



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chen, 2017 ONCA 946

DATE: 20171205

DOCKET: M48356 (C61724)

Simmons, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fang Chen

Appellant

Erika Chozik and Caitlin Pakosh, for the appellant

Kevin Wilson and Kiran Gill, for the respondent

Heard: October 18, 2017

On appeal from the convictions entered by Justice Stephen
    J. Hunter of the Ontario Court of Justice on January 15, 2010, and from the
    sentence imposed on January 15, 2010.

By the Court:

Introduction

[1]

In January 2010, the appellant and her common law spouse, Liang Chen,
    pleaded guilty on the same day to four offences relating to several marijuana
    grow-operations. The appellant also pleaded guilty to one count of breach of
    recognizance.
In addition to 135 days of time served, the
    appellant was sentenced to a six-month conditional sentence with no house
    arrest plus 12 months' non-reporting probation. Various forfeiture orders were
    also made.

[2]

The appellant is a Chinese citizen. She came to
    Canada in 2005 and became a permanent resident in 2007. In February 2016, after
    being informed that her 2010 convictions make her inadmissible to Canada and
    that she was being referred for an admissibility hearing, the appellant sought
    and was granted an extension of time to appeal.

[3]

On appeal, the appellant submits that her guilty pleas
    were invalid because she was uninformed of the potential immigration
    consequences and because the facts read in did not support her pleas. In
    addition, she asserts that the lawyer who represented both her and her husband on
    the guilty pleas, Randall Barrs, was in a conflict of interest. Further, she
    claims she was deprived of effective assistance of counsel because Mr. Barrs failed
    to review the Crowns disclosure with her, failed to obtain her version of
    events, and failed to advise her of available defences.

[4]

The appellant also seeks leave to appeal sentence. She
    says the sentence imposed is unfit because the sentencing judge failed to
    consider its immigration consequences. Further, she claims that the forfeiture
    orders were grossly disproportionate to any culpability and that there was no
    evidence the forfeited property was proceeds of crime.

[5]

On consent, the parties have filed fresh evidence to
    address the issues on appeal. However, the appellant moves to strike Mr. Barrs
    affidavit, filed by the Crown. She asserts that Mr. Barrs failed to fulfill his
    responsibilities under the Procedural Protocol regarding allegations of
    ineffective assistance of counsel, was unresponsive on critical issues, and
    refused to answer proper questions.

[6]

For the reasons that follow, we decline to strike Mr.
    Barrs affidavit, we dismiss the conviction appeal and we deny leave to appeal
    sentence.

The Guilty Plea and Sentencing Proceeding

[7]

The appellant was originally charged with 14 offences arising from her
    alleged participation in a conspiracy involving 11 other accused, including her
    husband, and several marijuana grow-operations. On January 15, 2010, she and
    her husband pleaded guilty to four offences:
conspiracy to
    produce marijuana; possession of marijuana for the purpose of trafficking;
    theft of electricity; and theft of water
. The appellant also pleaded
    guilty to breach of recognizance. The other charges pending against the
    appellant were withdrawn.

[8]


The appellant and her husband were initially
    released on bail following their arrests in June 2009. The appellant was
    detained in custody on September 1, 2009 after being arrested at her place of
    employment while not in the presence of her surety, contrary to the terms of
    her recognizance. Her husband retained Mr. Barrs shortly thereafter. The guilty
    pleas were entered on January 15, 2010 after the trial Crown made a time-limited
    sentencing offer to the appellant and her husband through Mr. Barrs.

[9]

At the outset of the guilty plea proceeding, the
    sentencing judge noted that the offences were indictable matters and asked if
    the appellant and her husband waived the formal putting of an election. Mr.
    Barrs responded that they did and further that the charges, the effect of
    pleading to an indictable offence and the position of counsel had been
    explained to them. He also stated that he had signed directions and that the
    appellant and her husband understand that sentence is within Your Honours
    discretion.

