Court of Appeal for Ontario
Date: 2017-12-05
Docket: M48356 (C61724)
Judges: Simmons, van Rensburg and Brown JJ.A.
Between
Her Majesty the Queen Respondent
and
Fang Chen Appellant
Counsel
For the Appellant: Erika Chozik and Caitlin Pakosh
For the Respondent: Kevin Wilson and Kiran Gill
Heard
October 18, 2017
On Appeal
From the convictions entered by Justice Stephen J. Hunter of the Ontario Court of Justice on January 15, 2010, and from the sentence imposed on January 15, 2010.
By the Court
Introduction
[1] In January 2010, the appellant and her common law spouse, Liang Chen, pleaded guilty on the same day to four offences relating to several marijuana grow-operations. The appellant also pleaded guilty to one count of breach of recognizance. In addition to 135 days of time served, the appellant was sentenced to a six-month conditional sentence with no house arrest plus 12 months' non-reporting probation. Various forfeiture orders were also made.
[2] The appellant is a Chinese citizen. She came to Canada in 2005 and became a permanent resident in 2007. In February 2016, after being informed that her 2010 convictions make her inadmissible to Canada and that she was being referred for an admissibility hearing, the appellant sought and was granted an extension of time to appeal.
[3] On appeal, the appellant submits that her guilty pleas were invalid because she was uninformed of the potential immigration consequences and because the facts read in did not support her pleas. In addition, she asserts that the lawyer who represented both her and her husband on the guilty pleas, Randall Barrs, was in a conflict of interest. Further, she claims she was deprived of effective assistance of counsel because Mr. Barrs failed to review the Crown's disclosure with her, failed to obtain her version of events, and failed to advise her of available defences.
[4] The appellant also seeks leave to appeal sentence. She says the sentence imposed is unfit because the sentencing judge failed to consider its immigration consequences. Further, she claims that the forfeiture orders were grossly disproportionate to any culpability and that there was no evidence the forfeited property was proceeds of crime.
[5] On consent, the parties have filed fresh evidence to address the issues on appeal. However, the appellant moves to strike Mr. Barrs' affidavit, filed by the Crown. She asserts that Mr. Barrs failed to fulfill his responsibilities under the Procedural Protocol regarding allegations of ineffective assistance of counsel, was unresponsive on critical issues, and refused to answer proper questions.
[6] For the reasons that follow, we decline to strike Mr. Barrs' affidavit, we dismiss the conviction appeal and we deny leave to appeal sentence.
The Guilty Plea and Sentencing Proceeding
[7] The appellant was originally charged with 14 offences arising from her alleged participation in a conspiracy involving 11 other accused, including her husband, and several marijuana grow-operations. On January 15, 2010, she and her husband pleaded guilty to four offences: conspiracy to produce marijuana; possession of marijuana for the purpose of trafficking; theft of electricity; and theft of water. The appellant also pleaded guilty to breach of recognizance. The other charges pending against the appellant were withdrawn.
[8] The appellant and her husband were initially released on bail following their arrests in June 2009. The appellant was detained in custody on September 1, 2009 after being arrested at her place of employment while not in the presence of her surety, contrary to the terms of her recognizance. Her husband retained Mr. Barrs shortly thereafter. The guilty pleas were entered on January 15, 2010 after the trial Crown made a time-limited sentencing offer to the appellant and her husband through Mr. Barrs.
[9] At the outset of the guilty plea proceeding, the sentencing judge noted that the offences were "indictable matters" and asked if the appellant and her husband waived the formal putting of an election. Mr. Barrs responded that they did and further that the charges, the effect of pleading to an indictable offence and the position of counsel had been explained to them. He also stated that he had signed directions and that the appellant and her husband "understand that sentence is within Your Honour's discretion."
[10] The appellant was assisted by an interpreter on the guilty pleas. Nonetheless, she responded "guilty" when asked how she pleaded to the first charge on which she was arraigned.
