R v Mehari, 2021 SKCA 139

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published.

Court of Appeal for Saskatchewan Docket: CACR3486 Citation: R v Mehari , 2021 SKCA 139 Date: 2021-10-27 Between: Awet Teklemichael Mehari Applicant And Her Majesty the Queen Respondent Before: Jackson J.A. (in Chambers) Disposition: Application denied Written reasons by: The Honourable Madam Justice Jackson On application from: CRM 144 of 2018 (QB), Regina Application heard: September 22, 2021 Counsel: Nicole Krupski for the Applicant Dean Sinclair, Q.C., for the Respondent Jackson J.A. I. Introduction [ 1 ] This is an application to extend the time to apply for leave to appeal a sentence.

Applications of this nature are common place in Canadian appellate courts, but there are aspects of the present motion that make it somewhat unusual. The applicant bifurcated his conviction and sentence appeal. He only applied to extend the time to file his sentence appeal after he had exhausted his conviction appeal, which was some 27 months after his sentence was imposed.

In addition, his grounds of appeal relate to matters that arose during the period of lengthy delay and for which a fresh evidence application would be required. [ 2 ] By way of brief background, Awet Teklemichael Mehari was convicted of sexual assault on January 30, 2019, and sentenced on May 13, 2019, to a penitentiary term of three years less 162 days spent in pre-sentence custody. On June 4, 2019, he appealed his conviction to this Court, but he did not appeal his sentence.

He did not appeal his sentence because he did not contend and still does not contend that it was the product of error or was demonstrably unfit when it was imposed. [ 3 ] Pending the hearing of his conviction appeal, a judge of this Court granted him judicial interim release. However, he was taken back into custody about five months later when he was arrested and charged with 13 new offences involving drugs and weapons. With regard to his conviction appeal, Mr. Mehari’s conviction was set aside and a new trial was ordered by a majority of this Court. Mr.

Mehari was subsequently released. [ 4 ] The Crown appealed to the Supreme Court. That Court allowed the appeal and remitted the matter to this Court to decide the remaining grounds of Mr. Mehari’s conviction appeal. He remained on judicial interim release. When the remaining grounds of appeal were considered, this Court dismissed his appeal from conviction. He was then taken back into custody. Among other effects of COVID- 19 on his time in custody, he became infected with the virus. [ 5 ] Meanwhile, Mr. Mehari applied to the Supreme Court for leave to appeal this Court’s dismissal of his conviction appeal.

After the Supreme Court dismissed that application on July 29, 2021, he applied to extend the time for leave to appeal his sentence on September 16, 2021. [1] [ 6 ] According to the legislative framework that governs this application, Mr. Mehari was required to file his notice of appeal on or before June 12, 2019. He has two proposed grounds of appeal. First, he asserts he should be entitled to enhanced credit for the time spent in remand conditions after he was taken into custody as a result of the 13 new charges and before this Court set aside his conviction for sexual assault.

Second, he claims his sentence was rendered unfit by virtue of the effects of COVID-19 on his time in custody. [ 7 ] For the reasons that follow, I have decided that Mr. Mehari’s application should be denied. In

summary, I have concluded that the interests of justice do not require that an extension be granted. II. Legislative and Jurisprudential Framework [ 8 ] According to s. 675(1) (

b) of the Criminal Code , Mr. Mehari had the right to appeal against his sentence “with leave of the court of appeal or a judge thereof”. Parliament, however, defers to the provinces and territories with respect to the procedure for appeals , including the time period within which to apply for leave to appeal:

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 of appealor notice of his application for leave to appeal in such manner and within such period as may be directed by rules of court.

To that end, s. 482 of the Criminal Code confers on appeal courts the power to make a wide variety of rules, including with respect toappeals. [9] The Court of Appeal Criminal Appeal Rules (Saskatchewan) [Rules of Court], which were passed in conformity with s. 482 ofthe Criminal Code, draw no distinction between an “application for leave to appeal” and a “notice of appeal”. In other words, there is noseparate application for leave to appeal as distinct from the notice of appeal in this jurisdiction.

The practice is to apply for leave to appealand to appeal a sentence in one document, which is governed by a single time period, fixed by the Rules of Court: Commencing an appeal 8(1) An offender who wishes to appeal shall commence the appeal by filing a Notice of Appeal within 30 days after the date of theimposition of sentence. [10] While subrule 8(1) of the Rules of Court fixes a 30-day time period, s. 678(2) of the Criminal Code permits that time to beextended: 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 forleave to appeal may be given. [11] This power is repeated in subrule 7(2) of the Rules of Court: Relief against strict compliance 7(2) The court or a judge may enlarge or abridge the time periods fixed by these rules or by order on such terms as the case may require,and the order enlarging or abridging the time may be made before or after the fixed period has expired. [12] By the use of the modal verb may, both subrule 7(2) of the Rules of Court and s. 678(2) of the Criminal Code confer on anappellate court, or a judge thereof, the permissive discretionary power to grant an extension of time within which an appeal may becommenced.

