Her Majesty the Queen v. Ansari

[Indexed as: R. v. Ansari]

Ontario Reports

Court of Appeal for Ontario,

Strathy C.J.O., Watt and G.J. Epstein JJ.A.

December 15, 2015

128 O.R. (3d) 511 | 2015 ONCA 891

Case Summary

Criminal law — Sentence — Appeal — Extension of time — In 2010 accused sentenced to one day in jail and three years' probation in addition to pre-sentence custody for terrorism offence — Accused being Canadian citizen — Strengthening Canadian Citizenship Act coming into force almost four years after applicant was sentenced — Act applying retrospectively — Applicant notified that minister might revoke his Canadian citizenship as result of his conviction and sentence — Accused not forming intention to appeal within 30 days of sentence — Applicant granted extension of time within which to apply for leave to appeal sentence — Applicant explaining delay in seeking leave to appeal — Interests of justice favouring extension — Collateral consequence of sentence being grave — Appeal not devoid of merit — Strengthening Canadian Citizenship Act, S.C. 2014, c. 22.

In 2010, the applicant was sentenced to one day in jail followed by three years' probation in addition to pre-sentence custody, the functional equivalent of a sentence of six years and five months, for participating in the activities of a terrorist group. Almost four years later, the Strengthening Canadian Citizenship Act came into force. The Act, which applied retrospectively, amended the Citizenship Act, R.S.C. 1985, c. C-29 to permit the Minister of Citizenship and Immigration to [page512] revoke the citizenship of any Canadian citizen convicted of a terrorism offence and sentenced to a term of imprisonment of at least five years. When he was notified in July 2015 that the minister might revoke his Canadian citizenship, the applicant applied promptly for an order extending the time within which to serve and file an application for leave to appeal the sentence.

Held, the application should be granted.

The interests of justice favoured the extension. The applicant's failure to seek leave to appeal sentence within 30 days was easily explained. The collateral consequences -- loss of Canadian citizenship -- were of such magnitude as to render it unjust to deprive the applicant of the opportunity to seek a variation of the sentence to remove himself from the reach of the amendment. It could not be said that the appeal was devoid of merit. The variation sought -- to a sentence under five years -- was not so far removed from the sentence imposed as to be outside the permissible range of variation.

R. v. Pham, [2013] 1 S.C.R. 739, [2013] S.C.J. No. 100, 2013 SCC 15, 441 N.R. 375, 2013EXP-916, J.E. 2013-500, 76 Alta. L.R. (5th) 206, 99 C.R. (6th) 219, 293 C.C.C. (3d) 530, 357 D.L.R. (4th) 1, 544 A.R. 40, 105 W.C.B. (2d) 488, consd

Other cases referred to

R. v. Ansari, [2015] O.J. No. 4355, 2015 ONCA 575, 337 O.A.C. 207; R. v. Bahadur, [2010] S.J. No. 508, 2010 SKCA 103, 259 C.C.C. (3d) 81, 91 Imm. L.R. (3d) 12, 359 Sask. R. 260, 90 W.C.B. (2d) 591; R. v. Kanthasamy, [2005] B.C.J. No. 517, 2005 BCCA 135, 210 B.C.A.C. 54, 195 C.C.C. (3d) 182, 28 C.R. (6th) 194, 64 W.C.B. (2d) 227; R. v. Leung, [2004] A.J. No. 129, 2004 ABCA 55, 354 A.R. 2, 60 W.C.B. (2d) 519; R. v. Menear, 2002 CanLII 7570 (ON CA), [2002] O.J. No. 244, 155 O.A.C. 13, 162 C.C.C. (3d) 233, 52 W.C.B. (2d) 389 (C.A.); R. v. Roberge, [2005] 2 S.C.R. 469, [2005] S.C.J. No. 49, 2005 SCC 48, 337 N.R. 389, J.E. 2006-618, 269 Sask. R. 37, 66 W.C.B. (2d) 425; R. v. Truong, [2007] A.J. No. 383, 2007 ABCA 127, 404 A.R. 277, 73 W.C.B. (2d) 3

Statutes referred to

Citizenship Act, R.S.C. 1985, c. C-29, s. 10 [as am.]

Criminal Code, R.S.C. 1985, c. C-46, ss. 684, 678(2), 732.2(3)

Strengthening Canadian Citizenship Act, S.C. 2014, c. 22

Rules and regulations referred to

Criminal Appeal Rules, SI/93-169, rules 4(2), 7

APPLICATION for an order extending time for serving and filing an application for leave to appeal the sentence imposed by F. Dawson J., sitting with a jury, [2010] O.J. No. 6371, 2010 ONSC 5455 (S.C.J.).

John Norris and Breese Davies, for applicant.

Croft Michaelson, Q.C., for respondent.

