Court File and Parties

COURT FILE NO.: 19-40000022-00AP DATE: 2019-05-21 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – CHINEDU ONWUBOLU

COUNSEL: C. Sweeny, for the Crown B. Weingarten, for the Applicant

HEARD: 16 April 2019

BEFORE: S.A.Q. Akhtar J.

Ruling on Application Seeking an Extension of Time to Appeal a Summary Conviction Judgment

Background Facts

[1] The applicant applies for an extension of time to file a notice of appeal against sentence.

[2] The applicant was born in Nigeria on 24 February 1993 and immigrated to Canada, with his family, on 20 June 2008 when he was 15 years of age.

[3] On 22 August 2014 the applicant pleaded guilty to two counts of assault, assault with intent to resist arrest, failure to comply with a recognizance, assault police officer, theft under $5000, and escape lawful custody.

[4] The offences related to events on different dates. The two assaults were on women who were strangers to the applicant. The facts of the offences are worth recounting.

[5] On 16 February 2013 the victim boarded a TTC bus. The applicant tapped her on the shoulder and tried to engage her in conversation. When his attempts were rebuffed, the applicant spat at the victim repeatedly and proceeded to direct a string of profanities at her calling her a “fucking bitch, slut, cunt, dumb whore”. As the victim attempted to leave, the applicant spat on her and attempted to pursue her, but was held back by one of his friends. When officers arrived the applicant resisted arrest, kicking one officer in the leg and spitting on another.

[6] On 18 September 2013 the applicant, whilst intoxicated, entered the lobby of a residence at York University in Toronto. He approached the victim, a female whom he had never met, and hugged her from behind. The victim pushed the applicant away and her boyfriend intervened, telling the applicant to leave. The applicant continued to poke the victim’s back seeking to incite a reaction from her boyfriend. A fight ensued. The applicant lunged at the boyfriend, choking him with both hands before fleeing the scene. Police were called, the applicant was identified, and arrested.

[7] As a result of the pleas and following a joint submission on sentence, on 14 October 2014 Grossman J. of the Ontario Court of Justice imposed a 12 month conditional sentence with 18 months’ probation to run concurrently on each of the counts. As part of his conditional sentence, the applicant was required to remain in his residence under house arrest for the first six months of the sentence and was forbidden to be on York University property for the duration of the entire sentence.

[8] On 14 January 2015 the applicant approached a woman walking to a bus stop located on York University campus and propositioned her for sex. After the woman refused, the applicant called her a “slut” and forced her to take his number, telling her to call him. Fearful for her safety, the complainant agreed to the applicant’s demands, boarded a bus, and then called the police who arrested the applicant.

[9] On 23 January 2015 the applicant admitted breaching Grossman J.’s conditional sentence order by failing to remain in his residence and entering York University campus. Grossman J. terminated the conditional sentence and committed the appellant to serve the remainder of his sentence, just over eight months, in custody.

The Immigration Issues

[10] After the applicant was sentenced on 24 October 2014, the Canada Border Services Agency (CBSA) filed a report concluding that the applicant was inadmissible on “serious criminality” grounds pursuant to s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. One can qualify for the “serious criminality” grounds if a court imposes on them a sentence of imprisonment exceeding six months.

[11] At the time of the CBSA’s report, a conditional sentence constituted a period of imprisonment under the IRPA and therefore fell into the “serious criminality” definition.

[12] As a consequence, on 24 November 2016 the applicant appeared before the Immigration Division of the Immigration and Refugee Board of Canada (the Board) for an admissibility hearing. The Board found him inadmissible and ordered his deportation.

[13] The applicant sought to appeal the Board’s order. However, s. 64(2) of the IRPA acts as a statutory bar to appeals of removal orders based on serious criminality where the sentence imposed is six months or more. On 16 August 2017 the Board held that it had no jurisdiction to hear the appeal because the conditional sentence order exceeded six months.

[14] On 19 October 2017 the Supreme Court of Canada released its judgment in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289. The decision clarified that conditional sentences did not constitute terms of imprisonment for the purposes of the IRPA. The ruling meant that the applicant was no longer in the “serious criminality” scheme and was no longer “inadmissible” under the IRPA regime. Further, the applicant was no longer barred from appealing the Board’s removal order.

