Court File and Parties

Court of Appeal for Ontario Date: 20220127 Docket: M53094

Before: Lauwers J.A. (Motion Judge)

Between: Her Majesty the Queen Responding Party

And: Stuart Cameron Murray Moving Party

Counsel: Stuart Cameron Murray, acting in person Kevin Rawluk, for the responding party

Heard: January 14, 2022 by video conference

Reasons for Decision

[1] The moving party, Mr. Murray, pleaded guilty to one count of fraud over $5,000 and was convicted on November 26, 2020. He was sentenced on February 3, 2021 to an 18-month conditional sentence. The conviction occurred in the context of Mr. Murray’s practice as a real estate lawyer and was accompanied by proceedings before the Law Society, which resulted in the revocation of his licence to practise law.

[2] Mr. Murray seeks a ten-month extension of the time within which he can appeal his criminal conviction and sentence.

[3] On a motion for an extension of time, the overarching question is whether the justice of the case requires that an extension be given. The court should take into account all relevant considerations, which include: (a) whether the moving party formed a bona fide intention to appeal within the relevant time period; (b) the length of, and explanation for, the delay; (c) any prejudice to the responding parties; and (d) the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. A lack of merit alone can, in some circumstances, be a sufficient basis for denying an extension of time: Enbridge Gas, at para. 16.

[4] The Crown disputes Mr. Murray’s intention to appeal within the 30-day appeal period. The first time he told the Crown that he wanted to appeal was on November 30, 2021, which the Crown points out was already nine months out of time. Second, the Crown disputes the explanation for the delay. Third, the Crown disputes the merits of the appeal.

The Merits of the Appeal

[5] Mr. Murray’s most viable argument for an extension of time is that his appeal is potentially meritorious. Looked at more closely, Mr. Murray seeks to appeal in order to be permitted to withdraw his guilty plea.

[6] To be valid, a guilty plea must be voluntary, unequivocal, and informed: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 3, citing R. v. T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519. Mr. Murray makes two arguments about the validity of his guilty plea. The first concerns his mental state at the time of his plea. The second is that he was unaware of the legally relevant consequences of his plea. I address each in turn.

Mr. Murray’s Guilty Plea and His Mental State

[7] The context for Mr. Murray’s guilty plea is set out in the notice of motion:

[T]he Moving Party made a false guilty plea of Fraud over $5,000 under s. 380 of the Criminal Code (R.S.C., 1985, c. C-46) for being wilfully blind to the trust shortfall. As part of the guilty plea, the Crown required the Moving Party to receive a revocation of the Moving Party’s license to practice law in Ontario from the Law Society and to come to an agreed Statement of Facts with the Law Society….

[T]here were multiple unexpected consequences of the guilty plea and the conviction. The Law Society used the guilty plea to argue and obtain an order that the Moving Party misappropriated trust funds. The Law Society also knew that the Moving Party was required to sign an Agreed Statement of Facts as part of the guilty plea. As such, the Law Society made the Moving Party Agree to multiple untrue statements in the Agreed Statement of Facts.

[8] Without going too far into the details, it appears that a couple of serious banking errors by the Toronto Dominion Bank with respect to the trust account for Mr. Murray’s law practice led to a domino effect, in which there were shortfalls involving several real estate transactions in 2016. A complaint was made to the Law Society, which swept in to investigate, and the rest followed.

[9] Mr. Murray explains his “false guilty plea” in three paragraphs in his affidavit:

The trial was set for January 2021. Mr. Murray had already been going through over five years of depression, suicidal thoughts and an overall high stress mental state. For example, every night Mr. Murray suffered from anxiety attacks. As early as December 2016, Mr. Murray had planned out how to kill himself by slitting his wrists and laying in a dumpster. Mr. Murray was carrying on day by day by telling himself to “mentally kill” himself so that his body and what was left of his mind could go on and deal with the matter. As of the date of this Affidavit, Mr. Murray continues to be of the belief that he already killed himself “mentally” as part of coping with his life.

Although Mr. Murray was the one that found the known errors made by TD Bank, Mr. Murray was severely cognitively challenged due to the impact of the matter on Mr. Murray.

Mr. Murray was concerned that he would not be able to sit through the trial let alone participate in it.

[10] Mr. Murray provided this court with no expert evidence on his mental state at the time of his guilty plea. The only evidence in the record was his prescription for antidepressant medication, as well as a letter from the defence’s book of documents for sentencing, which was in the Crown’s motion record. This letter, dated November 3, 2020, was written on Mr. Murray’s behalf by a clinical psychologist. The letter provides:

This letter is respectfully submitted to provide additional information that may be useful regarding Mr. Murray. Mr. Murray sought my care in April 2020 due to significant depression brought on by several stressors that have occurred in his life. Prior to the events of 2016, Stuart had been a successful student earning his law degree, establishing Mullan Law, and raising a daughter. Since that time, his life drastically changed, his reputation and honor, once a source of pride, was ruined. He became depressed, his marriage fell apart, and his career as a lawyer was effectively over regardless of the outcome. He has remained in the state of limbo with the accusations, charges, and investigations ongoing four years later. He [has] experienced significant levels of depression, problems with concentration and attention, difficulties sleeping and feelings of his life spiraling out of control and suicidal ideation. He was isolating himself, ruminating in his depression with a deep sense of shame and remorse for letting his clients, staff and family down.

