it were a

summary conviction appeal brought for the first time and within the appeal time. The first line on p.1 states “Take Notice that the Appellant seeks leave to bring the within appeal…”, the appeal being from the same two convictions and sentence on May 17, 2007. No reference was made to the appeal having been abandoned the previous year. No order extending the time was obtained and no application was brought for leave to file this notice of appeal late.

June 22, 2009 An application to stay the prohibition order was brought on by the Appellant but was adjourned for more filings at the request of the Appellant’s counsel. July 13, 2009 The application for the stay was withdrawn by the Appellant. No filings of appeal material had occurred as of this date despite it being

over 2 years since the Appellant’s plea and convictions. October 2, 2009 The Appellant’s counsel wrote the court registrar requesting a copy of the original information of January 2007, so that he could bring a motion. Court staff wrote on the letter: “Cert. done by mail Oct. 6/09”. Again, nothing irregular was noted despite there being no information in this file; the original information was still in the original court file which had been dealt with in June 2008. October 9, 2009 The Appellant filed and served the Appeal Book. The appeals clerk issued to both parties Notice of Hearing for December 7, 2009.

November 9 to 23, 2009 The factums and books of authority were delivered within the time set by the hearing notice. December 7/09 The appeal was adjourned on consent for “the Crown to obtain an affidavit from the (Appellant’

s) former counsel”. March 23, 2010 A waiver of privilege was filed by the Appellant on March 12.The affidavit of David Wilcox was filed on this date, outlining his involvement as the Appellant’s counsel from April 5 to May 17, 2007. This affidavit states that Mr. Wilcox discussed the case at length with the prosecuting Crown lawyer.

This included a statement by the Crown that a joint submission including time served could be considered, that the Crown would pursue no further information from its expert on the amount of any particular narcotic in the Appellant’s urine samples, and that with the officer’s evidence the offences would be proven if the case went to trial. Mr. Wilcox alleges that he had his own toxicologist comment on the Crown’s toxicological report, following which the issue of proceeding to trial or pursuing a joint submission was discussed with the Appellant including the foregoing.

Wilcox’s view by this time was that the Crown witnesses could prove the charges. The Appellant had six prior dinking/driving/related offences on his record. The Appellant is said to have instructed Wilcox to pursue the joint submission on two occasions and he did so, once unsuccessfully before Douglas J. and later before Palmer J. on May 17, 2007 who accepted it. The Appellant’s affidavit sworn November 3 2008 states that he had 3 lawyers and not one sought instructions from him or, when given instructions, followed them.

They failed to disclose to him information “which I inquired about”, and he never saw the complete Crown disclosure. What information he is talking about here was not mentioned by him. The Appellant was released from custody on May 17 th after his plea and the joint submission were accepted. March 29, 2010 This “appeal” came before me as the duty judge. After hearing from assistant Crown Attorney Minns’ objection to this appeal proceeding in view of its prior disposition and from Mr. Doan who wanted time to properly respond, the Crown having never made this objection before, I put the matter over to April 14.

I advised the Appellant’s counsel that he would be required at that time to show cause how this appeal could properly proceed in view of its abandonment by the Appellant in June 2008, the delay since the 30-day appeal period elapsed almost three years ago (or the 9-month delay to March 2009 from the June 2008 abandonment by the Appellant), and there being no order ever requested or granted extending time to allow it to proceed. [ 3 ] On April 14, I heard submissions from both sides. [ 4 ] Mr. Doan submitted that what he had done was “re-file” the appeal in March 2009.

He said that his client’s file was “a mess” when he was retained in late February 2008. He submitted that the 2009 “Notice of Appeal”, filed some 22 months after the conviction appealed from, was in reality not simply an appeal notice but, by its wording, sought leave to appeal. He noted the wording which I quoted earlier regarding the filing of March 9 2009. He submitted that it should now be taken to act as a motion to extend the time to appeal and that in his view, this appeal meets the usual criteria for an extension.

