R. v. Henry, 2019 ONSC 7260

Court File and Parties

COURT FILE NO.: CR-19-40000090-00AP

DATE: 20191213

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

BRITNEY HENRY Applicant

Counsel: L. Gonet, for the Respondent K. Jim, for the Applicant

HEARD: December 9, 2019.

REASONS FOR DECISION

SCHRECK J.:

1Britney Henry received a seven-month conditional sentence in 2013. After she was sentenced, retroactive amendments to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") made her liable to be deported from Canada without a right to appeal the deportation on compassionate and humanitarian grounds because the length of the sentence exceeded six months. This consequence did not exist at the time the sentence was imposed. Ms. Henry challenged the attempts to deport her through every legal means at her disposal except by attempting to appeal the length of her sentence, an option she was not aware was available to her until recently. Having become aware of the possibility of a sentence appeal, she has applied for an application to extend the time in which to appeal her sentence.

2The respondent opposes the application. While the respondent has not challenged the applicant's assertion that she was unaware that she could appeal the sentence, it nonetheless takes the position that the delay has not been adequately explained because the applicant has not alleged ineffective assistance on the part of her immigration lawyers. The respondent also submits that the proposed appeal has no merit.

3After the application was argued, I granted it with reasons to follow. These are those reasons.

I. RELEVANT FACTS

A. The Applicant's Background

4The applicant was born in St. Lucia in November 1991. According to her affidavit, while growing up her step-father was extremely abusive to her, her half-sisters and her mother.

5The applicant came to Canada in 2003 and became a permanent resident in 2009. All of her close family members reside in Canada and the applicant has never been back to St. Lucia. Her abusive step-father also came to Canada, but has since been deported as a result of being convicted of criminal offences.

B. The Sentencing Proceedings

6On January 16, 2013, the applicant was convicted after a summary conviction trial in the Ontario Court of Justice of assault causing bodily harm, possession of a prohibited weapon and possession of a weapon for a purpose dangerous to the public peace. The charges arose out of a physical altercation between the applicant and a man named Mandella William at the home of the applicant's mother. The relationship between the applicant and Mr. William is unclear. It appears that the altercation took place because the applicant wanted Mr. William to leave the home because of an altercation he had had with her sister.

7On March 11, 2013, the applicant was sentenced to a seven-month conditional sentence followed by three years probation as well as various ancillary orders. She has served her sentence.

C. Changes to Immigration Legislation After the Sentencing

8Section 44(2) of the IRPA provides that an officer of the Canada Border Services Agency ("CBSA") may refer a permanent resident for an admissibility hearing if he or she is of the opinion that the person is inadmissible. Section 36(1)(a) of the IRPA provides that a person is inadmissible on the grounds of "serious criminality" if he or she has been convicted of an offence with a maximum punishment of imprisonment for 10 years or more or if he or she has been sentenced to imprisonment for more than six months.

9Section 64(1) of the IRPA provides that a person who has been found to be inadmissible may not appeal that finding to the Immigration Appeal Division ("IAD") on humanitarian and compassionate grounds if the person was found to be inadmissible on the grounds of "serious criminality." At the time of the applicant's sentencing, s. 64(2) of the IRPA provided that for the purposes of subsection (1), the finding of "serious criminality" must be with respect to a crime that was punished by a term of imprisonment of at least two years. According to the law as it stood at the time of the applicant's sentencing, if found inadmissible she would have been entitled to appeal that finding to the IAD.

10On June 19, 2013, about three months after the applicant was sentenced, the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16 ("FRFCA") came into force. Section 24 of the FRFCA had the effect of shortening the two-year period referred to in s. 64(2) of the IRPA to six months. Section 33 of the FRFCA provided that the amended version of s. 64(2) applied to all individuals who are referred for an inadmissibility hearing after the date on which the legislation came into force. In other words, as far as the applicant is concerned, the legislation is retroactive.

D. The Applicant's Immigration Proceedings

11On December 19, 2013, the CBSA referred the applicant for an admissibility hearing pursuant to s. 44(2) of the IRPA. On June 2, 2014, the applicant was found to be inadmissible and was ordered deported. At that time, she retained an immigration lawyer to appeal the finding to the IAD. That lawyer did not speak to her about the possibility of appealing her sentence.

