COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Baig, 2022 ONCA 129

DATE: 20220211

DOCKET: M51749

Tulloch J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Responding Party

and

Nicholas Baig

Moving Party

Nicholas Baig, acting in person

Michael Crystal, appearing as duty counsel

Nicole Rivers, for the responding party

Heard: November 1, 2021 by video conference

REASONS FOR DECISION

[1] This is a motion for an extension of time for an appeal against conviction. Nicholas Baig pleaded guilty to second-degree murder for the murder of his wife who was, at the time, nine months pregnant with the couple’s unborn child.

[2] In his motion for an extension of time, Mr. Baig states that he had previously understood that he could not appeal a conviction since he pleaded guilty and that he only recently became aware that it was possible to strike a guilty plea. He now seeks an extension of time to file a conviction appeal, as there was evidence from his case that was not presented during his court proceedings and on which basis he would not have pleaded guilty.

[3] At the conclusion of oral arguments, I dismissed the motion with reasons to follow. These are my reasons.

Background Facts

[4] The case was originally set for trial but eventually proceeded by way of a guilty plea to the charge of second-degree murder. The underlying facts which gave rise to the charge were set out in an agreed statement of facts which was read out by the Crown prosecutor. The underlying facts are set out below.

[5] Mr. Baig and his wife, Arianna Goberdhan were married on November 6, 2016. During the marriage, their relationship was very volatile, resulting in Ms. Goberdhan moving back to live with her parents in January 2017. At some point between November 2016 and March 2017, Mr. Baig and his wife engaged in a series of hostile text message exchanges during which Mr. Baig called Ms. Goberdhan a “skank”, “bitch”, “whore” and “slut”. During the text message exchange, Mr. Baig also said to his wife:

I really don’t want to be married to you. I don’t want nothing to do with you or this baby anymore. I hope to God you stop breathing while you drive. And you’re a lying whore and I hope you die delivering.

[6] Sometime on April 1 or 2, 2017, Mr. Baig and Ms. Goberdhan engaged in a very heated argument, resulting in Mr. Baig breaking into Ms. Goberdhan parents’ home. In the process, Mr. Baig broke the door that led from the garage into the residence and attempted to gain entry to the home.

[7] On April 7, 2017, Ms. Goberdhan told family and friends that she was going to pick Mr. Baig up at work and give him a drive to his home. She indicated that she was going to take her father’s car so that she would have an excuse to leave that residence. In fact, Mr. Baig’s brother drove him home and they arrived home at around 5:50 p.m.

[8] Ms. Goberdhan attended at Mr. Baig’s home around 6:30 p.m. that night. At approximately 9:43 p.m., Durham Regional Police received a 911 call from Ms. Goberdhan’s cell phone. Ms. Goberdhan did not speak directly to the 911 operator, but the operator could hear her saying something to the following effect: “you have to let me go. You can’t keep me here. I have to go home.” The call then ended abruptly.

[9] Uniformed police officers attended the residence. Mr. Baig’s brother also arrived at the residence and provided them with access to the home. Ms. Goberdhan was found upstairs. Emergency Medical Services (EMS) personnel arrived at the residence and attended to Ms. Goberdhan. They noted she had what appeared to be multiple stab wounds to her head, face, neck, and body. The EMS personnel were unable to locate any vital signs and placed a call to a doctor who pronounced Ms. Goberdhan deceased. Her body was removed from the house later that night.

[10] Ms. Goberdhan had no defensive injuries. She was stabbed seven times in the neck and head area. She was stabbed seven times in the torso, and she was stabbed three times in the arm. According to the pathology report, her unborn baby was fully developed and healthy and did not have any external injuries to the body.

[11] Mr. Baig was charged with first-degree murder. After a very extensive period of pre-trial hearings, Mr. Baig entered a guilty plea to the charge of second-degree murder. Throughout the court process, Mr. Baig was represented by experienced senior counsel who specializes in criminal law.

[12] Prior to the plea, counsel for Mr. Baig indicated to the court that he had taken time to explain to Mr. Baig his rights and obligations pertaining to a guilty plea, in accordance with s. 606(1.1) of the Criminal Code, R.S.C. 1985, c. C-46. The lawyer further indicated that Mr. Baig’s plea was voluntary and without threats or duress.

[13] The guilty plea was entered on January 19, 2019, based on an agreed statement of facts. Mr. Baig accepted the facts as read into evidence that he murdered his wife. He accepted that he understood and appreciated that he had a right to a trial, that he had a right to testify, that he had a right to face his accusers, and that he had a right to require the Crown to prove the case against him beyond a reasonable doubt. Mr. Baig expressly waived his right to a trial. After the agreed statement of facts was read into evidence, Mr. Baig agreed to the facts as read, and the court accepted the guilty plea.

