2014 QCCA 1690, 2014 QCCA 1690

Onwualu c. R. 2014 QCCA 1690 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTRÉAL No: 500-10-005711-146 (500-01-102847-149) MINUTES OF THE HEARING DATE : September 16, 2014 THE HONOURABLE MR. JUSTICE NICHOLAS KASIRER , J.A. PETITIONER COUNSEL ASIKA SAMUEL ONWULAWU Mtre marie-pierre labbé ( Labbé Marie-Pierre ) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre JULIE PELLETIER ( Directeur des poursuites criminelles et pénales ) DESCRIPTION : Motion to extend the time limit for leave to appeal and Motion for leave to appeal from sentence (subs. 678(1) and

(2) Criminal Code ) Clerk: Asma Berrak Courtroom: RC.18

HEARING 9 h 40 Commencement of the hearing. Identification of counsel. Observation by the Judge. 9 h 41 Submission by Mtre Labbé. 10 h 03 Submission by Mtre Pelletier. 10 h 13 Reply by Mtre Labbé. 10 h 17 Suspension of the hearing. 10 h 41 Resumption of the hearing. Judgment-see page 3. 10 h 44 Conclusion of the hearing.

Clerk BY THE JUDGE JUDGMENT [ 1 ] Petitioner has filed a motion to extend the time limit to bring an appeal of his sentence and a motion for leave to appeal thereof. [ 2 ] In order to justify the extension of the time limits, petitioner states that he learned that his immigration status might lead to his expulsion from Canada outside the delay for appeal, and that further delays ensued as he sought out a lawyer and a legal aid mandate. Citing Guzman v. The Queen , 2011 QCCA 136 , he claims to have serious grounds for appeal.

His principal argument in this latter regard is that the sentencing judge was unaware of the petitioner’s status as a permanent resident of Canada at the time of the judgment, and that, had he known that fact, the judge would have imposed a lesser sentence. *** [ 3 ] The motions are contested, principally as to the seriousness of the grounds for appeal.

While there is not, at present, a motion to bring new evidence in the file, counsel for the respondent does however recognize that the judge had not been apprised of the petitioner’s status, at least as the facts are disclosed based on a reading of the transcript. [ 4 ] The respondent argues that the sentence imposed was a reasonable one and that, even if the judge had known about the petitioner’s immigration status, he would not have imposed a lighter sentence.

The respondent notes that the parties had initially proposed, as a joint submission, a heavier sentence and that the judge had set that suggestion aside to lower the sentence given attenuating circumstances. [ 5 ] Given this context, the respondent argues that an appellate court would not likely change the sentence and, notwithstanding the issue of permanent residency, the appeal has no reasonable chance of success. [ 6 ] Noting as well the delay of several months between the moment at which the petitioner learned of the problem caused by his immigration status and the date on which the motions were filed, the respondent argues that he was not diligent in prosecuting his appeal. *** [ 7 ] I am of the view that the motion to extend the time limit should be granted. [ 8 ] The criteria pursuant to subs. 678(2) Cr.C ., as interpreted in Lamontagne v.

The Queen , JE 95-26 (C.A.) , have, in my estimation,

been satisfied by the petitioner. [ 9 ] While not robust, the evidence in his affidavit of his intention to appeal and his diligence in prosecuting the appeal while in jail is sufficient. [ 10 ] I recognize that the authority of Guzman v. The Queen may be tested on the facts of this case in a manner unfavourable to the petitioner, but I am nevertheless of the opinion that his grounds here are not futile.

Given that the judge did not know of the immigration issue, I cannot say, at this stage, that an appeal would be without reasonable grounds of success. [ 11 ] I am of the view that it is in the interests of justice to extend the time limit to bring appeal and grant the motion for leave. [ 12 ] The appeal should proceed on the fast track and be argued on the basis of written arguments (exposé

s) of 20 pages each rather then by factum. [ 13 ] Considering Rules 56, 57, 58 and 59 of the Rules of the Court of Appeal of Quebec in Criminal Matters to be read as follows: 56(2). Timetable . In referring the motion or, if applicable, the appeal to the Court, the Judge shall establish a timetable for the filing, in quadruplicate and after service on the other party, of the documents that stand in lieu of the factum. 56(3). Default .

If the documents are not filed before the time limit has passed, the clerk shall file a certificate of default in the record and shall thereafter refuse any documents from the defaulting party. A notice of the filing of this certificate shall be delivered immediately to the Chief Justice and to the judges who are to hear the motion or the appeal. 57. Documents. The appellant shall file the following documents:

a) the motion for leave to appeal;

b) the indictment;

c) the sentence, including the reasons and the conclusion;

d) the depositions from the sentencing hearing, if any;

e) any other relevant remarks of the trial judge and counsel in the course of submissions as to the sentence;

f) the questionnaire on the form in

Schedule 1, duly completed. 58. Respondent’s questionnaire. At least three weeks before the date of the hearing of the motion or the appeal, the respondent may also serve the questionnaire, duly completed, on the appellant and file the questionnaire at the Office of the Court, in quadruplicate. 59(1). Argument. The parties may include an argument no longer than 10 pages in length with their documents. It shall have at least one and one-half spaces between the lines, with the exception of quotations, which shall be single-spaced and indented.

The characters shall be in 12-point font size, and there shall be no more than 12 characters per 2.5 cm. 59(2). A judge may order that an argument be prepared when the issues raised by the appeal so warrant.

FOR THE AFOREMENTIONED REASONS, the undersigned: [ 14 ] GRANTS the motion to extend time limit to bring motion for leave to appeal to today’s date; [ 15 ] GRANTS the motion for leave to appeal; [ 16 ] PLACES the case on the role of January 16, 2015 at 9:30 am, in room Antonio-Lamer to be pleaded without factums for a hearing of 90 minutes of duration (45 minutes for each parties); [ 17 ] ORDERS the petitioner, after having served a copy upon the respondent, to file at the Office of the Court no later than November 3 rd , 2014 five copies of the documents that ordinarily constitute Schedules I, II and III of the factum, including today’s judgment, a book of authorities and, if applicable, an argument no longer than 20 pages in length; [ 18 ] ORDERS respondent, after serving a copy upon the petitioner, to file at the Office of the Court, no later than December 15,

2014 five copies of the questionnaire, a book of authorities, and if applicable, an argument no longer than 20 pages in length. NICHOLAS KASIRER , J.A.