



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ansari, 2015 ONCA 891

DATE: 20151215

DOCKET: M45729 (C52883)

Strathy C.J.O., Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Asad Ansari

Applicant

John Norris and Breese Davies, for the applicant

Croft Michaelson, Q.C., for the respondent

Heard: December 4, 2015

An application for an extension of time to file a notice
    of application for leave to appeal the sentence imposed on October 4, 2010 by
    Justice Fletcher Dawson of the Superior Court of Justice, sitting with a jury,
    and an application for an order under s. 684 of the
Criminal Code
.

By the Court:

[1]

Asad Ansari is a Canadian citizen. On June 23, 2010 a jury found him guilty
    of participating in the activities of a terrorist group. On October 4, 2010 the
    trial judge sentenced him to one day in jail to be followed by three years
    probation. In light of the time he had already spent in pre-sentence custody
    and the then prevailing rule of thumb about credit for it, the trial judge
    considered the sentence imposed to be the functional equivalent of a sentence
    of six years and five months. At trial, Crown counsel did not seek any
    additional term of imprisonment beyond the period reflected in the pre-trial
    custody credit.

[2]

Asad Ansari appealed his conviction. He did not seek leave to appeal his
    sentence, the carceral component of which he had served on the day the trial
    judge imposed the sentence.

[3]

On August 19, 2015 this court dismissed Asad Ansaris appeal from
    conviction.

THE APPLICATION

[4]

Asad Ansari (the applicant) now applies for an order extending the
    time within which he can serve and file a notice of application for leave to
    appeal the sentence imposed at trial. He also seeks an order under s. 684 of
    the
Criminal Code of Canada
, R.S.C., 1985, c. C-46, appointing counsel
    to act on his behalf on this application, and on the appeal from sentence if
    the extension of time he requests is granted.

[5]

At the outset of the hearing in this court, the applicant modified the
    relief sought on the application. He pursued his application to extend the time
    within which to serve and file a notice of application for leave to appeal
    sentence, but asked that the application for an order under s. 684 of the
Criminal
    Code
be adjourned
sine die
for hearing before a single judge if
    required.

[6]

At the conclusion of oral argument, the Chief Justice delivered brief
    reasons extending for ten days the time within which Mr. Ansari could serve and
    file his notice of application for leave to appeal sentence. The Chief Justice
    adjourned the s. 684 application
sine die
to be heard by a single
    judge of this court, if required. What follows are the reasons the Chief
    Justice said would be provided to explain the orders made.

THE APPLICATION FOR AN EXTENSION OF TIME

[7]

It is common ground that Asad Ansari did not form the intention to
    appeal the sentence imposed upon him within 30 days of its pronouncement.

The Essential Background

[8]

On June 19, 2014, nearly four years after the applicant was sentenced,
    the
Strengthening Canadian Citizenship Act
, S.C. 2014, c. 22 received
    royal assent. Among other things, the Act amended s. 10 of the
Citizenship
    Act
, R.S.C., 1985, c. C-29, to permit the Minister of Citizenship and
    Immigration to revoke the citizenship of any Canadian citizen convicted of a
    terrorism offence and sentenced to a term of imprisonment of at least five
    years. The legislation came into force on May 28, 2015 and applied to
    convictions entered and sentences imposed both before and after that date.

[9]

In early July, 2015 the applicant received notice under the
Citizenship
    Act
that the Minister may revoke his citizenship as a result of his
    conviction and sentence. The applicant was afforded an opportunity to make
    written submissions to the Minister.

[10]

On
    receipt of the notice, the applicant sought legal advice. He joined a
    constitutional challenge in the Federal Court claiming that parts of the
Citizenship
    Act
, including the Ministers authority to revoke citizenship on the basis
    of a conviction of a terrorism offence, are unconstitutional.

[11]

The
    applicant also instructed counsel to seek an order extending the time within
    which to serve and file a notice of application for leave to appeal the
    sentence imposed upon him.

