COURT FILE NO.: SCA(P) 826/18

DATE: 2019 10 28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

G. Hendry, Counsel for the Crown

• and -

Obed Okereke

A. Gugila, Counsel for Obed Okereke

HEARD: September 27 and October 25, 2019

REASONS FOR DECISION

LEMAY J

1In the early morning hours of July 13th, 2013, the accused Mr. Obed Okereke was arrested and charged with impaired operation of his car as well as having an excess level of alcohol in his blood while operating his car. On February 18th, 2015, the appellant pled guilty to the charge of impaired operation.

2The appellant was originally going to participate in a rehabilitation program and was seeking a sentence of four (4) months in prison. However, the appellant failed to attend at his sentencing hearing, and failed to provide the sentencing judge with any evidence that he had participated in a rehabilitation program. As a result, the appellant was sentenced to eight (8) months in prison.

3The appellant is appealing to this Court on the basis that he did not understand the nature and consequence of his guilty plea, that there was ineffective assistance of counsel and that the judge did not have sufficient information to sentence the appellant in absentia and that it was inappropriate to do so. The Crown opposes this appeal.

4For the reasons that follow, I have determined that the main grounds of appeal fail. The plea was voluntary and informed, there was no ineffective assistance of counsel and the sentencing judge exercised his discretion in sentencing the appellant in absentia. However, the sentencing judge failed to consider the immigration consequences to the appellant. As a result, the overall sentence is reduced to six months less a day, with a further deduction of 43 days for the time already served.

Issues

5On this appeal, there are three issues that were raised by the parties, as follows:

a) Whether the appellant understood the nature and consequences of his guilty plea.

b) Whether the appellant had ineffective assistance of counsel.

c) Whether the sentencing Judge should have sentenced the appellant in absentia

6In addition, in correspondence to the parties shortly after the appeal was argued, I asked both parties for submissions on a further issue. Specifically, I asked if I concluded that the plea was informed, there was no ineffective assistance of counsel and that the sentencing Judge did not exercise his discretion improperly, whether the sentencing judge erred in the sentence he imposed.

7My memorandum posed the following four questions to counsel:

1. Was Schwartzl J. aware of the immigration issues facing Mr. Okereke?

2. Was Schwartzl J. obligated to take those immigration issues into account in his sentencing?

3. Did Schwartzl J. consider those issues in fashioning his sentence?

4. Regardless of the immigration consequences, is six months less a day in the reasonable range of sentence for this case? If so, why? If not, why not?

The Relevant Facts

a) The Offender and the Offence

8The appellant is a permanent resident in Canada, and not a citizen. On July 13th, 2013 at approximately 4:00 a.m., The appellant was driving eastbound on Steeles Avenue. He was observed driving erratically, and was stopped for a sobriety check. The roadside screening device revealed that Mr. Okereke had a blood alcohol level of 122 milligrams per milliliter.

9The appellant was charged with Impaired Operation contrary to section 253(1)(a) of the Criminal Code as well as having an Excess Blood Alcohol level contrary to section 253(1)(b) of the Criminal Code.

10The appellant had two previous convictions for impaired driving. The dates of conviction and the sentences are as follows:

a) July, 2005 The appellant was found guilty of refusing to provide a breath sample, impaired driving, dangerous driving and a breach of recognizance. He was sentenced to the 75 days of pre-trial custody he had served, plus one day and a three (3) year driving prohibition.

b) September, 2007 The appellant was found guilty of driving with an excessive level of blood alcohol and driving while his licence was disqualified. He was given a total sentence of four and a half months as well as a three-year driving prohibition.

11As the appellant did not attend at his sentencing hearing in the Court below, I do not have any other details about him.

b) The Guilty Plea

12On this appeal, I received Affidavit evidence from both the appellant and his former counsel, Ms. Kulvinder Deol. Both witnesses were cross-examined on their Affidavits before me.

13Ms. Deol testified that she was retained by the appellant on August 9th, 2013. Ms. Deol testified that the Crown’s initial position was six months jail with 2 years probation, and that the Crown was seeking to rely upon a notice of increase in penalty.

14Ms. Deol testified that, after having reviewed the Crown disclosure and having had several discussions with the appellant, he provided Ms. Deol with instructions to plead guilty. Ms. Deol prepared a written plea comprehension inquiry, which she had the appellant sign before the appearance on February 18th, 2015. Ms. Deol testified that she explained this document to the appellant before he signed it.

