ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA 141/11
DATE: 20120703
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – CHRISTOPHER MOTARD Appellant
Heather Davies , for the Crown/Respondent
Edward H. Royle , for the Appellant
HEARD: June 14, 2012
KELLY J.
REASONS FOR DECISION
[ 1 ] Mr. Christopher Motard was charged with forcible confinement, mischief under, intimidation and two counts of assault contrary to the Criminal Code . The trial proceeded before Ritchie J. on an ex parte basis. Mr. Motard was convicted and sentenced to a jail term of 60 days (less three days of pre-trial custody) followed by probation for one year, together with a weapons prohibitions and a DNA order.
[ 2 ] The trial commenced on November 12, 2010. At that time, Mr. Motard did not appear for his trial. Counsel for Mr. Motard advised the Court that she had been in contact with Mr. Motard days before the trial and she could not provide a reason for his absence. Despite the request for an adjournment of the trial by both Counsel, Ritchie J. proceeded in the absence of Mr. Motard. Counsel for Mr. Motard asked that she be removed as Counsel of Record, but such a request was denied.
[ 3 ] Mr. Motard was arraigned, in absentia , on November 12, 2010 but no evidence was called due to an emergency that required Counsel for Mr. Motard to be elsewhere. Further dates were set for trial on November 17, 2010 in April, 2011. In the meantime, and on February 14, 2011, Counsel appeared on a Prohibition Application before Dambrot J. The application was unsuccessful and the trial proceeded on April 26, 2011; June 13 and 23, 2011; and August 17, 2011. Mr. Motard did not appear on any of those dates.
[ 4 ] The matter can before me as a Summary Conviction Appeal. An affidavit filed by Counsel for Mr. Motard indicated that on numerous occasions between the commencement of trial and its conclusion, she tried to contact the Applicant without success. The client did not attempt to contact her either.
[ 5 ] At the commencement of oral submissions, I inquired as to whether Mr. Royle had heard from Mr. Motard since the conviction. He advised that he had not, but that essentially, he was proceeding with the appeal as a “matter of principle”. No further submissions were made on this issue and the appeal proceeded.
[ 6 ] Upon further reflection, I invited both Counsel to provide written and oral submissions on the issue of this Court’s jurisdiction to hear an appeal from a person who has neither given instructions to his Counsel nor attorned to the jurisdiction. Counsel provided written submissions but declined my invitation to appear.
[ 7 ] From the material before me, it appears that Mr. Motard was aware of the trial date in November, 2010 but did not attend nor did he attend thereafter despite the long adjournments. There is no information before the Court to suggest that he is deceased or incapacitated.
[ 8 ] Over 18 months have passed since Counsel’s last contact with Mr. Motard where he was advised of his trial date. The inference to be drawn from this set of circumstances is that Mr. Motard is not interested in the process. It is therefore arguable as to whether he should be able to avail himself of the Court’s process to redress what he perceives to be a legal wrong. I find that he should not.
[ 9 ] I have concluded that this Court has no jurisdiction to proceed with this appeal for the following reasons:
a. Counsel does not have instructions from Mr. Motard to proceed with such an appeal because there has been no contact with Mr. Motard since November, 2010.
b. Mr. Motard has never surrendered to serve his sentence and accordingly, has no right to appeal.
c. Section 813 of the Criminal Code allows a defendant , the Attorney General (or his agent), or an informant to bring an appeal. It does not permit Counsel, who does not have instructions, to bring an appeal. As such, Counsel for Mr. Motard has no standing to bring the appeal.
d. The Court should not hear the appeals from those who are unlawfully at large and who have not surrendered themselves into custody before the hearing of their appeal. [1]
[ 10 ] Lastly, I agree with Crown Counsel regarding her submissions on policy considerations. If appeals such as the one before me were allowed to be argued, this would mean that the Courts could entertain appeals raised by people other than the persons directly impacted by the initial decision.
[ 11 ] While I appreciate the intentions of Counsel in advancing the appeal, he is not properly retained or instructed by Mr. Motard. In these unusual circumstances, the appeal is dismissed without prejudice to Mr. Motard to seek an extension of time to bring this appeal.
Kelly J.
Released: July 3, 2012
COURT FILE NO.: SCA 141/11
DATE: 20120703
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Appellant – and – CHRISTOPHER MOTARD Respondent
REASONS FOR JUDGMENT Kelly J.
Released: July 3, 2012
[1] See: R. v. Kidane [1998] O.J. No. 3804 , R. v. Aguebor [1993] O.J. No. 3666 , R. v. H.J. [1990] O.J. No. 1231 (C.A.)