COURT FILE NO.: CR-22-00000017-00AP
DATE: 20220712
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICARDO EDMOND
J. Bruno, for the Crown
N. Jamaldin, for Mr. Edmond
HEARD: 1 June 2022
S.A.Q. AKHTAR J.
RULING ON APPLICATION TO SEEK LEAVE TO EXTEND FILING TIME
FACTUAL BACKGROUND AND OVERVIEW
Background Facts
[1] The applicant, Ricardo Edmond, pleaded guilty on 4 May 2021 to the offence of assault causing bodily harm contrary to s. 267 of the Criminal Code, R.S.C. 1985, c. C-46. As a result, he received a suspended sentence of 18 months with 43.5 days noted as pre-sentence custody credit.
[2] The charges related to an attack committed on 20 September 2020 on the applicant’s mother whom he believed was stealing his cigarettes.
[3] When the applicant appeared in court on 14 January 2021 before Lipson J., there were concerns about his fitness to stand trial. As a precaution, Lipson J. ordered a fitness assessment to be conducted by the Centre for Addiction and Mental Health (CAMH).
[4] One week later, on 21 January 2021, Dr. Ali of CAMH advised the presiding judge, Kozloff J., that the appellant had been assessed as unfit and proposed a treatment regime with the aim of rendering him fit. Kozloff J. accordingly issued a 60-day treatment order.
[5] The applicant continued to be diagnosed as unfit when he returned to court on 17 February 2021.
[6] However, on 22 March 2021, the applicant represented by counsel informed Kozloff J. that Dr. Jason Quinn from the Southwest Centre for Forensic Mental Health Care had re-evaluated the applicant and found him to be “marginally fit” to stand trial. Dr. Quinn recommended the applicant continue with legal proceedings.
[7] Counsel for the applicant, Mr. Horton, agreed that he had been found legally fit and asked for the matter to proceed. In addition, he requested the applicant remain in custody in a hospital rather than be returned to prison. That request was granted by the court.
[8] On 4 May 2021, the applicant entered a plea of guilty before Brewer J. who conducted an inquiry to ensure that the plea was informed and voluntary. Before entering the plea, the applicant’s counsel had received a memorandum outlining the consequences of a plea of guilty.
The Facts Accepted by Plea
[9] The facts read in at the applicant’s plea disclosed the following incident:
[10] At the time of the offence, the accused lived with his mother, the victim in this matter, in a two-floor apartment located at Unit 310, 6 Tree Sparroway in Toronto.
[11] The applicant was familiar to the Toronto Police Service through previous mental health investigations which had resulted in five apprehensions under the Mental Health Act, R.S.O. 1990, c. M.7, beginning March 2020. During those incidents, the applicant had threatened to kill his mother and physically assaulted her numerous times using weapons such as a bottle, and biting her.
[12] The applicant had been diagnosed with schizophrenia and was refusing to take prescribed medication. His mother advised police that his mental health state had continued to deteriorate as a result of a car accident five years previously.
[13] On 30 September 2020, at approximately 12:30 p.m., the applicant was on the second floor of the unit in his bedroom. He called down to his mother accusing her of stealing his cigarettes. She responded by assuring the applicant that she had no reason to do so as she was a non-smoker.
[14] The applicant confronted his mother and kneed her in the mouth knocking out three teeth. The applicant ran to his bedroom whilst his mother called the police.
[15] A further charge - not part of the plea but read in before the sentencing judge - revealed that on 8 December 2020, the applicant had breached a release order condition not to enter his mother’s residence after police were called to investigate an argument with his sister.
[16] Following the reading of the facts as alleged by the Crown, counsel for the applicant agreed that they were admitted. A conviction was entered, and Brewer J. acceded to a joint sentencing submission proposed by the Crown and the applicant’s counsel.
The Involvement of the CBSA
[17] On 24 June 2021, the Canada Border Services Agency (CBSA) prepared a report informing the applicant that he was inadmissible for immigration pursuant to ss. 44(1) and 36(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, because he had been convicted of acts of serious criminality. On 13 July 2021, the CBSA provided the applicant with a letter that he might be issued with a deportation order.
