R v Thomas, 2017 MBCA 23

Citation: R v Thomas, 2017 MBCA 23 Date: 20170213 Docket: AR12-30-07903 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) M. E. Thomas ) on her own behalf Respondent ) ) C. T. St. Croix - and - ) for the Respondent ) MARY ELLEN THOMAS ) Chambers motion heard: ) November 24, 2016 (Accused) Applicant ) ) Decision pronounced: ) February 13, 2017 MICHEL A.

MONNIN JA [ 1 ] On December 19, 2012, the accused filed a motion seeking to extend the time to appeal from her conviction on December 6, 2011, on a charge of second degree murder following a guilty plea to that charge. [ 2 ] Although the initial application was to seek an extension of time to file an appeal from her conviction, it transpires that what the accused is in fact seeking, now, almost five complete years after the fact, is to withdraw her plea of guilty to the charge of second degree murder. [ 3 ] Because it is not entirely clear as to what exactly the accused is seeking, I will address both the matter of an extension of time to file an appeal from her conviction and the matter of seeking to withdraw her plea of guilty. [ 4 ] The application to extend the time for the filing of an appeal is governed by r 12 of the Manitoba Criminal Appeal Rules and

section 678 of the Criminal Code . Those provisions read as follows: Notice of Application to Extend Time 12 A notice of application to extend the time for appealing or for applying for leave to appeal under

section 678 of the Criminal Code (Canada) shall contain the same information as required under subrule 3(1), and shall be given, dealt with by the registrar and proceeded with in the same manner as a notice of application for leave to appeal. Notice of appeal 678

(1) An appellant who proposes to appeal to the court of appeal or to obtain the leave of that court to appeal shall give notice of appeal or notice of his application for leave to appeal in such manner and within such period as may be directed by rules of court. Extension of time 678

(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given.

[ 5 ] I deal firstly with the application to extend time for the filing of an appeal. [ 6 ] The transcript of the proceedings, when her plea was entered, reads as follows: THE CLERK: Count 2, that she, the said Mary Ellen Thomas, on or about the 31st day of July in the year 2010, at the city of Winnipeg, in the province of Manitoba, did unlawfully kill Michael Allen and did thereby commit murder in the second degree. How do you plead, guilty or not guilty to count 2? THE ACCUSED: Guilty. THE CLERK: You say you are guilty? THE ACCUSED: Yes, I do. THE CLERK: Thank you.

THE COURT: And what are the facts the Crown’s relying on? MR. KANTOR: Yes, My Lord, do you wish for me to review the facts first before the plea inquiry? THE COURT: I do. MR. KANTOR: I can give just a brief summation of it. THE COURT: That’s all I need. I just want to be able to canvass what she’s admitting. MR. KANTOR: Yeah. Ms. Thomas had assaulted Mr. Michael Allen in his residence at 851 Nassau Street South here in Winnipeg.

She had -- well the pathologist’s report indicates that the cause of death was a fracture to the, to his spine and there were also numerous blunt force injuries throughout his body which of course I’ll go into in greater detail and it’s understood Ms. Thomas, after being arrested, had confessed to having committed the assaults against Mr. Allen which gave rise to his death which resulted in his death and those are perhaps, if it pleases the court, a brief summation of the facts. THE COURT: Do you admit those facts? THE ACCUSED: Yes, I do. THE COURT: All right.

You’re aware that you’re pleading guilty to an offence that puts you in jeopardy of a life sentence. You could go to jail for life for this? THE ACCUSED: Yes. THE COURT: All right. You’re entering a plea freely and voluntarily? You’re not being coerced into pleading guilty?

THE ACCUSED: No, I’m not. THE COURT: And you know that by pleading guilty that you’re waiving your right to a trial, there will be no witnesses called? THE ACCUSED: Yes. THE COURT: All right. And are you aware that even if there is a joint recommendation with your lawyer and the Crown, althoughthat’s very persuasive for me, I can impose whatever sentence I want at any time. THE ACCUSED: Yes, I’m aware of that. THE COURT: Okay. Anything else, Ms. Smith? MS. SMITH: No, My Lord. I can tell you that it had been Ms.

Thomas’s desire to plead guilty almost right from the start so it’s not asudden change of plea for her. [7] When imposing sentence, the judge further stated: I have before me a joint recommendation for a sentence to life imprisonment, no eligibility for parole for 10 years. Ms. Thomas has an extensive criminal record, which forms part of her background in deciding this sentence. I have been involved in the criminal justice system now for 31 years. I have practiced in rural Manitoba, had a lot of involvement withaboriginal people and, Ms.

