OSHAWA COURT FILE NOs.: CR-23-16307-00MO and CR-23-16308-00MO DATE: 20240118

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MOHAMMAD BASHI Applicant

Counsel: Heather Cook, for the Crown Mohammad Bashi, Self-Represented Applicant

HEARD: January 17, 2024

REASONS FOR DECISION

HEALEY, J.:

NATURE OF THE APPLICATION

1Mr. Bashi (the “Applicant”) applies to extend the time for leave to appeal against conviction entered by Justice West on March 23, 2023, following a guilty plea.

2The Applicant is self represented. He has not served an affidavit. As a result, I have carefully examined his pleadings and the documents filed by both the Applicant and the Crown to ensure that I have taken into account all information that might support the application.

3The Notice of Application sets out various grounds for the relief. The first is that his “ex”, who is the complainant Nisrin Aidak, “said that she will show up in court and decline charges”. The second is that he was misled by “femfacts”, which he did not elaborate on during his submissions. The third is that a few of the things that he pled guilty to, he did not do. During his submissions, he said several times that he did some of these things, but not all, and that he just wanted the chance to have a fair trial.

4The Notice of Application also provides that he and his wife were living together until March 10, 2023, and she told him that if he signed a “prenup” that she would come to court with him to say that she made a mistake. Further, it states that the judge told the Applicant that “if I admit, it will go a long way”. It also states that the Applicant’s lawyer said, “as long as your wife is on board things will be easier”. Last, he alleges that Justice West said “don't come back and say you did not do it”, which scared him.

5In his submissions Mr. Bashi repeated these same themes. He also said that he did not know that he had a right of appeal and that there was a time limit of 30 days. When asked by the court when he learned of these things, he described that it was just through discussion with other individuals, but no time frame was given.

THE FACTS

6The facts are that on January 12, 2022, the Applicant was arrested and released on an undertaking for offences concerning his common law partner, Nisrin Aidak. The undertaking contained a condition that he have no contact or communication with her and her two children, and to remain 500 meters away from 98 Brent Ct, Oshawa.

7The Applicant retained counsel Mr. Dominic Basile. Ms. Aidak also retained counsel, Ms. Maureen Salama, who communicated with Crown counsel having carriage, Mr. McGeachy, on her behalf.

8On July 8, 2022, Ms. Salama wrote to Mr. McGeachy, stating that her client wished to reconcile with the Applicant and did not want the prosecution of him to continue. That email did not say that Ms. Aidak was resiling from any of the statements that she provided, a fact that was pointed out by Mr. McGeachy in his responding email, and never rebutted by Ms. Salama.

9In contravention of his release conditions, the Applicant resumed cohabitation with Ms. Aidak at 98 Brent Ct. Oshawa. On August 18, 2022, Ms. Aidak reported further criminal behaviour towards her by the Applicant. The Applicant was also charged with breaching his undertaking.

10On August 22, 2022, Ms. Salama communicated with Mr. McGeachy through email that although her client had previously indicated that she wished to reconcile with the Applicant, that was no longer the case, and she wanted no further contact or communication with him.

11Three months later, Ms. Aidak spoke to Mr. McGeachy directly, who made notes of that communication of November 21, 2022. The notes were emailed to Mr. Basile. The information that Ms. Aidak provided to him, as recorded by Mr. McGeachy, was:

She says she wants to talk to crown about “I took the decision not to proceed with all this. He is a good dad for the kids and he never hurt them and they miss him. Especially Selina.” she says she is not afraid of him and knows he made a mistake. I told Nisrim that I am not the police and it is not my role to take statements from her about any of the evidence or faxts (sic) but that I now have it very clear that she wants the prosecution to end. She agreed.

I let her know that if there is a plea she will have the right to provide an impact statement and if there is no plea she will be invited to prepare for trial by the trial crown likely with VWAP, and offered the opportunity to view her prior statement to refresh her memory.

12The matters were judicially pre-tried by Justice West on December 15, 2022.

13On March 23, 2023, the Applicant pled guilty before Justice West. He was represented by Mr. Basile. Justice West first reviewed the Informations and charges with the Applicant and his lawyer. During that review, the Applicant pointed out that he believed that the year stated by Justice West for the charge of intimidation was in error.

