COURT FILE NO.: CR-22-250000022-00AP

DATE: 20220812

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RAPHAEL MILLER

Applicant

Joanne Bruno, for the Crown

Kenneth Jim, for the Applicant

HEARD: August 5, 2022

reasons on motion to extend time to appeal

schabas J.

Overview

[1] On October 13, 2015, Raphael Miller pleaded guilty to assault causing bodily harm. He was convicted and received a two-year suspended sentence with credit for 4 months in pre-trial custody. Miller is a foreign national. He is a citizen of St. Vincent, but has been in Canada continuously, without status, since 2002 when he entered as a visitor to see his son who was living here. He has had several more children in Canada, two of whom, aged 6 and 10, live with him and his current spouse.

[2] Miller has recently learned that, as a result of the guilty plea and conviction in 2015, he faces what is a “likely insurmountable barrier” to succeeding in an application to remain in Canada. He was not informed at the time of his plea of the immigration consequences of pleading guilty, and the court failed to inquire into or consider the impact of a conviction on Miller’s immigration status in Canada. Miller recently learned that he could appeal the conviction and sentence, and now seeks to do so. However, he needs to be granted an extension of time to be able to commence his appeal.

[3] For the reasons that follow, I have concluded that the interests of justice favour granting Miller’s motion for an extension of time.

Background

[4] In 2014, at the time of the alleged offence, Miller was subject to a removal order by the Canadian Border Services Agency (“CBSA”) issued in 2006. However, Miller had made a refugee claim and taken other steps to try to gain status to be able to remain in Canada. All those steps were unsuccessful. Indeed, when arrested on the assault charge, he was detained on an “immigration hold,” even though he had obtained bail in criminal court.

[5] Miller’s charge of assault causing bodily harm arose from an apparent beating, by Miller, of a man associated with the mother of some of Miller’s children. Miller pleaded guilty on the advice of counsel who told him it would be “the best thing to do in the situation.” However, Miller was not told that a conviction for assault causing bodily harm constitutes “serious criminality” under s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), as it is punishable by up to ten years imprisonment, and that this would be a barrier to applying for permanent resident status.

[6] The fact that Miller was detained on an “immigration hold” was mentioned during the guilty plea proceedings, but no inquiries were made by the defence, the Crown, or the judge about Miller’s status in Canada. Miller’s lawyer told the judge very little about his client to support his submission that Miller should receive a conditional discharge. The judge entered a conviction and imposed a suspended sentence placing Miller on probation for two years, with the record noting that he had spent four months in custody.

[7] As a result of the conviction, Miller became removable from Canada for “serious criminality.” However, the CBSA took no steps to deport him on that basis as Miller was already subject to the 2006 removal order.

[8] The suspended sentence apparently held off the removal order. The removal process has continued to move slowly and Miller remains in Canada.

[9] In March 2021, with the assistance of his current spouse, Miller began to receive legal assistance through Legal Aid Ontario’s Refugee Law Office respecting his immigration issues and what appeared to be an imminent execution of the deportation order. A lawyer at Scarborough Legal Services commenced an urgent sponsorship application on humanitarian and compassionate grounds. The application focused on Miller’s need to care for his two youngest children, who had suffered abuse from their mother and great aunt before Miller was able to obtain custody of the children, and who now live with him and his spouse.

[10] Miller’s immigration lawyer has provided uncontradicted, indeed unchallenged, evidence that the humanitarian and compassionate grounds raised are compelling. He has stated that Miller has a “very good chance” of overcoming his non-compliance with IRPA and of obtaining permanent resident status.

[11] This sponsorship application appears to have caused the CBSA to further delay Miller’s deportation.

[12] However, Miller’s immigration lawyer also learned of Miller’s 2015 conviction. Section 64(1) of IRPA provides that a person who has been found to be inadmissible due to “serious criminality” may not appeal that finding under the Act. The effect of this provision is succinctly stated by Miller’s immigration lawyer as follows:

In my experience, inadmissibility for non-compliance with the Act alone can be overcome with strong H&C factors. Inadmissibility for serious criminality, however, is much more serious. His conviction, and the resulting inadmissibility for serious criminality, will present a difficult, likely insurmountable, barrier to the approval of his application for PR.

[13] Miller’s immigration lawyer sought information from the CBSA and investigated his conviction. This took time. He made an Access to Information Request to the CBSA and obtained the report that was prepared following Miller’s conviction pursuant to s. 44 of IRPA. He also obtained documentation showing that CBSA decided not to act on the conviction.

