COURT FILE NO.: CR-22-60
DATE: 2022-07-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Prakash Patel
Lorna Muller, for the Crown
Alan D. Gold and Ellen Williams, for Mr. Patel
HEARD: June 1 & 30, 2022
REASONS FOR DECISION
APPLICATION TO EXTEND TIME TO APPEAL, AND THE APPEAL
conlan j.
I. The Application and the Notice of Appeal
[1] Mr. Prakash Patel (“Patel”), by Notice of Application dated 25 March 2022, asks for “an Order, pursuant to the provisions of section 815(2) of the Criminal Code, extending until the 25th day of March 2022, the time within which notice of appeal may be given against the convictions made at the Ontario Court of Justice…”.
[2] Those convictions are: one count of assault (section 266), one count of assault with a weapon [section 267(a)], one count of utter threat [section 264.1(1)(a)], one count of fail to comply with undertaking [section 145(4)(a)], and one count of fail to comply with release order [section 145(5)(a)].
[3] The application is supported by Patel’s affidavits sworn on 25 March 2022 and 16 May 2022, including the exhibits attached thereto. The applicant has also filed the Notice of Appeal, a Factum, and some other materials.
[4] The Crown, opposed to the application, has filed some caselaw references.
[5] The Notice of Appeal sets out three substantive grounds for the appeal: (i) the guilty plea is a “nullity” because Patel was not given the opportunity to answer to each of the three charges of assault, assault with a weapon, and utter threat, contrary to section 606(2) of the Criminal Code, (ii) related to that, the failure to take pleas individually to those three counts constitutes a procedural error that invalidates the guilty plea, and (iii) in view of Patel’s immigration status, his suspended sentence should be replaced. If the appeal is allowed in terms of the sentence, the order sought by Patel is to remove the convictions and substitute therefor a conditional discharge with the same terms.
[6] The crux of Patel’s argument is really encapsulated in his supplementary affidavit sworn on 16 May 2022, at paragraph 1 therein – “had I known that pleading guilty would make deportation a certainty and I would have no chance to stay in Canada whatsoever, I would not have pleaded guilty…”.
[7] The application was heard at Court on 01 June and 30 June 2022, via Zoom, with the assistance of an interpreter for Patel (language – Gujarati).
[8] There is no expectation that this Court decide just the application, but rather this Court is to decide the application and the appeal itself.
II. The Hearing in this Court – the Evidence of Patel
[9] Patel testified at Court on June 1, 2022. In answering questions from the Crown, Patel stated that he pleaded guilty in the Ontario Court of Justice just to get out of jail. He agreed to what was said in the courtroom, in terms of the facts, just to get out of jail, he testified.
[10] Patel acknowledged to the Crown that the Judge who took the guilty pleas asked him if the facts read-out in the courtroom were correct, to which Patel said to the Judge “yes”.
[11] Patel admitted to the Crown that both his lawyer at the time and the Judge who took the guilty pleas told him about potential immigration consequences. Patel admitted further that his lawyer at the time advised him that he could consult with an expert immigration lawyer. He did not do so; he said that there were obstacles to doing that while in jail.
[12] The Crown took Patel to the transcript of the appearance in the court below. The appearance before Justice Brown of the Ontario Court of Justice at Milton occurred on July 21, 2021. The transcript is filed at CaseLines C-1-62.
[13] Patel told the Crown in this Court that he did not fully appreciate the import of the words spoken by his then counsel, which words included “you understand, and you have been advised, that a conviction is going to deem you inadmissible in Canada and you will have pretty much no chance to remain in Canada legally” (page 3 – before the arraignment), and “his [Patel’s] imminent deportation from Canada” (page 9 – after the arraignment).
III. The Hearing in this Court – the Submissions of Counsel
[14] Mr. Gold has wisely focussed the argument on the interests of justice. It is conceded by the applicant that no bona fide intention to appeal was formed within the appeal period.
[15] First, the applicant submits that there was a procedural irregularity in the court below. I agree.
[16] A review of pages 3 and 4 of the transcript reveals that (i) Patel was arraigned on a charge of simple or common assault (section 266), plus a charge of assault with a weapon [section 267(a)], plus a charge of utter a threat [section 264.1(1)(a)], and (ii) then the Crown elected to proceed summarily on those three charges, and (iii) then Patel was asked by the Clerk “how do you plead to the charge read, guilty or not guilty” (emphasis added by me), to which Patel answered “guilty”, and (iv) then the arraignment continued on other counts.
