1. The applicant must show that there was a bona fide intention to appeal the sentence within the appeal period;
2. The applicant must account for or explain the delay in appealing; and
3. The applicant must show that the proposed appeal has merit.
R. v. Menear (2002), 162 C.C.C. (3d) 233 at para. 20 (Ont. C.A. ).
Today's Court of Appeal decision in R. v. Garland, 2008 ONCA 134 deals with an application to extend the time to appeal a dangerous offender designation a decade after it was made. Remarkable though it seems, the application was allowed as the explanation for delay was acceptable to the Court. In effect the Court accepted an ineffective assistance of counsel argument.
The unusual factors the Court considered are set out below:
Explanation for the Delay
[5] The delay is lengthy – ten years. In my view, however, Mr. Garland has satisfactorily accounted for it. The explanation lies in the conduct of his lawyers. He had several lawyers over the period though he did not instigate any of the changes of solicitor. Whether by reason of negligence, incompetence, or worse, his lawyers misled him and let him down terribly. This is the chronology of what happened.
[6] Mr. Garland's first lawyer, who acted for him at the dangerous offender hearing and until at least November 2000, represented in correspondence to Mr. Garland that he would deliver an opinion letter and notice of appeal to the Legal Aid Committee and would appear before that committee. The lawyer's itemized account to Legal Aid shows that he did not write an opinion letter or prepare a notice of appeal.
[7] Mr. Garland's next lawyer did write an opinion letter for Legal Aid in which he said the appeal had merit. However, apparently he was too busy to carry on with the file. In late 2004 he transferred the file and the legal aid certificate authorizing an appeal to a third lawyer, who returned the file a few months later as she was no longer practising law.
[8] In 2005 Mr. Garland's file ended up with a fourth lawyer who, apart from meeting with Mr. Garland, did nothing on the file for nearly two years.
[9] Finally, and fortuitously for Mr. Garland, Ms. Kingston took over the file in 2007.
[10] As this chronology demonstrates, Mr. Garland's file has languished for ten years, not because of his conduct, but because of the conduct of his lawyers. The Crown accepts this, but suggests that Mr. Garland's remedy lies with a complaint against his lawyers to the Law Society. The relief that might flow from such a complaint strikes me as a hollow remedy for a man sitting in jail who merely wants an opportunity to appeal his indeterminate sentence.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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