[18] However, on 9 April 2022, the CBSA informed the applicant that “no further action will be taken” in respect of the May 2021 conviction. It added a warning that “this decision may be reviewed should we become aware of any further violations of the Immigration and Refuge Protection Act.” In other words, the applicant no longer faced the prospect of deportation.
[19] Notwithstanding the lapse of time of well over a year, the applicant seeks to appeal his conviction, requesting leave for the extension of time to file an appeal.
LEGAL PRINCIPLES
The Test for Granting Leave to Extend Filing Time
[20] Pursuant to Rule 40.05 of the Criminal Proceedings Rules, SI/2012-7, a party has 30 days to appeal from the order that is challenged. Rule 40.03 of the Rules allows a judge to extend or abridge that deadline upon application.
[21] The authority to grant or refuse an extension of time to appeal is discretionary and not one that arises as of right: R. v. Roberge, 2005 SCC 48, [2005] 2 S.C.R. 469, at para. 6; R. v. Menear (2002), 2002 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), at para. 20.
[22] In R. v. Closs (1998), 1998 1921 (ON CA), 105 O.A.C. 392 (C.A.), at para. 8, Carthy J.A., in chambers, commented on the rarity of granting orders that extend time to appeal by stating:
It is my view that such orders should be made only in exceptional circumstances where there is a real concern that an injustice may have occurred. There are many negative consequences of having a criminal conviction and it cannot be expected that these will all be explained to an accused prior to a plea; nor should the convicted person expect the judicial system to provide a fresh start when a surprising consequence of the conviction is encountered. We must have finality except where the demands of justice dictate otherwise.
[23] In Menear, at para. 20, the court identified the following three factors to be considered when deciding whether an extension of time is justified:
(1) Has the applicant shown a bona fide intention to appeal within the appeal period;
(2) Has the applicant accounted for or explained the delay; and
(3) Is there merit to the proposed appeal?
[24] This list is not exhaustive and the court “may take into considerations 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 benefit of the judgment. In the end, the main consideration is whether the applicant has demonstrated that justice requires the extension of time be granted”: Menear, at para. 21; R. v. Ansari, 2015 ONCA 891, 128 O.R. (3d) 511, at para. 23.
Bona Fide Intention to Appeal
[25] It appears from the evidence that there was no bona fide intention to appeal either conviction or sentence in this case during the appeal period. This would make sense as the applicant pleaded guilty to the charges and was sentenced on the basis of a joint submission and agreement.
[26] The applicant argues that his decision to appeal was made after he realised the immigration consequences flowing from the conviction. After commencement, he claims he acted expeditiously, seeking counsel and serving material to seek an extension of time to appeal within 14 days of receiving transcripts.
[27] This factor weighs against granting leave but is not dispositive of the application as a whole: Ansari, at para. 23.
[28] The applicant’s explanation for his failure to launch an appeal is bound up with the second Meneear limb: the explanation of the delay.
The Explanation of the Delay
[29] As previously described, the applicant seeks to explain the delay by relying on his purported ignorance of the immigration consequences. He claims that “[i]mmediately upon learning of the immigration consequences, he instructed counsel to pursue an appeal”.
[30] However, a review of the applicant’s materials appears to indicate that he did know of the potential immigration consequences when pleading guilty.
[31] I note there is no affidavit or other evidence from the applicant himself indicating that he was unaware of the immigration consequences of his plea. His counsel submits that this is because the applicant is incapable of providing such an affidavit.
[32] Instead, counsel seeks to rely on the affidavit of the applicant’s sister, Ms. Nickette Edmon, an emergency room nurse, who indicates that her brother is unable to understand the consequences of the legal proceedings that he faces.
[33] Yet, at the same time, Ms. Edmon’s affidavit reveals that her brother was indeed aware of the immigration consequences.