The Arguments on the Application

[12]

The
    applicant emphasizes the discretionary nature of the decision to grant an
    extension of time. The overarching consideration is whether the interests of
    justice warrant the extension.

[13]

The
    applicant readily acknowledges that he did not form the intention to appeal
    sentence within 30 days of its imposition. The carceral component of the
    sentence ended the day it was imposed. But he took immediate steps to do so
    once notified of the Ministers intention. His response included not only an
    attack on the sentence imposed, but also a challenge to the constitutionality
    of the legislation invoked by the Minister.

[14]

The
    applicant says that the proposed appeal has merit. The collateral consequences
    of a sentence require consideration in imposing a fit sentence, as well as on
    appellate review of the fitness of a sentence imposed at trial. Appellate
    courts have authority to intervene to adjust the sentence, even after its
    completion, if the sentencing judge has failed to consider its collateral
    consequences. It is all the more so when those consequences arise because of a
    statutory amendment that has retrospective effect.

[15]

The
    respondent opposes the extension of time the applicant seeks.

[16]

The
    respondent emphasizes the need for finality in criminal proceedings. Extensions
    of time are exceptional. They require extraordinary circumstances that reveal a
    real concern that an injustice may occur or be perpetuated in the absence of an
    extension.

[17]

A
    consideration and balancing of the relevant factors belies any claim that the
    justice of the case warrants the extension sought. Nothing was overlooked when the
    sentence was imposed that gives any reason to doubt the fitness of that
    sentence. The applicants real complaint is with the retrospective effect of
    the amendment. But that issue will occupy another court at another time, not a
    court asked to review the fitness of sentence.

[18]

In
    addition, the respondent continues, the applicant has failed to demonstrate any
    merit in the proposed appeal. The reduction sought here  to a sentence under
    five years  would distort the sentencing process and result in the imposition
    of an artificial and inappropriate sentence.

The Governing Principles

[19]

Section
    678(2) of the
Criminal Code
authorizes a panel or judge of a court of
    appeal to extend the time within which notice of an application for leave to
    appeal may be given. Rule 7 of the
Criminal Appeal Rules
, SI/93-169, permits
    an extension to be granted before or after the expiration of the 30-day period
    prescribed by r. 4(2). Neither the
Criminal Code
nor the
Criminal
    Appeal Rules
frames a test to be applied or describes any factors to be
    considered in deciding whether the extension should be granted.

[20]

A
    few brief points emerge from the authorities.

[21]

First,
    the authority to grant or refuse an extension of time is discretionary. No
    party is entitled to an extension of time as of right:
R. v. Roberge
,
    2005 SCC 48, [2005] 2 S.C.R. 469, at para.
6;
R. v. Menear
(2002), 162 C.C.C. (3d) 233 (Ont. C.A.), at para.
20.

[22]

Second,
    relevant factors that may be considered when an extension of time is sought
    include, but are not limited to:


i.

whether the applicant formed a
bona fide
intention to seek
    leave to appeal and communicated that intention to the opposite party within
    the time prescribed for filing the applicable notice;


ii.

whether the applicant has accounted for or explained the delay in filing
    the notice; and


iii.

whether the proposed appeal has merit:
Menear
, at para. 20.

[23]

Depending
    on the circumstances of the application, other factors may also influence the
    decision. The length of the delay. Prejudice to the respondent. The diligence
    or inattentiveness of counsel. Whether the applicant has taken the benefit of
    the judgment:
Menear
, at para. 21;
Roberge
, at para. 6. In
    the final analysis, the overarching consideration is whether the applicant has
    demonstrated that the justice of the case requires that the extension of time
    be granted:
Menear
, at para. 21.

[24]

Third,
    the collateral consequences of a sentence are a relevant factor for a
    sentencing court to consider in determining a fit sentence, one that gives
    effect to the fundamental principle of sentencing  that the sentence be
    proportionate to the gravity of the offence and the degree of responsibility of
    the offender:
R. v. Pham
, 2013 SCC 15, [2013] 1 S.C.R. 739, at para.
    11. The relevance of collateral consequences may also flow from the sentencing
    objective of assisting in the rehabilitation of the offender:
Pham
, at
    para. 11.

