



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. McDonald, 2016 ONCA 288

DATE: 20160421

DOCKET: M43447 (C44874)

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul McDonald

Applicant (Appellant)

Erin Dann and Joseph Di Luca, for the applicant

Benita Wassenaar, for the respondent

Heard:  April 11, 2016

Application to set aside an order dated October 3, 2008,
    dismissing the applicants appeal as abandoned.

Doherty J.A.:

[1]

The applicant was convicted of sexual assault and related offences some
    15½ years ago in November 2000.  In November 2003, he was declared a dangerous
    offender and sentenced to an indeterminate sentence.  He appealed conviction
    and sentence.

[2]

His appeal proceeded as an inmate appeal until February 2006 when a
    solicitors Notice of Appeal was filed by the applicants former lawyer (appeal
    counsel).  Transcripts from the trial and sentencing proceeding were filed in
    July 2007.  Appeal counsel missed two perfection dates in June and July of
    2008.  The appeal was to be spoken to in Purge Court on September 24, 2008.  On
    September 22, 2008, appeal counsel filed a Notice of Abandonment signed by
    appeal counsel.  The appeal was dismissed as abandoned on October 3, 2008.

[3]

The applicant claims that he did not instruct appeal counsel to abandon
    his appeal.  He contends that he never intended to abandon his appeal and never
    agreed that his appeal should be abandoned.  Appeal counsel maintains that he
    did receive clear instructions from the applicant to abandon the appeal and
    that he filed the Notice of Abandonment as a consequence of those instructions.

[4]

The preparation and listing of this application have been delayed by a
    number of factors, none within the control of the applicant.  The court now has
    the benefit of an extensive record setting out the long and unhappy history of
    the proceedings relating to this application.  The applicant and appeal counsel
    have filed affidavits.  Both were cross-examined at length on those
    affidavits.

[5]

The appeal was dismissed based on the Notice of Abandonment.  Counsel
    for the applicant and Crown counsel agree that as the appeal was not heard on
    the merits, this court has the discretion to set aside the dismissal and reopen
    the appeal if it is in the interests of justice to do so:  see
R. v. H.
    (E.F.)
;
R. v. Rhingo
(1997), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp.
    100-101;
R. v. Sipos
, 2008 ONCA 325, 235 O.A.C. 277, at para. 6.

[6]

In the present circumstances, the interests of justice inquiry focuses
    primarily on whether the applicant instructed appeal counsel to abandon the
    appeal.  If he did, that decision must weigh against him in determining whether
    the appeal should be reopened.  If, however, the applicant did not instruct his
    counsel to abandon the appeal, the interests of justice require that the appeal
    be reopened.  The
Criminal Code
gives the applicant a right of appeal,
    both from conviction (s. 675) and from the finding that he is a dangerous
    offender (s. 759).  If the applicant did not instruct appeal counsel to abandon
    the appeal, it would be unfair to refuse to reopen the appeal and effectively deprive
    the applicant of the rights of appeal he has under the
Criminal Code
.

[7]

As it is the applicant who seeks to reopen the appeal, he bears the
    burden of establishing the facts said to warrant reopening the appeal. 
    Principal among the facts asserted by the applicant is his claim that he did
    not instruct appeal counsel to abandon the appeal.

[8]

After careful consideration of the entirety of the application record,
    and acknowledging that there may have been some disconnect between appeal
    counsels perception of his instructions and the actual instructions, I am
    satisfied that the applicant has established that he did not instruct appeal
    counsel to abandon the appeal and that he never intended to abandon his appeal.

[9]

In coming to that conclusion, I have carefully considered the applicants
    evidence.  He strongly denies ever telling appeal counsel to abandon his
    appeal.  He adamantly rejects any suggestion of a possible misunderstanding of
    any instruction he may have given to appeal counsel.  There are good reasons to
    doubt the applicants credibility.  That said, he has never wavered from the
    position that he did not instruct appeal counsel to abandon the appeal and
    always wanted the appeal pursued and determined on its merits.

[10]

Appeal counsel maintains that the applicant gave clear instructions to
    abandon his appeal. While these two competing versions of events deserve
    careful consideration, in the end, the surrounding circumstances considered as
    a whole drive my factual finding.

[11]

First, I accept counsel for the applicants submission that from a
    common sense point of view, a decision to abandon the appeal in September 2008
    made little sense.  It is difficult to see what the applicant had to gain by
    abandoning his appeal at that time.  He was serving an indeterminate sentence. 
    According to appeal counsel, the appeal was on the verge of perfection and
    could presumably have been argued in the near future.  The applicant had waited
    several years for the perfection of his appeal.  He had suffered through
    several delays.  Why, after so many years and so much frustration, would the applicant
    abandon his appeal so close to the argument of the appeal?

[12]

Second, contemporaneous records support the applicants version of
    events.  Telephone records of the communications between the applicant and
    appeal counsels office in August and September 2008 before the Notice of Abandonment
    was filed are not consistent with appeal counsels recollection.  There are
    several calls in August and September, however, all are very brief save for a
    seven minute conversation on August 1, 2008, almost eight weeks before appeal
    counsel filed the Notice of Abandonment.  The telephone records strongly
    suggest that there were no meaningful discussions between the applicant and
    appeal counsel about abandoning the appeal in the several weeks prior to the
    filing of the Notice of Abandonment.  If the instructions were given during the
    August 1
st
conversation, one wonders why the Notice of Abandonment
    was not filed for almost eight weeks, and on the eve of appeal counsels
    required attendance at Purge Court.

