COURT FILE NO.: CR-19-10000087-00AP

DATE: 2019-12-03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. John Doodnauth Jagdharry

BEFORE: M.G.J. Quigley J.

COUNSEL: H. Song, for the Respondent A. Menchynski, for the Applicant

HEARD: Friday November 29, 2019

ENDORSEMENT

Application for Extension of Time within which to Appeal.

[1] Mr. Jagdharry brings this application for an extension of time within which to appeal against convictions entered against him before M. Green J. on October 24, 2017.

[2] On that date, he pleaded guilty to several offences in a summary proceeding: uttering threats, criminal harassment, prowling by night, and failure to comply with the terms of his recognizance x 2. These charges date from February 2016 and relate to his former partner, Dhanrajie Jainarayan, with whom he had lived for some 19 years at 534 Symington Avenue in Toronto.

[3] Mr. Jagdharry’s pleas of guilty to those charges were made on the basis of a joint submission. It was based on a negotiated resolution between the Crown and his counsel, which involved Mr. Jagdharry pleading to these offences, but certain other offences were stayed. M. Green J. imposed the sentence to which both counsel agreed, a suspended sentence with 18 months probation and credit for 4 days of pre-trial custody.

[4] Four months after that plea and the imposition of that sentence, Mr. Jagdharry received a letter from Immigration Canada in February 2018, pursuant to s. 36(1)(a) of the Immigration and Refugee Protection Act. He was advised that he was no longer admissible to Canada owing to his “criminal convictions.”

[5] Mr. Jagdharry was very concerned. Although his former lawyer gave him an immediate and specific referral to an immigration lawyer, Mr. Jagdharry chose to hire an immigration consultant referred by his brother-in-law. He told us that since this problem arose, he did not trust his former lawyer’s advice. While his sister had told him he should go to a lawyer, other family members suggested the consultant, obviously at a lower price point.

[6] The consultant caused him to gather materials to send to the immigration authorities. He said they told him all would be fine and that it would take a year for a response, but it appears they essentially did nothing to advocate for Mr. Jagdharry to be permitted to stay in Canada. It was at that point, 18 months later and almost two years after the guilty plea was entered, that Mr. Jagdharry hired an immigration lawyer to assist him on that side, and Mr. Menchynski to bring this application.

[7] This application seeks leave to extend the period of time within which to appeal the 2017 conviction. The appeal is based on Mr. Jagdharry’s claim that his plea to the three domestic related charges was “uninformed”. It is not contested that the plea and sentence proposal was made on a joint submission, and involved other charges being stayed. Nevertheless, Mr. Jagdharry is insistent that he would not have entered a plea and would instead have had the charges tried by the Ontario Court if he had known that the pleas would potentially compromise his status as a permanent resident of Canada.

[8] The test for the exercise of discretion to grant an extension of time to file a notice of appeal is set out in R. v. Menear, 2002 7570 (ON CA), [2002] O.J. No. 244, 162 C.C.C. (3d) 233 (C.A). To succeed, the applicant must (i) show a bona fide intention to appeal within the appeal period, (ii) have accounted for or explained the delay, and (iii) demonstrate that there is merit to the proposed appeal. Whether or not an extension of time is granted is an entirely discretionary determination by the applications judge: R. v. Roberge, [2005] 2 S.C.R. No. 469, R. v. Tsui, [2019] M.J. No. 94 (Man. C.A.).

[9] Crown counsel opposes the application and argues it should fail on all three prongs of the test. The intention to appeal the sentence should have arisen at the latest in February of 2018, when the applicant became aware that there were reasonable grounds to believe he may be inadmissible to Canada. This notice was only four months after his convictions, and if decided in his favour at that time, would not have resulted in any prejudice to the interests of justice if the plea was struck resulting in a new trial. However, Mr. Jagdharry clearly states in his affidavit that he had no intention to appeal and made no effort to reconsider his October 2017 convictions until July, 2019. Plainly this delay itself would be enough to result in the dismissal of the application for extension of time: see R. v. Onwubolu, [2019] O.J. No. 2835 (S.C.J.).

[10] There are further grounds upon which the Crown claimed the application could and should have been dismissed:

(i) The applicant did not provide the report from Canada Border Services Agency (CBSA) detailing which criminal convictions made him subject to inadmissibility. It is simply not known which convictions played a role in the decision to believe that Mr. Jagdharry is inadmissible. Whether it was any or all of his previous convictions for assault and fail to comply x 5, or these charges of criminal harassment, utter threats, trespass at night, and fail to comply with recognizance x 2, or the subsequent fail to comply conviction, cannot be known absent the report from the CBSA.

