Court of Appeal for Ontario

Date: 2025-07-18
Docket: COA-25-OM-0235

Judge: L.B. Roberts (Motions Judge)

Between:
His Majesty the King (Respondent/Responding Party)
and
James Cole (Appellant/Moving Party)

Appearances:
Eric Granger, for the moving party
Catherine Weiler, for the respondent Crown

Heard: 2025-07-11

Endorsement

Introduction

[1] Mr. Cole seeks an order extending the time to file a notice of appeal from his convictions and sentence for dangerous driving. The Crown opposes the extension.

Background

[2] On April 18 and May 15, 2017, pursuant to a plea bargain, Mr. Cole pled guilty to three counts of dangerous driving contrary to s. 249 of the Criminal Code, failing to stop for police contrary to s. 249.1 of the Criminal Code[^1], and to five other charges. Nine charges were withdrawn by the Crown.

[3] These were very serious charges that stemmed from incidents that occurred on different days over a three-week period in 2016 while Mr. Cole was on probation for a 2015 conviction for impersonating a police officer. According to the Agreed Statement of Facts read in at the hearing, the offences involved Mr. Cole driving his motorcycle erratically and at an extremely high rate of speed on residential streets, pointing what was later revealed to be a starter pistol at other drivers and residents, running red lights past busy intersections, and fleeing from police when signaled to stop. It is fortunate that no one was hurt as a result of Mr. Cole’s conduct.

[4] On May 15, 2017, the sentencing judge accepted the joint submission that Mr. Cole receive a global two-year custodial sentence, two-years’ probation, and, among other orders, a 2.5-year driving prohibition. As his counsel advised the court, at the time of the incidents, Mr. Cole was in the throes of a serious cocaine addiction that contributed to his commission of the offences. He asked to serve a higher sentence in a federal penitentiary in order to have access to the drug treatment he needed to rehabilitate. Mr. Cole was in custody from May 15, 2017, until he was released on statutory release on September 14, 2018.

Discovery of Collateral Consequence

[5] According to his affidavit, it was not until July 2020 that Mr. Cole first learned that his guilty plea to the counts of dangerous driving and failing to stop for police triggered an automatic lifetime driving suspension under s. 41(1)(h) of the Highway Traffic Act (“HTA”).

[6] The relevant portions of s. 41(1) of the HTA for this motion are as follows:[^2]

(1) The driver’s licence of a person who is convicted of an offence,

(b) under section 249, 249.1 …of the Criminal Code (Canada) committed while driving or having the care, charge or control of a motor vehicle ….

is thereupon suspended....

(f) upon the first conviction, for one year;

(g) upon the first subsequent conviction, for three years; and

(h) upon the second subsequent conviction or an additional subsequent conviction, indefinitely. [Emphasis added.]

The Motion and Legal Principles

[7] Mr. Cole argues that his plea was uninformed and involuntary because he and his counsel, as well as the Crown and the court, were unaware that his guilty plea would result in an automatic lifetime driving suspension under the HTA. He deposes that if he had known of this consequence, he would not have pleaded guilty but would have negotiated a different resolution or proceeded to trial on the charges.

[8] The overarching consideration on this motion is whether the requested extension is in the interests of justice. Typically informing that consideration are the following factors: 1) the timely formation of an intention to appeal; 2) the length of and explanation for the delay; and 3) the merits of the proposed appeal: R. v. Menear, para 20. Other factors may also be relevant, such as: whether the consequences of the conviction are out of all proportion to the penalty imposed; whether the Crown will be prejudiced; and whether the moving party has taken the benefit of the judgment: Menear, at para. 21.

Analysis

[9] Given that there is evidence that Mr. Cole was unaware of the indefinite licence suspension until July 2020, it is the delay from that date that is pertinent to this analysis. I am persuaded that Mr. Cole formed a timely intention to appeal once he became aware of the indefinite suspension of his licence and made inquiries to Service Ontario. Thereafter, it appears that Mr. Cole only took other steps with his uncle in August 2022 and with his mother in September 2024. He consulted lawyers in October 2024 and then retained his present lawyer in 2025 who instigated this extension motion.

[10] The delay is long. As Mr. Granger fairly acknowledged, the longer the delay, the more difficult the retrial of these charges will be for the Crown. Moreover, there is no explanation for the gaps in Mr. Cole’s efforts. However, it does not appear that Mr. Cole was advised or aware that he could bring this extension motion until he consulted his present lawyer. That noted, I am not persuaded that Mr. Cole deliberately delayed or gave priority to or chose to pursue other matters: Menear, at para. 23. The length of the delay, by itself, is not determinative, as extensions of time have been granted in the case of lengthy delays. As this court noted in Menear at para. 24: “Courts have granted an extension of time to allow an accused to attempt to set aside a guilty plea notwithstanding lengthy unexplained delay where there are unexpected consequences of the conviction and there is good reason to doubt the validity of the conviction.”