Issues

[14] Mr. Baig now seeks to appeal his conviction and sentence on the basis that he was confused and unaware of what he was doing. Specifically, he submits:

1. Due to his lack of knowledge of the legal system, he was under the impression that since he pleaded guilty, he could not appeal his conviction.

2. It was only recently brought to his attention that there are grounds on which to strike a guilty plea.

3. He only recently began reviewing all the documents in his possession and came across information, including “additional official evidence” that was never presented in his initial court proceedings and that leads him to believe his guilty plea was uninformed.

4. It has been extremely stressful for him in custody due to the COVID-19 pandemic and the disruptions that it has created within the institution.

Analysis

[15] Mr. Baig brings this motion pursuant to s. 678(2) of the Criminal Code, seeking to extend the time within which to file a notice of appeal to his conviction for second-degree murder.

[16] In deciding whether to grant a motion for an extension of time to file a notice of appeal, I am guided by the following guiding factors set out in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15 and R. v. J.C.M. (2002), 2002 7570 (ON CA), 162 C.C.C. (3rd) 233 (Ont. C.A.), at para. 20:

1. Whether the applicant has shown a bona fide intention to appeal within the appeal period;

2. Whether the applicant has accounted for or explained the delay; and

3. Whether there is merit to the proposed appeal.

[17] The overriding principle is the justice of the case, and whether the applicant has demonstrated that justice requires that the extension of time be granted: Enbridge Gas, at para. 15; J.C.M., at para. 21.

[18] I am not satisfied that Mr. Baig has shown that he had a bona fide intention to appeal within the specified appeal period, which would have been 30 days after the completion of his guilty plea and sentence. Mr. Baig entered his guilty plea on January 19, 2019. Now, more than two and a half years later, he brings this motion for an extension of time. In addition, he was charged for the offence in April 2017, over four years ago.

[19] Mr. Baig has not provided any reasonable basis or adequate explanation as to why he delayed initiating his appeal. His only explanation is that he did not know that he could appeal a guilty plea until “very recently”. However, he has not established that he brought this motion within a reasonable time of becoming aware that he could appeal a guilty plea.

[20] In my view, there is also no merit to Mr. Baig’s claim that he entered an uninformed guilty plea and was ignorant of the legal system. There is no issue that a guilty plea must be voluntary, unequivocal, and informed: R. v. Davis, 2020 ONCA 326, at para. 10. A plea is an informed one if the accused is aware of the effects and consequences of the plea. On the record before me, I am not satisfied that Mr. Baig was not properly informed before entering his guilty plea, or that his decision to plead guilty was not voluntary and unequivocal. Throughout the proceedings, Mr. Baig was represented by experienced senior counsel, who conducted a very extensive pre-trial of the case. Mr. Baig’s counsel also represented to the court, on the record, that he had very extensive consultations with Mr. Baig in preparation for trial and his subsequent decision to enter a guilty plea.

[21] While there are cases in which our court and other appellate courts have granted an extension of time to allow an appellant to file an appeal seeking to set aside a guilty plea notwithstanding very lengthy unexplained delays, these tend to be cases in which there are unexpected consequences of the conviction, and there is good reason to doubt the validity of the conviction: J.C.M., at para. 24; see also R. v. Brooks, 2020 ONCA 605. For example, this may be the case where there are immigration consequences for non-citizens who receive incarceration periods of six months or more after entering a guilty plea. In these cases, the appellant was either uninformed or misinformed as to collateral immigration consequences of the guilty plea or sentence.

[22] Mr. Baig’s situation, however, does not fall in this category of cases. This is a case in which there was strong evidence of animus against the deceased by the applicant. The relationship was volatile. There was evidence of previous violence used against the deceased and her family on the part of Mr. Baig, just days before her murder. Mr. Baig’s actions leading up to Ms. Goberdhan’s death were violent, and intimidating. At trial, there was no issue that it was Mr. Baig who stabbed and caused the death of both Ms. Goberdhan and their unborn child.

[23] The trial judge was very thorough in her allocution and in satisfying herself that the appellant was pleading guilty voluntarily, and that he fully understood the consequences of such a guilty plea. The following meticulous exchange at the time of the plea highlights the transparency of the process:

[DEFENCE COUNSEL]: He pleads not guilty to the charge as read, but guilty to the lesser and included offence of second-degree murder.

CLERK REGISTRAR: Harken to your plea as the court hath recorded it. You pled not guilty to Count 1 as charged but guilty to the included offence of second-degree murder.