He submitted that the appeal had merit because the Crown’s toxicology report failed to comment on the cocaine, one of a number of drugs found in the Appellant’s system, being

sufficient to impair his ability to drive. He argued that due to nondisclosure to the Appellant and this alleged evidentiary gap, Mr.Stewart should not have pleaded guilty because he had a defence. [5] I do not agree that this appeal can or should proceed for the following reasons, both jurisdictional, procedural andsubstantive. [6] First, this appeal was disposed of on June 2, 2008 when the Appellant, with counsel, abandoned it. No right to “re-file” wasreserved at that time.

I will deal later with the exception to abandonment on grounds of ‘miscarriage of justice’. [7] Second, there is no case here for an extension of time for appeal. The application for an extension of time was never broughton in all the time since the Appellant’s abandonment of his appeal on June 2, 2008. Mr. Doan claimed to be asking for a time extensionunder the guise of the claim for leave in the “Notice of Appeal” filed on March 9, 2009. No notice was ever given to the Crown that therequest for leave was in reality a request for an extension of Mr.

Stewart’s appeal rights from June 2007, or taken at its most optimisticfor the Appellant, from his abandonment of appeal on June 2, 2008, respectively 35 and 22 months ago. [8] The Criminal Code and Criminal Appeal Rules 4 and 7 provide for the time for appeal and an extension of time. S. 815(1). C.C.C. An Appellant who proposes to appeal to the appeal court shall give notice of appeal in such manner and within suchperiod as may be directed by the rules. (2). The appeal court or a judge thereof may extend the time within which notice of appeal may be given. Crim. Rule 4(2).

Where the appeal is from conviction, sentence, or both, the notice of appeal shall be served within 30 days after the dayof the sentence. Crim. Rule 7(1). The time for appeal…may be extended or abridged by a judge before or after the expiration of the time prescribed. Crim. Rule 7(2).

Except in an inmate appeal, notice of application to extend or abridge time shall be given to the opposite party unlessotherwise directed by a judge. [9] The Appellant has not given notice of such an application to extend the time for appeal to this day, and a vague mention of arequest for leave in what purported to be a notice of appeal is not notice under the rules. Even if I were to treat the request for leave inthe second appeal notice as a request to extend the time, I find that it cannot meet the usual three-pronged test:

i) whether the applicant has shown a bona fide intention to appeal; ii) whether the Appellant has accounted for or explained the delay; and iii) whether there is merit to the proposed appeal. Depending on the case, the court may consider other factors such as whether the consequences of the conviction are outof all proportion to the penalty imposed, whether the Crown will be prejudiced and whether the Appellant has taken advantage of thejudgment. In the end, the principal issue is whether the Appellant has demonstrated that justice requires an extension to be granted.

R. v.Menear (2002), (ON CA), 162 C.C.C. (3d) 233(O.C.A.); leave to appeal to the Supreme Court of Canada refused 164C.C.C. (3d) vi. [10] In June 2007, the Appellant did evince an intention to appeal by filing his first notice of appeal. He retained Mr. Doan late inFebruary 2008 as his counsel to argue the appeal. In my view the adjournment to June 2008 gave him more than enough time forcompetent and reasonably diligent counsel to assess the Appellant’s appeal and perfect it, whatever the condition of his file. Both Mr.Doan and Mr.

Stewart then proceeded to advise the court in June 2008 that the appeal was abandoned. Any bona fide intention to appealvanished at that point. When an appeal is abandoned, on the ordinary meaning of the word, the appeal is given up completely; it is deserted or left permanently. Concise Oxford English Dictionary, 10th Ed. revised, 2002, p.2. In the legal sense of the word, abandonment means the relinquishing of a right with the intention of never claiming it again. Black’s Law Dictionary, 7th Ed., 1999, atp. 1.

