ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-A10371
DATE: 2014/01/07
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
HUSSEIN CIMPAYE
Applicant
Moiz Karimjee, for the Crown
Anne Marie Morphew, for the Applicant
HEARD: December 4, 2013 (Ottawa)
RULING ON APPLICATION
FOR AN EXTENSION OF TIME TO FILE AN APPEAL
PARFETT J.
Introduction
[1] The Applicant seeks an extension of time to file an appeal of his conviction dated May 18, 2012 on the basis that he was unaware of the immigration consequences of his decision to plead guilty. The Crown opposes this application.
Background
[2] Mr. Cimpaye was to start his trial on May 18, 2012. He was charged with several offences, including assault with a weapon, forcible confinement and breach of his recognizance. He was self‑represented on that date. He was in custody as a result of being charged with various serious offences and also because he had breached his release conditions on several occasions.
[3] On the day of trial, the Crown brought an application to have a lawyer appointed to cross‑examine the complainant in the matter who was under the age of 18. That application was granted, but the lawyer who was appointed was not ready to proceed on that date. An adjournment was required. Because Mr. Cimpaye was in custody an early date was sought, but the earliest available date was 4‑6 weeks in the future.
[4] Mr. Cimpaye was very reluctant to wait that long. He wanted to be released so that he could see his children. After speaking to a defence counsel, he decided to plead guilty. He was advised by the administrative judge that he would have to accept the facts underpinning the charges. He indicated that he understood and was prepared to do so.
[5] The trial judge canvassed with Mr. Cimpaye whether his decision to plead guilty was fully voluntary and not done merely to get the matter over with. He indicated that it was. Furthermore, the trial judge asked the questions as set out in section 606 of the Criminal Code of Canada[^1] and once again Mr. Cimpaye responded appropriately. He was found guilty and sentenced to 102 days of pre‑sentence custody and 15 months of probation.
[6] In December 2012, Mr. Cimpaye was asked to present himself to the Immigration and Refugee Board on January 17, 2013. Mr. Cimpaye is a permanent resident of Canada, but he was born in Burundi and immigrated to Canada in 1998. He is not yet a citizen of Canada. At the hearing, Mr. Cimpaye was advised that a deportation order would be issued as he had been convicted of ‘serious criminal behaviour’ contrary to section 36(1)(a) of the Immigration and Refugee Protection Act[^2]. He has appealed that order.
[7] In April 2013, Mr. Cimpaye was again charged with criminal offences and this time he hired a lawyer to assist him. He was advised at that time that he could have appealed the convictions that led to his deportation order. He sought a legal aid certificate in order to bring an appeal, but was denied. He was advised that he would have to file a transcript with his notice of appeal and he tried to earn sufficient funds to do so, but could not. Ultimately, in July 2013 he filed this application.
Issue
Is it in the interests of justice that Mr. Cimpaye be granted an extension of time to file an appeal?
Analysis
[8] In R. v. Menear[^3], the Court of Appeal set out the test for the exercise of discretion to grant an extension of time for appeal. It stated:
20 There is no absolute rule to be applied in the exercise of the discretion whether or not to grant an extension of time. The court will, however, usually consider the following three factors:
(i) whether the applicant has shown a bona fide intention to appeal within the appeal period;
(ii) whether the applicant has accounted for or explained the delay; and
(iii) whether there is merit to the proposed appeal.[^4]
[9] The Court goes on to note that other considerations include whether the consequences of the conviction are out of all proportion to the penalty imposed, any prejudice to the Crown and whether the Appellant has received the benefit of the judgment.[^5]
[10] In addition, in R. v. Closs[^6], the Court of Appeal made the following admonitory comments:
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.[^7]
1. Bona fide intention to appeal
[11] It is apparent from the record that Mr. Cimpaye did not have any intention of appealing within the appeal period. Quite the contrary – Mr. Cimpaye testified that he was well satisfied with the bargain that he had made with the Crown. He got out of jail that day and did not have to wait another 4‑6 weeks in custody for his trial.
[12] The issue is whether in the circumstances of this case, the fact that he initially had no intention to appeal should militate against granting an extension of time to appeal. Mr. Cimpaye’s satisfaction with his bargain was based on the fact that he got out of jail that day. He was utterly unaware of the impact that those convictions would have on his immigration status and indeed told the court that he would never have pleaded guilty had he known his real jeopardy.
[13] In these circumstances, it is my view that Mr. Cimpaye could not have formed an intention to appeal his criminal convictions until he knew of the potential immigration consequences and that did not occur until he received his deportation notice in January 2013. However, as Crown points out, Mr. Cimpaye still did not form any intention to appeal at that time. That intention was not formed until April 2013 when he consulted counsel about his new criminal charges.
