Court of Appeal for Ontario

Citation: R. v. Rodney, 2025 ONCA 50 Date: 2025-01-21 Docket: COA-25-OM-0003

Before: Lauwers J.A. (Motion Judge)

Between:

His Majesty the King Respondent

and

Omari Rodney Applicant/Appellant

Counsel: David Hakim, for the applicant/appellant Catherine Weiler, for the respondent

Heard: in writing

Endorsement

[1] The applicant was convicted on December 1, 2023[^1] after a trial before Rose J. of the following offences under the Criminal Code, R.S.C. 1985, c. C-46:

• Possession of a prohibited firearm per s. 91(1) (stayed);
• Possession of a loaded prohibited firearm per s. 95(1);
• Carrying a firearm carelessly per s. 86(1);
• Carrying a concealed weapon per s. 90(1);
• Possession of a firearm with serial number altered per s. 108(1);
• Possession of a firearm while prohibited per s. 117.01;
• Possession of a controlled substance for the purpose of trafficking per s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19; and
• Possession of property obtained by crime.

[2] The applicant absconded around December 15, 2023, as noted when his sureties applied to revoke bail. On April 11, 2024[^2], he was sentenced in absentia to 6.5 years less 16 months pre-sentence custody (resulting in a net sentence of 5 years and 2 months). His trial counsel was appointed amicus and participated in the sentencing on his behalf.

[3] The applicant was arrested on July 8, 2024 and charged with possessing drugs (methamphetamine) and a weapon (brass knuckles), but he was released as the result of a system error. The Crown eventually withdrew these charges. The applicant remained at large until he was arrested on a s. 475(1) warrant on August 7, 2024, and was then charged with more drug offences, including possessing cocaine and fentanyl for the purposes of trafficking. His actions post-trial only underline his persistent criminality.

[4] The applicant now asks this court for an extension of time to file a notice of appeal to seek leave to appeal from his sentence issued on April 11, 2024, nearly eight months after the 30-day appeal period in r. 8(3) of the Criminal Appeal Rules, SI/93-169, expired. I dismiss the motion for the reasons that follow.

The Governing Principles

[5] The applicant bears the onus of satisfying the court that the justice of the case requires the extension of time to be granted: see R. v. Menear (2002), 2002 CanLII 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 116. The following considerations apply:

• whether the applicant has shown a bona fide intention to appeal within the appeal period;
• whether the applicant has accounted for or explained the delay in filing the notice; and
• whether the proposed appeal has merit: Menear, at para. 20.

[6] These considerations do not comprise a rigid test or absolute rule: R. v. Junkert, 2009 ONCA 922, at para. 23.

[7] The Crown disputes the applicant’s timely intention based on the fact that he absconded and on the record of his efforts to appeal. She states:

The applicant claims he first formed an intention to appeal when he learned about the length of the sentence Rose J. imposed from his trial counsel/amicus after he was arrested on August 7, 2024. His actions somewhat undercut this, however, since he did not ask his trial counsel how to appeal when notified about his sentence and he filed no notice of appeal for another five months.

The applicant’s steps to obtain funding for an appeal began only while he was imprisoned and serving his sentence. His affidavit indicates he began the process for obtaining legal aid funding on August 14, 2024. His application for funding was approved on October 23, 2024 and he met with his appeal counsel on October 30, 2024. His appeal counsel reached out to the Crown seeking consent for an extension of time starting on November 6, 2024.

[8] I agree. The applicant also failed to provide a satisfactory explanation for the delay.

[9] On the merits of the appeal as advanced by the applicant, the first ground is that the trial judge erred in treating the applicant’s lack of insight as an aggravating factor. I agree with the Crown that the complaint bears little weight because it carried little weight in the trial judge’s analysis. The use of lack of insight or remorse as an aggravating factor, absent unusual circumstances, is an error in law: R. v. Siddiqi, 2015 ONCA 548, at para. 23; R. v. Ling, 2014 ONCA 808, at para. 12. However, the trial judge referenced insight in discussing both the aggravating and mitigating factors. Under the aggravating factors heading, at para. 18, the trial judge merely mentioned that “[t]here is no evidence of insight by Mr. Rodney.” In addressing mitigating factors, the trial judge properly engaged with the issue of insight, finding the applicant’s “lack of insight in the face of such a supportive family leads to my finding that his rehabilitative prospects are minimal”: at para. 21.

[10] Next, the trial judge directly addressed the issue of anti-Black racism, which is the second proposed ground of the appeal. The trial judge noted, at para. 12, that the presented evidence of anti-Black racism did not demonstrate any connection, or contribution, to the applicant’s criminal record. In line with this court’s jurisprudence in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 97, there must be “some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue.” There was no connection on these facts.

[11] Finally, the principle of restraint advanced as the third ground of appeal is only engaged in a minor way; the applicant had been convicted of several offences before these and he is obviously escalating in his criminality. He was also on a s. 109 weapons prohibition at the time of his arrest.

[12] The remaining issue is the fitness of the sentence. The scope for sentence review by this court is limited under R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39-41. While the sentence might be at the high end of the range, it is not beyond the range.

[13] I adopt the approach taken by Huscroft J.A. in R. v. Chang (18 May 2023), Toronto, COA-23-OM-0133 (Ont. C.A.). Like Chang, the applicant absconded and was at large on drug and firearm offences. The justice of the case does not require that an extension of time be granted to allow this late appeal to be brought: see e.g., R. v. Dzambas (1973), 1973 CanLII 1389 (ON CA), 14 C.C.C. (2d) 364 (Ont. C.A.); R. v. Noddle, 2016 BCCA 164, at paras. 6-7, leave to appeal refused, [2017] S.C.C.A. No. 319.

[14] The motion is dismissed.

“P. Lauwers J.A.”

[^1]: R. v. Rodney, 2023 ONCJ 526 [^2]: R. v. Rodney, 2024 ONCJ 179