COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McDonald, 2016 ONCA 288

DATE: 20160421

DOCKET: M43447 (C44874)

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul McDonald

Applicant (Appellant)

Erin Dann and Joseph Di Luca, for the applicant

Benita Wassenaar, for the respondent

Heard: April 11, 2016

Application to set aside an order dated October 3, 2008, dismissing the applicant’s appeal as abandoned.

Doherty J.A.:

[1] The applicant was convicted of sexual assault and related offences some 15½ years ago in November 2000. In November 2003, he was declared a dangerous offender and sentenced to an indeterminate sentence. He appealed conviction and sentence.

[2] His appeal proceeded as an inmate appeal until February 2006 when a solicitor’s Notice of Appeal was filed by the applicant’s former lawyer (“appeal counsel”). Transcripts from the trial and sentencing proceeding were filed in July 2007. Appeal counsel missed two perfection dates in June and July of 2008. The appeal was to be spoken to in Purge Court on September 24, 2008. On September 22, 2008, appeal counsel filed a Notice of Abandonment signed by appeal counsel. The appeal was dismissed as abandoned on October 3, 2008.

[3] The applicant claims that he did not instruct appeal counsel to abandon his appeal. He contends that he never intended to abandon his appeal and never agreed that his appeal should be abandoned. Appeal counsel maintains that he did receive clear instructions from the applicant to abandon the appeal and that he filed the Notice of Abandonment as a consequence of those instructions.

[4] The preparation and listing of this application have been delayed by a number of factors, none within the control of the applicant. The court now has the benefit of an extensive record setting out the long and unhappy history of the proceedings relating to this application. The applicant and appeal counsel have filed affidavits. Both were cross-examined at length on those affidavits.

[5] The appeal was dismissed based on the Notice of Abandonment. Counsel for the applicant and Crown counsel agree that as the appeal was not heard on the merits, this court has the discretion to set aside the dismissal and reopen the appeal if it is in “the interests of justice” to do so: see R. v. H. (E.F.); R. v. Rhingo (1997), 1997 CanLII 418 (ON CA), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp. 100-101; R. v. Sipos, 2008 ONCA 325, 235 O.A.C. 277, at para. 6.

[6] In the present circumstances, the “interests of justice” inquiry focuses primarily on whether the applicant instructed appeal counsel to abandon the appeal. If he did, that decision must weigh against him in determining whether the appeal should be reopened. If, however, the applicant did not instruct his counsel to abandon the appeal, the interests of justice require that the appeal be reopened. The Criminal Code gives the applicant a right of appeal, both from conviction (s. 675) and from the finding that he is a dangerous offender (s. 759). If the applicant did not instruct appeal counsel to abandon the appeal, it would be unfair to refuse to reopen the appeal and effectively deprive the applicant of the rights of appeal he has under the Criminal Code.

[7] As it is the applicant who seeks to reopen the appeal, he bears the burden of establishing the facts said to warrant reopening the appeal. Principal among the facts asserted by the applicant is his claim that he did not instruct appeal counsel to abandon the appeal.

[8] After careful consideration of the entirety of the application record, and acknowledging that there may have been some disconnect between appeal counsel’s perception of his instructions and the actual instructions, I am satisfied that the applicant has established that he did not instruct appeal counsel to abandon the appeal and that he never intended to abandon his appeal.

[9] In coming to that conclusion, I have carefully considered the applicant’s evidence. He strongly denies ever telling appeal counsel to abandon his appeal. He adamantly rejects any suggestion of a possible misunderstanding of any instruction he may have given to appeal counsel. There are good reasons to doubt the applicant’s credibility. That said, he has never wavered from the position that he did not instruct appeal counsel to abandon the appeal and always wanted the appeal pursued and determined on its merits.

[10] Appeal counsel maintains that the applicant gave clear instructions to abandon his appeal. While these two competing versions of events deserve careful consideration, in the end, the surrounding circumstances considered as a whole drive my factual finding.

[11] First, I accept counsel for the applicant’s submission that from a common sense point of view, a decision to abandon the appeal in September 2008 made little sense. It is difficult to see what the applicant had to gain by abandoning his appeal at that time. He was serving an indeterminate sentence. According to appeal counsel, the appeal was on the verge of perfection and could presumably have been argued in the near future. The applicant had waited several years for the perfection of his appeal. He had suffered through several delays. Why, after so many years and so much frustration, would the applicant abandon his appeal so close to the argument of the appeal?

[12] Second, contemporaneous records support the applicant’s version of events. Telephone records of the communications between the applicant and appeal counsel’s office in August and September 2008 before the Notice of Abandonment was filed are not consistent with appeal counsel’s recollection. There are several calls in August and September, however, all are very brief save for a seven minute conversation on August 1, 2008, almost eight weeks before appeal counsel filed the Notice of Abandonment. The telephone records strongly suggest that there were no meaningful discussions between the applicant and appeal counsel about abandoning the appeal in the several weeks prior to the filing of the Notice of Abandonment. If the instructions were given during the August 1st conversation, one wonders why the Notice of Abandonment was not filed for almost eight weeks, and on the eve of appeal counsel’s required attendance at Purge Court.

