R. v. Rajkumar Rajadurai, 2015 ONSC 3018

COURT FILE NO.: CR15-30000034-00AP

DATE: 20150512

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. Rajkumar Rajadurai

BEFORE: Croll J.

COUNSEL: T. Ofiara, for the Crown

M. Howatt, for the Applicant

HEARD: May 5, 2015

AMENDED ENDORSEMENT[^1]

[1] The Applicant Rajkumar Rajadurai seeks an order extending the time for service and filing of the Notice of Appeal against his conviction for assault with a weapon on December 12, 2012.

Background

[2] The Applicant was born in Sri Lanka on March 15, 1972. He came to Canada in April 2009 with his son and daughter on a humanitarian basis through a program for tsunami affected persons, with his sister in Canada as his sponsor relative. The Applicant lost his home and all his belongings in the tsunami; even more tragic, his wife died in the tsunami.

[3] The Applicant was convicted of assault with a weapon in 2010, which triggered a removal order. He appealed the removal order and was granted a four year stay commencing on December 15, 2011 by the Immigration Appeals Division. The Applicant was then charged with assault with a weapon, utter threats, and two counts of failure to comply with a probation order, all arising out of an incident that occurred on August 17, 2012. He was also charged with failure to comply with a recognizance, assault with intent to resist lawful arrest, and two counts of failure to comply with a probation order, all arising out of an incident that occurred just over a month later, on September 30, 2012.

[4] On December 12, 2012, the Applicant pled guilty to count one on each of the informations, specifically, assault with a weapon and failure to comply with recognizance. The Applicant was represented by counsel at the time. He was sentenced to 49 days pre-sentence custody for assault with a weapon, 30 days pre-sentence custody for failure to comply, 1 day concurrent, followed by 2 years probation.

[5] There were immigration consequences as a result of his plea to assault with a weapon. Significantly, the Applicant’s appeal of his matter to the Immigration Appeal Division and his stay of removal were cancelled. As a result, the Applicant faces deportation back to Sri Lanka.

Grounds of application

[6] It is the Applicant’s position that the plea comprehension inquiry was not conducted on the record, nor did counsel make any representations to the court about whether he had conducted a plea comprehension inquiry with the Applicant off the record. The Applicant submits that there was no discussion about the immigration consequences of conviction. Consequently, the Applicant submits that this court should exercise its discretion to grant an extension of time to allow the Applicant to appeal his conviction. The Applicant points to the three key factors outlined in R. v. Menear (2002), 2002 7570 (ON CA), 162 C.C.C. (3d) 233, 155 O.A.C. 13 at para. 20 (C.A.), namely:

• the applicant has shown a bona fide intention to appeal within the appeal period;

• the applicant has accounted for or explained the delay;

• there is merit to the proposed appeal.

[7] The Applicant also submits that the court must consider other factors, such as whether the consequences of conviction are disproportionate to the penalty, whether there is prejudice to the Crown and whether the Applicant has taken the benefit of the judgment. Overall, the Applicant asks the court to consider “whether the justice of the case requires that an extension of time be granted” (R. v. Mitchell, 2012 ONCA 804, [2012] O.J. No. 5424 at para. 3).

Bona fide intention to appeal within the appeal period

[8] The Applicant concedes that he did not show a bona fide intention to appeal within the appeal period, but it is his position that the intention to appeal did not form until he was aware of the immigration consequences.

[9] In this case, it is not in issue that in July 2014, the Applicant was referred to a new immigration counsel at the Refugee Law Office of Legal Aid Ontario. It was at that time that immigration counsel became concerned that the conviction could jeopardize the Applicant’s stay of removal and his appeal to the Immigration Appeal Division granted in 2011.

[10] From August to December 2014, immigration counsel attempted to confirm whether the Applicant had indeed received further convictions. In August 2014, immigration counsel attempted to contact the Applicant’s former criminal counsel. In September and October, 2014, immigration counsel attempted to speak with the Applicant; however, the Applicant was in hospital during this time. He suffers from mental health issues relating to his survival of the tsunami in 2004. The Applicant was not released from hospital until November 21, 2014, and had his first meeting with immigration counsel on December 15, 2014.

