COURT FILE NO.: AP-19-220
DATE: 2019-12-30
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
A. Scott, for the Crown
Respondent
- and -
MARK ANTHONY JAMES
M. Grosso, on behalf of the Applicant
Applicant
HEARD: December 20, 2019
A.J. Goodman J.:
RULING ON MOTION TO EXTEND TIME TO FILE AN APPEAL
[1] This is a motion for an extension of time to file an appeal for a conviction registered against the applicant, Mark Anthony James, (“James”), imposed on November 26, 2014 by Zabel J. of the Ontario Court of Justice at Hamilton, Ontario.
[2] The applicant was charged with impaired operation or care and control of a motor vehicle, while his ability to do so was impaired by alcohol or a drug, contrary to section 253(1)(a) of the Criminal Code.[^1]
[3] On November 26, 2014, the applicant plead guilty before Zabel J. He was sentenced on the same day with a fine and a minimum one-year driving prohibition.
[4] In the Notice of Appeal, dated October 11, 2019, the applicant raises several grounds including but not limited to lacking the capacity to make a voluntary and informed plea and ineffective assistance of counsel.
Background Facts:
On June 4th, 2014 at 11:37 a.m. Cst. Rowan of Hamilton Police was parked at the top of the Jolly Cut and Concession Street when he was alerted by a citizen that a black pickup truck had struck a hydro pole and fled the scene. The citizen pointed the truck out the officer. The officer immediately followed the vehicle and observed extensive damage to the front end of the vehicle. Police followed the truck down the jolly cut (travelling at approximately 20 km/hr) at which point they were able to get the truck to come to a stop.
At 11:38 a.m. the driver, identified as the applicant, was placed under arrest for failing to remain at the scene of an accident. Upon a search incident to arrest police located 8 grams of marijuana on Mr. James. They also found a marijuana joint in the truck weighing about 1 gram.
After being placed in the police cruiser the applicant began to shake uncontrollably, causing the cruiser to shake. The officer noted that his eyes were moving rapidly, he was sweating profusely and appeared agitated.
The arresting officer noted that Mr. James appeared disoriented and had no idea he had been in a collision even though the airbags had been deployed. The applicant stated he hadn’t consumed any medication or drugs. Further, that he didn’t have any form of medical condition but claimed to black out from time to time.
After consultation with another officer, Cst. Rowan formed grounds to arrest the applicant for impaired operation of a motor vehicle by drug. He was transported to the police station where he declined medical attention. The applicant was then provided an opportunity to consult with counsel. Afterwards, he underwent a Drug Recognition Expert (“DRE”) exam and provided a urine sample. The “DRE” officer concluded that the applicant was impaired by a central nervous stimulant that would have impacted his ability to safely operate a motor vehicle. The urine sample collected was sent to the Centre of Forensic Sciences (“CFS”). A report generated by the Centre indicated the presence of Carbon Tetrahydrocannabinol, which is a metabolite of marijuana.
The Guilty Plea Proceedings:
[5] The applicant entered his plea before Zabel J. on November 26, 2014 and was assisted by duty counsel, Ms. Jamie Corneil. Prior to the plea, Ms. Corneil advised the judge that she had reviewed the plea comprehension inquiries of s. 606 of the Criminal Code with the applicant. James personally entered his pleas upon arraignment. The facts supporting the pleas were read in by the Crown. Ms. Corneil asked the applicant if he acknowledged the facts that were read in, to which James responded, “Yes Ma’am”. Findings of guilt were then imposed by the judge.
[6] In her sentencing submissions, Ms. Corneil clearly articulated the basis for the plea. She advised the court the applicant was admitting to operating his truck while impaired. However, he was not necessarily admitting the impairment caused the accident. She further advised while James had no memory of the accident, he was prepared to admit the Crown could prove its case. In support of her submissions Ms. Corneil provided a letter dated November 24, 2014 authored by Dr. Okorie, the applicant’s physician. In the letter, Dr. Okorie opined that “Mark was probably having seizures when he had the motor vehicle accident”.
[7] Zabel J. imposed a $1300 fine on the impaired driving count in addition to a one-year driving prohibition. He warned the applicant that it was a serious criminal offence to drive while prohibited. The applicant acknowledged to the court that he understood.
