R. v. Garland, 2008 ONCA 134

DATE: 20080226

DOCKET: M35840

COURT OF APPEAL FOR ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

TIMOTHY GARLAND

Appellant/Applicant

Mary Jane Kingston for the appellant

Christine Tier for the respondent

Heard: January 11, 2008

LASKIN J.A. (In Chambers)

[1] On October 30, 1997, the applicant, Timothy Garland, was designated a dangerous offender and sentenced to an indeterminate term in the penitentiary. He now seeks leave to extend the time for serving and filing a notice of appeal against his sentence.

[2] The criteria the applicant must establish to obtain the extension are well established: see R. v. Menear (2002), 2002 CanLII 7570 (ON CA), 162 C.C.C. (3d) 233 at para. 20 (Ont. C.A. ).

• He must show that he had a bona fide intention to appeal his sentence within the appeal period;
• He must account for or explain the delay in bringing his motion to extend the time; and
• He must show that his proposed appeal has merit.

[3] These criteria do not amount to a rigid test. In considering them the court should grant the extension if the interests of justice warrant doing so. The Crown acknowledges that Mr. Garland has met the first two criteria. The Crown submits, however, that I should refuse the extension because the appeal has no merit and the Crown would be prejudiced if the extension were granted. I do not accept the Crown’s submission. I have concluded that Mr. Garland has met all three criteria and has shown that the interests of justice warrant the extension that he seeks.

1. Bona Fide Intention to Appeal within the Thirty-Day Appeal Period.

[4] Mr. Garland took two steps that show he had a bona fide intention to appeal within the appeal period. First, the day he was sentenced, he told his lawyer he wanted to appeal the dangerous offender designation. Second, less than two weeks later, and still within the appeal period, Mr. Garland completed an application to Legal Aid for an opinion on the merits of an appeal against sentence. Therefore he has satisfied the first criterion.

2. Explanation for the Delay

[5] The delay is lengthy – ten years. In my view, however, Mr. Garland has satisfactorily accounted for it. The explanation lies in the conduct of his lawyers. He had several lawyers over the period though he did not instigate any of the changes of solicitor. Whether by reason of negligence, incompetence, or worse, his lawyers misled him and let him down terribly. This is the chronology of what happened.

[6] Mr. Garland’s first lawyer, who acted for him at the dangerous offender hearing and until at least November 2000, represented in correspondence to Mr. Garland that he would deliver an opinion letter and notice of appeal to the Legal Aid Committee and would appear before that committee. The lawyer’s itemized account to Legal Aid shows that he did not write an opinion letter or prepare a notice of appeal.

[7] Mr. Garland’s next lawyer did write an opinion letter for Legal Aid in which he said the appeal had merit. However, apparently he was too busy to carry on with the file. In late 2004 he transferred the file and the legal aid certificate authorizing an appeal to a third lawyer, who returned the file a few months later as she was no longer practising law.

[8] In 2005 Mr. Garland’s file ended up with a fourth lawyer who, apart from meeting with Mr. Garland, did nothing on the file for nearly two years.

[9] Finally, and fortuitously for Mr. Garland, Ms. Kingston took over the file in 2007.

[10] As this chronology demonstrates, Mr. Garland’s file has languished for ten years, not because of his conduct, but because of the conduct of his lawyers. The Crown accepts this, but suggests that Mr. Garland’s remedy lies with a complaint against his lawyers to the Law Society. The relief that might flow from such a complaint strikes me as a hollow remedy for a man sitting in jail who merely wants an opportunity to appeal his indeterminate sentence.

3. Merit of the Appeal and Prejudice

[11] The Crown argues that I should not grant the extension for two reasons: (1) the appeal has no merit; and (2) it would be prejudiced by an extension.

[12] The merit of Mr. Garland’s appeal rests on a so-called “Johnson error”. See R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. This error arises when a trial judge fails to take account of the less harsh long-term offender provisions of the Criminal Code before declaring an offender dangerous and imposing an indeterminate sentence.

[13] The long-term offender provisions came into force a few months before Mr. Garland was sentenced. The trial judge did not consider them. He therefore erred. The Crown accepts that he erred and for that reason does not contend that Mr. Garland’s appeal is frivolous. However, the Crown argues that the trial judge’s error was harmless.

[14] The Crown points to the record showing that Mr. Garland is a pedophile with incurable personality disorders. The Crown also says that on a fair reading of his reasons on sentence, the trial judge concluded that Mr. Garland could not be controlled in the community. Thus the Crown argues, even if the trial judge had considered the long-term offender provisions, he would not have declared Mr. Garland a long-term offender because Mr. Garland could never be effectively supervised in the community.

[15] As I have said, I do not accept the Crown’s argument. The appeal is not hopeless. At least one passage from the trial judge’s reasons suggests that he might have viewed Mr. Garland’s sentence differently had he considered the long-term offender provisions of the Criminal Code. At p. 62 of his reasons the trial judge observed that he might not have imposed an indeterminate sentence if Mr. Garland could be controlled:

I think, however, it might be a basis for exercising my discretion in not imposing a sentence of indefinite detention if he were able to be controlled. However, the length of time I could control him, short of indefinite detention, is limited, other than assuming the period of probation I could put him on would be three years at the most. If I were to impose a conditional sentence the limit would be two years less a day. Subject to, of course, assuming that he would continually breach his probation like he has in the past, which would result in further piecemeal definite sentences.

There is a limit to the amount of time I could control him and it is quite apparent to me on the evidence I have heard that this is a life long disorder. Both is paedophilia and his personality disorder are life long and cannot be cured. The most that could happen would be that they might be controlled.

[16] The long-term offender provisions gave the trial judge “the control” he thought he lacked at the time of sentencing. Admittedly, other passages in the trial judge’s reasons suggest that he doubted Mr. Garland could ever be controlled. Nonetheless, Mr. Garland does have an arguable ground of appeal. Moreover, I think the court should err on the side of granting the extension as the need for it arose because of the conduct of Mr. Garland’s lawyers, and therefore the second of the three criteria weighs especially heavily in his favour.

[17] On the question of prejudice, the Crown says that much of the voluminous record at the sentencing hearing, including the original exhibits, has been lost or destroyed. The Crown contends that, were this court to grant an extension, the unavailability of this material would prevent the Crown from effectively advocating for its position. I disagree. The transcripts and copies of the key medical reports are available. Thus, even if potential prejudice to the Crown were a legitimate basis to refuse an otherwise meritorious extension, I am not persuaded that the Crown has established prejudice in this case.

[18] Finally, I have considered the fresh evidence the parties filed on consent. It does not change my analysis or my conclusion.

[19] I conclude that the interests of justice favour allowing the requested extension of time. I grant the motion and extend the time for Mr. Garland to serve and file a notice of appeal against his sentence until 15 days after the release of these reasons.

Signed: “John Laskin J.A.”