[11] The Applicant had also been admitted to hospital for mental health problems, after his 2012 guilty plea. He apparently had difficulty recalling any details about his prior convictions when he met with immigration counsel. However, based on the information provided to him, immigration counsel ordered a copy of the informations from the Scarborough Court on December 30, 2014. These were received on January 28, 2015. On January 30, 2015, immigration counsel ordered a transcript of the proceedings. These transcripts were delivered on March 2, 2015. On March 23, 2015, counsel for the Applicant was retained to assist with the appeal.

[12] On April 7, 2015, the Applicant received a letter from Canada Border Services telling him that his appeal to the Immigration Appeal Division, and his stay of removal, were cancelled.

[13] The Applicant submits that the intention to appeal does not form until the individual has reason to believe that an appeal is possible, necessary or appropriate: R. v. Cimpaye, 2014 ONSC 104, [2014] O.J. No. 292 at para. 15. It is his position that this did not occur until he was notified of the cancellation of his appeal to the Immigration Appeal Division and his stay of removal on April 7, 2015.

[14] In the alternative, the Applicant submits that the intention to appeal was formed upon retaining criminal counsel on March 23, 2015.

[15] In contrast, the Crown notes that the Applicant had originally been ordered removed from Canada after his 2010 conviction. Although that order was stayed in 2011, the Crown submits that at that time, the Applicant was put on notice by the Canada Border Services Agency that the 2011 stay of removal order was contingent upon his continued good behavior during the next 4 years. As such, the Crown submits that the Applicant had been aware of the immigration consequences of a further criminal conviction since December 2011.

[16] With respect, I am not persuaded by the Crown’s submission. While the Applicant acknowledges that he was told to “stay out of trouble” for the 4 years during which his removal was stayed, this acknowledgement does not translate into an awareness that the stay would be revoked upon a subsequent conviction. This is especially the case for someone like the Applicant, for whom English is not his first language.

[17] The Applicant’s evidence is that he did not fully understand the immigration consequences of his 2012 convictions until he received the April 7, 2015 letter cancelling his appeal to the Immigration Appeal Division and the stay of the removal order. This evidence has not been challenged. Further, as stated in Cimpaye at para. 14, “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.” When this complexity is considered together with the absence of any reference to immigration consequences in the sentencing transcript; the fact that the Applicant’s preferred language of communication is Tamil and requires the assistance of a Tamil interpreter; and his mental health issues, including the hospitalization after his release from custody in 2012, I am satisfied that that the Applicant did not form the intention to appeal his convictions until April 2015. Stated differently, the Applicant did not have reason to believe that an appeal was possible, necessary or appropriate until he received the letter cancelling his appeal and his stay in April 2015, consequences of which he apparently was unaware when he pled guilty in 2012.

[18] As such, I am of the view that the Applicant’s decision to appeal his conviction was made within a reasonable time, given his particular circumstances.

Explanation of the delay

[19] As stated, in July 2014, the Applicant was referred to new immigration counsel at the Refugee Law Office of Legal Aid Ontario who made efforts to confirm the Applicant’s convictions. The Applicant was a poor historian, and was hospitalized in the fall of 2014, compounding the information-gathering task of immigration counsel. Soon after he was released from hospital, the Applicant met with immigration counsel on December 15, 2015. Immigration counsel then ordered copies of the various information, and transcripts, and began contacting criminal counsel on January 5, 2015. Criminal counsel was retained on March 23, 2015.

[20] The letter from Canada Border Services cancelling the Applicant’s appeal and the stay of removal was received April 7, 2015. The Notice of Appeal is dated April 23, 2015. In my view, the delay in this case has been adequately explained and is reasonable. This is the case even had I determined that the clock should start to run from the time the Applicant retained defence counsel on March 23, 2015.

