Court of Appeal for Ontario

Date: 20231024 Docket: COA-23-OM-0267

Before: Sossin J.A. (Motion Judge)

Between: His Majesty the King Respondent

And: Brook Makara Applicant/Appellant

Counsel: Daisy McCabe-Lokos, for the applicant Katie Doherty, for the respondent

Heard: October 20, 2023 by video conference

Endorsement

[1] The applicant seeks an extension of time to file a Notice of Appeal.

[2] The applicant entered into a mid-trial plea bargain on December 8, 2022. He pleaded guilty to three offences under the Criminal Code, R.S.C. 1985, c. C-46: two offences in relation to his possession of a sawed-off shotgun, and a count of threatening death to his family members. The applicant and the Crown agreed to a joint sentencing submission of four and a half years in custody. Pursuant to the plea agreement, the Crown then withdrew the remaining charges before the Court.

[3] The applicant was sentenced on February 16, 2023. The applicant filled out an inmate Notice of Appeal and applied for an extension of time to appeal on June 27, 2023. No ruling was made with respect to the Inmate application for extension. Trotter J.A. requested submissions from the Crown, and transcripts of the sentencing hearing of the applicant were prepared. The applicant subsequently retained counsel, and counsel was instructed by the court in September 2023 to file a Solicitor’s Notice with material to support an application to extend the time to appeal, as the applicant was out of time by over six months.

[4] The applicant now seeks an extension of time to appeal his firearms convictions. He is not seeking to appeal his other conviction or his sentence. The grounds for his conviction appeal are that his plea was uninformed based on information he learned after his proceedings concluded. In particular, the applicant now believes that the firearm he was found to possess was used in a homicide earlier in 2021. He asserts that any such connection was both known to the Crown (and should have been disclosed) and that had he known of any such connection between the firearm he possessed and a previous homicide, that information would have assisted his defence.

[5] In R. v. Menear (2002), 155 O.A.C. 13 (C.A.), at paras. 20-21, this court held that while there is no absolute rule to be applied in exercising the discretion whether to grant an extension of time, the main consideration is whether the applicant has demonstrated that justice requires that the extension of time be granted. In making this determination, the court will usually consider the following three factors:

1. Whether the applicant had a bona fide intention to appeal within the appeal period;
2. Whether the applicant had accounted for or explained the delay; and,
3. Whether there is merit to the proposed appeal.

Bona Fide Intention to Appeal within the Appeal Period

[6] The applicant concedes that he did not form an intention to appeal within the appeal period.

[7] The applicant argues that even where there was no bona fide intention to appeal within the appeal period, the interests of justice may nonetheless justify an extension of time. In R. v. A.G. (M.), 2002 BCCA 413, 212 D.L.R. (4th) 537, for example, the B.C. Court of Appeal held that an extension was warranted where there had been no bona fide intention to appeal.

Explanation of the Delay

[8] The applicant acknowledges that his intention to appeal only arose in June 2023. The parties differ as to how long he waited before initiating the appeal process in the inmate stream. On the one hand, it certainly was not immediate, as emphasized by the Crown, but it was also certainly within a month, notwithstanding the challenges for an incarcerated, self-represented person, as highlighted by the applicant.

Merit to the Proposed Appeal

[9] On a motion for an extension of time, the threshold for the merits of the appeal that an applicant must establish is that they have an arguable case that is not frivolous: R. v. Garland, 2008 ONCA 134, at paras. 11-15.

[10] If the extension of time is granted, the applicant will argue that he was not fully informed at the time he pleaded guilty due to a Crown failure to disclose relevant information, and that the guilty plea should be rescinded. 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 p. 519. See also R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307. Where fresh evidence gives rise to an applicant’s ability to challenge the validity of a guilty plea this court has extended the time for perfecting an appeal to allow such evidence to be brought forward: see, for example, R. v. Murray, 2022 ONCA 906; R. v. Brooks, 2020 ONCA 605.

[11] The applicant made disclosure requests during the pretrial process and asked the Crown for disclosure to confirm whether the firearm in his case was being sought as evidence in a separate case and even wrote a letter to the Crown asking for an inquiry into this disclosure issue during his trial to try to access information to corroborate his defence position.

[12] The applicant sought this disclosure in support of a defence that he knew the firearm was being sought in a separate case, that it was in fact being sought, and that he only possessed it for the purpose of turning it over to police, i.e.: the defence of innocent possession as described in R. v. Chalk, 2007 ONCA 815, 88 O.R. (3d) 448. Or potentially, that he should have been found guilty of the lesser offence of failing to turn it over to the police in a timely fashion (Criminal Code, s. 105(1)(b)).

[13] Around June 3, 2023, (six months after his guilty plea) the applicant learned of an article in the Sault Ste. Marie news that described a guilty plea of a male named Jerry Leveille. Mr. Leveille pleaded guilty to manslaughter for a shooting that occurred in Sault Ste. Marie in May 2021. The applicant believes that the firearm in his own case was the one used in this shooting.