This power, however, is not unbounded. A significant body of case law has set its parameters. [13] Typically, an application to extend the time to appeal is heard before a single judge of the court. In modern times, this Courthas sat a panel of three judges to consider the power to extend on one occasion only: R v Morin, 2005 SKCA 37, 195 CCC (3d) 190[Morin]. The Court released Morin on March 11, 2005.

In Morin, Cameron J.A., for the Court, summarized the prevailing case law onpoint, as follows: [6] Only in “special circumstances” are the courts willing to extend the time for appeal as they are empowered to do by section 678(2) ofthe Criminal Code or its equivalent. In assessing the circumstances with this in mind, the courts have conventionally employed thefollowing criteria: (

i) Did the applicant have a bona fide intention to appeal before the time for appeal expired? (ii) Has the applicant satisfactorily explained why he did not exercise his right of appeal within the prescribed time? (iii) Would the respondent be unduly prejudiced by an extension of time? (iv) Is there merit in the proposed appeal, which is to say does it raise a reasonably arguable issue? (

v) Do the interests of justice weigh in favour of extending the time for appeal? (See, R. v. G.(M.A.) (2002), 2002 BCCA 413 , 167 C.C.C. (3d) 435 (B.C.C.A.); R. v. Klassen (1994), (SKCA), 125 Sask. R. 56 (Sask. C.A.); and R v. Thomas, (SCC), [1990] 1 S.C.R. 713.) [14] Then, later that year, a panel of three judges of the Supreme Court issued a decision refusing an application to extend the timeto apply for leave to appeal a decision of the Saskatchewan Court of Appeal, which had set aside an acquittal and ordered a new trial: R vRoberge, 2005 SCC 48, [2005] 2 SCR 469 [Roberge].

In Roberge, in a per curiam decision, the Supreme Court described its power toextend the time to apply for leave to appeal pursuant to s. 59(1) of the Supreme Court Act, RSC 1985, c S-26, in these terms: [6] The power to extend time under special circumstances in s. 59(1) of the [Supreme Court Act] is a discretionary one. Although the Courthas traditionally adopted a generous approach in granting extensions of time, a number of factors guide it in the exercise of its discretion,including: 1.

Whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposing partywithin the prescribed time; 2. Whether counsel moved diligently; 3. Whether a proper explanation for the delay has been offered;

4. The extent of the delay; 5. Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and 6. The merits of the application for leave to appeal. The ultimate question is always whether, in all the circumstances and considering the factors referred to above, the justice of the case requires that an extension of time be granted.

In terms of the result, and without discussing the merits of the proposed appeal, the Supreme Court refused to extend the time because of the length of the delay, i.e., four months beyond the prescribed 60 days, and the inadequacy of the explanation for not bringing the application sooner. [ 15 ] The Morin and the Roberge factors have been applied across a wide range of cases in this jurisdiction: see, for example, R v Deckert , 2021 SKCA 49 at paras 20–21 [ Deckert ]; R v Williams , 2020 SKCA 57 at para 9 ; R v Perrault , 2020 SKCA 35 at paras 8–9 ; R v Daniels , 2017 SKCA 94 at para 5 [ Daniels ]; R v Walker , 2017 SKCA 91 at para 2–3 ; R v Dustyhorn , 2017 SKCA 82 at paras 4–6 [ Dustyhorn ]; R v Smith , 2017 SKCA 81 at paras 37–39 , 355 CCC (3d) 505 [ Smith ]; R v Vaughan , 2011 SKCA 49 at para 4 , 371 Sask R 161; R v Bahadur , 2010 SKCA 103 at paras 11–12 , 259 CCC (3d) 81; and R v Woods , 2006 SKCA 123 at para 10 , 285 Sask R 314.

Following the release of Roberge , judges of this Court began to emphasize the justice of a case as an overarching consideration, rather than a stand-alone factor. See, in particular, Dustyhorn at para 6 . [ 16 ] As these decisions illustrate, judges and courts have a broad discretion that must always be adapted to the situation at hand and to its particular context. In some cases, notwithstanding what may seem to be weak grounds of appeal, leave to extend may be granted in the face of a brief delay and a satisfactory explanation for it.

