SUPREME COURT OF NOVA SCOTIA Citation: R. v. Ru, 2018 NSSC 155. Dai Ru. Her Majesty the Queen

Transcription

1 SUPREME COURT OF NOVA SCOTIA Citation: R. v. Ru, 2018 NSSC 155 Date: Docket: Hfx No Registry: Halifax Between: Dai Ru v. Appellant Her Majesty the Queen Respondent Judge: Heard: Counsel: The Honourable Justice Joshua M. Arnold May 31, 2018, in Halifax, Nova Scotia Donald Murray, Q.C., for the Appellant Brandon Trask, for the Respondent

2 Page 2 By the Court: Overview [1] Dai Ru was charged with impaired driving related offences on March 4, He hired a lawyer, pleaded not guilty and proceeded to trial on October 16, Part way through his trial, he changed his plea from not guilty to guilty. He was sentenced on the same date to a fine and a driving prohibition. On December 4, 2017, he received a Deportation Order, in accordance with the Immigration and Refugee Protection Regulations, SOR/ [2] On January 18, 2018, Mr. Ru filed a Notice of Summary Appeal Conviction. The Notice was not filed in compliance with the Court rules, in that it was filed past the time allowed for filing an appeal. Mr. Ru asks for an extension of time to file his appeal. The Crown is opposed to Mr. Ru s application. [3] The motion was argued on May 31, My decision was reserved. For the reasons that follow, the motion to extend time is allowed. Background [4] Affidavits were received on this matter sworn by: Dai Ru, Donald Murray, Q.C., Thomas Singleton, and Christina Chui. [5] Mr. Ru is a citizen of China. He has been in Canada since October 23, 2011, as a foreign student on a study permit. He graduated from Saint Mary s University in January 2016, with a Bachelor of Commerce degree. In January 2016, he received a three-year post-graduate work permit. He worked for the Royal Bank from November 2016 until July Since July 2017, he has been working for Citgo Funds. [6] Following his arrest, Mr. Ru hired Tom Singleton to represent him. They had several meetings in advance of trial, and Mr. Ru says that Mr. Singleton told him during those meetings that if he was convicted he would receive a criminal record and would have some trouble traveling to the United States. Mr. Ru instructed Mr. Singleton to plead not guilty on his behalf and proceed to trial. Mr. Singleton appeared for Mr. Ru at every court appearance leading up to his trial.

3 Page 3 [7] The trial took place at the Halifax Provincial Court on October 16, The trial was Mr. Ru s first attendance at the courthouse, as Mr. Singleton had appeared for him at all previous court appearances. A Mandarin-English translator, Christina Chui, was present. [8] In his affidavit, Mr. Singleton says that after hearing from five Crown witnesses, he met with Mr. Ru in an interview room and told him that he would be convicted. He further told Mr. Ru that hearing from more Crown witnesses would only serve to make the evidence against him more overwhelming. Mr. Ru then instructed Mr. Singleton to enter a guilty plea to s. 253(1)(b). Mr. Singleton said that, We returned to the courtroom and Judge Digby accepted the guilty plea offered by Dai Ru. The matter proceeded to sentence and Dai Ru received a fine of $1,200.00, plus a Victim Fine Surcharge of thirty percent and a one-year driving prohibition. [9] Mr. Ru says that during the meeting, Mr. Singleton advised him to change his plea from not guilty to guilty because there were three civilians and one police officer who had identified him. Mr. Ru says that Mr. Singleton told him that he could not win. He says that Mr. Singleton told him that if he pleaded guilty he would get a lesser fine. Mr. Ru then entered court and attempted to change his plea. [10] When Mr. Singleton attempted to change Mr. Ru s plea to guilty, Judge Digby suggested that Mr. Singleton meet with his client to discuss the possible immigration consequences of a guilty plea. In his affidavit, Mr. Singleton says, We took a short break and I again explained to Dai Ru the possible immigration consequences which included being banned from Canada and/or being deported from Canada. Dai Ru again confirmed for me that he understood the immigration consequences. [11] According to Mr. Ru, Mr. Singleton told him that changing his plea to guilty would not affect his immigration status because the impaired charge was a summary matter. [12] Ms. Chui says that, during this meeting, Mr. Ru and Mr. Singleton were speaking in English and as a result she was not called upon interpret and, she said that she was not paying full attention to the conversation. Ms. Chui does recall Mr. Singleton and Mr. Ru discussing immigration and the consequence of a guilty plea. She also recalls Mr. Singleton saying something about it not being a very serious offence. [13] Mr. Ru says that based on Mr. Singleton s advice he entered a guilty plea.

