Court of Appeal for Ontario
Date: 2025-03-19
Docket: COA-23-CR-0231
Coram: Peter Lauwers, L.B. Roberts, Benjamin Zarnett JJ.A.
Between:
His Majesty the King (Respondent)
and
Milad Babadi (Appellant)
Appearances:
Milad Babadi, acting in person
Nicholas Hay, for the respondent
Heard: March 3, 2025
On appeal from the convictions entered on January 16, 2023 by Justice John T. Lynch of the Ontario Court of Justice, and from the sentence imposed on February 10, 2023.
Reasons for Decision
Overview
[1] Based on pleas of guilty, the trial judge convicted the appellant, Mr. Babadi, of uttering threats to cause bodily harm to two victims, W.D. and A.S., contrary to s. 264.1(1)(a) of the Criminal Code, RSC 1985, c C-46, and of criminal harassment of three victims, J.M., W.D. and A.S., contrary to s. 264(1) of the Code.
[2] The trial judge suspended the imposition of sentence and made an order placing the appellant on probation for three years. He also made ancillary orders including a ten-year weapons prohibition and a requirement that the appellant provide DNA samples.
[3] The appellant appeals his convictions, and requests leave to appeal sentence. He asserts he received ineffective assistance from his trial counsel and that his guilty pleas were not informed or voluntary.
[4] Fresh evidence was filed on the ineffective assistance of counsel claim, consisting of two affidavits of the appellant, an affidavit of trial counsel, and a transcript of the cross-examination of trial counsel. We admit the fresh evidence but dismiss the appeal.
[5] The appellant has not met his onus to show he received ineffective assistance from trial counsel. The appellant confirmed to trial counsel that he had sent the texts and made the phone calls that formed the subject matter of the charges and that he had wanted the victims to take his threats seriously (even though he did not actually intend to carry them out). Although there was information that the appellant had mental health challenges, trial counsel made the reasonable evaluation that the information could be used in mitigation of sentence but not to support a defence that the appellant was not criminally responsible (NCR) for the offences. He negotiated a resolution that involved, among other things, the Crown not seeking a custodial sentence for those offences.
[6] Trial counsel gave appropriate advice to the appellant concerning the ramifications of the guilty pleas, underscoring that the choice to plead guilty was the appellant’s. There is no evidence that either trial counsel, or the Crown, pressured the appellant. Although it would have been better if the trial judge had conducted his own plea inquiry, his failure to have done so does not affect the validity of the pleas.
[7] Nor have any grounds been advanced that would justify interfering with the sentence that was imposed.
Background
(1) The Guilty Pleas
[8] In addition to charges of criminal harassment and uttering threats, at the time of his guilty pleas the appellant was also facing a child pornography charge.
[9] After negotiations between trial counsel and Crown counsel, and a judicial pre-trial, a proposed resolution surfaced. It involved the appellant pleading guilty to one count of uttering threats and criminal harassment, no custodial time, three years’ probation, and the child pornography charge being adjourned with the prospect of it being dropped if the appellant did well on probation. To be left open for argument were whether there would be a suspended sentence (the Crown’s position) or a conditional discharge (the defence request), and the ancillary orders that would be made.
[10] The matter came before the trial judge on January 16, 2023.
[11] Trial counsel advised the trial judge that, “I understand that [the appellant] will be entering a plea of guilty to one count of criminal harassment and one count of uttering threats”. He also advised the trial judge that, “I can indicate, sir, that I have gone through many times but I want to confirm again – Mr. Babadi is present, we have done a plea inquiry. He understands that by entering a guilty plea in this matter … that he is giving up his right to a trial, he’s accepting the anticipated facts in this matter and he understands that sentencing remains within Your Honour’s discretion. He is also aware [of] the anticipation [that] the one charge of child pornography once this matter is completed will be adjourned… to a future date for him to hopefully show that he has performed well on the anticipated probation order that will be imposed in this matter, sir”. Trial counsel then asked the appellant: “Is that all correct, Milad?” To which the appellant replied: “Yes, sir.”
