2018 QCCA 1610, 2018 QCCA 1610

Morgan c. R. 2018 QCCA 1610 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006581-175 (500-01-147749-169) MINUTES OF THE HEARING DATE: October 1, 2018 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER JONATHAN MORGAN IN PERSON RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre WILLIAM LEMAY (Directeur des poursuites criminelles et pénales) DESCRIPTION: Amended motion for extension of time to file his notice of appeal. (Sect. 678(2) Cr.C. ) Motion for suspension of sentence rendered on October 18, 2017 by the Honourable Julie Riendeau of the Quebec Court, District of Montreal. (Sect. 683(5) Cr.C. ) Clerk: Mihary Andrianaivo Courtroom: RC.18

HEARING 9:36 Beginning of the hearing. Exchanges between the Judge and the Petitioner, Jonathan Morgan.9:38 Mtre William Lemay states he is opposing the motions.9:39 Submissions by Mr. Jonathan Morgan.9:58 Submissions by Mtre Lemay.10:10 Rebuttal by Mr. Jonathan Morgan.10:14 BY THE JUDGE: The hearing is postponed until 4:00 p.m. today for purpose ofjudgment delivery, the parties’ attendance is not required.16 h 18 Resumption of the hearing. BY THE JUDGE: Judgment – see page 3.16 h 19 End of the hearing.

Mihary AndrianaivoClerk BY THE JUDGE JUDGMENT [1] Jonathan Morgan seeks leave to extend the time limits to appeal a judgment of the Court of Québec (criminal and penaldivision), rendered by the Honourable Judge Julie Riendeau on July 5, 2017, in which he was found guilty of one count of assaultcausing bodily harm and one count of uttering threats to cause death or bodily harm and charges of having breached a probation order.

He also seeks leave to extend the time limit to appeal from the judgment, rendered by the same judge on October 18, 2017, whichsentenced him to a two-year period of imprisonment, less time spent in pre-sentence custody, followed by three years of probation forthose offences. He has also filed a motion for suspension of the sentence pursuant to s. 683(5) Cr.C. [2] In the judgment on verdict, the judge explained that the charges of assault and uttering of threats were brought against thepetitioner following a complaint by his former girlfriend in respect of events arising at his apartment.

The complainant and the petitioneroffered divergent accounts of those events. The judge analyzed these versions, and the balance of the evidence, using the framework setout in R. v. W.(D)., (SCC), [1991] 1 S.C.R. 742.

She explained at length why she found the version of the petitioner tobe lacking in credibility, basing her conclusions in large part on contradictions between his testimony and evidence other than theaccount from the complainant, such as medical evidence, telephone records and the petitioner’s own account of his past criminal record.She also explained her view of the rest of the evidence, including the account of the complainant to which she attached credit, and howthe whole supported the conclusion that the petitioner was guilty as charged. [3] In a detailed judgment on sentence, the judge wrote, in particular, that the petitioner had indicated his willingness to undergotherapy.

She noted, however, the substantial number of aggravating factors, including a high risk of repeat offending and the significantdangers associated with his conduct in a domestic violence context.

While she recorded that there were no mitigating factors, she didtake note of his “adequate collaboration” and that fact that “his social history” may have played a role in problems he faced with alcoholand anger management. *** [4] All the motions are contested. [5] At the hearing before me, the petitioner was not represented by counsel. [6] The law governing applications to extend the time limit to appeal pursuant to s. 678(2) Cr.C. and s. 35 of the Rules of the Courtis well-settled.

The petitioner must show that he had the intention to appeal the two judgments within the relevant time periods set bylaw; he must show that he was diligent in pursuing his appeal during that period, and that he has arguable grounds to submit to the Courtin support of the proposed appeals: see, e.g., R. v. Lamontagne, (QC CA, per Fish, J.A., as he then was). These are

understood as a guide for treating such motions rather than a rigid test that would otherwise eliminate the discretion to extend time in appropriate cases: see, e.g ., R. v. Canto , 2015 ABCA 306 ; R. v. Ansari , 2015 ONCA 891 . Ultimately, the overarching consideration is whether the petitioner has shown that the interests of justice in the case require that the time limit within which an appeal can be brought should be extended: Ansari , supra , para. [23] ; Hudon c. R ., 2016 QCCA 2085 (in chambers); Gagné c.

R ., 2018 QCCA 1303 (in chambers). *** [ 7 ] Did the petitioner intend to appeal each of the judgments within the prescribed periods and did he pursue the appeals with due diligence? [ 8 ] The petitioner was detained at the time the verdict and judgment on sentence were rendered. He states that from the moment he was made aware of the verdict and the sentence he intended to appeal those judgments, which intention “was relayed by the appellant’s accused lawyer of first instance Me Antonio Perfetto to the prosecutor of first instance Me David Landry”.