In other cases, even in the face of a reasonably arguable ground of appeal, as in Morin , the Court will decline to grant the extension and do so, nonetheless, in the interests of justice. [ 17 ] I will now proceed to analyze Mr. Mehari’s application with the above jurisprudential framework in mind. III. Analysis A. Intention to appeal, satisfactory explanation, delay, and prejudice [ 18 ] Mr. Mehari does not concede that he did not have an intention to appeal within the time period allowed.

He asserts, instead, that he disputed the charge throughout and conserved his resources for his conviction appeal, which he pursued diligently. He submits that it would have been potentially redundant, and an inefficient use of scarce judicial recourses, to appeal the sentencing decision before such time as the conviction, in his words, “became final”. He adds that it was impossible for him to bring the appeal sooner as the circumstances giving rise to the grounds for a sentence appeal were not present during the appeal period. [ 19 ] I will return to the issue of Mr.

Mehari’s decision to bifurcate his two appeals when I turn to my reasons as to whether the justice of the case requires that his application be granted. At this point, I must respectfully reject his argument that an intention to dispute a conviction equates with a good faith intention to appeal a sentence within the time allowed. [ 20 ] Mr. Mehari concedes that his three-year sentence was fit when it was imposed.

In such circumstances, there could have been no intention to appeal because the offender believed, and still believes, that there was no basis to appeal against his sentence within the time limit of 30 days after the imposition of the sentence. [ 21 ] Similarly, he has not provided a satisfactory explanation for why he did not appeal within the time period. This factor requires an explanation as to why the applicant did not exercise their right of appeal within the explicitly stated , “30 days after the date of the imposition of sentence”. In Mr.

Mehari’s case, notwithstanding that he wanted to focus on his conviction appeal, there was no demonstrated intention to appeal his sentence during the time limit. [ 22 ] Clearly, it is possible to grant leave to extend the time to appeal a sentence even if there had been no intention to appeal and no satisfactory explanation as to why no appeal was launched within the 30-day time period. This is particularly so in the case of an offender’s changed circumstances. However, Mr.

Mehari did not form the intention to appeal his sentence until some 27 months after the expiry of the 30-day period and after he had exhausted his conviction appeal. In my view, this fact must count against him. The diligent pursuit of an appeal against conviction cannot, on its own, justify launching a separate sentence appeal once the conviction appeal fails. [ 23 ] The Crown contends that Mr.

Mehari’s decision to bifurcate his appeals raises significant public interest concerns, but it does not submit that it would be unduly prejudiced in terms of lost evidence or the necessity to call witnesses after an extended period of time. The Crown focuses the bulk of its arguments on the questions of merit and the interests of justice, which I will now address. B. The question of merit 1. A preliminary issue [ 24 ] Counsel for Mr.

Mehari submits that a Chambers judge deciding an application to extend the time for leave to appeal a sentence does not consider the reasonable arguability of the proposed appeal but need only determine whether “the application for leave to appeal sentence” is reasonably arguable. The essence of the argument is that an application for leave to appeal a sentence engages a lower standard, thus making it easier to obtain an extension of time to appeal a sentence than to appeal a verdict for which no leave to appeal is required.

This is a novel argument, and one that merits consideration, but, in my respectful view, it must fail. A Chambers judge considering an application to extend the time to appeal need not decide the question of leave, but the judge does assess the arguability of

the proposed appeal. [25] Much could be written about the differing tests for an extension of time or for the grant of leave to appeal a sentence – and theheight of the bar in each case. In R v Laliberte, 2000 SKCA 27, 143 CCC (3d) 503, the Court set the test for leave to appeal at an“arguable case for intervention” (at para 119).

Further, as others have observed, “the leave requirement is normally treated as a formality:it is decided with the disposition of the appeal, leave is seldom denied, and no submissions directed specifically to the leave issue areexpected” (Huberdeau c R, 2021 QCCA 486 at para 20, quoting M. Halfyard, M. Dineen and J. Dawe, Criminal Appeals: A Practitioner’sHandbook (Toronto: Emond Montgomery Publications, 2017) at 95).

While there are exceptions to that principle, as a general rule thatdescribes the practice in this jurisdiction with respect to granting leave to appeal a sentence. [26] The merits of the proposed sentence appeal are subjected to a greater level of scrutiny than would occur with an application forleave to appeal the sentence alone. As the Court in Morin held, an application to extend the time to appeal is granted only in “specialcircumstances” and the proposed grounds of appeal must be “reasonably arguable” (at para 6).