12The applicant appealed her deportation to the IAD. The CBSA took the position that the applicant was not entitled to an appeal because her conditional sentence was longer than six months. However, on November 4, 2014, the Federal Court released its decision in Tran v. Canada (Minister of Public Safety and Emergency Preparedness), 2014 FC 1040, 31 Imm. L.R. in which it held that a conditional sentence does not constitute a sentence of imprisonment for the purposes of s. 36(1)(a) of the IRPA. On November 25, 2014, the IAD issued an endorsement holding that on the basis of Tran, the applicant was entitled to an appeal to the IAD. On April 17, 2015, the CBSA made written submissions to the IAD arguing that notwithstanding the decision in Tran, the applicant was not entitled to appeal to the IAD.

13On October 30, 2015, in reasons reported at 2015 FCA 237, 392 D.L.R. (4th) 351, the Federal Court of Appeal reversed the trial decision in Tran. Over a year later, on November 28, 2016, the IAD ruled that the applicant's conditional sentence constitutes a term of imprisonment and that it therefore had no jurisdiction to consider her appeal.

14In January 2017, the applicant changed immigration lawyers and applied for a Pre-Removal Risk Assessment ("PRRA") claiming that she was risk of violence at the hands of her abusive step-father if she is deported to St. Lucia. The new immigration lawyer did not discuss the possibility of a sentence appeal with her.

15On October 29, 2017, in reasons reported at 2017 SCC 50, [2017] 2 S.C.R. 289, the Supreme Court of Canada reversed the Federal Court of Appeal's decision in Tran and held that a conditional sentence does not constitute a term of imprisonment.

16In July 2018, the applicant was advised that her PRRA had been refused.

17On June 20, 2019, the applicant was arrested by CBSA officers, placed on an immigration hold and held in custody at the Vanier Centre for Women. While there, she saw counsel from the Refugee Law Office of Legal Aid Ontario ("LAO"). Counsel advised her of the Supreme Court of Canada's decision in Tran, of which she had been unaware. On July 15, 2019, the applicant's new counsel filed applications before the IAD to extend the time to appeal her removal order or re-open her appeal.

18The CBSA opposed the applicant's applications and scheduled her for removal on July 27, 2019. The applicant filed a motion in the Federal Court to stay the removal, after which the CBSA agreed to cancel the removal pending the decision of the IAD. On August 15, 2019, the applicant was released from custody.

19On September 19, 2019, the IAD refused the applicant's applications for an extension of time and to reopen her appeal on the basis that in its view, the Supreme Court of Canada's decision in Tran did not have retroactive effect.

E. The Applicant's Awareness of the Possibility of a Sentence Appeal

20After the IAD's decision, the applicant's immigration counsel referred her to the Criminal Litigation Services Office at LAO to obtain an opinion with respect to whether her sentence could be appealed. On October 29, 2019, the applicant was advised by counsel that she could appeal her sentence. Her uncontradicted evidence in her affidavit was that this was the first time she became aware that she could appeal her sentence. She accordingly instructed counsel to bring this application. The application was filed on November 19, 2019.

II. ANALYSIS

A. Applicable Principles

21The factors to consider when determining whether the time in which to a file a notice of appeal should be extended were explained in R. v. Menear (2002), 2002 CanLII 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), at paras. 20-21:

There is no absolute rule to be applied in the exercise of the discretion whether or not to grant an extension of time. The court will, however, usually consider the following three factors:

(i) whether the applicant has shown a bona fide intention to appeal within the appeal period;

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

(iii) whether there is merit to the proposed appeal.

Depending on the case, 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.

B. Application of the Relevant Factors

(i) Intention to Appeal During the Appeal Period

22The applicant acknowledges that she did not form an intention to appeal during the appeal period. This factor weighs against granting an extension, but is not dispositive: R. v. Ansari, 2015 ONCA 891, 129 O.R. (3d) 511, at para. 13; R. v. Chen, 2017 ONCA 132, at para. 11; R v. Hetsberger (1979), 1979 CanLII 2977 (ON CA), 47 C.C.C. (2d) 154 (Ont. C.A.), at p. 155.

(ii) Explanation for the Delay

23The applicant's explanation for the delay is that she was not aware that she could appeal her sentence until she was advised of this by counsel on October 29, 2019. The respondent chose not to cross-examine the applicant and her evidence in this regard is unchallenged.

24Notwithstanding that she is not challenging the applicant's evidence, counsel for the respondent takes the position that she should have been advised of her right to appeal her sentence much earlier and that absent an allegation of ineffective assistance of counsel, the applicant cannot rely on the fact that she was not advised of her right of appeal to explain the delay. In this regard, the respondent relies on R. v. Onwubolu, 2019 ONSC 3060 where an application to extend time in circumstances that were somewhat similar to the case at bar was dismissed.