[12] The appellant was then arraigned on the uttering threats and criminal harassment charges. He responded “guilty” when asked how he pled to each.
[13] Crown counsel then described the circumstances of the offences as they pertained to each complainant:
(a) On or around April 25, 2021, the appellant contacted W.D. through a dating application. He used only a first name and a fake profile picture. They communicated through the platform, before proceeding to text and talk on the telephone. The appellant expressed fetishes to W.D. in which W.D. was not interested. On April 27, 2021, W.D. began to suspect the appellant was not who he said and asked for proof of identity. The appellant became enraged, sent threatening texts to W.D and called incessantly, repeating the threats and saying he would attend W.D.’s workplace. In fear of her safety, W.D. contacted the police.
(b) On May 16, the appellant contacted J.M. through the same dating application. He again used only a first name and fake picture. The appellant and J.M. similarly began communicating over the phone and by text. J.M. similarly began to suspect the appellant was not who he claimed, and asked the appellant to stop contacting her; nevertheless, the appellant continued. J.M. contacted the police.
(c) On June 5, 2021, the appellant contacted the third victim, A.S. through the same dating application. He again used only a first name and a fake photo. A.S. blocked the appellant, but he texted her from a different number threatening to post nude photos of A.S. on her street and to knock on every door in her neighbourhood asking where she lived. In fear of her safety A.S. reported the matter to the police.
[14] Trial counsel then acknowledged the facts as correct, adding that the appellant had mental health issues. He said: “Those facts are acknowledged – [at] the time my client had significant mental health issues, sir, that I will be addressing on sentencing. They do not rise to an absolute defense in my respectful submission, but they were certainly – I will be arguing, a mitigating factor in this matter, sir, but the facts are acknowledged”.
[15] The trial judge then found the appellant guilty stating: “Mr. Babadi, based on your guilty pleas and your acknowledgment of the facts through your Counsel there are findings of guilt with respect to each of the two counts.”
(2) The Sentencing Hearing
[16] As presaged by trial counsel at the time of the guilty pleas, the appellant’s mental health was referred to at the sentencing hearing on February 10, 2023.
[17] Trial counsel provided the trial judge with medical reports – a letter from a physician, a copy of a Form 42 Mental Health Act dated June 8, 2022, and a discharge report dated June 21, 2022.
[18] When addressing the court trial counsel relied, among other things, on the appellant’s “significant mental health issues” and the link between them and the offences. He referred to the appellant’s “difficulty in relationships and in particular, in understanding social cues”, and his diagnosis of Autism Spectrum Disorder giving rise to problems with social communication. He also referred to the appellant’s diagnosis of schizophrenia and delusional disorder. He summarized his position: “So these are all very significant matters that in my respectful submission, the court ought to take into account. And while they are – do not provide, and I'm not asserting that they are defenses to the charges, that they very much diminish his moral responsibility with respect to the offences.”
[19] When the appellant addressed the trial judge at the sentence hearing he stated that at the time of the offences he was suffering from “severe mental health, a psychiatric disorder that was ongoing for years”. He also said, among other things:
I am taking full responsibility for my action that caused by the victim to suffer mental and emotional. I do not like to – blame anyone and makes excuses for my action because it was unacceptable by law. And I will to never repeat them.
My action were inappropriate and I feel [indiscernible] so I feel very bad for my unwanted action which I must not never supposed to happen. And I will be taking the appropriate counselling.
So all I can say to the victim that there is no part me that thinks that that was the right thing to behave. I recognize that my offensive behaviour and thoughtless action were wrong. I will cease my communication through text messages and phone calls with all the victims permanently which I have stopped a long time ago.
[20] The trial judge, in his reasons for sentence, also referred to the appellant’s mental health issues, noting that, “as [trial counsel] had pointed out, those are significant when looking at him as an individual, at his level of responsibility for these offences and I have to do a weighing act.”