15The appellant does recall signing the plea comprehension document, but advises that he was “confused” about what he was signing, and that Ms. Deol did not explain the details of it to him.

16It is worth setting out the plea comprehension agreement in its totality. It reads as follows:

Guilty Plea Comprehension

I, Obed Okereke, understand I am pleading guilty to,

I understand and acknowledge the following

1. I am pleading guilty voluntarily w/o duress

2. I am giving up my right to trial

3. Although Crown and defence counsel may make submissions as to sentencing it is ultimately up to his honour what sentence will be,

I understand the immigration rules and consequences. I understand I must complete in house counselling.

17In terms of the immigration consequences, the appellant testified that he did not really understand what he was signing and that, when he signed the document, he believed he would be getting four months in jail. He also testified that he had not spoken to an immigration lawyer because Ms. Deol told him that everything was fine and he didn’t need to bother to speak to an immigration lawyer.

18However, in cross-examination, the appellant also acknowledged that he was told that the sentence was up to the judge to determine. However, later in his cross-examination, the appellant returned to the position that he was confused on February 18th, 2015 and was not paying attention.

19The appellant testified that he did not remember that the matter had been adjourned until March 12th, 2015. The appellant also testified that he did not remember being in Court on March 12th, 2015, although the record is clear that he was present in Court.

20In the hearing on March 12th, 2015, Ms. Deol sought an adjournment for sentencing to early July of 2015 on the basis that the accused was making efforts to attend at a residential rehabilitation facility.

21In that hearing, the sentencing judge stated:

THE COURT: Well, I mentioned to you last time that while I respect the underlying principle which is to mitigate the sentence as much as possible by showing a either actual or bonafide intention to rehabilitate. There certainly is a legal imperative to dispose of a case at the earliest reasonable opportunity and it seems to me that on the next date, you, you, should be prepared to proceed to its conclusion.

22The next hearing date was scheduled for July 6th, 2015. The date was scheduled in-court on the record, and the appellant was present when the date was scheduled.

c) Events After March 12th, 2015

23Counsel lost contact with the appellant after the appearance on March 12th, 2015. He testified that he made some efforts to obtain rehabilitation treatment. This evidence is supported by a letter that was filed by the appellant showing that he had attended at five appointments at the Alcohol, Drug and Gambling Services of Hamilton.

24In terms of these appointments, the appellant remembered attending a couple of sessions. He thought he had attended more than two sessions, but he could not recall because he was not paying attention. At this point, the appellant testified that he was living with relatives as he could not afford a place of his own.

25In terms of the July 6th, 2015 Court date the appellant testified that he knew about the date but that he was waiting for Ms. Deol to call him about the date. He again testified that he was not paying attention.

26Ms. Deol testified that she had a phone number and address on file for the appellant. Prior to the July 6th, 2015 appearance, Ms. Deol testified that she attempted to contact the appellant on a number of occasions.

27The appellant testified that he had lost his personal cellphone. His evidence, although unclear, seemed to suggest that he had lost his cellphone prior to the March 12th, 2015 appearance. However, he did not provide Ms. Deol with a new telephone number on March 12th, 2015. His explanation for failing to do so was that he couldn’t get a phone number right away.

28Finally, in terms of his failure to attend at Court, the appellant testified that he was waiting for Ms. Deol to call him. The appellant also testified that he thought that the matter was concluded. On this point, he was cross-examined about his previous convictions and his previous jail time.

d) The Sentencing

29The matter returned to Court on July 6th, 2015. On that date, Ms. Deol brought a motion to be removed as counsel of record because she had lost contact with the appellant. She outlined for the Court that she had made numerous attempts to contact the appellant, and that all of them had been unsuccessful. The appellant did not attend.

30Crown counsel, different from the one who appeared on March 12th, 2015, originally suggested a bench warrant. The sentencing judge determined that he would proceed with the sentencing in absentia. In his reasons for sentence, the sentencing judge stated as follows:

All right. And while you stamp that exhibit, can I see the record again for a moment please. There is the following record. In July 2005, found guilty of refused to provide breath sample, impaired driving, dangerous driving and breach of recognizance. After 75 days pretrial custody he was granted or given, one day concurrent on everything plus a three year driving prohibition. The following say in Brampton, July 22nd, 2005, he was found guilty of driving with access blood alcohol given the 75 days presentence custody and one day. Then two years after that, in September 2007 he was found guilty of driving with access blood alcohol and drive while disqualified. After being given credit for eight day pretrial custody, he was given a total sentence of four and a half months and a driving prohibition of three years.