[34] On 19 March 2008, the applicant pleaded guilty to assault causing bodily harm and was sentenced to 30 days of intermittent custody in addition to 3 days of pre-sentence custody. This conviction resulted in the issuance of a deportation order which was ultimately stayed in 2009 on humanitarian grounds. As the Crown points out, this conviction occurred before the car accident that the applicant says caused his mental health deterioration.
[35] On 31 May 2013, the applicant attended court in relation to other pending criminal charges and was detained by immigration officials. Ms. Edmon visited him whilst he was in custody and he told her that the immigration authorities had detained him. The applicant could not provide an answer as to why Ms. Edmon made further inquiries.
[36] She discovered that the applicant had been ordered deported years earlier but a stay had been granted. Further enquiries revealed that the applicant had indeed become subject to the order as a result of the 2008 assault causing bodily harm conviction. He had appealed the order but failed to attend the appeal hearing which led to his immigration appeal being dismissed. After retaining counsel, the applicant filed an application to reopen his appeal. On 16 June 2015, the applicant attended the reconsideration hearing. The Immigration Appeals Division allowed his appeal and set aside the deportation order.
[37] In this light, it is inconceivable that the applicant, even with his mental health issues, did not know that his 2021 conviction would lead to difficulties with his immigration status particularly after he had avoided being deported for the same offence in 2015 and had retained counsel to appeal the order.
[38] Moreover, as noted, prior to the plea on 4 May 2021, Mr. Horton had obtained an opinion letter from the Refugee Law Office (RLO) dated 21 October 2020 which outlined the consequences of pleading guilty. The letter made clear that a guilty plea would again raise the prospect of a deportation order if the applicant received a sentence of six months or more including pre-sentence custody credit.
[39] The applicant has advanced no evidence at this hearing indicating he did not know of that letter or that his counsel failed to share its contents with him.
[40] I agree with the Crown that an inference can be drawn that Mr. Horton took into account the advice given by the RLO because he came to an agreement with the Crown that only 43.5 days of the 176 days pre-sentence custody should be included in the sentence. Had all the pre-sentence custody been counted, the applicant would have been over the six-month threshold and potentially subject to deportation. The joint position ensured that the sentence remained below six months and removed the threat of deportation on the basis of length of sentence.
[41] Accordingly, I find that the delay in this case has not been adequately explained.
The Proposed Merits
[42] The applicant also argues that his proposed appeal has merit and seeks to set aside his conviction on the basis of fitness to stand trial or, in the alternative, reduce his sentence to that of a conditional discharge.
[43] The applicant argues that the finding that he was fit was wrong. He takes aim at Dr. Quinn’s finding that he was “marginally fit” which he submits is insufficient as, according to the applicant, the Criminal Code does not contain a category for “marginal” fitness.
[44] Section 2 of the Criminal Code lays down the following description of unfitness to stand trial:
"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.
[45] In R. v. Morrissey, 2007 ONCA 770, 87 O.R. (3d) 481, at para. 27, the court, citing R. v. Taylor (1992), 1992 7412 (ON CA), 77 C.C.C. (3d) 551 (Ont. C.A.), explained that fitness for trial requires “a limited cognitive capacity test” which requires “only a relatively rudimentary understanding of the judicial process — sufficient, essentially, to enable the accused to conduct a defence and to instruct counsel in that regard. It is in that sense that the accused must be able ‘to communicate with counsel’ and relate the facts concerning the offence”. The court made clear that the “threshold is not high”.
[46] The applicant’s focus on the word “marginally” is, in my view, misconceived. An accused is either found fit or unfit. It does not matter if he is either marginally fit or unfit. If the former, he is fit to stand trial. The word “marginal” does not make an assessment of fitness fall within a different or lower category.
[47] The applicant also criticises Dr. Quinn’s statement that he, the doctor, was not aware of the applicant’s immigration status. It is unclear to me how the doctor’s ignorance of the applicant’s immigration status affects his opinion that the applicant was fit.
[48] The applicant’s argument is that Dr. Quinn’s lack of knowledge of the applicant’s immigration status shows that the applicant either did not know himself of the immigration consequences or did not understand them.
