R v Unruh, 2023 ABKB 293

Court of King’s Bench of Alberta Citation: R v Unruh, 2023 ABKB 293 Date: 20230516 Docket: 180135964U1 Registry: Lethbridge Between: Justin Lee Unruh Applicant - and - His Majesty the King Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice J.C. Kubik _______________________________________________________ Throughout this decision, names of the complainants from the original charges of sexual assault have been initialized to A.A. and L.F. to protect their identity and privacy interests.

Overview [ 1 ] On February 8, 2018, Justin Unruh (“Unruh”) entered guilty pleas in relation to 6 offences, including: pointing a firearm at A.A., careless storage of a firearm, assault with a weapon against L.F., uttering threats to L.F., pointing a firearm at L.F., and cruelty to

animals. [ 2 ] Based on a joint submission, he was sentenced to a 2-year Conditional Sentence Order, a 3-year Probation Order, a 10-year Weapons Prohibition, a 10-year prohibition on his ownership of animals and was subject to an order to forfeit all weapons and ammunition seized at the time of his arrest. [ 3 ] The joint submission resulted in the Crown withdrawing 3 separate Informations which alleged 23 criminal charges, including 2 allegations of sexual assault made by 2 separate complainants, one of whom was L.F. [ 4 ] On October 13, 2022, some 4 years and 8 months later, Unruh filed an application seeking an extension of the time for filing a

summary conviction appeal. He argues that he is the victim of a miscarriage of justice – that he was bullied by his then lawyer, Doug Carle (“Carle”) into entering false guilty pleas, and that the pressure to plead was exerted by Carle to hide his ineffective assistance to Unruh.

Ultimately, Unruh argues that in assessing the factors relevant to extending the time for filing his appeal, this alleged miscarriage of justice is determinative. [ 5 ] It is the position of the Crown that the delay is inordinate and results in significant prejudice, not only because a significant period has elapsed since the conviction, but also because L.F. died after the expiry of the appeal period and before this application was filed. The Crown also argues that Unruh entered the guilty pleas freely and voluntarily and that no miscarriage of justice occurred.

Background Facts [ 6 ] The evidence filed by Unruh consists of 6 affidavits appending communications between Carle and Unruh, Unruh’s father, and Crown counsel, as well as an Agreed Statement of Facts (“ASF”), and the transcript of the guilty plea and sentencing hearing. There are also affidavits which speak to what occurred between counsel and client on the day of the guilty plea. [ 7 ] The affidavit evidence also includes correspondences between Unruh’s current counsel, Tom Engel (“Engel”); Carle, Bruce Hepburn, K.C. (“Hepburn”); and the Crown.

This is not a proceeding in which Carle has an opportunity to respond, and the entirety of the Carle’s file has not been produced. I note specifically that several emails and letters between Carle and Unruh, which are referenced in Engel’s correspondence to Carle, are not reproduced for my review. Many of these would provide context to the discussions that occurred in January and February 2018 as the plea deal was being negotiated. I have considered the file contents produced to reflect the written advice provided and the confirmation of various instructions received.

Where file materials available to Unruh have not been produced, I have considered the information set out in Carle’s reply letter to Engel and drawn an adverse inference against Unruh arising from the lack of production. This has informed my assessment of the credibility of various affidavits sworn in these proceedings. [ 8 ] The record demonstrates that Unruh and Carle engaged in a significant number of communications, both oral and written, from the date the file was opened until after the guilty plea, sentencing and forfeiture hearing.

These communications are evidenced by memos to the file, emails, and letters. The communications include Carle reporting on file developments and providing legal advice.

They also include exchanges which demonstrate Unruh’s displeasure with Carle, including accusations that Carle was not acting in his best interests, and information that Unruh was seeking other legal opinions and planning to terminate his relationship with Carle. [ 9 ] Unruh’s father, who paid Unruh’s legal fees, was also in communication with Carle and acted as a conduit of information between lawyer and client, most critically in January 2018 after Carle had received a resolution offer from the Crown which met with Unruh’s desire to avoid being incarcerated and continue his employment. [ 10 ] Discussions regarding a potential plea agreement began in 2016.

