COURT FILE NO.: 20-R17342
DATE: 20211104
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Crossley
BEFORE: Aitken J.
COUNSEL: Moiz Karimjee, Counsel for the Crown
Lance Crossley, self-represented
HEARD: October 28, 2021
ENDORSEMENT
Nature of Proceedings
[1] Lance Crossley applies for an extension of the time in which he may file his Notice of Appeal respecting his convictions on January 20, 2021 under the Criminal Code, R.S.C. 1985, c. C-46 for uttering threats to damage property (s. 264.1(1)(b)) and disobeying a court order (s. 127(1), and his sentence for these offences rendered on March 19, 2021.
[2] Mr. Crossley was incarcerated from March 19, 2021 to May 19, 2021 on these charges. He filed his Notice of Appeal on June 3, 2021. He asks that the time in which to file his appeal be extended by the period during which he was incarcerated.
Legal Test for Extension of Time to Appeal
[3] As explained in the legal text, Issues in Criminal Trials and Summary Appeal Law,[^1] at p. 76, the main consideration in a court granting an extension of time is whether the applicant has demonstrated that justice requires that the extension of time be granted (R. v. Menear (2002), 2002 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), at para. 21; and R. v. Garland, 2008 ONCA 134 (C.A.), at para. 2). As stated in Menear, at paras. 20-21:
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:
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; and
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.
Analysis
Bona Fide Intention to Appeal
[4] Mr. Crossley’s evidence was that he could not remember when, exactly, he formed an intention to appeal his convictions. He thinks he started to think about an appeal while he was still in jail, but he cannot be certain of that. While he was incarcerated, Mr. Crossley made no oral or written request of anyone to provide him with the form 1, Notice of Appeal. He did ask to be provided with a Criminal Code; however, he was very clear that he was requesting that, not for the purpose of an appeal, but to educate himself on a number of matters relating to new charges against him and the possibility of bail. Mr. Crossley acknowledged that it was likely only on May 27-28, 2021 that he turned his mind to an appeal. At that point, he wanted to study the law to determine whether he had grounds for appeal. He did so and then filed his Notice of Appeal on June 3, 2021.
[5] The 30-day appeal period ended on April 19, 2021. Mr. Crossley has not persuaded me that he formed a bona fide intention to appeal within the appeal period.
Explaining the Delay
[6] Mr. Crossley did explain the reasons for his delay in filing a Notice of Appeal. While he was incarcerated, he had other things on his mind; namely, the new charges levied against him following his conviction on the subject offences and the question of whether he could get bail. Once he was released from custody on May 19, 2021, he had other things occupying his time, such as interacting with his probation officer and attending other appointments. Once he turned his mind to an appeal, he first wanted to assure himself that he had grounds to appeal so that he would not waste everyone’s time pursuing an appeal. Once he started addressing the issue of an appeal, he did not take long to prepare the necessary documentation and file it on June 3, 2021.
Is there Merit to the Proposed Appeal?
[7] Mr. Crossley advanced three grounds of appeal, saying that the totality of what he considered irregularities amounted to a miscarriage of justice, or at the very least, gave the appearance of an injustice being committed:
Crown’s request for imprisonment following trial
[8] According to Mr. Crossley, at a judicial pre-trial on November 18, 2020, Crown counsel indicated that the Crown would likely seek a three-year period of non-reporting probation upon conviction. According to Mr. Crossley, such a disposition disqualified him from receiving legal aid. Following his conviction at trial, the Crown sought four months imprisonment followed by probation. Mr. Crossley was sentenced to three months imprisonment followed by three years probation. In Mr. Crossley’s view, this brings the administration of justice into disrepute.
[9] Under cross-examination, Mr. Crossley acknowledged that on February 27, 2020, Crown counsel had provided him with a form advising Mr. Crossley to take the form to Legal Aid Ontario if he wished to apply for legal aid. On that form, Crown counsel stated that it was possible the Crown would be seeking a jail sentence and a mental health assessment. Mr. Crossley acknowledged that, although he could have applied for legal aid at that time, he did not because it was his intention to represent himself.
[10] This ground of appeal has no possible merit.
NCR assessment order
[11] Following Mr. Crossley’s conviction, Crown counsel applied for an assessment order to determine whether Mr. Crossley was not criminally responsible. The assessment order was dated February 12, 2021 and was for 31 days. Under s. 672.14(1) of the Code, the maximum duration of an NCR assessment order is 30 days, subject to possible extensions, and the accused must appear in court as soon as practicable after the assessment is completed and not later than the last day of the period that the order is in force (s. 672.191). After the NCR assessment order was made, Mr. Crossley’s next court appearance was on March 16, 2021 – one day later than the day on which he should have been brought before the court. At that time, Wadden J., who had taken over the file from Bourgeois J., made no formal finding as to whether Mr. Crossley was not criminally responsible. Furthermore, Wadden J. did not revisit the conviction entered by Bourgeois J., particularly in regard to the mens rea component of the offence. Mr. Crossley advanced all these circumstances as grounds of appeal.
