Warning

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 20230125 Docket: C67713 Pepall, Paciocco and Favreau JJ.A.

Between:

His Majesty the King Respondent

and

S.M.C. Appellant

Counsel: Rocco K. Achampong, for the appellant David Friesen, for the respondent

Heard: January 11, 2023

On appeal from the conviction entered on May 29, 2019, by Justice Sheila Ray of the Ontario Court of Justice, with reasons given September 19, 2019.

Reasons for Decision

[1] The appellant was convicted of one count of sexual assault on May 29, 2019, and was sentenced on November 12, 2019, to two years less a day. The appellant has now served his sentence.

[2] The appellant filed a Notice of Appeal on November 25, 2019. Since that time there have been over a dozen appeal management conference calls, a Status Court appearance, and three Purge Court appearances. The appellant has still not perfected his appeal. For the reasons that follow, the appeal is dismissed as abandoned.

[3] As a result of an ineffective assistance of counsel claim, the matter has been in appeal management since April of 2020. After more than two years of appeal management, on July 21, 2022, Coroza J.A. directed that if there was no progress with respect to the completion of the fresh evidence record, the matter would be placed in Status Court on September 20, 2022, and then potentially Purge Court. Neither the appellant nor his counsel attended at the Status Court on September 20, 2022 and Coroza J.A. then directed that the matter be placed on the October 28, 2022 Purge Court list. On October 28, 2022, the presiding panel adjourned the matter to Purge Court on November 25, 2022 and directed that the appellant and his counsel were to be in attendance on that date. In addition, the other grounds of appeal were to be perfected and counsel for the appellant was to contact the Crown by November 4, 2022 and schedule cross-examination on the fresh evidence affidavit.

[4] The other grounds of appeal were not perfected by November 25, 2022. The panel presiding in Purge Court on November 25, 2022 ordered that by November 30, 2022, Mr. Achampong was to arrange a case conference with Paciocco J.A. to be scheduled at the earliest convenience of Crown counsel and Paciocco J.A. At that case conference, Mr. Achampong was expected to confirm that the factum had been completed, served and filed, and that the fresh evidence cross-examinations had been scheduled, failing which the matter would be referred to the December Purge Court “with a recommendation that the appeal be dismissed as abandoned.”

[5] On December 12, 2022, Paciocco J.A. held a further case conference. He noted that the factum had not been completed, served and filed as required and confirmation of the booking of the cross-examinations had not been sent to the Crown. He directed that the matter be listed for Purge Court for December 22, 2022 but could be delisted if the appeal was perfected by December 22, 2022, and Mr. Achampong had provided confirmation to Crown counsel that the cross-examinations for the fresh evidence had been scheduled. If these conditions were not met, both Mr. Achampong and the appellant were to attend the December 22 Purge Court and, “absent exceptionally cogent and verifiable explanations, it [was] recommended that the appeal be dismissed as abandoned.”

[6] There continued to be non-compliance with the directions given.

[7] On December 21, 2022, the Crown wrote to the Court asking that the appeal be dismissed as abandoned.

[8] On December 22, 2022, given a personal circumstance of Mr. Achampong, the presiding panel granted an extension of the December 12, 2022 direction. The panel gave the appellant until January 6, 2023 to perfect the appeal, and directed that the appellant was to comply with all other terms of Paciocco J.A.’s December 12, 2022 direction, failing which the matter was to be placed before the January 10, 2023 panel.

[9] There continued to be non-compliance with the terms of the directions. The appellant has still not perfected his appeal.

[10] On January 9, 2023, the Crown wrote a detailed letter to the Court asking that the appeal be dismissed as abandoned. The Crown outlined the numerous court appearances and the appellant’s lack of due diligence in pursuing his appeal. The Crown also noted the appellant’s failure to comply with his original bail pending appeal order of December 10, 2019 and his failure to surrender on June 10, 2020 as required when it expired. In that regard, the bail order included a condition acknowledging that “failure to surrender into custody in accordance with the terms of this order will be deemed to constitute an ABANDONMENT of the appeal”. The appellant did not surrender until September 15, 2020, after the police obtained a warrant for his arrest. The appellant made a further application for bail pending appeal, but it was denied.

[11] On January 10, 2023, Crown counsel advised the Court in writing, with a copy to Mr. Achampong, that Mr. Achampong had just confirmed that the appellant intended to abandon his appeal and that both Mr. Achampong and his client would attend Court the next day in order to do so.

[12] On January 11, the Crown and the appellant attended at Court by video and Mr. Achampong by audio (by leave of the Court).

[13] At that time, despite his non-compliance, the lack of perfection of the appeal, the repeated warnings and no change in the status, the appellant indicated that it was not his intention to abandon his appeal. Rather, he stated that he had a two-hour Legal Aid certificate for an opinion on the merits of his appeal. This was the first that the Crown had heard of any Legal Aid certificate, and Mr. Achampong offered that the first he heard of it was that afternoon.

[14] Our system of justice cannot operate effectively if directions and orders designed to advance a party’s appeal are flouted and ignored. The conduct of this appeal is unfair to all justice system participants be they opposing counsel, members of the judiciary or court administration, complainants, or other litigants wanting to have their cases heard. See also R. v. Villanti, 2020 ONCA 436, 151 O.R. (3d) 289.

[15] Rarely will an appeal be deemed to be abandoned over the appellant’s objection. However, here the non-compliance has been egregious, warnings have been repeatedly disregarded, and the court has no confidence that this appeal will be advanced. We conclude from the inactivity that the appeal should be deemed to be abandoned as the Crown requests. Accordingly, we order that the appeal be dismissed as abandoned.

[16] Following oral argument, we ordered that the matter be adjourned to the February 24, 2023 Purge Court pending release of these reasons. Given our order that the appeal be dismissed as abandoned, such an attendance is unnecessary, and that date is vacated.

“S.E. Pepall J.A.”

“David M. Paciocco J.A.”

“L. Favreau J.A.”