SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 2286/08
DATE: 20121219
RE: HER MAJESTY THE QUEEN v. THOMAS TKACH
BEFORE: Durno, J.
COUNSEL: JEREMY SCHAFFER for the Respondent/Crown
THOMAS TKACH on his own behalf
E N D O R S E M E N T
On appeal from a conviction entered by the
Honourable J.J. Keaney, dated August 9, 2007
[ 1 ] The applicant, Thomas Tkach, seeks to re-open his summary conviction appeal against a conviction for threatening death by setting aside a 2008 order dismissing his appeal as abandoned and reinstating the appeal. The Crown opposes the application.
[ 2 ] Whether to permit an appeal to be reinstated requires the exercise of what the Court of Appeal has referred to as the “extraordinary jurisdiction to reopen an appeal.” R. v. Larocque 2011 ONCA 814 . The test is whether it is in the interests of justice to do so. R. v. Riad 2012 ONCA 300 . To determine whether the applicant has met that criterion involves an examination of the background to this application, why the appeal was dismissed as abandoned and why the applicant submits the appeal should be re-opened.
[ 3 ] On August 9, 2007, the applicant, Thomas Tkach, while represented by his private counsel, entered pleas of guilty to uttering a death threat and two counts of failing to comply with recognizances. He personally entered the guilty pleas and his counsel admitted the accuracy of the facts. In doing so, he emphasized Mr. Tkach did not want the incident upon which the threatening charge was laid to be viewed as an assault. Having served 33 days or pre-sentence custody counsel presented what was effectively a joint submission for time served, the equivalent of a 66 day sentence and 18 months probation.
[ 4 ] When asked if he had anything to say, Mr. Tkach said:
I learn this lesson from this ordeal and, yeah, determined, you know, to make the most of the opportunity right now. And God bless my lawyer and I hope, you know, that I’m confident everything will work out, pending your word.
[ 5 ] On October 30, 2007 the applicant filed a Notice of Application to extend the time for filing an appeal stating he was unaware of the 30 day time period within which to appeal and that he was innocent of the charges. The application was adjourned to December 19, 2007 to permit the appellant to provide an affidavit. He did so, and I extended the time to appeal to January 10, 2008.
[ 6 ] On January 10, 2008, I further extended the period to January 15, 2008, set filing deadlines and scheduled the appeal hearing for March 19, 2008. On March 19, 2008, the applicant appeared with counsel Layth Gafoor and the appeal was adjourned to be spoken to on April 7, 2008. On that date, Mr. Gafoor said he was not retained and the supervision hearing was adjourned to May 23, 2008.
[ 7 ] On May 23, 2008, the appeal was adjourned to August 8, 2008, peremptory to set the date for the appeal. On August 8, 2008, no one appeared and the appeal was dismissed as abandoned.
[ 8 ] By application dated October 22, 2012, Mr. Tkach seeks to set aside the dismissal order and reinstate his appeal. His Notice of Application states that he was in custody at the Central East Correctional Center in Lindsay on August 8, 2008 and was then an inpatient in a psychiatric facility for 15 months. He was released from hospital in June, 2010, but was dissuaded from pursuing his appeal by his father and then by a psychiatrist. He notes he never admitted his guilt on the threatening charge to anyone with the exception of his lawyer.
[ 9 ] However, the applicant’s written material clarifies that he attempted to pursue the appeal on his own when he no longer had funds for Mr. Gafoor, but “abandoned it because I fell ill to a different problem.” Two weeks after the appeal was to have been addressed, he was arrested in a different region. He spent about two and one half months in the Lindsay jail before he pled guilty to new charges. He was again charged with criminal harassment in February 2009. He was found Not Criminally Responsible (NCR) and was detained at the Whitby (Ontario Shores) Mental Health Centre. In June, 2010, he was relocated into the community.
[ 10 ] While he wanted to reinstate his appeal, his father persuaded him that if the appeal succeeded he would have to go to jail because he would need sureties and his father was unwilling to sign. His psychiatrist also told him to get on with his life and not meddle in past “discrepancies.”
[ 11 ] Since being advised by counsel that there is no chance of going to jail if his appeal was allowed, he seeks to reinstate the appeal and will retain counsel for the appeal should he succeed on this application.
[ 12 ] If permitted to pursue his appeal, he would argue the following were relevant to his conviction appeal: a surveillance video did not supply any evidence of a death threat, the complainant’s criminal record and the applicant’s lack of criminal record at the time, that he was inadequately represented by his trial counsel and that he pled guilty to get out of jail because being at Maplehurst was becoming overbearing.
[ 13 ] In the course of submissions on this application, the applicant said that his counsel came to him the morning of the plea and told him that if he pled guilty he would get time served and be out of jail that day. He agreed to plead guilty and did so, but never admitted his guilt to his counsel.
[ 14 ] Against, this factual background, I have to determine whether it is appropriate to re-open the appeal. Having considered all of the circumstances, including that the applicant has a lengthy psychiatric history, being diagnosed as schizophrenic in 2002, as having schizo-affective disorder in 2003 and been found NCR after this conviction, I am not persuaded the appeal should be re-opened for the following reasons.
[ 15 ] First, there is really no satisfactory explanation why the applicant missed the August, 2008 appearance. While he faces personal challenges that he was arrested a couple of weeks later does not account for where he was when he should have been in court or why he did not attend.
[ 16 ] Second, there is a great interest in finality in proceedings. R. v. Larocque 2011 ONCA 814 . This plea was entered over 5 years ago. While the applicant has not been free to attend court throughout all of that time, he has been free to do so for many months. That his father and two psychiatrists advised against pursing the appeal, and on this record his father did so based on inaccurate information about returning to jail, the applicant has had sufficient time to pursue the application much sooner.
[ 17 ] Third, the applicant now raises the ineffective assistance of counsel as a potential ground of appeal. While there were references to not being guilty of the offence in previous notices of application, it is only since October of this year that he has chosen to raise the issue of his representation. Mr. Tkach’s trial counsel died earlier this year. If the appeal were to be reinstated, it would be very difficult, if not impossible, to assess whether counsel’s representation was deficient.
[ 18 ] Fourth, the applicant wanted to plead guilty for reasons he felt were in his best interest. He personally entered the guilty plea. When asked if he had anything to say with respect to sentence, he said nothing about his innocence. Indeed, his comments reflect his learning for the experience. In his written material as well as in his comments on this application, the applicant has been candid in admitting that he pled guilty to get out of jail. On August 9, 2007, the applicant was quite prepared to have the presiding judge proceed on the basis that he was guilty. Having achieved his objective of getting out of jail, he sought to reverse that position shortly thereafter and continues to pursue that objective in this application. In these circumstances, it is not appropriate to permit the applicant to make a calculated decision to plead guilty and then try to reverse that decision over 5 years later.
[ 19 ] In these circumstances, I am not persuaded the dismissal order should be set aside. The application is dismissed.
DURNO J.
DATE: December 19, 2012
COURT FILE NO.: 2286/08
DATE: 20121219
SUPERIOR COURT OF JUSTICE - ONTARIO RE: R. v. Thomas Tkach BEFORE: Durno J. COUNSEL: J. Schaffer, for the Respondent/Crown T. Tkach, on His Own Behalf ENDORSEMENT On appeal from a conviction entered by the Honourable J.J. Keaney, dated August 9, 2007 Durno J.
DATE: December 19, 2012