[21] The trial judge, after considering the circumstances, including victim impact statements that spoke to the severe effect of the appellant’s conduct on the victims, suspended the imposition of sentence and made an order placing the appellant on probation for three years along with the ancillary orders referred to in paragraph 2 above.
Analysis
[22] In order to establish his claim of ineffective assistance of counsel, the appellant must overcome the strong presumption that counsel is competent. He must: (1) establish on the balance of probabilities the material facts the claim is grounded upon (the “factual component”); (2) demonstrate the incompetence of the representation provided by counsel by showing that it fell below a standard of reasonable professional judgment (the “performance component”); and (3) show that the ineffective assistance caused a miscarriage of justice, either by resulting in an unreliable verdict, or by undermining trial fairness (the “prejudice component”): R. v. Nnane, 2024 ONCA 609, para 9.
[23] In our view, none of these components are made out.
[24] The appellant complains that trial counsel did not put forward evidence of his mental health condition or advance a NCR defence.
[25] The first criticism is factually wrong to the extent it asserts that trial counsel did not use the evidence of mental health concerns at all. The evidence of trial counsel is that the appellant provided him with some reports relating to his mental health issues, and they were provided to the Crown and the court. The exhibits to trial counsel’s affidavit confirm that he sent the reports to Crown counsel before the judicial pre-trial. The transcript of the guilty pleas shows that trial counsel referred to mental health issues, describing them as a matter that would be addressed at sentencing. The transcript of the sentencing hearing confirms that medical reports were provided to the court and that trial counsel made submissions about them and the effect they should have on the sentence imposed. The reasons for sentence show the trial judge took them into account.
[26] As for the second point – not mounting an NCR defence – trial counsel explained in his cross-examination that he did consider the appellant’s mental health to be a mitigating factor and used the medical reports in plea negotiations and sentencing. However, the reports which he was given and his discussions with the appellant did not satisfy him that there was a basis to argue that the appellant was NCR at the time of the offences. We do not consider this conclusion to have been unreasonable.
[27] The NCR defence is codified in s. 16(1) of the Code which states: “No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.” None of the reports or other information provided to trial counsel said that at the time of the offences the appellant was incapable of appreciating the nature and quality of the acts he committed or of knowing that they were wrong. We accept trial counsel’s evidence that what the appellant told him in their discussions was not consistent with an NCR defence, because that is confirmed by what the appellant said at the sentencing hearing. The appellant took responsibility for what he had done and told the court that he appreciated it was wrong. He explained that “there is no part me that thinks that that was the right thing to behave. I recognize that my offensive behaviour and thoughtless action were wrong.”
[28] The appellant criticizes trial counsel for not searching out additional materials to confirm or establish that he was NCR. We see no merit in that criticism. The appellant has not established that an additional search would have yielded anything. He has not filed any fresh reports that were unavailable at the time that suggest he was NCR at the time of the offences.
[29] The appellant suggests that his pleas were not voluntary because he had last minute doubts that were not addressed by trial counsel, and he wanted to get a second opinion. The appellant has not met his burden to prove those facts.
[30] Trial counsel testified that before the date of the pleas he reminded the appellant that it was entirely up to him whether he entered pleas of guilty. This is confirmed by an email that trial counsel sent to the appellant, dated January 13, 2023 (the Friday before the guilty pleas) stating: "No one can force you to plead Monday … As I said, no one can make you plead, but the risk is the crown will withdraw this agreement after Monday. That is your choice." There was no written response to that email. Trial counsel also testified that they reviewed this again on the morning of the hearing at which the pleas were entered and that the appellant told trial counsel he wanted to take the resolution offer and plead guilty. This is the more plausible version, because it is consistent with what occurred before the trial judge at the time of the guilty pleas and then at sentencing.
[31] At the hearing of this appeal, without objection from the Crown, the appellant handed up a copy of an email from another lawyer dated November 7, 2022 explaining to the appellant what would be required for that lawyer to provide an opinion. There is no evidence, however, that the appellant followed up on this, or that he was waiting for or expecting another opinion at the time of the guilty pleas.
