CITATION: R. v. Ogiamien, 2015 ONSC 3733

COURT FILE NO.: 114/14

DATE: 20150615

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jamil Osai Ogiamien

Applicant

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, and MAPLEHURST CORRECTIONAL COMPLEX and the ATTORNEY GENERAL OF CANADA

Respondents

Self-Represented

Mr. Whitehead and Ms. Evans, for the Ministry of Community Safety and Correctional Services and Maplehurst Correctional Complex

Ms. Guthrie and Mr. Dodokin, for the Attorney General of Canada

HEARD: June 3, 2015

ENDORSEMENT

Coats J.

NATURE OF MOTION

[1] Mr. Jamil Osai Ogiamien (“Mr. Ogiamien”) is a self-represented inmate who is contesting the legality of his immigration detention. He has brought a habeas corpus Application before this Court challenging the conditions of his detainment at provincial correctional facilities and has argued that this Court should review the legality and other aspects of his immigration arrest and continued detention.

[2] Within his application, Mr. Ogiamien has brought a motion seeking to quash his criminal conviction dated January 31, 2002. He states in his motion that he was charged under sections 368 and 122 of the Criminal Code although his affidavit does not mention specifically what he was charged with. In addition, he seeks to vary his sentence from six months to six months less a day. I heard argument on this motion on June 3, 2015 and reserved my decision. This endorsement reflects my decision.

ISSUE

[3] Can this Court on an Application for habeas corpus entertain Mr. Ogiamien’s motion to quash his conviction from 2002 or in the alternative vary his sentence?

Mr. Ogimien’s Position

[4] Mr. Ogiamien submits that his guilty plea should be quashed because he should not have been charged criminally until his refugee claim had been adjudged. He relies primarily on the decision of R v Agbor, 2010 BCCA 278 for the proposition that his guilty plea should be struck. In R v Agbor at paras 6-8 the British Columbia Court of Appeal stated with reference to s. 133 of the Immigration and Refugee Protection Act S.C. 2001, c.27 as follows:

[6] Section 133 of the Act prevents refugee claimants from being charged with certain immigration offences unless and until their claims have been rejected. The section is as follows:

133. A person who has claimed refugee protection, and who came to Canada directly or indirectly from the country in respect of which the claim is made, may not be charged with an offence under section 122, paragraph 124(1)(a) or section 127 of this Act or under section 57, paragraph 340(c) or section 354, 366, 368, 374 or 403 of the Criminal Code, in relation to the coming into Canada of the person, pending disposition of their claim for refugee protection or if refugee protection is conferred.

[7] In Canada v. Li, 2010 FCA 75, it was held that an application for protection under section 112 constitutes a claim for refugee protection for the purposes of s. 133 of the Act. Accordingly, the accused should not have been charged with the offence under s. 122 pending determination of his claim for protection. As the claim for protection has now succeeded, the appellant cannot be charged with the offence.

[8] In the circumstances, I am satisfied that there was no basis for the charge against the appellant. His guilty plea should be struck, his conviction quashed, and a judicial stay of proceedings entered. I would so order.

[5] In the alternative, Mr. Ogiamien submits that his sentence should be reduced from six months to six months less a day. He invokes the Supreme Court of Canada decision in R v Pham, 2013 SCC 15 for the proposition that where a sentencing judge was not made aware of the issue of the collateral consequence of a criminal sentence’s impact on an accused’s immigration status an appellate court has the authority to vary the sentencing judge’s sentence.

[6] Finally, Mr. Ogiamien submits that his counsel’s failure to notify the sentencing judge of the impact a jail sentence had on his immigration status forms the basis to “vacate and dismiss” his 13 year old conviction.

ANALYSIS AND EVIDENCE

[7] For the following reasons I deny Mr. Ogiamien’s motion to quash his conviction and vary his sentence. An application court hearing an application for habeas corpus does not sit as an appeal court over this conviction or sentence. I decline habeas corpus jurisdiction on this issue as the Criminal Code confers jurisdiction on a court of appeal.