[1] BY THE COURT: -- Asad Ansari is a Canadian citizen. On June 23, 2010, a jury found him guilty of participating in the activities of a terrorist group. On October 4, 2010, the trial judge sentenced him to one day in jail to be followed by three years' [page513] probation. In light of the time he had already spent in pre-sentence custody and the then prevailing rule of thumb about credit for it, the trial judge considered the sentence imposed to be the functional equivalent of a sentence of six years and five months. At trial, Crown counsel did not seek any additional term of imprisonment beyond the period reflected in the pre-trial custody credit.

[2] Asad Ansari appealed his conviction. He did not seek leave to appeal his sentence, the carceral component of which he had served on the day the trial judge imposed the sentence.

[3] On August 19, 2015, this court dismissed Asad Ansari's appeal from conviction [[2015] O.J. No. 4355, 2015 ONCA 575].

The Application

[4] Asad Ansari (the "applicant") now applies for an order extending the time within which he can serve and file a notice of application for leave to appeal the sentence imposed at trial. He also seeks an order under s. 684 of the Criminal Code, R.S.C. 1985, c. C-46 appointing counsel to act on his behalf on this application, and on the appeal from sentence if the extension of time he requests is granted.

[5] At the outset of the hearing in this court, the applicant modified the relief sought on the application. He pursued his application to extend the time within which to serve and file a notice of application for leave to appeal sentence, but asked that the application for an order under s. 684 of the Criminal Code be adjourned sine die for hearing before a single judge if required.

[6] At the conclusion of oral argument, the chief justice delivered brief reasons extending for ten days the time within which Mr. Ansari could serve and file his notice of application for leave to appeal sentence. The chief justice adjourned the s. 684 application sine die to be heard by a single judge of this court, if required. What follows are the reasons the chief justice said would be provided to explain the orders made.

The Application for an Extension of Time

[7] It is common ground that Asad Ansari did not form the intention to appeal the sentence imposed upon him within 30 days of its pronouncement.

The essential background

[8] On June 19, 2014, nearly four years after the applicant was sentenced, the Strengthening Canadian Citizenship Act, S.C. 2014, c. 22 received royal assent. Among other things, the Act amended s. 10 of the Citizenship Act, R.S.C. 1985, c. C-29 to [page514] permit the Minister of Citizenship and Immigration to revoke the citizenship of any Canadian citizen convicted of a terrorism offence and sentenced to a term of imprisonment of at least five years. The legislation came into force on May 28, 2015, and applied to convictions entered and sentences imposed both before and after that date.

[9] In early July 2015, the applicant received notice under the Citizenship Act that the minister may revoke his citizenship as a result of his conviction and sentence. The applicant was afforded an opportunity to make written submissions to the minister.

[10] On receipt of the notice, the applicant sought legal advice. He joined a constitutional challenge in the Federal Court claiming that parts of the Citizenship Act, including the minister's authority to revoke citizenship on the basis of a conviction of a terrorism offence, are unconstitutional.

[11] The applicant also instructed counsel to seek an order extending the time within which to serve and file a notice of application for leave to appeal the sentence imposed upon him.

The arguments on the application

[12] The applicant emphasizes the discretionary nature of the decision to grant an extension of time. The overarching consideration is whether the interests of justice warrant the extension.

[13] The applicant readily acknowledges that he did not form the intention to appeal sentence within 30 days of its imposition. The carceral component of the sentence ended the day it was imposed. But he took immediate steps to do so once notified of the minister's intention. His response included not only an attack on the sentence imposed, but also a challenge to the constitutionality of the legislation invoked by the minister.

[14] The applicant says that the proposed appeal has merit. The collateral consequences of a sentence require consideration in imposing a fit sentence, as well as on appellate review of the fitness of a sentence imposed at trial. Appellate courts have authority to intervene to adjust the sentence, even after its completion, if the sentencing judge has failed to consider its collateral consequences. It is all the more so when those consequences arise because of a statutory amendment that has retrospective effect.

[15] The respondent opposes the extension of time the applicant seeks.

[16] The respondent emphasizes the need for finality in criminal proceedings. Extensions of time are exceptional. They require extraordinary circumstances that reveal a real concern that an injustice may occur or be perpetuated in the absence of an extension. [page515]

[17] A consideration and balancing of the relevant factors belies any claim that the justice of the case warrants the extension sought. Nothing was overlooked when the sentence was imposed that gives any reason to doubt the fitness of that sentence. The applicant's real complaint is with the retrospective effect of the amendment. But that issue will occupy another court at another time, not a court asked to review the fitness of sentence.

[18] In addition, the respondent continues, the applicant has failed to demonstrate any merit in the proposed appeal. The reduction sought here -- to a sentence under five years -- would distort the sentencing process and result in the imposition of an artificial and inappropriate sentence.

The governing principles

[19] Section 678(2) of the Criminal Code authorizes a panel or judge of a court of appeal to extend the time within which notice of an application for leave to appeal may be given. Rule 7 of the Criminal Appeal Rules, SI/93-169 permits an extension to be granted before or after the expiration of the 30-day period prescribed by rule 4(2). Neither the Criminal Code nor the Criminal Appeal Rules frames a test to be applied or describes any factors to be considered in deciding whether the extension should be granted.

