Corrected decision: The text of the original judgment was corrected on May 16, 2023, and the description of the correction is appended.

Court of Appeal for Ontario

Date: 20230515 Docket: M54261 (COA-23-OM-0127) Simmons J.A. (Motion Judge)

Between

His Majesty the King Respondent (Respondent)

and

David Charizanis Applicant (Appellant)

Counsel: Michelle Psutka, for the applicant Andrew Hotke, for the respondent

Heard: May 10 and 12, 2023 by video conference

Reasons for Decision

[1] These reasons relate to an application originally made before me on May 10, 2023, and subsequently returned on May 12, 2023. The application was for an order extending the time to file a notice of appeal to this court, for leave to appeal sentence, and for a release order pending appeal. Although the Crown was consenting to the application, I was unwilling to make the requested release order on May 10, 2023, because, for reasons that I will explain, I was not satisfied that the appellant was in custody as required under s. 679 of the Criminal Code. Accordingly, I was not satisfied I had jurisdiction to make a release order under s. 679.

[2] As the applicant subsequently surrendered into custody on May 12, 2023, I made the requested orders. These are my reasons for initially refusing to make a release order and subsequently making it.

Background

[3] The applicant pleaded guilty to three offences in the Ontario Court of Justice and was sentenced to 12 months' imprisonment plus probation. The Crown proceeded by indictment with respect to all of the offences. Nonetheless, when the applicant decided to appeal sentence, his counsel (not Ms. Psutka) filed a notice of appeal in the Superior Court. A Superior Court judge subsequently granted a release order pending appeal and the applicant was released under that order.

[4] As the applicant’s proposed appeal relates to indictable, rather than summary conviction offences, his appeal lies to this court and not to the Superior Court. Upon learning of the issue, the applicant brought this application.

Discussion

[5] The Crown acknowledged that the applicant met the threshold tests for obtaining an extension of time to appeal, leave to appeal sentence and a release order. I agreed. However, given that the applicant had been released under a Superior Court release order pending appeal, I concluded that the applicant was not in custody such that this court had jurisdiction to make an order releasing him “from custody” under s. 679 of the Criminal Code.

[6] The applicant relied on the fact that a committal order was made committing him into custody when he was sentenced. Because he was committed into custody under the terms of that order, the applicant submitted that this court has jurisdiction under s. 679 to make a release order effectively releasing him “from custody” as imposed by the committal order without the need for him to physically surrender into custody.

[7] I did not accept that submission. I acknowledge that courts have recognized that the words “release an appellant from custody” as they appear in s. 679 of the Criminal Code do not necessarily mean that a person seeking a release order must be physically incarcerated to found jurisdiction under that section and that the term, “custody”, as it appears in s. 679 of the Criminal Code, should be interpreted contextually. See, for example, R. v. Wood, 1999 NSCA 124, 139 C.C.C. (3d) 468, and R. v. J.R., 2022 ONCA 152.

[8] However, as I have said, on May 10, 2023 when this application first came before me, the applicant had already been released from custody under a Superior Court release order pending the appeal of his sentence filed in the Superior Court. Accordingly, as of May 10, 2023, he was not serving the period of incarceration to which he was sentenced, and I was therefore not persuaded he could be treated as being in “custody” under the committal order. See, Wood, at paras. 19-20.

[9] Further, in my view, the fact that the Superior Court release order was made without jurisdiction did not change the reality of the appellant’s status. Even though arguably a nullity, the release order remained binding on the applicant until “negated by due process of the law”: R. v. Kenny, (2003), 174 CCC (3d) 389 (Ont. C.A.), at para. 23. Accordingly, until the Superior Court release order was revoked, or until the applicant surrendered into custody effectively nullifying its effect, the applicant could not be viewed as being in custody giving this court jurisdiction to release him “from custody” under s. 679 of the Criminal Code.

“Janet Simmons J.A.”

Erratum

Correction made May 16, 2023: The words “(not Ms. Psutka)” were added to the third sentence in para. 3.