[13] The applicant’s conduct in the weeks and months after the Notice of Abandonment was filed and the appeal dismissed is inconsistent with the applicant having instructed appeal counsel to abandon the appeal. The applicant made several statements to Corrections staff indicating that he was still pursuing his appeal after September 22, 2008. When staff personnel told him that the appeal had been dismissed, he insisted they were wrong. The applicant also made many, many attempts to contact appeal counsel on the telephone after the Notice of Abandonment was filed. Not only did the applicant make many attempts, Corrections staff also made attempts on his behalf.

[14] Crown counsel makes the point that evidence of the applicant’s statements to Corrections staff and his many attempts to contact appeal counsel are consistent with someone who had abandoned his appeal and then changed his mind. Crown counsel’s submission, however, loses its force when the evidence of the applicant’s conduct after the supposed abandonment is considered in combination with the rest of the evidence.

[15] Third, appeal counsel’s recollection of events, and his conduct during the relevant time, support the conclusion that the applicant did not give instructions to abandon his appeal. Appeal counsel’s recollection of the actual instructions to abandon the appeal is vague to say the least. He does not remember what was said, when it was said, whether it involved one or more conversations, what he did to satisfy himself that the decision to abandon was an informed one, what advice, if any, he gave to the applicant about abandoning the appeal at that time, or what explanation, if any, he gave to the applicant about the effect of abandoning his appeal. The closest appeal counsel comes to a recollection of an explanation he offered as to the effect of the abandonment is his evidence that he told the applicant that once he abandoned the appeal, “it’s pretty much over”. If that comment captures the entirety of appeal counsel’s advice, it did not adequately inform the applicant of the consequences of an abandonment.

[16] The absence of anything in writing, other than appeal counsel’s Notice of Abandonment, offering any confirmation of appeal counsel’s claim that he received specific instructions to abandon the appeal is troubling. There are no written instructions from the applicant. There is no written confirmation from appeal counsel of any instructions. There is nothing in writing from appeal counsel to the applicant indicating that the instructions have been followed, and the appeal dismissed as abandoned. Even though appeal counsel’s file has been lost, he does not suggest it contained any of the documentation outlined above.

[17] Appeal counsel also acknowledged that the applicant had significant intellectual and mental limitations and deficiencies. He agreed that he sometimes had some difficulty in effectively communicating with the applicant over the course of their relationship. Despite this, appeal counsel does not identify any steps he took to ensure that the applicant understood the effect of an abandonment and that he truly wanted to abandon his appeal.

[18] In my view, appeal counsel’s conduct when he says he received instructions to abandon the appeal is also inconsistent with him having received those instructions. By August 2008, counsel had missed two perfection dates set by the Court of Appeal. He was in breach of an order of a Justice of the Court of Appeal. Crown counsel was asking appeal counsel about the status of the appeal as the purge date approached. If, as appeal counsel eventually suggested in his cross-examination, the applicant had told him sometime in August that he wanted to abandon the appeal, common sense strongly suggests that Crown counsel, who was pressing appeal counsel for some indication of the status of the appeal, would have been told by appeal counsel that the applicant had decided to abandon the appeal, rendering the perfection of the appeal a moot question. Appeal counsel could offer no explanation for his failure to contact Crown counsel to advise her that the applicant had instructed him to abandon the appeal if, in fact, as appeal counsel insisted, he received those instructions well before the scheduled Purge Court.

[19] Appeal counsel’s integrity and commitment to the interests of his clients are well known to this court. Unfortunately, he had encountered personal and health problems that impacted his ability to properly perform his duties. Appeal counsel dates those problems to a time after the events relevant to this application. There is, however, medical evidence that those problems may have negatively impacted on his performance in the fall of 2008. Thankfully, those difficulties seem to be behind appeal counsel now.

[20] Ultimately, the Crown’s position that the applicant abandoned his appeal hinges on the word of appeal counsel. I take that word seriously and am reluctant to do anything other than accept it. In the end, however, the entirety of the record compels me to conclude that whatever discussion may have occurred between the applicant and appeal counsel about abandoning the appeal, the applicant did not give instructions to abandon the appeal. The applicant wanted his appeal heard. He has always wanted his appeal heard. He still wants it heard. He is entitled to that hearing.

[21] I would set aside the order dismissing the appeal and reinstate the appeal in its entirety. The appeal should be perfected forthwith. I will be available to case manage the perfection and listing of the appeal if counsel require my assistance.

Released: “DD” “APR 21 2016”

“Doherty J.A.”

“I agree David Watt J.A.”

“I agree Bradley W. Miller J.A.”