(ii) There was no evidence (until the middle of the hearing) whether CBSA had issued a removal order or whether an Admissibility Hearing was held after March 2018, where the issue of these convictions was addressed.

(iii) Despite his explanation for delay, the applicant was plainly not diligent in his efforts to initiate this appeal immediately after the issuance of the CBSA February 12^th, 2018 notice. Despite his concern that this was a “potentially life-changing” situation for him, he chose to contact a consultant and did not speak to a lawyer until almost 18 months after receiving this letter.

(iv) The record was incomplete as filed, because it did not provide the CBSA report the applicant received, nor did it provide the results of an Admissibility Hearing, if any.

(v) More importantly, the absence of a transcript from October 24, 2017 caused the record to be unclear about whether an inquiry may have been made about the issue of immigration consequences as part of the informed plea that Mr. Jagdharry was making. No evidence was initially provided of the trial judge’s reasons and the interaction between the trial judge and counsel with respect to whether this was an informed plea.

[11] I have determined that the application should be dismissed. I have reached this conclusion, apart from (i) the inadequate explanation of delay that was difficult to accept, (ii) the initial absence of the documents noted above, and (iii) that I found Mr. Jagdharry’s evidence to lack credibility for reasons outlined below.

[12] I have determined that the application should be dismissed because I find it to be moot. I will return to that, but for now should explain how the application proceeded and the problems that it presented to give rise to this result.

[13] As mentioned, initially, there was no evidence whether an in court plea inquiry was made under s. 606 of the Criminal Code, because the only documents provided by the applicant in the record filed on this application were the information’s underlying the charges to which he pleaded. No effort was made to obtain a transcript of the taking of the plea that day to know objectively whether a plea inquiry was made.

[14] As it turns out, as new evidence emerged on breaks in the hearing over the course of the day, I learned after lunch that a copy of the transcript had been obtained from Mr. Jagdharry’s former counsel who had attended that day, Mr. Willschick.

[15] By that point, however, I had already advised counsel the application would be dismissed because of the obvious credibility problems in Mr. Jagdharry’s affidavit and because of the documents that had emerged at the mid-morning break that satisfied me that the application was moot.

[16] Mr. Jagdharry swore an affidavit on this application. So did Ms. Antony, articling student to Mr. Menchynski, who was Mr. Jagdharry’s counsel on this application. Both were cross-examined on their affidavits. Ms. Antony acknowledged that all she was asked to obtain as backup information to support this application were the information’s themselves. She was not requested to order a transcript of that day’s proceeding. She was not asked to contact Mr. Jagdharry’s former counsel to determine from him whether there was a plea inquiry conducted that was fulsome and addressed possible immigration consequences.

[17] In Mr. Jagdharry’s cross-examination, a number of untruths emerged relative to his affidavit and some of his evidence was simply unbelievable. There was no mention in his affidavit of his earlier convictions for offences, which he acknowledged were also convictions that resulted from him pleading guilty, or that those convictions, and the further conviction entered at St. Catharines in December 2017, would also have been relevant to Immigration Canada’s determination that Mr. Jagdharry was no longer admissible to Canada.

[18] Further, Mr. Jagdharry’s claimed ignorance of the difference between a consultant and a lawyer, as his explanation for most of the delay, was simply not believable. Mr. Jagdharry freely acknowledged that he came from Guyana where the British legal system is much the same as ours in Canada. He acknowledged that judges in Guyana wear wigs, whereas we do not. He knew consultants could not appear in court for him, and he acknowledged having had a number of prior experiences retaining lawyers. He acknowledged that his girlfriend Veronica was with him at Mr. Willschick’s office where they discussed the basis upon which the domestic charges would be resolved and he instructed his lawyer to proceed. His lawyer would have been aware of his status.

[19] Over the lunch break, a transcript of the October 24, 2017 proceedings was obtained from former counsel and tendered to the court after we returned. It turns out that M. Green J. did not himself conduct a plea inquiry. Mr. Willschick advised that he had explained and conducted a thorough plea inquiry, and on receiving that information, Green J. accepted counsel’s admission and did not conduct a further inquiry on his own. The plea was taken and the sentence imposed based upon the joint submission which M. Green J. accepted.

