



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Onwubolu, 2020 ONCA 342

DATE: 20200602

DOCKET: M50546

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chinedu Onwubolu

Applicant (Appellant)

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 SCACs 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.


