COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Chen,

 

2017 BCCA 455

Date: 20171215

Docket: CA44690; CA44705

Between:

Regina

Respondent

And

Meng Ji Michael Chen

Appellant

Before:

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Dickson

On appeal from: an order of the Provincial Court of British Columbia, dated
February 24, 2017 (R. v. Chen, Vancouver Docket No. 233524)

Oral Reasons for Judgment

Counsel for the Appellant:

V.M. Williams

Counsel for the Respondent:

R. Leong

Place and Date of Hearing:

Vancouver, British Columbia

December 15, 2017

Place and Date of Judgment:

Vancouver, British Columbia

December 15, 2017

 


 

Summary:

Two sentences of six months’ imprisonment arising out of two convictions for possession of heroin and cocaine for the purpose of trafficking reduced each by one day to preserve the offender’s right of appeal in the event a deportation or removal order is made.

[1]          KIRKPATRICK J.A.: Meng Ji Michael Chen was convicted on November 23, 2016 in Provincial Court on two counts of possession of a controlled substance (heroin and cocaine) for the purpose of trafficking, pursuant to ss. 5 (1) and 5 of the Controlled Drugs and Substances Act. Mr. Chen was sentenced on February 23, 2017 to a six-month jail sentence on each count, to be served concurrently. On February 14, 2017, Mr. Chen pleaded guilty to one count of possession of cocaine for the purpose of trafficking. He was sentenced on February 24, 2017 to a six-month jail term to be served consecutive to the sentences imposed one day earlier.

[2]          By virtue of s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as a permanent resident of Canada, Mr. Chen became inadmissible and subject to removal from Canada when sentenced to more than six months’ imprisonment and, by virtue of s. 64(2), lost his right to appeal a removal order to the Immigration Appeal Division.

[3]          Mr. Chen applies for leave to appeal sentence, and if leave is granted, asks that his sentences by reduced by one day on each of the six-month sentences that were imposed.

[4]          Mr. Chen was 20 years old at the time of sentencing. He is a Chinese national and a permanent resident of Canada.

[5]          At the time of sentencing, neither Crown nor defence counsel advised the sentencing judges of the collateral immigration consequences of a six-month jail sentence.

[6]          Sentencing in both Provincial Court files proceeded by way of joint submissions. Mr. Chen’s counsel believed that the individual six-month jail sentences would not trigger any adverse immigration consequences and so advised Mr. Chen.

[7]          On the first file, Mr. Chen and the Crown sought a six-month jail sentence on each count to be served concurrently. In the second file, the sentence sought was a six-month jail term to be served consecutive to the concurrent sentences imposed the previous day. The judges accepted the joint submissions as reasonable and appropriate.

[8]          Mr. Chen’s applications for leave to appeal were overdue by five months. However, as the Crown rightly concedes, Mr. Chen was initially and incorrectly advised by his counsel that the six-month sentences would not result in the loss of his right to appeal his removal and he acted quickly upon the discovery of the error.

[9]          The Crown does not oppose the extension of time to appeal. In all of the circumstances, I consider that special circumstances exist in this case and that it is in the interests of justice to extend the time to appeal.

[10]       Similarly, the Crown does not oppose the granting of the appeal to reduce each six-month sentence by one day.

[11]       As the Supreme Court of Canada has indicated in R. v. Pham, 2013 SCC 15 at para. 25, where the sentencing judge was not aware of the sentences’ collateral immigration consequences and where the reduced sentence remains within the range of a fit sentence, we have the authority to intervene.

[12]       I would grant the extension of time to appeal sentence to August 22, 2017.

[13]       I would accede to the submissions of both counsel and reduce each sentence by one day to preserve Mr. Chen’s right of appeal in the event that a deportation or removal order is made against him.

[14]       FRANKEL J.A.: I agree.

[15]       DICKSON J.A.: I agree.

[16]       KIRKPATRICK J.A.: The time for leave to appeal sentence is extended as indicated. Leave to appeal is granted and the appeal against sentence is granted by reducing by one day on each of the six month sentences.

“The Honourable Madam Justice Kirkpatrick”