COURT FILE NO.: 17-7815 DATE: 20181130
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – BERNARD MOMPREVIL Appellant
Counsel: Moiz M. Karimjee, for the Crown Unrepresented
HEARD: November 21, 2018
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
Aitken J.:
Nature of Proceedings
[1] The Appellant, Bernard Momprevil, seeks leave for an extension of time to file a notice of appeal and, if leave is granted, he appeals his conviction and sentence following his guilty plea for breach of probation before Boxall J. of the Ontario Court of Justice on January 18, 2018.
Chain of Events
[2] On January 18, 2018, a preliminary hearing was scheduled for the Appellant before Loignon J. of the Ontario Court of Justice in regard to one count of criminal harassment and three counts of breach of a probation order from an earlier sentence imposed on March 2, 2017 for criminal harassment against the same victim. At the time of the preliminary hearing, the Appellant was in custody.
[3] Prior to the commencement of the preliminary hearing, Crown counsel advised the Appellant and the counsel appointed to cross-examine witnesses under s. 486.3(3) of the Criminal Code, R.S.C. 1985, c. C-46 that a witness did not want to testify. After a brief recess, Crown counsel raised the possibility of a judicial pre-trial being held in an effort to resolve the matter. The Appellant agreed to participate in a judicial pre-trial, and he agreed to have the order that had been made under s. 486.3(3) of the Code amended to allow the counsel appointed under that section to assist him during the pre-trial discussions.
[4] The judicial pre-trial proceeded before Boxall J. During the pre-trial, Crown counsel advised that, after meeting with the Crown’s witnesses that morning, it appeared that the Crown would have a hard time proving the criminal harassment charge. That left two counts of breach of probation for communicating indirectly with people that the Appellant was not supposed to be communicating with under the terms of the March 2, 2017 probation order, and one count of breach of probation for failure to keep the peace and be of good behaviour. Crown counsel proposed that the Appellant plead guilty to breach of probation for failure to keep the peace, with the remaining counts on the indictment being withdrawn. Crown counsel proposed a sentence of 60 to 90 days, with the Appellant being credited with 48 days of pre-sentence custody.
[5] Boxall J. took the time to explain to the Appellant the options available to him in terms of proceeding with the preliminary hearing and eventually having a trial, or attempting to resolve matters that day by his pleading guilty to one count of breach of probation. He explained the limited role of the preliminary hearing judge and the reality that the preliminary hearing judge could not consider any Charter [1] violations that might be alleged by the Appellant. After a fulsome discussion of various concerns on the Appellant’s part, the Appellant agreed that he wanted to get matters resolved that day. There were further discussions about an appropriate sentence, with the s. 486.3(3) counsel suggesting a range of 45 to 60 days, and the Appellant seeking time served. The Appellant stated that, if he were given a sentence of time served, he wanted to be released from the Ottawa Carleton Detention Centre so that he could collect his “stuff” and say good-bye to the “boys”. The Appellant indicated that he was content to plead guilty to one count of breach of probation with Boxall J. deciding on the appropriate sentence.
[6] Court resumed before Boxall J. so that the Appellant could plead guilty to the one count. Crown counsel re-elected a trial by way of summary conviction. The Appellant pled guilty to count four on the indictment, failure to keep the peace, with the facts supporting the guilty plea being that:
- The Appellant was subject to a probation order imposed by Bourgeois J. on March 2, 2017, one term of which was to keep the peace and be of good behaviour.
- One condition of the probation order was for the Appellant not to associate or communicate in any way, or be in the company of, a number of named persons.
- The Appellant had extensive electronic communications with Crystal Duncan – a person who knew the other individuals named in the probation order.
- Ms. Duncan asked the Appellant to stop communicating with her, but the Appellant persisted with his communications.
[7] On the basis of these facts, agreed to by the Appellant, Boxall J. found the Appellant guilty of one count of breach of probation for failure to keep the peace and be of good behaviour. In the course of discussions in the courtroom, the Appellant confirmed that he had understood all along that he was not to communicate “directly or indirectly” with the individuals named in the probation order.
[8] The Appellant’s extensive criminal record was entered into evidence.
[9] Boxall J. sentenced the Appellant to time served plus three days of custody so that the Appellant could return to the Ottawa Carleton Detention Centre to be released. When asked how that sounded, the Appellant said “perfect”. Boxall J. also made a three-year probation order with the usual statutory conditions; a condition that the Appellant not communicate, directly or indirectly, in any way, physically, electronically, or by other means, with Crystal Duncan; and a condition that the Appellant not associate with Crystal Duncan. A number of times at the end of the hearing, the Appellant said “no problem” and “thanks”.