In an email dated June 27, 2016, Unruh advised Carle that he would like to consider the idea of a plea bargain and went so far as to suggest a plea to “a couple of the allegations where end result would be time served...”. In May 2017 plea discussions began between Carle and the Crown. This resulted in the Crown providing a draft ASF, premised on the charges ultimately pleaded to by Unruh, on what appear to be similar factual allegations.

Unruh expressed dissatisfaction with certain facts pertaining to the animal cruelty offence and Carle advised the Crown that Unruh could not admit certain facts in relation to that charge. [ 11 ] Unruh obtained a second opinion from Hepburn, a lawyer recommended to him by Carle. While Carle (by Hepburn’s own admission) appears to have exaggerated Hepburn’s criminal law expertise, Hepburn provided a detailed opinion as to the potential sentencing range on conviction versus plea. [ 12 ] Ultimately, Unruh rejected the plea deal.

In an email to Carle dated August 21, 2017, Unruh states: I have thought about the deal and it’s possible outcomes to great length as well as not taking the deal and it’s repercussions in great depth. Weighing both possibilities and all the potential factors. I have decided to respectively decline the deal with crown has offered. The simple fact is if I were to take a deal and go to jail for 18months I would lose house, my career and relationship with my children.

As I have explained if there was a guarantee that I could keep my job and not go to jail I would be inclined to take a deal. [original spelling preserved] [ 13 ] The trial was scheduled to proceed on multiple days in April 2018. [ 14 ] Following a pre-trial conference in January 2018, plea discussions re-opened. While the original Crown offer involved a guilty plea to the 6-count Information and a 90-day intermittent gaol sentence, this was later revised to a Conditional Sentence Order, meeting Unruh’s expressed concern about his job security and children.

At this time, Unruh elected to get a third opinion from Patrick Fagan, K.C. (“Fagan”). Written communications from Carle to Unruh confirm that if, following this opinion, Unruh elected not to proceed with the plea deal, Carle would withdraw, and Fagan would be retained as trial counsel. This is also confirmed by Unruh’s affidavit which states that Fagan advised him that the Crown plea offer was reasonable in relation to the ordinary sentence ranges for the

offences, and that Fagan confirmed that he would be prepared to take the matter to trial if retained. [15] Unruh instructed Carle to accept the deal. Based on a letter from Carle to Engel, which refers to emails and writtencommunications not otherwise filed in this application, Carle confirmed Unruh’s instructions by email. Carle further states that onFebruary 7, 2018, Carle met with Unruh and his father to review the terms of two ancillary orders and the ASF and Unruh againconfirmed his instructions to accept the plea deal. These instructions were again confirmed by Carle in writing.

These writtenconfirmations are not in the evidence, however there is nothing in the record to suggest the contrary. [16] On the afternoon of February 8, 2018, Unruh attended at the courthouse and reviewed and signed the ASF in the presence ofhis father, aunt, uncle, and Carle. [17] The judge presiding over the hearing did not perform a

section 606 inquiry, however Carle waived reading of the charges,offered the guilty pleas on behalf of his client, and informed the court that he had made the necessary

section 606 inquiries. [18] During the hearing, Carle corrected some information contained in the ASF pertaining to details about how Unruh and L.F.knew each other and where they went to school. This correction is reflected both in handwritten notes on the ASF and the transcript ofthe proceedings.

I conclude that Carle received this information directly from Unruh. [19] Prior to being sentenced, Unruh spoke directly to the judge telling her “...I have made bad choices, and they have led to wrongactions in the past, and over the last few years, I have seen my wrongs, and I want to continue to make the right choices and ensure thatthe wrong ones do not happen again...And I am truly sorry for the complainants and the pain and suffering I have caused them.” [20] At the conclusion of the sentencing hearing, in Unruh’s presence, there was a discussion about the forfeiture of propertyseized at the time of Unruh’s arrest.

