



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Baig, 2022 ONCA 129

DATE: 20220211

DOCKET:
    M51749

Tulloch
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Responding Party

and

Nicholas
    Baig

Moving Party

Nicholas Baig, acting in person

Michael Crystal, appearing as duty
    counsel

Nicole Rivers, for the responding party

Heard: November 1, 2021 by video conference

REASONS
    FOR DECISION

[1]

This is a motion for an extension of time for an
    appeal against conviction. Nicholas Baig pleaded guilty to second-degree murder
    for the murder of his wife who was, at the time, nine months pregnant with the
    couples unborn child.

[2]

In his motion for an extension of time, Mr. Baig
    states that he had previously understood that he could not appeal a conviction
    since he pleaded guilty and that he only recently became aware that it was
    possible to strike a guilty plea. He now seeks an extension of time to file a
    conviction appeal, as there was evidence from his case that was not presented
    during his court proceedings and on which basis he would not have pleaded
    guilty.

[3]

At the conclusion of oral arguments, I dismissed
    the motion with reasons to follow. These are my reasons.

Background Facts

[4]

The case was originally set for trial but
    eventually proceeded by way of a guilty plea to the charge of second-degree
    murder. The underlying facts which gave rise to the charge were set out in an
    agreed statement of facts which was read out by the Crown prosecutor. The
    underlying facts are set out below.

[5]

Mr. Baig and his wife, Arianna Goberdhan were
    married on November 6, 2016. During the marriage, their relationship
    was very volatile, resulting in Ms. Goberdhan moving back to live with her
    parents in January 2017. At some point between November 2016 and March 2017,
    Mr. Baig and his wife engaged in a series of hostile text message exchanges
    during which Mr. Baig called Ms. Goberdhan a skank, bitch, whore and
    slut. During the text message exchange, Mr. Baig also said to his wife:

I really dont want to be married to you. I
    dont want nothing to do with you or this baby anymore. I hope to God you stop
    breathing while you drive. And youre a lying whore and I hope you die
    delivering.

[6]

Sometime on April 1 or 2, 2017, Mr. Baig and Ms.
    Goberdhan engaged in a very heated argument, resulting in Mr. Baig breaking
    into Ms. Goberdhan parents home. In the process, Mr. Baig broke the door that
    led from the garage into the residence and attempted to gain entry to the home.

[7]

On April 7, 2017, Ms. Goberdhan told family and
    friends that she was going to pick Mr. Baig up at work and give him a drive to
    his home. She indicated that she was going to take her fathers car so that she
    would have an excuse to leave that residence. In fact, Mr. Baigs brother drove
    him home and they arrived home at around 5:50 p.m.

[8]

Ms. Goberdhan attended at Mr. Baigs home around
    6:30 p.m. that night. At approximately 9:43 p.m., Durham Regional Police
    received a 911 call from Ms. Goberdhans cell phone. Ms. Goberdhan did not
    speak directly to the 911 operator, but the operator could hear her saying
    something to the following effect: you have to let me go. You cant keep me
    here. I have to go home. The call then ended abruptly.

[9]

Uniformed police officers attended the
    residence. Mr. Baigs brother also arrived at the residence and provided them
    with access to the home. Ms. Goberdhan was found upstairs. Emergency
    Medical Services (EMS) personnel arrived at the residence and attended to Ms.
    Goberdhan. They noted she had what appeared to be multiple stab wounds to her
    head, face, neck, and body. The EMS personnel were unable to locate any vital
    signs and placed a call to a doctor who pronounced Ms. Goberdhan deceased. Her
    body was removed from the house later that night.

[10]

Ms. Goberdhan had no defensive injuries. She was
    stabbed seven times in the neck and head area. She was stabbed seven times in
    the torso, and she was stabbed three times in the arm. According to the
    pathology report, her unborn baby was fully developed and healthy and did not
    have any external injuries to the body.

[11]

Mr. Baig was charged with first-degree murder.
    After a very extensive period of pre-trial hearings, Mr. Baig entered a guilty
    plea to the charge of second-degree murder. Throughout the court process, Mr.
    Baig was represented by experienced senior counsel who specializes in criminal
    law.

[12]

Prior to the plea, counsel for Mr. Baig
    indicated to the court that he had taken time to explain to Mr. Baig his rights
    and obligations pertaining to a guilty plea, in accordance with s. 606(1.1) of
    the
Criminal Code
, R.S.C. 1985, c. C-46. The lawyer further indicated
    that Mr. Baigs plea was voluntary and without threats or duress.

[13]

The guilty plea was entered on January 19, 2019,
    based on an agreed statement of facts. Mr. Baig accepted the facts as read into
    evidence that he murdered his wife. He accepted that he understood and
    appreciated that he had a right to a trial, that he had a right to testify,
    that he had a right to face his accusers, and that he had a right to require
    the Crown to prove the case against him beyond a reasonable doubt. Mr. Baig
    expressly waived his right to a trial. After the agreed statement of facts was
    read into evidence, Mr. Baig agreed to the facts as read, and the court
    accepted the guilty plea.

