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Judgment of the Court
The CIEF JUSTICE:-In this case, the appellant, who is in custody, completed a notice of appeal to the Court of Appeal for Ontario on Form B prescribed in the Rules respecting Criminal Proceedings which came into force in Ontario on March 1, 1965.
R.C.S.
This form reads in part as follows:
Marginal note (5) reads as follows:
The appellant struck out items (a) and (b).
The notice was dated April 14, 1965.
The appellant received no notice of the date set for the hearing of his appeal.
On May 7, 1965, the Court of Appeal made an order dismissing his appeal. The appellant was not present and no counsel had been assigned to present the appeal.
Some time in May the appellant was informed by the Governor of the jail that his appeal had been dismissed. By letter of May 28, 1965, from the Registrar of the Court of Appeal, he was sent a copy of the order of the Court of Appeal made on May 7, 1965. By letter dated June 24, 1965, from the Registrar, he was advised that his request to have his appeal argued through counsel to be assigned by the Court had been refused.
It is obvious that the appellant having completed his notice of appeal in the manner set out above would assume until he was advised to the contrary that counsel would be assigned to present his appeal. The failure to notify the appellant that no counsel was appointed by the Court and the failure to notify him of the date of the hearing of the appeal and to give him an opportunity to present his case either in writing or in person is fatal to the validity of the order of the Court of Appeal.
The Appeal is allowed, the order of the Court of Appeal of May 7, 1965, is set aside and it is directed that the record be returned to that Court to hear and determine the application of the appellant in accordance with the provisions of the Criminal Code.