[11] The facts read in by the trial Crown on the joint guilty pleas indicated that the police had found grow-operations, or dismantled grow-operations, at several residential addresses in the Belleville-Kingston area. Further, the purchase of four of the locations had been brokered by a co-accused real estate agent. And the appellant's husband had arranged for a nominee owner to attend one of the locations prior to the purchase and had also arranged for the nominee owner to open the bank account from which the mortgage payments were paid.
[12] The appellant's husband was observed at three of the addresses as well as at a Belleville storage locker where marijuana plant material and grow equipment were found. He and two co-accused rented the storage locker. Receipts for building materials associated with the grow-operations were found in the closet of a bedroom occupied by the appellant and her husband at 30 Amanda Drive, Toronto – a house owned by the appellant.
[13] Police arrested the appellant, her husband, and two co-accused at 30 Amanda Drive – which the trial Crown asserted was "the base of operations for this bunch." That address also housed vehicles that had been observed by officers in Belleville. One of the vehicles, a minivan, was registered to the appellant.
[14] The grow scheme was characterized as "extremely sophisticated" and as involving theft of hydro totaling $53,168.50, theft of water totaling about $14,730.00, and about 24,000 plants. Further, the trial Crown noted that about seven residential properties in Belleville, Kingston, and Brighton were involved in the conspiracy, with equities totaling about $1,000,000.
[15] In sentencing submissions, although she had previously sought an 18-month conditional sentence for the appellant and a two-year conditional sentence for the appellant's husband, the trial Crown chose to "cap" herself at one year for both, along with various forfeiture orders. The trial Crown also noted that the appellant's pre-trial custody had been "very hard time".
[16] In his sentencing submissions, Mr. Barrs explained that the appellant did not speak English and was alienated from a co-accused also in custody, such that her pre-trial custody had essentially amounted to solitary confinement. Mr. Barrs confirmed that both the appellant and her husband were permanent residents of Canada. He also noted that both had agreed to forfeit a substantial amount of money and property and submitted that should be considered in mitigation of sentence.
[17] Before Mr. Barrs could complete his sentencing submissions, the sentencing judge expressed an inclination impose a six-month conditional sentence with no house arrest. Accordingly, in addition to time served of 135 days, the appellant was sentenced to a six-month conditional sentence with no house arrest plus 12 months' non-reporting probation. She was also ordered to forfeit 30 Amanda Drive and her personal possessions located there, her minivan, and her cash bail of $25,000. Other property forfeited included the homes where the grow-operations were located as well as her husband's cash bail.
The Appellant's Fresh Evidence
[18] The appellant filed affidavits from herself and her husband as fresh evidence on appeal.
i) The Appellant's Affidavit
[19] In her affidavit, the appellant says, among other things, that she first met Mr. Barrs on January 15, 2010, the day of her guilty pleas.[1] She says she and Mr. Barrs met for 10 to 15 minutes with the assistance of an interpreter in the cells. According to the appellant, Mr. Barrs did not discuss the disclosure, the evidence against her, or the strengths and weaknesses in the Crown's case. Moreover, he did not ask for her version of events or for any explanation of the Crown's evidence.
[20] Further, although she told Mr. Barrs she did not participate in the offences, he advised her that because her husband was involved, and she did not oppose him or try to stop him, she was also guilty. She does not recall Mr. Barrs telling her that she could only plead guilty if she was in fact guilty. Mr. Barrs had her sign a document in which she agreed to plead guilty to various offences and told her what the sentence would be, including the forfeitures. The appellant denies that she signed a retainer agreement.
[21] Mr. Barrs also told her someone else from his firm was representing her husband but that person was unable to attend that day. He advised her that it was a conflict of interest for him to act for both her and her husband in the same proceeding but did not explain why. He simply asked her to agree he could represent both that day. In response to her inquiry about deportation, he asked if she was a permanent resident. When she said yes, he told her the pleas and sentence would not impact deportation. When she asked if there was any way to avoid forfeiting her house, Mr. Barrs said if it was not forfeited to the Crown, the bank would seize it.
[22] The appellant says that based on the evidence discussed at her bail hearing and other appearances, she understood that the general allegation was that all accused had been involved in a marijuana grow-operation. She also understood that equipment the Crown alleged was for a marijuana grow-operation, documents relating to renovations, and a receipt for a lamp were found in her house. She asserts that she had never been involved in a grow-operation, did not know what the equipment was for and that the documents found in her house were not hers and did not suggest they were related to a grow-operation.