[13]

The applicants conduct in the weeks and months after the Notice of
    Abandonment was filed and the appeal dismissed is inconsistent with the
    applicant having instructed appeal counsel to abandon the appeal.  The
    applicant made several statements to Corrections staff indicating that he was
    still pursuing his appeal after September 22, 2008.  When staff personnel told
    him that the appeal had been dismissed, he insisted they were wrong.  The
    applicant also made many, many attempts to contact appeal counsel on the
    telephone after the Notice of Abandonment was filed.  Not only did the
    applicant make many attempts, Corrections staff also made attempts on his
    behalf.

[14]

Crown counsel makes the point that evidence of the applicants
    statements to Corrections staff and his many attempts to contact appeal counsel
    are consistent with someone who had abandoned his appeal and then changed his
    mind.  Crown counsels submission, however, loses its force when the evidence
    of the applicants conduct after the supposed abandonment is considered in
    combination with the rest of the evidence.

[15]

Third, appeal counsels recollection of events, and his conduct during
    the relevant time, support the conclusion that the applicant did not give
    instructions to abandon his appeal. Appeal counsels recollection of the actual
    instructions to abandon the appeal is vague to say the least.  He does not
    remember what was said, when it was said, whether it involved one or more
    conversations, what he did to satisfy himself that the decision to abandon was
    an informed one, what advice, if any, he gave to the applicant about abandoning
    the appeal at that time, or what explanation, if any, he gave to the applicant
    about the effect of abandoning his appeal.  The closest appeal counsel comes to
    a recollection of an explanation he offered as to the effect of the abandonment
    is his evidence that he told the applicant that once he abandoned the appeal,
    its pretty much over.  If that comment captures the entirety of appeal
    counsels advice, it did not adequately inform the applicant of the consequences
    of an abandonment.

[16]

The absence of anything in writing, other than appeal counsels Notice
    of Abandonment, offering any confirmation of appeal counsels claim that he
    received specific instructions to abandon the appeal is troubling.  There are
    no written instructions from the applicant.  There is no written confirmation
    from appeal counsel of any instructions.  There is nothing in writing from appeal
    counsel to the applicant indicating that the instructions have been followed,
    and the appeal dismissed as abandoned.  Even though appeal counsels file has
    been lost, he does not suggest it contained any of the documentation outlined
    above.

[17]

Appeal counsel also acknowledged that the applicant had significant
    intellectual and mental limitations and deficiencies.  He agreed that he
    sometimes had some difficulty in effectively communicating with the applicant
    over the course of their relationship.  Despite this, appeal counsel does not
    identify any steps he took to ensure that the applicant understood the effect
    of an abandonment and that he truly wanted to abandon his appeal.

[18]

In my view, appeal counsels conduct when he says he received
    instructions to abandon the appeal is also inconsistent with him having
    received those instructions.  By August 2008, counsel had missed two perfection
    dates set by the Court of Appeal.  He was in breach of an order of a Justice of
    the Court of Appeal.  Crown counsel was asking appeal counsel about the status
    of the appeal as the purge date approached.  If, as appeal counsel eventually
    suggested in his cross-examination, the applicant had told him sometime in
    August that he wanted to abandon the appeal, common sense strongly suggests
    that Crown counsel, who was pressing appeal counsel for some indication of the
    status of the appeal, would have been told by appeal counsel that the applicant
    had decided to abandon the appeal, rendering the perfection of the appeal a
    moot question.  Appeal counsel could offer no explanation for his failure to
    contact Crown counsel to advise her that the applicant had instructed him to
    abandon the appeal if, in fact, as appeal counsel insisted, he received those
    instructions well before the scheduled Purge Court.

[19]

Appeal counsels integrity and commitment to the interests of his clients
    are well known to this court.  Unfortunately, he had encountered personal and health
    problems that impacted his ability to properly perform his duties.  Appeal
    counsel dates those problems to a time after the events relevant to this
    application.  There is, however, medical evidence that those problems may have
    negatively impacted on his performance in the fall of 2008.  Thankfully, those
    difficulties seem to be behind appeal counsel now.

[20]

Ultimately, the Crowns position that the applicant abandoned his appeal
    hinges on the word of appeal counsel.  I take that word seriously and am
    reluctant to do anything other than accept it.   In the end, however, the entirety
    of the record compels me to conclude that whatever discussion may have occurred
    between the applicant and appeal counsel about abandoning the appeal, the
    applicant did not give instructions to abandon the appeal.  The applicant wanted
    his appeal heard.  He has always wanted his appeal heard.  He still wants it
    heard.  He is entitled to that hearing.

[21]

I would set aside the order dismissing the appeal and reinstate the
    appeal in its entirety.  The appeal should be perfected forthwith.  I will be
    available to case manage the perfection and listing of the appeal if counsel
    require my assistance.

Released:

DD  APR 21 2016

Doherty J.A.

I agree David Watt
    J.A.

I agree Bradley W.
    Miller J.A.