[14] Miller’s lawyer also sought information from the lawyer who had represented him on the criminal case, and who had also been his immigration lawyer up to 2015. Unfortunately, the former lawyer has not been forthcoming with information, and his brief response contained factual errors.

[15] In February 2022, Miller’s immigration lawyer obtained the transcript of the guilty plea and sentencing hearing of October 13, 2015. The lawyer immediately saw that the immigration consequences of a conviction were not considered at the hearing. He referred the matter to a criminal lawyer at Legal Aid who, in March 2022, advised Miller that he had grounds on which to appeal the conviction and sentence. Miller’s uncontradicted and unchallenged evidence is that this was when he learned, for the first time, that he could appeal his 2015 conviction.

[16] His lawyers then brought this motion for an extension of time in which to commence an appeal which has proceeded promptly.

The legal issue

[17] In R. v. Menear, 2002 CanLII 7570 (Ont. C.A.), at paras. 20-21, the Court of Appeal summarized the factors to be considered on a motion for extension of time to appeal:

There is no absolute rule to be applied in the exercise of the discretion whether or not to grant an extension of time. The court will, however, usually consider the following three factors:

(i) whether the applicant has shown a bona fide intention to appeal within the appeal period;

(ii) whether the applicant has accounted for or explained the delay; and

(iii) whether there is merit to the proposed appeal.

Depending on the case, the court may take into consideration 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 the benefit of the judgment. In the end, the main consideration is whether the applicant has demonstrated that justice requires that the extension of time be granted.

Application of the factors

(i) Intention to appeal during the appeal period

[18] Miller does not rely on this factor. It is acknowledged that he did not form an intention to appeal in 2015. Although this weighs against extending time, it is just one factor to be considered: R. v. Ansari, 2015 ONCA 891, 128 O.R. (3d) 511, at para. 13; R. v. Chen, 2016 ONCA 132, at para. 11.

(ii) Explanation for the delay

[19] Miller’s uncontradicted and unchallenged evidence is that he was not aware that he could appeal his conviction and sentence until advised by his counsel in March 2022. His counsel has since moved quickly to bring this motion.

[20] Miller has also provided uncontradicted and unchallenged evidence that he was not advised by his counsel in 2015 of the immigration consequences of pleading guilty to the charge of assault causing bodily harm. The transcript of the guilty plea and sentencing submissions does not address this issue either. Miller states, and I accept, that he did not know that a conviction for assault causing bodily harm would “remove any chance of appealing a deportation order.” Had he known of this consequence, Miller has stated that he would not have pleaded guilty, but would have instructed his lawyer to take the case to trial or to attempt to negotiate a resolution based on a simple assault charge.

[21] Miller’s ignorance of the significance of the conviction was not remedied by the CBSA, which did not take any action on the conviction to remove him on that basis. It is not clear when Miller became aware of the impact of the conviction, but his evidence that he did not know he could appeal it until given that advice in March 2022 is what is relevant on this motion. His evidence on this point is unchallenged and I accept it. In this regard, this case is similar to R. v. Bailey, 2022 ONCA 507, where the applicant was aware of the consequences of the verdict but not of his right to appeal for approximately 12 years.

[22] Accordingly, Miller has sufficiently explained the delay in seeking to appeal the conviction. This favours granting an extension.

(iii) Whether the appeal has merit

[23] Miller has also satisfied the third factor, as the appeal has merit. This factor does not require Miller to satisfy me that the appeal will succeed; rather, he must show that there are arguable grounds for an appeal or, put another way, that the appeal is not “devoid of merit”: Chen, at para. 12; Ansari, at para. 33.

[24] First, Miller’s guilty plea was made without being informed of the immigration consequences of a conviction. This is supported by his uncontradicted evidence and the transcript of the guilty plea proceedings. Had Miller known of the serious consequences to his immigration status he would not have pleaded guilty to assault causing bodily harm, or may have done so only on certain conditions that would minimize the risk of a conviction. This might have included, for example, a joint submission for a conditional discharge, as a discharge is not a conviction and thereby avoids the application of s. 36(1)(a) of IRPA.