In stating the test for leave in this manner,the Court was relying on a decision of Gerwing J.A. in R v Klassen (1994), (SK CA), 125 Sask R 56 at para 4[Klassen], which, in turn, relied upon a decision of the British Columbia Court of Appeal in R v Read (1994), 1994 BCCA 1 , 47BCAC 28 (WL): [29] In order to obtain an extension of time in which to file notice of appeal, the appellant must establish “special circumstances”. Inconsidering whether the appellant has established “special circumstances”, the court should consider the following factors: … 5.

Is there merit in the appeal in the sense that there is a reasonably arguable ground. [27] As the review of the Saskatchewan authority on point shows, the test of reasonable arguability in the context of an applicationto extend time to appeal, and to extend the time to apply for leave to appeal, requires some rigour in the assessment of the grounds ofappeal: see, for example, Klassen at para 20, Smith at para 94, and Daniels at paras 19 and 24. [28] Importantly, a Chambers judge hearing an application to extend the time to apply for leave to appeal a sentence need notconsider whether leave would be granted.

The Chambers judge examines the merits of the proposed grounds of appeal – not the merits ofthe application for leave to appeal alone. If it were otherwise, there would be no real screening of applications to extend the time to appealsentences. Such applications would be routinely granted and only the most meritless or moot appeals would be subject to the 30-day timelimit. 2. Claim for enhanced credit for post-sentence time spent in remand a. Background [29] Further background is required at this point. As I have indicated, Mr. Mehari was convicted on January 30, 2019, andsentenced on May 13, 2019.

He immediately appealed his conviction and applied for judicial interim release on June 19, 2019. He wasthen released on bail, pending the resolution of his conviction appeal: R v Mehari (26 July 2019) Regina, CACR3257 (Sask CA). [30] Mr. Mehari, however, was arrested on some 13 new charges, including drugs and weapons offences, on October 11, 2019. Hewas taken into custody and placed in remand in the Regina Correctional Centre.

He did not apply for release. [31] A majority of this Court allowed his appeal from conviction on March 31, 2020, and ordered a new trial: R v Mehari, 2020SKCA 37, 452 DLR (4th) 413 [Mehari 2020]. Since his conviction had been set aside, he was released from custody on April 2, 2020,with the Crown’s consent. When the Supreme Court allowed the Crown’s appeal, the matter was remitted to this Court to hear and decidethe balance of Mr. Mehari’s arguments against conviction. During this time period, Mr.

Mehari remained on judicial interim release untilFebruary 19, 2021, the date this Court dismissed the balance of his conviction appeal: R v Mehari, 2021 SKCA 26 [Mehari 2021]. At thattime, he was taken into custody in the Saskatchewan Penitentiary to continue serving his sentence for sexual assault. Mr. Mehari thenapplied for leave to appeal this Court’s dismissal of his conviction appeal; that application was dismissed on July 29, 2021: R v Mehari, (SCC). [32] Thus, the timeline looks like this: Date ActionMay 13, 2019 Sentence imposedJune 4, 2019 Mr.

Mehari filed his notice of appeal from conviction onlyJuly 26, 2019 Leurer J.A. granted Mr. Mehari judicial interim releaseOctober 11, 2019 Mr. Mehari was arrested and charged with 13 new offencesMarch 31, 2020 A majority of this Court allowed his appeal and ordered a new trialin Mehari 2020April 2, 2020 Mr. Mehari was released from custody with the Crown’s consentDecember 11, 2020The Supreme Court allowed the Crown’s appeal and remitted thematter to this Court to deal with the grounds of appeal leftunaddressed in Mehari 2020February 19, 2021 This Court dismissed the remainder of Mr.

Mehari’s convictionappeal in Mehari 2021July 29, 2021 The Supreme Court dismissed Mr. Mehari’s application for leave toappeal from Mehari 2021September 16, 2021An application to extend the time to apply for leave to appealsentence is filed

[33] Since the day Mr. Mehari was sentenced on May 13, 2019, he has spent approximately 400 days in custody: (a) 74 days in the Saskatchewan Penitentiary – from May 13, 2019, to July 26, 2019; (b) 174 days in the Regina Correctional Centre [post-sentence remand time] – from October 11, 2019, to April 2, 2020; and (c) 150 days in the Saskatchewan Penitentiary – from February 19, 2021, to September 22, 2021 (the within Chambers hearingdate). According to Mr. Mehari’s counsel, as of September 23, 2021, he has served 466 days toward his 934 day sentence (i.e., 468 daysremaining, or approximately one year and three months). [34] Mr. Mehari’s proposed grounds of appeal relate to (

a) his post-sentence remand time, and (

b) the penitentiary time followingthis Court’s dismissal of his conviction appeal. At this point, I am addressing the first period only. Later in these reasons, I will considerhis proposed ground of appeal with respect to the latter period. [35] With respect to his post-sentence time spent in what he called remand, Mr. Mehari submits that he experienced hardship, whichhe describes in his affidavit in support of this application: 17. THAT during my time spent in the Regina Correctional Centre, I experienced new harsher and stricter restrictions as a result ofCOVID-19.

