



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Murray, 2022 ONCA 85

DATE: 20220127

DOCKET: M53094

Lauwers
J.A. (Motion Judge)

BETWEEN

Her
Majesty the Queen

Responding Party

and

Stuart
Cameron Murray

Moving Party

Stuart Cameron Murray
, acting in person

Kevin Rawluk
,
for the responding party

Heard: January 14, 2022 by video conference

REASONS
FOR DECISION

[1]

The moving party, Mr. Murray, pleaded guilty to
one count of fraud over $5,000 and was convicted on November 26, 2020. He was
sentenced on February 3, 2021 to an 18-month conditional sentence. The
conviction occurred in the context of Mr. Murrays practice as a real estate lawyer
and was accompanied by proceedings before the Law Society, which resulted in
the revocation of his licence to practise law.

[2]

Mr. Murray seeks a ten-month extension of the time
within which he can appeal his criminal conviction and sentence.

[3]

On a motion for an extension of time, the
overarching question is whether the justice of the case requires that an
extension be given. The court should take into account all relevant considerations,
which include: (a) whether the moving party formed a
bona fide
intention to appeal within the relevant time period; (b) the length of, and
explanation for, the delay; (c) any prejudice to the responding parties; and
(d) the merits of the proposed appeal:
Enbridge Gas Distribution Inc. v.
Froese
, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. A lack of merit
alone can, in some circumstances, be a sufficient basis for denying an
extension of time:
Enbridge Gas
, at para. 16.

[4]

The Crown disputes Mr. Murrays intention to
appeal within the 30-day appeal period. The first time he told the Crown that
he wanted to appeal was on November 30, 2021, which the Crown points out was
already nine months out of time. Second, the Crown disputes the explanation for
the delay. Third, the Crown disputes the merits of the appeal.

The Merits of the Appeal

[5]

Mr. Murrays most viable argument for an extension
of time is that his appeal is potentially meritorious. Looked at more closely, Mr.
Murray seeks to appeal in order to be permitted to withdraw his guilty plea.

[6]

To be valid, a guilty plea must be voluntary, unequivocal,
and informed:
R. v. Wong
, 2018 SCC 25, [2018] 1 S.C.R. 696, at
para. 3, citing
R. v. T.(R.)
(1992), 10 O.R. (3d) 514 (C.A.), at
p. 519. Mr. Murray makes two arguments about the validity of his guilty plea. The
first concerns his mental state at the time of his plea. The second is that he was
unaware of the legally relevant consequences of his plea. I address each in
turn.

Mr. Murrays Guilty Plea and His Mental State

[7]

The context for Mr. Murrays guilty plea is set
out in the notice of motion:

[T]he Moving Party made a false guilty plea of
Fraud over $5,000 under s. 380 of the Criminal Code (R.S.C., 1985, c. C-46) for
being wilfully blind to the trust shortfall. As part of the guilty plea, the
Crown required the Moving Party to receive a revocation of the Moving Partys license
to practice law in Ontario from the Law Society and to come to an agreed
Statement of Facts with the Law Society.

[T]here were multiple unexpected consequences
of the guilty plea and the conviction. The Law Society used the guilty plea to
argue and obtain an order that the Moving Party misappropriated trust funds.
The Law Society also knew that the Moving Party was required to sign an Agreed
Statement of Facts as part of the guilty plea. As such, the Law Society made
the Moving Party Agree to multiple untrue statements in the Agreed Statement of
Facts.

[8]

Without going too far into the details, it
appears that a couple of serious banking errors by the Toronto Dominion Bank
with respect to the trust account for Mr. Murrays law practice led to a domino
effect, in which there were shortfalls involving several real estate
transactions in 2016. A complaint was made to the Law Society, which swept in
to investigate, and the rest followed.

[9]

Mr. Murray explains his false guilty plea in three
paragraphs in his affidavit:

The trial was set for January 2021. Mr. Murray
had already been going through over five years of depression, suicidal thoughts
and an overall high stress mental state. For example, every night Mr. Murray
suffered from anxiety attacks. As early as December 2016, Mr. Murray had
planned out how to kill himself by slitting his wrists and laying in a
dumpster. Mr. Murray was carrying on day by day by telling himself to mentally
kill himself so that his body and what was left of his mind could go on and
deal with the matter. As of the date of this Affidavit, Mr. Murray continues to
be of the belief that he already killed himself mentally as part of coping
with his life.

Although Mr. Murray was the one that found the
known errors made by TD Bank, Mr. Murray was severely cognitively challenged
due to the impact of the matter on Mr. Murray.

Mr. Murray was concerned that he would not be
able to sit through the trial let alone participate in it.

[10]

Mr. Murray provided this court with no expert
evidence on his mental state at the time of his guilty plea. The only evidence
in the record was his prescription for antidepressant medication, as well as a
letter from the defences book of documents for sentencing, which was in the
Crowns motion record. This letter, dated November 3, 2020, was written on Mr.
Murrays behalf by a clinical psychologist. The letter provides:

This letter is respectfully submitted to
provide additional information that may be useful regarding Mr. Murray. Mr. Murray
sought my care in April 2020 due to significant depression brought on by
several stressors that have occurred in his life. Prior to the events of 2016,
Stuart had been a successful student earning his law degree, establishing Mullan
Law, and raising a daughter. Since that time, his life drastically changed, his
reputation and honor, once a source of pride, was ruined. He became depressed,
his marriage fell apart, and his career as a lawyer was effectively over
regardless of the outcome. He has remained in the state of limbo with the
accusations, charges, and investigations ongoing four years later. He [has]
experienced significant levels of depression, problems with concentration and attention,
difficulties sleeping and feelings of his life spiraling out of control and
suicidal ideation. He was isolating himself, ruminating in his depression with
a deep sense of shame and remorse for letting his clients, staff and family
down.



