Court of Appeal for Ontario

Citation: R. v. Direk, 2008 ONCA 259 Date: 2008-04-08 Docket: M35789 & M35463 & M35531 & M35343 & M35587 & M35262

Between:

Her Majesty the Queen Respondent

And

Ural Direk Applicant

And

Joanne Wallace and Maria Chin Respondents

Before: Feldman, Simmons and Lang JJ.A.

Counsel: Ural Direk in person, represented by his son, Kemal Direkoglu, and assisted by Ahmet Seydaki, interpreter. Peter Scrutton for the respondent

Heard: March 3, 2008

Motion to set aside the order dated October 23, 2007 dismissing as abandoned the applicant’s motion for a review of an order made by Doherty J.A. on July 18, 2007 and motion to review two orders made by Laskin J.A. dated October 16, 2007 and October 17, 2007 respectively.

Endorsement

[1] The main issue before us is whether we should set aside an order of this court dated October 23, 2007. The October 23, 2007 order dismissed as abandoned the moving party's motion to review an order of Doherty J.A. made on July 18, 2007. Doherty J.A. declined to extend the time for the moving party to file an application for leave to appeal from an order of the summary conviction appeal court. The Crown resisted the motion on the sole ground that the moving party had not raised an arguable ground of appeal. Doherty J.A. agreed, holding that the moving party's proposed notice of appeal does not raise an arguable question of law alone.

[2] The moving party was convicted of two counts of uttering death threats arising from a letter he sent to the Law Society complaining about two lawyers who represented him in prior civil proceedings. We agree with Doherty J.A.’s conclusion that the moving party’s proposed notice of appeal, as currently drafted, does not raise an arguable ground of appeal. However, having reviewed the full transcript of the appellant’s trial and the trial judge’s reason for judgment, in our view, it is reasonably possible that, with the benefit of legal advice, the moving party may be able to raise an arguable ground of appeal concerning whether the elements of the offences were established.

[3] The moving party was not represented by counsel in the summary conviction appeal court, nor is he represented in this court. Further, he claims that it was because he had another court date on October 23, 2007 and because he only received notice of the review date from the Crown and not from the Appeal Scheduling Unit that he did not appear on October 23, 2007.

[4] Before us, the Crown fairly acknowledged that this court has jurisdiction to vary a prior order refusing an extension of time “where the interests of justice require” it. In all of the circumstances, we consider it appropriate to permit the appellant to proceed with his appeal on a date when duty counsel can assist him.

[5] Accordingly, the orders dated October 23, 2007 and July 18, 2007 are set aside and in their place an order is substituted extending the time for the appellant to file a notice of appeal until April 18, 2008. The appellant may file his notice of appeal as currently drafted. This matter shall be listed to be spoken to at 10 a.m. on May 12, 2008 in courtroom 10, Osgoode Hall, 130 Queen Street West, Toronto, when duty counsel will be present to assist the appellant. At that time, further directions will be given concerning when the appeal will be heard.

[6] The moving party also applied to review two orders of Laskin J.A. dated October 16, 2007 and October 17, 2007 respectively. These orders dismissed the moving party’s requests for an order to reimburse him for the costs of a transcript of the proceedings in the summary conviction appeal court and for an order requiring that a court reporter attend and provide a transcript of further proceedings in this court at government expense. We see no error in the orders made.

[7] As Laskin J.A. noted, the proceedings in the summary conviction appeal court relate to argument rather than to evidence and would not assist the moving party’s position in this court. Further, Laskin J.A. left it open to the moving party to arrange for a reporter in this court at his own expense. Submissions in this court are not generally recorded and transcribed by a court reporter. We see no basis for ordering that public monies be spent to do so in this case. The motion for a review of the orders dated October 16, 2007 and October 17, 2007 is therefore dismissed.

“K. Feldman J.A.”

“Janet Simmons J.A.”

“S. E. Lang J.A.”