This includes the following restrictions of my rights: a. Visitation was suspended; b. Access to exercise equipment was suspended; c. Access to the yard was suspended; d. I had been locked up 24 hours a day with release from my cell only allowed every 2nd day for 30 minutes to accommodate use ofthe shower facilities and use of the phone; e. Bible studies and church was suspended; f. Food was served in takeout containers on the floor which caused me concern for my health; and g. Access to television and radio was suspended. [36] Mr.

Mehari says that when he was taken into custody following the release of Mehari 2021 on February 19, 2021, SentenceManagement at the Saskatchewan Penitentiary gave him 1:1 credit towards his sentence for sexual assault for this remand time as opposedto 1:1.5 credit. He submits that he should have received 1:1.5 credit because of the harshness of his time at the Regina Correctional Centre.He grounds his argument in his claim that he was placed in custody because of the sexual assault conviction – not because of the drugsand weapons charges.

Thus, according to him, this remand time was in relation to the sexual assault and should result in the same sort ofenhanced credit that he had received for his pre-sentence custody spent in remand before sentencing, i.e., at 1:1.5. He insists that this wastime on his sexual assault conviction because when this Court released its reasons in Mehari 2020, on March 31, 2020, and set aside hissexual assault conviction, the Crown consented to his release – notwithstanding that the other 13 charges remained pending. b. Analysis of the post-sentence remand time issue [37] To assess the reasonable arguability of Mr.

Mehari’s proposed appeal, I must have in mind the applicable standard of review.Most recently, in R v Friesen, 2020 SCC 9, 444 DLR (4th) 1, Wagner C.J.C. and Rowe J. confirmed the standard to be applied to thereview of a sentence: [26] As this Court confirmed in Lacasse [2015 SCC 64], an appellate court can only intervene to vary a sentence if (1) the sentence isdemonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44).

Errorsin principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor.The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight toanother, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), (ON CA), 135 C.C.C.(3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49).

Not every error in principle is material: an appellate court can onlyintervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error inprinciple had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if thesentence is demonstrably unfit. (Emphasis added) [38] It is difficult to see how Mr. Mehari can bring himself within the Friesen framework so as to permit appellate intervention.Mr.

Mehari does not argue that the sentencing judge erred in principle or that the sentence was demonstrably unfit when imposed on May13, 2019. Nonetheless, he submits this Court can intervene to give him a 1:1.5 credit for his post-sentence remand time – as a matter ofprinciple. I can see no basis in law to support his argument. [39] Mr. Mehari relies on s. 719(3) of the Criminal Code for the proposition that this Court ought to award him enhanced remandcredit for “time spent in custody by the person as a result of the offence”.

Specifically, the 2022 Martin’s Annual Criminal Code (Ottawa:Canada Law Books, 2020) at para 719 at 1545, states the following: Subsections (3) and (3.1) [of s. 719] do not strictly limit consideration of pre-sentence custody to time served with respect to the offencethat was the immediate trigger of the detention. Rather, the court must assess whether a sufficient link exists between the detention for

which credit is sought and the offence for which the offender is being sentenced so as to meet the “as a result of” requirement in subsec.(3). (Emphasis added) [40] Martin’s cites two decisions in support of the above proposition: R v Barnett, 2017 ONCA 897, 356 CCC (3d) 480 [Barnett],and R v Wilson, 2008 ONCA 510, 236 CCC (3d) 285 [Wilson]. Neither of these decisions pertain to Mr. Mehari’s situation. [41] Mr.

Mehari’s argument is that he was only held in custody on the drugs and weapons charges as a result of the fact that he wason judicial interim release, pending his appeal of the sexual assault conviction, thus establishing the link required to meet the test pursuantto s. 719(3). While this may be correct if Mr. Mehari were on bail pending his trial and subsequently arrested on other charges, Barnettdoes not extend so far as to allow an already sentenced accused to obtain enhanced remand credit for time spent in custody after they havealready been sentenced. This is not to mention, of course, the fact that Mr.

Mehari received full credit for the 174 days he spent in custodytowards his sentence for the sexual assault – notwithstanding that the precipitating event was the 13 new charges. [42] In Barnett, unlike in the present case, the remand time arose prior to sentencing. It was not post-sentence remand time incustody, as is the case with Mr. Mehari. While there are some similarities between Mr. Mehari’s case and Mr. Barnett’s, namely that thetotality of the charges pending was likely a factor in Mr.