Positions of the Parties:
[8] Ms. Grosso, on behalf of the applicant seeks to appeal his conviction on the basis that his guilty plea was uninformed and involuntary. At the time of the guilty plea, the applicant had just been released from a five-week inpatient hospital stay, following static epilepticus and intracranial hemorrhage. To date, he has no memory of the accident or the months following it, including the guilty plea entered on November 26, 2014.
[9] The applicant has been unable to return to any form of employment and continues to need ongoing treatment, with which he retained Grosso Hooper Law to assist him with his civil litigation.
[10] To the extent he was cognitively able, the applicant has always had a bona fide intention to appeal within the appeal period. He has since, to the best of his ability, attempting to locate and retain counsel. The significant impairments he has and continues to experience with this cognition, memory and comprehension on account of his head injury have limited his ability to fulfil this intention.
[11] The applicant submits that the proposed appeal has merit. Counsel argues that it is apparent from the transcript of his guilty plea, the affidavit evidence and his medical records that the applicant suffered a significant head injury in the motor vehicle accident of June 4, 2014 in addition to his pre-existing medical history. At the time of his guilty plea the applicant lacked the capacity to understand the effect of the plea. This evidence casts serious doubt that the plea was informed or voluntary.
[12] The applicant says that his intention to appeal his conviction may not have been apparent within 30 days of the imposition of sentence, albeit it is not fatal. Extensions have been granted in cases where the full consequences of a conviction were not understood until well after the appeal period had expired. In this case, the applicant is suffering from cognitive and memory impairments and lacks any memory for the period between June 2014 and sometime in 2015, including the guilty plea itself. The full consequences of the conviction were not understood by him until well after the appeal period expired.
[13] The applicant submits that he has explained the delay and he took all reasonable steps upon learning of the consequences of his conviction. Given his impairments there is a real possibility of an unfairness in this case. The extension would not cause any prejudice to the Crown. In these circumstances, it is in the interests of justice to extend the time to file a Notice of Appeal.
[14] The Crown responds that the applicant has not reasonably explained the extraordinary delay in initiating an appeal in this matter. The applicant’s evidence is unreliable and does not even come close to meeting the onus for such relief.
[15] The Crown submits that there is no merit to the appeal. The evidence filed does not meet the threshold required to invalidate a guilty plea given the limited cognitive capacity for such a plea being required.
[16] The determination on an application for leave to extend the time for appealing a conviction is discretionary, and the overarching consideration is whether the extension of time is in the interests of justice. The Crown submits that finality of criminal matters is of significant import to the criminal justice system, especially in this case with the passage of five years. The Crown requests that the applicant’s request to extend the time for the filing of his appeal be dismissed as it is not in the interests of justice.
Discussion of the Relevant Legal Principles to this Case:
[17] In the case of R. v. Menear, 2002 7570 (ON CA), [2002] O.J. No. 244 at para. 20, the Ontario Court of Appeal set out three criteria that an applicant must ordinarily meet in order to be granted an extension of time to file a notice of appeal: These factors include: Whether the applicant had a bonafide intention to appeal within the appeal period; Whether the applicant has accounted for or explained the delay; and whether there is merit to the proposed appeal.[^2]
[18] In some circumstances other factors may come into play for consideration about an extension of time including, but not limited to, whether the Crown will be prejudiced: Menear, at para 21. All of the Menear factors need not be satisfied in order to succeed on the motion. It is clear that a court has the discretion to extend the time within which an appeal may be brought by virtue of s. 678(2) of the Criminal Code and Rule 7 of the Criminal Proceedings Rules in the Superior Court. The overall consideration is whether the applicant has demonstrated that the interests of justice requires that the extension of time be granted.
IS THERE A BONAFIDE INTENTION TO APPEAL WITHIN THE TIME REQUIREMENTS?
[19] The applicant asserts in his affidavit that he was immediately anxious to appeal his conviction.
[20] The applicant readily concedes that his bona fide intention to appeal may not have been apparent within the appeal period, but again, this is not fatal to the application for an extension of time. The applicant has explained the delay. He did not pursue an appeal within the 30-day time period because he was suffering from the effects of serious head injury and epilepsy resulting in significant memory and cognitive defects. He lacked the capacity to understand the effects of the guilty plea or the appeal process. In fact, the applicant’s injuries are so serious that he continues to have limited memory for the period from June 2014 through to at least January 2015, has been unable to return to work and has been attending for regular treatment since the accident and subsequent plea.