[14] Mr. Cimpaye did not have the assistance of counsel at any time between May 2012 and April 2013. Admittedly, this situation was one of his own making because he chose not to seek the assistance of counsel. However, the fact remains that he had no legal assistance and the complexities of the inter‑relationship between criminal convictions and immigration status is not a subject matter that is well understood by the general public. Indeed, it is not always well understood by counsel.[^8] Furthermore, he already had a significant criminal record at the time that he entered his plea of guilt and none of those convictions had triggered any immigration consequences. Thus, Mr. Cimpaye had no reason to suppose that this occasion was going to be any different.
[15] In my view, in order to form an intention to appeal, the Appellant has to have a reason to believe that an appeal is possible, necessary or appropriate. Mr. Cimpaye did not have a reason to believe that an appeal was necessary until January 17, 2013 when he received his deportation notice. Mr. Cimpaye was never asked by counsel why he did not seek advice about appealing the criminal convictions, but the fact that he had pleaded guilty and the convictions had been entered nine months earlier undoubtedly played a role. Thus it was not until April 2013 that he learned that an appeal was possible and it was then that he formed the intention to appeal.
[16] Consequently, Mr. Cimpaye’s decision to appeal the criminal convictions was made within a timeframe that was reasonable in the specific circumstances of this case.
2. Explanation for the delay
[17] The Appellant argues that he did not know about the potential immigration consequences of his appeal until December 2012 and therefore, that was the first opportunity that he had to consider appealing the criminal convictions.
[18] The Crown contends that while it is true that the Appellant did not know of the potential immigration consequences to his plea of guilt, even once he knew, he did not act expeditiously to appeal his criminal convictions.
[19] The Appellant stated in his testimony that as soon as he received his deportation order in January 2013, he appealed it. He sought legal advice about that appeal, but never raised the possibility of appealing the criminal convictions.
[20] It was not until he was arrested on further offences in March 2013 and he decided to seek the assistance of counsel that for the first time he learned that there was a possibility that he could appeal his criminal convictions. Although he wished to pursue the possibility of an appeal, an application to extend time was not made immediately. Mr. Cimpaye received erroneous legal advice that he needed to order the transcript prior to filing his application. Mr. Cimpaye attempted to earn the necessary money to pay for the transcript, but was unable to do so. As a result, there was further delay between April 2013 and July 2013 before this application was filed. The Crown indicated that this delay should not be held against Mr. Cimpaye given that it was not due to any fault of his. I concur.
[21] The issue to be determined is whether the delay between January and April 2013 was unreasonable. Mr. Cimpaye was focussed on appealing the deportation order and did not address his mind to the issue of the criminal convictions. Given the length of time that had elapsed since the convictions, the fact that he had pleaded guilty and that, as noted earlier, he was essentially satisfied with the bargain that he had made, that was not an unreasonable oversight. Therefore, I find that any delay has been appropriately explained.
3. Merit of the appeal
[22] The final and thorniest issue to deal with in this matter is whether Mr. Cimpaye’s appeal has any merit. In order to get a new trial, Mr. Cimpaye first has to persuade a judge that his guilty plea should be set aside.
[23] An accused may appeal a conviction entered after he or she has pleaded guilty. However, a court will only permit the withdrawal of the guilty plea if there are valid grounds for doing so.[^9] The onus is on the Appellant to show that valid grounds exist.
[24] To constitute a valid guilty plea, it must be voluntary and unequivocal. As noted in R. v. T.R., in order to be considered voluntary, the plea must be “the conscious volitional decision of the accused … for reasons which he or she regards as appropriate.”[^10]
[25] The Appellant argues that his guilty plea was not a ‘conscious volitional’ decision because he did not know the true consequences of the plea. The Appellant points to R. v. Meehan[^11] as evidence of the fact that not knowing the immigration consequences of a guilty plea could justify withdrawing the plea. The Crown seeks to distinguish that case on the basis that in the Meehan case, the accused sought legal advice concerning the possible immigration consequences of a conviction and received erroneous advice. The judge in that case noted,
The issue on this appeal is – did the appellant understand the consequences of his guilty plea? While he understood the nature of the charge and the potential criminal law penalties he faced, his decision to plead guilty was based in part upon erroneous legal advice he received about the immigration consequences of a conviction. I am persuaded that in the highly unusual circumstances in this case, it is appropriate to strike the plea, quash the conviction and direct a new trial be held.[^12]
[26] I do not have to decide whether Mr. Cimpaye’s plea of guilt should be struck, merely whether there is any merit to his appeal. The issue to be determined is whether a deportation order comes within the normal range of negative consequences of a criminal conviction or whether it falls within the category of exceptional circumstances. If it is the former, then that fact would militate against the exercise of the court’s discretion to extend time to appeal. If the latter, then the reverse would be the case. In my view, a deportation order is a very serious, but unusual consequence of a conviction.
[27] While Mr. Cimpaye did not ask about any possible immigration consequences, it is also to be noted that he was not advised of any risk by either the duty counsel who spoke to him earlier in the morning or the counsel who spoke to him immediately before he entered his guilty plea. Furthermore, nothing in his past history with the criminal justice system would have alerted him to the possibility.[^13] Consequently, it is possible that this argument may have merit.
