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A man who is a victim of what a judge called a “miscarriage of justice” will be out of custody after a P.E.I. Court of Appeal decision Friday.
Jason Aaron Sark was serving two years in jail minus time already served for robbery after a court of appeal decision in September increased the sentence he received several months earlier.
Sark said he didn’t know about the appeal and in a unanimous decision delivered from the bench Friday, Justice John Mitchell said a “miscarriage of justice” had occurred.
John Douglas, who has since retired as a provincial court judge, initially sentenced Sark to nine months in jail after he and Jesse Douglas Paquet robbed a man of his wallet and cellphone in a parkade in Charlottetown on Aug. 31, 2019.
Douglas sentenced Paquet to one year in jail.
Sark’s prior record included convictions for attempted murder, aggravated assault and assault with a weapon.
After Sark finished serving the nine-month sentence, he was arrested again outside a bank and taken back to jail to serve out the time the court of appeal imposed in September.
During Friday’s hearing, Mitchell said that as far as Sark knew, his sentence was finished when he was released.
Conor Mullin was Sark’s lawyer when the matters were before the provincial court.
He also represented him on the appeal that saw his sentence increased, although the court heard Sark wasn’t aware of that.
The court heard the Crown served Mullin with the notice of the appeal.
Mullin accepted service of the notice of appeal.
However, Mitchell said Mullin couldn’t accept service and wasn’t the counsel of record for Sark in the court of appeal.
Without notice, Mitchell said Sark lost his ability to choose who would represent him.
Mitchell said the Crown’s actions were “unimpeachable” but the lack of notice to Sark meant the appeal was void.
During the hearing Friday, Chris Montigny represented Sark and said his client was seeking the ability to make further submissions on the appeal or, in the alternative, for the court to allow a new one.
Montigny said the criminal justice system works best when people are able to participate in a meaningful way.
In his submissions, Montigny said he believed Mullin did his best with the appeal, but where the process broke down was in communicating with Sark.
A “pretty critical step” was missed, Montigny said.
He also said there was no affidavit filed by Mullin or legal aid on the motion heard Friday.
When Crown attorney John Diamond made his submissions, he also addressed Mullin’s handling of the appeal.
“The treatment of Mr. Sark by his former counsel is unacceptable,” Diamond said.
In his submissions, Diamond said the Crown followed the rules of the court and filed a notice of appeal within several days of Sark’s sentencing in provincial court.
That notice was then served on Mullin and Diamond said he knew exactly where Sark was.
Sark was still in jail at the time.
Diamond said he recognized that what happened to Sark with the appeal was wrong.
If Mullin wasn’t authorized to accept service of the notice of appeal then he shouldn’t have accepted it, Diamond said.
Diamond also said he has filed a complaint with the Law Society of P.E.I.
An order for Sark’s release was to be drafted Friday after the court’s decision.
Ryan Ross is The Guardian's justice reporter