[10]

The appellant was assisted by an interpreter on
    the guilty pleas. Nonetheless, she responded guilty when asked how she pleaded
    to the first charge on which she was arraigned.

[11]

The facts read in by the trial Crown on the
    joint guilty pleas indicated that the police had found grow-operations, or
    dismantled grow-operations, at several residential addresses in the
    Belleville-Kingston area. Further, the purchase of four of the locations had
    been brokered by a co-accused real estate agent. And the appellants husband
    had arranged for a nominee owner to attend one of the locations prior to the
    purchase and had also arranged for the nominee owner to open the bank account
    from which the mortgage payments were paid.

[12]

The appellants husband was observed at three of
    the addresses as well as at a Belleville storage locker where marijuana plant
    material and grow equipment were found. He and two co-accused rented the
    storage locker. Receipts for building materials associated with the grow-operations
    were found in the closet of a bedroom occupied by the appellant and her husband
    at 30 Amanda Drive, Toronto  a house owned by the appellant.

[13]

Police arrested the appellant, her husband, and
    two co-accused at 30 Amanda Drive  which the trial Crown asserted was
    "the base of operations for this bunch." That address also housed
    vehicles that had been observed by officers in Belleville. One of the vehicles,
    a minivan, was registered to the appellant.

[14]

The grow scheme was characterized as
    "extremely sophisticated" and as involving theft of hydro totaling
    $53,168.50, theft of water totaling about $14,730.00, and about 24,000 plants. Further,
    the trial Crown noted that about seven residential properties in Belleville,
    Kingston, and Brighton were involved in the conspiracy, with equities totaling
    about $1,000,000.

[15]

In sentencing submissions, although she had
    previously sought an 18-month conditional sentence for the appellant and a two-year
    conditional sentence for the appellants husband, the trial Crown chose to cap
    herself at one year for both, along with various forfeiture orders. The trial
    Crown also noted that the appellants pre-trial custody had been very hard
    time.

[16]

In his sentencing submissions, Mr. Barrs
    explained that the appellant did not speak English and was alienated from a
    co-accused also in custody, such that her pre-trial custody had essentially
    amounted to solitary confinement. Mr. Barrs confirmed that both the appellant
    and her husband were permanent residents of Canada. He also noted that both had
    agreed to forfeit a substantial amount of money and property and submitted that
    should be considered in mitigation of sentence.

[17]

Before Mr. Barrs could complete his sentencing submissions, the sentencing
    judge expressed an inclination impose a six-month conditional sentence with no
    house arrest. Accordingly, in addition to time served of 135 days, the
    appellant was sentenced to a six-month conditional sentence with no house
    arrest plus 12 months' non-reporting probation. She was also ordered to forfeit
    30 Amanda Drive and her personal possessions located there, her minivan, and
    her cash bail of $25,000. Other property forfeited included the homes where the
    grow-operations were located as well as her husbands cash bail.

The appellants fresh evidence

[18]

The
    appellant filed affidavits from herself and her husband as fresh evidence on
    appeal.

i) The appellants affidavit

[19]

In her affidavit, the appellant says, among other things, that she
    first met Mr. Barrs on January 15, 2010, the day of her guilty pleas.
[1]
She says she and Mr. Barrs
    met for 10 to 15 minutes with the assistance of an interpreter in the cells.
    According to the appellant, Mr. Barrs did not discuss the disclosure, the
    evidence against her, or the strengths and weaknesses in the Crowns case. Moreover,
    he did not ask for her version of events or for any explanation of the Crowns
    evidence.

[20]

Further, although she told Mr. Barrs she did not participate in the
    offences, he advised her that because her husband was involved, and she did not
    oppose him or try to stop him, she was also guilty. She does not recall Mr.
    Barrs telling her that she could only plead guilty if she was in fact guilty. Mr.
    Barrs had her sign a document in which she agreed to plead guilty to various
    offences and told her what the sentence would be, including the forfeitures. The
    appellant denies that she signed a retainer agreement.