[49] This is pure speculation and as noted contradicted by the applicant’s own materials which show the applicant did know of the immigration consequences and had retained a lawyer to deal with the threat of deportation. Even if I found that Dr. Quinn did not ask the applicant about his immigration status, it is unclear how that would detract from his finding of fitness.
[50] The applicant places great reliance on R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259, in an attempt to show the trial judge should have done more to determine fitness in his case.
[51] However, I find Walker to be of little assistance to the applicant. There, a self-represented appellant was facing a dangerous offender application. There had been a fitness report prepared some two and a half years before the dangerous offender hearing took place. During the course of the hearing, it became apparent that the appellant was displaying signs of being unwell and failing to grasp the nature of the dangerous offender proceeding in which she was supposed to be a participant.
[52] The Court of Appeal found that in light of the appellant’s behaviour and state of confusion the judge erred in failing to inquire into the appellant’s fitness as well as failing to confirm that the appellant wished to proceed without her own counsel.
[53] That is very different from the instant case where a fitness report had been prepared for the very hearing that took place.
[54] The applicant was found fit. He was represented by counsel who agreed that he was fit and who had indicated that he had been able to communicate with and be instructed by the applicant. Mr. Horton indicated that the applicant was aware of what was to happen and wished to continue with the proceedings. The judge conducted a fitness hearing and ordered the applicant fit. At the sentencing hearing, Brewer J. questioned the applicant on a plea inquiry to make sure that the plea was unequivocal and voluntary. She was satisfied that the applicant understood the process and proceeded on that basis.
[55] For these reasons, I find very little merit in the applicant’s argument regarding fitness.
Merits of the Sentence Appeal
[56] The applicant also submits an alternative ground of appeal: the necessity of a reduction of sentence to a conditional discharge to avoid immigration consequences.
[57] The applicant’s proposed course of action is grounded in the principles of R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, where the Supreme Court of Canada held that immigration consequences could be used to fashion a sentence. However, at para. 16, the Court made clear that those consequences could not be allowed to “skew” the process to accommodate the risk of deportation. At para. 14, the Court observed that:
The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
[58] Here, the applicant’s argument on the merits of the appeal fails on two grounds.
[59] First, the applicant pleaded guilty to a domestic assault which ended with his mother losing three teeth as a result of his violence. A conditional discharge could not be justified as a proportionate sentence in response to the seriousness of the offence.
[60] Secondly, the applicant’s immigration status is not affected by this conviction.
[61] As described, on 9 April 2022, the CBSA informed the applicant that he faced no further action in respect of the May 2021 conviction. However, he was warned that “this decision may be reviewed should we become aware of any further violations of the Immigration and Refuge Protection Act.” In other words, there are no current collateral consequences for the applicant’s immigration status.
[62] I reject the applicant’s arguments that the case of R. v. Girn, 2019 ONCA 202, 373 C.C.C. (3d) 139, stands for the proposition that “a warning letter is a serious consequence of a guilty plea”. Paragraphs 56-70, cited as support for the applicant’s position, make no reference to a warning letter as a collateral consequence.
[63] The applicant argues that a warning letter raises the possibility of deportation should the appellant contravene the law on a future occasion. With respect, it is not the warning letter that has this effect but the appellant’s commission of a criminal act that triggers the deportation order. The existence of the warning letter puts him in no worse a position than if one had not been sent. In both cases, he would face no action unless he committed an offence which might lead to deportation.
[64] Even if the warning letter could be seen as a collateral immigration consequence of his guilty plea, a conditional discharge, in my view, would be unavailable for the reasons previously described.
[65] I conclude therefore that the merits of appeal are extremely weak.
[66] In light of the unexplained delay, and the lack of merits of the proposed appeal, I find the applicant has failed to persuade me that the interests of justice would be served by extending the time to file an appeal. The application is accordingly dismissed.
S.A.Q. Akhtar J.
Released: 12 July 2022
COURT FILE NO.: CR-22-00000017-00AP
DATE: 20220712
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICARDO EDMOND
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.