The crown in this case requests, eight months imprisonment and a lifetime driving prohibition. With respect to the lifetime, dealing with that issue first, I’m not sure what authority I have to do what you’re asking me to do.

MS. MACARTHUR: Okay and I’ll just take a look.

THE COURT: Notice has been filed. Ah, I see, under section 259(3.1) no wait a minute, nope. What’s the, section 259(1) for each subsequent offence, so third and beyond, and for a period not less than three years, no maximum.

MS. MACARTHUR: Yes.

THE COURT: The Highway Traffic Act will certainly suspend his licence for life, in any event. Dealing with that issue first, I’m satisfied that given the record and the circumstances in the case before me, which involve very bad driving and readings of 122 and 118, which while are not the highest, are significant. There’s no question. That he was obviously intoxicated at the time. In my view, a significant driving prohibition is appropriate. But in the circumstances, I’m not prepared to leap right to life. Notwithstanding the Highway Traffic Act. He may move to a different province. In this case, the driving prohibition will be 15 years. So the driving prohibition will be 15 years.

With respect to the sentence itself, there are many aggravating features here. Especially the record and the facts of the case, which as I say involve very bad driving while drunk.

There is a gap in the record, however, and I do note to his credit, that it was a plea of guilty. Nevertheless, the credit to be given on a guilty plea is substantially reduced because it was on a trial date. It can hardly be called a timely plea. And yet I do take into account that it was a guilty plea.

The maximum sentence for a simple impaired driving like this case, to where there is no injury and no death, is a maximum of 18 months by summary conviction.

This defendant has in the past, has sentenced effectively two and a half months, and then another four months. It’s obvious from all of the cases that speak to this sentencing in such matters that denunciation is the hallmark and the greatest focus of the sentencing court, for this kind of offence.

The crown seeks just under half of the maximum sentence. In the situation, in my view, that’s a completely reasonable position to take. Particularly in the absence of any mitigating factors that I’m aware of. Other than the ones I’ve already mentioned, which are a gap in his record and the guilty plea.

Accordingly, the sentence of this court will be a term on imprisonment of eight months. There will also be, now wait a minute, this was in July of 2013, so he subject to the old Victim Surcharge rules, right?

31A committal warrant was issued for the appellant. The appellant took no further steps to come to Court or otherwise follow up on his charges. He was arrested on December 1st, 2017 after he was a witness to a car accident. He was then released on bail on January 12th, 2018, and this appeal subsequently proceeded.

32I find that the appellant spent forty-three (43) days in custody. I will return to the effect of this below.

Issue #1- Did The appellant Understand the Nature and Consequences of the Plea?

33Section 606(1.1)(b)(ii) of the Criminal Code states that a Court may accept a plea of guilty only if the Court is satisfied that the accused makes the plea voluntarily and understands the following conditions:

a) That the plea is an admission of the essential elements of the offence.

b) The nature and consequences of the plea

c) That the Court is not bound by any agreement between the accused and the prosecutor.

34Both Ms. Deol’s testimony and the plea comprehension agreement support a conclusion that the accused made the plea voluntarily and understood the conditions that I have set out in the previous paragraph. The evidence of the appellant seems to suggest that he did not understand the plea agreement. In other words, the appellant claims that his plea was not informed.

35I reject the appellant’s evidence for the following reasons:

a) The appellant’s evidence is internally inconsistent. One example of this will suffice. The appellant testified that he knew he had lost his telephone before the March 12th, 2015 appearance. However, he was waiting for Ms. Deol to call him about the July 6th, 2015 appearance having never given her a new phone number. There was no reasonable explanation offered by the appellant for how Ms. Deol was going to find him.

b) The appellant’s evidence on the immigration consequences demonstrates that he knew that immigration consequences were an issue, and that Ms. Deol had told him that they could be an issue. From this fact the only reasonable inference that I can draw is that the appellant knew that, even though Ms. Deol was hoping for a four-month sentence, that a sentence of six months or longer was still possible.