[21]

Mr. Barrs also told her someone else from his firm was representing
    her husband but that person was unable to attend that day. He advised her that
    it was a conflict of interest for him to act for both her and her husband in
    the same proceeding but did not explain why. He simply asked her to agree he
    could represent both that day. In response to her inquiry about deportation, he
    asked if she was a permanent resident. When she said yes, he told her the pleas
    and sentence would not impact deportation. When she asked if there was any way
    to avoid forfeiting her house, Mr. Barrs said if it was not forfeited to the
    Crown, the bank would seize it.

[22]

The appellant says that based on the evidence discussed at her bail
    hearing and other appearances, she understood that the general allegation was
    that all accused had been involved in a marijuana grow-operation. She also
    understood that equipment the Crown alleged was for a marijuana grow-operation,
    documents relating to renovations, and a receipt for a lamp were found in her
    house. She asserts that she had never been involved in a grow-operation, did
    not know what the equipment was for and that the documents found in her house
    were not hers and did not suggest they were related to a grow-operation.

[23]

The appellant deposes that she would never have pleaded guilty had
    she known the immigration consequences of her guilty pleas and of the sentences
    imposed.

[24]

The Crown cross-examined the appellant about her background and role
    in the offences but did not cross-examine her concerning her claims about Mr.
    Barrs conduct and advice.

ii) The appellants husbands affidavit

[25]

Mr.
    Chen asserts that he retained Mr. Barrs in the fall of 2009 to bail out his
    wife.
[2]
He says Mr. Barrs told him that it was normally a conflict of interest to
    represent both and that he would get another lawyer from his office to
    represent the appellant.
[3]
The retainer agreement Mr. Chen signed referred only to Mr. Barrs representing
    Mr. Chen. Mr. Chen says he asked Mr. Barrs to represent his wife as she was in
    custody. Mr. Barrs told him not to worry; Mr. Barrs knew how to arrange it.

[26]

Mr.
    Chen says Mr. Barrs did not review the disclosure with him or discuss the
    evidence against him in any detail. Rather, Mr. Barrs said the police had Mr.
    Chen under surveillance for a long time. However, there was nothing on the
    surveillance against the appellant; she might be okay after a trial. If Mr.
    Chen pled guilty the appellant would be released from custody; otherwise, Mr.
    Chen would have to pay for an expensive trial and his wife would not be
    released.

[27]

Mr.
    Chen says he asked Mr. Barrs about immigration consequences and that Mr. Barrs
    told him if the sentence was less than two years, he and his wife would not be
    deported.

[28]

Mr.
    Chen recalls Mr. Barrs asking him to sign a document on January 15, 2010 in
    which he agreed to plead guilty to various charges and to the imposition of various
    forfeiture orders  and also to a one-year conditional sentence requiring house
    arrest. Although the document did not refer to immigration consequences or any
    conflict of interest it did say that by pleading guilty Mr. Chen was admitting
    that he was actually guilty.

[29]

The
    Crown did not cross-examine the appellants husband.

The Crowns fresh evidence

[30]

The
    Crown filed an affidavit from Mr. Barrs and two affidavits from Donald MacAlister,
    an Ontario Provincial Police officer and one of the lead investigators into the
    marijuana grow-operations forming the subject matter of the charges.

i) Mr. Barrs evidence

[31]

In
    his affidavit, Mr. Barrs notes that the 30-day appeal period for the
    appellants case expired on February 15, 2010. His practice is to keep criminal
    files for five years. Although he looked for the appellants file following her
    initial request in January 2016, his office no longer has it.
[4]
His recollection is that documentation seized at the appellants home connected
    her to many of the grow-operations.

