COURT FILE NO.: CR-23-10000086-00MO
DATE: 20231215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
NATHAN DAVIS
J. Bruno, for the Crown
A. Forsythe, for the Defence
HEARD: 27 November 2023
S.A.Q. AKHTAR J.
FACTUAL BACKGROUND AND OVERVIEW
Background Facts
[1] On 22 August 2022, the applicant pleaded guilty to one count of assault with a weapon contrary to s. 267(a) of the Criminal Code. The parties presented the Court with a joint submission for sentence. He received a suspended sentence with a two-year period of probation. The background facts read in disclosed that on 27 June 2021 he was at a bar at an after-hours establishment in Toronto. He got into an altercation with several patrons who were friends of the victim. The applicant was knocked to the ground and kicked. The victim intervened to break up the fight. Shortly afterwards, the victim was leaving the bar with his girlfriend. He was approached by the applicant who asked him, “why are your friends move like that?” At that point, the applicant stabbed the victim in the abdomen and fled the scene. The victim was taken to Etobicoke General Hospital where he was operated on to deal with internal bleeding.
[2] He now seeks to appeal the conviction on the basis that his plea was uninformed and brings an application to seek leave to extend the time for filing his notice of appeal. The Crown opposes that application.
[3] The plea was entered before Robertson J. of the Ontario Court of Justice and as noted, was the result of a joint submission by the parties. The applicant is a permanent resident who immigrated to Canada from Jamaica in November 2016.
[4] The applicant submits that at the time of the plea, he was informed that he would not be deported but would have a criminal conviction due to the sentence imposed. He claims that several months after sentence was imposed, he received correspondence from the Immigration and Refugee Board of Canada (IRB) advising him that he would be subject to an admissibility hearing as a result of his conviction which might lead to his deportation. There is no evidence advanced as to when he received this correspondence.
[5] In his affidavit filed in support of the application, the applicant indicated that he contacted defence counsel in November 2022 in order to appeal his conviction. However, because of financial constraints and injuries arising from a motorcycle accident in May 2023, he was unable to retain counsel until June 2023.
[6] The applicant also filed an affidavit from staff at counsel’s firm. The affidavit said that the matter was assigned to a junior lawyer who did not properly work on the file and whose employment was subsequently terminated. Defence counsel argues that if leave to extend time is given, the appeal will take only two weeks to perfect.
LEGAL PRINCIPLES
The Test for Granting Leave to Extend Filing Time
[7] Pursuant to Rule 40.05 of the Criminal Proceedings Rules, 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.
[8] The power 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 CanLII 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), at para. 20.
[9] In R. v. Closs (1998), 1998 CanLII 1921 (ON CA), 105 O.A.C. 392 (Ont. C.A.), Carthy J.A. at para. 8 in chambers, commented on the rarity of granting orders that extend time to appeal:
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.
[10] In Menear, at para. 20, the Court stressed that the power to extend time is a discretionary one and that no absolute rule exists to guide the Court. Nonetheless, the Court identified three factors to be considered when deciding whether an extension of time is justified. Subsequently, the Court in Roberge at para. 6 expanded on the three factors. They include:
Whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposing party within the prescribed time;
Whether counsel moved diligently;
Whether a proper explanation for the delay has been offered;
The extent of the delay;
Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and
The merits of the application for leave to appeal.
[11] 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 from the judgment”: Menear, at para. 21. In the end, the main consideration is whether the applicant has demonstrated that “the justice of the case requires that the extension of time be granted”: Menear, at para. 21; R. v. Ansari, 2015 ONCA 891, 128 O.R. (3d) 511, at para. 23.
SHOULD LEAVE BE GRANTED?
Did the Applicant Have a Bona Fide Intention to Appeal?
[12] The applicant concedes that he did not form the intention to appeal in the relevant time frame. However, he argues that he only became aware of the need to challenge his plea when he received documentation from the IRB. As I have previously noted, there is no evidence in the material filed identifying the date on which this documentation was received other than the applicant’s assertion that it was “several months” after he was sentenced.
Has the Applicant Properly Accounted for the Delay in this Case?
