R. v. Ellison, 2021 NSCA 54

Nova Scotia Court of Appeal Citation: R. v. Ellison , 2021 NSCA 54 Date: 20210624 Docket: CAC 506425 Registry: Halifax Between: Collins Avon Jasper Ellison Appellant v. Her Majesty the Queen as Represented by the Attorney General of Nova Scotia Respondent Judge: Farrar, J.A. Motion Heard: June 24, 2021, in Halifax, Nova Scotia in Chambers Held: Motion dismissed Written Reasons: July 7, 2021 Counsel: Collins Avon Jasper Ellison, self-represented Jennifer A. MacLellan, Q.C., for the respondent Decision: Background [ 1 ] Mr.

Ellison has filed a motion seeking leave to extend the time to file a Notice of Appeal from his convictions for criminal harassment ( s. 264(2) of the Criminal Code ) and failure to comply with a condition of a release order ( s. 145(5) (

a) of the Criminal Code ). Mr. Ellison plead guilty to both charges on December 11, 2020. On December 18, 2020, he was sentenced to time served on the criminal harassment charge, a 90-day conditional sentence on the failure to comply charge, and 18 months of probation. [ 2 ] The charges arise from a private prosecution initiated by Masuma Khan. The time to appeal for the charges expired on January 28, 2021. [ 3 ] Mr. Ellison originally plead not guilty to the charges. His guilty pleas came at the conclusion of the Crown’s case where it called nine witnesses, including Ms. Khan.

He received legal advice before entering his guilty pleas, although a lawyer was not in attendance with him at the time he entered the pleas. [ 4 ] Mr. Ellison filed his motion to extend the time on May 27, 2021. He also filed an affidavit on that date. In his affidavit, he does not explain why he plead guilty to the charges. In the proposed Notice of Appeal attached to his affidavit, he says he was compelled to plead guilty because he was suffering from medical conditions that were not being treated within the Provincial jail system. [ 5 ] He was cross-examined on his affidavit in some length.

On cross-examination, he said he plead guilty because he wanted to get out of jail so he could seek appropriate medical treatment. [ 6 ] In his affidavit, Mr. Ellison says he was not able to file his appeal within the time limits because he was incarcerated between January 7, 2021 and May 11, 2021. He was unaware of his appeal rights, and no one provided him with any information with respect to them. Mr. Ellison explained he was in custody during that time as a result of a charge of attempting to indirectly contact Ms.

Khan contrary to a Peace Bond he entered into on November 13, 2020 [1] . [ 7 ] Throughout his cross-examination, Mr. Ellison emphasized that he wanted to pursue these appeals to “clear his name”. In his view, key to his appeal is a Halifax Regional Police Incident Report dated November 13, 2019 that indicates Ms. Khan reported she had attempted suicide. He testified that during his trial, when Ms. Khan gave evidence, she said she could not remember the incident. [ 8 ] Mr. Ellison said on numerous occasions during cross-examination that Ms.

Khan either lied or, if she did not remember, then she should be made aware of the police report. [ 9 ] Mr. Ellison reasoned that if she was made aware of the report she would see it was Mr. Ellison who cared for her during the suicide attempt. She would then realize she had no reason to fear him.

[10] With this backdrop, I will now turn to whether I should grant Mr. Ellison’s request for an extension of time. Analysis [11] The relevant Criminal Code provision is s. 678 which provides: Procedure on Appeals 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 ofappeal 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

(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 forleave to appeal may be given. [12] The relevant Nova Scotia Civil Procedure Rules are: Extension of time 91.04

(1) Any time prescribed by this Rule may be extended or abridged by a judge of the Court of Appeal or the Court of Appeal beforeor after the time has expired.

(2) A person who seeks an extension or abridgment of a time period in the Code or this Rule may make a motion to a judge of the Courtof Appeal or the Court of Appeal under a provision in the Code, such as subsection 678(2), under Rule 2 - General, or under subsection(1) of this Rule. … Deadline for starting appeal 91.09

(1) For the purpose of

section 678 and 839 of the Code, a person may start an appeal of a judgment by filing a notice of appeal nomore than twenty-five days after one of the following: (

a) the day the appellant is sentenced, if the appeal is from a conviction, finding of guilt, or sentence, or both a conviction or finding ofguilt and a sentence; (

b) the day a judgment is made, if the appeal is from an acquittal or other judgment that is not a conviction, finding of guilt, or sentence.

