COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chemama, 2014 ONCA 220

DATE: 20140326

DOCKET: C46851, C48632, C49626, C52177, C52178 and M40675

Sharpe, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Erich Chemama

Appellant/Applicant

Erich Chemama, in person

Greg Skerkowski, for the respondent

Heard: March 13 and 14, 2014

ENDORSEMENT

[1] There are six matters before this court for determination: (1) an application to review the decision of MacPherson J.A. of this court, dated November 2, 2011, dismissing an application for an extension of time to file a notice of appeal (M40675); (2) an appeal from the order of T. Ducharme J., dated April 10, 2008 (C48632); (3) appeals from the convictions entered by D.P. Cole J., dated May 26, 2010 (C52177), M. Green J., dated May 6, 2010 (C52178), and G. Sparrow J., dated October 15, 2008 (C49626); and (4) an appeal from the order of A. Campbell J., dated March 15, 2007 (C46851), dismissing an application for a stay of proceedings. These reasons address all these matters.

Request for an adjournment

[2] When this matter came before us on March 13, the appellant requested an adjournment. We granted a brief adjournment of all the proceedings now before us because we were concerned that the appellant may not have received the Crown’s factum.

[3] However, we refused to adjourn the proceedings pending the application the appellant stated that he intends to bring to the Supreme Court of Canada for leave to appeal from the decision of another panel of this court dismissing his appeal from the dismissal of his application to have counsel appointed pursuant to s. 684.

[4] In view of the concern the appellant expressed with respect to Mr. Santoro’s involvement as amicus, and without commenting in any way on the merits of that concern, we discharged Mr. Santoro as amicus on these files. We removed his factum and his brief of authorities from our consideration.

[5] Because the appellant complained that he did not have all the materials, we provided him with a full set of materials even though we were satisfied that, with the possible exception of the Crown’s factum, there had been adequate proof of service of these materials.

[6] We then adjourned the hearing to 2:00 pm on March 14.

Section 684 application

[7] At the commencement of the oral hearing on March 14, Mr. Chemama brought yet another s. 684 application to have counsel appointed. We dismissed that application for the following reasons.

[8] The issue of appointment of counsel pursuant to s. 684 on the appeals now before the court has been the subject of numerous applications and decisions of this court. We see no reason to revisit the issue at this point.

[9] The appellant has had the benefit of more than one s. 684 order. He has consistently frustrated the efforts of this court to provide him with representation by discharging the counsel who have been appointed. In his application, he asserts that the discharge of Mr. Santoro as amicus requires new counsel to be appointed pursuant to s. 684. The sole basis for the dismissal of Mr. Santoro was that the appellant himself objected to his continued participation in these proceedings.

[10] Finally, we were satisfied that it would not be unfair to the appellant to hear these appeals without appointing counsel given the assistance the appellant has received to date, the inmate appeal procedure and the relatively straight-forward nature of the issues raised in these proceedings.

M40675 – Review of Decision of Justice J. MacPherson, dated November 2, 2011

[11] By order dated November 2, 2011, MacPherson J.A. of this court dismissed the applicant’s application for an extension of time to appeal his convictions for sexual assault and forcible confinement in February 2001 on the grounds of unexplained, exceptional delay – seven and one-half years – and lack of serious merit in the proposed appeal.

[12] Assuming, without deciding, that we have jurisdiction to entertain this review application, we see no error in MacPherson J.A.’s ruling nor any special circumstances that would justify intervention with his decision by this Panel. On the record before him – and before this Panel – the applicant failed to demonstrate a bona fide intention to appeal within the requisite time frame. As observed by MacPherson J.A., the applicant’s delay was extraordinary and unexplained. Moreover, like MacPherson J.A., we are not satisfied that the applicant’s proposed grounds of appeal are of sufficient merit to warrant the granting of the requested time extension.

[13] The review application, therefore, is dismissed.