4 Page 4 [14] Judge Digby accepted the guilty plea and Mr. Ru was sentenced to a $1, fine, plus a Victim Fine Surcharge of thirty percent, along with a one-year driving prohibition. [15] The next Mr. Ru heard about this matter was when he received the Deportation Order on December 4, He retained Lee Cohen, Q.C., on December 8, He says that he received accurate legal advice about his immigration status for the first time in December Mr. Ru s girlfriend made contact with Donald Murray, Q.C., on December 14, Mr. Ru spoke with Mr. Murray s office on December 18, and met with Mr. Murray on December 21. Mr. Murray provided a legal opinion to him on January 11, Mr. Ru gave Mr. Murray instructions to proceed with the appeal on January 16. Mr. Murray filed the appeal documents on January 18. [16] Mr. Ru acknowledges that his appeal period expired on or about November 25, He argues that due to ineffective and incorrect legal advice, he entered an uninformed guilty plea. He now wishes to appeal so as to allow him to withdraw his guilty plea. Motion to Extend [17] Section 815 of the Criminal Code provides the authority to extend the time file documents initiating an appeal: Notice of appeal 815 (1) An appellant who proposes to appeal to the appeal court shall give notice of appeal in such manner and within such period as may be directed by rules of court. (2) The appeal court or a judge thereof may extend the time within which notice of appeal may be given. [18] The Civil Procedure Rules provide that the time period to start an appeal is no more than twenty-five days, pursuant to Rule 91.09: Deadline for starting appeal (1) For the purpose of section 678 and 839 of the Code, a person may start an appeal of a judgment by filing a notice of appeal no more than twenty-five days after one of the following: (a) the day the appellant is sentenced, if the appeal is from a conviction, finding of guilt, or sentence, or both a conviction or finding of guilt and a sentence;

5 (b) the day a judgment is made, if the appeal is from an acquittal or other judgment that is not a conviction, finding of guilt, or sentence. (2) The period is calculated under Rule 94.02, of Rule 94 - Interpretation, and it is subject to being extended under section 678 of the Code or Rule [19] The time period is calculated by Rule 94.02: (1) A period of days in a Rule does not include any of the following: (a) the day the period begins; (b) a Saturday and Sunday in the period; (c) a weekday the office of the prothonotary at Halifax is closed during the period; (d) the day on which a thing is required, or first permitted, to be done. (2) A document delivered on a Saturday, a Sunday, or a weekday that the office of the prothonotary is closed is considered to be delivered on the next weekday when the office of the prothonotary is open. (3) A document delivered after four-thirty on an afternoon is considered to be delivered on the next weekday when the office of the prothonotary is open. (4) A day is the period between midnight and the instant before midnight marking the beginning of the next day. (5) For the purposes of Section 49 of the Judicature Act, Rules 94.02(1) to (4) apply to the calculation of a period of days provided in a provincial statute for starting an appeal, or applying for permission to appeal, and the period is not calculated as provided in the Interpretation Act or in any other statute. (6) For the purpose of Section 3 of the Time Definition Act, a year is the 365 days from midnight of a day on the Gregorian calendar to the instant before midnight marking the beginning of the same numbered day, in the same month, in the following year, except the period is 366 days for a year that includes the twentyninth day of February. Page 5 [20] This twenty-five day time-period can be extended either under s. 678 or Rule 91.04: (1) Any time prescribed by this Rule may be extended or abridged by a judge of the Court of Appeal or the Court of Appeal before or after the time has expired. (2) A person who seeks an extension or abridgment of a time period in the Code or this Rule may make a motion to a judge of the Court of Appeal or the Court of Appeal under a provision in the Code, such as subsection 678(2), under Rule 2 - General, or under subsection (1) of this Rule.