The judge ordered that all firearms and ammunition seized by the RCMP would be forfeited 60 daysafter the sentencing hearing and that prior to that date Unruh could lawfully sell or transfer the firearms, any Airsoft or paintball guns andcrossbow to anyone who could lawfully possess them. It was ordered that all other seized items would be detained by the police pendingfurther application by Crown or defence within 30 days.

On February 16, 2018, the matter was before the court and the balance of theseized property, save for several knives and edged weapons, were returned to Unruh. [21] Unruh’s employment was terminated on February 20, 2018, after various media outlets reported on his convictions. Legal Principles [22] Limitations on the time by which an appeal must be filed exist to provide certainty in litigation. The applicable period forfiling and service of a

summary conviction appeal is 30 days. The law recognizes circumstances in which judges may exercise theirdiscretion to extend the time for filing such an appeal. In exercising this discretion the following factors must be considered:

a) Whether the applicant had a bona fide intention to appeal while the right to appeal existed;

b) Whether the applicant has provided an explanation justifying the failure to appeal in time;

c) Whether there is an absence of serious prejudice such that it would be unjust to disturb the judgment;

d) Whether the applicant has taken the benefits of the judgment; and

e) Whether the applicant has a reasonable chance of success – an arguable appeal: R v Canto, 2015 ABCA 306 [Canto]. Issues For Determination [23] The sole issue for determination is whether I should exercise my discretion to extend the time for Unruh to file his

summaryconviction appeal.

a) Did Unruh have bona fide intention to appeal while the right existed? [24] I accept Unruh’s sworn evidence that he formed the intention to appeal around February 20, 2018, after he lost hisemployment. Thereafter, in March 2018, his father sought additional advice from Fagan who recommended Engel as counsel. Unruh didnot retain Engel until May 17, 2018, after the appeal period had expired. There is no evidence before me as whether Unruh was aware ofthe 30-day appeal period or to explain the delay in retaining counsel.

b) Has Unruh provided an explanation justifying his failure to file the appealin time? [25] Cairns v Cairns, (AB CA) [Cairns], upon which Canto rests, focuses on the issue of delay, holding thatthere must be evidence not only to justify or excuse the delay in filing, but of such considerable weight to overcome the rights which vestin a party upon the expiry of the appeal period.

Cairns considers numerous cases where very short periods of delay, premised on errorsby counsel or a party were not sufficient to overcome that vested interest. [26] While the test applied by the Supreme Court of Canada in R v Roberge, 2005 SCC 48 , [2005] 2 SCR 469 [Roberge],is specific to leave and late filing applications before the Supreme Court, their analysis of delay is instructive in that it considers whether

counsel has moved diligently, has offered a proper explanation for delay, and the extent of the delay. In Roberge the Court found a delay of 4 months beyond the 60-day appeal period to be lengthy, despite evidence of illness and staffing shortages affecting the law firm. [ 27 ] Unruh provides 2 explanations which he argues justify his failure to appeal in time. First, he says that he needed to obtain documents and discover information which would form the basis of his appeal. This included the records of Carle as well as answers to an extensive list of questions Engel posed to Carle, Hepburn, and the Crown.

Second, he says that junior counsel assisting Engel suffered health setbacks which delayed filing the appeal. [ 28 ] In relation to the first explanation, the materials provide a chronology of the steps taken following Engel’s retainer: o October 2, 2018 – first request for the contents of Carle’s file. o October 12, 2018 – reply received from Carle forwarding his billing records. o January 3, 2019 – first request for the contents of Crown file.

The letter notes that Engel was assessing the merits of an appeal and application for leave to vacate the guilty pleas. o February 6, 2019 – further correspondence to Carle. The letter advises Carle that Engel is instructed to appeal the convictions and vacate the guilty pleas due to ineffective assistance of counsel, procuring false guilty pleas and a miscarriage of justice. o February 13, 2019 – further correspondence to Crown.

