DATE: 20051208
DOCKET: C42855
COURT OF APPEAL FOR ONTARIO
DOHERTY, SHARPE and LANG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Vanessa V. Christie for the appellant
Respondent
- and -
Carol Brewer for the respondent
JOHN DALGLEISH
Applicant/Appellant
Heard: December 8, 2005
On appeal from the decision of Justice Corbett of the Summary Conviction Appeal Court dated November 26, 2004.
BY THE COURT:
[1] We will assume without deciding that s. 839(1) of the Criminal Code empowers this court to grant leave from an order of the Summary Conviction Appeal Court refusing an application for an extension of time within which to appeal a conviction to that court.
[2] The Summary Conviction Appeal Court judge dismissed the application for an extension of time because the applicant’s affidavit did not demonstrate a “timely intention to appeal” or offer an adequate explanation for the six month delay between the conviction and the application for an extension of time.
[3] The only evidence before the Summary Conviction Appeal Court judge was the affidavit of the appellant. The relevant paragraph from that affidavit reads:
I attempted to consult with counsel the day immediately following this finding of guilt and sentence to discuss my options with respect to an appeal of this conviction. I was ultimately referred to another lawyer in the area to obtain advice with respect to the appeal process. I did seek advice from other lawyers in the area and was ultimately told that I should seek counsel out of the district. I have recently retained Greenspan, White for this application and appeal.
[4] The Summary Conviction Appeal Court judge correctly observed that a bona fide intention to appeal within the appeal period, and an adequate explanation for the delay in launching the appeal were relevant considerations in determining whether to grant an extension of time within which to appeal. The applicant does not assert that he intended to appeal within the requisite thirty days, nor can his very non-specific references to attempts to consult with counsel be taken as an adequate explanation for the delay in launching the appeal.
[5] The Summary Conviction Appeal Court judge properly refused the extension of time. Leave to appeal is granted and the appeal is dismissed.
RELEASED: “DD” “DEC 08 2005”
“Doherty J.A.” ”Robert J. Sharpe J.A.”
“S.E. Lang J.A.”