THE COURT: Mr. Baig.

NICHOLAS BAIG: Yes.

THE COURT: I want to have a conversation with you. You can have a seat.

NICHOLAS BAIG: Yeah.

THE COURT: I’d like you to confirm what your counsel just indicated to the court, and that is that you are entering a plea of guilty to second-degree murder. Is that right?

NICHOLAS BAIG: Yes, ma’am.

THE COURT: Do you understand that you have the right to plead not guilty and have a trial?

NICHOLAS BAIG: Yes.

THE COURT: Do you understand that by pleading guilty you are giving up your right to a trial?

NICHOLAS BAIG: Yes. I do.

THE COURT: Are you making this guilty plea voluntarily?

NICHOLAS BAIG: Yes.

THE COURT: Because it’s what you want to do?

NICHOLAS BAIG: Yes.

THE COURT: It is your choice?

NICHOLAS BAIG: Yes.

THE COURT: Do you understand that by pleading guilty you are admitting the essential elements of the offence, specifically, that you killed the victim?

NICHOLAS BAIG: Yes.

THE COURT: That you intended to kill her or to cause her bodily harm that you knew was likely to cause death and was reckless as to whether death ensued or not?

NICHOLAS BAIG: Yes.

THE COURT: Do you understand that by pleading guilty you are admitting your guilt and that you will be sentenced?

NICHOLAS BAIG: Yes.

THE COURT: And do you understand that the ultimate decision as to what your period of parole ineligibility will be is up to me?

NICHOLAS BAIG: Yes.

THE COURT: Do you understand that the mandatory sentence for the offence to which you’ve pleaded guilty is life imprisonment and the only issue to be determined by the court is when you will be eligible to apply for parole?

NICHOLAS BAIG: Yes.

THE COURT: I know that there’s no agreement between the Crown and your counsel but you understand that whatever their position is, I have an unfettered discretion bound only by the maximum and minimum in the Criminal Code to impose the period of parole ineligibility that I determine to be appropriate?

NICHOLAS BAIG: Yes.

THE COURT: Okay. In all of those circumstances I'm satisfied that the plea is voluntary as required to be a valid guilty plea and I accept your plea of guilty, Mr. Baig…

[DEFENCE COUNSEL]: Yes. Thank you, Your Honour. And, I just wanted to indicate that I have reviewed everything that is going to be presented for the facts of the case with Mr. Baig and I’ve indicated, and we’ve had lengthy discussions, I'm certainly content that everything that is going to be presented is admissible…

[DEFENCE COUNSEL]: And just to confirm again, Your Honour, Mr. Baig has reviewed all of this [exhibits admitted] and was certainly content that it be deemed admissible on the sentencing hearing.

[24] It is clear from the above excerpt that the trial judge was very thorough, and that Mr. Baig and his trial counsel were both very responsive to the trial judge’s inquiry.

[25] I adopt the words of Carthy J.A. in R. v. Closs (1998), 1998 1921 (ON CA), 105 O.A.C. 392 (C.A.), at para. 8:

It is my view that such orders should be made only in exceptional circumstances where there is a real concern that an injustice may have occurred. There are many negative consequences of having a criminal conviction and it cannot be expected that these will all be explained to an accused prior to a plea; nor should the convicted person expect the judicial system to provide a fresh start when a surprising consequence of the conviction is encountered. We must have finality except where the demands of justice dictate otherwise.

[26] Recently, the majority of the Supreme Court in R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696 reiterated this principle, at para. 65:

The onus is on a person who appeals a conviction on the ground of an invalid plea to show that the plea was in fact invalid: T. (R.), at p. 519. The integrity of the plea bargaining process and the certainty and order which are essential to the criminal process depend on the finality of guilty pleas. The benefits associated with guilty pleas will be lost and the very functioning of the criminal justice system will be threatened if such pleas are set aside lightly. Accordingly, there is a considerable public interest in preserving the finality of guilty pleas, and the burden of showing that a guilty plea was invalid falls to the accused.

[27] Having reviewed the record in this case, I am not satisfied that Mr. Baig has established that he formed a bona fide intention in the required period, that there is a reasonable explanation for the delay, or that there is any merit to the proposed appeal. Furthermore, there is no real concern that an injustice may have occurred. In contrast, granting the requested motion after this significant length of time could cause real prejudice to the deceased’s family, who will be forced to re-live the ordeal of her death and the death of her unborn child all over again, and be denied closure to this very tragic and sad chapter of their lives.

[28] Accordingly, the motion is denied.

“M. Tulloch J.A.”