[10] On February 13, 2018, the Appellant completed a Notice of Appeal which was filed with the Court of Appeal for Ontario on March 12, 2018. In that Notice of Appeal, the Appellant referred to an earlier notice of appeal that he had prepared and that he feared had been tampered with by “the jail”. That earlier notice was not entered into evidence and there was no evidence as to where and when that notice may have been filed.
[11] The Notice of Appeal dated February 13, 2018 was eventually filed with the Superior Court of Justice in Ottawa on July 16, 2008.
Grounds of Appeal
[12] The only document submitted by the Appellant in regard to this appeal is the Notice of Appeal. The handwritten document is difficult to read. My understanding is that the Appellant is alleging that Boxall J. gave him wrong advice and lied to him in regard to how his case might unfold on a go-forward basis.
[13] Crown counsel, in a very helpful fashion, provided the court with an Appeal Book, Factum, and Book of Authorities.
[14] Despite the Appellant not complying with the rules of court in regard to summary conviction appeals, the Appellant was permitted to make oral argument on the appeal, without limitation.
Issue #1: Should the court grant an extension of time to file the Notice of Appeal?
[15] Under r. 40.05(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) [the Rules], SI/2012-7, the Notice of Appeal in this matter was to be served and filed in the Superior Court of Justice within 30 days after the day on which the sentence was imposed. The sentence was imposed on January 18, 2018 and the Notice of Appeal filed on July 16, 2018.
[16] Under rr. 3.02 and 40.03(1) of the Rules, the 30-day time limit may be extended by a judge, before or after the expiration of the 30 days, on such terms as are just.
[17] In R. v. Menear (2002), 162 C.C.C. (3d) 233 (Ont. C.A.), at para. 21, the court noted that the Appellant bears the onus of establishing that justice requires that an extension of time be granted. At paras. 20-22 of that decision, the court identified various factors relevant to the exercise of the court’s discretion to grant an extension of time:
There is no absolute rule to be applied in the exercise of the discretion whether or not to grant an extension of time. The court will, however, usually consider the following three factors:
i. whether the applicant has shown a bona fide intention to appeal within the appeal period; ii. whether the applicant has accounted for or explained the delay; and iii. whether there is merit to the proposed appeal.
Depending on the case, the court may take into consideration other factors 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 applicant has taken the benefit of the judgment.
[18] The Appellant has not provided any evidence to support his bona fide intention to appeal within the appeal period. He made a vague reference to a Notice of Appeal that he had completed at the Ottawa Carleton Detention Centre immediately upon his return to the Centre after his court appearance on January 18, 2018, but a copy of this document was not produced and no explanation was offered as to why he would have started an appeal process immediately upon leaving court after he had repeatedly expressed being content to enter a plea of guilty to one count of breach of probation and to receive the lenient sentence of time served plus (at his request) three days of custody.
[19] The Appellant offered no explanation as to why he did not file a Notice of Appeal until after the expiration of the 30-day time limit. The Notice of Appeal was first filed on March 12, 2018 – albeit in the wrong court. The Appellant provided no evidence as to why it took from March 12, 2018 to July 16, 2018 for the Notice of Appeal to finally be filed with the Superior Court of Justice.
[20] Of great significance is the fact that the Appellant has failed to show “an appreciable promise of success” on the appeal, if the extension of time is granted. In fact, the Appellant has not advanced any arguments which offer a glimmer of hope for a successful appeal. A review of the transcripts from the commencement of the preliminary hearing before Loignon J., the judicial pre-trial before Boxall J., and the taking of the guilty plea before Boxall J., show that, at all times, the Appellant was treated with consideration and respect.
[21] Quite appropriately, Crown counsel advised the court and the Appellant as soon as it became apparent that one of the Crown witnesses did not want to testify at the preliminary hearing. Crown counsel made it clear that, in her view, her chances of success in regard to the criminal harassment charge, were greatly reduced.
[22] The Appellant was asked whether he wished to proceed with the preliminary hearing or whether he preferred to have a judicial pre-trial in an effort to resolve all matters. He chose the latter option. The Appellant was given the option to have additional assistance from the counsel appointed under s. 486.3(3) of the Code during the course of the resolution discussions, and he chose to benefit from the aid of the counsel at that time.