[17] As Patel did not enter separate pleas to each of those three counts, the applicant submits that the guilty pleas are vulnerable to attack. He relies, in part, on the decision of the Court of Appeal for Ontario in R. v. Mitchell, 1997 6321.
[18] Second, the applicant submits that he was not properly and fully informed of the potential collateral (immigration) consequences of his guilty pleas, and therefore they are susceptible to being overturned on that basis. He relies, in part, on the decisions of the Court of Appeal for Ontario in R. v. Evans, 2022 ONCA 23 and R. v. Shiwprashad, 2015 ONCA 577.
[19] Third, the applicant submits that, even if there is no basis to set aside the guilty pleas on one or both of the grounds outlined above, this Court should still allow the appeal, in the interests of justice, by substituting conditional discharges for the convictions entered in the court below. He relies, in part, on Omene v. Saskatchewan (Attorney General), 2014 SKQB 1.
[20] Ms. Muller, for the Crown, submits that (i) if there was any procedural irregularity, it was harmless because Patel knew exactly what charges he was pleading guilty to, and (ii) Patel was properly and fully informed of the potential immigration consequences of his guilty pleas, and knowledge of certain deportation is not the test in any event, relying in part on Shiwprashad, supra and R. v. Tyler, 2007 BCCA 142, [2007] B.C.J. No. 434 (BCCA), and (iii) a conditional discharge would be a totally unfit sentence for this offender on these facts, given the aggravating circumstances present (domestic violence, children at the scene, a knife, and so on), and it would be improper for this Court to grant the sentence appeal simply to help Patel with his immigration situation, relying in part on Omene, supra.
IV. Decision
[21] In a very recent judgment of my colleague, Mr. Justice Akhtar, in R. v. Edmond, 2022 ONSC 4064, at paragraphs 20 through 24, under the heading “The Test for Granting Leave to Extend Filing Time”, His Honour very nicely summarized the governing legal principles. I agree with and adopt that summary, set out below.
[20] Pursuant to Rule 40.05 of the Criminal Proceedings Rules, SI/2012-7, a party has 30 days to appeal from the order that is challenged. Rule 40.03 of the Rules allows a judge to extend or abridge that deadline upon application.
[21] The authority to grant or refuse an extension of time to appeal is discretionary and not one that arises as of right: R. v. Roberge, 2005 SCC 48, [2005] 2 S.C.R. 469, at para. 6; R. v. Menear (2002), 2002 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), at para. 20.
[22] In R. v. Closs (1998), 1998 1921 (ON CA), 105 O.A.C. 392 (C.A.), at para. 8, Carthy J.A., in chambers, commented on the rarity of granting orders that extend time to appeal by stating:
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.
[23] In Menear, at para. 20, the court identified the following three factors to be considered when deciding whether an extension of time is justified:
(1) Has the applicant shown a bona fide intention to appeal within the appeal period;
(2) Has the applicant accounted for or explained the delay; and
(3) Is there merit to the proposed appeal?
[24] This list is not exhaustive and the court “may take into considerations other factors such as whether the consequences of the conviction are out of all proportion to the penalty imposed, whether the Crown will be prejudiced and whether the applicant has taken benefit of the judgment. In the end, the main consideration is whether the applicant has demonstrated that justice requires the extension of time be granted”: Menear, at para. 21; R. v. Ansari, 2015 ONCA 891, 128 O.R. (3d) 511, at para. 23.
[22] On the first submission raised on behalf of the applicant, the procedural irregularity in the court below, I agree with the Crown.
[23] Although there was a procedural irregularity, there was no prejudice suffered by Patel. He admitted as much when he was questioned by Ms. Muller in this Court. Specifically, he agreed with the Crown that he knew all of the charges that he was pleading guilty to, and he agreed with the Crown that the Judge in the court below read out all of the charges, and he agreed with the Crown that he understood.
[24] Section 686(1)(b)(iv) of the Criminal Code permits the dismissal of an appeal against conviction, despite a procedural irregularity, where the appellant suffered no prejudice thereby. In Mitchell, supra, the decision relied upon by Patel, Justice Doherty for the Court of Appeal for Ontario dismissed the appeal on the basis of the said section, and I would do the same here.