(2) The period is calculated under Rule 94.02, of Rule 94 -

Interpretation, and it is subject to being extended under

section 678 of theCode or Rule 91.04. [13] The criteria to consider when deciding whether to grant an extension to file a notice of appeal was discussed in R. v. M. (R.E.),2011 NSCA 8: [39] Both in Nova Scotia, and elsewhere, the criteria to be considered in the exercise of this discretion has been generally the same.The Court should consider such issues as whether the applicant has demonstrated he had a bona fide intention to appeal within the appealperiod, a reasonable excuse for the delay, prejudice arising from the delay, and the merits of the proposed appeal.

Ultimately, thediscretion must be exercised according to what the interests of justice require. (See R. v. Paramasivan (1996), (NSCA), 155 N.S.R. (2d) 373; R. v. Pettigrew (1996), 1996 NSCA 17 , 149 N.S.R. (2d) 303; R. v. Butler, 2002 NSCA 55; R. v.Roberge, 2005 SCC 48.) [14] There is no absolute rule to be applied when deciding whether or not grant an extension. Depending on the circumstances, acourt may take into consideration additional criteria or factors.

These factors can include the extent of the delay, whether a guilty plearesulted in a benefit for an applicant, and whether there is a real doubt an applicant committed the offence for which he pled guilty (R. v.Menear, (ON CA), [2002] 155 O.A.C. 13, at ¶ 20, 21, 24 and 25; R. v. Roberge, 2005 SCC 48, at ¶ 6; and R. v. Al-Rabie, 2009 NSCA 55, at ¶ 7-12). [15] How much weight should be given to the different factors will vary from case to case.

Once the factors are weighed andconsidered, the issue for a court is whether the justice of a case requires that an extension be granted (Roberge, at ¶ 6; Al-Rabie, at ¶ 13). Was there a bona fide intention to appeal? [16] In his affidavit, Mr. Ellison claims that he formed a genuine intention to appeal on May 15, 2021. Normally, in a case like this,there has to be a bona fide intention to appeal prior to the expiration of the appeal date. Mr. Ellison, in cross-examination, explainedMay 15, 2021 was the date when he realized he could appeal.

He said had he known prior to that date he could appeal he would havedone so. [17] When Mr. Ellison made the decision or determined he was going to attempt an appeal does not matter. Simply because I do notbelieve his intention to appeal is bona fide. After observing Mr. Ellison in cross-examination and hearing his repeated assertions thatMs. Khan, if she was aware of all of the facts, would not have a reasonable fear of him leads me to conclude that he simply wants to usean appeal as a vehicle to try to justify his actions to Ms. Khan.

As I will explain later in these reasons, I do not accept that he wasconfused at the time he entered his guilty pleas or that he was in anyway compelled or coerced into entering the pleas.

Is there a reasonable excuse for the delay? [18] Mr. Ellison says that while he was in jail he was unable to get information about his appeal rights, Legal Aid would not assisthim, and no one in the court system advised him of his rights. [19] Once again, I do not take Mr. Ellison at his word. He is no stranger to the criminal justice system. During cross-examination,he acknowledged he has prior criminal convictions for some very serious charges.

For him to suggest that he did not understand hisappeal rights, or even that he had a right of appeal, rings hollow. [20] His excuse for failing to file within the applicable time period is not reasonable. Does the proposed appeal have merit? [21] Even if I was to accept Mr. Ellison had a bona fide intention to appeal and a reasonable excuse for the delay—I find hisproposed appeal is without merit. [22] When examining whether the grounds of appeal have merit, it is not the role of a Chambers Judge to measure the chances ofsuccess for the proposed appeal.

However, the proposed appeal must at least have arguable grounds (see R. v. M. (R.E.), supra, at ¶ 70-72). [23] In M. (R.E.), Justice Beveridge stated at ¶ 50: [50] This approach has been consistently applied by this Court. For example, in MacCulloch v. Mclnnes, Cooper & Robertson (2000),2000 NSCA 92 , 186 N.S.R. (2d) 398, Cromwell J.A., as he then was, wrote: [4] The appellants must show that there is an arguable issue raised on appeal. This is not a difficult threshold to meet.

What is required isa notice of appeal which contains realistic grounds which, if established, appear of sufficient substance to be capable of convincing apanel of the court to allow the appeal: see Freeman J.A., in Coughlan et al v. Westminer Canada Ltd. et al. (1993), (NS CA), 125 N.S.R. (2d) 171, 349 A.P.R. 171 (C.A.).

It is not my role as a Chambers judge hearing a stay application to enter into asearching examination of the merits of the appeal or to speculate about its probable outcome but simply to determine whether thearguable issue threshold has been reached. (Emphasis added) [24] Under s. 686(1) of the Criminal Code, an appeal from conviction may be allowed when the verdict is unreasonable, there wasan error in law or there was a miscarriage of justice. Since Mr. Ellison plead guilty, there is no issue regarding whether the verdict wasunreasonable or the trial judge erred in law. To have merit, Mr.