Merits of the Appeal

[21] The Applicant submits that the appeal is meritorious on the basis that the guilty plea was uninformed given the Applicant did not understand the immigration consequences of a guilty plea. The Applicant’s position is that if he had been aware of the immigration consequences of the plea he would not have pleaded guilty. Instead, he would have taken the risk of going to trial: R. v. Meehan, 2013 ONSC 1782, [2013] O.J. No. 1565 at para. 17.

[22] In order for a plea to be informed, the accused must be aware of consequences of his guilty plea, including the fact that a conviction follows. More particularly, the accused must have “an appreciation of the nature of the potential penalty” faced (R. v. T.(R.) (1992), 1992 2834 (ON CA), 10 O.R. (3d) 514, [1992] O.J. No. 1914 at para. 37 (C.A.).

[23] A full appreciation of the potential penalty faced includes consideration of immigration consequences. As stated in Meehan at para. 22 “where a person who is not a Canadian citizen is charged with an offence, more recent authorities examined the immigration consequences that flow from sentences and could be viewed as suggesting that there is an expectation that the accused and the trial court should be aware of the potential immigration consequences.” See e.g. R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 at paras. 11, 24.

[24] As in Pham, there is no indication from the transcript that the sentencing judge in this case was aware of the collateral consequences of the sentence for the Applicant. As stated, there was no plea inquiry conducted on the record, and no indication that a plea inquiry had been undertaken beforehand.

[25] Although there was some biographical information about the Applicant presented at the sentencing hearing, this still did not trigger any reference to immigration consequences. At the summary conviction appeal hearing in the Cimpaye matter wherein the plea was struck, the original sentencing hearing was described as “a mere formality on the basis of the seriousness of the offence, the criminal record and the appropriate range of sentence” (R. v. v. Cimpaye, [2014] O.J. No. 6422). In my view, that description applies in this case as well. The court in Cimpaye also noted that the “red flag” with respect to immigration consequences that may have otherwise arisen, was not raised at the hearing because of the expediency with which the case was disposed. In this case, it is arguable that immigration “red flags” were even less likely to be noticed, because the sentencing proceeded from a joint submission by the Crown and defence.

[26] In any event, in examining this factor of the Menear test, the issue for determination is whether there is any merit to the appeal, not whether the plea should be struck. As stated in the very recent decision of R. v. Aujla, 2015 ONCA 325 (released 3 days after this appeal was heard): “It will be for the panel hearing the appeal to determine whether the applicant’s plea should be set aside” (Aujla at para. 18).

[27] It is well established that setting aside a guilty plea on appeal on the basis that it is somehow deficient carries a heavy burden of proof: R. v. Daibes, 2015 ONSC 104 at para. 97. That said, deportation is an exceptional consequence of a criminal conviction, and it appears that the Applicant was unaware of this very serious outcome. I am satisfied that there is merit to the appeal.

Additional Factors

[28] In Menear at para. 21, the court referred to additional factors for consideration when determining an application for an extension of time. I have considered these factors and note that the Applicant did obtain the benefit of judgment in that he was released after his sentencing (he had been unable to secure release prior to his conviction). However, the consequences of deportation for the Applicant are harsh: he would be separated from his children and from the mental health services he accesses in Canada. Finally, there is no evidence of prejudice to the Crown save for the passage of time. On balance, these factors all point to the appropriateness of the extension of time.

Conclusion

[29] I am satisfied that the appreciation of the consequences of the guilty plea only became apparent to the Applicant in April 2015. The Applicant has accounted for the delay and there is merit to the appeal. The Applicant has mental health needs, and is a recent immigrant to Canada with family here. In this case, justice requires that the extension of time be granted.

[30] For all these reasons, the extension of time for service and filing the Notice of Appeal is extended to a date 30 days following the release of these reasons.

Croll J.

Date: May 12, 2015

[^1]: Since the release of my reasons on May 12, 2015, the Applicant's counsel has written to advise that a complete transcript of the proceedings of December 12, 2012 in the Ontario Court of Justice has now been received. Counsel has provided the complete revised transcript that indicates that the facts behind the charges were read in at the proceeding in the Ontario Court of Justice, and that the facts were acknowledged as correct. Accordingly, paragraph 6 of my endorsement is amended.