This cycle of overwhelming demands, overwork, stress, and fear continued, fueling stress, anxiety, and cognitive impairments.

Mr. Murray still struggles with his depression and the loss that he has experienced over the last four years.

The Principles that Govern the Voluntariness of a Guilty Plea

[11] When an accused challenges the voluntariness of his or her guilty plea due to mental health concerns, courts apply the “limited cognitive capacity” standard. The law in this area was recently summarized by this court in R. v. Cherrington, 2018 ONCA 653, at para. 21:

A plea of guilty is voluntary if it represents the conscious volitional decision of an accused for reasons that the accused regards as appropriate. Pleas of guilty entered in open court in the presence of counsel are presumed to be voluntary. The presumption is rebuttable, as for example, by evidence of an accused’s limited cognitive capacity, a mental disorder or condition, or cognitive or emotional issues such as anxiety, depression, chronic pain, anger management problems and difficulty in communication. However, an accused who claims involuntariness must demonstrate that he or she lacked the capacity to make an active or conscious choice whether to plead guilty: R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519; R. v. M.A.W., 2008 ONCA 555, 237 C.C.C. (3d) 560, at paras. 23-37. To enter a voluntary plea of guilty, an accused need only be able to understand the process leading to the plea, communicate with counsel, and make an active or conscious choice. Whether the choice to plead guilty is wise, rational or in the accused’s best interest is not part of the inquiry: M.A.W., at para. 35; R. v. Baylis, 2015 ONCA 477, 326 C.C.C. (3d) 18, at para. 47. [Italics in original; underlining added.]

[12] Doherty J.A. found in R. v. Baylis, 2015 ONCA 477, 326 C.C.C. (3d) 18, at para. 47, that although anxiety and depression are “very real problems”, they will not render a guilty plea involuntary unless they lead to an inability “to understand the nature of the criminal proceedings” or “to make an effective choice as to the plea to be entered on the charges.”

The Principles that Govern Whether a Guilty Plea was Informed

[13] The second ground Mr. Murray raised was that he was unaware of the consequences of his guilty plea. In Wong, the Supreme Court set out the principles governing the withdrawal of a guilty plea on the basis that it was uninformed. To be informed, an accused “must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea”: Wong, at para. 3, citing T. (R.), at p. 519. These consequences include both the criminal consequences and the “legally relevant collateral consequences” of the plea: Wong, at para. 4. An accused seeking to withdraw a guilty plea on this basis must establish subjective prejudice. As the court explained in Wong, at para. 6:

[A]ccused persons who seek to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea must file an affidavit establishing a reasonable possibility that they would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions. To assess the veracity of that claim, courts can look to objective, contemporaneous evidence. The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim.

[14] According to his affidavit, when Mr. Murray entered the guilty plea, he was “not aware that the Law Society would use the guilty plea to justify finding him guilty of misappropriation of funds.” He added:

Upon entering the guilty plea, the Law Society outlined that Mr. Murray would now be found guilty of misappropriation of funds based on the guilty plea. The Crown and the Law Society forced Mr. Murray to an agreed Statement of Facts. The Crown would not agree to a guilty plea unless Mr. Murray (1) came to an agreed Statement of Facts with the Law Society and (2) arranged to have his licence to practice law revoked by the Law Society.

On January 20, 2021, the Law Society ordered that Mr. Murray had misappropriated funds he was holding in trust to clients based on the guilty plea of wilful blindness.

On January 20, 2021, Paul Pape, the lawyer for the Law Society, confirmed at the final hearing that Mr. Murray did not take any funds.

[15] In light of my disposition below as to the voluntariness of Mr. Murray’s guilty plea, I will postpone my analysis of the merits of Mr. Murray’s claim that his plea was uninformed.

Discussion

[16] I have sympathy for Mr. Murray. He clearly remains deeply depressed. He did not have any difficulty in his oral presentation, but his affect was very flat and at one point in his submissions, he broke down.

[17] That said, the bar permitting the withdrawal of a guilty plea on the basis of limited cognitive capacity is very high. Mr. Murray arrived at the argument of this motion without the necessary evidence. Based on the opinion of the clinical psychologist, whose letter was provided to the court in the context of sentencing, it might well be possible for Mr. Murray to make out his case. However, he has not done so thus far.

[18] In these difficult circumstances, I conclude that prudence and justice require me to adjourn this application to a date to be fixed in three months, in order to give Mr. Murray the opportunity to muster the relevant evidence on the merits of his appeal. I will also arrange for a conference call in about two months to determine Mr. Murray’s progress. After that process is completed, I will make the decision on this motion.

“P. Lauwers J.A.” Released: January 27, 2022