Court File and Parties

Court File No.: CR-25-10000042-00AP Date: 2025-09-18 Ontario Superior Court of Justice

Between: His Majesty the King – and – Delano Grant

Counsel:

• J. Balgopal, for the Crown
• T. Combs, for Mr. Grant

Heard: 20 June 2025

Before: S.A.Q. Akhtar J.

Factual Background and Overview

Background Facts

The Applicant's Criminal History

1The applicant is a citizen of Barbados and does not possess Canadian citizenship but has permanent residency status.

2On 31 January 2019, the applicant was convicted of breaking and entering offences contrary to s. 348(1)(b) of the Criminal Code. On 18 November 2020, the applicant was convicted of the offences of breaking and entering a non-dwelling and theft contrary to s. 348(1)(b) of the Criminal Code. On the 23 April 2021, he was further convicted of the offences of possession of break-in instruments contrary to s. 351(1) of the Criminal Code.

3On the 7 July 2021, the applicant was sentenced to a total of 5 months imprisonment for all of the offences. However, the sentence relating to the 31 January 2019 conviction included credit for 878 days of pre-sentence custody.

4Subsequently, the Canadian Border Services Agency (CBSA) issued two reports under s. 44(1) of the Immigration Refugee Protection Act (IRPA) informing the applicant that he was inadmissible to stay in Canada because he had been convicted of serious criminal activity as defined by s. 36(1)(a) of the IRPA.

5On 18 December 2024, the applicant was arrested and charged with new offences: breaking and entering committed on 4 December 2024. The applicant was held in custody and pleaded guilty on 19 February 2025. According to the applicant, he received no information about any immigration consequences prior to his plea.

Report #1

6In and around July or August 2022, whilst the applicant was in custody on other matters at the Toronto South Detention Centre, he received documents from the CBSA which contained a s. 44(1) report (Report #1) informing him that he may no longer be admissible for entry to Canada based on the 18 November 2020 and 23 April 2021 convictions.

7With regard to this report, the applicant maintained his appeal rights with the Immigration Appeal Division (IAD) as the length of his jail sentence was less than six months. The report also indicated that he would be able to make submissions to the CBSA in response which could be considered in any decision to refer the applicant for an admissibility hearing.

8On the 3 August 2022, the applicant contacted the Refugee Law Office (RLO) whilst in custody at the Toronto South Detention Centre. He was told that the RLO could not represent him at the initial hearing stage, but would do so if there was an appeal to the IAD.

Report #2

9On 10 November 2022, the CBSA served the applicant with a second s. 44(1) report (Report #2) wherein the applicant was told he was inadmissible because of the 31 January 2019 conviction to which he had been sentenced (along with the 18 November matter) on 7 July 2021. On this particular offence, the applicant received five months but also was credited with 878 days of pre-trial custody.

10As the applicant is a permanent resident, he has a right under s. 63(3) of the IRPA to appeal any deportation order heard before the IAD on humanitarian and compassionate ground.

11However, s. 64 of the IRPA specifies that a permanent resident loses their right to appeal if they receive a jail sentence of six months or more.

12As noted, the 31 January 2021 conviction resulted in a sentence of five months imprisonment with an additional 878 days of pre-trial credit making the total sentence on this offence approximately 33 months.

13As a consequence of the 31 January 2021 conviction and sentence, the applicant no longer had a right of appeal if ordered deported at his admissibility hearing.

14The applicant says that on either 20 February 2025 or on 7 March 2025, Ms. Pearce informed him of the possibility of seeking an appeal in relation the criminal sentence. She explained that the sentence - which included 878 days of pre-sentence custody - would not allow him to appeal the admissibility hearing to the IAD. According to Ms. Pearce, she and the applicant discussed the possibility of obtaining an opinion letter from counsel regarding a criminal appeal of the conviction focussing on the applicant's IAD appeal rights.

The Admissibility Hearing

15On 31 July 2023, the CBSA notified the applicant that it would only be considering Report #2 when deciding whether the applicant would be referred to an admissibility hearing. The CBSA indicated they would not rely on Report #1. Again, the applicant says that he did not receive this notification document.

16However, further events intervened. On 18 December 2024, the applicant was arrested and charged with new offences: breaking and entering committed on 4 December 2024. He was held in custody and ultimately pleaded guilty on 19 February 2025.

17On January 30, 2025, the applicant participated remotely at an admissibility hearing whilst he was in custody for the more recent breaking and entering charges. In his affidavit, the applicant states that he had no idea what the hearing was about and received no documents until after the hearing had commenced.

18The applicant was informed of the nature of the hearing and that a deportation order could be issued at the outcome of the hearing. He was told that if he wanted to access counsel he would be allowed time to do so. The applicant indicated that he did want representation, and the hearing was postponed to 20 February 2025.

The 19 February 2025 Plea

19On 19 February 2025 the applicant pleaded guilty to new breaking and entering offences and was sentenced to nine months imprisonment which included 200 days enhanced pre-sentence custody credit and a further 70 days in custody. At the plea hearing, the applicant's counsel informed the court that she had conducted a plea comprehension inquiry and that the applicant understood "that this may have immigration consequences." The applicant confirmed his counsel's submission.

