Court of Appeal for Ontario

Citation: R. v. Carignan, 2021 ONCA 899

Date: 2021-12-17

Docket: M52602

Before: Doherty, Trotter and Thorburn JJ.A.

Between:

Her Majesty the Queen Respondent

and

Patrick Carignan Applicant

Counsel:

Patrick Carignan, acting in person Philippe Cowle, for the respondent

Heard: December 9, 2021

Reasons for Decision

[1] The appellant was convicted of second-degree murder in 2017 and sentenced to life imprisonment without parole eligibility for 16 years. After full argument by counsel, the appellant’s appeal to this court was dismissed on the merits in June 2021: R. v. Carignan, 2021 ONCA 496. The appellant’s sentence appeal had been abandoned by a solicitor’s Notice of Abandonment in 2020.

[2] The appellant purported to file a new Notice of Appeal from conviction and sentence after his appeal had been dismissed by this court, but before the court’s reasons were released. We have treated this “Notice of Appeal” as a motion to re-open the conviction appeal and a motion to set aside the appellant’s abandonment of his appeal from sentence.

[3] No order has been issued formally dismissing either the conviction or sentence appeal. This court has jurisdiction to permit an appellant to re-open an appeal on the merits. That power is however exercised sparingly. The moving party must demonstrate “a real concern” that a miscarriage of justice will occur unless the appeal is re-opened: R. v. Smithen-Davis, 2020 ONCA 759.

[4] The appellant appeared on the motion to re-open his appeal in person. He made three main arguments:

• the trial judge erred in finding that his statements were voluntary;
• there were errors in this court’s reasons dismissing the appeal and this court had not taken the time needed to properly consider the appeal;
• the appellant’s trial counsel and his appeal counsel provided ineffective assistance.

[5] None of these arguments warrant an order allowing the appellant to re-open his conviction appeal. The voluntariness issue was fully argued and considered on the initial appeal: Carignan, at para. 23-32. Nothing said by the appellant in his submissions gives this court cause for concern about its analysis of the voluntariness issue.

[6] With respect to the alleged errors in the reasons of this court and its alleged failure to take the time to properly address the appeal, those arguments should be addressed to the Supreme Court of Canada by way of an application for leave to appeal. A motion to re-open an appeal cannot be treated as a de facto second appeal from a decision of this court.

[7] The allegations of ineffective assistance of counsel contained in the “Notice of Appeal” are unsupported by any affidavit or other material evidence. It is noteworthy that the appellant’s in-person Notice of Appeal filed in December 2017 made allegations of ineffective assistance of trial counsel. That ground of appeal was not pursued by counsel who argued the appeal before this court. Although the appellant has had four years to produce material relevant to that allegation, none has been produced. Nor is there any basis to support his assertion that he received ineffective assistance from his appeal counsel. This court cannot re-open an appeal based only on an appellant’s bald assertion that he received ineffective assistance.

[8] There is no reason for this court to exercise its jurisdiction in favour of re-opening the conviction appeal.

[9] Turning to the motion to set aside the abandonment of the sentence appeal, the appellant has basically argued the merits of the proposed sentence appeal. He spent little time on the preliminary question of whether he should be allowed to proceed with that appeal in the face of his earlier abandonment of the appeal. We are prepared to follow the approach taken by the appellant.

[10] This court may set aside a notice of abandonment to avoid a potential miscarriage of justice. In deciding whether there is a risk of a miscarriage of justice it is appropriate to have regard to the potential merits of the sentence appeal.

[11] The Crown has addressed those merits in its written argument. We agree with the Crown that a review of the facts of this case and a consideration of the sentences imposed in comparable cases leads to the conclusion that a period of parole ineligibility of 16 years is not unfit. The proposed sentence appeal has no prospect of success. The interests of justice do not warrant the setting aside of the appellant’s abandonment of his sentence appeal.

[12] The motion to re-open the conviction appeal is dismissed. The motion to set aside the abandonment of the sentence appeal is dismissed.

“Doherty J.A.”

“Gary Trotter J.A.”

“J.A. Thorburn J.A.”