When the Appellant Fails to Perfect the Appeal in Time: Inaction is not an Option

The interests of justice are not well served if appeals to the Court of Appeal of Ontario are not commenced, perfected, listed for hearing, heard and decided expeditiously. A timely process ensures that the principles of finality and reviewability are respected and that if proceedings are returned to trial courts, the evidence remains available and not unduly separated from the events the witnesses describe.

A respondent to an appeal that has not been perfected in time has several options available under the Criminal Appeal Rules and current Practice Direction of the ONCA, for example:

  • Under Rule 20(2),  a request may be sent to the Registrar to have the appeal placed before a panel of the court to be dismissed as abandoned unless perfected within ten days of service of the notice.
  • Under Rule 19, a respondent may seek directions from the chambers judge. This judge may refer the appeal to a panel for dismissal or set a deadline for perfection.
  • Under section 9.11 of the court’s Practice Direction, a respondent may email the Criminal Appeal Coordinator and ask that an appeal be listed in status court or purge court. Status court is held once every month. Purge court is scheduled bi-monthly.

Appellate counsel are expected to invoke these procedural mechanisms. 

R. v. Villanti, 2020 ONCA 436 (CanLII), at para. 94.

In R. v. Villanti, 2020 ONCA 436 (CanLII), the ONCA took a dim view of the respondents who, in circumstances where the appellant Crown had not perfected the appeal within the time requirements set out in the Court’s procedural rules, nevertheless remained inactive while further time effluxed:

“We expect counsel engaged in appellate practice to cooperate with one another and to invoke these available mechanisms [as listed above] to ensure that justice is delivered in an efficient, timely and fair way. This is not a big ask.”

R. v. Villanti, 2020 ONCA 436 (CanLII) [The appellant ultimately delivered its factum and perfected the appeal more than nine months after the time it was required to do so under the Rules].  

While the Court of Appeal has the jurisdiction to dismiss an appeal as abandoned for failure to perfect in accordance with the Criminal Appeal Rules, the Court will consider all the circumstances to determine whether the interests of justice favour dismissal or some lesser measure as the remedy.  Among the factors it will consider is the steps taken, if any, by the respondent on appeal to ensure timely perfection. 

As the Court so clearly stated with respect to the conduct of the respondent: “inaction is not an option.”

Stuart O’Connell (Barrister/Solicitor).

 


Location: Toronto, ON, Canada

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