



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brooks, 2020 ONCA 605

DATE: 20200923

DOCKET: M51757

Hourigan J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Omar
    Brooks

Appellant/Applicant

Grzegorz Dorsz, for the appellant

Xenia Proestos, for the respondent

Heard: September 18, 2020

REASONS FOR DECISION

(a)

Background

[1]

The applicant pleaded guilty to possession of approximately seven grams
    of marijuana for the purpose of trafficking on January 17, 2008. The trial
    judge accepted the joint submission of a sentence of time served (30 days) with
    an 18-month term of probation.

[2]

Approximately ten years later, the applicant moved to the United States
    on a temporary work visa. He had earlier attempted to enter that country but
    was rejected. After his visa expired, he remained in the country illegally and
    was arrested on January 22, 2020, by Immigration and Customs Enforcement and
    the F.B.I. At the time of his arrest, there was an outstanding Canadian warrant
    for his arrest on human trafficking charges.

[3]

According to a letter from the applicants American counsel filed on the
    motion, because of his possession for the purpose of trafficking conviction,
    the applicant cannot be released on bond until his immigration case is
    concluded. He remains incarcerated in California. Nowhere in the record does
    the applicant explain how he was able to secure a visa given his criminal
    record.

[4]

The applicant brings this application for an extension of time to
    appeal. The deadline for commencing the appeal was over 11 years ago. For the
    reasons that follow, the application is dismissed.

(b)

Analysis

[5]

The test on a motion for an extension of the deadline to appeal is well
    established in this courts jurisprudence. Factors that may be relevant to the
    exercise of the courts discretion include:

(a) whether the applicant formed a
bona fide
intention
    to appeal within the appeal period;

(b) whether the applicant has accounted for or explained the
    delay;

(c) whether the proposed appeal has merit;

(d) the length of the delay;

(e) whether there is any prejudice
    to the respondent; and

(f) whether the applicant has taken the benefit of the
    judgment.

See:
R. v. Ansari
, 2015 ONCA 891, 128 O.R. (3d) 511, at paras. 22-26 and
R.
    v. Menear
(2002), 162 C.C.C. (3d) 233 (Ont.
    C.A.), at paras. 20-21.

[6]

Ultimately, the main consideration is
    whether the applicant has demonstrated that justice requires that the extension
    of time be granted:
Menear
, at para.
    21.

[7]

It is evident that the applicant
did
    not form a
bona fide
intention to appeal within the appeal period. To
    the contrary, he seems to have been content with his guilty plea and sentence for
    many years.

[8]

I am satisfied that the applicant has
    adequately explained the delay. It would appear that he felt that there was no
    reason to challenge the conviction until he was arrested.

[9]

Regarding the merits of the proposed
    appeal, the applicant submits that if an extension is granted, he will argue
    that his plea was not fully informed, "as a result of the complete absence
    of information he received prior to his plea." I note that the applicant
    has not filed an affidavit in support of his application.

[10]

Watt J.A. described the nature of an
    informed guilty plea in
R. v. Girn
,
    2019 ONCA 202, 145 O.R. (3d) 420, at para. 52, as follows:

An
    informed guilty plea means that an accused must be aware of the criminal
    consequences of the plea and the legally relevant collateral consequences. A
    legally relevant collateral consequence is a consequence that bears upon
    sufficiently serious legal interests of the accused. Immigration consequences
    bear on sufficiently serious legal interests, falling within the legally
    relevant collateral consequences of a guilty plea:
Wong
, at para 4.

[11]

Thus, to succeed on the appeal, the
    applicant would have to establish that his conviction's emigration consequences
    are sufficiently serious legal interests
that fall within the legally relevant collateral
    consequences of the guilty plea
. In my view,
    the applicant will have difficulty in establishing that he has met that threshold.
    A guilty plea has myriad consequences, not all of which can be considered sufficiently
    serious to warrant setting aside an otherwise valid plea. A consequence that the
    plea may impact future travel or emigration plans does not strike me as being a
    sufficiently serious legal interest, as it would strain the definition to
    include a wide variety of remote consequences that do not impact on an
    applicants legal rights in Canada. While I am not prepared to find that the
    proposed ground of appeal is frivolous, I believe it is very weak and has a
    minimal prospect of success.  The merits of the proposed appeal do not,
    therefore, militate in favour of an extension.

[12]

The length of delay, being more than eleven
    years, is obviously excessive. This factor suggests that granting an extension
    is not appropriate.

[13]

Regarding prejudice, the Crown submits
    that it will be prejudiced on the appeal because it may be difficult to
    cross-examine the application on any affidavit he files given that he is
    incarcerated in California. I am not persuaded that this amounts to real
    prejudice, as there is no reason why such a cross-examination cannot be
    conducted remotely. The Crown also argues that if the appeal is allowed and a new
    trial is ordered, it will be prejudiced in prosecuting a dated charge. There is
    no doubt that it will be more difficult for the Crown to prove its case on a
    new trial, but I do not believe that such future prejudice is a significant
    factor at this stage.  In my view, there is no substantial prejudice to the
    Crown.

[14]

The appellants counsel concedes that his
    client took the benefit of the judgment in that he was released from custody as
    a consequence of the joint sentencing submission.

[15]

The justice of the case is a critical
    factor in this application. The applicant submits that it would be inequitable
    for him to be subject to indefinite incarceration in the United States based on
    what he submits is a relatively minor offence.

[16]

In considering the justice of the case,
    this courts comments in
Menear
at
    para. 24 are apt:

Courts have granted an extension of time to allow an accused to
    attempt to set aside a guilty plea notwithstanding lengthy unexplained delay
    where there are unexpected consequences of the conviction, and there is good
    reason to doubt the validity of the conviction.  The appellant attempts to
    bring himself within that line of cases and relies upon
R. v. Gaudreault
(1992), 76 C.C.C. (3d) 188 (Que. C.A.) and
R. v. Hetsberger

(1979),
    47 C.C.C. (2d) 154 (Ont. C.A.).  In our view, the correct principle is as
    stated by Carthy J.A. in
R. v. Closs
(1998), 105 O.A.C. 392 (C.A.) at
    394:

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. [Emphasis
    added.]

[17]

I am troubled by the applicant's
    failure to address in any meaningful way in his materials the impact of the
    human trafficking charges on his present legal situation in the United States.
    For example, there is nothing in the lawyer's letter regarding whether those
    charges would result in his continued detention or lead to his expulsion from
    the country. The applicant also makes much of the fact that the possession for
    the purpose of trafficking conviction means that he cannot obtain a bond before
    his hearing. However, there is no evidence regarding how long that pre-hearing
    custody is expected to last. Further, there is no evidence about how the
    applicant was able to obtain a visa, specifically whether he disclosed his
    criminal record.

[18]

Such information would be valuable in
    understanding the applicant's actual legal predicament and evaluating the
    justice of the case. The onus is on the applicant in this motion:
Menear
, at para 21. The applicants evidentiary record must establish
    that the justice of the case requires granting an extension of time to appeal: See
R. v. Gatfield
,
2016 ONCA 23, 345 O.A.C. 197, at paras. 5-9, 14-15.  I am
    not satisfied that the applicant has demonstrated that the justice of the case requires
    that the extension of time be granted.

[19]

In considering all of the relevant
    factors and keeping in mind the overarching justice of the case, I conclude
    that the applicant has not met his onus for an extension.

(c)

Disposition

[20]

The application is dismissed.

C.W.
    Hourigan J.A.