[32] We therefore reject the argument that the appellant received ineffective assistance of counsel.
[33] We also reject the argument that even aside from the ineffective assistance of counsel claims, the pleas were not voluntary. Although the trial judge did not himself conduct a plea inquiry, that failure does not affect the validity of the pleas: Code, s. 606(1.2). Trial counsel, in the presence of the trial judge, confirmed that he had conducted such an inquiry with the appellant, and did so again in court. The appellant was asked, in the presence of the trial judge, to confirm that he was pleading voluntarily and on an informed basis, which he did. The fact that the appellant voiced no concerns at the time of the guilty pleas or even at sentencing is significant: R. v. Khan, 2023 ONCA 593, para 4. The appellant’s comments at sentencing, when he said: “I recognize that my offensive behaviour and thoughtless action were wrong,” belies the lack of voluntariness.
[34] The appellant was clearly told that he did not have to plead guilty. He points to having been told there was a risk that the proposed resolution of his charges might not remain available if he did not plead guilty. This does not constitute pressure of the type that could displace the presumption that a plea is voluntary: R. v. Gibbs, 2022 ONCA 816, para 5.
Disposition
[35] For these reasons, the appeal against conviction is dismissed. No grounds were advanced to suggest that the sentence was either unfit or that the trial judge’s reasons were tainted by any error in law or principle that had an impact on sentence. Accordingly, leave to appeal sentence is denied.
[36] Although the appellant’s mental health issues and the way trial counsel addressed those were central to his position on the appeal, the appellant asked, in his written materials, for a sealing order and a prohibition on publication of any information in the appellate record that contains his private medical and psychiatric information on the basis that its dissemination would cause severe and irreparable harm to his dignity and privacy.
[37] That request is refused. No sealing order or publication ban relating to such information was sought or made in the trial court. The information in the appellate record on these topics overlaps with information that was publicly filed and referred to below. There is a strong presumption in favour of open courts, which can only be limited where there is a demonstrated and serious risk to an important competing public interest: Sherman Estate v. Donovan, 2021 SCC 25, para 63. Such circumstances are not present here. Moreover, the discretion to impose these types of orders for the first time at the appeal level is exceptional: R. v. Reimer, 2024 ONCA 588, para 2.
[38] The Crown does not take issue with sealing the ineffective assistance of counsel record in the same manner as it would be if the appeal had been in the solicitor stream, pursuant to s. 17(15) of the Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario. That record shall remain sealed, subject to further orders of the court and subject to the references we have made to it in these reasons which were necessary to explain the result.
“P. Lauwers J.A.”
“L.B. Roberts J.A.”
“B. Zarnett J.A.”
Endnotes
[1] The presumption in this case is underscored by the fact that the appellant sent trial counsel an email on June 19, 2023, after his guilty plea and sentencing, referring to trial counsel’s excellent representation, being a “tremendous advocate” for him, and praising how he skillfully handled every aspect of the case. Furthermore, even in preparing for his appeal, the appellant once again praised trial counsel. He wrote to trial counsel on September 5, 2023 “with regards to the case where you so diligently represented me as my criminal defense lawyer” explaining that his “expertise and support during my trial were invaluable, and as I embark on this appeal, I once again find myself in need of your assistance.”
[2] The appellant also makes assertions that trial counsel did not properly investigate the factual allegations against him. We see no merit in those assertions.
[3] The appellant made a request, at the outset of the hearing of the appeal, that he be allowed to file a third affidavit. The Crown objected on the basis that the affidavit was being tendered without any opportunity for trial counsel to respond and well after he was cross-examined. The appellant also asked that we order production of videos of his statement to the police and the complainants’ statements to the police, as well as any video of a complainant giving a gift card to the police. This request was also not timely; nor was there evidence that all proper disclosure had not been made when trial counsel was acting. Those requests are also dismissed.