Ellison must establish there are realistic grounds there was a miscarriageof justice (See R. v. Riley, 2011 NSCA 52 at ¶ 21). [25] Mr. Ellison seems to be arguing there was a miscarriage of justice based on claims he was “compelled” or “intimidated” intochanging his plea to guilty. Mr. Ellison claims his guilty plea was not valid. I take this to mean it was not informed or voluntary. [26] To constitute a valid guilty plea, the plea must be unequivocal, voluntary, and informed.

An informed plea is one where theaccused is aware of the nature of the allegations made against him, the effect of his plea, and the consequences of his plea. A voluntaryplea refers to a conscious, volitional decision by an accused to plead guilty for reasons which they regard as appropriate (R. v. T. (R.), (ON CA), [1992] O.J. No. 1914, at ¶ 12-16). [27] During cross-examination, a report of Dr. Christopher Murphy was introduced into evidence. This report was prepared shortlybefore Mr. Ellison’s criminal trial commenced. In that report, Dr. Murphy notes that Mr.

Ellison appreciated the nature and quality ofhis actions that resulted in the criminal harassment charges and knew they were wrong. Dr. Murphy noted many of the texts Mr. Ellisonsent to Ms. Khan were an attempt to justify his actions to Ms. Khan and her family: Concerning the appreciation of the nature and quality of his actions that resulted in the criminal harassment charge, and knowledge of thewrongfulness of his actions, Mr. Ellison was able to describe a full appreciation of his actions and their direct physical consequences.

There is no evidence that he was rendered incapable of appreciating the nature and quality of his actions. He was able to provide anorganized version of the events that resulted in the current charge. Neither the police reports nor the admission notes upon remand toCNSCF indicate that Mr. Ellison was so disorganized or detached from reality that he could not appreciate what he was doing during thatperiod. Concerning the knowledge of the wrongfulness of his actions, Mr. Ellison provided the rationale that he required help with his livingconditions and that Ms.

Khan should have been willing to help him because of their prior relationship and the fact that he had, in hisopinion, “saved her life”. Mr. Ellison reports he was trying to reach out to Ms. Khan so that she could help him to resolve the issues hewas experiencing with his living accommodations. While this may have been part of his rationale at the time, many of the texts Mr.Ellison sent Ms. Khan were about their relationship itself, and about Mr. Ellison’s desire to justify his actions to Ms. Khan and herfamily. […] (Emphasis added) [28] During his cross-examination, Mr.

Ellison had a very clear recollection of the circumstances surrounding his guilty pleas. Hetestified that: he had heard the evidence of the nine witnesses on behalf of the Crown; he sought legal advice at the close of the Crown’scase; he had discussions with the Crown where they would drop two of the charges in return for a guilty plea; and, he understood that ifhe plead guilty, he would receive time served. On being questioned further on this point, it was apparent there was no agreement withthe Crown that he would be entitled to time served in return for the guilty pleas.

[ 29 ] Mr. Ellison had between December 11 and December 18, the date of the sentencing, to resile from his guilty pleas. He did not do so. [ 30 ] At the time of the sentencing hearing, he argued that he should be entitled to time served and one year of probation. The Crown was seeking additional jail time and three years of probation. As noted above, he received time served on the criminal harassment charge, a 90-day conditional sentence on the failure to comply with a release order and 18 months of probation. [ 31 ] Mr.

Ellison took no steps to call into question his pleas between December 18, when he was sentenced, and January 11, where he was arrested again on charges related to Ms. Khan. He eventually plead guilty to that charge as well. [ 32 ] There is nothing in the evidence on this motion to indicate Mr. Ellison did not make an informed and voluntary guilty plea. [ 33 ] He is not arguing he did not know the effect or consequences of his guilty plea. He is arguing he was compelled to plead guilty without further elaboration beyond reference to his mental health difficulties. [ 34 ] Dr.

Murphy’s report and my observations of Mr. Ellison show that Mr. Ellison is capable of understanding his actions and the consequences that flow from them. [ 35 ] Mr. Ellison was aware of the nature of the allegations against him, the effect of his pleading guilty, and the consequences of his plea. [ 36 ] The evidence on this motion does not establish an arguable issue.

Do the interests of justice require an extension of time for the applicant to file a Notice of Appeal? [ 37 ] It can never be in the interests of justice to grant an extension of time to file an appeal which is without merit. [ 38 ] This is a case where the interests of justice are in preserving finality. Conclusion [ 39 ] The motion is dismissed. Farrar, J.A.