The letter informs the Crown that Engel has determined that Unruh should appeal and apply for leave to vacate the guilty pleas and that the necessary application would be filed “in due course”. o February 15, 2019 – correspondence to Hepburn. The letter advises Hepburn that Engel is instructed to appeal the convictions and vacate the guilty pleas. o February 22, 2019 – reply received from Crown advising that upon an application being filed by Unruh an external prosecutor would be assigned to the file.

The letter notes that an application for an extension of time for filing a notice of appeal would be required. o March 1, 2019 – detailed reply received from Hepburn. o March 15, 2019 – detailed reply received from Carle. o May 8, 2019 – correspondence sent to Justice and Solicitor General forwarding various correspondences and requesting a reply from the Crown.

The letter notes Unruh’s position that the Crown should respond to his questions before he files an appeal. o May 8, 2019 – Unruh makes a complaint against Carle to the Law Society of Alberta. o May 10, 2019 – Unruh makes a Freedom of Information and Privacy (FOIP) Act request with respect to materials in the possession of the government, namely Crown records. o December 2, 2019 – materials arising from FOIP request are received. o March 16, 2020 – reply received from Justice and Solicitor General. o February 10, 2020 – Unruh and his father file a Statement of Claim against Carle and his then articling student/associate lawyer, Mah, alleging breach of contract and fiduciary obligations, as well as negligence. o February 2, 2021 – follow up correspondence sent to Justice and Solicitor General. o February 23, 2021 – reply correspondence received from Justice and Solicitor General advising that no information would be provided until an application was filed to extend the time for filing a notice of appeal (amongst other things). o March 10, 2021 – Law Society complaint is dismissed. o October 13, 2022 – Unruh files his application for leave to extend the time to appeal. [ 29 ] A review of these correspondences demonstrates that by February 6, 2019, Unruh had instructed counsel to appeal the convictions.

He had sufficient information to commence a complaint to the Law Society on May 8, 2019, and to file a Statement of Claim on February 10, 2020. The Statement of Claim is detailed and demonstrates that by the time of its filing, Unruh was in possession of the material facts which support the application presently before me. Notably, the current application was filed without ever receiving additional material from the Crown.

As a result, the lack of Crown reply to counsel’s requests for information does not justify the delay in filing the current application, given that Unruh was in possession of all the necessary information to ground his application by February 10, 2020, at the latest. [ 30 ] Turning then to the issue of whether the health setbacks of junior counsel justify the late filing of the application, I have reviewed the affidavit of Praveen Alwis (“Alwis”) in the context of the timeline of events following Unruh’s conviction. [ 31 ] Alwis joined Engel’s law firm in May 2019.

He was assigned to assist Engel with the appeal and understood that Unruh had provided Engel with instructions to appeal when the office was retained in 2018. He further understood that they were holding off on filing an appeal until the Law Society investigation into Carle’s conduct was completed. In March 2020, Alwis suffered a health setback which affected his ability to productively work on the file. He disclosed this problem to Engel in October 2020, but continued to be assigned to the file. His symptoms abated in late 2021/early 2022, and he ultimately completed the necessary work to file the application.

In his affidavit, Alwis takes responsibility for the delay between 2019 and the date of filing, stating that the delay was not in any way due to a lack of intention or diligence by Unruh who he believed “maintained a continuous intention to appeal his criminal [convictions]

since he retained Engel Law Office in 2018”. [32] I have no doubt that Alwis’ illness affected his ability to complete the application documents. However, significant delayarose between May 2019 and March 10, 2021, not from Alwis’ illness, but because of the decision to not file this application until afterthe Law Society complaint was completed.

No explanation has been offered as to why the outcome of the Law Society complaint waspertinent to the filing of this application, particularly since Unruh was in possession of information which enabled him to file thecomplaint and a Statement of Claim, all within 2 years of his convictions. More than 3 years elapsed from the date of the convictions tothe point at which the Law Society complaint was dismissed. An additional year and a half elapsed between the conclusion of the LawSociety matters and the filing of this application.