Mehari being held in custody for the impugned 174-day period, the Ontario Courtof Appeal in Barnett was concerned with what constituted a sufficient link between the offence and the pre-sentence detention. It has littleapplication to the situation of a person being arrested after having been sentenced and subsequently attempting to have that timeretroactively credited to them as remand credit. [43] Wilson was extensively reviewed by both the majority and the minority in R v Keepness, 2014 SKCA 110, 317 CCC (3d) 267,leave to appeal to SCC refused, .

In Wilson, the Court was faced with time spent in pre-sentence custody on thesentence under appeal. It was not faced with a situation analogous to the present appeal, where the applicant seeks to argue that post-sentence remand time in custody ought to be applied retroactively to the original sentence that was imposed. [44] Thus, I have concluded that Mr. Mehari’s proposed ground of appeal, with respect to a claim for a 1:1.5 credit for his post-sentence remand time, is not reasonably arguable. [45] The appropriate time to consider whether Mr.

Mehari is entitled to enhanced credit for the post-sentence remand time may be atthe time of sentencing for those new drugs and weapons charges, if he is ultimately convicted of them. 3. Claim for a reduced sentence based on Regina Correctional Centre and SaskatchewanPenitentiary conditions [46] I have earlier set out those portions of Mr. Mehari’s affidavit relating to the effects of COVID-19 while he was in the ReginaCorrectional Centre. In his affidavit, Mr. Mehari also describes his time in the Saskatchewan Penitentiary after he was taken into custodyfollowing the release of Mehari 2021: 18.

THAT since being placed back in the Saskatchewan Penitentiary in February of 2021, I have also experienced new harsher and stricterrestrictions as a result of COVID-19. This includes the following restrictions of my rights: a. Visitation was suspended; b. Library access was suspended; c. The programs and activities were suspended; d. The exercise programs and fresh air time in the yard was suspended; e. Our work was suspended; f. Bible studies and church was suspended; g. Access to stationary items (e.g. pens and paper) was suspended; h.

I had been locked up 24 hours a day with release from my cell only allowed every 2nd day for 30 minutes to accommodate use oflaundry facilities, use of the shower facilities and use of the phone; i. I had been denied my allergy medication for 60 days which resulted in me experiencing painful, itchy hives all over my body; j. I have been denied underwear for 15 days; k. The prison staff fail to wear proper personal protection equipment for my health safety, including the proper hazmat suits, gloves,and masks on a regular basis; 1. There was no access to medical doctors and psychiatric doctors; and m.

There was no communication with administration staff to discuss the above infringements. 19. THAT I tested positive for COVID-19 in April 2021. It caused me to have immense difficulties breathing. I experienced brain fog, lossof my ability to smell and taste, which I still have not fully recovered. 20. THAT the above conditions in the Regina Correctional Center and Saskatchewan Penitentiary has severely affected my mental health

and has been mentally exhausting. It has caused me to feel depression and has affected my sleep. [ 47 ] There is a significant body of jurisprudence regarding the possible impact of COVID-19 on the development of a fit sentence, but most of that exists at the trial level – when a sentencing judge is asked to take it into account as a matter of first instance. For a

summary of that law, see the following two decisions: R v Aiton-Poore , 2021 ONCJ 85 , and R v Young , 2021 BCPC 6 . See also R v Johnston , 2021 ONCA 331 , where the court dismissed an appeal wherein the sentencing judge imposed a sentence taking into account the impact of COVID-19 protocols. [ 48 ] Given that Mr. Mehari does not challenge the fitness of his sentence as of the time of imposition, this jurisprudence has little relevance to the situation before me. In other words, he is not saying the sentencing judge erred.

Rather, he asserts that an intervening event compels another look at the fitness of his sentence. [ 49 ] In such circumstances, the issue is the likelihood that Mr. Mehari’s proposed fresh evidence would be received and, if so, whether it would be sufficient to persuade the Court that his sentence should be reduced to account for the effects of COVID-19 on what is otherwise a fit sentence. The Crown vigorously opposes such a proposition.

In doing so, the Crown relies on R v Lévesque , 2000 SCC 47 , [2000] 2 SCR 487, and R v Sipos , 2014 SCC 47 , [2014] 2 SCR 423 [ Sipos ]. [ 50 ] To date, there have been five appellate decisions that have considered the effect of COVID-19 on what was considered to be a fit sentence when imposed: R v E.M.M. , 2021 ONCA 436 [ E.M.M. ]; R v A.B. , 2021 SKCA 119 [ AB ]; R v McKibbin , 2020 BCCA 337 [ McKibbin ]; R v Lariviere , 2020 ONCA 324 [ Lariviere ]; and R v Morgan , 2020 ONCA 279 [ Morgan ]. [2] The offender was successful in reducing his sentence as a result of COVID-19 in only one of these cases, i.e., McKibbin . [ 51 ] In McKibbin , the British Columbia Court of Appeal allowed the offender’s appeal in part because it was persuaded by fresh evidence showing that, “if [the appellant] contracted COVID-19, it could well lead to an early death …” (at para 24).