C48632 – Appeal from Order of Justice T. Ducharme, dated April 10, 2008

[14] By order dated April 10, 2008, T. Ducharme J. of the Superior Court of Justice prohibited the appellant from filing multiple copies of any applications in the Superior Court without leave of a judge of that court. The appellant applied to review that order before Nordheimer J. of the Superior Court on April 15, 2008. Justice Nordheimer dismissed the review application, holding that the applicable review route was by way of an appeal to this court.

[15] Justice Ducharme’s challenged order was a procedural order based on the inherent authority of the Superior Court to control its own process. We see no jurisdictional or other error in Ducharme J.’s order. There is no explanation proffered by the appellant for his perceived need to repeatedly file duplicative materials in the Superior Court. It was, therefore, entirely within Ducharme J.’s discretionary authority to prohibit the appellant from continuing to do so. There is no basis for appellate interference with his order.

[16] This appeal is dismissed.

C52177, C52178 and C49626 – Appeals from Convictions entered by Justices D.P. Cole (May 26, 2010), M. Green (May 6, 2010) and G. Sparrow (October 15, 2008)

[17] On May 26, 2010, the appellant pleaded guilty before D.P. Cole J. of the Ontario Court of Justice to uttering death threats. On May 6, 2010, he pleaded guilty before M. Green J. of the Ontario Court of Justice to two counts of criminal harassment, two counts of obstructing police, and six counts of failing to comply with the terms of his probation. Finally, on October 15, 2008, the appellant pleaded guilty before G. Sparrow J. of the Ontario Court of Justice to one count of forcible entry, one count of mischief, one count of attempting to obstruct justice, one count of public mischief, and two counts of obstructing police. He appeals against the convictions that followed on the basis, in each case, that his guilty pleas were invalid.

[18] The onus rests on the appellant to show that his guilty pleas were invalid. To constitute a valid guilty plea, the plea must be voluntary, unequivocal and informed. The accused must be aware of the nature of the allegations made against him or her, the effect of the plea, and the consequences of the plea. See R. v. T.(R.) (1992), 1992 CanLII 2834 (ON CA), 17 C.R. (4th) 247.

[19] We have reviewed the transcript of the plea hearings in each of these three appeals. In each case, the presiding judge conducted the requisite plea inquiry – in detailed or summary fashion – to ensure that the appellant’s guilty pleas were voluntary, unequivocal and informed. The record in each proceeding confirms that these prerequisites were met in each case. Moreover, it is clear from the transcript of each proceeding that the appellant was aware of the charges against him, and the effect and consequences of his plea. The appellant, therefore, has failed to establish that his guilty pleas were invalid.

[20] The appellant maintains that he was medically unfit at the time he entered the relevant guilty pleas and that, as a result, he did not have the necessary “operating mind” to plead guilty.

[21] We reject this contention. The appellant provided no evidence to support his claim that he was medically incapacitated or unfit at the time of his guilty pleas. It is apparent from the records that none of the presiding judges perceived a lack of capacity to enter a valid plea. Further, and importantly, nothing in the relevant transcripts suggests that the pleas at issue were other than voluntary, informed and unequivocal. To the contrary, the transcripts confirm that the appellant pleaded guilty in each proceeding because that is what he wanted to do.

[22] These three appeals are dismissed.

C46851 – Appeal from Order of Justice A. Campbell, dated March 15, 2007

[23] The final matter now before this court is an appeal from the order of A. Campbell J. of the Superior Court of Justice, dated March 15, 2007, dismissing the appellant’s application for a stay of proceedings against him in the Ontario Court of Justice on charges that he and his mother attempted to obstruct the course of justice and counseled a witness to commit perjury.

[24] We see no basis for interference with Campbell J.’s discretionary decision to deny a stay order. Under the terms of the impugned order, the appellant was expressly entitled to renew his stay motion before the trial judge at his trial on the obstruct justice and counsel perjury charges. He has launched an appeal from that trial judgment and his appeal is pending.

[25] In these circumstances, there is no merit to this appeal and it is also dismissed.

Dispositions

[26] A copy of these reasons shall be placed in the court file for each of M40675, C48632, C52177, C52178, C49626 and C46851.

“Robert J. Sharpe J.A.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”