[14] The applicant’s affidavit in support of the motion explains that what he learned in June 2023 tended to corroborate the existence of the information he requested from the Crown that would have supported his defence at trial. His position on appeal will be that the Crown should have provided this information in disclosure, and because they did not, his plea was not fully informed. If the applicant is allowed to appeal, he will likely file a fresh evidence application with, at minimum, the facts from Mr. Leveille’s guilty plea proceeding and/or Mr. Leveille’s preliminary inquiry transcripts, as well as an updated affidavit, in addition to transcripts of his trial proceeding. He will argue that the fresh evidence illustrates that there was information in existence that should have been disclosed; the information would have supported his defence; and further that had he been disclosed the information, he would not have decided to plead guilty.

[15] According to the Crown, the applicant’s argument that a new trial should be ordered because his plea was uninformed is based on a bare assertion that he believes there was information “available to the Crown that they did not secure and disclose.” This assertion rests on several factual and legal assumptions that are not substantiated on the record presented on this motion. This court should not be satisfied that the proposed appeal surpasses the not frivolous standard.

[16] This motion comes down to the interests of justice. While the applicant concedes he cannot meet the first prong of the test for an extension of time, he argues this is not dispositive. Returning to A.G. (M.), the B.C. Court of Appeal justified granting the extension of time based on a new development in the law, in which the Court of Appeal corrected a mistaken view of the law of sentencing that had been applied in the applicant’s case at trial. Esson J.A. explained:

[24] The only sense in which there has been a change in the law is that this Court has overruled a series of decisions at first instance holding, or assuming, that the section did not permit consideration of a long-term offender status. This is not a case of seeking to be artificially allowed into the system to take the benefit of a "new" law. Rather, it is an attempt to seek the benefit of the recent correction of a mistaken view of the law.

[17] This assessment of the merits of the proposed appeal can be distinguished from the new development in this case, which is purely a matter of conjecture on the evidence. I would add that A.G. (M.) related to a sentence appeal, and the Court viewed the appeal of the dangerous offender designation as a significant factor weighing in favour of granting the motion. In particular, it stated that:

[25] A second significant circumstance is that the applicants seek an extension to appeal in relation to a dangerous offender designation and the indeterminate sentence based upon it. It is fair to say that our courts have always considered the dangerous offender provisions as something of a special case. There is good reason for that. Dangerous offender provisions, necessary as they are to protect innocent persons from the dangerous propensities of some offenders, have harsh consequences for those offenders, many of whom lack not only the normal capacity to control their violent propensities but who also lack the normal capacity to look after their own interests once they are charged.

[18] Again, this circumstance distinguishes the B.C. Court of Appeal’s analysis from that applicable here.

[19] The applicant also relies on R. v. Hetsberger (1980), 51 C.C.C. (2d) 257 (Ont. C.A.), in which an extension of time was granted to an applicant almost two years after conviction. The motion judge justified this decision on the basis that the applicant raised arguable questions for appeal in relation to jurisdiction and statutory interpretation. Again, in contrast, there is no legal ambiguity in the case at bar. The merits question comes down to whether the fresh evidence, if accepted, arguably could ground a claim that the applicant’s plea was not fully informed.

[20] In this case, while the applicant appears to genuinely believe that the new evidence which has come to light constitutes disclosure that should have been provided by the Crown in the context of his own trial, there is no basis for this claim apart from his belief. In my view, this subjective and unsupported assertion is insufficient to meet the merits threshold to justify an extension of time.

[21] The applicant argues that there is no prejudice to the Crown in permitting the appeal to be brought − notwithstanding that it is six months after conviction − as the applicant’s fresh evidence is already in the public record and his appeal would not turn on factors affected by the passage of time (for example, the memory of key witnesses). The Crown, by contrast, argues that prejudice flows generally from reopening a guilty plea.

[22] The Crown’s argument rests, in part, on the important interests in finality in a guilty plea and the generally high threshold to set aside guilty pleas. As the majority of the Supreme Court stated in Wong, at para. 65:

The onus is on a person who appeals a conviction on the ground of an invalid plea to show that the plea was in fact invalid: T. (R.), at p. 519. The integrity of the plea bargaining process and the certainty and order which are essential to the criminal process depend on the finality of guilty pleas. The benefits associated with guilty pleas will be lost and the very functioning of the criminal justice system will be threatened if such pleas are set aside lightly. Accordingly, there is a considerable public interest in preserving the finality of guilty pleas, and the burden of showing that a guilty plea was invalid falls to the accused.

[23] Finally, I note that this court in Menear justified its conclusion not to grant a motion to extend time in part on the basis of the applicant having taken advantage of the judgment, at para. 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.”

[24] A similar analysis is applicable here, both with respect to the value of finality in guilty pleas, and with respect to the other charges against the applicant which were dropped in light of the guilty plea in this case. I would not accept the proposition that granting the motion for an extension of time in these circumstances results in no prejudice to the Crown.

[25] For all these reasons, I conclude that the applicant has not established that it is in the interests of justice for the extension of time to be granted, and therefore, the motion is dismissed.

[26] I am grateful to counsel for their helpful submissions.

“L. Sossin J.A.”