2018 QCCA 936, 2018 QCCA 936

Kadder c. R. 2018 QCCA 936 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006666-182 (500-01-080482-125, 500-01-082798-122, 500-01-082797-124) MINUTES OF THE HEARING DATE: June 4, 2018 CORAM: THE HONOURABLE MARTIN VAUCLAIR , J.A. MARIE-JOSÉE HOGUE , J.A. CLAUDINE ROY , J.A. APPLICANT COUNSEL AIDER ABDEL KADDER Mtre PIA ZAMBELLI (Joseph W. Allen & Associates) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre LAURENT-ALEXANDRE DUCLOS- BÉLANGER (Criminal and Penal Prosecuting Attorney)

DESCRIPTION: Motion to extend the time for appeal (Article 678 (2) of the Criminal Code) Motion for leave to appeal from a conviction on a ground notmentioned in articles 675 (1)a)(ii) of the Criminal Code andfor authorization to adduce fresh evidence Articles 675 (1)a)(iii) & 683 (1) of the Criminal Code andarticles 21 & 54 of the Rules of the Court of Appeal in CriminalMatters) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 10:09 Commencement of the hearing.

Identification of counsel.10:09 Submissions by Mtre Zambelli.10:28 Mtre Zambelli amends her Motion for fresh evidence to include an affidavit from theformer counsel, Me Waxman.10:28 Submissions by Mtre Duclos-Bélanger.10:33 Reply by Mtre Zambelli.10:34 Recess.10:42 Resumption of the hearing.10:42 By the Court: judgment – see page 3. Robert OsadchuckClerk BY THE COURT JUDGMENT [1] Petitioner seeks an extension of time to file his appeal.

Should that application be granted, he seeks leave to appeal and leave tointroduce fresh evidence. [2] On December 12, 2012, following the advice of his lawyer, he pleaded guilty to six criminal offences, three of which wereindictable offences. He was sentenced to 120 days of imprisonment. He now says his plea was uninformed because his counsel neverinformed him of the immigration consequences of entering a plea for these offences. [3] The petitioner is a foreign national from Iraq. He has since been deported to that country by Canadian authorities. [4] In R. v.

Lamontagne (1994), (QC CA), 95 C.C.C. (3d) 277 (C.A. Que.), Fish J.A. (as he then was) wrote atp. 283: To succeed on an application for extension of delays, the applicant must normally establish: (1) an intention to appeal while the right of appeal existed;

(2) arguable grounds of appeal; (3) reasonable diligence in seeking to exercise the right to appeal within the prescribed time. [5] Our Court, and other Courts, have adopted this approach: See R. v. Lafortune, 2018 QCCA 16, paras. 18-20; Fournier-Cyr v.R., 2016 QCCA 1256, para. 7; Khairallah v. R., 2015 QCCA 63; Kumar v. R., 2015 QCCA 1410; Moroni v. R., 2014 QCCA 1867, para.8; Migneault v. R., 2013 QCCA 1243, para. 7; Mwamba v. R., 2013 QCCA 1246, para. 6; Gordon v. R., 2013 QCCA 1603, para. 4;Takri v. R., 2013 QCCA 727, para. 2; R.L. v. R., 2012 QCCA 635, parsa. 50-52; Arsenault v. R., 2012 QCCA 1998; Bird v.

R., 2012QCCA 1561, paras. 26, 28; Roberge v. R., 2009 QCCA 1799, para. 3; Duhamel v. R., 2006 QCCA 1081, para. 24; R. v. Morin (2005),2005 SKCA 37 , 195 C.C.C. (3d) 190, para. 6 (C.A. Sask.); R. v. Meidel (2000), 2000 BCCA 39 , 148 C.C.C. (3d) 437,para. 14 (C.A. B.C.); R. v. Ansari, 2015 ONCA 891; R. v. Antonangeli (2000), (ON CA), 146 C.C.C. (3d) 90 (C.A.Ont.); R. v. W. (G.) (1999), (NL CA), 137 C.C.C. (3d) 194 (C.A. N.W.T.); R. v. Trimper (1999), 1998 NSCA 235, 133 C.C.C. (3d) 243, 246 (C.A. N.S.); R. c. Mohammed (1990), (MB CA), 52 C.C.C. (3d) 470 (C.A. Man.). [6] In R. v.

Roberge, 2005 SCC 48 , [2005] 2 S.C.R. 469, at para. 6, the Supreme Court adopted similar factors to guidethe exercise of its discretion in granting similar requests under the Supreme Court Act, R.S.C. 1985, c. S-26. [7] The Court is of the view that petitioner did not pursue his appeal diligently. [8] The application and its attached affidavit (para. 13) clearly show that, as a result of his criminal convictions, a deportation orderwas notified to the petitioner as early as September 17, 2013. At para. 13 of his affidavit, he writes: 13. Around September 2013 I was called into Immigration.

I hired an immigration lawyer. On l7 September 2013 a deportation orderwas made against me on the grounds that I had been convicted of assault causing bodily harm, criminal harassment and threatening.Attached as

Schedule "B" to this affidavit is a copy of my deportation order. [9] He further explains, at para. 15 of his affidavit that in October 2013, he fully realized the consequences of his pleas: 15. It was at this time that I realized that my criminal Iawyer had not properly advised me of the consequences of pleading guilty to thecharges.

Had I pled guilty to a different offence, or defended the charges at trial, I could have avoided putting my future in Canada injeopardy; [10] He retained the services of a different immigration lawyer to file a pre-removal risk assessment (PRRA), and he asked this newlawyer about a possible criminal appeal. He was told to seek counsel from a criminal lawyer, but petitioner does not remember if he didso at the time, although he maintains that he was never told that he could appeal (affidavit, para. 18).

He was struggling with mentalhealth issues, the specifics of which are not mentioned. [11] Nevertheless, he moved to Vancouver in 2014. On July 29, 2015, the PRRA was refused and he initiated judicial review beforethe Federal Court, now assisted by a new immigration lawyer. [12] He again obtained legal advice on his criminal appeal. He received a legal opinion that an appeal could be attempted, but wouldhave little chance of success (affidavit, para. 21). The affidavit indicates: 21. At that time, I concluded that it was too late to pursue an appeal of my convictions to overcome my criminal inadmissibility.

Ireturned to Vancouver and eventually my file was transferred to the immigration office there. [13] He then used all legal means to stay in Canada (affidavit, para. 23). Despite what he knew, he was confident he would not bedeported. He writes: 23. Even though I knew I was criminally inadmissible I did not believe it was likely that I could actually be deported to Iraq because itwas well-known that Iraq was not issuing travel documents. [14] On January 31, 2018, however, petitioner was notified that he would be removed from Canada on February 27, 2018.

On March3, 2018, he filed the current application. [15] In sum, whether we take his starting point as September 2013 or July 2015, almost five years after he realized the consequencesof his plea, or three years after he was told by a criminal lawyer that an appeal was possible but had little chance of success, he hasfinally invested the effort necessary to seek leave to appeal. [16] We are all of the view that this is not a case in which an extension of time should be granted. The petitioner did not actdiligently.

His affidavit is replete with examples showing that he is a person capable of taking legal action, and that he made informedchoices not to pursue the matter in the last five years. Knowing that his criminal convictions resulted in a deportation order he failed togive the necessary priority to this application for leave to appeal. FOR THESE REASONS, THE COURT: [17] DISMISSES the application to extend time to appeal.

MARTIN VAUCLAIR, J.A. MARIE-JOSÉE HOGUE, J.A. CLAUDINE ROY, J.A.