Issues

[14]

Mr. Baig now seeks to appeal his conviction and
    sentence on the basis that he was confused and unaware of what he was doing. Specifically,
    he submits:

1.

Due to his lack of knowledge of the legal
    system, he was under the impression that since he pleaded guilty, he could not
    appeal his conviction.

2.

It was only recently brought to his attention
    that there are grounds on which to strike a guilty plea.

3.

He only recently began reviewing all the
    documents in his possession and came across information, including additional
    official evidence that was never presented in his initial court proceedings
    and that leads him to believe his guilty plea was uninformed.

4.

It has been extremely stressful for him in
    custody due to the COVID-19 pandemic and the disruptions that it has created
    within the institution.

Analysis

[15]

Mr. Baig brings this motion pursuant to s.
    678(2) of the
Criminal Code
, seeking to extend the time within which
    to file a notice of appeal to his conviction for second-degree murder.

[16]

In deciding whether to grant a motion for an extension
    of time to file a notice of appeal, I am guided by the following guiding
    factors set out in
Enbridge Gas Distribution Inc. v. Froese
, 2013 ONCA
    131, 114 O.R. (3d) 636, at para. 15 and
R. v. J.C.M
. (2002),
    162 C.C.C. (3rd) 233 (Ont. C.A.), at para. 20:

1.

Whether the applicant has shown a
bona fide
intention to appeal within the appeal period;

2.

Whether the applicant has accounted for or
    explained the delay; and

3.

Whether there is merit to the proposed appeal.

[17]

The overriding principle is the justice of the
    case, and whether the applicant has demonstrated that justice requires that the
    extension of time be granted:
Enbridge Gas
, at para. 15;
J.C.M
.,
    at para. 21.

[18]

I am not satisfied that Mr. Baig has shown that
    he had a
bona fide
intention to appeal within the specified appeal
    period, which would have been 30 days after the completion of his guilty plea
    and sentence. Mr. Baig entered his guilty plea on January 19, 2019. Now, more
    than two and a half years later, he brings this motion for an extension of
    time. In addition, he was charged for the offence in April 2017, over four
    years ago.

[19]

Mr. Baig has not provided any reasonable basis
    or adequate explanation as to why he delayed initiating his appeal. His only
    explanation is that he did not know that he could appeal a guilty plea until
    very recently. However, he has not established that he brought this motion
    within a reasonable time of becoming aware that he could appeal a guilty plea.

[20]

In my view, there is also no merit to Mr. Baigs
    claim that he entered an uninformed guilty plea and was ignorant of the legal
    system. There is no issue that a guilty plea must be voluntary, unequivocal,
    and informed:
R. v. Davis
, 2020 ONCA 326, at para. 10. A
    plea is an informed one if the accused is aware of the effects and consequences
    of the plea. On the record before me, I am not satisfied that Mr. Baig was not
    properly informed before entering his guilty plea, or that his decision to plead
    guilty was not voluntary and unequivocal. Throughout the proceedings, Mr. Baig
    was represented by experienced senior counsel, who conducted a very extensive
    pre-trial of the case. Mr. Baigs counsel also represented to the court, on the
    record, that he had very extensive consultations with Mr. Baig in preparation
    for trial and his subsequent decision to enter a guilty plea.

[21]

While there are cases in which our court and
    other appellate courts have granted an extension of time to allow an appellant
    to file an appeal seeking to set aside a guilty plea notwithstanding very
    lengthy unexplained delays, these tend to be cases in which there are
    unexpected consequences of the conviction, and there is good reason to doubt
    the validity of the conviction:
J.C.M
., at para. 24; see also
R.
    v. Brooks
, 2020 ONCA 605. For example, this may be the case where there
    are immigration consequences for non-citizens who receive incarceration periods
    of six months or more after entering a guilty plea. In these cases, the
    appellant was either uninformed or misinformed as to collateral immigration
    consequences of the guilty plea or sentence.

[22]

Mr. Baigs situation, however, does not fall in
    this category of cases. This is a case in which there was strong evidence of
    animus against the deceased by the applicant. The relationship was volatile.
    There was evidence of previous violence used against the deceased and her
    family on the part of Mr. Baig, just days before her murder. Mr. Baigs actions
    leading up to Ms. Goberdhans death were violent, and intimidating. At trial,
    there was no issue that it was Mr. Baig who stabbed and caused the death of
    both Ms. Goberdhan and their unborn child.

[23]

The trial judge was very thorough in her
    allocution and in satisfying herself that the appellant was pleading guilty
    voluntarily, and that he fully understood the consequences of such a guilty
    plea. The following meticulous exchange at the time of the plea highlights the
    transparency of the process:

[DEFENCE COUNSEL]: He pleads not guilty to the
    charge as read, but guilty to the lesser and included offence of second-degree
    murder.

