Article content continued

His second ground claims “the honourable judge failed to properly instruct the jury.”

Because Rafferty, 31, was late filing his appeal notice, he will need permission to press his case, which will be heard automatically if a time extension is granted.

In his application — filed more than the 30 days normally allowed — Rafferty explains why he needs the extension.

“I have tried to initiate this appeal as quickly as possible,” he wrote in his appeal notice dated June 26 but only sent to the court a month later.

“But my inability to use the telephone to contact legal counsel prevented me from doing so.”

An Ontario Appeal Court official said it would “probably take a while” for a decision on the extension because a trial transcript and exhibits need to be gathered to send to the deciding judge.

Normally, the Crown consents to the extension and the judge grants it unless the delay is deemed unjustifiable. In that case, the Crown may object and a judge would decide after hearing submissions, usually in writing.

Because Rafferty is arguing legal errors, if he continues with a full appeal it will be automatically heard if the time extension is granted.

“He’s just trying his last thread of hope,” said Graichen, who only found out about the notice from reporters.

“God willing, they’ll see through him and not let the appeal go through.”

Toronto lawyer Stacey Nichols, of Neuberger Rose, said Friday that Rafferty had approached them about handling the appeal but the firm had not yet been retained and did not help with the notice.