[20] A few brief points emerge from the authorities.

[21] First, the authority to grant or refuse an extension of time is discretionary. No party is entitled to an extension of time as of right: R. v. Roberge, [2005] 2 S.C.R. 469, [2005] S.C.J. No. 49, 2005 SCC 48, at para. 6; R. v. Menear, 2002 CanLII 7570 (ON CA), [2002] O.J. No. 244, 162 C.C.C. (3d) 233 (C.A.), at para. 20.

[22] Second, relevant factors that may be considered when an extension of time is sought include, but are not limited to

(i) whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposite party within the time prescribed for filing the applicable notice;

(ii) whether the applicant has accounted for or explained the delay in filing the notice; and

(iii) whether the proposed appeal has merit: Menear, at para. 20.

[23] Depending on the circumstances of the application, other factors may also influence the decision. The length of the delay. Prejudice to the respondent. The diligence or inattentiveness of counsel. Whether the applicant has taken the benefit of the [page516] judgment: Menear, at para. 21; Roberge, at para. 6. In the final analysis, the overarching consideration is whether the applicant has demonstrated that the justice of the case requires that the extension of time be granted: Menear, at para. 21.

[24] Third, the collateral consequences of a sentence are a relevant factor for a sentencing court to consider in determining a fit sentence, one that gives effect to the fundamental principle of sentencing -- that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Pham, [2013] 1 S.C.R. 739, [2013] S.C.J. No. 100, 2013 SCC 15, at para. 11. The relevance of collateral consequences may also flow from the sentencing objective of assisting in the rehabilitation of the offender: Pham, at para. 11.

[25] Collateral consequences of a sentence are any consequences of the impact of the sentence on the particular offender. Such consequences may include those associated with deportation and immigration status. Variation of a sentence to avoid collateral consequences must not be so great, however, that the sentence offends the fundamental principle of proportionality: Pham, at paras. 11, 18.

[26] Fourth, extensions of time to appeal sentence have been granted where the trial judge was unaware of the collateral consequences of the sentence she or he imposed, as well as in instances in which the law changed after sentence to include or increase collateral consequences: R. v. Leung, [2004] A.J. No. 129, 2004 ABCA 55, 354 A.R. 2, at para. 3; R. v. Bahadur, [2010] S.J. No. 508, 2010 SKCA 103, 359 Sask. R. 260, at para. 13; R. v. Truong, [2007] A.J. No. 383, 2007 ABCA 127, 404 A.R. 277, at para. 13.

[27] Finally, extensions of time have been granted on the basis of disproportionate collateral consequences after the sentence had been served or where the carceral portion of it was about to expire: Leung, at para. 6; R. v. Kanthasamy, [2005] B.C.J. No. 517, 2005 BCCA 135, 195 C.C.C. (3d) 182, at para. 10.

The principles applied

[28] Several factors persuade us that we should extend the time within which the applicant can serve and file a notice of application for leave to appeal sentence.

[29] First, the interests of justice favour the extension. To refuse the order, a substantial injustice may occur, wrought by legislation not in force or within the reasonable contemplation of any of the participants in the trial process, but made retrospective by an enactment passed years later. [page517]

[30] Second, the failure of the applicant to seek leave to appeal sentence within 30 days of its imposition is easily explained. The carceral portion of his sentence expired the day sentence was imposed. And an appeal of the length or discretionary terms of the probation order would risk dismissal for failure to invoke s. 732.2(3) of the Criminal Code.

[31] Third, the collateral consequences -- loss of Canadian citizenship -- are of such magnitude as to render it unjust to deprive the applicant of the opportunity to seek a variation of the sentence to remove himself from the reach of the amendment.

[32] Fourth, when notified by the minister, the applicant and his counsel acted diligently to pursue two avenues to achieve a result that would remove the applicant from the class of persons subject to the authority of the minister to strip a citizen of Canadian citizenship. The applicant sought this extension of time in order to ask the court to reduce the imputed sentence to less than five years. And he challenged the constitutionality of the legislation that provided the minister with the authority to strip Canadians of their citizenship.

[33] Fifth, it cannot be said that the appeal is devoid of merit. The collateral consequences of a sentence are a relevant factor for both trial and appellate courts to consider in imposing or reviewing the imposition of a sentence to ensure its conformity with the principle of proportionality. The variation sought is not on its face so far removed from the sentence imposed to be outside the range of variation permissible under Pham.

[34] It is for these reasons that we granted the applicant an extension of time within which to serve and file his notice of application for leave to appeal sentence.

The S. 684 Application

[35] In accordance with submissions of counsel, the application under s. 684 of the Criminal Code is adjourned sine die to be reinvigorated if required and scheduled for hearing before a single judge in chambers.

Conclusion

[36] For these reasons, we granted the application for an extension of time to file a notice of application for leave to appeal sentence. The s. 684 application is adjourned sine die for hearing before a single judge if required.

Application granted.

[page518]

End of Document