[13] The applicant’s affidavit indicates that he first contacted defence counsel, Breana Vandebeek, in November 2022. However, Ms. Vandebeek was not fully retained until June 2023, and the notice of application to extend was not filed until September 2023 almost one year after the appeal period had expired. The reason given for the delay is that the applicant was unable to afford a retainer as he was on welfare. In his affidavit, the applicant states that in September 2022, he took an 8-week Incubator program run through a local community centre for youth. He also says that he has tried to find work, but it has been difficult partly because of his criminal record.
[14] When cross-examined by the Crown at this hearing, the applicant testified that he had been unemployed since the beginning of the pandemic in March 2020. However, this evidence contradicted what he had advanced at the plea hearing. There, his counsel told the Court that the applicant was working two jobs. Counsel described him as “a very hard-working guy” who “works six to seven days a week” in construction. The applicant’s counsel also indicated that he had money and “was doing everything that he can to help and support his family”. Counsel went on to explain that the applicant “provides for his mother and grandmother in Jamaica. He sends monthly money as he is responsible to send money to them and take care of them as well as to his three-year-old that he also, he co-parents with, with his, the child’s mother and he’s a very good dad by all accounts and he is very much a, a factor in, in raising his, his child. He helps out as much as he can”.
[15] There was no reference to being unemployed or short of money. To the contrary, the submissions appeared to confirm that the applicant had sufficient funds to support himself as well as his family in Jamaica.
[16] Moreover, when the applicant addressed the sentencing court, he repeated the assertion that he was working and receiving $40 to $45 per hour.
[17] This clearly contradicts his evidence at this hearing. Accordingly, I find that he is not telling the truth about his impecuniosity. Nor is there any indication as to why, if the applicant was on welfare, he did not seek to obtain funding from Legal Aid.
Did Counsel Act Diligently?
[18] According to his affidavit, the applicant contacted Ms. Vandebeek in November 2022. However, no further action was taken for another year because of the lack of retainer. There is no indication on the evidence as to whether counsel advised the applicant to file a cursory Notice of Appeal and attend the self-represented Summary Conviction Appeal Court pending retainer or file a Notice of Appeal on the applicant’s behalf whilst he gathered the funds.
[19] The applicant, by his own admission, made two small payments in February 2023. He finally retained counsel in June 2023. According to the affidavit filed by Ana Mihajlovic, an articling student at Ms. Vandebeek’s office, Ms. Vandebeek was retained to seek an extension of time to file an appeal. However, nothing was done until 21 September 2023, over a year after the plea and three months after counsel had been retained.
[20] Ms. Mihaljlovic states that Ms. Vandebeek had several other files and court commitments. As a result, it was assigned to an associate to prepare the application to seek the extension. However, that associate failed to undertake that task and his employment was terminated in July 2023. It was only in September 2023 when a new associate was hired that the application was perfected.
[21] Accordingly, I find there was clearly a failure on defence counsel to act diligently in this case.
The Merits of the Appeal
[22] The sole ground of appeal in this case is that the applicant pleaded guilty without being fully informed of the consequences.
[23] In his affidavit, the applicant states that his lawyer told him if he accepted the plea deal made with the Crown he would not be deported but would have a criminal record. He claims that he would not have pleaded guilty if he was aware of the potential deportation consequences.
[24] However, these assertions are refuted by what was said at the plea hearing. The applicant’s counsel explicitly told the judge that the applicant “understands that a conviction will have immigration consequences and he is prepared to accept them”.
[25] The applicant was cross-examined on this apparent contradiction. He provided two different accounts. He initially told the Court that whilst he had heard what his counsel had said, he was not fully trained in these matters. Consequently, he did not understand nor appreciate the content of what was said. When pressed on why, having heard these submissions, he had not questioned counsel on the issue, the applicant provided a different answer. He said that he did know of the immigration consequences and did not want to plead guilty but had been persuaded otherwise by his counsel.
[26] These discrepancies significantly impact on both the applicant’s credibility and claims. They significantly undermine his ground of appeal. As a result of this evidence, I find that it has little merit.
Should Time Be Extended?
[27] For these reasons, I do not find that it is in the interest of justice to grant leave to extend time to appeal. The application is dismissed.
S.A.Q. Akhtar J.
Released: 15 December 2023
COURT FILE NO.: CR-23-10000086-00MO
DATE: 20231215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
NATHAN DAVIS
RULING ON APPLICATION TO SEEK LEAVE TO EXTEND FILING TIME FOR APPEAL
S.A.Q. Akhtar J.