[23] The appellant deposes that she would never have pleaded guilty had she known the immigration consequences of her guilty pleas and of the sentences imposed.
[24] The Crown cross-examined the appellant about her background and role in the offences but did not cross-examine her concerning her claims about Mr. Barrs' conduct and advice.
ii) The Appellant's Husband's Affidavit
[25] Mr. Chen asserts that he retained Mr. Barrs in the fall of 2009 to bail out his wife.[2] He says Mr. Barrs told him that it was normally a conflict of interest to represent both and that he would get another lawyer from his office to represent the appellant.[3] The retainer agreement Mr. Chen signed referred only to Mr. Barrs representing Mr. Chen. Mr. Chen says he asked Mr. Barrs to represent his wife as she was in custody. Mr. Barrs told him not to worry; Mr. Barrs knew how to arrange it.
[26] Mr. Chen says Mr. Barrs did not review the disclosure with him or discuss the evidence against him in any detail. Rather, Mr. Barrs said the police had Mr. Chen under surveillance for a long time. However, there was nothing on the surveillance against the appellant; she might be okay after a trial. If Mr. Chen pled guilty the appellant would be released from custody; otherwise, Mr. Chen would have to pay for an expensive trial and his wife would not be released.
[27] Mr. Chen says he asked Mr. Barrs about immigration consequences and that Mr. Barrs told him if the sentence was less than two years, he and his wife would not be deported.
[28] Mr. Chen recalls Mr. Barrs asking him to sign a document on January 15, 2010 in which he agreed to plead guilty to various charges and to the imposition of various forfeiture orders – and also to a one-year conditional sentence requiring house arrest. Although the document did not refer to immigration consequences or any conflict of interest it did say that by pleading guilty Mr. Chen was admitting that he was actually guilty.
[29] The Crown did not cross-examine the appellant's husband.
The Crown's Fresh Evidence
[30] The Crown filed an affidavit from Mr. Barrs and two affidavits from Donald MacAlister, an Ontario Provincial Police officer and one of the lead investigators into the marijuana grow-operations forming the subject matter of the charges.
i) Mr. Barrs' Evidence
[31] In his affidavit, Mr. Barrs notes that the 30-day appeal period for the appellant's case expired on February 15, 2010. His practice is to keep criminal files for five years. Although he looked for the appellant's file following her initial request in January 2016, his office no longer has it.[4] His recollection is that documentation seized at the appellant's home connected her to many of the grow-operations.
[32] On January 15, 2010, Mr. Barrs met with the appellant in the cells at the Belleville courthouse with an interpreter. According to his recollection, the appellant was "quite conversant with the case and knew the strength of the case against her." He says he believes that a date for preliminary hearing had been set for January 15, 2010[5] and that the Crown's non-custodial sentencing offer would have been off the table after that date. It is not his practice to have anyone plead guilty unless they have instructed him in writing that they are guilty. He would have advised the appellant there was a strong case against her[6] and would have indicated what the expected sentence would be. In terms of the appellant's immigration status, he says he "would have clearly advised [her] of the possible immigration consequences" and that would have been reflected in the direction she signed. Mr. Barrs asserts that as a result of the plea agreement, the appellant was released from custody on January 15, 2010. He claims that she was "very happy" with the result he was able to negotiate for her. He also asserts that he "can state with certainty that much of [the appellant's] affidavit is false."