Thomas, you are a classic example of everything that has gone wrong for the aboriginal people in thisprovince. You are a product of an abusive home. You have lived your life on the streets and I am sure it has been a very difficult life. You were involved in alcohol and drugs, including cocaine. You have been in and out of the justice system most of your life, involved inviolent offences. As you indicate you were brought up in a violent home and none of that surprises me hearing the facts of the offence.

This is exactly the type of thing that happens with people who have been subjected to what you have been subjected to through your life. As you say, you lost it. . . . This is clearly a Gladue situation [ (SCC), [1999] 1 SCR 688] where we have an aboriginal person who has beensubjected to all the negative things that our society has inflicted upon aboriginals and this is the product we get before the court and it isnot a surprise. You have mental health problems which have not been treated except when you are involved in the justice system, ahorrible life of prostitution.

All of that comes into your background in deciding this sentence. I accept that this is a true plea bargain because I certainly understand the defence position that in light of the alcohol you used, the drugs,there was a very realistic chance that this might have been reduced to manslaughter at a trial, but the accused has elected to plead guiltyand I accept that. And considering all of the factors, and I do not mean for a minute and I know this must be hard for the family, I do notdownplay at all the seriousness of the offence and the loss that they have suffered and the suffering that Mr.

Allen must have gonethrough, but on the other hand, a lifetime sentence is the heaviest sentence that I can impose and there will be a sentence of lifeimprisonment. [8] In an affidavit dated February 28, 2013, the accused deposed that the sentencing judge should not have proceededwith imposing sentence upon her as she had only agreed to plead guilty “cause [her] lawyer told [her she’d] end up with 25 to life.” Shefurther deposed that “I was drunk I was in scisofrenic [sic] state of mind it was an accident.” She goes on to state that she only agreedwith her lawyer because of her then mental state. [9] On February 28, 2013 the accused’s motion came before a judge of this Court sitting in chambers.

The note on thedisposition sheet indicates “application withdrawn to extend time [without] prejudice to Ms. Thomas bringing forward more complete

material at another time.” [10] On October 7, 2015, the accused filed a further affidavit. In it she deposes: THAT there was no Gladue report done my lawyer didn’t meet with me to give the proper legal consultation befor [sic] or during thetrial.

There is one main witness that lived next door to where the crime happend [sic] he saw me drunk and staggering there’s multiplewitnesses that knew I was drunk that night of the crime I myself with an oath say it is an accident I was not at my right frame of mind Iwas afraid I recently found out I have mood personality Disorder I feel that manslaughter will be the best out come. [11] At the accused’s request and without any further material being filed, the matter was again set down on the chamberslist for November 24, 2016. [12] The test to be met in an application to extend time to file an appeal is set out in R v DBR, 2005 MBCA 21.

Hamilton JAwrote (at para 6): An order to extend time is a discretionary order, with the overriding objective that justice be done in the circumstances. The criteria thatare normally considered on such an application are: 1. there was a continuous intention to appeal from a time within the period when the appeal should have been commenced; 2. there is a reasonable explanation for the delay; and 3. there are arguable grounds of appeal. See R. v. Antoine, (MB CA), [1972] 2 W.W.R. 305 (Man. C.A.), and R. v. Mohammed (1989), (MB CA), 61 Man.R. (2d) 192 (Man.

C.A.). [13] If the application to extend time was the only matter before me, I would be inclined to dismiss the application. There islittle evidence of the accused’s intention to appeal from the time that she plead guilty to the time that she filed her application seeking anextension of time to appeal. There is minimal and self-serving evidence as to the reasons for the delay.

Furthermore, I have reservationsas to whether she has or has demonstrated that there exist reasonable grounds of appeal. [14] Having said this, however, I am alive to the fact that the accused is acting on her own behalf and that the issue shewants to raise is the matter of ineffective counsel at the time of her plea and that if I deny her application to extend the time for her to filean appeal, it would be extremely difficult for her to put this matter before the Court. [15] I am also mindful of what Twaddle JA stated in R v Mohammed (F) (1989), (MB CA), 61 ManR(2d) 192 (CA) (at paras 11-14): An application for leave to appeal to this Court from a sentence imposed in the Court of Queen’s Bench must ordinarily be filed andserved within 30 days of the date of sentencing.

That is the combined effect of section 678(1) of the Criminal Code and rule 67 of theCourt of Appeal Rules. The power to extend that time is found in section 678(2) of the Code, which provides: “678(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an applicationfor leave to appeal may be given.” The subsection confers upon a judge a very full discretionary power. There are no statutorily imposed conditions precedent to itsexercise.