c) Flowing from this second point, it is clear that if the appellant knew that something longer than a four-month sentence was possible, then he also knew that the final determination of sentence would be in the hands of the sentencing judge.

d) In addition, the appellant’s continuing efforts to obtain counselling demonstrate that the appellant was well aware that he had to complete further steps before the sentencing hearing on July 6th, 2015. The only reason for the appellant to have to complete these further steps would be to ensure that he could advance evidence of mitigating circumstances.

e) The appellant was also in court on March 12th, 2015 and was told that there was a further day for sentencing on July 6th, 2015. His explanation that he was confused or not paying attention and that he thought everything was completed must be considered in light of his presence in court and the fact that he has been sentenced on two previous occasions. As a result, he would have been aware of the process that was followed. He would also have been aware that he was going to be required to serve at least some time in custody. From this, I conclude that the appellant was not being truthful when he said that he thought that everything was completed. I conclude that the appellant was aware that he had to attend Court again.

36Having rejected the appellant’s evidence, I also accept Ms. Deol’s evidence that she explained the plea comprehension agreement to the appellant and that he understood both it and the three points reproduced at paragraph 33 above.

37As a result, the argument that the appellant’s plea was not informed fails.

Issue #2- Ineffective Assistance of Counsel

38This issue is related to issue #1. I start by reaffirming the findings of credibility and evidence that I have made above.

39The appellant is arguing that Ms. Deol did not explain the immigration consequences of his plea to him and, as a result, was ineffective as counsel. I reject this argument.

40As I have noted in the previous section, I reject the appellant’s evidence on this point as not believable. Further, on consideration, I accept Ms. Deol’s evidence that she explained the immigration consequences to the appellant for the following reasons:

a) The plea comprehension agreement, which the appellant signed, makes it clear that he understood those consequences.

b) The appellant acknowledges that the subject of immigration came up in his conversations with Ms. Deol. Similarly, Ms. Deol testified that the immigration consequences of a conviction had been discussed with the appellant, as he was a permanent resident. Ms. Deol also testified that it was her practice to advise clients with immigration consequences to obtain independent legal advice from a lawyer specializing in immigration issues. From this, it is not difficult to infer that the appellant was advised as to the potential immigration consequences and told he should consider seeking counsel on the immigration issues.

41As a result, the claim that the appellant received ineffective assistance from counsel also fails.

Issue #3- Should the Sentencing Judge Have Exercised His Discretion to Sentence in Absentia?

42Section 475(1)(b)(i) of the Criminal Code sets out the jurisdiction to sentence in absentia as follows:

475(1) Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of his trial,

(a) He shall be deemed to have waived his right to be present at his trial, and

(b) The court may

(i) Continue the trial and proceed to a judgment or verdict and, if it finds the accused guilty, impose a sentence on him in his absence, or

(ii) If a warrant in Form 7 is issued for the arrest of the accused, adjourn the trial to await his appearance, but where the trial is adjourned pursuant to subparagraph (b)(ii), the court may, at any time, continue the trial if it is satisfied that it is no longer in the interests of justice to await the appearance of the accused.

43It is clear from this provision that, on July 6th, 2015, the sentencing judge had a discretion to either proceed with the sentencing of the appellant on that day, or to adjourn and have a bench warrant issued.

44Counsel for the appellant argues that the sentencing Judge erred in his exercise of discretion, and that I should allow the appeal on that basis. She argues that the sentencing judge did not have sufficient information to sentence the appellant and that, as a result, he should have issued a bench warrant instead of sentencing him in absentia. I disagree for three reasons.

45First, the exercise of judicial discretion in these types of circumstances is entitled to a significant amount of deference by a reviewing judge. Reviewing judges should not substitute their own judgment for that of the sentencing judge merely because they would have exercised the discretion differently. However, the exercise of discretion must be reasonable.

46Second, the sentencing judge’s exercise of discretion must be considered in light of two facts. First, he clearly stated on the March 12th, 2015 appearance that he was likely going to proceed with sentencing on the July 6th, 2015 appearance. Second, he was faced with the fact that an accused, who was supposed to be engaged in rehabilitation to mitigate his sentence, had absconded. Those facts both support the reasonableness of the sentencing judge’s exercise of discretion.