[8] The Supreme Court of Canada in Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para 66 stated:

Whether a decision is “lawful” cannot relate to jurisdiction alone. The appellants suggest that a review on a habeas corpus application is “limited to an analysis of whether there is jurisdiction to make a decision”, as opposed to a review of the reasonableness of the underlying decision. For this proposition, the appellants rely on Le Dain J.’s conclusions in Miller (1) that certiorari in aid cannot be employed to convert an application for habeas corpus into an appeal on the merits (p. 632), and (2) that an application for habeas corpus addresses issues going to jurisdiction rather than issues going to the merits (p. 630). However, the appellants misread the context of Le Dain J.’s comments, which were made in reference to the earlier cases of Goldhar v. The Queen, 1960 CanLII 65 (SCC), [1960] S.C.R. 431, Re Sproule (1886), 1886 CanLII 51 (SCC), 12 S.C.R. 140, and Re Trepanier (1885), 1885 CanLII 66 (SCC), 12 S.C.R. 111. Le Dain J. was simply echoing earlier decisions in which this Court had held that habeas corpus is not to be used to appeal a conviction. Thus, he was saying in that case what the Court subsequently clarified in May, namely that “provincial superior courts should decline habeas corpus jurisdiction . . . where . . . a statute such as the Criminal Code . . . confers jurisdiction on a court of appeal to correct the errors of a lower court and release the applicant if need be” (para. 50). This cannot be interpreted as a statement that a provincial superior court may not rule on the reasonableness of an administrative decision in the context of an application for habeas corpus with certiorari in aid.

[9] In R v Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595 the SCC also affirmed that habeas corpus applications are not to be used to circumvent the ordinary appeal procedures in the Criminal Code for appeals on the merits of both the conviction and sentence. At para. 56 the Supreme Court of Canada stated:

The principal objection to the availability of habeas corpus in this case is based, I believe, on a misunderstanding of the appellant's claim. Watt J. concluded at trial that to entertain the appellant's claim "would be to transform the present proceedings by way of habeas corpus from a jurisdictional inquiry to an appeal on the merits" of both the conviction and the sentence. If this were indeed the case, the appellant would most likely be denied relief by way of habeas corpus because of this Court's decisions not to allow habeas corpus to be used to circumvent the ordinary appeal procedures established in the Criminal Code: see Re Trepanier (1885), 1885 CanLII 66 (SCC), 12 S.C.R. 111; Re Sproule (1886), 1886 CanLII 51 (SCC), 12 S.C.R. 140, at p. 204; Goldhar (No. 2) v. The Queen, 1960 CanLII 65 (SCC), [1960] S.C.R. 431, at p. 439; Morrison v. The Queen, 1965 CanLII 94 (SCC), [1966] S.C.R. 356; Karchesky v. The Queen, 1967 CanLII 92 (SCC), [1967] S.C.R. 547, at p. 551; Korponay v. Kulik, 1980 CanLII 207 (SCC), [1980] 2 S.C.R. 265. Moreover, since this Court denied leave to appeal the conviction on October 3, 1978, the interests of finality of criminal convictions and the principle of res judicata would apply: see R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246, at pp. 257‑58.

[10] The case in Gamble is distinguishable from the facts of this case as the Supreme Court of Canada stated at para. 58:

None of the foregoing decisions dealing with the protection of the integrity of the appeal process and the finality of criminal convictions apply to the present case because the Ontario Court of Appeal, in my view, correctly characterized the appellant's claim when it said:

The appellant is not challenging the validity of her conviction or of the sentence of life imprisonment imposed upon her. She alleges that by reason of the Charter, the sentence of the Alberta court fixing her period of parole ineligibility at twenty‑five years is no longer valid.

[11] In this case Mr. Ogiamien is challenging directly his sentence and conviction. This is precisely the situation when habeas corpus should not be used to circumvent the ordinary appeal procedures. Mr. Ogiamien’s motion is distinguishable from R. v. Pham which involved an appeal of a sentence and R. v. Agbor which was also an appeal to have a conviction quashed and a judicial stay imposed. These cases were not in the context of a habeas corpus application. The case of R. v. Duhra, 2011 ABCA 165 was also an appeal decision.

[12] Further, in R. v. Agbor the offence was the production of a fake passport at the time of attempted entry into Canada. This brought s. 133 of the Immigration and Refugee Protection Act into play. Mr. Ogiamien stated in his Affidavit faxed to the court on November 27, 2014 that he pled guilty and received a six month sentence on January 31, 2002 related to his uttering a forged United States document at an Ontario drivers’ licensing office. This would not bring Mr. Ogiamien within s. 133 in any event, based on the evidence before me at this time. However, since I have found that I will decline jurisdiction with respect to his conviction and sentence, I make no final determination with respect to the application of s. 133.

[13] In addition, Mr. Ogiamien’s claim that his counsel failed to notify the sentencing judge of the impact a jail sentence would have on his immigration sentence is an ineffective assistance of counsel claim. This claim should be brought to an appeal court and not a court hearing an application for habeas corpus, see: R. v. Archer, 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60, (ONCA), at para. 118.

CONCLUSION AND ORDER

[14] Since this Court is sitting as an application court and not as an appeal court, Mr. Ogiamien’s motion is denied.

Coats J.

Released: June 15, 2015