From the earliest times, courts have been reluctant to limit the circumstances in which such a power might be exercised. Thus,in Carter v. Stubbs (1880), 6 Q.B.D. 116, Lord Selborne, L.C., in discussing the scope of a similar power, said (at p. 119): “In all the cases the Court looked at the surrounding circumstances, but in none of them did the Court mean to lay down a positive rule,or to state absolutely all the kinds of cases in which, and in which only, the discretion of the judge or Court should be exercised toenlarge the time for appealing.”

Counsel for the accused submits that, notwithstanding the apparent breadth of the statutory power, its exercise is limited by precedent. He submits that Canadian courts have developed criteria for the exercise of the power. According to his submission, the applicant mustshow by evidence that there is a reasonable and adequate explanation for the delay, that the applicant formed an intention to appealbefore his time for doing so expired and that the proposed appeal has arguable merit. I do not for a moment doubt that each of those so-called criteria is a proper matter for a judge to take into account.

I acknowledge readilythat each has been stated, at one time or another, as a criterion which must be met.

But I, following what Lord Selborne said, do notregard those statements as having been intended as absolute rules which apply in every case. [16] Therefore, because of the real nature of the accused’s application, I would be remiss if I did not consider what must beaddressed in an application to withdraw a plea because of ineffective assistance from counsel. [17] That issue was canvassed recently by the Saskatchewan Court of Appeal in the case of R v Sunshine (TR), 2016 SKCA104, 484 SaskR 259, Caldwell JA, in writing for the Court stated (at paras 12-14): Even though Mr.

Sunshine approaches his appeal with a view to invoking this Court’s powers under s. 686(1)(a)(ii), at root, he must stillsatisfy this Court that there are valid grounds for changing his plea: R v Bamsey, (SCC), [1960] SCR 294 at 298; R vAdgey, (SCC), [1975] 2 SCR 426 at 428-431. In that regard, Mr. Sunshine has not demonstrated, on the basis of thematerials before the Court, that his guilty plea on the assault charge was anything but a voluntary, unequivocal and informed plea of guiltmade by a person aware of the nature of the allegations against him and the effect of the plea and its consequences. Mr.

Sunshine does not allege his plea was equivocal or uninformed. He only alleges his plea was not voluntary-that his will wasoverborne by his counsel and overridden by the court forcing that counsel upon him. I agree with Mr. Sunshine’s premise that an error inlaw that overrides an accused’s free will in the way he alleges would be relevant to the question of whether the accused’s plea is valid;but, the question of the validity of a plea is fundamentally an inquiry into the facts of the matter.

In R v Arcand, 2000 SKCA 60, 199Sask R 4, Cameron J.A. described the question in these terms: [3] As for the request to erase his plea, we note the law empowers an appellate court to expunge a guilty plea, which constitutes a formaladmission of guilt, and to quash the resulting conviction, but only on valid grounds. It is not within the power of an appellate court toexpunge a voluntary, unequivocal, and informed plea of guilty, made by a person aware of the nature of the allegations, the effect of theplea, and its consequences: R. v. T.(R.). (1992), (ON CA), 17 C.R. (4th) 247 (Ont. C.A.).

Only if there be somethingto the contrary may an appellate court do so. And it is up to the person seeking to withdraw a guilty plea to satisfy the court that a validground of this nature exists. In short, a valid ground to set aside a guilty plea must be established by evidence that the plea was not voluntary, was equivocal, or wasmade by an accused unaware of the nature of the allegations, the effect of the plea, and its consequences. Evidence supportingconclusions of that nature may be found in the court record or the transcripts or may be adduced as fresh evidence before the Court.

In Rv Kim, 2011 SKCA 74, 375 Sask R 68, where an accused sought to set aside his guilty plea on the basis of ineffective representation bycounsel-something not alleged here, but the principles remain the applicable-Smith J.A. stated: ... In R. v. T.(R.), supra, Doherty J.A. remarked that where the validity of a guilty plea is raised on appeal, the appellate court willexamine the trial record and any additional material proffered by the parties which, in the interests of justice, should be received andconsidered in assessing the validity of the plea. In this Court’s decision in R. v.

