Appellate ruling upholds judge’s finding that repeated calls harassed police
A failure to understand the possible consequences of a man’s guilty pleas on his immigration status did not undermine the validity of such pleas, the Ontario Court of Appeal said in a recent case.
The appellant was born in Asmara, which was previously part of Ethiopia but was presently Eritrea’s capital. He was considered stateless since he was not recognized as a citizen of either Ethiopia or Eritrea. He was recognized as a Convention refugee, entered Canada in 1988, and acquired permanent resident status.
A Summary Conviction Appeal Court judge (SCACJ) did the following:
The appellant filed applications for leave to appeal from these three orders.
Regarding C63256 and M49551, the appellant argued that, when he entered his guilty pleas, he did not know about the negative consequences on his immigration status. He wanted to present fresh evidence to show that the court should strike his guilty plea because he was unaware of the immigration implications.
Relating to M49552, the appellant asserted that the trial judge wrongly interpreted s. 372(3) of the Criminal Code. The judge should not have found him guilty of making harassing phone calls to the Toronto Police Service, the appellant said.
In R. v. Berhe, 2022 ONCA 853, the Ontario Court of Appeal refused leave to appeal in M49552. It granted leave to appeal in C63256 and M49551 but dismissed both appeals.
With respect to M49552, amicus curiae claimed that the appellant had a dispute with legal aid authorities and that that the process leading up to the SCACJ’s decision was unfair since circumstances beyond the appellant’s control thwarted his efforts to pursue his appeal.
The Court of Appeal saw no unfairness in the process and no error of law. The court ruled that the SCACJ was entitled to find that the appellant had no interest in advancing his appeal and that the record of the numerous appearances before the SCACJ supported this finding.
Next, the appellate court held that the proposed appeal in M49552 lacked merit and that the trial judge made no errors in concluding that the Toronto Police Service was a “person” under s. 372(3).
Amicus curiae contended that there was no proof that the appellant’s repeated calls actually harassed the Toronto Police Service. The Court of Appeal disagreed and found no errors in the trial judge’s factual finding that the appellant made those repeated communications for harassment purposes.
There was no lawful reason justifying the appellant’s repetitive and abusive behaviour, the appellate court said. The court found it doubtful that the appellant’s initial call was justified since he knew then that he was not prohibited from appearing at the Small Claims Court.
Regarding C63256 and M49551, the Court of Appeal determined that a failure to understand the impact that the appellant’s guilty pleas could have on his immigration status did not undermine the validity of these pleas.
The appellate court tackled the knowledge component in R. v. Wong, 2018 SCC 25 and found that the appellant had enough knowledge of the adverse immigration implications of pleading guilty to criminal harassment on two occasions.
The appellate court distinguished this case from R. v. Davis, 2020 ONCA 326, where the court found that trial counsel misled the appellant about the effect of his guilty plea on his immigration status by wrongly advising him that there would be no immigration impacts.
Lastly, the Court of Appeal concluded that the appellant also failed to discharge his burden on Wong’s prejudice component.
The records in C63256 and M49551 showed that the appellant, who faced two overwhelming criminal harassment cases in which he had no defence, was insistent on pleading guilty, the appellate court said. The appellant’s situation would not be different if he exercised his right to go to trial, the court added.
