R. v. Carefoot, 2023 BCSC 705

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Carefoot, 2023 BCSC 705 Date: 20230329 Docket: 33916-1 Registry: Vancouver Between: His Majesty the King Respondent And Nicholas Kenneth Carefoot Applicant Before: The Honourable Mr. Justice Betton On Appeal from: Provincial Court of British Columbia, June 23, 2022 ( R. v. Carefoot , Richmond File No. 65340-1) Oral Reasons for Judgment Counsel for the Respondent: S. Bains Appearing on his own behalf: N. Carefoot Place and Date of Trial/Hearing: Vancouver, B.C. March 29, 2023 Place and Date of Judgment: Vancouver, B.C.

March 29, 2023 [ 1 ] THE COURT: This is the application by Nicholas Kenneth Carefoot to extend the time to appeal a matter arising in the Richmond Provincial Court. [ 2 ] He was charged with theft under in relation to events apparently at a London Drugs store. The matter proceeded in Provincial Court. On a date set for trial June 23, 2021, his plea was changed from not guilty to guilty. He was sentenced at that time to a conditional discharge and with probation for 12 months. My understanding is that with COVID policies in place at the time he did not attend personally to sign the probation order.

The certified document which has been presented to me indicates that the order was explained to him on that date and that he acknowledged it. [ 3 ] It is somewhat unclear on the information before me just what role counsel had on his behalf. I am told that there was no counsel of record but there is a reference to a Mr. Paul Sprackman at least assisting Mr. Carefoot at the time.

I do not have any of the transcripts of the proceedings so I do not know specifically what was said or how the proceedings unfolded. [ 4 ] We are obviously approximately one-and-a-half years past the time within which a notice of appeal should have been filed. In support of his application, Mr. Carefoot attaches an affidavit, at least a form of document that is presented as an affidavit, although it was not sworn before a commissioner.

In any event, and as I understand it, it describes interactions between himself and RCMP members following his release from custody, that is after the events giving rise to his charges. They are not directly relevant to the merits of the allegations as to whether or not he did or did not commit theft from London Drugs. [ 5 ] He also attached a registered mail document and a copy of the cheque dated the offence date, which I assume shows that restitution was paid to London Drugs.

I do not know all of the proceedings, but logically may have been relevant to the imposition of a conditional discharge. [ 6 ] In any event, nothing has taken place since then. There is no indication of any intention to appeal within the 30 days following the guilty plea. Rather what appears to have occurred is in January of this year, 2023, Mr. Carefoot encountered difficulties entering the United States -- [ 7 ] THE APPLICANT: Forgive me, January 13th. [ 8 ] THE COURT: -- January 13, 2023 -- [ 9 ] THE APPLICANT: Yes, sir.

[ 10 ] THE COURT: -- and was denied entry into the United States, as he understands it, on the basis of the guilty plea to the -- and the imposition of the discharge for these offences. I have no evidence and no information as to specifically what transpired and what the foundation of that denial of entry was. It would seem, on the basis of oral representations made by Mr. Carefoot, that there was some conflict with the Immigration -- or the U.S. border authorities, but again I have limited information and ability to understand specifically what happened and how prominent the role of the discharge was in that.

In any event, that is what has driven Mr. Carefoot to now pursue this matter. [ 11 ] As to the merit of the appeal, I have no real information that would be relevant to the basis upon which to withdraw a guilty plea or any defence that might exist to the allegation of theft. Crown has fairly pointed to the decision of the Court of Appeal in R. v. Khungay , 2020 BCCA 269 , and the decision in R. v.

Sidhu , 2016 BCCA 23 , dealing with extensions of time to appeal. [ 12 ] Here, the explanation for the delay and the formulation of the intention is really connected with the January 13, 2023 events in his efforts to enter the United States. [ 13 ] I will briefly review the specific considerations outlined in Khungay . Was there a bona fide intention to appeal? Certainly not within the 30 days. That has been explained as I have alluded to and only arose from his challenges entering the States on January 13, 2023.

The Crown’s first knowledge of his intention is when this application was filed. [ 14 ] It is difficult to assess the level of prejudice. The Crown refers to the prospect that, if the guilty plea were withdrawn and a trial ordered, that the evidence of the offence may not be available.

That is a logical, but theoretical concern as there is simply no information on the subject. [ 15 ] I do not have the ability to assess the merit of the appeal and specifically whether there would be a basis to withdraw the guilty plea. [ 16 ] Considering overall the interests of justice and those factors generally, it is my conclusion that this is not an appropriate case in which to grant an extension of time to appeal, and I dismiss the application for the extension of time to appeal. “Betton J.”