[21] However, in my view, there is simply no cogent or reliable evidence that he formed an intention to appeal the guilty pleas within the 30-day appeal period that expired on December 27, 2014. In oral submissions, applicant’s counsel did not stress this point. Further, as I will explain further, I reject the assertion that the applicant intended to initiate or advance the appeal process during the 30-day statutory appeal period or - for that matter - at anytime subsequent.
HAS THE APPLICANT SUFFICIENTLY ACCOUNTED FOR THE DELAY?
[22] The short answer is “No”. Not only has there been an extraordinary delay in serving the Notice of Appeal in this case, but the explanations and evidence offered to explain such a delay are unreliable, illogical, and insufficient to account for the inordinate period of time.
[23] The applicant says that he believes he met with his personal injury counsel, Mr. Robert Hooper, as early as July 7, 2015 with respect to his claim for accident benefits. Another meeting was held on April 22, 2015 to discuss the appeal.
[24] However, the Notice of Appeal was not submitted until October 11, 2019, over four years later, and almost five years after the guilty plea.
[25] The applicant asserts numerous reasons for this delay including legal aid issues, searching for counsel, and obtaining relevant documents. A legal aid appeal request was filed by the applicant and turned down by the local area committee by letter dated September 29, 2018. Mr. Hamara, of the law firm of Sullivan Festeryga, writes to the area committee requesting reconsideration. In the letter, counsel explains that the applicant is being denied accident benefits and is facing medical and family issues. This letter is dated October 11, 2016. Reconsideration is denied on October 31, 2016 and counsel is advised on November 1, 2016.
[26] It is apparent that the same issues that were the focus of this appeal was readily apparent back in 2015 and 2016. What happens next over the course of three years in respect of the appeal? Nothing of significance.
[27] I reject counsel’s submissions and the applicant’s bald assertions that he was attempting, over the course of the next two or three years to locate and retain counsel to conduct the appeal after Sullivan Festeryga withdrew from the file as a result of a conflict of interest.
[28] The applicant submits that he was frustrated by the conviction and spoke to Dr. Kathy Smolewska about it in the winter months of 2015. Dr. Smolewska advised that she was aware of some of the applicant’s cognitive issues in 2015. He also references a letter she wrote on February 27, 2015. However, this letter appears to only seek guidance with respect to the fines he owed and not an appeal. There is no corresponding reference in Dr. Smolewska’s affidavit to this or any other actions she took on his behalf to assist him in initiating this appeal.
[29] The applicant also says that he was anxious to appeal his conviction initially believing that he was to receive further instructions from duty counsel, which did not occur. He subsequently spoke to Dr. Smolewska about it. Although he does not recall this time period in detail, he has learned from Dr. Smolewska of their discussions on the plea and occasions where he would bring in documents from the accident for them to review together.
[30] According to the applicant, Dr. Smoleswka attempted to help him by locating him a lawyer to help with the appeal process. He learned for the first time that he was beyond the 30 days to appeal and that it would cost between $3,000 and $5,000 to retain a lawyer to assist him. As he did not have the funds to retain counsel, Dr. Smoleska attempted to find him other solutions. This occurred in 2015. I query about the role Dr. Smolewska plays in this scenario. Is she a treating physician or an advocate?
[31] In any event, in July 2015, the applicant retained Mr. Robert Hooper to assist him on his claim for accident benefits in relation to the motor vehicle accident. He met with Mr. Hooper in April 2016 to discuss an appeal. Mr. Hooper referred him to Sullivan Festeryga, whom the applicant retained for help with an application for Legal Aid. As mentioned, this application was ultimately rejected on November 1, 2016.
[32] I am advised that counsel at Sullivan Festeryga worked to explore avenues of appeal but identified a conflict in September 2017 that prevented them from moving forward. Subsequent to this, Mr. Hooper and his firm attempted for several months to locate another criminal lawyer who would take on the appeal of the conviction. Again, this is back in 2017. Apparently when the law firm or the applicant was unable to find a criminal lawyer to conduct the appeal, in late 2019, Ms. Grosso, of the same firm, Hooper Law Offices, advised the applicant that they would attempt to bring the appeal. Frankly, any explanation about the delay and significant gaps in time is not adequately explained by the applicant ‘s conduct and the lawyers involved. It does not take years to find counsel to file an appeal, even with the known medical issues.
[33] It is also not lost on me that the genesis for this appeal is, in part, in order for the applicant to have the benefit of accident benefits to which he is not entitled as long as he has the conviction on his record. This fact, was and would have been known to the applicant, current and former counsel in 2014, and especially in 2015 and into 2016 with the record before me including the letters to the Legal Aid area committee .