[32]

On
    January 15, 2010, Mr. Barrs met with the appellant in the cells at the
    Belleville courthouse with an interpreter. According to his recollection, the
    appellant was quite conversant with the case and knew the strength of the case
    against her. He says he believes that a date for preliminary hearing had been
    set for January 15, 2010
[5]
and that the Crowns non-custodial sentencing offer would have been off the
    table after that date. It is not his practice to have anyone plead guilty
    unless they have instructed him in writing that they are guilty. He would have
    advised the appellant there was a strong case against her
[6]
and would have indicated what the expected sentence would be. In terms of the
    appellants immigration status, he says he would have clearly advised [her] of
    the possible immigration consequences and that would have been reflected in
    the direction she signed. Mr. Barrs asserts that as a result of the plea
    agreement, the appellant was released from custody on January 15, 2010. He
    claims that she was very happy with the result he was able to negotiate for
    her. He also asserts that he can state with certainty that much of [the appellants]
    affidavit is false.

[33]

Mr.
    Barrs was cross-examined at length on May 4, 2017. He was a difficult and
    combative witness, a subject to which we will return. However, we note that throughout
    his cross-examination, Mr. Barrs maintained that he would not have permitted
    the appellant to plead guilty unless she acknowledged her guilt. He also
    maintained that he advised her she could be deported as a result of her guilty
    pleas and sentence. Mr. Barrs claimed the appellant signed a retainer agreement
    on January 15, 2010.

ii) Officer MacAlisters evidence

[34]

In
    his affidavits, Officer MacAlister outlined some of the investigative steps
    taken in relation to the grow-operations forming the subject matter of the
    charges. He also attached a number of photographs and documents taken at or
    seized from 30 Amanda Drive. The evidence he believed linked the appellant to
    the conspiracy included:

·

remnants of a grow-operation were found in the basement of 30
    Amanda Drive, including (untested) plant material on the floor, shelving with
    neon lamps and a boxed in basement window;

·

evidence the appellant owned 30 Amanda Drive;

·

evidence the appellant was the owner of and had recently
    purchased a Dodge Caravan police had observed at and travelling between the
    various grow-operations and had followed to 30 Amanda Drive;

·

the appellant, her husband and two other co-accused were found sleeping
    at 30 Amanda Drive and there was evidence implicating the appellants husband
    and the other co-accused in the conspiracy (for example, one co-accused was the
    owner of a property containing a grow-operation; the other co-accused had
    attended the storage locker where grow-op equipment was found; the appellants
    husband rented the storage locker and had been observed travelling between the
    various grow-operations);

·

a Home Depot packing slip in the appellants name relating to the
    purchase in Belleville of building materials delivered to one of the grow-op
    locations;

·

banking documents indicating tens of thousands of dollars had
    passed through the appellants accounts during the period of the investigation;
    and

·

Canada Revenue Agency documents indicating the appellants annual
    income for 2008 was $6,594.00.

[35]

In
    addition, Officer MacAlister attached a summary of the appellants July 17,
    2009 police statement to his affidavit. According to it, in her statement the
    appellant explained that she purchased 30 Amanda Drive in December 2008 with
    money ($42,000) she brought from China. She claimed she had a low interest rate
    mortgage requiring payments of $2300 per month. She asserted that her husband
    earned over $2000 per month and that she had two tenants who paid $1040 per
    month in rent. She also said various unnamed individuals paid her to use her
    van on the various occasions, including May 13-14, 2009 when the van was
    observed at various Kingston and Belleville grow-operations.

[36]

Officer
    MacAlister was cross-examined on his affidavit. During his cross-examination,
    he acknowledged that the case against the appellant was based on circumstantial
    evidence and that there were triable issues in relation to the evidence.

Should Mr. Barrs evidence be struck out?

[37]

The
    appellant moves under Rule 34.15 of the
Rules of Civil Procedure,
R.R.O.
    1990, Reg. 194,
[7]
to strike Mr. Barrs evidence on the grounds he was unresponsive on critical
    issues and refused to answer proper questions. In the alternative, she asks
    that an adverse inference be drawn in relation to his credibility.

[38]

As
    we have said, Mr. Barrs was a difficult and combative witness during
    cross-examination. He was also disdainful and disrespectful of both the process
    and appellants counsel.