6 Page 6 [21] In R.E.M. v. R., 2011 NSCA 8, Beveridge, J.A., conducted a detailed review of the law regarding motions to extend the time to file appeal documents. He said: 39 Both in Nova Scotia, and elsewhere, the criteria to be considered in the exercise of this discretion has been generally the same. The Court should consider such issues as whether the applicant has demonstrated he had a bona fide intention to appeal within the appeal period, a reasonable excuse for the delay, prejudice arising from the delay, and the merits of the proposed appeal. Ultimately, the discretion must be exercised according to what the interests of justice require. (See R. v Paramasivan (1996), 155 N.S.R. (2d) 373; R. v. Pettigrew (1996), 149 N.S.R. (2d) 303; R. v. Butler, 2002 NSCA 55; R. v. Roberge, 2005 SCC 48.) 44 Ordinarily, where an offender demonstrates that he had a bona fide intention to appeal within the applicable time period and has a reasonable excuse for his delay, the Crown consents to the extension. Does the satisfaction of the first two criteria eliminate or reduce the need for the Court to consider whether the applicant can demonstrate an arguable ground of appeal? In my opinion, it does not. 45 As stressed earlier, the ultimate question is whether or not the interests of justice require the extension of time to be granted. It cannot be in the interests of justice to extend time in order for a prospective appellant to pursue an appeal that has no merit. To do so wastes prosecutorial and judicial resources and reflects negatively on the administration of justice. [22] Justice Beveridge concluded that even if the applicant had a bona fide intention to appeal within the time period, and had a reasonable excuse for not doing so, the applicant must be able to identify and set out a ground of appeal that is at least arguable: 70 Ordinarily the interest of justice would militate in favor of granting an extension, even from a SCAC, if the applicant had a bona fide intention to appeal within the time period, and has a reasonable excuse for not having done so. To do otherwise would be to deprive the applicant of his or her opportunity to have a panel of this Court determine if leave should be granted, and if so, address the substance of the appeal. 71 An examination of the merits of a proposed appeal should be a limited one due to the frequent lack of a complete record and detailed submissions. It is decidedly not the role of the Chambers judge to engage in measuring the chances of success, allowing the extension if convinced the applicant has a reasonable or strong or some other adjective to measure the merits, but dismiss the application if not so satisfied. 72 However, the applicant must be able to identify and set out a ground that is at least arguable. I had the advantage of having the whole of the trial record, written

7 and oral argument before the SCAC and the decision of the SCAC judge. Mr. M. has had every opportunity to file evidence and submissions and make oral argument to address the requirement that his proposed appeal have at least one arguable issue. I would not hesitate to grant an extension of time for Mr. M. if he articulated, or I could discern, any arguable issue upon which leave to appeal might be granted by this Court. I could find none, and accordingly his Motion to extend time to file an Application for Leave to Appeal and Notice of Appeal is dismissed. Page 7 [23] The Crown argues that there is no arguable ground of appeal and therefore Mr. Ru s motion to extend time to file should be denied. R. v. Wong [24] On May 25, 2018, the Supreme Court of Canada released R. v. Wong, 2018 SCC 25. That decision discusses the circumstances in which a court may allow an appellant to withdraw a guilty plea because they were unaware of collateral immigration consequences stemming from the plea. The majority outlined considerations for a court when faced with this issue, relevant to the instant case: 19 In our view, an accused seeking to withdraw a guilty plea must demonstrate prejudice by filing an affidavit establishing a reasonable possibility that he or she would have either (1) pleaded differently, or (2) pleaded guilty, but with different conditions. This approach strikes what we see as the proper balance between the finality of guilty pleas and fairness to the accused. 20 With respect to the first form of prejudice -- where the accused would have opted for a trial and pleaded not guilty -- there will of course be instances in which the accused may have little to no chance of success at trial, and the choice to proceed to trial may simply be throwing a "Hail Mary". But a remote chance of success at trial does not necessarily mean that the accused is not sincere in his or her claim that the plea would have been different. For certain accused, such as the accused in Lee, the certain but previously unknown consequences of a conviction made even a remote chance of success at trial a chance worth taking. In such circumstances, and where the court accepts the veracity of his or her statement, the accused has demonstrated prejudice and should be entitled to withdraw his or her plea. 23 Parenthetically, we observe that the accused need not show a viable defence to the charge in order to withdraw a plea on procedural grounds. "[T]he prejudice lies in the fact that in pleading guilty, the appellant gave up his right to a trial" (R. v. Rulli, 2011 ONCA 18, at para. 2 (CanLII)). Requiring the accused to articulate a route to acquittal is antithetical to the presumption of innocence and to the subjective nature of choosing to plead guilty. An accused is perfectly entitled to

