Court of Appeal for Ontario

Citation: R. v. Ngong, 2021 ONCA 62

Date: 20210128

Docket: M52023; M52118 (C68299)

Before: Fairburn A.C.J.O., Watt and Huscroft JJ.A.

Between

Her Majesty the Queen

Respondent

(Applicant on M52023)

and

Simon Ngong

Appellant

(Applicant on M52118)

Counsel:

Deborah Krick, for the applicant on M52023

Mark Halfyard, for the applicant on M52118

Heard and released orally: January 27, 2021

REASONS FOR DECISION

[1] On September 13, 2019 a jury found the appellant guilty of two firearms offences. About two months later, the trial judge found the appellant guilty and entered convictions on two counts of breach of probation and two counts of breaching firearms prohibitions.

[2] The trial judge imposed a global sentence of imprisonment of six and one-half years. When the trial judge awarded the appellant credit for time spent in pre-disposition custody, the sentence to be served was reduced to 3 years, 8 months and 25 days.

[3] The appellant filed an inmate notice of appeal against conviction and sentence. On April 27, 2020 a solicitor’s notice of appeal was filed on the appellant’s behalf.

[4] On May 4, 2020, a judge of this court ordered the appellant’s release pending the determination of his appeal. The release order required the appellant to reside at a specific address with his surety, his father. He was not to leave the home of his surety unless he was in the presence of his surety or for a medical emergency.

[5] The release order also required the appellant to surrender into custody on the earlier of November 30, 2020, or 6:00 p.m. on the day before his appeal was listed for hearing. The order contained the usual acknowledgment that failure to surrender as required is deemed to constitute an abandonment of the appeal.

[6] Shortly before November 30, 2020 counsel for the appellant advised the respondent that communications had broken down with the appellant. As a result, counsel was unable to get instructions to seek an extension of the appellant’s release order. A bail compliance check at the residence where the appellant was required to live with his surety revealed that both the appellant and his surety had left one evening about three months earlier and had never returned.

[7] The appellant did not surrender into custody on November 30, 2020, as he was required to do by the terms of his release order. His appeal has not been perfected. His counsel seeks and we grant an order that he (counsel) be removed as solicitor of record.

[8] The respondent seeks an order that the appeal be dismissed as an abandoned appeal. The appellant has repudiated the jurisdiction of the court by absconding. He has acknowledged in his release order that a failure to surrender in accordance with its terms deems his appeal to be abandoned. There are no exceptional circumstances.

[9] Our authority to dismiss the appeal as abandoned is undoubted in these circumstances: R. v. Dzambas (1973), 14 C.C.C. (2d) 364 (Ont. C.A.), at p. 365. In our view, this is a case in which that jurisdiction should be invoked.

[10] The appeal is dismissed as an abandoned appeal. A warrant for the appellant’s arrest and committal will issue.

“Fairburn A.C.J.O.”

“David Watt J.A.”

“Grant Huscroft J.A.”