[34] There is no reasonable basis why a Notice of Appeal was not filed in 2015 or even 2016. The applicant was already in possession of Dr. Okorie’s letter and had already been assessed by Dr. Smolewska. The search for counsel and/or legal aid issues cannot justify the delay given its extreme length. Furthermore, there was nothing preventing the applicant from submitting a notice of appeal personally or by any lawyer as he states that he always had an intention to appeal. While not addressed in submissions, it is more likely than not, that with the significant passage of time, the Crown may be prejudiced in its prosecution.
[35] Ultimately, the applicant was in a position to initiate the appeal years before they did. There is no change in circumstances that would prevent such action. The applicant’s significant delay in doing so supports its dismissal: Tzeng, at para. 18.
[36] I reject the applicant’s explanations as entirely self-serving and defying common sense. In my view, this is an effort to bolster the lack of progress on the file by counsel. The appeal has not been initiated in a diligent and timely manner.
IS THERE MERIT TO THE APPLICANT’S PROPOSED APPEAL?
[37] While I am prepared to dismiss the application at this stage, for the sake of completeness, I will address this factor.
[38] It is clear that while I am not in the position to decide the appeal, the merits of the appeal are a factor to be considered.
[39] The Crown submits the applicant made a voluntary and conscious decision to plead guilty and that he possessed the minimal cognitive capabilities required in law to do so. Further, that he understood the legal effect of the plea, and any required collateral consequences.
[40] In support, the Crown relies upon the facts that duty counsel complied with the provisions of s. 606 prior to the plea; The accused personally entered the pleas; The accused personally acknowledged the facts as correct; There is nothing in the transcripts to suggest the accused did not understand the nature of the proceedings.
[41] The applicant also says that he has no memory of his attendances at court or what was discussed with duty counsel, outside of one detail where he believes he was told he had to plead guilty because he had no diagnosed head injury. The applicant’s assertion is that duty counsel instructed him he had to plead guilty and that he could appeal once he had a diagnosis.
[42] I reject that evidence as entirely far-fetched and not credible. I need not dive in to the sea of speculation to dismiss out-of-hand the assertion that any lawyer, (and especially duty counsel) would ever offer such advice or direct a client to plead guilty to a criminal charge and then appeal later. It is clear this type of advice would be contrary to the lawyer’s professional obligations.
[43] Moreover, the applicant asserts that he does not have any memory of the various court appearances or the guilty plea proceedings. However, I observe that the applicant’s selective memory gaps seem to come alive on the one point as to what he alleges he was informed by Ms. Corneil. Again, I have grave concerns with the reliability of the applicant’s evidence. He claims to have no memory of any prior court dates or interactions with court officials or with the proceedings before Zabel J. save and except or this specific point.
[44] In any event, there is no merit to the applicant’s assertion the pleas were involuntary. The applicant bears the onus, on a balance of probabilities, of showing the plea was invalid. To constitute a valid guilty plea, it must be: voluntary, unequivocal, and informed as to the nature of the allegations and the effect of his or her plea; the consequences of his or her plea: R. v. T.(R.), 1992 2834 (ON CA), [1992] O.J. No. 1914 (C.A.) at paras. 12 & 14, R. v. W.(M.A.), 2008 ONCA 555, [2008] O. J. No. 2738 (C.A.) at para. 23, R. v. Cherrington, 2018 ONCA 653, 2018 O.J. No. 4012.
[45] A plea should only be invalidated where an appeal court finds there was a significant misunderstanding of the potential consequences of the plea. Guilty pleas should not be set aside lightly. In R. v. Wong, 2018 SCC 25, at para. 65, Wagner J. (as he then was) stated:
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 [page728] in preserving the finality of guilty pleas, and the burden of showing that a guilty plea was invalid falls to the accused.
[46] An entry of a guilty plea by an accused assisted by legal representation, including duty counsel, is presumptively valid. Failure to conduct the plea inquiry will not be fatal to the validity of the plea: R. v. Agha, [2010] O.J. No. 1170 (S.C.) at para 26, 28. Cherrington, at paras. 32 & 35, Criminal Code, s. 606 (1.2).
