COURT OF APPEAL FOR ONTARIO DATE: 20221116 DOCKET: M53094
Lauwers J.A. (Motion Judge)
BETWEEN
His Majesty the King Responding Party
and
Stuart Cameron Murray Moving Party
Stuart Cameron Murray, acting in person Kevin Rawluk, for the responding party
Heard: November 3, 2022 by video conference
REASONS FOR DECISION
A. Background Facts
[1] The moving party, Stuart Murray, pleaded guilty to one count of fraud over $5,000 and was convicted on November 26, 2020. On February 3, 2021, he was sentenced to an 18-month conditional sentence. The prosecution occurred in the context of Mr. Murray’s practice as a real estate lawyer and was accompanied by proceedings before the Law Society. In a decision released on April 30, 2021, the Law Society Tribunal found that Mr. Murray had engaged in professional misconduct including misappropriating trust money and revoked his licence to practise law.
[2] The 30-day appeal period started on February 3, 2021, when Mr. Murray was sentenced. He seeks an extension of time within which to appeal his conviction. Mr. Murray would argue that his guilty plea was involuntary and uninformed.
[3] The Crown disputes Mr. Murray’s intention to appeal within the 30-day appeal period, because the first time he told the Crown that he wanted to appeal was on November 30, 2021, which was already nine months out of time. Second, the Crown disputes Mr. Murray’s explanation for the delay. Third, the Crown submits that the proposed appeal lacks merit.
B. The Principles Governing a Motion for Extension of Time to Appeal and the Withdrawal of a Guilty Plea
[4] The overarching principle in a motion for extension of time is whether the interests of justice require that an extension of time be granted: R. v. Baig, 2022 ONCA 129, 2022 CarswellOnt 1613, at para. 17; Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. There is no rigid test and the court may consider all relevant factors: R. v. Junkert, 2009 ONCA 922, [2009] O.J. No. 2979, at para. 23. These factors include whether (a) the applicant has shown a bona fide intention to appeal within the appeal period; (b) the applicant has accounted for or explained the delay; (c) there is merit to the proposed appeal; and more generally (d) whether the proceedings appeared to be fair and whether they were fair: see R. v. Menear (2002), 162 C.C.C. (3d) 233 (Ont. C.A.), at para. 20; Enbridge, at para. 15; R. v. Mitchell, 2012 ONCA 804, [2012] O.J. No. 5424, at para. 3; R. v. Kankis, 2012 ONSC 378, [2012] O.J. No. 192, at para. 38.
[5] 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 519. Mr. Murray argues his plea was involuntary and uninformed.
[6] Courts apply the “limited cognitive capacity” standard test to an accused’s challenge of the voluntariness of his guilty plea due to mental health concerns. “That standard requires only that the court be satisfied an accused understands the process, can communicate with counsel and can make an active or conscious choice”: R. v. Cherrington, 2018 ONCA 653, [2018] O.J. No. 4012, at para. 21. For a plea to be voluntary, the law does not require that “an accused be able to engage in a careful, reasoned weighing of options”: R. v. M.A.W., 2008 ONCA 555, 237 C.C.C. (3d) 560, at para. 51. 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”: R. v. Baylis, 2015 ONCA 477, 326 C.C.C. (3d) 18, per Doherty J.A., at para. 47.
[7] The Supreme Court in Wong 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. 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. To do so, an accused must establish a reasonable possibility that, had he known of the legally relevant collateral consequence, he would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions: Wong, at para. 6.
C. The Application of the Governing Principles
[8] When I first heard argument on the motion on January 14, 2022, Mr. Murray had not provided any expert evidence on the issue of his mental state at the time of entering the guilty plea and thereafter. I concluded that prudence and justice required me to adjourn the application in order to give Mr. Murray the opportunity to obtain and present the opinion of a clinical psychologist: R. v. Murray, 2022 ONCA 85, 2022 CarswellOnt 856. Mr. Murray retained a qualified psychiatrist, Dr. Jonathan Rootenberg, who filed his report with the court at the end of September 2022. The delay was the result of Dr. Rootenberg’s limited availability.
[9] Both Mr. Murray’s explanation of his lengthy delay in seeking the extension of time within which to appeal, and his argument on the merits of the appeal turn on the evidence about his mental state.
[10] I begin with the merits of the appeal.
(1) The Merits of the Appeal
[11] 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.
[12] Mr. Murray explained the circumstances that led to his “false guilty plea” 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.
[13] Mr. Murray makes two arguments about the validity of his guilty plea. First, he submits that he signed an agreed statement of facts that contained some untrue facts and entered into an involuntary guilty plea due to his mental state.
[14] Second, Mr. Murray submits that when he 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] Mr. Murray states that some of the information in the agreed statement of facts, which he had to agree to before he could enter his guilty plea, is untrue. He argues that the Law Society relied on the untrue facts that he agreed to in the criminal proceedings to find him guilty of misappropriating trust money. Mr. Murray claims that he did not know that the Law Society’s finding that he misappropriated funds would result from entering the guilty plea. He notes that the Law Society’s counsel advised that Mr. Murray did not take any funds at the same hearing.
[16] The Crown argues that Mr. Murray’s assertions in relation to the agreed statement of facts could not be true because Mr. Murray signed the document personally along with his lawyer and there was a proper plea inquiry. This response raises squarely the question of Mr. Murray’s mental state at the relevant times.
