



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dolinski, 2017 ONCA 495

DATE: 20170614

DOCKET: M47927 (C60749)

LaForme, Watt and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Moving Party)

and

Marian Dolinski

Appellant (Responding Party)

Nick Devlin, for the moving party

Andrew Menchynski, for the responding party

Heard and released orally: June 9,
    2017

REASONS FOR DECISION

[1]

On
    October 3, 2014, the appellant was convicted of conspiracy to commit fraud and
    falsely obtaining a refund or credit under the
Income Tax Act
. Two weeks later, he was
    sentenced to concurrent terms of imprisonment of 30 months and ordered to pay a
    substantial fine.

[2]

About
    two weeks after sentencing, the appellant filed an inmate notice of appeal
    against conviction and sentence. Three months later, he was ordered released
    from custody pending the determination of his appeal. The release order
    included a surrender date of July 31, 2015.

[3]

Prior
    to the surrender date, the inmate appeal was converted to a solicitor appeal.

[4]

From
    time to time, over the next fourteen months, several judges of this court
    extended the appellants release order. The most recent order, made on
    September 13, 2016, provided a surrender date of May 1, 2017.

[5]

By
    mid-April, 2017, the solicitor of record perfected the appeal. A hearing was
    scheduled for October 30 of this year.

[6]

Between
    perfection and the surrender date of May 1, 2017, the solicitor of record for
    the appellant advised the respondent that she had had no communication with or
    from the appellant. Further, the appellant failed to surrender on May 1, 2017,
    as required by his recognizance.

[7]

The
    Crown applies for directions under Rule 19 of the
Criminal
    Appeal Rules
seeking three orders:


i.

abridging
    the time to serve and file the notice of motion for directions;


ii.

dismissing
    the appeal from conviction and sentence; and


iii.

under
    ss. 679(6) and 525(5) of the
Criminal Code
to issue a warrant for the
    arrest of the appellant.

[8]

We
    are satisfied that the orders requested should be granted.

[9]

First,
    we see no reason in principle
not
to abridge the time within
    which the notice of motion can be served and filed. The solicitor of record has
    been given notice and asserts no claim of prejudice or other inadequacy. No
    service can be effected on the appellant whose whereabouts are currently
    unknown.

[10]

Second,
    the recognizance on which the appellant was released included, among several
    conditions, the following:

1.
Surrender into custody
    at the institution from which released by 6:00 p.m. on the day before the
    hearing of the appeal or on the 1
st
day of May, 2017 whichever is
    earlier;

2.
Acknowledge that
    failure to surrender into custody in accordance with the terms of this order
    will be deemed to constitute an abandonment of the appeal;



[11]

The
    appellant is in breach of his recognizance. He failed to surrender into custody
    on May 1, 2017, the earlier of that date and October 30 of this year, the date
    scheduled for the hearing of his appeal.

[12]

The
    referential incorporation of s. 525(5) by s. 679(6) of the
Criminal
    Code
authorizes
    the issuance of a warrant for his arrest as a person about whom there are
    reasonable grounds to believe has violated the recognizance on which he has
    been released. A warrant shall issue for his arrest.

[13]

Third,
    the appellant has acknowledged that his failure to surrender into custody, in
    accordance with the terms of his release order, will be deemed to constitute an
    abandonment of his appeal.

[14]

Apart
    from exceptional circumstances, the failure of an appellant to respond to a
    release order, by surrendering into custody in accordance with its terms, will
    almost invariably result in the dismissal of the appeal. See
R.
    v. Dzambas
(1973), 14 C.C.C.  (2d) 364 (Ont. C.A.), at p. 365. We see no reason to depart
    from that practice and principle here.

[15]

In
    the result, an order will issue:


i.

abridging
    the time to serve and file the notion of motion for directions;


ii.

dismissing
    the appellants appeal from conviction and sentence in appeal C60749; and


iii.

issuing
    a warrant for the arrest of the appellant as a person in respect of whom there
    are reasonable grounds to believe has violated his recognizance.





CORRECTED DECISION:

Correction made August 8, 2017: The name of the case of the citation in
    paragraph 14 was corrected from
R. v. Tzambas
to 
R. v. Dzambas
.