[33] Mr. Barrs was cross-examined at length on May 4, 2017. He was a difficult and combative witness, a subject to which we will return. However, we note that throughout his cross-examination, Mr. Barrs maintained that he would not have permitted the appellant to plead guilty unless she acknowledged her guilt. He also maintained that he advised her she could be deported as a result of her guilty pleas and sentence. Mr. Barrs claimed the appellant signed a retainer agreement on January 15, 2010.
ii) Officer MacAlister's Evidence
[34] In his affidavits, Officer MacAlister outlined some of the investigative steps taken in relation to the grow-operations forming the subject matter of the charges. He also attached a number of photographs and documents taken at or seized from 30 Amanda Drive. The evidence he believed linked the appellant to the conspiracy included:
remnants of a grow-operation were found in the basement of 30 Amanda Drive, including (untested) plant material on the floor, shelving with neon lamps and a boxed in basement window;
evidence the appellant owned 30 Amanda Drive;
evidence the appellant was the owner of and had recently purchased a Dodge Caravan police had observed at and travelling between the various grow-operations and had followed to 30 Amanda Drive;
the appellant, her husband and two other co-accused were found sleeping at 30 Amanda Drive and there was evidence implicating the appellant's husband and the other co-accused in the conspiracy (for example, one co-accused was the owner of a property containing a grow-operation; the other co-accused had attended the storage locker where grow-op equipment was found; the appellant's husband rented the storage locker and had been observed travelling between the various grow-operations);
a Home Depot packing slip in the appellant's name relating to the purchase in Belleville of building materials delivered to one of the grow-op locations;
banking documents indicating tens of thousands of dollars had passed through the appellant's accounts during the period of the investigation; and
Canada Revenue Agency documents indicating the appellant's annual income for 2008 was $6,594.00.
[35] In addition, Officer MacAlister attached a summary of the appellant's July 17, 2009 police statement to his affidavit. According to it, in her statement the appellant explained that she purchased 30 Amanda Drive in December 2008 with money ($42,000) she brought from China. She claimed she had a low interest rate mortgage requiring payments of $2300 per month. She asserted that her husband earned over $2000 per month and that she had two tenants who paid $1040 per month in rent. She also said various unnamed individuals paid her to use her van on the various occasions, including May 13-14, 2009 when the van was observed at various Kingston and Belleville grow-operations.
[36] Officer MacAlister was cross-examined on his affidavit. During his cross-examination, he acknowledged that the case against the appellant was based on circumstantial evidence and that there were triable issues in relation to the evidence.
Should Mr. Barrs' Evidence Be Struck Out?
[37] The appellant moves under Rule 34.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to strike Mr. Barrs' evidence on the grounds he was unresponsive on critical issues and refused to answer proper questions. In the alternative, she asks that an adverse inference be drawn in relation to his credibility.
[38] As we have said, Mr. Barrs was a difficult and combative witness during cross-examination. He was also disdainful and disrespectful of both the process and appellant's counsel.
[39] For example, on numerous occasions he referred to the process as nonsense, a waste of time, an abuse of process, a scam or other similar descriptors. Although respondent's counsel was present, he took it upon himself to question the relevance of some of the appellant's counsel's questions or called them stupid. He also accused appellant's counsel of coaching the appellant.
[40] That said, taking account of the passage of time and the fact that he is no longer in possession of his file, in the main, Mr. Barrs responded to questions relating to his representation of the appellant based on his present recollection and his review of the transcript of the guilty plea proceeding.
[41] In our view, it was not unreasonable for Mr. Barrs to refuse to review the voluminous Crown disclosure to assist him in responding to questions about his assessment of the strength of the Crown's case. What is relevant for the purpose of this appeal is his assessment of the case while it was progressing and the advice he gave to the appellant at the relevant time.
[42] As for Mr. Barrs' failure to produce his account(s) relating to his representation of the appellant and her husband, we note that we have no evidence that the parties themselves are not in possession of any such accounts. And while we agree that Mr. Barrs should have looked for his accounts, any electronic correspondence he may still possess, and for any courier receipt regarding picking up the disclosure, any failure to do so does not support the requests to strike his evidence or draw an adverse inference against his credibility.
[43] Mr. Barrs has given evidence that he is no longer in possession of his file. We see nothing in the record to support the appellant's counsel's suggestion that he found his file, or part of it, in January 2016 and is refusing to produce it. The appellant did not move for an order requiring Mr. Barrs to search his electronic records for his account(s); any correspondence pertaining to this matter; or the courier receipt but instead brought this motion on the return date of the appeal hearing. At this stage, the suggestion that any electronic records that may exist would support the appellant's position on appeal is speculative.
Were the Appellant's Guilty Pleas Informed?
