R. v. Hobbs, 2017 BCSC 2033

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hobbs, 2017 BCSC 2033 Date: 20170823 Docket: 27193; 27194 Registry: Vancouver Regina v. Byron Thomas Hobbs Before: The Honourable Mr. Justice Verhoeven Oral Reasons for Judgment In Chambers Counsel for the Crown: N.M.D. Reithmeier Appearing on his own behalf: B. Hobbs Place and Date of Trial/Hearing: Vancouver, B.C. August 23, 2017 Place and Date of Judgment: Vancouver, B.C. August 23, 2017 [ 1 ] THE COURT: Mr. Hobbs, although I have listened carefully to what you have had to say, in

summary, I am not persuaded that there are grounds to allow the application for an extension of time, so let me go into some more detail about that now. [ 2 ] THE ACCUSED: I have actually remembered some more that is pertinent that I should say. [ 3 ] THE COURT: Well, I think I have heard you out. I believe I have the full flavour of everything that I might hear from you so I am going to stop you now, Mr. Hobbs. [ 4 ] Mr. Hobbs applies for an extension of time to file an appeal. Mr. Hobbs seeks to appeal two convictions and the associated sentences imposed arising from guilty pleas he made in June of 2014. Rule 6(2)(

a) requires that a defendant commence an appeal from a

summary conviction offence within 30 days after the pronouncement of the order under appeal, or within 30 days after the imposition of sentence where a sentence has been imposed. In this case Mr. Hobbs pleaded guilty on June 9, 2014 and was sentenced the next day, June 10, 2014. [ 5 ] The application is made pursuant to Rule 6(25) of the Supreme Court Criminal Rules. Rule 6(25) allows a judge of the appeal court to extend the time “only where and as necessary in the interests of justice”. [ 6 ] The Crown opposes the applications. [ 7 ] Mr. Hobbs is self-represented.

He filed no affidavit material in support of the application, but I have heard -- [ 8 ] THE ACCUSED: I believe that was -- [ 9 ] THE COURT: I have heard Mr. Hobbs -- please do not interrupt -- I have heard Mr. Hobbs at some length this morning to get a sense of what the appeal grounds would be. I have sufficient information in that respect to be able to make the required decision. [ 10 ] In terms of the background, Mr. Hobbs was charged under Information 15784-1, that on March 16, 2014, he committed theft of an iPad belonging to the Gastown Tattoo Parlour, contrary to s. 334 (

b) of the Criminal Code of Canada , R.S.C. 1985, c. C-46 [ Code ]. He was also charged on a separate Information, 16081-4-C, with various offences that occurred March 20, 2014. Those offences included causing bodily harm to William Holtby, causing bodily harm to Josephine Geronimo, and assault of Charmaine Johnston. The material events in relation to all charges occurred within a short span of time, and they all took place in the Gastown area of downtown Vancouver. [ 11 ] On June 9, 2014, Mr.

Hobbs entered guilty pleas before Judge Werier of the Provincial Court to a single count of theft on the first Information, 15784-1. He also pleaded guilty to Counts 1, 3 and 4, on the other Information, 16081-4-C. Those charges were two counts of assault causing bodily harm and one count of assault. [ 12 ] Mr. Hobbs was represented by counsel in relation to the guilty pleas and sentencing. [ 13 ] The sentencing hearing commenced immediately after the guilty pleas were made, and concluded the following day, June 10,

2014. Provincial Court Judge Werier imposed a suspended sentence of 18 months' probation on the first Information (the theft charge), and on the charges from the second Information (the two charges of assault causing bodily harm and one charge of assault) she imposed a seven-month jail sentence, in global terms, apportioned as between the three charges, and certain ancillary orders. [ 14 ] Thereafter, the sentence was served.

No notice of appeal was filed within 30 days as required by the Rules. [ 15 ] Approximately two-and-a-half years after the guilty pleas were made and the sentence imposed, on January 17, 2017, acting on his own behalf, Mr. Hobbs filed a notice of application for an extension of time to commence the appeal, and a notice of application for assignment of counsel under s. 684 of the Code . [ 16 ] The application for the appointment of counsel was heard on March 10, 2017, by Mr. Justice Williams.