[39]

For
    example, on numerous occasions he referred to the process as nonsense, a waste
    of time, an abuse of process, a scam or other similar descriptors. Although respondents
    counsel was present, he took it upon himself to question the relevance of some
    of the appellants counsels questions or called them stupid. He also accused
    appellants counsel of coaching the appellant.

[40]

That
    said, taking account of the passage of time and the fact that he is no longer
    in possession of his file, in the main, Mr. Barrs responded to questions
    relating to his representation of the appellant based on his present
    recollection and his review of the transcript of the guilty plea proceeding.

[41]

In
    our view, it was not unreasonable for Mr. Barrs to refuse to review the
    voluminous Crown disclosure to assist him in responding to questions about his
    assessment of the strength of the Crowns case. What is relevant for the
    purpose of this appeal is his assessment of the case while it was progressing
    and the advice he gave to the appellant at the relevant time.

[42]

As
    for Mr. Barrs failure to produce his account(s) relating to his representation
    of the appellant and her husband, we note that we have no evidence that the
    parties themselves are not in possession of any such accounts. And while we
    agree that Mr. Barrs should have looked for his accounts, any electronic
    correspondence he may still possess, and for any courier receipt regarding
    picking up the disclosure, any failure to do so does not support the requests
    to strike his evidence or draw an adverse inference against his credibility.

[43]

Mr.
    Barrs has given evidence that he is no longer in possession of his file. We see
    nothing in the record to support the appellants counsels suggestion that he
    found his file, or part of it, in January 2016 and is refusing to produce it.
    The appellant did not move for an order requiring Mr. Barrs to search his
    electronic records for his account(s); any correspondence pertaining to this
    matter; or the courier receipt but instead brought this motion on the return
    date of the appeal hearing. At this stage, the suggestion that any electronic
    records that may exist would support the appellants position on appeal is speculative.

Were the appellants guilty pleas informed?

[44]

To be valid, a guilty plea must be voluntary,
    unequivocal, and informed:
R. v. R.T.
(1992),
    10 O.R. (3d) 514 (C.A.), at para. 14. The appellant does not take issue with
    the first two prongs of this test.

[45]

To be informed, the accused must be aware of the
    nature of the allegations and the effect and consequences of the plea:
R.T
.
, at para. 14; see also
R.
    v. Quick
,
2016 ONCA 95,
    129 O.R. (3d) 334.

[46]

During oral argument, appellants counsel acknowledged
    that if we accept Mr. Barrs evidence that he advised the appellant of
    potential immigration consequences in that she could be deported if she pleaded
    guilty, then we could conclude that her guilty pleas were informed.

[47]

The appellant deposed that Mr. Barrs told her
    there would be no impact on deportation based on her guilty pleas or sentence.

[48]

For several reasons, we accept Mr. Barrs
    evidence and reject the appellant's evidence on this point.

[49]

First, certain key aspects of Mr. Barrs
    evidence are confirmed by the record or not disputed. For example, he deposed
    that he obtained a handwritten direction that the appellant signed with the
    benefit of an interpreter. Although the content is not confirmed, the existence
    of a direction was placed on the record and is acknowledged by the appellant.
    Further, although they do not agree with Mr. Barrs about the content of the
    discussions, both the appellant and her husband acknowledge that the
    immigration consequences of their pleas were discussed. In addition, Mr. Chen
    confirms that the direction he signed stated that he would be pleading guilty
    to certain offences and that by
pleading guilty he was admitting his
    guilt. We find it inconceivable that Mr. Chens direction contained such an
    acknowledgment but the appellants did not.

[50]

Second, we find Mr. Barrs assertions that he
    would not have allowed the appellant to plead guilty had she professed her
    innocence to be entirely credible and consistent with his standing as a
    criminal lawyer with 40 years of experience.

