Ontario Criminal


Appeal

PROCEDURE
Deportation order was serious but unusual consequence of conviction

Accused’s application for extension of time to file appeal of his conviction that was dated May 18, 2012. Accused’s trial was supposed to start on May 18 and he was self-represented. He was charged with several offences, which included assault with weapon, forcible confinement and breach of recognizance. Matter had to be adjourned for four to six weeks. Accused did not want to wait that long and he decided to plead guilty that day. Presiding judge told accused he would have to accept facts that underpinned charges and accused responded that he understood and he was prepared to do so. He also told judge that his decision to plead guilty was fully voluntary. Accused was sentenced to 102 days of pre-sentence custody and to 15 months of probation. He was permanent resident of Canada and he was not yet Canadian citizen. On January 17, 2013 Immigration and Refugee Board advised accused that deportation order would be issued because he was convicted of serious criminal behaviour. Accused appealed that order. In April 2013 accused was again charged with criminal offences and this time he hired lawyer to represent him. He was advised at that time that he could have appealed convictions that led to deportation order. Accused filed this application in July 2013 and he claimed he was unaware of immigration consequences of his decision to plead guilty. Application allowed. Accused would have 30 days to file notice of appeal. He did not have reason to believe that appeal was necessary until January 17, 2013 when he received his deportation notice. It was not until April 2013 that he learned that appeal was possible and it was then that he formed intention to appeal. Consequently, his decision to appeal was made within timeframe that was reasonable in specific circumstances of this case. Delay that occurred between April and July 2013 was not held against accused because it resulted from erroneous legal advice. Delay between January and April 2013 was reasonable because accused was focused on appealing deportation order. As for merits of appeal deportation order was very serious but unusual consequence of conviction. Crown would not be prejudiced by appeal and extension of time to appeal would not be inappropriate.

R. v. Cimpaye (Jan. 7, 2014, Ont. S.C.J., Julianne A. Parfett J., File No. Ottawa 11-A10371) 111 W.C.B. (2d) 414.

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