[20] Were it not for the mootness of the issue, and the significant credibility issues with Mr. Jagdharry’s affidavit and testimony in cross-examination, I acknowledge that this late breaking news could have had an impact on the result, based upon the very recent decision in R. v. Pineda, 2019 ONCA 935, released two days before this hearing on November 27, 2019.

[21] That case was very similar to this case. In that case, like here, the appellant sought to introduce fresh evidence to establish that his guilty pleas were uninformed because he was unaware of the serious immigration consequences that they would raise for him. At para. 5 of the reasons of Watt J.A., he states:

To be valid, a plea must be voluntary and unequivocal. It must also be informed, in the sense that the accused must be aware of the allegations made against him, and of the effect and "legally relevant collateral consequences" of that plea: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696 at paras. 3-4. Legally relevant collateral consequences include immigration consequences. To set aside a presumptively invalid plea, the appellant must establish that: (i) he was unaware of a legally relevant consequence of the plea, assessed objectively; and (ii) he has suffered prejudice, in the sense that he would have acted differently had he been properly made aware of the consequences: Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 33.

[22] Specifically in that case, like in this case, Watt J.A. noted that there was no plea comprehension inquiry conducted in court. The appellant's counsel advised the trial judge that the plea inquiry had been conducted with the appellant in advance. However, the trial judge in that case was not made aware of the appellant's immigration status, nor did he know that immigration consequences could flow to the appellant as a result of his convictions. Neither, it appears now, was Green J. made aware of the potential immigration consequences that could flow to Mr. Jagdharry in this case. It was suggested he may have mistakenly thought Mr. Jagdharry was a Canadian citizen.

[23] Without deciding the point because it is academic in light of the conclusion I have reached, I accept that decision, as applied in this case, could have been a game changer, apart from the acceptability of an 18 month delay, the incompleteness of the record filed in support of the application to extend time, and my findings that the applicant’s affidavit and evidence in cross-examination had significant credibility problems and were not full true and plain.

[24] The reason it is academic, is that the other exceptionally important revelation that occurred during the course of the hearing was that the Immigration and Refugee Board of Canada did hold a deportation appeal hearing relative to Mr. Jagdharry, but conditionally stayed that determination on November 15, 2019, less than two weeks before this hearing.

[25] There was no indication in the record filed on this application that (i) a removal order was issued against Mr. Jagdharry by the CBSA, or (ii) that a hearing had been conducted by the Immigration Appeal Division of the Immigration and Refugee Board of Canada. Mr. Jagdharry was represented at that hearing by legal counsel, Ms. C. Desloges. Member D. Geer heard the appeal against the removal order.

[26] What is critically important to this application is that the removal or deportation order against Mr. Jagdharry was conditionally stayed at the end of that hearing.

[27] While the conditions are numerous, they are not particularly onerous. They require Mr. Jagdharry to report to a CBSA probation officer every six months commencing Friday, April 17, 2020, and ending on October 20, 2023. At such times, Mr. Jagdharry is to report on his employment, or efforts to obtain employment, his current living arrangements, his marital status including common-law relationships, and his attendance at any educational institutions and any change in such attendance. He is to make reasonable efforts to maintain full-time employment. He is to take counselling and successfully complete the Partner Assault Response Program (PARS), as well as the Change is a Choice Men's Substance Use Program, and provide evidence of the completion of both programs to his immigration probation officer.

[28] Beyond that, not surprisingly, the conditional stay order requires that Mr. Jagdharry not commit an offence under an Act of Parliament or an offence that, if committed in Canada, would constitute an offence under an Act of Parliament. He is also required to (i) keep the peace and be of good behaviour, (ii) respect all orders and directions of his probation officer, (iii) not possess offensive weapons or imitations, (iv) refrain from illegal use or sale of drugs, and (v) refrain from consuming alcohol “so that it is unlikely to cause you to commit further criminal offences.”

[29] Beyond that, the Immigration Appeal Division intends to reconsider Mr. Jagdharry's case on or about November 17, 2023. While it is true that at that time the Board may change or cancel any of the conditions, or cancel the stay and then either allow or dismiss Mr. Jagdharry's appeal, it is plain from the face of the Appeal Division’s decision that the expectation would be, as in the case of any offender ordered to serve a period of probation, that if the probation terms are complied with successfully, then the removal order would most likely be stayed permanently.