On March 29, 2017, Williams J. dismissed the application for the appointment of counsel and also an application for relief against the cost of providing transcripts for the appeal. The reasons for judgment of Mr. Justice Williams are indexed at 2017 BCSC 508 . The reasons contain a good

summary of the circumstances of the offences at paras. 21-25, which I adopt. [ 17 ] A

summary augmented by the evidence on this application and the Crown’s submissions is as follows. On March 16, 2014, Mr. Hobbs entered the Gastown Tattoo Parlour at 105 West Cordova Street and stole an iPad belonging to the business. The theft was seen by staff members. Staff at the business knew him as he had been a client in the past. Today Mr. Hobbs states that the iPad was his, and he can prove it. [ 18 ] On March 20, 2014, Mr. Hobbs entered Millennium Clothing and Accessories Store and looked at merchandise there. The assistant manager, William Holtby, recognized Mr.

Hobbs from a Facebook photo posted by the Gastown Tattoo Parlour in relation to the iPad theft, and from seeing him on a previous occasion at the Millennium Store. Mr. Holtby verbally confronted Mr. Hobbs about the iPad theft. Mr. Hobbs assaulted Mr. Holtby by suddenly punching him in the jaw, requiring stitches and leaving a scar. [ 19 ] On March 24, 2014, four days after the Millennium Clothing store incident, Mr. Hobbs went to another shop called Looks Wow Face & Body Art, where he had been a previous client. He assaulted the proprietress there, Ms. Jojo Geronimo, and also a female security guard, Ms.

Johnston. The incidents were both captured on the shop security video cameras, from various angles. [ 20 ] The assaults on the two women were significant, as the Crown says in its submissions. That is a mild description. I have had the advantage that Williams J. did not have of looking at some of the video clips from the tattoo shop. They show a sudden, unprovoked and quite violent attack by Mr. Hobbs on the very petite proprietress, Ms. Geronimo. In court today Mr. Hobbs acknowledges that he is the person shown in the videos, and that the other person shown is Ms. Geronimo. They also show Mr.

Hobbs forcibly striking Ms. Johnston. [ 21 ] Should an extension of time to appeal be granted, Mr. Hobbs proposes to contend that he attacked Ms. Geronimo in self- defence. Based on the videos, and the general circumstances, that defence would be extremely difficult to make out. Perhaps one cannot say that a video would necessarily be conclusive in such matters. I observe that the videos are visual only. There is no sound. However nothing said in court suggests to me that there is any serious possibility of successfully appealing the assault on Ms.

Geronimo shown on the videos, shown simultaneously from several separate angles. The same applies with respect to the assault upon Ms. Johnston. [ 22 ] Mr. Hobbs contends that he has a genuine self defence argument. He states that he felt that there was a real risk that he might be assaulted by Ms. Geronimo. There is no sign of that whatsoever on the videos. I think it is extremely unlikely that anything like that could be maintained. [ 23 ] As he acknowledges, Mr. Hobbs is a sizable man, who is trained in martial arts, specifically karate and other martial arts that he mentioned in court.

He states that he could have struck Ms. Geronimo with much greater force than he did, and that he tried to deal with her physically in a very restrained way. That is not borne out by what I have seen on the videos. Even if Mr. Hobbs could have done a lot more violence than he did, that would not in any sense be a defence to the charge. [ 24 ] The first hurdle that Mr. Hobbs would have to overcome in order to succeed on the appeal would be that of withdrawing the guilty plea or pleas. That would be very difficult in the circumstances.

The same issue was considered by Williams J. in the decision I referred to previously. Beginning at para. 46 of the reasons, Williams J. set out the general principles applicable to applications to withdraw a guilty plea. He concluded that there was no reasonable prospect of the appeal succeeding, in particular due to the difficulty Mr. Hobbs would face in withdrawing the guilty pleas. [ 25 ] In substance the application before Williams J. was quite similar to the application before me.

Similar considerations apply. [ 26 ] As to the merits of the proposed appeal, Williams J. stated: [54] The final criterion to consider is whether the appeal has merit. That is, is this an arguable appeal? Is there some reasonable prospect of the appeal succeeding? [55] In assessing this aspect of Mr. Hobbs' application, I will take into account the submissions he has made. There is no substantive evidence to consider. [56] In my respectful view, it is in this regard that Mr. Hobbs' application must fail.