[23] During the judicial pre-trial, Boxall J. accurately and fairly set out the options available to the Appellant. It was his obligation to do so. There was nothing inappropriate or incorrect in Boxall J. setting out the limited role of a judge presiding at a preliminary hearing, the low bar to be met for a matter to proceed to trial, and the inability of the judge at the preliminary hearing to deal with alleged Charter violations. It was appropriate for Boxall J. to explain the consequences for the Appellant if the preliminary hearing was held and the Appellant was committed to stand trial on one or more counts. Those consequences included the further lapse of time during which the Appellant would be incarcerated. It was appropriate for Boxall J. to provide his assessment of the likelihood of the Appellant’s Charter arguments at trial. In providing this assessment, Boxall J. was clear that he could not predict with absolute certainty what would happen; he could only offer his opinion as to the likelihood of success. During this interchange with the Appellant, the counsel appointed under s. 486.3(3) was present and available to give advice to the Appellant.
[24] It is clear from the transcripts that, at no time, was the Appellant subject to any pressure or coercion or tricks or sly tactics to get him to do anything he did not want to do. The Appellant was given a choice. He thought carefully about his options, asked questions to ensure his understanding of each option, and eventually made a decision based on his own free will. In these circumstances, I am not persuaded that there is any merit to the Appellant’s proposed appeal – either in regard to his conviction or in regard to his sentence.
[25] In regard to his conviction, the Appellant acknowledged on the record that he had known all along that he should not have been communicating with Crystal Duncan. In regard to his sentence, the Appellant asked for time served and also asked to be returned to the Ottawa Carleton Detention Centre so that he could be released from there, after having collected his “stuff” and saying his good-byes to the “boys”. Boxall J. acceded to his request.
[26] Finally, and most importantly, the Appellant had taken full benefit of the judgment from which he seeks to appeal. Three out of the four counts against him, including the most significant one (criminal harassment), have been withdrawn. He was released from jail the day following the judgment. He has been enjoying his freedom since January 19, 2018. Without the resolution arrived at on January 18, 2018, the Appellant would likely still be in jail awaiting trial.
[27] For these reasons, the Appellant has not satisfied me that it would be in the interests of justice to extend the time limit in which his appeal in this matter was to be served and filed.
[28] Even had I allowed an extension of time for the Appellant to file the Notice of Appeal, I would have denied the appeal on its merits.
Issue #2: Was the guilty plea valid?
[29] Pursuant to s. 686(1) of the Code, an appellate court may allow an appeal against conviction on the ground that:
- the verdict is unreasonable or cannot be supported by the evidence;
- the judge made an error of law; or
- there has been a miscarriage of justice.
[30] The Appellant appears to argue that his guilty plea was not a valid guilty plea and that there has been a miscarriage of justice. The onus is on the Appellant to show that his guilty plea was invalid. In R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at para. 14, the Ontario Court of Appeal held that: “[t]o constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed”.
[31] The guilty plea must be voluntary. A guilty plea given in open court is presumed to be voluntary unless the contrary is shown on a balance of probabilities (T. (R.), at para. 16); R. v. W. (M.A.) 2008 ONCA 555, 237 C.C.C. (3d) 560, at para. 23). A guilty plea is not invalidated simply because the accused decides to plead guilty in order to get out of jail sooner than otherwise would be the case. That is what the Appellant did in this case. There is no evidence to suggest that he pled guilty due to any pressure or duress of any nature. On the contrary, the Appellant actively participated in the discussions about the options facing him and, clearly, he was exercising his own free will when he decided to accept the Crown’s proposal.
[32] The guilty plea must be unequivocal. There is nothing to suggest that the Appellant was confused as to what he was doing or that he intended his guilty plea to mean something other than it did. In fact, he offered his own clarification as to his knowledge when engaging in the actions that resulted in the charge to which he pled.
[33] The guilty plea must be informed. The accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea (T. (R.), at para. 14). Boxall J. set out clearly the facts on which the Appellant’s guilty plea were based, and the Appellant did not object to any of them. The Appellant volunteered that he has a lengthy criminal record. He is not a neophyte in the criminal justice system. There is no evidence to support a finding that he did not understand the effect of his pleading guilty to a breach of an outstanding probation order. He also understood that his guilty plea would result in three additional days of custody (at the Appellant’s request) plus three years’ probation. Boxall J. explained all of this in detail to the Appellant, as he was required to do under s. 606(1.1) of the Criminal Code. The Appellant expressed his contentment with the result.
Disposition
[34] The Appellant’s appeal is dismissed.
[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
Aitken J.