Court of Appeal for Ontario

Citation: R. v. Chen, 2016 ONCA 132

Date: 20160211

Docket: M46049

Huscroft J.A. (In Chambers)

Between

Her Majesty the Queen

Respondent

and

Fang Chen

Applicant

Counsel:

Erika Chozik, for the moving party Chen

Jeanette Gevikoglu, for the respondent

Heard: February 9, 2016

Endorsement

[1] Fang Chen ("the Applicant") has been a permanent resident of Canada since 2007. On January 15, 2010, she plead guilty and was convicted of conspiracy to produce marijuana; failure to comply with recognizance; theft of gas/electricity; theft over $5,000; and possession of marijuana for purposes of trafficking.

[2] The applicant spent 135 days in pre-trial custody and received a six-month conditional sentence concurrent on all of the charges followed by one year of probation. She was made subject to a ten year weapons prohibition pursuant to s. 109 of the Criminal Code and a DNA Order. In addition, she forfeited all of her real property and personal property at her home, her car, and $25,000 cash bail.

[3] The applicant's husband received a conditional sentence of one year after having served 45 days. The applicant says that he was the subject of a removal order but, in 2012, was permitted to remain in Canada following an appeal to the Immigration Appeal Division.

[4] The applicant applies for an extension of time to file notice of appeal. She does so because of immigration consequences that have arisen.

[5] Following completion of her conditional sentence and probation, the applicant travelled to China. On her return to Canada in June 2012, she was detained and advised that she may be referred for an inadmissibility hearing. In December 2013, the applicant received a Notice to attend for an interview. She retained an immigration lawyer and attended the interview in January 2014. In December 2015 she was informed that a report had been made against her for serious criminality and organized criminality, and that her case had been referred for an admissibility hearing. That hearing is set to take place April 15 and 17, 2016, and it is a prelude to the issuance of a removal order.

[6] The decision to grant an extension of time to file notice of appeal is discretionary in nature. A number of relevant considerations were canvassed by this court in R. v. Ansari, 2015 ONCA 891 at paras. 22-27 and I will not repeat them here. The overarching consideration, as set out in this court's decision in R. v. Menear (2002), 2002 CanLII 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), is whether the applicant can demonstrate that the interests of justice require the grant of an extension of time.

[7] The applicant raises several arguments concerning the merits of her proposed appeal.

[8] She says that she plead guilty in ignorance of any possible immigration consequences and would not have done so had she been aware. She says that she does not speak English; that she met with her lawyer on only one occasion, on the day of her guilty plea; that she was not informed by her lawyer of possible immigration consequences; and that the trial judge was unaware of the possibility that she might be subject to immigration consequences as a result of her conviction and sentence. The applicant says that had she known of the possible collateral consequences, she would have appealed both conviction and sentence right away.

[9] If her motion is granted, the applicant proposes to argue on appeal that she was not properly advised by her lawyer (against whom she is considering to make a claim of ineffective assistance of counsel); that her guilty plea was not valid because the facts as read in by the Crown failed to establish the necessary factual foundation for a finding of guilt for any of the offences; and that her lawyer was in a position of conflict of interest because he represented her husband as well as her, amongst other grounds.

[10] In my view, the unique circumstances of this case justify the exercise of the court's discretion to extend time to file notice of appeal.

[11] There is no doubt that the applicant did not form the intention to appeal conviction or sentence within 30 days of pronouncement. However, the applicant cannot reasonably be faulted for failing to take action before now. Although she was informed in 2012 of the possibility that the government may commence proceedings to remove her, she was not interviewed for approximately 18 months. She retained an immigration lawyer at that time. A further 23 months elapsed before she was informed that her case had been referred for an admissibility hearing. Upon receipt of the Notice to Appear for an admissibility hearing in December 2015, she acted promptly in retaining criminal defence counsel.

[12] I need not get into the merits of the proposed appeal. For present purposes it is enough to conclude that, in all of the circumstances, there are arguable grounds of appeal and it is appropriate to exercise the court's discretion to extend the time despite the considerable passage of time since conviction and sentence.

[13] The motion is granted. The applicant has until February 18 to file Notice of Appeal.

[14] If the applicant is to pursue an ineffective assistance of counsel claim, she should contact the appeal scheduling coordinator after Notice is filed.

"Grant Huscroft J.A."