[47] In R. v. W.(M.A.) at paras. 25, 27 and 31, the Ontario Court of Appeal ruled the test to be applied to determine whether an applicant’s mental disorder can invalidate a guilty plea is the ‘limited cognitive capacity’ standard. This is the same test used to determine the fitness of an accused. The standard only requires the court be satisfied that an accused understands the process, can communicate with counsel, and can make an active or conscious choice. This is a relatively low threshold.
[48] There is no requirement that the accused’s decision must be rational or in the accused’s best interests: R. v. Baylis, [2015] O.J. No. 3416 (C.A.) at para 49.
[49] The limited cognitive capacity standard requires nothing more than the applicant: understood the process in which the plea was entered; could communicate with counsel; and could make an active or conscious choice: Cherrington, at para. 38.
[50] In this case, there is no reliable evidence in the record to suggest the applicant did not possess the very limited cognitive capabilities required for a valid guilty plea. In my review, he entered the pleas personally. He was reactive to questions put to him by the court, including acknowledging the facts were correct and that he understood the driving prohibition imposed. He never once advised he did not understand the nature of the proceedings or the roles of those who were present.
[51] Neither did duty counsel ever advise of any issues in receiving instructions from the applicant. In fact, duty counsel had a letter from the applicant’s doctor, presumably provided by the applicant, that was tendered in the proceedings. This strongly supports the conclusion Mr. James possessed the limited cognitive requirements for a valid guilty plea.
[52] The fresh evidence provided by Dr. Kathy Smolewska does not invalidate the guilty plea. In her affidavit Dr. Smolewska confirms that the applicant could understand instructions/details explained to him in the moment.
[53] Even if I accept that the applicant may have had a limited ability to draw a conclusion independently about what he should do, this does not reach the threshold required to invalidate a guilty plea. Nor does the fact he may have forgotten information or that he was over-reliant on other person’s opinions. This would not have made him unfit to stand trial at the time of the proceedings and thus he had capacity to proceed with a guilty plea as he so chose.
[54] This conclusion is also supported by Dr. Fulton’s report dated December 7, 2018 wherein the doctor finds that the applicant’s overall performance on testing revealed a ‘mild’ degree of impairment globally. The report noted that there had been no decline since 2015. While the doctor concluded that it would be difficult for the applicant to return to work this is far different than being unfit to stand trial of know the nature and consequences of his guilty plea.
The Ingredients of an Informed Guilty Plea in this Case:
[55] An accused who seeks to withdraw their guilty plea on the basis they were unaware of legally relevant consequences when the plea was entered must demonstrate subjective prejudice. In analyzing the credibility of the applicant’s claim a reviewing court can look to objective contemporaneous evidence: Wong, at paras. 6, 19.
[56] I find that the applicant’s plea was informed, and he understood both the effects of the plea and any legal collateral consequences that were required in the circumstances. The medical evidence does not detract from that point.
[57] To begin, the Crown urges this Court to place little weight on the applicant’s bald assertions that duty counsel advised him he had to plead guilty and that he could appeal the matter once he was provided with a formal diagnosis. As stated previously, this advice would be contrary to duty counsel’s professional obligations and basic criminal legal principles. It simply makes no sense that duty counsel would provide that advice.
[58] Furthermore, the applicant on numerous occasions states in his affidavit that he has no memory of the periods between the accident and the plea. In fact, his lack of memory is consistently used to support the applicant’s argument that he did not have the requisite cognitive capacity to plead guilty. The only memory the applicant has during this time period relates to the impugned advice provided by duty counsel. Again, I have grave concern over the reliability of the applicant’s evidence and attach little weight to it.
[59] The applicant must show that his mental disorder deprived him of the capacity to make an active or conscious choice whether to plead guilty: R. v. M.A.W., 2008 ONCA 556, [2008] O.J. No. 2739 (C.A.) at para. 36. The evidence adduced here is insufficient as to the requisite test. Recall that the limited cognitive capacity standard required nothing more than the applicant understand the process, could communicate with counsel and could make an active or conscious choice: Cherrington at para. 38.
[60] Whether or not the applicant would meet the threshold for leave to introduce fresh evidence, including the affidavits along with the medical records, remains to be seen. Even if it were to be introduced, I have doubts that it would assist the applicant as to his understanding of the charges, the process, or his ability to make a conscious choice at the time when he entered his guilty plea. Counsel overstates the issue when she asserts that her client lacked the capacity to do this on account of his cognitive impairments and head injury. In any event, if I am in error with my assessment of the medical reports, the applicant and his counsel had this information at their disposal and yet, in effect, did nothing to advance the appeal in a timely manner.