[25] On the second submission raised on behalf of Patel, the immigration consequences issue, I again agree with the Crown.
[26] In my view, that deportation from Canada is a certainty is not the test. A more accurate way of describing the enquiry is whether the guilty pleas were properly informed. Was the subsequent deportation notice an unfair surprise? Put another way, was there a miscarriage of justice in that the guilty pleas were entered without an appreciation of what could happen in terms of deportation from Canada? Shiwprashad, supra, at paragraphs 73 and 74.
[27] I do not accept the evidence of Patel in this Court that he did not appreciate what was being said by his then counsel in the court below. The lawyer at the time, Ms. Abbasi, and the Judge, could not have been much clearer. As part of the pre-plea inquiry, the Judge stated, and Patel agreed that he understood, that “there may be immigration consequences as a result of your plea of guilt and the sentencing that will follow” (page 2 of the transcript). Then, being extra-vigilant, before the arraignment, Ms. Abbasi intervened and asked on the record for Patel to confirm that he was “on a visitor’s visa to Canada”, to which Patel stated “yes”, and then Ms. Abbasi went even further to say that “a conviction is going to deem you inadmissible in Canada and you will have pretty much no chance to remain in Canada legally” (emphasis added by me), which Patel stated that he understood.
[28] There was no unfair surprise to Patel when he subsequently received the notice of his impending deportation from Canada. There was no miscarriage of justice. The guilty pleas were properly informed, I conclude.
[29] On the third submission raised on behalf of Patel, the request to grant the sentence appeal in the interests of justice, despite the excellent argument advanced by Mr. Gold and Ms. Williams, after careful reflection, I again agree with the Crown.
[30] This was a joint submission on sentence, which joint submission was accepted by the Judge. The sentence imposed was 135 days of pre-sentence custody, enhanced by the sentencing Judge to the equivalent of more than double that, 282 days or 9.4 months in custody, plus a period of probation for two years, plus ancillary orders (page 10 of the transcript).
[31] The facts read-in by the Crown were acknowledged by Patel himself (not just his then lawyer) as being “correct” – the bottom of page 7 of the transcript. There is no basis for this Court to think that the facts were not correct, and I reject any implied suggestion by Patel in this Court that he admitted the facts, knowing they were false, just to get out of jail.
[32] Mr. Gold and Ms. Williams cannot help Patel with those facts. The facts were very serious. The victim was Patel’s wife. She was pregnant at the time. The place of the offences was the family home. Two young children, six and seven years old, were inside the home at the time and nearby during at least part of the altercation. Throughout the day, Patel repeatedly assaulted and threatened his wife. He struck her all over her body with a computer cord. He punched her in the forehead, causing her to bruise. He struck her with his hands all over her body. He threatened to hit her, and to kill her, and to chop her up into pieces. He threatened to hit the children. He threatened to harm the unborn baby by kicking his wife. He flashed a knife at her. He prevented her from leaving the residence. The victim had visible bruises all over her body (page 6 of the transcript).
[33] Those facts alone, without any consideration of the facts underlying the other breaches, in my opinion, cannot justify a conditional discharge. Such a sentence would be contrary to the public interest, section 730(1) of the Criminal Code. I say that even acknowledging the considerable time that Patel spent in custody and the compassion that I have for anyone, including Patel, who is facing deportation from a country as beautiful as ours, Canada.
[34] I am grateful for the helpful authority of Omene, supra being provided to this Court by counsel for Patel, however, even in that case it was acknowledged that “the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and principles of sentencing identified in the Criminal Code”. Omene, supra, at paragraph 31, quoting from the decision of the Supreme Court of Canada in R. v. Pham, 2013 SCC 15 and the decision of the Court of Appeal for Ontario in R. v. Hamilton, 2004 5549.
[35] On the facts in Omene, supra, very different than ours (three counts of theft in modest amounts), the Justice determined that a conditional discharge would not be contrary to the public interest (paragraph 47). With respect, I make a different conclusion on our facts. It would be contrary to the public interest to conditionally discharge Patel.
[36] For all of these reasons, assuming without deciding that the application to extend the time to appeal should be granted, the appeal is dismissed.
Conlan J.
Released: July 28, 2022
COURT FILE NO.: CR-22-60
DATE: 2022-07-28
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Prakesh Patel
REASONS FOR JUDGMENT
Conlan J.
Released: July 28, 2022