[11] As for the merits of the proposed appeal, there is a strong inference to be drawn from the transcripts of the guilty plea and sentencing hearings that none of the participants turned their minds to the HTA automatic licence suspension consequence that was triggered by the guilty plea to four offences covered under s. 41(1) of the HTA [now s. 41(4)]. The fact that the court registrar read out the standard caution concerning the HTA does not detract from this inference given that there was no mention of s. 41(1). Rather, all the participants, including the court, appear to have been of the view that Mr. Cole’s suspension would be for 2.5 years as indicated on the indictment. This is not the case where a lifetime driving prohibition was considered to be necessary as part of the sentence: the participants spoke of a 2.5-year prohibition that Mr. Cole could seek to reduce if he showed sufficient drug rehabilitation. As a result, Mr. Cole’s argument that his plea was uninformed has merit.

[12] A guilty plea is only final if it is “informed, voluntary and unequivocal”: R. v. Wong, 2018 SCC 25, para 3. In order for the plea to be informed, the accused must understand any “legally relevant collateral consequence … which bears on sufficiently serious legal interests of the accused”: R. v. Raj, 2022 ONCA 703, para 17, citing Wong, at para. 4. The HTA automatic lifetime driving prohibition is a significant collateral consequence. As this court noted in R. v. Quick, 2016 ONCA 95, para 30: “an accused’s unawareness of a driver’s licence suspension under provincial legislation for a Criminal Code driving offence is a clear example of a collateral consequence that may render a plea uninformed.”

[13] That, however, is not the end of the inquiry as to whether a guilty plea should be set aside. An uninformed plea by itself does not automatically result in a guilty plea being set aside. The appellant must also prove on a balance of probabilities that he was subjectively prejudiced by the uninformed plea meaning that “but for the error, he would have opted for a trial and not pleaded guilty or would have pleaded guilty but with different conditions”: Quick, at para. 18.

[14] As Crown counsel highlights, this was a carefully crafted guilty plea. Mr. Cole received the benefit of the withdrawal of nine charges and a sentence that would allow him to obtain the drug rehabilitation treatment he needed while he was prohibited from driving. While Mr. Cole has provided evidence potentially supporting a finding of subjective prejudice, given the seriousness of the offences, it is uncertain whether the Crown would have agreed to a different plea bargain and whether, if the matter went to trial, Mr. Cole would have avoided convictions on the same charges, failing which the automatic licence suspension would once again be triggered.

[15] The difficulty on this motion is that we are working in an evidentiary vacuum. If the extension of time is granted to file a notice of appeal, Mr. Cole and the Crown will likely seek to file fresh evidence on the appeal to explain whether there was any misapprehension by the Crown and Mr. Cole’s former counsel as to the HTA consequences of which Mr. Cole says he was unaware, as well as whether Mr. Cole’s former counsel advised Mr. Cole of those consequences. I did not understand the Crown to be unable to marshal that evidence, as well as evidence in support of the charges if the appeal is allowed, if it wishes to do so, and therefore do not see any prejudice in that respect.

Conclusion

[16] As I earlier indicated, the overarching consideration is whether the justice of the case warrants the extension. I am persuaded that it does.

[17] I am satisfied that Mr. Cole meets the criteria of adequately explaining the delay and that he has put forward arguable grounds of appeal – determining whether or not they ultimately succeed is not my role on this motion. The prejudice that Mr. Cole faces if the extension is not granted outweighs the possibility of prejudice to the Crown’s position if the notice of appeal is filed and the appeal is allowed. Importantly, with respect to the issue of prejudice, there does not appear to be any other recourse open to Mr. Cole to seek a reduction of the prohibition under the HTA. This contrasts with the procedure available when the lifetime prohibition is imposed under the Criminal Code, which is inapplicable here. In the latter case, an application could be made after 10 years to the Parole Board for a reduction of the prohibition under s. 109 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. There is a significant difference between a lifetime licence suspension imposed under the HTA and a lifetime driving prohibition imposed under the Criminal Code: R. v. Darosa, 2025 ONCA 232, paras 56-58.

[18] For these reasons, I grant the motion to extend the time to file a notice of appeal. Mr. Cole shall do so within 30 days of the release of these reasons.

[19] I thank counsel for Mr. Cole and the Crown for their very helpful submissions.

“L.B. Roberts J.A.”

[^1]: These were the Criminal Code provisions in place at the time the offences occurred and when Mr. Cole was convicted and sentenced. They were repealed in 2018 and replaced with s. 320.13 and 320.17. Nothing turns on these changes.

[^2]: The provisions referred to above were in effect at the time of the offences, Mr. Cole’s guilty plea and sentence. Nothing turns on these changes.