DATE: 20020125 DOCKET: C36921

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., ROSENBERG and MacPHERSON JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

J.C.M.

Appellant

Counsel:

Alexander Hrybinsky, for the respondent

J.C.M., the appellant in person

Heard: December 17, 2001

On appeal from the order of Justice Gloria R. Klowak dated August 21, 2001 refusing an extension of time to appeal from the convictions imposed by Justice Karen E. Johnston dated June 15, 2000

BY THE COURT:

[1] The applicant applies for leave to appeal the decision of Klowak J. dismissing his application for an extension of time to appeal his convictions for several summary conviction offences. Johnston J. entered these convictions on June 15, 2000 in accordance with guilty pleas. The application for an extension of time was filed almost a year later on June 12, 2001. Klowak J. rendered her decision on August 21, 2001. For the following reasons, while leave to appeal is granted, we would dismiss the appeal.

THE FACTS

[2] The appellant's difficulties with the law arise out of the deteriorating relationship with his wife, S.D. Much of the following information is taken from Ms. S.D.'s evidence on June 14, 2000 at the appellant's trial. Ms. S.D. and the appellant are both lawyers. They met at law school in 1992, where they were both mature students. Ms. S.D. had previously been an officer with the O.P.P. At the time, Ms. S.D. was in first year and the appellant was in third year. Ms. S.D. was a single mother having one child A. (A.) born in 1990 from a previous marriage. The appellant and Ms. S.D. have a son, S., born in 1995. They married in 1996. After Ms. S.D. finished articling, the family moved to Orillia. The appellant intended to open up a law practice based in their home. Ms. S.D. again took employment with the O.P.P. At the time of the trial, she was an inspector.

[3] The marriage did not thrive and probably by late 1998, Ms. S.D. was intent on separating. By the fall of 1999, the marriage was one in name only. She described the appellant as becoming increasingly angry. His practice was not doing well and he had begun to drink excessively. The appellant also made an unfounded allegation that Ms. S.D. had been sexually abused by her maternal grandfather. Ms. S.D. considered this particularly offensive. She had been very close to her grandfather who was now deceased and the appellant had never met him. The appellant made this allegation one week before December 13, 1999, the date of the alleged assault.

[4] According to Ms. S.D., the assault arose out of a disagreement over how to deal with a nosebleed suffered by S. It is unnecessary to go into the details. Suffice it to say that according to Ms. S.D., the appellant delivered a karate-type chop to her arm as she was struggling to leave the home with S. Prior to this the appellant was swearing and screaming at Ms. S.D. Ms. S.D. was able to leave the house. She spoke to several people including her lawyer and decided to lay a charge of assault. She also saw her physician who confirmed there had been some type of injury to the arm.

[5] The appellant was arrested for assault and released on bail with conditions that he was not to communicate directly or indirectly with Ms. S.D. Ms. S.D. also obtained an order from the family court giving her exclusive possession of the family home and custody of the children. Eventually this order was varied to allow the appellant access to the home and some access to the children. To avoid communication, Ms. S.D. would leave the home when the appellant was there and vice versa.

[6] Notwithstanding the conditions of his release, the appellant left a number of messages for Ms. S.D. In addition, the appellant started to contact Ms. S.D.’s friends and colleagues at the O.P.P. In one letter, delivered to a friend of Ms. S.D.’s, who was also an O.P.P. officer, the appellant wrote about the alleged sexual abuse. This letter was delivered on Christmas Day, 1999. The appellant also contacted the Children’s Aid Society raising apparently unfounded concerns about Ms. S.D.’s treatment of the children.

[7] Ms. S.D. contacted the officer in charge of the case to complain about the indirect communication. The officer spoke to the appellant about his conduct but he persisted in leaving notes for Ms. S.D. The appellant was eventually charged with breach of an undertaking for the period from December 25, 1999 to January 9 [later amended to January 10] 2000. The appellant was arrested on January 10, 2000 and later released on a recognizance. It was a term of his release that he not communicate with Ms. S.D. directly or indirectly except through their respective counsel to arrange access visits.

[8] According to Ms. S.D., over the next month on some occasions the appellant would follow her in his car or position his car so that he could make eye-contact with her. The appellant also hired a private investigator who made contact with Ms. S.D.’s superiors at the O.P.P. and requested a meeting with the Commissioner, two Deputy Commissioners and an inspector to “disclose any relevant facts of which you may be aware” concerning Ms. S.D.’s “various legal actions … and the background to the subsequent jailing of Mr. J.C.M. by Inspector S.D. on January 10, 2000”. On February 21, 2000, Ms. S.D. was called in by her superior as a result of this letter.