[44] To be valid, a guilty plea must be voluntary, unequivocal, and informed: R. v. R.T. (1992), 10 O.R. (3d) 514 (C.A.), at para. 14. The appellant does not take issue with the first two prongs of this test.
[45] To be informed, the accused must be aware of the nature of the allegations and the effect and consequences of the plea: R.T., at para. 14; see also R. v. Quick, 2016 ONCA 95, 129 O.R. (3d) 334.
[46] During oral argument, appellant's counsel acknowledged that if we accept Mr. Barrs' evidence that he advised the appellant of potential immigration consequences in that she could be deported if she pleaded guilty, then we could conclude that her guilty pleas were informed.
[47] The appellant deposed that Mr. Barrs told her there would be no impact on deportation based on her guilty pleas or sentence.
[48] For several reasons, we accept Mr. Barrs' evidence and reject the appellant's evidence on this point.
[49] First, certain key aspects of Mr. Barrs' evidence are confirmed by the record or not disputed. For example, he deposed that he obtained a handwritten direction that the appellant signed with the benefit of an interpreter. Although the content is not confirmed, the existence of a direction was placed on the record and is acknowledged by the appellant. Further, although they do not agree with Mr. Barrs about the content of the discussions, both the appellant and her husband acknowledge that the immigration consequences of their pleas were discussed. In addition, Mr. Chen confirms that the direction he signed stated that he would be pleading guilty to certain offences and that by pleading guilty he was admitting his guilt. We find it inconceivable that Mr. Chen's direction contained such an acknowledgment but the appellant's did not.
[50] Second, we find Mr. Barrs' assertions that he would not have allowed the appellant to plead guilty had she professed her innocence to be entirely credible and consistent with his standing as a criminal lawyer with 40 years of experience.
[51] Third, the appellant deposed that she told Mr. Barrs she was innocent and asked why she had to plead guilty. He allegedly told her that because her husband was involved, and she did not try to stop him, she was guilty. We find this evidence not only self-serving but preposterous. Moreover, we reject the submission that we should view this as a mere misunderstanding based on interpretation issues. There is no evidence to that effect.
[52] Fourth, several aspects of the appellant's affidavit and cross-examination are implausible. As but one example, her claim that she purchased the van that was spotted travelling between grow-operations for her tenant because he was her husband's friend's relative and a refugee claimant who could not purchase a vehicle – and her further claims that she loaned the van to other individuals for cash to help pay the monthly payments, not knowing what they used it for – while acknowledging she drove another vehicle – simply make no sense.
[53] Fifth, given that it is acknowledged that immigration consequences of the pleas were discussed, we find the claims by the appellant and her husband that Mr. Barrs told them there would be no impact on deportation or that they would not be deported if the sentence was less than two years implausible.
[54] In 2010, at the time of the guilty pleas, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA"), provided that a permanent resident would be inadmissible to Canada on grounds of "serious criminality" under s. 36 or "organized criminality" under s. 37. At the time, a permanent resident could appeal one's inadmissibility for a finding of serious criminality under s. 36, if sentenced to a term of imprisonment of less than two years[8], but had no right of appeal with respect to a finding of organized criminality.
[55] Even assuming Mr. Barrs was unaware of the provisions of s. 37, it is implausible that he would advise a client there would be no immigration consequences if sentenced to a term of imprisonment of less than two years. The only significance of a sentence of imprisonment of less than two years was that a person found inadmissible had a right of appeal. What is more plausible is Mr. Barrs' evidence of what he told the appellant and her husband, that is, the guilty pleas could result in deportation. Mr. Chen is a case in point. Even though he was convicted of conspiracy, immigration authorities apparently proceeded against him under s. 36 only – and, although inadmissible, he succeeded in his appeal on compassionate and humanitarian grounds.
[56] Based on the foregoing reasons, where the appellant and her husband's evidence conflict with the evidence of Mr. Barrs, we accept the evidence of Mr. Barrs. We are satisfied that Mr. Barrs informed the appellant that, if she pleaded guilty, there could be immigration consequences in that she could deported. Accordingly, we would not give effect to this ground of appeal.
