Court of Appeal for Ontario
Date: 2017-06-14
Docket: M47927 (C60749)
Judges: LaForme, Watt and Trotter JJ.A.
Between
Her Majesty the Queen Respondent (Moving Party)
and
Marian Dolinski Appellant (Responding Party)
Counsel
Nick Devlin, for the moving party
Andrew Menchynski, for the responding party
Heard and released orally: June 9, 2017
Reasons for Decision
[1] On October 3, 2014, the appellant was convicted of conspiracy to commit fraud and falsely obtaining a refund or credit under the Income Tax Act. Two weeks later, he was sentenced to concurrent terms of imprisonment of 30 months and ordered to pay a substantial fine.
[2] About two weeks after sentencing, the appellant filed an inmate notice of appeal against conviction and sentence. Three months later, he was ordered released from custody pending the determination of his appeal. The release order included a surrender date of July 31, 2015.
[3] Prior to the surrender date, the inmate appeal was converted to a solicitor appeal.
[4] From time to time, over the next fourteen months, several judges of this court extended the appellant's release order. The most recent order, made on September 13, 2016, provided a surrender date of May 1, 2017.
[5] By mid-April, 2017, the solicitor of record perfected the appeal. A hearing was scheduled for October 30 of this year.
[6] Between perfection and the surrender date of May 1, 2017, the solicitor of record for the appellant advised the respondent that she had had no communication with or from the appellant. Further, the appellant failed to surrender on May 1, 2017, as required by his recognizance.
[7] The Crown applies for directions under Rule 19 of the Criminal Appeal Rules seeking three orders:
i. abridging the time to serve and file the notice of motion for directions;
ii. dismissing the appeal from conviction and sentence; and
iii. under ss. 679(6) and 525(5) of the Criminal Code to issue a warrant for the arrest of the appellant.
[8] We are satisfied that the orders requested should be granted.
[9] First, we see no reason in principle not to abridge the time within which the notice of motion can be served and filed. The solicitor of record has been given notice and asserts no claim of prejudice or other inadequacy. No service can be effected on the appellant whose whereabouts are currently unknown.
[10] Second, the recognizance on which the appellant was released included, among several conditions, the following:
Surrender into custody at the institution from which released by 6:00 p.m. on the day before the hearing of the appeal or on the 1st day of May, 2017 whichever is earlier;
Acknowledge that failure to surrender into custody in accordance with the terms of this order will be deemed to constitute an abandonment of the appeal;
[11] The appellant is in breach of his recognizance. He failed to surrender into custody on May 1, 2017, the earlier of that date and October 30 of this year, the date scheduled for the hearing of his appeal.
[12] The referential incorporation of s. 525(5) by s. 679(6) of the Criminal Code authorizes the issuance of a warrant for his arrest as a person about whom there are reasonable grounds to believe has violated the recognizance on which he has been released. A warrant shall issue for his arrest.
[13] Third, the appellant has acknowledged that his failure to surrender into custody, in accordance with the terms of his release order, will be deemed to constitute an abandonment of his appeal.
[14] Apart from exceptional circumstances, the failure of an appellant to respond to a release order, by surrendering into custody in accordance with its terms, will almost invariably result in the dismissal of the appeal. See R. v. Dzambas, 14 C.C.C. (2d) 364, at p. 365. We see no reason to depart from that practice and principle here.
[15] In the result, an order will issue:
i. abridging the time to serve and file the notice of motion for directions;
ii. dismissing the appellant's appeal from conviction and sentence in appeal C60749; and
iii. issuing a warrant for the arrest of the appellant as a person in respect of whom there are reasonable grounds to believe has violated his recognizance.
Corrected Decision
Correction made August 8, 2017: The name of the case citation in paragraph 14 was corrected from "R. v. Tzambas" to "R. v. Dzambas".