This cycle of overwhelming demands, overwork,
stress, and fear continued, fueling stress, anxiety, and cognitive impairments.



Mr. Murray still struggles with his depression
and the loss that he has experienced over the last four years.

The Principles that Govern the Voluntariness
of a Guilty Plea

[11]

When an accused challenges the voluntariness of
his or her guilty plea due to mental health concerns, courts apply the limited
cognitive capacity standard. The law in this area was recently summarized by
this court in
R. v. Cherrington
, 2018 ONCA 653, at para. 21:

A plea of guilty is
voluntary
if it
represents the conscious volitional decision of an accused for reasons that the
accused regards as appropriate. Pleas of guilty entered in open court in the
presence of counsel are presumed to be voluntary.
The
presumption is rebuttable, as for example, by evidence of an accuseds limited
cognitive capacity, a mental disorder or condition, or cognitive or emotional
issues such as anxiety, depression, chronic pain, anger management problems and
difficulty in communication
. However, an accused who claims
involuntariness must demonstrate that he or she lacked the capacity to make an
active or conscious choice whether to plead guilty:
R. v. T. (R.)
(1992), 10 O.R. (3d) 514 (C.A.), at p. 519;
R. v. M.A.W.
, 2008 ONCA
555, 237 C.C.C. (3d) 560, at paras. 23-37.
To enter a
voluntary plea of guilty, an accused need only be able to understand the
process leading to the plea, communicate with counsel, and make an active or
conscious choice
. Whether the choice to plead guilty is wise, rational
or in the accuseds best interest is not part of the inquiry:
M.A.W.
,
at para. 35;
R. v. Baylis
, 2015 ONCA 477, 326 C.C.C. (3d) 18, at para.
47. [Italics in original; underlining added.]

[12]

Doherty J.A. found in
R. v. Baylis
,
2015 ONCA 477, 326 C.C.C. (3d) 18, at para. 47, that although anxiety and
depression are very real problems, they will not render a guilty plea
involuntary unless they lead to an inability to understand the nature of the
criminal proceedings or to make an effective choice as to the plea to be
entered on the charges.

The Principles that Govern Whether a Guilty
Plea was Informed

[13]

The second ground Mr. Murray raised was that he
was unaware of the consequences of his guilty plea. In
Wong
, the
Supreme Court set out the principles governing the withdrawal of a guilty plea
on the basis that it was uninformed. To be informed, an accused must be aware
of the nature of the allegations made against him, the effect of his plea, and
the consequence of his plea:
Wong
, at para. 3, citing
T. (R.)
,
at p. 519. These consequences include both the criminal consequences and the legally
relevant collateral consequences of the plea:
Wong
, at para. 4. An accused
seeking to withdraw a guilty plea on this basis must establish subjective
prejudice. As the court explained in
Wong
, at para. 6:

[A]ccused persons who seek to withdraw their
guilty plea on the basis that they were unaware of legally relevant consequences
at the time of the plea must file an affidavit establishing a reasonable
possibility that they would have either (1) opted for a trial and pleaded not guilty;
or (2) pleaded guilty, but with different conditions. To assess the veracity of
that claim, courts can look to objective, contemporaneous evidence. The inquiry
is therefore subjective to the accused, but allows for an objective assessment
of the credibility of the accuseds subjective claim.

[14]

According to his affidavit, when Mr. Murray entered
the guilty plea, he was not aware that the Law Society would use the guilty
plea to justify finding him guilty of misappropriation of funds. He added:

Upon entering the guilty plea, the Law Society
outlined that Mr. Murray would now be found guilty of misappropriation of funds
based on the guilty plea. The Crown and the Law Society forced Mr. Murray to an
agreed Statement of Facts. The Crown would not agree to a guilty plea unless
Mr. Murray (1) came to an agreed Statement of Facts with the Law Society and
(2) arranged to have his licence to practice law revoked by the Law S[o]ciety.

On January 20, 2021, the Law Society ordered
that Mr. Murray had misappropriated funds he was holding in trust to
clients based on the guilty plea of wilful blindness.

On January 20, 2021, Paul Pape, the lawyer for
the Law Society, confirmed at the final hearing that Mr. Murray did not take
any funds.

[15]

In light of my disposition below as to the
voluntariness of Mr. Murrays guilty plea, I will postpone my analysis of the
merits of
Mr. Murray
s claim
that his plea was uninformed.

Discussion

[16]

I have sympathy for Mr. Murray. He clearly
remains deeply depressed. He did not have any difficulty in his oral
presentation, but his affect was very flat and at one point in his submissions,
he broke down.

[17]

That said, the bar permitting the withdrawal of
a guilty plea on the basis of limited cognitive capacity is very high. Mr.
Murray arrived at the argument of this motion without the necessary evidence.
Based on the opinion of the clinical psychologist, whose letter was provided to
the court in the context of sentencing, it might well be possible for Mr.
Murray to make out his case. However, he has not done so thus far.

[18]

In these difficult circumstances, I conclude
that prudence and justice require me to adjourn this application to a date to
be fixed in three months, in order to give Mr. Murray the opportunity to muster
the relevant evidence on the merits of his appeal. I will also arrange for a conference
call in about two months to determine Mr. Murrays progress. After that process
is completed, I will make the decision on this motion.

P.
Lauwers J.A.