25There are several reasons why I cannot accept the respondent's submission. First, as noted, the applicant's evidence that she was not aware of the possibility of a sentence appeal is unchallenged and uncontradicted. Furthermore, the applicant appears to have fought the attempts to deport her in every way she could, so it is most unlikely that she would have failed to pursue a sentence appeal if she had been aware that this was an option.

26Second, I fail to see why the applicant needs to allege ineffective assistance of counsel in order to explain the delay in this case. Appellate courts typically consider claims of ineffective assistance when reviewing a conviction because an accused has a constitutional right to the effective assistance of counsel and ineffective assistance can result in a miscarriage of justice: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at para. 63; R. v. D.M.G., 2011 ONCA 343, 105 O.R. (3d) 481, at para. 103. In this case, the only issue is why the applicant did not take steps to appeal her conviction earlier. Her explanation is that she did not know that she could. Whether her immigration lawyers could have or should have advised her of this is irrelevant.

27Furthermore, a claim of ineffective assistance of counsel would have required the applicant to comply with the Protocol set out in Schedule I of the Criminal Proceedings Rules, which would have required notice to the lawyers involved, the appointment of a case management judge, case conferences, and the possibility of compelling the lawyers in question to be examined. In my view, these steps are neither necessary nor desirable in an interlocutory application of this nature.

28Third, Onwubolu is distinguishable. In that case, the applicant was sentenced after the enactment of the FRFCA. Furthermore, there is no indication in the judgment that the applicant in that case was not aware of the possibility of a sentence appeal.

29For these reasons, I conclude that the applicant has accounted for and explained the delay.

(iii) Whether the Appeal Has Merit

30In my view, the appeal clearly has merit. As was made clear in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, a sentencing court has the discretion to adjust a sentence to avoid collateral immigration consequences provided that the sentence imposed is fit in the circumstances. The respondent correctly points out that the sentence imposed in this case was fit. However, at the time the sentence was imposed, it did not result in collateral immigration consequences, nor would a sentence of less than six months have been unfit. At the sentencing hearing, the Crown took the position that the appropriate length of the sentence should be five to seven months and appears to have taken no position on whether the sentence should have been served in the community. In these circumstances, it would be difficult for the Crown to argue that a sentence of six months less a day would be unfit.

31There are many instances of appellate courts reducing otherwise fit sentences to account for unforeseen immigration consequences: Pham; R. v. Al-Masajidi, 2018 ONCA 305, 14 O.R. (3d) 557; R. v. Carlisle, 2016 ONCA 950; R. v. Srbinovski, 2016 ONCA 729; R. v. Butters, 2017 ONCA 973; R. v. Regis, 2017 ONCA 848; R. v. Frater, 2016 ONCA 386.

(iv) Whether the Consequences of the Sentence are Out of Proportion to the Penalty Imposed

32In my view, the consequences of the sentence are out of proportion to the penalty imposed. The applicant was convicted of offences in respect of which the Crown chose to proceed summarily. She was youthful and had no prior criminal record. The consequence of being removed from the country that has been her home since 2003 was unforeseen by her, counsel or the sentencing judge.

(v) Prejudice to the Respondent and Benefit to the Applicant

33There is no prejudice to the respondent if the application for an extension of time is granted, nor does counsel for the respondent suggest otherwise. The applicant has not received any benefit from the delay and has served her sentence in full: R. v. Truong, 2007 ABCA 127, 404 A.R. 277, at para. 12.

C. Conclusion

34As noted in Menear, the central consideration in an application of this nature is whether justice requires that an extension of time be granted. Despite the lengthy period of time at issue, in my view justice clearly requires that an extension be granted in this case. The immigration consequences which have hung over the applicant's head for the last five years were completely unforeseen at the time she was sentenced and constitute a severe collateral consequence which the sentencing judge likely would have considered to be relevant. The remedy the applicant seeks, a reduction of one month and one day from a sentence she has long since served, is arguably modest in comparison to the severity of the consequence of being deported from the country that has been her home for the past 16 years. The delay in pursuing a sentence appeal is not the fault of the applicant, who has done everything she can to remain in Canada. To deny an extension of time in these circumstances would be unjust.

III. DISPOSITION

35For the foregoing reasons, the application was granted and the applicant was given until December 13, 2019 to file a Notice of Appeal.