Was Mr. Barrs in a Conflict of Interest?
[57] We do not accept the appellant's submission that she was deprived of effective assistance of counsel because Mr. Barrs was in a conflict of interest.
[58] This issue calls for a fact-specific inquiry. Based on the evidence that we accept, Mr. Barrs met the appellant for the first time on January 15, 2010. On that day, the trial Crown offered favourable terms for guilty pleas for both the appellant and her husband. The offer was time-limited, and the trial Crown was firm in her position concerning to which offences the parties should plead, the sentences she would seek, and the forfeiture orders that should be made.
[59] Mr. Barrs was obliged to convey the Crown's offer to both the appellant and her husband. On Mr. Barrs' evidence, which we accept, both the appellant and her husband acknowledged their guilt, and both wanted to accept the Crown's offer.
[60] Given these facts, we are not persuaded that the interests of the appellant and her husband were immediately and directly adverse. Nor are we satisfied that there were factors present that could "reasonably be perceived as affecting judgment": Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649, at para. 38, citing D. W. M. Waters, M. R. Gillen and L. D. Smith, eds., Waters' Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012), at p. 968; see also R. v. Baharloo, 2017 ONCA 362, 348 C.C.C. (3d) 64, at para. 36. When Mr. Barrs went to Belleville on January 15, 2010, he did not anticipate representing the appellant or her husband on guilty pleas that day. Having regard to the firm position taken by the trial Crown in her offers and the fact that both accused acknowledged their guilt, we are not persuaded Mr. Barrs was faced with any conflict in his duty of loyalty by representing both the appellant and her husband on their guilty pleas.
Was the Appellant Deprived of Effective Assistance of Counsel?
[61] We also reject the appellant's submission that she was deprived of effective assistance of counsel because Mr. Barrs failed to review with her the Crown's disclosure, failed to obtain her version of events, and failed to advise her of available defences.
[62] On Mr. Barrs' evidence, the appellant was conversant with the case against her, and he advised her that the Crown had "a strong case" such that it was his opinion she would be committed for trial following a preliminary inquiry. Based on our review of the fresh evidence record, this was a reasonable assessment. Moreover, in agreeing to plead guilty, the appellant acknowledged that she was guilty of the offences forming the subject matter of the Crown's offer. For the reasons outlined above, where the appellant's evidence differs from that of Mr. Barrs, we prefer Mr. Barrs' evidence. In our view, the appellant has failed to establish that any shortcomings in Mr. Barrs' representation give rise to a miscarriage of justice. See R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-29.
Did the Facts Read in by the Crown on the Guilty Pleas Support Findings of Guilt?
[63] Although the facts read in on the guilty pleas were sparse in terms of connecting the appellant to the conspiracy to produce marijuana, and, in turn, the other offences relating to the grow-ops, we are satisfied they were sufficient, in combination with the appellant's guilty pleas, to support findings of guilt. In particular, the following assertions together with the appellant's guilty pleas established the appellant was involved in the conspiracy and was guilty of the other offences arising from the grow schemes:
the appellant owned 30 Amanda Drive;
30 Amanda Drive was the base of operations for the conspirators, some of whom owned and actively operated several sophisticated marijuana grow houses, involving significant thefts of water and electricity and about 24,000 plants;
30 Amanda Drive housed vehicles seen during the course of police surveillance, including a vehicle owned by the appellant; and
receipts for building materials associated with grow schemes were found in the bedroom closet of the appellant and her husband at 30 Amanda Drive.
[64] Viewed in combination with the appellant's guilty pleas, the facts read in established that, even though she was never seen at any of the grow-operations, the appellant knew of the grow-operations and what they entailed and provided assistance to those who actively operated them.
The Sentence Appeal
[65] As noted above, the appellant seeks leave to appeal sentence. She submits the sentence imposed is unfit because the sentencing judge failed to consider the immigration consequences of the sentence. Further, she claims that the forfeiture orders were grossly disproportionate to any culpability and that there was no evidence that the money and property forfeited were proceeds of crime.