[61] The record of the plea speaks for itself. There is nothing further on the record to suggest the applicant did not understand the nature and consequences of the proceedings. Accordingly, there can be little doubt the applicant knew the effects of the plea: that he would be found guilty of the offence that he would be sentenced; and that he gave up his right to a trial.
Collateral Consequences:
[62] The applicant also submits that as a result of his brain injury from the accident, he is unable to work. As a result of his conviction, he has been left unable to obtain the accident benefits, to which he would otherwise be entitled pursuant to the Statutory Accident Benefits Schedule, and which he desperately needs in order to support himself or his family. A criminal conviction serves an impediment to this appropriate recovery.
[63] The applicant submits that this case is analogous to those where the applicant learns of the immigration consequences of his or her conviction for the first time several months (or, in some cases, five years) after sentence is imposed. Counsel referred to R. v. Ansari, 2015 ONCA 891.
[64] The facts and circumstances in Ansari are distinguishable. In Ansari, the issue was an injustice by a fundamental change in legislation that impacted on the accused’s immigration status not in force at the time of the trial. Further, the court concluded that the applicant and his counsel acted diligently.
[65] In Wong, the majority of the Supreme Court stated a legally relevant collateral consequence will typically be state-imposed, flow from conviction or sentence, and impact serious interests of the accused: at para 9. Wagner J., dissenting on a different issue, acknowledged that a plea can ‘trigger of myriad of collateral consequences which arise in a variety of circumstances’. However, only those only those that are ‘legally relevant’ are germane to whether the plea is informed: Wong, at paras. 75-76. Importantly, the court held that some consequences will be too remote to constitute information which must be known to an accused for the plea to be informed. The accused need not be informed of every conceivable consequence of the plea: Wong, at para. 77.
[66] I agree with the Crown that duty counsel was not obliged to instruct the applicant regarding the potential civil remedies flowing from the conviction and the related motor vehicle accident. This issue was not a collateral consequence as defined by the Supreme Court of Canada in Wong. I find that the applicant’s subsequent civil action was not ‘legally relevant collateral consequences’ that duty counsel was required to inform him about to validate the plea proceedings. There was no requirement or obligation for duty counsel to appreciate these consequences given their remoteness to the pleas being entered. The civil consequences or benefits are not state imposed punishments akin to driving suspensions or immigration issues that are generally classified as legally relevant collateral consequences.
Duty Counsel Provided Effective Legal Assistance?
[67] The applicant further asserts that duty counsel did not provide him with effective legal assistance. This issue is largely dealt with under the heading regarding the informed nature of the plea.
[68] Again, I disagree with the applicant’s assertions. The record confirms duty counsel conducted herself appropriately. Given the reliability issues with respect to the applicant’s evidence on this point, I attach no weight to it.
Conclusion:
[69] Almost five years later, the applicant wants to revisit his guilty plea. The motivation is premised on his ability to claim accident benefits arising from the incident that resulted in the conviction arising from the applicant’s actions in driving a motor vehicle while impaired. Aside from any overall public policy considerations, the merit to the appeal is not compelling.
[70] I reject the applicant’s selective lack of memory or cognitive recall as entirely self-serving and inconsistent with the preponderance of evidence.
[71] Further, I am unmoved by the delay and the rationale provided. I do not accept that it takes one, two or even five years to secure the services of counsel; especially after the law firm of Grosso Hooper was retained, the funding for the legal aid appeal was denied, followed by the firm Sullivan Festeryga withdrawing from the case. Any and all explanations offered are not credible. The medical issues, if relevant to the guilty plea were well known years ago.
[72] The societal interests in the finality of criminal cases is engaged in this case. The applicant has not satisfied his onus to explain the inordinate delay of five years to file his Notice of Appeal. On all of the Menear factors, the applicant fails. The motion is dismissed as I find that it is not in the interests of justice to grant an extension to appeal.
A.J. Goodman, J.
Released: December 30, 2019
COURT FILE NO.: AP-19-220
DATE: 2019-12-30
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MARK ANTHONY JAMES
Applicant
RULING ON MOTION TO EXTEND TIME TO FILE AN APPEAL
Released: December 30, 2019
[^1]: He was also charged and plead guilty to possession of marihuana, contrary to the provisions of the Controlled Drug and Substances Act. [^2]: See also R. v. Tzeng, [2007] O.J. No. 878 (S.C.J.) at paras. 17-19.