14An extremely thorough plea comprehension inquiry was then conducted by Justice West. The transcript reveals that Justice West covered the following topics with the Applicant:

(a) That it was his decision to plead guilty;

(b) That no one was forcing him to plead guilty;

(c) That he was pleading guilty of his own free will;

(d) That nobody made promises to him that morning that were influencing his decision to plead guilt;.

(e) That he was pleading guilty to the eight charges because he was guilty of the eight charges;

(f) That he knew that if he pled guilty to the charges that he was giving up his right to have a trial;

(g) That the Crown no longer had to prove his guilt beyond a reasonable doubt because he was telling a judge that he was guilty of the charge;.

(h) That there were other charges before the court that he was not pleading guilty to, and those were going to be withdrawn by the Crown when he was sentenced;

(i) That there was no joint submission, which Justice West explained meant that his lawyer and the Crown were not asking him to impose the same sentence;

(j) That because it was not a joint submission, the sentencing would be up to Justice West; and

(k) That knowing that it was not a joint submission, that he still wished to plead guilty to the charges.

15The eight charges - three counts of assault, fail to comply, two counts of assault with a weapon, threatening death, and intimidation – were all read out by the clerk and the Applicant entered a plea of guilty.

16The facts supporting the charges were then read into the record. Mr. Basile confirmed his client’s instructions that the facts were correct. Justice West nonetheless addressed the Applicant directly and asked whether he agreed that the facts read by the Crown were correct, to which he responded “Yes, yes, Your Honour”.

17Justice West then turned to ordering a pre-sentence report, which he had earlier told the Applicant that he would require for sentencing. He then generally explained the process of the pre-sentence report to the Applicant, and the importance of being honest with the probation officer preparing the report, during which this exchange occurred:

THE COURT:

You pled guilty. It would not be helpful to your case if you were to say to the probation officer, my lawyer made me plead guilty. I'm not guilty of any of these offences. OK you understand what I’m saying? I get that, and you think maybe I wouldn't get that, I can tell you that in 15 years I've had that numerous times; it's not helpful. It probably leads to me striking a plea and ordering a trial, all right? And it also takes away any of the mitigation that might come from a guilty plea and acceptance of responsibility on the part, and I'm sure Mr. Basile has talked to you about that as well.

MOHAMMAD BASHI:

Yes, Your Honour.

18On June 2, 2023, the Applicant was sentenced to a 15-month conditional sentence followed by 12 months probation. This was the sentence requested by Mr. Basile on behalf of the Applicant. He received GPS monitoring for the first ten months of house arrest, followed by five months’ curfew.

19It is a condition of his order that he is to have no contact with Ms. Aidak except pursuant to a family court order, through counsel, family court proceedings or mediation, or with her prior consent filed in advance with his supervisor, or through the supervisor.

20On August 3, 2023, Ms. Aidak contacted the Applicant’s conditional sentence supervisor to report that the Applicant had been copying her on emails and that she wanted it to stop. The supervisor completed a report on the breach allegation, noting that Ms. Aidak wants no contact with the Applicant and had not attended the office to sign a consent.

21On August 8, 2023, the Applicant was arrested on an allegation of breach of conditional sentence order because of the indirect email contact.

22On October 3, 2023, the Applicant filed his Form 2 Notice of Appeal. This was almost exactly four months after he was sentenced.

23On December 12, 2023, the Applicant appeared before Justice West and admitted the breach of his conditional sentence order. His Honor deemed the suspended period of time as time served as part of the conditional sentence order, and the order recommenced. The Applicant continues to serve that sentence.

THE LAW

24Section 815 of the Criminal Code provides:

(1) An appellant who proposes to appeal to the appeal court shall give notice of appeal in such manner and within such period as may be directed by rules of court.

(2) The appeal court or a judge thereof may extend the time within which notice of appeal may be given.

25Rule 40.05(1) of the Criminal Proceedings Rules states that an appellant shall serve and file the notice of appeal,

(a) where the appeal is from a conviction or sentence or both, within 30 days after the day on which the sentence was imposed; or,

(b) in any other case, within 30 days after the day on which the adjudication under appeal was made.

26Where an applicant seeks to extend the time to appeal a conviction, the factors that he bears the burden of satisfying are:

1. Whether the applicant has shown a bona fide intention to appeal within the appeal period;

2. Whether the applicant has accounted for or explained the delay; and

3. Whether there is merit to the proposed appeal. [1]

27This is not an exhaustive list. Other factors that may be considered include whether the consequences of the conviction are out of proportion to the penalty imposed, whether the Crown will be prejudiced, and whether the applicant has taken the benefit of the judgment: Menear, at para. 21.