20At this stage, the court addressed the applicant directly on the question of immigration and the following exchange occurred:

THE COURT: Thank you. Great. And, so you don't need, you're not seeking to have independent legal advice for your immigration consequences?

THE ACCUSED: No. I will deal with that when we get in, I'll be sure to look at all that stuff for me.

A. OWEN: Your Honour, I can advise that Mr. Grant had told me that he's already spoken to somebody about his immigration issues.

THE COURT: Oh. Is that correct, Mr. Grant? You already sought some, some legal advice already or somebody?

THE ACCUSED: Yeah.

21The court accordingly proceeded to plea and sentence.

22On February 20, 2025, the applicant appeared at the re-scheduled admissibility hearing represented by Tara Pearce of the RLO. The hearing was further adjourned again to 3 April 2025.

23The applicant says that on either 20 February 2025 or on 7 March 2025, Ms. Pearce informed him of the possibility of seeking an appeal in relation the criminal sentence. She explained that the sentence - which included 878 days of pre-sentence custody - would not allow him to appeal the admissibility hearing to the IAD. According to Ms. Pearce, she and the applicant discussed the possibility of obtaining an opinion letter from counsel regarding a criminal appeal of the conviction focussing on the applicant's IAD appeal rights.

24On 22 March 2025, the applicant spoke to Mr. Combs, counsel at Legal Aid Ontario to discuss whether a criminal appeal of his 31 January 2019 conviction and the related sentence should be launched. The applicant says that when he spoke with Mr. Combs prior to March 2025, he has no recollection of ever being given specific legal advice about appealing any of his prior criminal matters.

25On 26 March 2025, counsel at the RLO again informed the applicant that the sentence imposed on the 7th of July 2021 which contained 878 days of pre-trial custody along with his 31st of January 2019 conviction would prohibit him from appealing any deportation order.

26On 2 April 2025, the applicant filed an application to extend the filing time for a notice of appeal.

27One day later, the applicant attended the admissibility hearing adjourned from 20 February 2025 and asked for a further adjournment to 4 June 2025.

28On 15 April 2025, the CBSA issued a third s. 44(1) report, (Report #3) in relation to the 19 February 2025 conviction and sentence. This was sent to Ms. Pearce in advance of the 4 June 2025 hearing.

29On 4 June 2025, the applicant failed to attend his admissibility hearing. His counsel could provide no explanation for his absence. After it was confirmed that the applicant was not in custody, a warrant for his arrest was issued.

30On 6 June 2025, the applicant was arrested by police and charged with breach of probation of the 19 February 2025 court order and trespassing on a commercial building whilst in possession of tools suitable for breaking and entering.

The Application to Extend Time to File

31The applicant now seeks to appeal the sentence imposed on the 7th of July 2021. Since the time period for the appeal has long since passed, the applicant applies for leave for an extension of time to file his appeal. The Crown opposes the application arguing that the appeal should have been filed in 2022 and, that recent developments have rendered this appeal moot.

32For the following reasons, the application is dismissed.

Legal Principles

The Test for an Extension of Time

33Pursuant to r. 40.05 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, a party has 30 days to appeal from the order that is challenged. Rule 40.03 allows a judge to extend or abridge that deadline upon application.

34The power to grant or refuse an extension of time to appeal is discretionary and does not arise as of right: R. v. Roberge, 2005 SCC 48, [2005] 2 S.C.R. 469, at para. 6; R. v. Menear (2002), 162 C.C.C. (3d) 233 (Ont. C.A.), at para. 20.

35In R. v. Closs (1998), 105 O.A.C. 392 (Ont. C.A.), Carthy J.A. in chambers, at para. 8, commented on the rarity of granting orders that extend the time to appeal, 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.

36In Menear, at para. 20, the court provided the following three factors to consider when deciding whether an extension of time is justified:

(1) Has the applicant has 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.

37These factors are not exhaustive. The court in Menear, at para. 21, held the following:

[T]he 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 from the judgment. In the end, the main consideration is whether the applicant has demonstrated that justice requires the extension of time be granted.

38More recently, the Court of Appeal applied this holding in R. v. Thangarajah, 2025 ONCA 525, at para. 9, and R. v. Ansari, 2015 ONCA 891, 128 O.R. (3d) 511, at para. 23.

Should Leave Be Granted?

Was There A Bona Fide Intention to Appeal?

39It is clear from the factual evidence that the applicant had until the 7 August 2021 to appeal the imposed sentence.

40Report #1 was issued on the 8 July 2022. This notified the applicant that his immigration status was affected by his 7 July 2021 conviction and sentence of a crime constituting serious criminality as defined by the IRPA.

41At this stage, the applicant knew that the 7 July 2021 sentencing would impact his immigration status. However, he did nothing to commence or progress an appeal of the sentence. Although he states in his materials that he did not know of his right to appeal, there is no explanation as to why he never sought legal advice regarding the sentence and its immigration consequences.

42What is even more puzzling is that on the 8 July 2021, when it issued Report #1, the CBSA informed the applicant that he had an opportunity to provide further information and make submissions before the matter was set down for an admissibility hearing.