[51]

Third, the appellant deposed that she told Mr.
    Barrs she was innocent and asked why she had to plead guilty. He allegedly told
    her that because her husband was involved, and she did not try to stop him, she
    was guilty. We find this evidence not only self-serving but preposterous. Moreover,
    we reject the submission that we should view this as a mere misunderstanding
    based on interpretation issues. There is no evidence to that effect.

[52]

Fourth, several aspects of the appellant's
    affidavit and cross-examination are implausible. As but one example, her claim
    that she purchased the van that was spotted travelling between grow-operations
    for her tenant because he was her husbands friends relative and a refugee
    claimant who could not purchase a vehicle  and her further claims that she loaned
    the van to other individuals for cash to help pay the monthly payments, not
    knowing what they used it for  while acknowledging she drove another vehicle 
    simply make no sense.

[53]

Fifth,
given that it is acknowledged that
    immigration consequences of the pleas were discussed, we find the claims by the
    appellant and her husband that Mr. Barrs told them there would be no impact on
    deportation or that they would not be deported if the sentence was less than
    two years implausible.

[54]

In 2010, at
the time of the guilty pleas, the
Immigration
    and Refugee Protection Act
, S.C. 2001, c. 27 (the "IRPA"),
    provided that a permanent resident would be inadmissible to Canada on grounds
    of "serious criminality" under s. 36 or "organized
    criminality" under s. 37. At the time, a permanent resident could appeal ones
    inadmissibility for a finding of serious criminality under s. 36, if sentenced
    to a term of imprisonment of less than two years
[8]
,
    but had no right of appeal with respect to a finding of organized criminality.

[55]

Even assuming Mr. Barrs was unaware of the
    provisions of s. 37, it is implausible that he would advise a client there
    would be no immigration consequences if sentenced to a term of imprisonment of
    less than two years. The only significance of a sentence of imprisonment of
    less than two years was that a person found inadmissible had a right of appeal.
    What is more plausible is Mr. Barrs evidence of what he told the appellant and
    her husband, that is, the guilty pleas
could
result in deportation. Mr. Chen is a case in point. Even though he was
    convicted of conspiracy, immigration authorities apparently proceeded against
    him under s. 36 only  and, although inadmissible, he succeeded in his appeal
    on compassionate and humanitarian grounds.

[56]

Based on the foregoing reasons, where the
    appellant and her husbands evidence conflict with the evidence of Mr. Barrs,
    we accept the evidence of Mr. Barrs. We are satisfied that Mr. Barrs informed
    the appellant that, if she pleaded guilty, there could be immigration
    consequences in that she could deported. Accordingly, we would not give effect
    to this ground of appeal.

Was Mr. Barrs in a conflict of interest?

[57]

We do not accept the appellants submission that
    she was deprived of effective assistance of counsel because Mr. Barrs was in a
    conflict of interest.

[58]

This issue calls for a fact-specific inquiry. Based
    on the evidence that we accept, Mr. Barrs met the appellant for the first time
    on January 15, 2010. On that day, the trial Crown offered favourable terms for
    guilty pleas for both the appellant and her husband. The offer was time-limited,
    and the trial Crown was firm in her position concerning to which offences the
    parties should plead, the sentences she would seek, and the forfeiture orders that
    should be made.

[59]

Mr. Barrs was obliged to convey the Crowns offer
    to both the appellant and her husband. On Mr. Barrs evidence, which we accept,
    both the appellant and her husband acknowledged their guilt, and both wanted to
    accept the Crowns offer.