Even if I accept that Alwis’ illness accounted for the delay in filing this applicationbetween March 10, 2021, and October 13, 2022, the period of delay leading up to March 10, 2021, is not justified given the informationavailable to Unruh by February 10, 2020.

c) Has Unruh demonstrated an absence of serious prejudice? [33] As previously noted, limitations on the time by which an appeal must be filed exist to provide certainty in litigation. In thiscase, 5 years have elapsed since Unruh was convicted and 7 years since he was charged. L.F., a complainant in relation to one of theallegations of sexual assault, as well as a witness to many of the other crimes alleged, died on March 4, 2022, well after the 30-day filingdeadline and 7 months prior to this application being filed.

It is not unreasonable to assume that other witnesses may not be available, ortheir memories have deteriorated due to the passage of time. [34] The prejudice to the Crown’s ability to pursue all original charges to trial is obvious, but the prejudice arising from L.F.’sdeath is the most critical. While Unruh argues that there may be video and audio recordings of L.F.’s evidence which could be entered attrial, there would still be admissibility and weight hurdles for the Crown to overcome arising from the fact that L.F. cannot be cross-examined.

Had the appeal been filed in time this prejudice would have been avoided. [35] The extent of this delay also seriously prejudices the administration of justice. As noted in R v Jordan, 2016 SCC 27: Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance.Section 11(

b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons “to betried within a reasonable time”. Moreover, the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the monthsfollowing a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trialdetention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives.

And thepublic, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watchingyears pass before a trial occurs. [36] Delay, the length of which is evident here, is clearly contrary to these goals.

d) Has Unruh taken the benefits of the judgment? [37] Unruh continues to be subject to his Probation Order and the 10-year weapons and animal ownership prohibitions. I amsatisfied that he has not taken any benefits of the conviction and guilty plea.

e) Does Unruh have a reasonable chance of success on appeal? [38] On appeal, Unruh would bear the burden of proving, on a balance of probabilities, that Carle’s acts or omissions constitutedincompetence and that a miscarriage of justice resulted: R v GDB 2000 SCC 22 , [2000] 1 SCR 520 [GDB]. [39] Unruh argues that Carle’s overall conduct of the file demonstrates his ineffective assistance.

Examples alleged include anuninformed re-election to a judge alone trial in the Alberta Court of Justice, waiver of the preliminary inquiry, deficient representationsregarding bail reviews, Carle’s willingness to agree to a consolidation of all Informations for the purposes of trial, and the fact that hehad not considered or advanced any applications pursuant to O’Connor, Mills, or

section 276 of the Criminal Code in advance of trial. Inaddition, Unruh argues that Carle misrepresented both he and Hepburn’s experience in criminal law, noting that Carle’s emails and othercommunications seem to belie a misunderstanding of the burden of proof and the test set out in R v W.D, (SCC), [1994]3 SCR 521. [40] Unruh also asserts that Carle, attempting to hide his ineffective assistance, bullied him into accepting the plea deal. He saysthis is evidenced by the condescending tone of Carle’s emails and his threats to withdraw as counsel.

In conjunction with this, Unruhargues that Carle’s excessive billing practices put him in a position where he knew his father could not afford to retain new counsel forhim, and this induced him to enter the guilty pleas. [41] The Crown, on the other hand argues that the Court must only assess Carle’s conduct in relation to the guilty plea andsentencing and not embark on an analysis of whether his acts or omissions would have affected the outcome of a trial.

They say theevidence supports a reasonable plea agreement on the facts of the case, confirmed by the independent advice of 2 other lawyers, and thatthe guilty pleas were fully informed and voluntary. [42] Having regard to the facts, I am not satisfied that Unruh has a demonstrated a reasonable chance of success on appeal. [43] While Carle may have provided procedural and other trial related advice which could have prejudiced a trial outcome, there isno evidence before me which demonstrates incompetence in arriving at the negotiated plea deal, which accorded with Unruh’s specific

instructions to avoid incarceration. Indeed, it appears that the opinions of Hepburn and Fagan both confirmed the reasonableness of thejoint submission. As noted in GDB, there is a strong presumption that counsel’s conduct fell within a wide range of reasonableprofessional assistance. It is for Unruh to displace this presumption with evidence that the acts or omissions were not in keeping withsuch reasonable professional assistance. [44] Unruh’s actions at the time of the guilty plea demonstrate that he was acting freely and voluntarily. A valid guilty plea is onewhich is voluntary and unequivocal.

