Court of Appeal for Ontario

Date: 2025-07-04
Docket: M55901 (COA-23-CR-0231)
Coram: Peter Lauwers, L.B. Roberts, B. Zarnett JJ.A.

Between

His Majesty the King
Respondent

and

Milad Babadi
Appellant

Milad Babadi, acting in person
Nicholas Hay, for the respondent

Heard: 2025-06-27

Reasons for Decision

Background

[1] Mr. Babadi seeks to reopen his appeal from his convictions and sentence. This panel dismissed his appeal by reasons released on March 19, 2025: R. v. Babadi, 2025 ONCA 209.

[2] With the assistance of experienced counsel, Mr. Babadi reached a resolution at a judicial pre-trial conference. Pursuant to that resolution, Mr. Babadi pled guilty to the offences of uttering threats to cause bodily harm to two victims and of criminal harassment of three victims. As part of the plea agreement, a charge of child pornography did not proceed, and a custodial sentence was avoided. Mr. Babadi received a suspended sentence and probation for three years in addition to other ancillary orders.

[3] This court rejected Mr. Babadi’s submissions that he received ineffective assistance of counsel and that his pleas were not informed or voluntary. We admitted fresh evidence concerning these issues but were unpersuaded they established Mr. Babadi’s grounds. In particular, as we noted in para. 33 of our reasons, the appellant’s conduct at the sentencing hearing, as well as his “comments at sentencing, when he said: ‘I recognize that my offensive behaviour and thoughtless action were wrong’, belies the lack of voluntariness.” There was no evidence that at the time of the commission of the offences Mr. Babadi suffered from a mental condition that rendered him incapable of appreciating the nature and quality of the acts he committed or of knowing that they were wrong, as he claimed on the appeal. We dismissed his appeal.

The Motion to Reopen

[4] Prior to the issuance of this court’s formal order on March 24, 2025, Mr. Babadi advised the court office by email on March 20, 2025, that he would seek to reopen the appeal. He did not deliver his motion materials until April 2, 2025.

[5] In support of his motion to reopen, Mr. Babadi sought to file further fresh evidence – a letter purportedly authored by his family physician dated June 23, 2025, which he sent to the court office the night before his motion was heard. The letter alleges that Mr. Babadi was not criminally responsible at the time he committed “the alleged offence”. The Crown objects to the admission of this letter.

[6] We decline to admit the letter as evidence on the motion to reopen. We do not consider it in the interests of justice to do so: R. v. Smithen-Davis, 2020 ONCA 759, 68 C.R. (7th) 75, at para. 58. First, it was submitted well past the May 23, 2025 filing deadline ordered by Copeland J.A. Second, it is unsworn and, at least facially, there are formatting and other issues that cast doubt on its authenticity; moreover, its contents do not appear to specifically reference the offences under appeal and are inconsistent with the evidence before the trial court, including Mr. Babadi’s own letter to the sentencing judge in which he took responsibility for his actions. Third, there is no explanation as to why this evidence could not have been proffered at the trial level or as fresh evidence on the appeal. While due diligence is not a precondition to the reception of fresh evidence, this factor exists to ensure finality and order: Smithen-Davis, at para. 60.

Analysis

[7] Turning to Mr. Babadi’s motion to reopen, we dismiss it for two reasons.

[8] First, Mr. Babadi’s email notice to the court office does not affect the ordinary rule that this court is functus officio once the order is signed: Smithen-Davis, at para. 37. The formal procedure of the court must be engaged, which he did not do until he filed his motion after the order was signed.

[9] Second, even if this court were not functus officio, we are not persuaded that Mr. Babadi has met the closely circumscribed and rare circumstances in which a court may exercise its authority to permit re-opening of an appeal: Smithen-Davis, at para. 36. He has not established a clear and compelling case to justify a re-opening nor that the court overlooked or misapprehended the evidence or the arguments advanced. Rather, he is seeking to relitigate the grounds that were fully presented and considered by this court on the appeal itself.

[10] Mr. Babadi’s recourse is not before this court but by way of a leave application to the Supreme Court of Canada, which he advised he has already commenced.

Conclusion

[11] Accordingly, the motion to reopen is dismissed.

“P. Lauwers J.A.”
“L.B. Roberts J.A.”
“B. Zarnett J.A.”