[9] On February 19, 2000, the appellant called the O.P.P. allegedly to arrange an access visit with the children. As a result of this call, he was charged with breach of recognizance for indirect contact with Ms. S.D. and arrested on February 24, 2000. The appellant remained in custody until released on a bail review on April 25, 1999. During this time, the appellant sent letters to his children. The letters would have a cover sheet on them, apparently intended to be read by Ms. S.D. An example is the following:

This is a private communication between father and child. It is not intended to be a communication to Inspector S.D. in any way and it is not be used as evidence in any legal proceedings, criminal or matrimonial, to further any false, illegal or fraudulent child custody scheme or false criminal charges. I have intentionally written this not to try and ensure that my children will be unable to read it. It is included only to stop any invasion of my children’s private communication by Inspector S.D., the children’s mother.

[10] One of the conditions of the April release was as follows:

Not to write any letters to his children. Access to children through the terms of the family court order.

[11] It was a term of the family court order that the appellant have access, supervised by his mother, to the children on Saturday from 10:00 a.m. to 5:00 p.m. On June 3, 2000 the appellant had a visit with S. A. was unwilling to see the appellant and so had not been part of the access visit. Ms. S.D. came to a restaurant parking lot at about 5:00 p.m. to pick up S. from the appellant’s mother. While Ms. S.D. was getting S., the appellant’s mother gave A. a note from the appellant and told her to hide it from Ms. S.D. Ms. S.D. discovered the letter and contacted the police. The appellant was charged with breach of recognizance in writing a letter to his child. He was held in custody and was in custody when the trial began before Johnston J. on June 14, 2000.

[12] By this time, the appellant had been charged with a number of offences including harassment and watching and besetting. The trial began with the testimony of Ms. S.D. At the end of the day on June 14th, cross-examination had not been completed. The trial was to continue on June 15th. There was some discussion on June 14th about further dates to continue. That discussion was not transcribed. The applicant claims that he would be held in custody for a further 45 days for continuation of the trial.

[13] On June 15th, the appellant pleaded guilty to the following charges:

Assault on Ms. S.D. on December 13, 1999

Breach of undertaking between December 25, 1999 and January 10, 2000

Breach of recognizance on February 19, 2000 [the call to the O.P.P. re access]

Breach of recognizance on June 3, 2000 [the note to A.]

[14] Counsel agreed that the trial judge could rely upon the evidence she had heard from Ms. S.D., except that the appellant disputed one incident when the appellant allegedly drove by Ms. S.D. and waved at her. The sentence was in accordance with a joint submission of one day jail (in addition to 65 days of pre-trial custody) and two years probation. The other charges were withdrawn.

[15] The appellant was represented at trial by counsel. He claims that on July 13, 2000, he discussed with “legal counsel” the possibility of an appeal but was unable to proceed because of non-disclosure to the defence of an audio tape of the alleged assault. The appellant repeated this allegation before the summary conviction appeal judge and this court. His allegation is based on certain letters and an affidavit from the investigating officer.

[16] In January 2001, the applicant filed an application for an extension of time, which he abandoned “due to an inability at the time to proceed, resulting from concurrent Law Society proceedings and family matters”. It would appear that the applicant was also pursuing a complaint against Ms. S.D. either in the criminal courts or with the O.P.P., attempting to vary his probation order, and pursuing various matters in the family court. He claims that he decided to renew his application for an extension of time when he learned that the psychologist doing a report for the family court would not go behind the assault conviction and make a different determination of the facts underlying that conviction.

[17] The appellant explains his guilty pleas as follows. He believed that the trial would not be finished after the second scheduled date (June 15, 2000). He also believed that he would not be able to get bail pending resumption of the trial. He therefore changed his plea to guilty to avoid being incarcerated any longer. It was important that he be released as soon as possible not only so that he would no longer be subject to the usual consequences of imprisonment but also so that he could at least maintain access to his son. He believes that his wife is intent on poisoning the relationship between him and the children and it was critical that he be able to maintain contact with them. He maintains that he is innocent of the charges and has a good defence to them. He concedes that he understood the consequences of the plea, that it was fully informed and he had the assistance of competent counsel.

REASONS OF THE SUMMARY CONVICTION APPEAL COURT

[18] In her reasons for refusing to extend the time, the summary conviction appeal court judge held that the appellant was not entitled to “two kicks at the can” and that it was not open to him to try and now raise arguments that could have been made at trial. She did not otherwise deal with the merits of the proposed appeal. She also held that the appellant had not satisfied the onus of explaining away his extraordinary delay in seeking an extension of time. As she said, the appellant decided that other matters had greater priority than pursuing an appeal.

ANALYSIS

[19] As we understand it, although the appellant pleaded guilty to four charges, he only seeks an extension of time to appeal three charges being the assault and the breaches of recognizance on February 19, 2000 and June 3, 2000.

[20] There is no absolute rule to be applied in the exercise of the discretion whether or not to grant an extension of time. The court will, however, usually consider the following three factors:

(i) whether the applicant has shown a bona fide intention to appeal within the appeal period;

(ii) whether the applicant has accounted for or explained the delay; and

(iii) whether there is merit to the proposed appeal.

[21] Depending on the case, the court may take into consideration other factors such as whether the consequences of the conviction are out of all proportion to the penalty imposed, whether the Crown will be prejudiced and whether the applicant has taken the benefit of the judgment. In the end, the main consideration is whether the applicant has demonstrated that justice requires that the extension of time be granted. In our view, the appellant has not met the onus of demonstrating that an extension of time should be granted.