ANALYSIS

Intention to Appeal

28There is no demonstration of an intention to appeal between the sentencing date of June 2, 2023, and the expiry of the 30-day appeal period.

29The Applicant has indicated that he did not know about his rights to appeal during that period. He gave vague submissions about learning this information from unspecified individuals at some time prior to filing this Application and Notice of Appeal on October 3, 2023.

30He has provided no explanation for when or why he moved from his clear indication to Justice West that he wanted to voluntarily enter a plea, to wanting to appeal his convictions.

31The evidence suggests that although Ms. Aidak was vacillating on whether she wanted to reconcile with the Applicant in 2022, this was no longer so by the date of his sentencing. She never provided her consent for communication from him, which, entirely because of his own conduct, led to a breach of condition. On the timeline presented by the facts, his further arrest in August 2023 appears more likely to be the cause of him pursuing a path to appeal.

Explanation for the Delay

32In an email to the Crown’s office dated December 18, 2023, the Applicant asked for permission to proceed with an appeal. He wrote that the reason he was past the 30 days is because he did not know about it at all, and after he did, the process took forever.

33The Applicant told this court that he has lived in Canada for close to 30 years and that English is his third language. It is clear from the transcript from March 23, 2023 that he had no difficulty understanding the proceeding. He appeared to be engaged in the hearing, as he asked to have the term “joint submission” explained to him by Justice West, and corrected a date that he may have misheard. There is no evidence of an inability to receive and process information. It is difficult to accept in this era in which information is obtainable with a few keystrokes that the Applicant could not have quickly obtained information, had he been looking for it, about a summary conviction appeal and the required timeline.

34In that same email, he also alleged that the judge had said “what I should warn you against is if you admit and come back and say I did not do that”. He states that this comment led him to be scared to file.

35The record is clear that Justice West’s comments are not as the Applicant characterized. The judge’s comments were spoken in the context of talking about the Applicant’s interview with the probation officer. The subject of changing his plea never arose. Justice West’s comments cautioned the Applicant about the types of things that might be said to the probation officer that could lead him to striking the guilty plea and ordering a trial.

Merits of the Appeal

36In his Notice of Appeal, the Applicant states that the judge pressured him to accept the guilty plea and told him that it would go a long way if he pled guilty. There is a complete absence of anything of this nature in the record from March 23, 2023. To the contrary, the judge focused from the outset of the plea inquiry on ensuring that the Applicant was entering the plea of his own free will, and not because of promises, coercion or influence from anyone. The Applicant also submitted that this occurred during the pre-trial. While I can accept that there may have been a general discussion about the mitigating affect of a plea, there is no possibility that Justice West pressured, influenced or coerced the Applicant to plead guilty during a pretrial.

37Also found in his Notice of Appeal is the comment “my ex wrote to the Crown 2x saying that she exaggerated”. A review of the communications between Ms. Aidak and Crown counsel, whether directly or through her lawyer, demonstrates that she never once recanted her allegations or indicated that they were exaggerated or only partially true.

38The Applicant was represented by Mr. Basile from the time of the pretrial through to the sentencing. There is no allegation that Mr. Basile did not provide adequate representation. The only allegation levelled against Mr. Basile is that he told the Applicant that “as long as your wife is on board things will be easier”.

39The transcript from March 23, 2023, shows that this was an informed guilty plea that conformed to the statutory provision of s. 606(1.1) of the Criminal Code.

40Further, the Applicant agreed that the facts were correct. Justice West would not accept the acknowledgment from Mr. Basile that the facts were “substantially correct”. The Applicant has now implicitly said, by his comment that he did some things but not others, that he lied when agreeing that the facts were correct. He does not explain why he would do that at the time.

41There is no good reason to doubt the validity of the convictions. This is not one of those cases in which there is a real concern that an injustice has occurred.

42The Applicant has not satisfied any part of this test. There is no reason, in the interests of justice, why I should exercise my discretion to extend the time for an appeal.

43Application dismissed.

Madam Justice S.E. Healey Released: January 18, 2024

1R v. Garland, 2008 ONCA 134, at para. 2, citing R. v. Menear (2002), 162 C.C.C. (3d) 233 (Ont. C.A.) at para. 20.