CLERK REGISTRAR: Harken to your plea as the
    court hath recorded it. You pled not guilty to Count 1 as charged but guilty to
    the included offence of second-degree murder.

THE COURT: Mr. Baig.

NICHOLAS BAIG: Yes.

THE COURT: I want to have a conversation with
    you. You can have a seat.

NICHOLAS BAIG: Yeah.

THE COURT: Id like you to confirm what your
    counsel just indicated to the court, and that is that you are entering a plea
    of guilty to second-degree murder. Is that right?

NICHOLAS BAIG: Yes, maam.

THE COURT: Do you understand that you have the
    right to plead not guilty and have a trial?

NICHOLAS BAIG: Yes.

THE COURT: Do you understand that by pleading
    guilty you are giving up your right to a trial?

NICHOLAS BAIG: Yes. I do.

THE COURT: Are you making this guilty plea
    voluntarily?

NICHOLAS BAIG: Yes.

THE COURT: Because its what you want to do?

NICHOLAS BAIG: Yes.

THE COURT: It is your choice?

NICHOLAS BAIG: Yes.

THE COURT: Do you understand that by pleading
    guilty you are admitting the essential elements of the offence, specifically,
    that you killed the victim?

NICHOLAS BAIG: Yes.

THE COURT: That you intended to kill her or to
    cause her bodily harm that you knew was likely to cause death and was reckless
    as to whether death ensued or not?

NICHOLAS BAIG: Yes.

THE COURT: Do you understand that by pleading
    guilty you are admitting your guilt and that you will be sentenced?

NICHOLAS BAIG: Yes.

THE COURT: And do you understand that the
    ultimate decision as to what your period of parole ineligibility will be is up
    to me?

NICHOLAS BAIG: Yes.

THE COURT: Do you understand that the
    mandatory sentence for the offence to which youve pleaded guilty is life
    imprisonment and the only issue to be determined by the court is when you will
    be eligible to apply for parole?

NICHOLAS BAIG: Yes.

THE COURT: I know that theres no agreement
    between the Crown and your counsel but you understand that whatever their
    position is, I have an unfettered discretion bound only by the maximum and
    minimum in the
Criminal Code
to impose the period of parole
    ineligibility that I determine to be appropriate?

NICHOLAS BAIG: Yes.

THE COURT: Okay. In all of those circumstances
    I'm satisfied that the plea is voluntary as required to be a valid guilty plea
    and I accept your plea of guilty, Mr. Baig



[DEFENCE COUNSEL]: Yes. Thank you, Your
    Honour. And, I just wanted to indicate that I have reviewed everything that is
    going to be presented for the facts of the case with Mr. Baig and Ive
    indicated, and weve had lengthy discussions, I'm certainly content that
    everything that is going to be presented is admissible



[DEFENCE COUNSEL]: And just to confirm again,
    Your Honour, Mr. Baig has reviewed all of this [exhibits admitted] and was
    certainly content that it be deemed admissible on the sentencing hearing.

[24]

It is clear from the above excerpt that the trial
    judge was very thorough, and that Mr. Baig and his trial counsel were both very
    responsive to the trial judges inquiry.

[25]

I adopt the words of Carthy J.A. in
R. v.
    Closs
(1998), 105 O.A.C. 392 (C.A.), at para. 8:

It is my view that such orders should be made
    only in exceptional circumstances where there is a real concern that an
    injustice may have occurred. There are many negative consequences of having a
    criminal conviction and it cannot be expected that these will all be explained
    to an accused prior to a plea; nor should the convicted person expect the
    judicial system to provide a fresh start when a surprising consequence of the
    conviction is encountered. We must have finality except where the demands of
    justice dictate otherwise.

[26]

Recently, the majority of the Supreme Court in
R.
    v. Wong
, 2018 SCC 25, [2018] 1 S.C.R. 696 reiterated this principle, at
    para. 65:

The onus is on a person who appeals a
    conviction on the ground of an invalid plea to show that the plea was in fact
    invalid:
T. (R.)
, at p. 519. The integrity of the plea bargaining
    process and the certainty and order which are essential to the criminal process
    depend on the finality of guilty pleas. The benefits associated with guilty
    pleas will be lost and the very functioning of the criminal justice system will
    be threatened if such pleas are set aside lightly. Accordingly, there is a
    considerable public interest in preserving the finality of guilty pleas, and
    the burden of showing that a guilty plea was invalid falls to the accused.

[27]

Having reviewed the record in this case, I am
    not satisfied that Mr. Baig has established that he formed a
bona fide
intention in the required period, that there is a reasonable explanation for
    the delay, or that there is any merit to the proposed appeal. Furthermore,
    there is no real concern that an injustice may have occurred. In contrast,
    granting the requested motion after this significant length of time could cause
    real prejudice to the deceaseds family, who will be forced to re-live the
    ordeal of her death and the death of her unborn child all over again, and be
    denied closure to this very tragic and sad chapter of their lives.

[28]

Accordingly, the motion is denied.

M.
    Tulloch J.A.