[28] The second factor to consider is whether the guilty plea was unequivocal. The Appellant states that during questioning pursuant to section 606 of the Criminal code of Canada, he indicated that he was concerned about the allegation that he had used a hammer during the assault. The relevant portions of the transcript are as follows:
Cimpaye: J’aurai besoin de suggérer à propos de la deuxième accusation qui est mentionnée que j’avais une arme; soi‑disant, un marteau. Je ne vois pas si la Couronne a cette preuve-là.
Le Tribunal : Mais, par contre, on vous accuse d’avoir eu une arme. Je ne dis pas qu’on vous accuse de vous en être servi. Je ne sais pas là. « Carry a weapon ».
Me Elhadad: Exactement. Oui.
Le Tribunal: Est-ce qu’on prétend qu’il s’en est servi?
Me Elhadad : D’une façon menaçante contre le jeune Decarie, oui.
Le Tribunal : D’accord.
Me Elhadad: Il avait en sa main propre une arme, témoigné par deux personnes.
Le Tribunal : Là, vous me dites non, j’en avais pas?
Cimpaye : J’en avais pas, non.
Le Tribunal : Si vous dites ça, donc, vous êtes innocent de l’accusation.
Cimpaye : M. le juge, je suis devant, en effet là, que – ces accusations qui sont portées sur moi et je m’attendais au procès aujourd’hui.
Le Tribunal : Oui, je comprends bien.
Cimpaye : Là, on arrive à un point que c’est pas par – pour m’en débarrasser de ces accusations.
Le Tribunal : Non, non. Mais ce que vous me dites là – et la Couronne, je présume, insiste à prouver ou demande une admission qu’il y avait une arme.
Me Elhadad : Précisément. Et on a débattu cette question de mon collègue pour ne pas avoir des ….?
Le Tribunal : D’équivoque.
Me Elhadad: Sur ça, oui. Équivoque.
Le Tribunal : Je regrette, M. Cimpaye. Mais je ne peux pas accepter votre plaidoyer si vous dites ce que la Couronne dit est faux.
Cimpaye : Non, non, je l’accepte. Je voulais juste confirmer s’il avait dit cette arme-là. C’est tout ce que je voulais.
Le Tribunal : Oui. On dit que l’arme était un marteau. Que vous avez menacé de vous en server.
Cimpaye : C’est tout. J’accepte.
Le Tribunal : Vous acceptez ça?
Cimpaye : C’est ça.
Le Tribunal : Sans équivoque.
Cimpaye: Sans équivoque.[^14]
[29] Once again, it is not my role to determine whether this exchange demonstrates that Mr. Cimpaye’s guilty plea was not unequivocal. Instead, I must assess whether this exchange could bring into question the validity of Mr. Cimpaye’s plea and therefore justify granting an extension of time to appeal. While I am of the view that this will be a tough argument for Mr. Cimpaye to make, I cannot discount it completely.
[30] Finally, I must consider whether the consequences of the conviction are out of all proportion to the penalty imposed, whether there is any prejudice to the Crown and whether the Appellant has received the benefit of the judgment. In this case, I find that the Appellant did receive the benefit of the judgment and, that given the Appellant’s criminal record and the seriousness of the charges in question, a deportation order was not a consequence that was out of all proportion to the penalty the Appellant received. These factors suggest that an extension of time is not appropriate. On the other hand, there is little evidence that an appeal might ultimately prejudice the Crown and therefore an extension of time to appeal would not be inappropriate.
Conclusion
[31] Taking into consideration all the various factors outlined above, and for all the reasons that I have indicated, I conclude that an extension of time to appeal should be granted. Mr. Cimpaye will have 30 days in which to file his notice of appeal. I note that the issue of the cost of the transcript has become moot since the Crown has already ordered and received the transcript.
Madam Justice Julianne A. Parfett
Released: January 7, 2014
Footnotes
[^1]: R.S.C. 1985, c. C-46.
[^2]: S.C. 2001, c. 27.
[^3]: 2002 7570 (ON CA), 55 O.A.C. 13, 162 C.C.C. (3d) 233.
[^4]: At paragraph 20.
[^5]: At paragraph 21.
[^6]: 1998 1921 (ON CA), 105 O.A.C. 392, [1998] O.J. No. 172 (C.A.).
[^7]: At paragraph 21.
[^8]: R. v. Meehan, 2013 ONSC 1782, [2013] O.J. No. 1565 (S.C.J.).
[^9]: R. v. T.R., 10 O.R. (3d) 514, 1992 2834 (ON CA).
[^10]: At paragraph 16.
[^11]: Supra. Note 8.
[^12]: Meehan, supra. Note 8 at para. 11.
[^13]: Unlike the situation in R. v. Tyler, 2007 BCCA 142, [2007] B.C.J. No. 434 (B.C.C.A.).
[^14]: Respondent’s Book of Exhibits, tab 8, p. 12-14.