[12] Nothing turns on the fact that Mr. Crossley was returned to court on March 16, 2021 instead of March 15, 2021. This delay of one day involves no miscarriage of justice.
[13] As noted by Wadden J. at the time of sentencing on March 19, 2021, Mr. Crossley attended the appointments for the NCR assessment; however, he did not otherwise participate in the assessment. Mr. Crossley acknowledged that, aside from providing his name and giving some yes/no answers in the course of preliminary small talk, he refused to answer any other questions relating to his mental health. As such, there was no evidence on the basis of which Wadden J. could make a finding that Mr. Crossley was not criminally responsible for his actions. Wadden J. did not need to deal with this issue further in the absence of such evidence. As stated in s. 16(2) of the Code: “Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.” Furthermore, there was no reason for Wadden J. to revisit the convictions entered by Bourgeois J. and, more particularly, her finding that the mens rea component of the offences had been proven beyond a reasonable doubt.
[14] There is no appreciable promise of success if this ground of appeal were pursued.
Fitness test
[15] During the sentencing phase of proceedings, at the suggestion of Dr. Selaman of the Royal Ottawa Mental Health Centre who had attempted to do the NCR assessment, the Crown applied for an assessment to determine whether Mr. Crossley was fit to continue with the proceedings. Wadden J. asked Mr. Crossley some questions relating to his fitness to stand trial, such as the various roles of the different parties in the criminal proceedings. Being satisfied that Mr. Crossley understood the nature and object of the proceedings and the possible consequences arising from the proceedings, Wadden J. refused the Crown’s request for a fitness assessment and proceeded to sentence Mr. Crossley.
[16] Mr. Crossley objects to this chain of events on two grounds. First, he argues that a fitness assessment cannot be ordered after a verdict has been rendered. He relies on the definition of “unfit to stand trial” in s. 2 of the Code, namely:
“unfit to stand trial” means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to
(a) Understand the nature or object of the proceedings,
(b) Understand the possible consequences of the proceedings, or
(c) Communicate with counsel.
[17] Second, Mr. Crossley argues that the Crown’s raising of the fitness issue at the sentencing stage created the optics of unfairness.
[18] In regard to the first point, McWatt J. (now A.C.J.) in R. v. Balliran (2003), 2003 64229 (ON SC), 173 C.C.C. (3d) 547 (Ont. S.C.), at para. 48 read in the words “or sentence imposed” after “before a verdict” in the definition of “unfit to stand trial” in the Code. This expanded definition is consistent with the determination in R. v. Gardner, 1982 30 (SCC), [1982] 2 S.C.R. 368, at 415, that sentencing is part of the trial process and the procedural safeguards available to an accused do not end on a finding of guilt but continue through sentencing. In any event, Wadden J. declined to make an order for a fitness assessment, as requested by Crown counsel. Whether he would have had the authority to make such an order after Bourgeois J. had rendered her verdict is moot.
[19] If I understand Mr. Crossley’s argument correctly relating to the second point, it is that once the issue of fitness had been raised, Wadden J. was under an obligation to reconsider the validity of the guilty verdict and, more particularly, whether mens rea had been proven beyond a reasonable doubt. There was no obligation for Wadden J. to enter any such analysis at that time. The issue of whether at any given moment someone is fit to participate in a criminal trial is a separate and discrete inquiry from whether, at the time of the alleged offence, the accused person had the requisite mens rea to be convicted of the offence or whether, following a finding that the accused person had committed the offence in question, he should be found not criminally responsible.
[20] Again, this ground of appeal has no appreciable promise of success.
Disposition
[21] For these reasons, Mr. Crossley’s application to extend the time for the filing of his Notice of Appeal is dismissed.
Aitken J.
Date: November 4, 2021
COURT FILE NO.: 20-R17342
DATE: 20211104
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: R. v. Crossley
BEFORE: Aitken J.
COUNSEL: Moiz Karimjee, Counsel for the Crown
Lance Crossley, self-represented
HEARD: October 28, 2021
ENDORSEMENT
Aitken J.
Released: November 4, 2021
[^1]: Moiz Karimjee, Issues in Criminal Trials and Summary Appeal Law (2nd ed.), (Markham: Ont.: LexisNexis Canada, 2018).