



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

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 applicants 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 courts
    decision in
R. v. Menear
(2002), 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
    courts 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 courts 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.