8 remain silent, advance no defence, and put the Crown to its burden to prove guilt beyond a reasonable doubt. It does not make sense to let an accused proceed to trial at first instance without any defence whatsoever, but to insist on such a defence to proceed to trial when withdrawing an uninformed plea. Though the decision to go to trial may be unwise or even reckless, we are not seeking to protect an accused from himself or herself. Rather, we seek to protect an accused's right to make an informed plea. [25] The majority went on to state: 25 Our framework is premised upon the view that judicial scrutiny must be directed to how the accused, and no one else, would have proceeded. The question to be answered is whether the accused would have acted differently, had he or she been armed with the knowledge of the legally relevant consequence. 26 That the analysis focusses on the accused's subjective choice does not mean that a court must automatically accept an accused's claim. Like all credibility determinations, the accused's claim about what his or her subjective and fully informed choice would have been is measured against objective circumstances. Courts should therefore carefully scrutinize the accused's assertion, looking to objective, circumstantial evidence to test its veracity against a standard of reasonable possibility. Such factors may include the strength of the Crown's case, any concessions or statements from the Crown regarding its case (including a willingness to pursue a joint submission or reduce the charge to a lesser included offence) and any relevant defence the accused may have. The court may also assess the strength of connection between the guilty plea and the collateral consequence, that is, whether the trigger for the collateral consequence is the finding of guilt as distinct from a particular length of sentence. More particularly, where the collateral consequence depends on the length of the sentence -- keeping in mind that a guilty plea typically mitigates a sentence -- the court may have reason to doubt the veracity of the accused's claim. Page 8 [26] Mr. Ru s affidavit in support of his appeal was sworn on February 21, In his affidavit, Mr. Ru does not state specifically that he would have proceeded differently if he had been properly informed. However, Mr. Ru argues that an inference can be drawn in this regard. In Wong, the majority addressed this issue and stated: 29 Throughout the process of testing the accused's claim, however, the focus must remain upon what this accused -- and only this accused -- would have done. The basis for that subjective inquiry is found in the subjective nature of the initial decision to plea. Because the original guilty plea is an exercise of the accused's own subjective judgment, it logically follows that the test for withdrawing that plea should also be directed to the accused's subjective judgment. This approach properly balances society's interest in the finality of guilty pleas and fairness to the

9 accused by striking the accused's plea only where he or she would have proceeded differently. 30 We note parenthetically that adopting a subjective framework, which requires the accused to swear an affidavit in support, will not create a "procedural bar" to striking a plea (Wagner J.'s reasons, at para. 93). First, our colleague's modified objective approach itself will require an accused to depose to his or her "particular circumstances" (para. 87) and to not having been informed of a legally relevant consequence. Second, any concern about an accused person who seeks to have their plea struck but who is unrepresented and unaware of the necessity of deposing that they would have proceeded differently if properly informed can be accounted for by the trial judge who should take steps to ensure that the accused obtains representation or, at the very least, is assisted by duty counsel (where available). And third, the accused need not speculate on how other participants in the justice system would have proceeded (ibid.). Our approach simply requires an accused to state how he or she would have acted differently. Though a condition sought may turn on another party's response -- e.g. the Crown's willingness to agree to a joint submission on sentencing -- the accused need only state that he or she would have insisted upon such a condition to plead guilty, or else would have proceeded to trial. Page 9 [27] Since Wong was released approximately three months after Mr. Ru s affidavit was sworn, during the appeal, Mr. Donald Murray, Q.C., was asked if he wanted more time to address the specific requirements imposed by Wong. Mr. Murray declined this opportunity and argued that Mr. Ru s affidavit allows for the inference that he would have proceeded differently had he been fully aware of the consequences of a guilty plea, that he would have continued through trial and would not have changed his plea to guilty part way through trial. Therefore, Mr. Murray says that Mr. Ru s affidavit satisfies the requirements in Wong. [28] The relevant portion of Mr. Ru s affidavit states: 10. My trial started on October 16, 2017, in the Halifax Provincial Court before Judge Digby. I had the assistance of a Mandarin Chinese interpreter. The Court heard from four witnesses before taking a break. Although there were plans to continue the trial after the break, there were no more witnesses heard after the first four. 11. During this break, Mr. Singleton and I spoke. He advised me to plead guilty because there were already three civilians and one police officer identifying me and that I could not win. He also advised that if I pleaded guilty instead of continuing with the trial I would get a lesser fine. I took his advice.