To both counsel and a lay person, the meaning of what occurred on June 2, 2008 should have been very clear. Any bona fideintention to appeal up to then evaporated by their own act. Yet by November, a new “Notice of Appeal” was drawn up. It merelyrequested leave to appeal, and it was not served and filed until March 9 2009, three months later.

Following the abandonment, theAppellant has failed to establish a bona fide intention to appeal within 30 days, even if one could use an abandonment as a new start timefor appeal rights, a proposition which I doubt. [11] The Appellant has never presented any evidence to account for the delay since June 2008 if a re-filing were possible in lawwithout an order. After his first notice was entered, he or his counsel filed no material to perfect the appeal and finally abandoned it.

The delay in filing the second notice of appeal requesting leave from the end of the first appeal process in June 2008 to March 9, 2009has never been accounted for. Stating (as Mr. Doan has) that his client’s file is “a mess” when he received it in February 2008, does noteven approach an explanation for failing to prosecute the appeal to June 2, 2008, abandoning it, and then taking a further 9 months to file

a supposed notice of appeal which is now argued to be a request for an extension of time with no return date or tenable grounds for extension of time. Factor (ii) from Menear has clearly not been met. [ 12 ] As to the third factor, Mr. Doan now submits that the Appellant’s pleas of guilty have led to a miscarriage of justice because he had a defence. If that were so, I would not hesitate to extend time even given this travesty of delay and misleading of the Court, because the faults or deficiencies of counsel should not allow a clearly unjust condition to continue.

As Dubin J.A. stated, abandonment of a right is an important procedural step, and when it is done with the assistance of counsel it should not lightly be disregarded unless, by doing so, a clear miscarriage of justice can be avoided. R v Robertson [1978] O.J. No. 1453 (C.A.) . [ 13 ] I have reviewed the factum filed on behalf of the Appellant. It does not refer to any toxicology report, including the one Mr. Doan referred to before me. He himself filed as part of an addendum a report of Forensic Information Services Inc. which confirms Mr.

Wilcox’s affidavit that he indeed did seek his own toxicological advice from a Dr. Ward. That report states that the report obtained by the Crown would establish that this Appellant was found to have in his body not only cocaine but amphetamines, benzodiazepines (i.e. Diazepam), ephedrine, and marijuana and that the Crown’s report suggested recent cocaine use.

The Crown’s case not only relied on the toxicology but also the investigating officer’s observations of the Appellant which were agreed to by the Appellant at the time of his plea, indicating clear impairment of his ability to drive. [ 14 ] This Appellant is well experienced in the criminal justice system, given the number of prior convictions on his record. He heard all the facts read in court, agreed to them through his counsel, and made no protestation whatsoever of ignorance or innocence. He took the benefit of the plea negotiation and joint submission and achieved his freedom the day of sentencing.

There is nothing before me to indicate that he misunderstood anything or that his plea was uninformed. [ 15 ] I find that this court has no jurisdiction to deal with this appeal in view of this Appellant’s appeal from the two convictions having been disposed of on a final basis in 2008. If I am in error in that finding, I find that there is no case for an extension of time of 35 months to the hearing on April 14, 2010 when the Appellant’s counsel first addressed that issue before the court.

I also find that there is no clear miscarriage of justice to warrant setting aside the notice of abandonment given orally by counsel and by the Appellant. The second “Notice of Appeal” is therefore quashed, or, if somehow the appeal was held to be properly in front of this Court, it is dismissed. [ 16 ] I do not doubt that Mr. Doan meant well when he took on this case shortly before the March 2008 court appearance.

However, what he did thereafter, not only as counsel but as a sworn officer of the court, has amounted to an end run around the rules, misleading of the court in asserting an abandonment of appeal rights and then somehow filing a second appeal notice well out of time when he must have known he had no case to obtain an extension and failing to disclose the abandonment of the first appeal. This is neither professional nor is it conduct that should ever be repeated. HOWDEN J. Released: April 26, 2010