That court found the case to be unusual in light of the fresh evidence and because “it is not just the COVID-19 pandemic that has changed the sentencing landscape, but the pandemic in the context of Mr. McKibbin’s serious respiratory illness, which makes him much more susceptible to serious COVID-19 symptoms, including death” (at para 25). [ 52 ] In AB , Barrington-Foote J.A., for the Court, extensively reviewed the COVID-19-related jurisprudence.

He concluded that it remains a matter of debate whether a sentencing judge has the discretion to reduce a sentence “directly or indirectly” as a result of the effect of COVID-19 on prison conditions (at para 41).

In AB , it was not necessary to decide the question because the appellant had not provided any evidence “relating to the protocols adopted in the correctional institutions where AB spent time on remand or will serve his sentence, or the extent to which they would impact him” (at para 42). [ 53 ] In Morgan , the Ontario Court of Appeal found that it was not necessary to decide whether it could take judicial notice of the effects of the COVID-19 pandemic so as to permit a reduction in sentence.

It did, however, hold that “it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission” (at para 8). In the result, the Court found that the appellant’s submissions fell into “the category of collateral consequences for sentencing purposes” (at para 9). Relying on R v Suter , 2018 SCC 34 at paras 48 and 56 , [2018] 2 SCR 496, Morgan stressed two points: (

a) the question is whether the collateral consequences mean that a “particular sentence would have a more significant impact on the offender because of his or her circumstances” (at para 9); and (b) “the fundamental principle of proportionality must prevail in every case – collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender” (at para 10).

In the result, Morgan left the matter of the effect of COVID-19 to the Parole Board (at para 12). [ 54 ] In Lariviere , the appellant submitted that his sentence should be reduced as a result of the impact of the COVID-19 pandemic on the conditions of his detention. In addressing this argument, the Court of Appeal for Ontario saw no reason to intervene as “an effective sentence of three years imprisonment was appropriate” (at para 13).

That court found there was “nothing about the particular circumstances of the appellant’s incarceration, nor any indication of a unique or personal vulnerability, that would justify shortening the fit sentence that was imposed” (at para 17). [ 55 ] In E.M.M. , the appellant applied to adduce fresh evidence to demonstrate that he had suffered hardship while in custody, both as a result of being assaulted and COVID-19 restrictions, and that he had made efforts towards rehabilitation since having been released on bail pending his appeal.

The court rejected the fresh evidence and the appellant’s claim to a reduced sentence: [37] The court cannot act as a de facto parole board . It will vary a sentence based on changes in circumstances relevant to sentence that occurred between the imposition of sentence and the hearing of the appeal only exceptionally: R. v. Ghadban , 2015 ONCA 760 , 342 O.A.C. 177, at para. 25 ; R. v. L.S. , 2017 ONCA 685 , 354 C.C.C. (3d) 71, at paras. 112 , 117. The exceptional circumstances in Ghadban related to the progress that the offender had made while awaiting the hearing of his appeal.

The appellant’s efforts toward rehabilitation since on bail described in the proposed fresh evidence are far from the “very unusual significant strides” taken by the appellant in Ghadban , at para. 23. Indeed, the trial judge had before her essentially the same qualitative information about the appellant’s rehabilitative prospects and efforts as contained in the proposed fresh evidence. (Emphasis added) [ 56 ] As Barrington-Foote J.A. in AB noted, it is too early to draw any bright-line conclusions from the above jurisprudence.

One thing is clear, however – as a general rule, when an offender seeks to challenge an otherwise fit sentence on the basis of COVID-19, specific evidence directed to the particular conditions in the institution and the effect on the offender will be required. In my respectful view, the evidence that Mr. Mehari seeks to adduce falls considerably short of what would be necessary.

[57] In this case, Mr. Mehari has not provided any evidence that distinguishes him from the balance of the inmate population. Hecontracted COVID-19, but all who are incarcerated are exposed to that risk. Clearly, the relevance of COVID-19 in the prison system tothe fitness of a sentence remains an open question, but more is required in terms of the specific effects on the offender in question. [58] Considering all of this, I am not convinced that Mr. Mehari’s proposed ground of appeal with respect to COVID-19 isreasonably arguable.

