Longer jail sentence thrown out after court rules convicted man wasn't told about appeal

P.E.I.'s Court of Appeal has overturned a sentence handed to a man convicted of robbery. The sentence was lengthened in court, but the man wasn't told about the appeal.

Court rules 'lack of notice' was unfair to P.E.I. man convicted of robbery

Justice John Mitchell said the lack of notice to Sark was 'a miscarriage of justice.' (Steve Bruce/CBC)

P.E.I.'s Court of Appeal has overturned a sentence handed to a man after a robbery conviction because the man wasn't notified about the appeal of his original sentence.

Jason Aaron Sark was sentenced in January 2020 to nine months in jail and 18 months probation for robbery.

The Crown appealed, serving notice to the lawyer who had represented Sark in provincial court. That lawyer had been provided by the P.E.I. Legal Aid office for the original case.

The lawyer sent the appeal notice to the Legal Aid office as he was no longer representing Sark. A few days later, Legal Aid sent it back to the lawyer asking him to represent Sark again, and the lawyer accepted the appeal notice on Sark's behalf, according to a recent decision by the P.E.I. Court of Appeal.

However no one notified Sark.

Arrested at his bank

The appeal went ahead and a judge increased Sark's sentence to two years in jail and two years probation.

By this time, Sark had been released from jail.

"Sark was, no doubt, surprised" — thinking his sentence was over — to be arrested at his local bank by two police officers, Justice John Mitchell wrote in his five-page decision, issued Jan. 15.

In the decision, which was agreed to by the other two Appeal Court judges, Mitchell said the lack of notice to Sark was "a miscarriage of justice" and the lawyer representing his case at the appeal "was not authorized by Sark to do so."  

Lack of notice is fundamental'- Justice John Mitchell

Representing Sark in provincial court did not mean he was the lawyer on record for the case in Appeal Court, said Mitchell.

"Lack of notice is fundamental," wrote the judge. "In our legal system there is nothing more basic than the concept of notice and no higher value than the liberty of the subject."

Without being told about the appeal, Sark was denied the right to find a lawyer of his choosing, as well as the right to attend the court hearing and make representations, said Mitchell.

The failure to give notice makes the appeal decision "a nullity" and therefore the lengthened sentence is quashed, wrote Mitchell.

The Crown is reviewing the court decision and hasn't decided yet whether to appeal.

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