(2) Mr. Murray’s Mental State
[17] Dr. Rootenberg’s lengthy report reached the following conclusions, which I reproduce in full in light of the implications for Mr. Murray. I have underlined the points that I find especially relevant:
Based upon my clinical assessment of Mr. Murray and the information obtained from collateral sources during this assessment process, in my psychiatric opinion Mr. Murray was experiencing symptoms of depression and anxiety prior to and during the period of time encompassing his guilty plea in November 2020. Although I was not acquainted (and had no clinical contact) with Mr. Murray prior to our initial assessment interview on March 28, 2022, information from multiple collateral sources, including his treating psychologist at the time, family members, and other individuals, noted the presence of significant mood and behavioral changes with respect to Mr. Murray that commenced after the Law Society accused him of improperly taking funds from the trust account in November 2016, leading to his bank accounts being frozen. Specific examples of his mood and behavioral changes as described by collateral sources are outlined earlier in this report.
Additionally, Mr. Murray’s consulting psychiatrist at the Probation and Parole office in Toronto, Dr. Pallandi, diagnosed him with a Major Depressive Episode when they first met on November 10, 2021. He continues to experience depressive symptoms, and a differential diagnosis includes Major Depressive Disorder and an Adjustment Disorder with mixed anxiety and depressed mood.
Mr. Murray was clearly under significant duress as a result of the Law Society’s allegations regarding his inappropriate withdrawal of funds from his trust account, and this was compounded by his discovery of the errors made by TD Bank, and by the subsequent criminal charge of Fraud.
All of these challenges significantly and negatively impacted Mr. Murray’s mental health, and his mood state and overall functionality became quite compromised. In addition to his low mood, he experienced cognitive difficulties, namely with respect to attention, concentration, and memory; as noted earlier, he required assistance from family members to review pertinent documents and to send e-mails, as he attempted to deal with these issues. Complicating matters was his limited access to his own records, which the Law Society was in possession of, as well as delays in court proceedings, and the significant costs that he accrued. He was unable to earn money, his real estate business closed, and the media coverage of his situation made him virtually unemployable; these issues persisted for years. His depressive symptoms included frequent thoughts of suicide, including contemplating ways in which he would carry it out, due to his feelings of desperation and being overwhelmed.
When a person presents with this condition, it is not uncommon for them to be able to function in some areas and not others. It is also not uncommon for someone to appear functional to others, even when they are struggling significantly.
Regarding the issue of whether his guilty plea was voluntary and informed, Mr. Murray was clearly experiencing significant depressive symptoms at the time he entered his guilty plea in November 2020 due to the aforenoted reasons. He stated that as a result of his markedly compromised condition, his sister Monica wrote many of the emails that were sent to all parties, including emails sent to his lawyers. He stated that she was also instrumental in his decision to plead guilty, despite her being unaware of all the facts of his defence, as at the time he was functionally unable to make informed decisions about the criminal plea and the Law Society matters.
It is very likely that the acuity of Mr. Murray’s depressive symptoms significantly influenced his ability to function properly. He may well have been unaware that the Law Society would use his guilty plea in criminal court to justify their finding that he was guilty of misappropriation of funds from his trust account.
However, the ultimate issue as to whether he “lacked the capacity to make an active or conscious choice whether to plead guilty” at that time, and whether he was “aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea”, is necessarily deferred to you as the trier of fact to make that determination. As noted earlier, although I did not assess Mr. Murray at the time that he entered his guilty plea nearly two years ago, I have attempted to outline those factors for your consideration that I believe significantly affected Mr. Murray’s mental state during the material time, including his depressive symptoms, cognitive deficits, and compromised level of functioning. [Emphasis added].
[18] The highlighted excerpts put in doubt Mr. Murray’s cognitive functionality at the time he pleaded guilty. It is not my task to finally determine the validity of his guilty plea, only to determine whether there is enough evidence to explain and justify Mr. Murray’s delay in appealing, and to impugn the validity of his guilty plea in order to permit the appeal to proceed on that basis. I conclude that Mr. Murray has met both burdens.
(3) Explanation for Delay
[19] The Crown argues that Mr. Murray’s engagement with the criminal and regulatory proceedings shows that he was functional enough to appeal within the appropriate period. Mr. Murray was assisted by legal counsel in the proceedings, but he was self-represented respecting this appeal.
[20] However, I am satisfied that Mr. Murray has sufficiently explained the delay. His ability to appeal his conviction was deterred by his mental state at the time, as Dr. Rootenberg explains.
(4) Fairness of the Proceedings
[21] Finally, the psychiatric evidence raises concerns about the fairness of the process leading to Mr. Murray’s plea. The justice of this case requires that Mr. Murray is granted this extension.
[22] As I noted above, it is not my task to finally determine the validity of Mr. Murray’s guilty plea, only to determine whether there is enough evidence to explain and justify his delay in appealing, and to impugn the validity of his guilty plea in order to permit the appeal to proceed on that basis. Mr. Murray has met both burdens. Making out the grounds of appeal will require fresh evidence including, for example, what Mr. Murray’s cognitive capacity was at the time of his plea, what he would have done differently had he been fully aware of the collateral consequences, and what his counsel would have done had he been fully aware of Mr. Murray’s mental state when the plea was negotiated, as described in Dr. Rootenberg’s opinion.
D. Disposition
[23] I allow Mr. Murray’s motion for an extension of time to appeal the conviction. The parties will arrange a case management conference with me for scheduling purposes.
“P. Lauwers J.A.”
