



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carignan, 2021 ONCA 899

DATE: 20211217

DOCKET: M52602

Doherty, Trotter and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Carignan

Applicant

Patrick Carignan, acting in person

Philippe Cowle, for the respondent

Heard: December 9, 2021

REASONS
    FOR DECISION

[1]

The appellant was convicted of second-degree murder in 2017 and
    sentenced to life imprisonment without parole eligibility for 16 years. After
    full argument by counsel, the appellants appeal to this court was dismissed on
    the merits in June 2021:
R. v. Carignan
, 2021
    ONCA 496. The appellants sentence appeal had been abandoned by a solicitors Notice
    of Abandonment in 2020.

[2]

The appellant purported to file a new Notice of Appeal from conviction
    and sentence after his appeal had been dismissed by this court, but before the
    courts reasons were released. We have treated this Notice of Appeal as a
    motion to re-open the conviction appeal and a motion to set aside the appellants
    abandonment of his appeal from sentence.

[3]

No order has been issued formally dismissing either the conviction or
    sentence appeal. This court has jurisdiction to permit an appellant to re-open
    an appeal on the merits. That power is however exercised sparingly. The moving
    party must demonstrate a real concern that a miscarriage of justice will
    occur unless the appeal is re-opened:
R. v. Smithen-Davis
,
    2020 ONCA 759.

[4]

The appellant appeared on the motion to re-open his appeal in person. He
    made three main arguments:

·

the trial judge erred in finding that his statements were
    voluntary;

·

there were errors in this courts reasons dismissing the appeal
    and this court had not taken the time needed to properly consider the appeal;

·

the appellants trial counsel and his appeal counsel provided
    ineffective assistance.

[5]

None of these arguments warrant an order allowing the appellant to
    re-open his conviction appeal. The voluntariness issue was fully argued and
    considered on the initial appeal:
Carignan
, at
    para. 23-32. Nothing said by the appellant in his submissions gives this court
    cause for concern about its analysis of the voluntariness issue.

[6]

With respect to the alleged errors in the reasons of this court and its alleged
    failure to take the time to properly address the appeal, those arguments should
    be addressed to the Supreme Court of Canada by way of an application for leave
    to appeal. A motion to re-open an appeal cannot be treated as a
de facto
second appeal from a decision of this court.

[7]

The allegations of ineffective assistance of counsel contained in the Notice
    of Appeal are unsupported by any affidavit or other material evidence. It is
    noteworthy that the appellants in-person Notice of Appeal filed in December
    2017 made allegations of ineffective assistance of trial counsel. That ground
    of appeal was not pursued by counsel who argued the appeal before this court.
    Although the appellant has had four years to produce material relevant to that
    allegation, none has been produced. Nor is there any basis to support his
    assertion that he received ineffective assistance from his appeal counsel. This
    court cannot re-open an appeal based only on an appellants bald assertion that
    he received ineffective assistance.

[8]

There is no reason for this court to exercise its jurisdiction in favour
    of re-opening the conviction appeal.

[9]

Turning to the motion to set aside the abandonment of the sentence
    appeal, the appellant has basically argued the merits of the proposed sentence
    appeal. He spent little time on the preliminary question of whether he should
    be allowed to proceed with that appeal in the face of his earlier abandonment
    of the appeal. We are prepared to follow the approach taken by the appellant.

[10]

This
    court may set aside a notice of abandonment to avoid a potential miscarriage of
    justice. In deciding whether there is a risk of a miscarriage of justice it is
    appropriate to have regard to the potential merits of the sentence appeal.

[11]

The
    Crown has addressed those merits in its written argument. We agree with the
    Crown that a review of the facts of this case and a consideration of the
    sentences imposed in comparable cases leads to the conclusion that a period of
    parole ineligibility of 16 years is not unfit. The proposed sentence appeal has
    no prospect of success. The interests of justice do not warrant the setting
    aside of the appellants abandonment of his sentence appeal.

[12]

The motion to re-open the conviction appeal is dismissed. The motion
    to set aside the abandonment of the sentence appeal is dismissed.

Doherty J.A.

Gary Trotter
    J.A.

J.A. Thorburn
    J.A.