He states he only learned that his former lawyer would not act for him on appeal on December 13, 2017, which was after the expiry of the time allowed to appeal both judgments. [1] That month he obtained a legal aid certificate and only secured counsel in February 2018. In April 2018, that lawyer ceased to act for him. The first iteration of his motion was dated May 19, 2018. [ 9 ] This narrative, supported by affidavit, leaves unexplained several periods of apparent inaction. The petitioner also concedes that, from jail, he was able to proceed on other court matters.

That said, considering that the petitioner was in prison for part of the period of the lateness and considering the time he spent seeking legal aid, I will consider the proof of intention to appeal both judgments and of his diligence in pursuit of those appeals to be adequate for present purposes. [ 10 ] Are the grounds of appeal raised in the motion arguable ones? [ 11 ] The petitioner raises 17 grounds, mixing arguments against the verdict and arguments against the sentence in a single list of his of his grievances against the two judgments. [ 12 ] The legal arguments he raises in respect of the verdict are, on their face, without merit. [ 13 ] No serious argument is raised to suggest that the measures taken to facilitate the complainant’s testimony constitute a reviewable error committed in the exercise of the judge’s discretion in such matters.

Well-educated adults who allege that they are victims of domestic violence are not excluded from such protective measures. [ 14 ] The petitioner’s argument that the judge was mistaken in assessing his credibility is weak. The judge set out many reasons why his account was not believable based on how that account conflicted with certain objective facts, including medical evidence, many of which go unanswered in the grounds for leave.

The petitioner has fixed in particular on one of the reasons noted by the judge, but even if the judge made the mistake on that point, nothing suggests it would have had an impact on the verdict rendered. [ 15 ] I recognize that a judge in chambers is often ill-placed to measure the weight of some of the arguments that have a fact based component. It is nevertheless plain in this instance that the proposed appeal on verdict, based on the specific grievances raised and the character of the reasons given by the judge, is a weak one.

While the bar is relatively low under s. 678(2) Cr.C. , the petitioner has not convinced me than any of his arguments has a reasonable prospect of success. [ 16 ] The grounds for appeal on sentence strike me as especially weak. The petitioner objects in particular to a condition that the judge imposed on his use of social media as a violation of his constitutional right of freedom of expression. The judge explained, however, her finding that the petitioner had contacted the complainant many times while he was in prison, in violation of a court order.

The judge’s choice to limit his access to social media as a means of protecting the complainant strikes me as a reasonable one, especially in light of his established use of social media in his communication with the complainant (see para. [44] of the judgment on verdict).

In my view, there is no reasonable chance that, in a domestic violence context, this Court would overturn this condition on the basis of the freedom of expression argument raised by the petitioner. [ 17 ] Finally, the petitioner says that the two-year sentence imposed by the judge was excessively harsh “and exceeds all other sentences for similar infractions in the area under similar circumstances and is a miscarriage of justice”. [ 18 ] A judge in chambers should take care before dismissing such an argument summarily, even on a motion to extend the time limit for leave, in that the determination of a fit sentence generally requires a familiarity with the whole of the file. [ 19 ] Mindful that I should caution myself before doing so, I am of the view that this ground as disclosed is so weak as to have no reasonable chance of success here.

The judgment on sentence contains an exhaustive explanation of the manner in which the judge weighed the aggravating and mitigating factors, including the risk of repeat offending, the danger that the petitioner represents, the relevance of his past record, and the importance that judgments on sentence denounce domestic violence as a deterrent to what Parliament considers to be a serious social problem. The petitioner has raised no plausible argument to suggest how or why the judge was mistaken in the exercise of her discretion here.

Specifically, the petitioner has failed to indicate how the applicable standard of review would entitle an ordinarily deferential appellate court to intervene on the quantum. Moreover, the petitioner is patently wrong in saying that sentence “exceeds all other sentences” imposed in similar circumstances. [ 20 ] The proposed appeals on verdict and on sentence have no reasonable chance of success. On that basis alone, the interests of justice do not require that the motion to extend the time limits for leave be granted.

FOR THE FOREGOING REASONS , the undersigned: [ 21 ] DISMISSES the amended motion to extend the time limits to appeal the verdict and judgment on sentence; [ 22 ] DECLARES the motion for suspension of the sentence to be without further object. NICHOLAS KASIRER , J.A.