Court of Appeal for Ontario

DATE: 20221107 DOCKET: C69109

Tulloch, Thorburn and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Nehemiah S. Campbell Appellant

Counsel: Brian H. Greenspan and Naomi Lutes, for the appellant Kristen Pollock, for the respondent

Heard: October 20, 2022

On appeal from the convictions entered on March 27, 2019 by Justice Charles T. Hackland of the Superior Court of Justice, sitting without a jury, with reasons reported at 2019 ONSC 1938.

Reasons for Decision

[1] On March 27, 2019, the appellant was convicted of the following charges: intentional discharge of a firearm, possession of a firearm while prohibited, possession of a loaded prohibited firearm, possession of a firearm knowing possession is unauthorized, and breach of a recognizance.

[2] The trial judge imposed a global sentence of 8 years' imprisonment, subsequently reduced to 6 years, 253 days after enhanced pretrial credit was applied.

[3] The appellant, through counsel, on February 18, 2021, filed a solicitor’s notice of appeal against conviction.

[4] On June 11, 2021, 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 Ms. Amber Stewart-Burton, one of the appellant’s four sureties. He was to remain in this residence between 11:00 p.m. and 6:00 a.m. unless he was in the presence of a surety.

[5] The release order was extended multiple times. Pursuant to the most recent extension, the appellant was required to surrender into custody at the institution from which released by 7:00 a.m. on the day of the hearing of his appeal, which was on October 20, 2022. The order contained the usual acknowledgment that failure to surrender as required is deemed to constitute an abandonment of the appeal.

[6] Shortly before the commencement of the hearing on October 20, 2022, counsel for the appellant advised the court that, as of time of curfew on Tuesday, October 18, 2022, the appellant’s whereabouts were unknown. Subsequent attempts by the appellant’s sureties to contact him have been unsuccessful. As a result, counsel was unable to get instructions to seek an extension of the appellant’s release order.

[7] The appellant did not surrender into custody on October 20, 2022, pursuant to the terms of his release order. His counsel seeks and we grant an order that they be removed as solicitors 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] There is no doubt that this court has the authority to dismiss this appeal as abandoned, given 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.

“M. Tulloch J.A.”

“J.A. Thorburn J.A.”

“J. George J.A.”