IMMIGRATION ISSUES IN THE CRIMINAL SENTENCING PROCESS

Here is a recent case highlighting the consideration of immigration issues in the criminal sentencing process, particularly the ability of a person convicted of a serious offence to have access to appeal a removal order to the Immigration Appeal Division (IAD). Judges in criminal courts appear to be increasingly persuaded by defendants to impose lighter sentences so they can avail themselves of the immigration appeal process, even though a Canadian citizen would not have access to such argument. This defeats the intent of the Immigration and Refugee Protection Act, which was aimed at deporting serious criminals from Canada. Can an argument be made that such considerations are a breach of the Charter protection of equality before the law? Shuld judges in criminal proceedings treat defendants more leniently based on their immigration status? It would be interesting if the Supreme Court of Canada could tackle this issue at some point.

R. v. Gurm

BetweenHer Majesty the Queen, andGurcharan Gurm, Defendant
[2009] O.J. No. 5007

Court File No. CRIMJ(F)2501/08 Ontario Superior Court of JusticeB.J. Wein J.Heard: November 8, 2009.Judgment: November 12, 2009.
(12 paras.)

REASONS FOR SENTENCE
B.J. WEIN J.:--

Overview

1 Following a trial by jury Mr. Gurm was convicted of importing opium into Canada. The Crown recommends a sentence of between two and three years in the penitentiary while the defence submits that a reformatory sentence of between 18 months and two years less a day plus probation, is adequate to meet the principles of sentencing. Given the jurisprudence in this jurisdiction, and the particular circumstances of the case, including the fact that Mr. Gurm is a landed immigrant in this country, I am satisfied that the principles of sentencing will adequately be met with a sentence of two years less a day plus two years probation on terms.

The Facts:

2 Mr. Gurm flew into Pearson International Airport in Toronto from India via the Soviet Union. He was found to be carrying, in his carry-on bag and in one of his two larger suitcases, several packets of opium packaged in hockey puck shapes and wrapped for concealment. He was also carrying a small paper pipe made from a rolled up rupee note, which tested positive for opium. The packets were secreted in hidden pockets in the lining of a jacket and pants. One packet and the pipe were wrapped in a towel in his carry-on baggage. The commercial value of the opium, if sold in Canada at one gram street level amounts, is between $10,000 and $17,000.


3 Mr. Gurm acknowledged that while in the Punjab, where he had been visiting friends and overseeing the construction of a new home for his extended family, he frequently got together with friends who smoked opium. He denied that he himself was a user. He indicated that the night before he flew home, he got very drunk partying with his friends, such that he was still hung over when it was time to pack his bags. His friends were in his room smoking opium and preparing to say goodbye. He allowed his friends to pack his bags. They also carried the bags out to the car. He denied knowledge that there were drugs in his luggage, and denied even indirect knowledge through wilful blindness, but the jury clearly found to the contrary.

Legal Parameters:

4 Case law indicates that for substantial quantities of an opiate drug, the penalty for importation, depending on quantity and other circumstances, can range from low to mid penitentiary terms, even in the case of first offenders. See, for example, R. v. Rashidi-Alavije, [2006] O.J. No. 4015 (S.C.), affirmed [2007] O.J. No. 4005 (C.A.). However, where a person is a landed immigrant, if they receive a penitentiary sentence, they will be denied the right of appeal if ordered deported from Canada, pursuant to the provisions of s. 64 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. It has been affirmed that it is appropriate for the Court to consider the risk of deportation as a factor in deciding the sentence to be imposed and in tailoring the sentence to best fit the crime and the offender: R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), R. v. Suwalee Iamkhong, 2009 ONCA 478.
Reasons:


5 In this case, where Mr. Gurm is currently the sole supporter of his mother and grandmother, who reside in Canada, and who will both have to live with other relatives while he is incarcerated, a sentence of reformatory length would entitle the appellant to seek to remain in Canada. This is a strong consideration favouring the imposition of a reformatory sentence as submitted by the defence.


6 The amount imported in this case, while substantial, does not indicate that Mr. Gurm was a high level courier operating as a part of a significant drug trafficking ring. It is consistent with distribution amongst a smaller community. Similar considerations were reviewed in a recent decision of this court in R. v. Benipal, unreported, June 5, 2009, where a reformatory sentence was imposed.


7 The accused does not admit that he had knowledge, even in the sense that he was wilfully blind to the need to inquire about what his friends were putting in his luggage, but he did, in the exercise of his right of allocution, admit that he should have been more careful. The absence of a plea or admission is not an aggravating factor, but is simply the absence of a mitigating factor that is present in some cases where leniency is sought. In this case, as the defence pointed out, it must be acknowledged that the trial was run "efficiently", in the sense that all essential elements except knowledge were admitted, thereby shortening the trial and allowing the jury to focus on the sole issue in dispute.


8 As well, having observed Mr. Gurm throughout the trial and receiving the benefit of the pre-sentence report, which indicates that he has otherwise been a hard working and responsible young person, I am satisfied that the principles of sentencing, including the requirement that the sentence be sufficiently emphatic to denounce unlawful conduct, will not be impaired with the imposition of a reformatory sentence.


9 However, the seriousness of the offence does require that a maximum reformatory sentence be imposed. No real pre-trial custody has been served: Mr. Gurm was released after overnight detention. A lesser reformatory sentence would not adequately reflect the seriousness of this type of offence, or the potential for harm to society.


10 In the result, the sentence will be one of two years less a day in the reformatory, plus two years probation. The terms of probation will include, in addition to the mandatory conditions under s. 732.1(2) of the Criminal Code, conditions that Mr. Gurm remain in Ontario for the first year of probation and that he seek assessment and counselling recommended for any substance abuse problems. The latter is appropriate since one of the underlying admitted factors was an excessive consumption of alcohol, and the possibility of drug abuse is a factor that should be explored.

Ancillary Orders:

11 A mandatory weapons prohibition is ordered for a period of 10 years, pursuant to s. 109 of the Criminal Code. The appropriate provisions are to be read to Mr. Gurm.
12 For oral reasons given, an order under s. 487.051(2) of the Code authorizing the taking of a DNA sample is appropriate in this particular case, and accordingly such a sample will be ordered to be taken.

B.J. WEIN J.