R. v. Arganda, 2011 MBCA 24

Citation: R. v. Arganda, 2011 MBCA 24 Date: 20110225 Docket: AR 11-30-07517 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N: HER MAJESTY THE QUEEN ) B. H. Sinder ) for the Applicant Respondent ) ) ) E. A. Thomson- and - ) for the Respondent ) ) JOSELITO RABAYA ARGANDA ) Chambers motion heard and ) Decision pronounced: (Accused) Applicant ) February 25, 2011 SCOTT C.J.M. 1 This is an application for an extension of time to appeal a sentence and, if granted, for leave to appeal.

The circumstancesare unusual in that the sentence in question was imposed on October 30, 2007, more than three years ago, when the applicant pled guiltyin Provincial Court to various charges and received an effective two-year jail sentence, followed by 18 months’ supervised probation. The jail sentence and probation have long been completed. 2 Then, in April 2010, deportation proceedings were commenced before the Immigration and Refugee Board (the Board)against the applicant, who, while a permanent resident of Canada, is not a citizen.

Eventually a decision was made by the Board inDecember 2010 ordering the applicant’s deportation on the basis of his criminal record. He has now received a notification of removaleffective February 28, 2011. Pursuant to s. 64 of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 27, he is ineligible toappeal the removal order because he received a sentence of “at least” two years’ imprisonment.

Thus, a reduction of just one day in thesentence imposed would result in the applicant not being subject to the “automatic” removal process. 3 It is clear that at the time of sentencing neither counsel addressed the implications of a two-year as opposed to a two yearless a day sentence; there is no indication that the sentencing judge was aware of the potential implications. 4 It cannot be doubted that immigration consequences are a relevant consideration in sentencing. See R. v. Hamilton (2004), (ON CA), 186 C.C.C. (3d) 129 (Ont. C.A.), R. v. Spencer (2004), (ON CA), 186 C.C.C. (3d) 181(Ont. C.A.), and R. v.

Kanthasamy, 2005 BCCA 135, 195 C.C.C. (3d) 182. 5 Courts in the recent past have grappled with the question whether an extension of time to appeal should be granted incircumstances such as those before me. The accepted criteria for granting an extension of time for leave to appeal are: (1) was there a continuous intention to appeal from the time the decision was pronounced; (2) is there a reasonable explanation for the delay; and (3) are there arguable grounds of appeal? 6 But as noted in R. v. Truong (H.M.), 2007 ABCA 127, 404 A.R. 277 (at para. 6): ….

These elements are factors only, however, and the court retains the discretion to relieve the applicant from failure to fulfil any ofthese requirements where special circumstances so warrant, to prevent a miscarriage of justice …. 7 The law is now settled that “there is a broad discretion afforded to a court to extend the time for filing a notice of appealwhere the circumstances render it just to do so” (Truong, ibid.).

8 Thus, for example, in R. v. Hetsberger (1979), (ON CA), 47 C.C.C. (2d) 154 at 155 (Ont. C.A.), anextension of time was granted to appeal a conviction even though it was evident that the applicant had no intention to appeal within thetime limited by the rules. To similar effect, see R. v. Strattner (H.G.) (1992), (MB CA), 83 Man.R. (2d) 190 at para.13 (C.A.), Helper J.A. 9 There have been a number of recent appellate decisions extending the time for leave to appeal in circumstances similar tothis one, following upon the applicant learning of the serious and unexpected consequences of his guilty plea. See R. v.

Gaudreault(1992), (QC CA), 76 C.C.C. (3d) 188 (Que. C.A.), R. v. Leung (A.F.), 2003 ABCA 222, 330 A.R. 198, and R. v.Bahadur, 2010 SKCA 103, 259 C.C.C. (3d) 81. 10 A decision that I have found of particular assistance is that of MacPherson J.A. in the decision of R. v. Hayes, 2007 ONCA816, 226 C.C.C. (3d) 417.

Interestingly enough, the unexpected and unintended consequences that flowed from the guilty plea in thatinstance was that the applicant, a non-First Nations person, as a result of his guilty plea and sentence, was ordered to be removed fromthe reserve where he lived. 11 MacPherson J.A., after first noting “the sentence was almost certainly fit when it was imposed; it would be nearlyimpossible to dislodge it in a straightforward sentence appeal” (at para. 18), concluded (at para. 20): There is a narrow category of cases in which an extension of time has been granted where the consequences of a conviction and/orsentence, not known at the time the conviction and/or sentence was handed down, are profoundly disproportionate to them.

In the result, an extension of time within which to appeal sentence was granted. 12 Given the weight of authority, as noted above, and the particular circumstances of the applicant, I am persuaded that theapplication for an extension of time for the filing of a notice of appeal should be allowed and leave to appeal granted. 13 It is important however that the appeal proceed expeditiously, and I hereby fix Friday, April 29, 2011, at 9:30 a.m. for thehearing. _____________________________ C.J.M.