FOR EDUCATIONAL USE ONLY
1973 CarswellOnt 50
24 C.R.N.S. 118, 14 C.C.C. (2d) 364

R. v. Dzambas
Regina v. Dzambas
Ontario Court of Appeal
Gale C.J.O., Schroeder, Jessup, Dubin and Martin JJ.A.
Judgment: October 22, 1973 Copyright © CARSWELL, a Division of Thomson Canada Ltd. or its Licensors. All rights reserved.
Counsel: E.J. Levy, for appellant.
D.A. McKenzie, for the Crown.

Subject: Criminal

Criminal Law --- Appeals -- Release pending appeal -- Failure to comply with release conditions.

Criminal Law --- Appeals -- Appeal of indictable offence -- Appeal of conviction or acquittal -- Jurisdiction -- Court of Appeal.

Criminal Law --- Appeals -- Appeal of indictable offence -- Appeal of conviction or acquittal -- Procedure on appeal -- Right of appellant to attend.

Appeals (general) -- Absconding appellant -- Court will not hear appeal.

Appeals (general) -- Trial in foreign court -- Appeal not heard where appellant to be tried in a foreign court for the same offence.

Appeal from a conviction for non-capital murder.

The judgment of the Court was delivered by Gale C.J.O. (orally):

1     The appellant, along with three others, was convicted of non-capital murder and now seeks to appeal the conviction in regard thereto. Following his conviction he escaped from custody and eventually made his way to Yugoslavia, his native country. It appears that he is about to be tried in Yugoslavia for the offence on which he was convicted here. It is quite clear that if he is convicted in Yugoslavia he will never come to Ontario again and I think it is reasonable to assume that if he is acquitted in his native land he will not return to Canada.

2     There are two reasons why we should not entertain this appeal. In the first place, this appeal is now a purely academic matter. Yugoslavia is a country which does not recognize the right of a court of another country to try its nationals. When the native returns to his homeland the court of the homeland asserts exclusive jurisdiction over him. That is obviously what has occurred in this instance. Yugoslavia may try him for offences alleged to have been committed outside its territory, and if they do so they rely upon their own procedures. If the appellant is convicted and sentenced in Yugoslavia, that sentence will be dominant as far as this affair is concerned and, conversely, if he is acquitted, he will go free.

3     There is a second ground. Save in exceptional circumstances, if a man is released on bail and does not respond to the bail order by surrendering himself into custody prior to the hearing of the appeal, this Court will almost invariably refuse to hear the appeal and will dismiss it. A fortiori that rule would certainly apply if a man escapes custody and is at large when his appeal comes on for hearing. We can think of several instances where the court, in those circumstances, has refused to hear the appeal and has dismissed it. After all, there is a basic principle that when a person repudiates the jurisdiction of the court he ought not to be permitted to invoke its aid. That is exactly the situation here.

4     Mr. Levy made reference to the case of Regina v. Pion; Regina v. McClemens, [1971] 3 O.R. 428, 16 C.R.N.S. 4, 4 C.C.C. (2nd) 224 (C.A.), but I think that involves a different situation, particularly as the Court assumed in that instance that the appellant, who had appealed in a joint appeal with another person who had not escaped, would, doubtless, be apprehended, and that when apprehended he would be dealt with according to its order. That is not so in the present case. It is reasonably certain in this instance that the appellant will not be apprehended by the authorities in Canada.

5     Accordingly, this appeal will be dismissed.

END OF DOCUMENT