10 12. When we went back in to plead guilty. [sic] Judge Digby asked me specifically if I understood the immigration consequences of doing that. That discussion appears in the transcript of the proceedings attached as Exhibit G, at pages I did take time to speak with Mr. Singleton outside the courtroom in a private room about Judge Digby s question: the consequence on my immigration status if I pleaded guilty. As I remember it, Mr. Singleton told me that this was not going to affect my immigration status because it was a summary matter. I was getting interpretation assistance during that meeting from Christine Choi, who had been sworn to act as an interpreter at the trial. 14. I proceeded with the guilty plea based on Mr. Singleton s advise, and received a fine and driving prohibition as my penalty from the Court. 18. I pleaded guilty to the s. 253(1)(b) Criminal Code offence based on incorrect legal advice from Mr. Singleton. Page 10 [29] The Crown suggests that, as was the case in Wong, because Mr. Ru does not specifically refer to his subjective belief in his affidavit, there is no arguable ground for the appeal. In Wong, the majority applied the new framework to Mr. Wong s actual circumstances and stated: 36 We agree with our colleague that Mr. Wong's plea was uninformed (see Wagner J.'s reasons, at para. 102). To establish prejudice, however, the accused seeking to withdraw a guilty plea must show a reasonable possibility that, having been informed of the legally relevant consequence, he or she would have either pleaded differently, or pleaded guilty with different conditions. Mr. Wong has not met this burden. 37 Though he filed an affidavit before the Court of Appeal, he did not depose to what he would have done differently in the plea process had he been informed of the immigration consequences of his guilty plea (Affidavit of Mr. Wong, A.R., at pp ; C.A. reasons, at para. 14; Wagner J.'s reasons, at paras. 54 and 57-58). We therefore see no basis to permit him to withdraw his plea. 38 We recognize that, at the time Mr. Wong sought to withdraw his plea, the state of the law as to what he was required to include in his affidavit was not entirely clear. And, like our colleague (at para. 105), we also recognize that someone in Mr. Wong's circumstances may have elected to proceed to trial, even with a plea deal for a sentence of less than six months, in order to avoid inadmissibility to Canada. We observe, however, that the principal thrust of his submissions before us suggested that his overriding (although not exclusive) concern was to avoid deportation. With that in mind, we note that Mr. Wong's sentencing appeal is outstanding, and the Crown has conceded that a sentence of six months less a day would be appropriate in light of Mr. Wong's deportation risk (see R.F., at para. 69).

11 Conclusion From this, it follows that his right to appeal the removal order will likely be preserved after the conclusion of his sentencing appeal. 39 All of that said, because Mr. Wong did not state in his affidavit that he would have proceeded differently, we are of the view that he has not established prejudice giving rise to a miscarriage of justice. Page 11 [30] Mr. Ru has demonstrated that had he known about the deportation issue he would have appealed within the requisite appeal period. Once he received the Deportation Order he quickly retained a lawyer. Mr. Murray then brought the appeal in a timely fashion. [31] Mr. Ru was convicted on October 16, He received the Deportation Order on December 15, He met with Mr. Murray on December 21, The appeal documents were filed on January 18, [32] The Crown became aware of Mr. Ru s intention to appeal approximately three months after his conviction. No evidence has been presented demonstrating prejudice arising from the delay. [33] As Beveridge J.A. noted at para. 3 in R.E.M....ordinarily, where a prospective appellant had a bona fide intention to appeal within the time period, and a reasonable excuse for being outside the time period, it is a relatively rare case where the Court s discretion would not be exercised in favour of extending the time. [34] Mr. Ru did not file an affidavit that accords precisely with the new requirements in Wong. Nonetheless, it is at least arguable that the requirements in Wong have been met by Mr. Ru s affidavit, possibly through inference. In my view, one possible inference from the statements in the affidavit is that Mr. Ru would have proceeded differently had he been in possession of accurate information about the potential effect on his immigration status. If so, there is an arguable issue or arguable ground of appeal available to Mr. Ru. The grounds are realistic, such that, if established, appear of sufficient substance to be capable of convincing a panel of the court to allow the appeal. At this stage, I should not speculate as to the outcome nor look further into the merits. Therefore, the outcome of the appeal is in doubt: either side could be successful. Nor will I speculate as to whether Mr. Ru will apply to file a supplementary affidavit considering the requirements as outlined Wong and/or my comments in this decision.

12 Page 12 [35] Mr. Ru s motion for an extension of time to file his Application for Leave to Appeal and his Notice of Appeal is granted. Arnold, J.