DATE: 20050425

DOCKET: C41525

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. MARK MALCOLM (Appellant)

BEFORE: DOHERTY, MOLDAVER and GILLESE JJ.A.

COUNSEL:

Boris Bytensky for the appellant

Karey Katzsch and Deborah Krick for the respondent

HEARD: April 21, 2005

RELEASED ORALLY: April 21, 2005

On appeal from the conviction entered by Justice R.R. Jennings of the Superior Court of Justice, sitting with a jury, on February 14, 2004 and the sentence imposed dated February 17, 2004.

E N D O R S E M E N T

[1] Mr. Malcolm’s case was scheduled before purge court on Tuesday, April 19, 2005. He did not appear and the appeal was dismissed as an abandoned appeal. Mr. Malcolm appeared about a half an hour after the matter had been disposed of and asked that it be listed for further hearing so that counsel, who has been assisting him, could attend and make whatever submissions he thought appropriate. The court directed that the matter be listed for today, April 21, to consider whether we should rescind our order dismissing the appeal as an abandoned appeal.

[2] We have heard submissions from counsel who has been assisting Mr. Malcolm throughout the appellate process. An order was made several months ago directing Mr. Malcolm to order and provide the transcript by a certain date. That deadline has not been met.

[3] We see no basis upon which we should rescind our order. The appeal remains dismissed as an abandoned appeal.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“E.E. Gillese J.A.”