Moreover, even if I were persuaded as to the arguability of this ground of appeal, I would not have extended the timeto appeal – having regard for the other factors and the justice of this case. C. The interests of justice [59] In Roberge, the Supreme Court indicated that “the ultimate question is always whether, in all the circumstances andconsidering the factors referred to above, the justice of the case requires that an extension of time be granted” (at para 6). In my view, theinterests of justice do not require or indeed favour Mr.

Mehari be granted an extension. [60] Few cases exist where a delay of 27 months has not counted against the applicant. More importantly, Mr. Mehari made noapplication to extend the time to appeal sentence until after his application for leave to appeal to the Supreme Court was rejected. Hisacknowledged strategy was to exhaust all remedies in relation to his conviction appeal before applying to extend the time to appeal hissentence. In essence, he chose to bifurcate his conviction appeal and sentence appeal. Rule 8 of the Rules of Court is not hospitable to thisapproach.

It contemplates the simultaneous appeal of conviction and sentence: “the offender shall file one Notice of Appeal only” (Rule8(3)(b)) using Form A (Rule 9(1)), which has five distinct categories – conviction, conviction and sentence, sentence alone, offender orlong-term offender designation, and other (the other category explicitly delimits to an “appeal other than [the four] above”). [61] The bifurcation of conviction and sentence appeals is not encouraged. It is intended and preferable that conviction and sentenceappeals are heard together.

As the Court stated in R v M.W., 2015 ONCA 644, 340 OAC 399, hearing both appeals together “enhances theefficient use of the court’s resources, avoids the possibility of contradictory outcomes, and ensures that the panel hearing the sentenceappeal has the benefit of the full context for the appeal” (at para 6). I agree with this statement. See also R v Tieu, 2020 ONSC 7758 atpara 17 [Tieu]. Nothing about Mr.

Mehari’s case commends it to me as being exceptional and therefore justifying a departure from thesegeneral principles. [62] To pursue one avenue of relief to the end, and then to start another, consumes scarce judicial resources. It leaves the victim andthe community unsettled regarding the proper functioning of the criminal justice system. The offence in question arose in September of2015; and yet, Mr. Mehari now appeals his three-year sentence – not on the basis that it is not a fit sentence, but as a result of matters thathave arisen post-sentence.

It is the very passage of time that gives rise to the grounds of appeal. By bifurcating his appeal, circumstanceshave arisen that he believes would permit him to now call into question the fitness of the sentence. He wishes to benefit from a choice tobifurcate his conviction and sentence appeal and the long delay. [63] When considering whether to grant an extension of time, there is a constant interplay: balancing what may seem to be fair withfinality.

Thus in Sipos, the Supreme Court summarized its jurisprudence: [30] Fresh evidence addressing events that have occurred between the time of sentencing and the time of the appeal may raise difficultissues which bring competing values into sharp relief. On one hand, we must recognize, as Doherty J.A. put it in R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1, at para. 166, that “[a]ppeals take time. Lives go on. Things change. These human realitiescannot be ignored when the Court of Appeal is called upon to impose sentences well after the event”.

However, we must equally payattention to the institutional limitations of appellate courts and the important value of finality. Routinely deciding sentence appeals on thebasis of after-the-fact developments could both jeopardize the integrity of the criminal process by undermining its finality and surpass theappropriate bounds of appellate review: Lévesque, at para. 20; R. v. Smith (2005), 2005 ABCA 404 , 376 A.R. 389 (C.A.), atparas. 21–25. (Emphasis added) [64] As this Court recently said in Deckert, “the importance of finality in criminal proceedings is a relevant consideration …” (atpara 22).

In this case, in light of the delay and the deliberate choice to bifurcate the conviction and sentence appeals, it is appropriate tostress finality. The offence in this case arose six years ago – an extension of time in such circumstances, “raises prejudice for the partiesand the efficient administration of the criminal justice system” (Tieu at para 17). [65] In

summary, Mr. Mehari did not intend to appeal during the stipulated period nor does he have a satisfactory explanation fornot doing so. While I recognize he relies upon events that transpired outside of the 30-day time frame, I am not persuaded as to the merit ofthe proposed grounds of appeal. I am also concerned about the lengthy period of the delay and the need to promote finality. [66] Having regard for the whole of it, I am persuaded by the Crown’s submissions that it is not in the interests of justice to grantthe extension. IV.

Conclusion [67] The application to extend the time to apply for leave to appeal and file a notice of appeal is denied. I would like to commendcounsel for the quality of their submissions to me. “Jackson J.A.” Jackson J.A.