47Finally, counsel for the appellant argues that the sentencing judge did not have sufficient information to sentence the appellant. On the record that I have, the only two additional points that the sentencing judge did not consider were:

a) The appellant’s immigration status

b) The appellant’s efforts at mitigation

48The immigration status was something that the sentencing judge was made aware of when the appellant pled guilty in February of 2015. It is clear from the transcript, however, that the sentencing judge was not told of the precise issue that the accused was facing. I will deal with this issue in the next section.

49The appellant’s efforts at mitigation are not something that he was entitled to have the sentencing judge consider on the facts of this case. It is the appellant’s failure to come to court on July 6th, 2015 that results in the sentencing judge not considering the appellant’s mitigation efforts. The appellant is responsible for the fact that this information was not before the sentencing judge. Therefore, it is not open to the appellant to argue that, although he had absconded and did not attend Court, the sentencing judge was still obligated to consider what the appellant had done as if he had not absconded.

50Counsel provided me with several cases, which I have considered. Those cases are R. v. Singh [2015] O.J. No. 691 (S.C.J.), R. v. Shirley [2009] O.J. No. 2388 (Ont. C.J), R. v. Bayani [2011] O.J. No. 4369 (S.C.J.), R. v. Maxwell [2013] O.J. No. 3776, R. v. Correa 2011 ONCJ 409, [2011] O.J. No. 3980 (Ont. C.J.) and R. v. Kiddinar 2017 ONCJ 694.

51There are two points to make about these cases. First, as I have noted above, the decision to sentence in absentia is a discretionary one. Second, the cases are all distinguishable on their own facts. As a result, the case law does not assist the appellant either.

52The argument respecting the sentencing in absentia is dismissed.

Issue #4- Immigration Consequences

53In R. v. Pham (2013 SCC 15), Wagner J. (as he then was) stated:

An appellate court has the authority to intervene if the sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel had failed to advise the judge on this issue. In such circumstances, the court’s intervention is justified because the sentencing judge decided on the fitness of the sentence without considering a relevant factor: M. (C.A.), at para. 90. As I explained above, however, the aim of such an intervention is to determine the appropriate sentence in light of the facts of the particular case while taking all the relevant factors into account. Although there will be cases in which it is appropriate to reduce the sentence to ensure that it does not have adverse consequences for the offender’s immigration status, there will be other cases in which it is not appropriate to do so.

54In other words, an appellate judge has the authority to intervene if the sentencing judge did not take the immigration consequences into account.

55In this case, counsel on both sides are agreed upon the answers to the four questions that I posed, as set out at paragraph 7. I also agree with counsel in their positions. Specifically:

a) The sentencing judge was aware of the immigration issues facing the appellant.

b) The sentencing judge was obligated to take those immigration issues into account in his sentencing.

c) The sentencing judge did not consider the immigration issues in fashioning his sentence.

d) A total sentence of six months less a day is in the reasonable range of sentences in this case.

56The first and third conclusion come straight out of the transcripts. The second conclusion flows from the decision in Pham, supra. When these three conclusions are considered together, it is clear that I have both the authority and the responsibility to intervene and consider this sentencing.

57On the fourth point, counsel for the appellant directed my attention to the decisions in R. v. Stone (2013 ONCJ 490), R. v. Krivenko (2016 ONCJ 94) R. v Ilic (2016 ONSC 2908) and R. v Wheatley (2017 ONCJ 175). These cases are not all directly on point. However, when I review the relevant case law, it is clear to me that a total sentence of six months less a day is within the reasonable range of sentences in this case.

58Given that the sentencing judge did not consider the immigration consequences, a sentence of six months less a day also has the advantage of considering the immigration consequences. In the circumstances of this case, I therefore exercise my authority pursuant to Pham, supra, and reduce the appellant’s sentence to a total period of incarceration of six months less a day.

59The appellant has already served forty-three days. Counsel did not provide argument on what should be done with this time. In the circumstances of this case, I have determined that the appellant is entitled to a 1:1 reduction in his sentence for the time spent in custody.

Conclusion

60The sentencing appeal is allowed to the extent that a total sentence of six months less a day is substituted for the eight months that were imposed by the sentencing judge. This sentence is further reduced by the forty-three (43) days that the accused was in custody.

61Therefore, the accused is sentenced to a further one hundred and thirty-eight (138) days in jail.

62In accordance with the terms of the accused’s bail conditions, he has forty-eight hours to surrender himself to police before his bail is revoked and a bench warrant is issued. The forty-eight hours expire at noon on October 30th, 2019.