Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200602 DOCKET: M50546

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Chinedu Onwubolu Applicant (Appellant)

Counsel: David Shulman, for the appellant Craig Harper, for the respondent

Heard: In writing

Reasons for Decision

[1] The applicant seeks leave to appeal from the refusal of the Summary Conviction Appeal Court (“SCAC”) to extend the time to permit him to appeal a sentence imposed in 2014.

[2] In August 2014, the appellant pled guilty to, and was convicted of, various offences arising out of four distinct incidents that occurred between February and September 2013. In October 2013, the trial judge accepted a joint submission and sentenced the appellant to a one-year conditional sentence. The appellant breached the terms of that sentence within a few months and was ordered incarcerated to serve the remaining eight months of that sentence.

[3] Immigration proceedings, in which the authorities sought the removal of the appellant, commenced in December 2015. They were premised on the convictions and sentences entered earlier. The appellant has been challenging those proceedings and attempting to avoid removal since 2015.

[4] In April 2019, about 4½ years after he had been sentenced, the appellant commenced an application in the SCAC, seeking an extension of time to appeal the sentence he had received at trial. The extension was refused in May 2019 (see R. v. Onwubolu, 2019 ONSC 3060).

[5] The applicant raised several issues on the application for the extension of time in the SCAC. The SCAC judge dealt with those issues in his reasons. Unfortunately, no one raised the question of the legality of the sentence. Nor had that issue been raised at trial. Indeed, it is raised for the first time on this application.

[6] The failure to raise the question of the legality of the sentence sooner in these proceedings is perhaps some indication the illegality is more a matter of form than substance. Whatever the case, there appears to be a strong argument the sentence is illegal. An illegal sentence, if challenged, cannot stand.

[7] We are confident, had the legality of the sentence been raised, the SCAC would have granted leave on that question. Consequently, we would grant leave on this application, set aside the refusal to grant the extension of time, and remit the matter to the SCAC with the following direction:

• the SCAC will decide whether time should be extended to permit the applicant to appeal the sentence on the ground that the sentence imposed was illegal; and
• if leave is granted on the question of the legality of the sentence, and if the SCAC concludes the sentence is illegal, it will be for that court to determine the appropriate sentence, having regard to the trial record, and any additional information it sees fit to receive on the appeal.

[8] We remit the matter, as in our view it is the function of the SCAC to review the fitness of sentences imposed in summary conviction matters. This court has a more limited role. This court considers, if leave is granted, questions of law arising out of the SCAC’s exercise of its appellate role in sentencing in summary conviction matters.

[9] Order to go in accordance with this endorsement.

“Doherty J.A.”

“David Watt J.A.”

“B.W. Miller J.A.”