[60]

Given these facts, we are not persuaded that the
    interests of the appellant and her husband were immediately and directly
    adverse. Nor are we satisfied that there were factors present that could
    reasonably be perceived as affecting judgment:
Canadian National
    Railway Co. v. McKercher LLP
,
2013 SCC 39, [2013] 2 S.C.R. 649
,
at para. 38, citing
D.
    W. M. Waters, M. R. Gillen and L. D. Smith, eds.,
Waters Law of
    Trusts in Canada
, 4th ed. (Toronto: Carswell, 2012), at p. 968
; see also
R. v. Baharloo
,
2017 ONCA 362, 348 C.C.C. (3d) 64, at para. 36. When Mr. Barrs went
    to Belleville on January 15, 2010, he did not anticipate representing the
    appellant or her husband on guilty pleas that day. Having regard to the firm
    position taken by the trial Crown in her offers and the fact that both accused
    acknowledged their guilt, we are not persuaded Mr. Barrs was faced with any
    conflict in his duty of loyalty by representing both the appellant and her
    husband on their guilty pleas.

Was the appellant deprived of effective
    assistance of counsel?

[61]

We also reject the appellants submission that
    she was deprived of effective assistance of counsel because Mr. Barrs failed to
    review with her the Crowns disclosure, failed to obtain her version of events,
    and failed to advise her of available defences.

[62]

On Mr. Barrs evidence, the appellant was
    conversant with the case against her, and he advised her that the Crown had a
    strong case such that it was his opinion she would be committed for trial
    following a preliminary inquiry. Based on our review of the fresh evidence
    record, this was a reasonable assessment. Moreover, in agreeing to plead
    guilty, the appellant acknowledged that she was guilty of the offences forming
    the subject matter of the Crowns offer. For the reasons outlined above, where
    the appellants evidence differs from that of Mr. Barrs, we prefer Mr. Barrs
    evidence. In our view, the appellant has failed to establish that any
    shortcomings in Mr. Barrs representation give rise to a miscarriage of
    justice. See
R. v. G.D.B
.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-29.

Did the facts read in by
    the Crown on the guilty pleas support findings of guilt?

[63]

Although the facts read in on the guilty pleas
    were sparse in terms of connecting the appellant to the conspiracy to produce
    marijuana, and, in turn, the other offences relating to the grow-ops, we are
    satisfied they were sufficient, in combination with the appellants guilty
    pleas, to support findings of guilt. In particular, the following assertions
    together with the appellants guilty pleas established the appellant was
    involved in the conspiracy and was guilty of the other offences arising from
    the grow schemes:

·

the appellant owned 30 Amanda Drive;

·

30 Amanda Drive was the base of operations for
    the conspirators, some of whom owned and actively operated several sophisticated
    marijuana grow houses, involving significant thefts of water and electricity
    and about 24,000 plants;

·

30 Amanda Drive housed vehicles seen during the
    course of police surveillance, including a vehicle owned by the appellant; and

·

receipts for building materials associated with
    grow schemes were found in the bedroom closet of the appellant and her husband
    at 30 Amanda Drive.

[64]

Viewed in combination with the appellants
    guilty pleas, the facts read in established that, even though she was never
    seen at any of the grow-operations, the appellant knew of the grow-operations
    and what they entailed and provided assistance to those who actively operated
    them.

The sentence appeal

[65]

As noted above, the appellant seeks leave to appeal sentence. She submits
    the sentence imposed is unfit because the sentencing judge failed to consider
    the immigration consequences of the sentence. Further, she claims that the
    forfeiture orders were grossly disproportionate to any culpability and that
    there was no evidence that the money and property forfeited were proceeds of
    crime.

[66]

The appellants argument concerning the immigration consequences of
    the sentence is premised on an assumption that a conditional sentence qualifies
    as a term of imprisonment within the meaning of ss. 36(1) and 64(2) of the IRPA,
    such that her sentence of 135 days of time served plus a six-month conditional
    sentence qualified as serious criminality under those sections, making her
    inadmissible to Canada under s. 36(1) and removing any right of appeal by ss.
    64(1) and (2).

[67]

In its recent decision in
Tran v. Canada (Public Safety
    and Emergency Preparedness)
, 2017 SCC 50, released after
    this appeal was argued, the Supreme Court of Canada clarified that a
    conditional sentence does not qualify as a term of imprisonment within the
    meaning of ss. 36(1) and 64(2) of the IRPA. As the conditional sentence has
    been served and it is not argued that the period of 135 days of time served and
    a six-month conditional sentence is otherwise unfit, it is not necessary that
    we deal with this argument.