[25] In R. v. Davis, 2020 ONCA 326, 391 C.C.C. (3d) 285, a guilty plea was set aside where the accused was aware of some, but not all, of the immigration consequences. The Court of Appeal stated at para. 26 that “it is now beyond dispute that awareness of collateral immigration consequences forms part of an informed guilty plea.” In R. v. Evans, 2022 ONCA 23, at para 7, the Court of Appeal stated the test for setting aside a guilty plea as follows:

To set aside the guilty pleas, the appellant must satisfy two criteria: (a) that the pleas were uninformed in the sense that he was misinformed or uninformed about their immigration consequences; and (b) that he suffered subjective prejudice, in the sense that there is a "reasonable possibility that [he] would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions": R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at paras. 3-6, 33-34 and 36. In order to assess the veracity of the appellant's claim that he suffered subjective prejudice, the court can look to objective, contemporaneous evidence. "The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused's subjective claim": Wong, at paras. 6, 26.

[26] This is not the time to decide the merits of this ground, but Miller’s evidence supports the existence of an arguable ground of appeal based on an uninformed plea and the prejudice that has resulted from it.

[27] Second, where the sentencing judge is not informed of the immigration consequences, an appellate court is justified in setting aside the sentence. There are many examples of appellate courts reducing what might otherwise be fit sentences when made aware of unforeseen immigration consequences: R. v. Al-Masajidi, 2018 ONCA 305, 141 O.R. (3d) 557, at paras. 9-12; R. v. Carlisle, 2016 ONCA 950; R. v. Srbinovski, 2016 ONCA 729; R. v. Butters, 2017 ONCA 973; R. v. Regis, 2017 ONCA 848; R. v. Frater, 2016 ONCA 386.

[28] In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 24, 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.

[29] The failure to inform the judge of the immigration consequences to Miller that would flow from a conviction also raises an arguable ground of appeal.

[30] Third, counsel raises ineffective assistance of counsel as a ground of appeal. Miller’s lawyer failed to inform him of the immigration consequences. It is argued that his lawyer in 2015 ought to have only recommended a guilty plea if there was a reasonable prospect of Miller obtaining a discharge rather than a conviction. A discharge would not have the same implications of “serious criminality.” However, there was no joint submission for a discharge made following the guilty plea. The Crown sought a jail term.

[31] Although Miller’s counsel sought a discharge, he made very brief submissions that gave the judge no basis to grant one. Counsel failed to address the legal criteria for a discharge. He told the judge very little, making a conviction virtually inevitable. Had Miller’s counsel told the judge of the immigration consequences of a conviction, and more about Miller’s personal circumstances, it cannot be said that the judge would not have considered a discharge, especially in light of Miller’s lengthy pre-trial custody. But the judge was not aware of it and the was the fault of his counsel, Miller argues.

[32] In my view, this ground also has merit.

(iv) Other factors and the interests of justice

[33] A trial on the charges many years later, if ordered, may be prejudicial to the Crown and upsetting to the victim. Further, the plea and conviction may have provided some benefit to Mr. Miller in holding off deportation while his sentence was served. However, there is no evidence of the extent of the prejudice to the Crown, and there is no evidence that Miller sought, or was aware, of the benefit of delaying his deportation that may have followed from the plea.

[34] Further, failing to grant an extension could lead to a substantial injustice. The collateral consequences of the conviction—Miller’s inability to remain in Canada or even pursue avenues that might otherwise be open to him to remain—are out of proportion to the penalty imposed, a suspended sentence, and were unforeseen by the trial judge. The consequences are “of such magnitude as to render it unjust” to deprive Miller of the right to appeal the conviction and to seek a variation in the sentence: Ansari, at para. 31.

[35] The Crown argues that many of the cases in which extensions have been granted involve permanent residents, who unexpectedly face removal after living legally in Canada for many years. But Miller has not been living illegally in Canada for the past twenty years. He has lived here without status, the CBSA has known of his presence here, and has been addressing it, including Miller’s applications, pursuant to IRPA. Miller has lived here longer than many permanent residents.

[36] Despite the lengthy period of time which has passed since the plea in 2015, Miller has provided a credible explanation for the delay. Whether he ought to have done more, or known more, earlier is not the issue. Miller has, for the past 20 years, sought to remain in Canada. He has acted promptly and diligently to seek to appeal his conviction and sentence once the availability of an appeal became known to him. It would be unjust to deny an extension in these circumstances.

Disposition

[37] The motion for an extension of time is granted. Mr. Miller shall have 30 days from the date of the release of these Reasons to file a notice of appeal.

Paul B. Schabas J.

Released: August 12, 2022

COURT FILE NO.: CR-22-250000022-00AP

DATE: 20220812

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

RAPHAEL MILLER

REASONS on motion to extend time to appeal

Schabas J.

Released: August 12, 2022