T.(S.G.), 2011 SKCA 4, 265 C.C.C. (3d) 550, WilkinsonJ.A. commented that where an appellant contends that he did not receive a fair trial because of ineffective legal representation the criteriaestablished in Palmer [ (SCC), [1980] 1 SCR 759] governing the admission of fresh evidence on the appeal give way tocase-sensitive considerations. She commented: 36. ... The test for admission of fresh evidence where an issue of solicitor incompetence is raised is more broadly concerned with issuesof trial fairness, the regularity of the trial process and avoiding miscarriages of justice. ... 39.

The evidential standard for admission where issues of trial fairness are concerned is that the evidence must be relevant to the remedysought before the court of appeal, credible and convincing, and sufficient, if uncontradicted, to justify the appellate court making theorder sought. (citations omitted.)

See also R. v. Moore, 2002 SKCA 30, 163 C.C.C. (3d) 343 and R. v. Smith, 2007 SKCA 71, 223 C.C.C. (3d) 114, two decisions of thisCourt in which fresh evidence was admitted to establish ineffectiveness of counsel at trial. See also: R v Short, 2012 SKCA 85 at para 3, 399 Sask R 192; R v Worm, 2014 SKCA 94 at para 110, 442 Sask R 228; R v Chukwu,2016 SKCA 6, 472 Sask R 241. [18] The issue was also dealt with in British Columbia. In the case of R v Alec (TJ), 2016 BCCA 282, 389 BCAC 281, theCourt of Appeal stated (at paras 78-81): As noted in R. v.

Moore, 2004 BCPC 560 at para. 22, “to permit accused persons to vacillate between claims of innocence, guilt andrenewed claims of innocence would cause great mischief.” There are strong policy reasons for dismissing an accused’s application towithdraw a guilty plea when the appropriate time for making such a request has clearly passed and there has been no demonstration thatthe plea is invalid. When a guilty plea has been entered, the Crown stops devoting resources to the prosecution and the evidence may nolonger be fresh.

The inquiry must take account of prejudice to the public’s interest in certainty, finality and the expeditious resolution ofcriminal matters: R. v. Duong, 2006 BCCA 325 at para. 10; R. v. T.W.B. (1998), (BC CA), 107 B.C.A.C. 39 at paras.11, 13; Eizenga [2011 ONCA 113, 273 OAC 98] at paras. 70-71. A miscarriage of justice will not be countenanced because of delay. But delay in advancing the assertion that a plea of guilty is invalidmay be a measure of the strength of the claim, and a factor to be considered in determining whether to permit the withdrawal of the plea.

Where the validity of the guilty plea is raised for the first time on appeal, the appellant bears the onus of showing on a balance ofprobabilities that the plea was invalid. That onus is not easily discharged. Discharging this onus engages an evidentiary threshold. Where the invalidity of the plea is not clearly established on the record, this willalmost inevitably involve the tendering of affidavit evidence on appeal in support of the claim: J.G.T. [2003 BCCA 1, 178 BCAC 29] atpara. 17; R. v.

Wiebe, 2012 BCCA 519 at para. 22. [19] The Alberta Court of Appeal also dealt with the issue in a case, similar to this one, in which the appellant was allegingthat she was being pressured to plead guilty and was under stress for a variety of reasons. In R v Shaw, 2015 ABCA 25 theCourt stated (at paras 10-11): The appellant seeks to vacate her guilty pleas. She argues that she was pressured to plead guilty by her first counsel and that she wassuffering from stress and anxiety at the time and this affected her cognitive capacity and coping skills.

She was in the Remand Centreand says she felt pressured to plead guilty so that she could be sentenced. The appellant also takes issue with the Agreed Statement ofFacts. She further argues that each of the two counsel who represented her were incompetent. She contends that she instructed bothcounsel that she would not plead guilty and counsel acted against her instructions. A guilty plea constitutes both a formal admission of the elements of the offence as well as a waiver of the procedural requirements andsafeguards of a trial. A valid guilty plea promotes the values inherent in the criminal trial process.

Although a guilty plea can be vacatedby an appellate court, leave must be sought and the appellant bears the onus on both the leave application and the ultimate appeal. Aguilty plea should only be vacated in exceptional circumstances: R v Hoang, 2003 ABCA 251 , 339 AR 291.

Grounds forsetting aside a guilty plea focus on whether the plea was voluntary, unequivocal and informed: R v Swanson, 2000 BCCA 177 ,136 BCAC 108 at para 23. [20] In the interest of justice, and based on the particular circumstances of this case and this accused, I would grant her anextension of time of 60 days for her to pursue her application to withdraw her plea. In order to do so, she should now file an applicationto be heard by a full panel of this Court seeking to adduce fresh evidence on which to base her application to have her plea set aside forthe reasons that she has so far advanced.

JA