[22] The appellant has not shown that he had an intention to appeal within the appeal period. Although he says that he met with legal counsel shortly after the sentencing, the nature of those discussions is not disclosed except that the appellant states that he was unable to proceed with the appeal due to the non-disclosure of the audio tape. The alleged non-disclosure would not have prevented the appellant from filing a notice of appeal.

[23] We also agree with the summary conviction appeal court judge that the appellant has not explained the lengthy delay. As she said, the appellant chose to give priority to other matters. The fact that he wanted to pursue other issues and in particular complaints against his wife did not prevent him from launching a summary conviction appeal. Although the appellant is not a criminal lawyer, he is a lawyer and had to realize that the longer he delayed, the more remote his chances of being able to set aside his convictions.

[24] Courts have granted an extension of time to allow an accused to attempt to set aside a guilty plea notwithstanding lengthy unexplained delay where there are unexpected consequences of the conviction and there is good reason to doubt the validity of the conviction. The appellant attempts to bring himself within that line of cases and relies upon R. v. Gaudreault (1992), 76 C.C.C. (3d) 188 (Que. C.A.) and R. v. Hetsberger (1979), 47 C.C.C. (2d) 154 (Ont. C.A.). In our view, the correct principle is as stated by Carthy J.A. in R. v. Closs (1998), 105 O.A.C. 392 (C.A.) at 394:

It is my view that such orders should be made only in exceptional circumstances where there is a real concern that an injustice may have occurred. There are many negative consequences of having a criminal conviction and it cannot be expected that these will all be explained to an accused prior to a plea; nor should the convicted person expect the judicial system to provide a fresh start when a surprising consequence of the conviction is encountered. We must have finality except where the demands of justice dictate otherwise. [Emphasis added.]

[25] In our view, there is no real concern that an injustice may have occurred. This is not a case, like Gaudreault, where there is a real doubt that the appellant committed the offences to which he pleaded guilty.

[26] The evidence of the complainant, which it was agreed could be applied to the guilty pleas, supported the assault conviction. There is no merit to the appellant’s claim that a relevant tape recording had not been disclosed. There is no evidence that Ms. S.D. had taped the events of December 13, 1999. The documents relied upon by the appellant do not support this allegation.

[27] With respect to the charge of breach of recognizance on February 19, 2000, the appellant alleges that the police tricked him and that he had no intention of communicating indirectly with his wife. We do not agree. This call was part of a pattern of harassment by the appellant in which he attempted to involve the complainant’s colleagues and superiors at the O.P.P. with the obvious intention of embarrassing her. The appellant’s true intent can be gleaned from his opening comments to the officer taking the call where he said:

Oh yes, its J.C.M. calling. I’m Inspector S.D.’s husband.

Inspector S.D. has, I guess more or less, illegally obtained custody of my children and I made a request through my legal counsel on Thursday to see my children today and tomorrow.

And I can’t call Inspector S.D. because as part of bringing a false allegation of assault against me there is a non-communication order.

And so I want somebody who had authority to phone Inspector S.D. and say have we made arrangements for Mr. J.C.M. to come to take care… [Emphasis added.]

[28] He had no excuse for calling the O.P.P. As the above excerpts show, he knew that she would be contacted by the O.P.P. The recognizance made it clear that any communication concerning access was to be handled through the parties’ lawyers. This was indirect communication, it was intended to be so and on no fair reading of the transcript of the call can it be said that the police somehow tricked the appellant.

[29] With respect to the June 3, 2000 breach, the appellant submits that on the admitted facts no offence was committed. He argues that since he was entitled to have access to his children on Saturday from 10:00 a.m. and 5:00 p.m. he did not violate the condition when his mother provided the letter to A. just before 5:00 p.m. In our view, this is not a proper reading of the terms of the recognizance. Those terms were as follows:

Not to write any letters to his children. Access to children through the terms of the family court order.

[30] The term that the appellant not write any letters to his children was a separate condition. It was clear and unequivocal and distinct from the access condition. The term was obviously included in the recognizance because the appellant was using his opportunity to write the children to communicate with and harass his wife. The facts supported the plea of guilty and the conviction.

[31] One final factor favours dismissal of the extension of time. The appellant took the benefit of the judgment. He obtained the sentence in accordance with the joint submission and the charges of harassment and watching and besetting were withdrawn.

[32] To conclude, the appellant did not satisfy any of the standard prerequisites for granting an extension of time. He has also not shown that this is an exceptional case where the interests of justice require that an extension of time be granted so that the appellant can seek to set aside guilty pleas voluntarily entered with full knowledge of the consequences and with competent legal advice.

DISPOSITION

[33] Accordingly, while leave to appeal is granted, the appeal is dismissed.

Released: RRM JAN 25 2002

(Signed) “R.R. McMurtry C.J.O.”

(Signed) “M. Rosenberg J.A.”

(Signed) “J.C. MacPherson J.A.”