Realistically, given the tests he has to satisfy, both with regard to the extension of time but, more significantly, on the application to withdraw his guilty pleas, I do not believe that there is any reasonable prospect of the appeals succeeding. [ 27 ] I reach the same conclusion. [ 28 ] The onus is on the applicant to establish special circumstances which justify the granting of an extension of time to commence

an appeal. The ultimate issue is whether it is in the interests of justice to grant the extension: R. v. Sidhu , 2016 BCCA 23 , at para. 10 ; R. v. Gendreau , 2016 BCCA 141 , at para. 23 . [ 29 ] The factors to be considered include: (

a) whether the applicant had a bona fide intention to appeal before the expiration of the appeal period [that is, 30 days] and communicated that intention to the opposing party; (

b) whether the opposing party would be unduly prejudiced by an extension of time; (

c) the extent of the delay; (

d) whether there is a proper explanation for the delay; and (

e) the merits of the proposed appeal. [ 30 ] I have already dealt with the final matter, which is the merits of the proposed appeal. As I have said, I am not persuaded that there is any reasonable merit to the appeal at all. That is the same conclusion that Williams J. reached. [ 31 ] Moving back to the prior factors, the first is whether the appellant had a bona fide intention to appeal before the expiration date of the appeal and communicated that intention to the opposing party. It is not clear to me when exactly Mr.

Hobbs may have formed the intention to appeal, and whether that might have been formed before 30 days expired. However it is clear that there was no communication of that intention at any time until January 2017. [ 32 ] Mr. Hobbs says he was unaware that he could file the appeal acting on his own behalf. He says that he sought assistance from legal aid at some point while he was in custody following the sentencing hearing. He says that the Legal Services Society told him that they were not going to provide assistance, and that he erroneously understood that that was the end of the matter.

He states that at some later time he learned that he could file the appeal documents on his own, and he therefore filed the notice of appeal in January 2017, some two and a half years after the sentencing in question. However, there is no indication that his intention to appeal was communicated to the Crown at any time before the appeal was filed. [ 33 ] The second factor is whether the opposing party would be unduly prejudiced by an extension of time.

In that respect, the first but perhaps lesser consideration is that at this late stage the appeal would involve the diversion of considerable Crown resources to this matter, where the Crown would have long since considered it as having been concluded with finality. [ 34 ] As the Crown argues here, no doubt at the time of plea sentencing there was some back and forth, some quid pro quo , in terms of what charges would be pled to and what the sentence submissions would be.

The application to withdraw the guilty plea would require the Crown to review all of the circumstances relating to the charges and of entry of the guilty pleas. [ 35 ] More substantially in this respect, I am very concerned about prejudice to the witnesses and to the public at large. The witnesses would have attempted to put these matters behind them a long time ago.

From their personal point of view, it would be painful, difficult and potentially very traumatic to have these matters resurrected, especially given the passage of time. [ 36 ] There is a real possibility that the Crown’s ability to present the evidence has been prejudiced by the long delay. The whereabouts of the witnesses has not yet been investigated. Their ability to testify is not known.

It is reasonable to infer that there could be substantial erosion of memory after this much delay. [ 37 ] So I find that there would be substantial undue prejudice to the Crown in relation to its ability to prosecute the charges on behalf of the public. [ 38 ] The extent of the delay is self-explanatory. It is very long. [ 39 ] The next factor is whether there is a proper explanation for the delay. As I explained earlier, Mr. Hobbs contends that he did not have legal representation, and was not aware that he could appeal on his own.

That is not a very compelling reason, particularly having regard to the length of the delay. There was plenty of time to investigate the possibility of an appeal and to ask some questions or seek some information about that. The item of information Mr. Hobbs says he was unaware of is not obscure. The reason given does not explain the length of the delay by any means. There is no proper explanation for the delay. [ 40 ] Another factor is that Mr.

Hobbs’ sentence has been served, other than the weapons prohibition, (which is moot as the same sentence was imposed on another matter.) The utility of the proposed appeal may be limited. [ 41 ] So for those reasons, I have decided that Mr. Hobbs has not established that it is in the interests of justice to grant the extension, and the application is denied. “Verhoeven J.”