The accused must be aware of the allegations against him, the effect of the plea and theconsequences to him: R v Lyons, (SCC), [1987] 2 SCR 309. A voluntary plea is one which is not coerced and is basedon free choice, untainted by improper threats, bullying or inducements: R v Henneberry, 2017 NSCA 71. [45] The evidence does not prove on a balance of probabilities that Unruh was bullied by Carle into the plea deal or that financialpressure operated as an inducement to plead guilty.

The communications demonstrate that Unruh freely questioned Carle’s advice,thoughtfully rejected (in writing) the plea deal in August 2017 for reasons relating to his job security and family and sought independentadvice from Fagan prior to accepting the deal. Further, he understood that if he did not accept the deal Fagan would run the trial on hisbehalf.

In this regard, Unruh’s father’s affidavit confirms that while he was unhappy at the prospect of funding a second lawyer given thecost he had incurred to pay Carle, and he discouraged Unruh from firing Carle, at no time did he tell Unruh that he would not pay forFagan to run the trial.

As a result, at the time he accepted the plea deal, Unruh was not foreclosed financially from exercising his optionto proceed to trial. [46] While the affidavits sworn in support of this application state that at the time of signing Unruh said words to the effect of “thisis wrong”, “this isn’t right” or “I didn’t do this”, there is no evidence of Unruh being placed under duress or coercion by Carle.

I amsatisfied that the ASF was reviewed with Unruh on both February 7 and 8, 2018, and that Unruh was aware prior to February 8, 2018,that as part of the plea and sentencing hearing he would be required to admit the facts as stated by the Crown: (Unproduced emailcorrespondence of February 5, 2018, quoted in Engel’s letter to Carle dated February 6, 2019). Unruh had dictated the terms under whichhe was prepared to plead guilty, and his instructions were confirmed, in writing, on more than one occasion. [47] The evidence as to whether Carle reviewed

section 606 of the Criminal Code is equivocal. Both Unruh and his father statethat they do not recall Carle reviewing “section 606” Code with Unruh, however their affidavits are silent as to whether he inquired asthe specific elements of

section 606. [48] The suggestion arising from this is that Carle counselled false guilty pleas. The evidence shows that Unruh noted andcorrected a relatively minor detail contained in the ASF about how he knew L.F. This demonstrates that he reviewed the documentbefore signing it, was aware of and accepted its contents.

I do not accept that a person concerned enough to seek a minor correctionwould have signed an otherwise false document, particularly when they were surrounded by three family members who had supportedthem throughout the criminal proceedings. [49] Finally, Unruh’s allegations that Carle told him to “look sad” and “say nothing” to the judge and made several false statementsto the Court including that Unruh was remorseful is not supported by the evidence. Unruh exercised his right of allocution before beingsentenced. In doing so, he expressed remorse for the victims and took responsibility for his actions.

This is consistent with his voluntaryand unequivocal plea. Conclusion [50] I am satisfied, after balancing all relevant factors, that I should not exercise my discretion to extend the time for filing thenotice of appeal. First, I am not satisfied that Unruh has provided an explanation which justifies late filing of his appeal. Second, seriousprejudice would result. Finally, I am not satisfied on the totality of the evidence before me in this application that Unruh has an arguableappeal. [51] Therefore, leave to extend the time to file an appeal is denied. Heard on the 14th day of March, 2023.

Dated at the City of Lethbridge, Alberta this 16th day of May, 2023. J.C. Kubik J.C.K.B.A. Appearances:

Tom Engel, Engel Law Office for the Applicant Shane Morrison, Alberta Crown Prosecution Service for the Respondent