[68]

As for the appellants arguments concerning the forfeiture orders,
    we observe that they were part of the plea offer the appellant accepted. We
    also observe that the other aspects of the sentence the sentencing judge imposed
    were quite lenient  a six-month conditional sentence (as opposed to the 12
    months the Crown requested) with no house arrest, followed by 12 months
    probation without reporting conditions, in addition to 135 days of time served.
    In these circumstances, we do not accept the appellants argument that the
    forfeiture orders were disproportionate.

[69]

The appellant also argues that there was no evidence that the
    property and money subject to the forfeiture orders were proceeds of crime.
    However, the basis on which the forfeiture orders were made is unclear. The formal
    orders are not in the appeal record. Had the appellant pursued the issue of the
    forfeiture orders in a timely manner, the orders would likely have been
    available.
[9]
In any event, if there was no valid underlying basis for making the forfeiture
    orders, we are satisfied that the appellant would have pursued this issue
    before now. In all the circumstances, leave to appeal sentence is denied.

Disposition

[70]

Based on the foregoing reasons, the conviction appeal is dismissed
    and leave to appeal sentence is denied.

Released:

DB                                         Janet
    Simmons J.A.

DEC -5 2017                          K.
    van Rensburg J.A.

David
    Brown J.A.





[1]

During his cross-examination, Mr. Barrs initially asserted
    that he spoke to the appellant by telephone a number of times prior to January
    15, 2010. He later agreed that he communicated with her through her husband.



[2]

In his cross-examination, Mr. Barrs disputed that he was
    retained specifically to conduct a bail review for the appellant. His position
    is that he was retained to act for both parties and that if a plea agreement
    had not been reached he would have conducted a bail review for the appellant 
    which would have been contested.



[3]

Although Mr. Barrs acknowledged on his cross-examination that
    he would have had Mr. Chen sign a waiver at their initial meeting, he
    maintained the conflict was potential and that he agreed, initially, to act
    for both Mr. Chen and the appellant.



[4]

In correspondence with appellants counsel and during his
    cross-examination, Mr. Barrs also noted that certain files older than five
    years that were stored in the basement of his office had been lost due to water
    damage.



[5]

During his cross-examination, Mr. Barrs initially asserted
    that the January 15, 2010 date was for a conference and that the plan was to
    set a date for a preliminary inquiry when they finished the conference. Later
    he said he did not think the preliminary was set to begin that day, but he was
    not sure. On reviewing the information, it appears that January 15, 2010 was
    the date for a continuing pre-trial for the appellant and her husband. By that
    date, three co-accused had already pleaded guilty and another had set a date
    for a preliminary inquiry in March 2010.



[6]

During his cross-examination, Mr. Barrs indicated his view of
    the case was that the appellant would be committed for trial following any
    preliminary inquiry.



[7]
Section 2(1) of the
Criminal Appeal Rules
, SI/93-169,
    states: 
Except where otherwise provided by the Code, a statute or these rules,
    the
Rules of Civil Procedure

where
    appropriate and with necessary modifications apply to criminal appeals.



[8]
Section 64(2) of the IRPA. Section 24 of
the
Faster Removal
    of Foreign Criminals Act
, S.C. 2013, c. 16, amended s. 64(2) of the
IRPA
to allow a person found inadmissible to Canada on grounds of serious
    criminality to appeal only if he or she had been sentenced to a term of
    imprisonment of less than six months.
Section 24 of
The
    Faster Removal of Foreign Criminals Act
came into
    force on June 19, 2013.



[9]

The appellant relies on the contents of an e-mail from a
    Government of Canada case officer to assert that her house and its contents
    were forfeited as proceeds of crime rather than as offence related property.
    However, we fail to see how this unsworn document that contains no information
    concerning the basis of the case officers knowledge is evidence of anything.