[30] It is for this reason, apart from its other numerous deficiencies, that I find that this application should be dismissed on the basis of mootness.

[31] The doctrine of mootness is explained in the seminal decision in Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342 (at paras. 15-16):

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice….

[32] The approach to mootness involves a two-step analysis. First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. If so, it is necessary to decide if the court should nevertheless exercise its discretion to decide the merits of the case despite the absence of a live controversy. Courts will be guided in the exercise of that underlying discretion by considering the underlying rationale of the mootness doctrine.

[33] The second broad rationale on which the mootness doctrine is based is the concern for judicial economy. The concern for judicial economy will be answered if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve the moot issue: Borowski, at para. 34.

[34] As the Supreme Court said in R. v. Penunsi, 2019 SCC 39 at para. 10:

“The doctrine of mootness reflects the principle that courts will only hear cases that will have the effect of resolving a live controversy which will or may actually affect the rights of the parties to the litigation except when the courts decide, in the exercise of their discretion, that it is nevertheless in the interest of justice that the appeal be heard” (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 17). The expenditure of judicial resources on a moot point is warranted in cases that raise important issues but are evasive of review (see, e.g., Doucet-Boudreau, at para. 22; Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, at p. 360; International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange, 1967 116 (SCC), [1967] S.C.R. 628; New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 653 (SCC), [1999] 3 S.C.R. 46.

[35] I find that the circumstances that have developed in this case, as evidenced by the Conditional Stay of Mr. Jagdharry’s Removal Order, demonstrate that there is no longer a live controversy between the parties that would itself justify the granting of an extension of time within which to appeal his conviction. Whether Mr. Jagdharry’s pleas of guilty to the three domestic offences before M. Green J. on October 24, 2017 was uninformed or not, is no longer of import given the decision of the Immigration Appeal Board.

[36] Stated simply, the foundation for the proposed appeal is that, by reason of being uninformed of the immigration consequences that could flow from the pleas that he entered on October 24, 2017, Mr. Jagdharry now faces significant jeopardy, an unintended collateral consequence, of being deported from Canada. However, it is only if that jeopardy remains a reasonably likely result that there could be any justification to the commencement of an appeal against his conviction on the grounds that he was uninformed when he made his guilty pleas.

[37] That jeopardy has now been removed by the conditional stay granted by the Immigration Appeal Board. I accept that it is not a permanent state, and that it is conditional. It is true that the Immigration Appeal Board could determine in three years, in 2023, for any number of possible reasons, including the serious breach of any of the conditions imposed by the Board, that the conditional stay of his deportation order should be rescinded.

[38] Plainly however, that is not the expectation. If it were, given Mr. Jagdharry's prior criminal record, it is difficult to envisage that the Board would have been willing to give him the opportunity to remain in Canada, with his family, simply by keeping the peace and being of good behaviour, and complying with the reasonable conditions imposed upon him by the Board. Nevertheless, the Board’s order does give him fair warning that:

This stay of removal is cancelled and your appeal is terminated by operation of law and you may be removed from Canada if you are convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act (sentence of more than six months imposed or punishable by term of imprisonment of at least ten years) before your case has been finally reconsidered.

[39] Absent such a serious violation of one of the core conditions imposed by the Board, there would be every expectation that at the final hearing to be held on November 17, 2023, the conditional stay of Mr. Jagdharry's deportation order would become permanent, subject of course to not committing further offences which would or could again call into question his entitlement to remain in Canada as a permanent resident.

[40] However, if that were to occur, it would have been because of those future offences, not the past ones. Further, Mr. Jagdharry can no longer claim that he is uninformed of what the immigration consequences may be if he violates the terms of the Conditional Stay Order, or if he is ever again convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act.

[41] It is my view that this controversy is now moot. There is no foundation to permit an excessively delayed appeal to be commenced when there is every likelihood that the foundation for the appeal has disappeared. Neither should the appeal be permitted to proceed given that any future cancellation of the conditional stay would not be attributable to the October 24, 2017 conviction. It could only be attributable to a present or future violation of the law by Mr. Jagdharry, in circumstances where he can plainly no longer claim to be uninformed that the privilege of his continued presence in Canada as a Permanent Resident depends on his compliance with the law.

M.G.J. Quigley J.

Date: December 3, 2019