43However, on 23 September 2022, the applicant told the CBSA that he would not be making submissions and simply chose to receive a deportation order. These actions demonstrate that the applicant did not possess a bona fide intention to appeal.

44Between 8 July 2022 and 2 April 2025, the applicant produced no evidence of any efforts to appeal the 7 July 2021 sentence. It is no answer for the applicant to assert that he had never been informed that he had a right to an appeal. His own materials indicate that when he received the 8 July 2021 letter, he sought help from the RLO to deal with a potential admissibility hearing. It makes no sense that he would not also have gone to a lawyer to seek advice on any potential remedy regarding the sentence when he knew of its impact regarding his appeal rights to the IAD.

45The affidavit provided by Ms. Pierce seems to indicate that the applicant stopped communicating with counsel around the autumn of 2022. His RLO counsel, Jordan Pachciarz, made "multiple efforts to reconnect with [the applicant] to have a meaningful discussion" about the second report. However, those efforts were unsuccessful. The applicant has not provided any explanation for the cessation of contact with his counsel during this time. Once again, his actions point to a lack of a bona fide intention to appeal.

46It is also revealing that the application seeking leave to extend the time for filing was put before the court on 2 April 2025, the day before his admissibility hearing was set to continue.

47In sum, after being given notice that the CBSA would take account of his sentence in future immigration proceedings in July and November 2022, the applicant took no steps to investigate an appeal. Even after his admissibility hearing had commenced on 30 January 2025, the applicant continued to do nothing until shortly before the continuation date of February 2025, and further waited until the day before the next date of the admissibility hearing to file his application to seek leave to extend the filing time.

48Moreover, the applicant's failure to attend, without explanation, his 4 June 2025 admissibility hearing, speaks volumes about his intention to comply with the legal procedures surrounding his circumstances. If there had been a bona fide intention to start and continue an appeal, he would have at the very least, attended the admissibility hearing which placed his status in Canada at risk.

49Finally, the applicant's further commission of offences which resulted in his plea of 19 February 2025, also reflects on any bona fide intention to appeal. Having had notice of Reports #1 and #2, the applicant rather than seeking to safeguard his status in Canada - one of the primary reasons behind this application to extend the filing time - chose to commit an offence that would further endanger his admissibility status in Canada.

50I find that the evidence shows that there was no bona fide intention to appeal the sentence imposed on 7 July 2021.

Explanation of the Delay

51I have outlined the applicant's delay in launching the appeal in the foregoing reasons. None of the delay has been adequately explained by the applicant. I do not accept his explanation that he was unable to use his phone or that he was not in the right state of mind to make phone calls or send communications to counsel.

52As the Crown rightly points out, even the applicant appears to say that he would not use his phone as using it would result in his phone being stolen, not that his phone was stolen. Even if the phone had been stolen there were many other methods to communicate with counsel such as public pay phones, emails or physically visiting the lawyers in question.

53Nor does the explanation given by the applicant accord with his own actions not only in failing to maintain contact with his lawyers but also decline to make submissions to the CBSA and keep abreast of his own immigration status.

54I would also query why, having failed to contact his immigration lawyers for many months because of a lack of method of communication with them, he was suddenly able to do so on 18 February 2025, just before he pleaded guilty to the Break and Enter charges.

55Nor has the applicant explained why, even after receiving advice before his plea in February 2025, it took a further two months to file his application.

56For these reasons, I find that the delay has not been adequately explained.

Is There Merit to the Appeal?

57The Crown argues that there is no merit to the appeal because its stated goal has been rendered moot. I agree.

58The applicant argues that at the 7 July 2021 hearing he was sentenced on a large number of convictions that were meant to run concurrently with each other. However, the problem that occurred was that pre-sentence custody credit was assigned to only one of the charges - the 31 January 2019 break and enter charge. This apportionment resulted in the applicant's loss of his right of appeal to the IAD if he was found inadmissible.

59The applicant argues that if his appeal is successful the pre-sentence custody credit will be re-apportioned amongst all the charges for which he was sentenced. This would result in the sentence for all charges remaining under six months and would mean that the applicant would retain his right of appeal without the overall sentence being altered.

60However, the Crown points out that even if this was the case, the applicant's plea and nine month sentence imposed for the 19 February 2025 conviction and Report #3 would result in a deportation without a right of appeal irrespective of any appeal success in relation to the 31 January 2019 offences.

61As described, the applicant made clear to the sentencing judge that he was aware of the immigration consequences of the plea - having spoken to immigration counsel - and wished to proceed regardless.

62By doing so, he has rendered this appeal moot: there is no right of appeal to the IAD because of the length of the sentence imposed.

63I would also add that these facts demonstrate that it is hardly in the interests of justice to allow the application.

64This is an applicant who knew of the risks to his immigration status and chose to commit further crimes knowing that it might prove fatal to any chances of resisting deportation. He also avoided a potential removal order by failing to attend the admissibility hearing on 4 June 2025 without explanation.

Conclusion

65For these reasons, the application to extend the time to file an appeal to this court is dismissed.

S.A.Q. Akhtar J.