[15] On 31 January 2018 the applicant applied for an extension of time to file a notice of appeal of the Board’s earlier decision. Initially, the Minister for Public Safety and Emergency Preparedness filed no response to the application. However, on 23 January 2019, after the Immigration Appeal Division of the Immigration and Refugee Board of Canada (IAD) allowed an extension for a hearing, the Minister agreed that the deportation order made against the applicant was no longer valid in light of Tran.

[16] However, on 24 January 2019 the Minister wrote to the applicant’s immigration counsel explaining that he had not realised that the conditional sentence had been breached and terminated, resulting in the applicant serving the remaining portion in custody. Accordingly, the Minister decided that the applicant had no right to an IAD appeal as he had been sentenced to a term of imprisonment exceeding six months. On 28 January 2019 the IAD reached the same conclusion and, as a result, found that it had no jurisdiction to hear the appeal based on s. 64(2) of the IRPA. The termination of the conditional sentence and the applicant’s eight months’ imprisonment constituted a period of imprisonment in excess of six months.

Positions

[17] The applicant seeks an order extending the time within which to file a notice of appeal pursuant to Rule 40.03 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7. If an extension is granted, his primary ground of appeal would be that the sentencing judge failed to consider potential immigration consequences when terminating the conditional sentence and committing the applicant to serve eight months in custody.

[18] The Crown opposes the extension of time, arguing that the applicant has failed to act reasonably and expeditiously in the circumstances.

Legal Principles

[19] Pursuant to Rule 40.05 of the Rules, a party has 30 days to appeal from the order that is challenged. Rule 40.03 of the Rules allows a judge to extend or abridge that deadline upon application.

[20] In R. v. Closs (1998), 105 O.A.C. 392 (C.A.), Carthy J.A., in chambers, at para. 8, commented that orders extending the time to appeal were rare:

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.

[21] In R. v. Menear (2002), 162 C.C.C. (3d) 233 (Ont. C.A.), at para. 20, the court identified three factors to consider when deciding whether an extension of time is justified:

1. Has the applicant shown a bona fide intention to appeal within the appeal period?
2. Has the applicant accounted for or explained the delay?
3. Is there merit to the proposed appeal?

[22] This list is not exhaustive and the court:

“…may take into consideration other factors such as whether the consequences of the conviction are out of all proportion to the penalty imposed, whether the Crown will be prejudiced and whether the applicant has taken the benefit of the judgment. In the end, the main consideration is whether the applicant has demonstrated that justice requires that the extension of time be granted”: Menear, at para. 21.

Should an Extension be Granted?

(1) Has the applicant shown a bona fide intention to appeal within the appeal period?

[23] The applicant concedes that the first criterion specified in Menear has not been met: he did not express an intention to appeal within the appeal period. He argues that this is because the ground of appeal that he relies upon did not exist until after the Supreme Court of Canada’s decision in Tran.

[24] However, the applicant argues that the remaining criteria are satisfied. In addition, he insists that the consequences of the sentence are out of proportion to the penalty imposed. For the following reasons, I disagree.

(2) Has the applicant accounted for or explained the delay?

[25] First, the applicant seeks to justify the delay in appealing - over four years - based upon the various changes in the law. He says that since 28 January 2019, the date on which the IAD held it had no jurisdiction to hear the appeal of the removal order, he has acted expeditiously in filing the application to seek an extension.

[26] The difficulty with this argument is that the applicant’s conduct must be scrutinised from the date of sentence rather than the date that the IAD declined to hear his appeal.

[27] When the applicant was originally sentenced, the Supreme Court of Canada had already decided R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739. The Supreme Court found that a sentencing judge had the discretion to reduce an otherwise fit sentence below the six month mark to preserve a deportee’s right to launch an appeal to the IAD.

[28] As noted, prior to Tran, a conditional sentence was, for immigration purposes, a period of imprisonment. Notwithstanding this legal position and the law set out in Pham, the applicant pleaded guilty to a set of serious offences and agreed to receive a conditional sentence in a joint submission with the Crown. In other words, immigration consequences did not appear to be an issue for the applicant at the sentencing hearing.

[29] At the conditional sentence breach hearing, the applicant admitted the breach and sought a one month period of imprisonment. The applicant did not mention immigration consequences to the court in his submissions even though Pham was now settled law and the applicant would have been well aware of the judge’s discretion in reducing the imprisonment period.

[30] Again, it can only be assumed that immigration consequences were of no concern to the applicant at the time. The applicant did not rely on immigration consequences and did not appeal the conditional sentence termination or the imprisonment length.