[25]

Collateral
    consequences of a sentence are any consequences of the impact of the sentence
    on the particular offender. Such consequences may include those associated with
    deportation and immigration status. Variation of a sentence to avoid collateral
    consequences must not be so great, however, that the sentence offends the
    fundamental principle of proportionality:
Pham
, at paras. 11, 18.

[26]

Fourth,
    extensions of time to appeal sentence have been granted where the trial judge was
    unaware of the collateral consequences of the sentence she or he imposed, as
    well as in instances in which the law changed after sentence to include or
    increase collateral consequences:
R. v. Leung
, 2004 ABCA 55, 354 A.R.
    2, at para. 3;
R. v. Bahadur
, 2010 SKCA 103, 359 Sask. R. 260, at para.
    13;
R. v. Truong
, 2007 ABCA 127, 404 A.R. 277, at para. 13.

[27]

Finally,
    extensions of time have been granted on the basis of disproportionate collateral
    consequences after the sentence had been served or where the carceral portion
    of it was about to expire:
Leung
, at para. 6;
R. v. Kanthasamy
,
    2005 BCCA 135, 195 C.C.C. (3d) 182, at para. 10.

The Principles
    Applied

[28]

Several
    factors persuade us that we should extend the time within which the applicant
    can serve and file a notice of application for leave to appeal sentence.

[29]

First,
    the interests of justice favour the extension. To refuse the order, a
    substantial injustice may occur, wrought by legislation not in force or within
    the reasonable contemplation of any of the participants in the trial process,
    but made retrospective by an enactment passed years later.

[30]

Second,
    the failure of the applicant to seek leave to appeal sentence within 30 days of
    its imposition is easily explained. The carceral portion of his sentence
    expired the day sentence was imposed. And an appeal of the length or
    discretionary terms of the probation order would risk dismissal for failure to
    invoke s. 732.2(3) of the
Criminal Code
.

[31]

Third,
    the collateral consequences  loss of Canadian citizenship  are of such
    magnitude as to render it unjust to deprive the applicant of the opportunity to
    seek a variation of the sentence to remove himself from the reach of the
    amendment.

[32]

Fourth,
    when notified by the Minister, the applicant and his counsel acted diligently
    to pursue two avenues to achieve a result that would remove the applicant from
    the class of persons subject to the authority of the Minister to strip a
    citizen of Canadian citizenship. The applicant sought this extension of time in
    order to ask the court to reduce the imputed sentence to less than five years.
    And he challenged the constitutionality of the legislation that provided the
    Minister with the authority to strip Canadians of their citizenship.

[33]

Fifth,
    it cannot be said that the appeal is devoid of merit. The collateral consequences
    of a sentence are a relevant factor for both trial and appellate courts to
    consider in imposing or reviewing the imposition of a sentence to ensure its
    conformity with the principle of proportionality. The variation sought is not
    on its face so far removed from the sentence imposed to be outside the range of
    variation permissible under
Pham
.

[34]

It
    is for these reasons that we granted the applicant an extension of time within
    which to serve and file his notice of application for leave to appeal sentence.

THE s. 684 APPLICATION

[35]

In
    accordance with submissions of counsel, the application under s. 684 of the
Criminal
    Code
is adjourned
sine die
to be reinvigorated if required and
    scheduled for hearing before a single judge in chambers.

CONCLUSION

[36]

For
    these reasons, we granted the application for an extension of time to file a
    notice of application for leave to appeal sentence. The s. 684 application is
    adjourned
sine die
for hearing before a single judge if required.

Released: December 15, 2015 (GS)

G.R.
    Strathy C.J.O.

David
    Watt J.A.

Gloria
    Epstein J.A.