[66] The appellant's argument concerning the immigration consequences of the sentence is premised on an assumption that a conditional sentence qualifies as a "term of imprisonment" within the meaning of ss. 36(1) and 64(2) of the IRPA, such that her sentence of 135 days of time served plus a six-month conditional sentence qualified as "serious criminality" under those sections, making her inadmissible to Canada under s. 36(1) and removing any right of appeal by ss. 64(1) and (2).
[67] In its recent decision in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, released after this appeal was argued, the Supreme Court of Canada clarified that a conditional sentence does not qualify as a term of imprisonment within the meaning of ss. 36(1) and 64(2) of the IRPA. As the conditional sentence has been served and it is not argued that the period of 135 days of time served and a six-month conditional sentence is otherwise unfit, it is not necessary that we deal with this argument.
[68] As for the appellant's arguments concerning the forfeiture orders, we observe that they were part of the plea offer the appellant accepted. We also observe that the other aspects of the sentence the sentencing judge imposed were quite lenient – a six-month conditional sentence (as opposed to the 12 months the Crown requested) with no house arrest, followed by 12 months' probation without reporting conditions, in addition to 135 days of time served. In these circumstances, we do not accept the appellant's argument that the forfeiture orders were disproportionate.
[69] The appellant also argues that there was no evidence that the property and money subject to the forfeiture orders were proceeds of crime. However, the basis on which the forfeiture orders were made is unclear. The formal orders are not in the appeal record. Had the appellant pursued the issue of the forfeiture orders in a timely manner, the orders would likely have been available.[9] In any event, if there was no valid underlying basis for making the forfeiture orders, we are satisfied that the appellant would have pursued this issue before now. In all the circumstances, leave to appeal sentence is denied.
Disposition
[70] Based on the foregoing reasons, the conviction appeal is dismissed and leave to appeal sentence is denied.
Released: December 5, 2017
"Janet Simmons J.A."
"K. van Rensburg J.A."
"David Brown J.A."
Footnotes
[1] During his cross-examination, Mr. Barrs initially asserted that he spoke to the appellant by telephone a number of times prior to January 15, 2010. He later agreed that he communicated with her through her husband.
[2] In his cross-examination, Mr. Barrs disputed that he was retained specifically to conduct a bail review for the appellant. His position is that he was retained to act for both parties and that if a plea agreement had not been reached he would have conducted a bail review for the appellant – which would have been contested.
[3] Although Mr. Barrs acknowledged on his cross-examination that he would have had Mr. Chen sign a waiver at their initial meeting, he maintained the conflict was "potential" and that he agreed, initially, to act for both Mr. Chen and the appellant.
[4] In correspondence with appellant's counsel and during his cross-examination, Mr. Barrs also noted that certain files older than five years that were stored in the basement of his office had been lost due to water damage.
[5] During his cross-examination, Mr. Barrs initially asserted that the January 15, 2010 date was for a conference and that the plan was to set a date for a preliminary inquiry when they finished the conference. Later he said he did not think the preliminary was set to begin that day, but he was not sure. On reviewing the information, it appears that January 15, 2010 was the date for a continuing pre-trial for the appellant and her husband. By that date, three co-accused had already pleaded guilty and another had set a date for a preliminary inquiry in March 2010.
[6] During his cross-examination, Mr. Barrs indicated his view of the case was that the appellant would be committed for trial following any preliminary inquiry.
[7] Section 2(1) of the Criminal Appeal Rules, SI/93-169, states: "Except where otherwise provided by the Code, a statute or these rules, the Rules of Civil Procedure where appropriate and with necessary modifications apply to criminal appeals."
[8] Section 64(2) of the IRPA. Section 24 of the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16, amended s. 64(2) of the IRPA to allow a person found inadmissible to Canada on grounds of serious criminality to appeal only if he or she had been sentenced to a term of imprisonment of less than six months. Section 24 of The Faster Removal of Foreign Criminals Act came into force on June 19, 2013.
[9] The appellant relies on the contents of an e-mail from a Government of Canada case officer to assert that her house and its contents were forfeited as proceeds of crime rather than as offence related property. However, we fail to see how this unsworn document that contains no information concerning the basis of the case officer's knowledge is evidence of anything.