[31] On 24 November 2016 the applicant knew he was being deported but did not launch an appeal. Nor did he do so after the IAD denied his request to appeal on 16 August 2017.

[32] Despite having numerous opportunities to do so, the applicant failed to exercise his right to appeal the sentence resulting from the original plea or the subsequent termination of the conditional sentence order. He has offered no explanation for his failure to do so.

[33] Nor is it an answer that the law changed after the sentence was imposed. The law, as it stood at the time of sentencing, was sufficient to make the argument that the applicant now seeks to make.

[34] What the applicant seeks to do is to use the change in the law as a mechanism to reinsert himself back into the appeal system.

[35] In R. v. Wigman, 1985 SCC 1, [1987] 1 S.C.R. 246, the Supreme Court of Canada adopted the "res judicata" rule to appropriately limit the retroactive application of judicial decisions which alter the law. The accused was charged with attempted murder and convicted. However, before he was able to exhaust all of his appellate rights, the Supreme Court of Canada released its decision in R. v. Ancio, 1984 SCC 69, [1984] 1 S.C.R. 225, which reshaped the law of mens rea in relation to the attempted murder offence. The Supreme Court in Wigman held that the accused was entitled to appeal on the basis of that change but held that the retroactive application of judicial decisions must be limited to those accused “still in the judicial system”. As the court observed, at pp. 257-8:

The appropriate test is whether or not the accused is still in the judicial system.... Finality in criminal proceedings is of the utmost importance but the need for finality is adequately served by the normal operation of res judicata: a matter once finally judicially decided cannot be relitigated. Thus a person convicted under Lajoie will not be able to reopen his or her case, unless, of course, the conviction is not final. In the Reference re Manitoba Language Rights, 1985 SCC 33, [1985] 1 S.C.R. 721, at p. 757, the Court observed that res judicata would even preclude the reopening of cases decided by the courts on the basis of constitutionally invalid laws. The res judicata principle would apply with at least as much force to cases decided on the basis of subsequently overruled case law.

[36] In R. v. Thomas, 1990 SCC 141, [1990] 1 S.C.R. 713, at p. 716, the Court provided guidance as to the meaning of “in the judicial system” for the purposes of the res judicata rule. The Court held that to be in the judicial system one of the following must apply:

1. An appeal has been launched to the Supreme Court of Canada;
2. An application for leave has been made within the required time; or
3. An application for an extension of time is granted based on the criteria that normally apply in such cases.

[37] The court added, at p. 716, that “in view of the practical necessity of having some finality in the criminal process, the applicant should not artificially be brought into the system”.

[38] See also: R. v. Sarson, 1996 SCC 200, [1996] 2 S.C.R. 223.

[39] The applicant has been out of the judicial system for over three years. As previously described, he took no steps to appeal the sentence both when he was ordered deported and when he was told that he had no right to appeal that deportation order. The application to extend the time to appeal based on the change in the law announced in Tran is just the form of artificiality prohibited by the Supreme Court in Thomas.

(3) Is there merit to the proposed appeal?

[40] There is little merit to the applicant’s appeal.

[41] As noted, the principle of res judicata would appear to bar the re-litigation of the sentence imposed by the judge.

[42] There is also the question of the sentence itself. These offences were very serious and may well have warranted a significant custodial period. The conditional sentence imposed could be viewed as one that fell on the lenient end of the spectrum. That leniency was lost on the applicant who, within three months of being sentenced, breached the conditional sentence order by targeting another woman on the same campus that he had been barred from entering. It cannot be said that the judge’s order to terminate the conditional sentence and order the remaining portion to be served in custody is unfit in light of the seriousness of the breach and the judge’s finding that he did not believe the applicant’s explanation at the hearing.

[43] Finally, it is difficult to understand how the applicant could argue that the sentencing judge was unaware of the immigration consequences of the sentencing when, as noted, those consequences did not appear to have been of any concern to the applicant and only appeared to become an issue when the decision in Pham was released.

[44] I agree with the Crown that this cannot be seen to be a case of “exceptional circumstances” as required in Closs.

[45] I find that it is not in the interests of justice to grant an extension of time to appeal and the application is dismissed.

S.A.Q. Akhtar J. Released: 21 May 2019

COURT FILE NO.: 19-40000022-00AP DATE: 20190521 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – CHINEDU ONWUBOLU RULING ON APPLICATION SEEKING AN EXTENSION OF TIME TO APPEAL A SUMMARY CONVICTION JUDGMENT S.A.Q. Akhtar J.