R v Thorassie, 2020 MBCA 87

Citation: R v Thorassie, 2020 MBCA 87 Date: 20200918 Docket: AR20-30-09469 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: her majesty the queen ) W. Y. Martin-White ) for the Applicant Respondent ) ) D. C.

Sahulka ) for the Respondent- and - ) ) Chambers motion heard:SHELDON CHRISTOPHER PETER ) September 10, 2020THORASSIE ) ) Decision pronounced: (Accused) Applicant ) September 18, 2020 cameron JA [1] The accused moves for an extension of time to file a notice of appeal pursuant to section 678(2) of the Criminal Coderegarding his convictions for the offences of aggravated assault endangering life (section 268(1)), possession of a knife for a purposedangerous to the public peace (section 88(1)), and carrying a concealed weapon (section 90(1)).

He also applies for an extension of timeto file an application for leave to appeal his sentence, which consisted of 854 days of imprisonment less 125 days of pre-sentence custodyleaving a sentence of 729 days of imprisonment to be served. [2] The accused was convicted of the above offences on June 19, 2019. He was sentenced on January 30, 2020. It wasfrom that time that he had 30 days to file his notice of appeal regarding his convictions and application for leave to appeal regarding hissentence.

He filed his notice of motion to extend time on June 19, 2020, just over three and one-half months after the deadline. [3] Extensions of time are not to be granted automatically. There is a burden on the applicant to show why he or sheshould receive an extension (see R v Mohammed (1989), (MB CA), 52 CCC (3d) 470 at 476 (Man CA)). As wasnoted by Hamilton JA in R v DBR, 2005 MBCA 21, an order to extend time is a discretionary order.

Criteria normally considered by thecourt in such an application include: (1) there was a continuous intention to appeal from a time within the period when the appeal shouldhave been commenced; (2) there is a reasonable explanation for the delay; and (3) there are arguable grounds of appeal (see para 6). [4] The ultimate consideration for the court is whether, in all of the circumstances, the justice of the case requires that anextension of time be granted (see R v Roberge, 2005 SCC 48 at para 6; and R v Arganda, 2011 MBCA 24 at paras 6-7). [5] The Crown opposes the application on the basis that the accused has not met any of the above criteria. [6] Regarding the criteria of continuous intention and explanation, the accused filed an affidavit affirmed by counsel whorepresented him at trial (not the same counsel as on the appeal) (former counsel).

In that affidavit, former counsel states that the accusedhas a learning disability and cerebral palsy. He says that the accused is illiterate and has difficulty with complicated ideas. [7] Former counsel affirmed that he had discussed the possibility of an appeal with the accused after his conviction and athis sentencing date, but the accused had difficulty grasping the implications of it. He said that every time he discussed the issue ofappealing, whether by phone or in person, the accused expressed uncertainty as to what to do and was confused by the process.

Heconfirmed that he had asked the accused if he wished him to file a notice of appeal, but the accused stated that he did not know. [8] Former counsel also stated that, due to court commitments and lack of appellate experience in the Thompson bar, hewas unable to arrange for a second opinion regarding the appeal within the appeal period. [9] The Crown disputes that the accused had a continuous intention to appeal, relying on the fact that, according to theaffidavit of former counsel, he had in-person discussions with the accused concerning a possible appeal well before the appeal period.

The Crown submits that it is clear that the accused did not come to a decision to appeal for months. [10] I am sympathetic to the arguments raised by the Crown regarding the accused’s lack of a continuous intention to appealand his explanations for the delay. However, I would note that the accused had contacted current counsel regarding his appeal by March30, 2020, only one month after the deadline. The delay between that date and the date that he filed his motion for an extension of time

appears to be administrative delay involved in obtaining legal aid and transcripts of the proceedings. In light of the unique features of this case, including the limitations of the accused and the practice of law in northern Manitoba, I conclude that a lack of continued intent or of reasonable explanation for the delay are not a sufficient basis on which to dismiss the accused’s application. [ 11 ] Regarding the issue of arguable grounds, the test is a low threshold meant to ensure that the appeal is not frivolous. It is distinguishable from the test of having to demonstrate probable success (see DBR at para 7). [ 12 ] The accused advances three grounds of appeal:

a) that the trial judge misapprehended the evidence;

b) that the trial judge erred in his application of the law of self-defence; and

c) that the verdict is unreasonable. [ 13 ] A consideration of whether the accused has raised an arguable case requires some examination of the evidence called at trial. The only issue in the trial was whether the accused acted in self-defence when he stabbed the complainant. [ 14 ] On the night of the incident, the accused and the complainant were both in attendance at a bar in Thompson, Manitoba. Video cameras stationed outside of the bar showed them conversing and smoking at various times. At one point during the course of the evening, the complainant’s girlfriend pushed the accused.

After pushing the accused, she returned inside the bar. Just after that, the accused armed himself with a knife that he had concealed under his clothing earlier in the evening. The accused and complainant exchanged words. However, prior to any physical altercation between them, the accused grabbed the door to the bar and tried to open it, presumably to enter the bar. When he could not open the door, he continued to argue with the complainant. The complainant took a swing at the accused, which he was able to avoid.

The accused then swung at the complainant, stabbing him in the neck. [ 15 ] The accused did not testify. [ 16 ] Regarding the accused’s first ground of appeal, a misapprehension of evidence occurs where a trial judge is mistaken regarding material parts of the evidence and those errors are essential to the reasoning process resulting in a conviction (see R v Lohrer , 2004 SCC 80 at paras 1-2 ). [ 17 ] The accused argues that the trial judge misapprehended the evidence when he refused to infer that the bar door was being held shut on purpose to prevent him from entering.

In his oral reasons, the trial judge stated that he was not prepared to “speculate” that such an action had occurred. The accused asserts that a careful inspection of the video recordings demonstrate that such an inference was not speculative.

He submits that the trial judge’s misapprehension in this regard affected his assessment of the accused’s conduct and the threat that the accused perceived he was under at the time he stabbed the complainant. [ 18 ] In my view, keeping in mind the low threshold, and after having reviewed the videos, the accused has established an arguable case that the trial judge misapprehended the evidence.

Having found one arguable ground sufficient to grant an extension of time to file his notice of appeal from conviction, I need not comment further regarding his other grounds of appeal (see DBR at para 19). [ 19 ] Regarding the sentence appeal, the accused did not file any materials addressing whether he had an arguable ground that the sentence was unfit. At the hearing of this motion, the accused submitted that his sentence appeal is tied to his argument regarding the misapprehension of evidence on the conviction appeal.

I interpret that comment to mean that it is conceivable that this Court could find that the trial judge erred in his apprehension of the evidence regarding the accused’s attempt to open the bar door, but not to the degree that it was essential to the reasoning process that resulted in the conviction.

Nevertheless, this Court could still find that the error was one that affected the trial judge’s assessment of the accused’s moral culpability. [ 20 ] Having found that the accused has an arguable case regarding the misapprehension of evidence and acknowledging “the usual procedure in this court for leave to appeal to be argued at the same time as an appeal from conviction” ( DBR at para 21), I would grant an extension of time for the accused to file an application for leave to appeal the sentence imposed. [ 21 ] Therefore, the motions to extend time to file a notice of appeal from conviction and an application for leave to appeal sentence are granted.

The notice of appeal from conviction and the application for leave to appeal sentence are to be filed by Monday, October 5, 2020. JA