COURT INTERVENES IN SENTENCING OF REFUGEE

This is a very interesting, just released case which continues the ongoing debate on criminal sentencing of non-citizens, and whether their immigration status should be taken into consideration to the point that the sentences imposed are unduly unfit in the circumstances of each case. Here, the Saskatchewan Court of Queen's Bench held that a series of discharges for a serial offender who had been granted refugee status was unfit and warranted a rare intervention by the court to change the sentence to a probationary period. This is a complex area of the law, and there is considerable room for debate in each case, as the circumstances vary widely.



R. v. Nistor

Between

Her Majesty the Queen, Appellant,
and
Daniel Nistor, Respondent

[2009] S.J. No. 744

2009 SKQB 464Docket: Q.B.C.A. No. 13 of 2009 Saskatchewan Court of Queen's Bench
Judicial Centre of Saskatoon

M.D. Acton J.

November 30, 2009.
(43 paras.)


JUDGMENT

1 M.D. ACTON J.:-- This is a sentencing appeal by the Crown from a decision of the Provincial Court of Saskatchewan of March 4, 2009 at which time the respondent was sentenced to three consecutive six-month conditional discharges based on a conviction of November 14, 2008 on three counts of assault contrary to s. 266 of the Criminal Code of Canada. The respondent has served eight of the eighteen months of the conditional sentence.

2 The respondent is a Romanian gypsy who is currently in Canada on refugee status.

3 The three sentences being appealed relate to an incident involving an assault by acts of personal violence toward three separate victims: one being the former partner of the respondent and the mother of his child, another woman who was a neighbour, and the neighbour's teenage son.

4 The respondent had previously received the benefit of conditional discharges on two prior offences, one, February 26, 2007 in Saskatoon, Saskatchewan, for theft under $5,000 contrary to s. 334(b) of the Criminal Code, and one February 25, 2008 at Calgary, Alberta for theft under $5,000 contrary to s. 234(b) of the Criminal Code. At the time of the trial respecting the three assault charges the respondent had two outstanding charges for breach of conditions on the previous conditional sentences but these have not yet been dealt with by the Court. He subsequently pleaded guilty to the breaches under a joint submission resulting in a further conditional sentence.

5 The appellant submits that the trial judge erred in granting the respondent a conditional discharge following his conviction, on three counts of common assault. The appellant argues that a discharge should not be granted where it would otherwise clearly not be mandated. The mere fact that the immigration authorities might not be sympathetic to a convicted accused's situation should not affect the appropriate sentence imposed. In addition, the appellant argues that in deciding whether or not a discharge should be granted, the Court may consider whether the accused had been granted a discharge on previous occasions.

6 The appellant argues that given the serious nature of the charges, together with the respondent's criminal history, a conditional discharge was not in the range of sentence appropriate for such an offence, nor is it in the public interest to grant the respondent a third, fourth and fifth conditional discharge.

7 The appellant recommends that the Court impose fines followed by probation on each count or in the alternative a suspended sentence with probation and community service in lieu of fines rather than conditional discharges.

8 The respondent argues that the general principles of sentence appeals mandate a significant deference to the sentencing judge. He states that the trial judge was allowed to consider the respondent's immigration status as a refugee in making his decision. Further, the respondent argues that the trial judge was aware of and considered all the relevant factors in determining an appropriate sentence which has not been demonstrated to be unfit or fall outside the reasonable range of sentences for common assault pursuant to s. 266 of the Criminal Code.

THE LAW

9 The purpose and principles of sentencing are set out in s. 718 of the Criminal Code:
718.
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a)
to denounce unlawful conduct;
(b)
to deter the offender and other persons from committing offences;
(c)
to separate offenders from society, where necessary;
(d)
to assist in rehabilitating offenders;
(e)
to provide reparations for harm done to victims or to the community; and
(f)
to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

10 Section 718.2 sets forth other sentencing principles. The portions relevant in the current situation are:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a)
a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
...
(ii)
evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,
(ii.1)
evidence that the offender, in committing the offence, abused a person under the age of eighteen years, ...
shall be deemed to be aggravating circumstances;
(b)
a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c)
where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d)
an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
...
11 Section 718.01 of the Criminal Code is particularly relevant with respect to the offence against the neighbour's teenage son which section states:
Objectives - offences against children - When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
The court must also consider s. 718.1 of the Criminal Code which states:
Fundamental principle - A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

12 As well, when imposing a conditional sentence s. 742.1 of the Criminal Code is relevant and states:
742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under section 742.3.

13 The compulsory conditions of a conditional sentence, set out in s. 742.3(1) are as follows:
742.3(1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:
(a)
keep the peace and be of good behaviour;
(b)
appear before the court when required to do so by the court;
(c)
report to a supervisor
(i)
within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and
(ii)
thereafter, when required by the supervisor and in the manner directed by the supervisor;
(d)
remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
(e)
notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

14 Guidance in the application of these provisions of the Criminal Code are provided by the Supreme Court of Canada in R. v. Proulx, [2000] 1 S.C.R. 61 and by the Saskatchewan Court of Appeal in R. v. Laliberte (M.R.), 2000 SKCA 27, 189 Sask. R. 190 and by the decisions cited therein.

15 The Supreme Court in R. v. Proulx, supra, summarizes the law respecting sentencing appeals as follows (at page 65):
Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

16 Respecting elements favouring a conditional sentence the Court stated at para. 122:
... Therefore, it would be in the offender's best interests to establish those elements militating in favour of a conditional sentence. ... For instance, the offender should inform the judge of his or her remorse, willingness to repair and acknowledgment of responsibility, and propose a plan of rehabilitation. The offender could also convince the judge that he or she would not endanger the safety of the community if appropriate conditions were imposed. ...

17 The Supreme Court goes on further to state at para. 125:
Although an appellate court might entertain a different opinion as to what objectives should be pursued and the best way to do so, that difference will generally not constitute an error of law justifying interference. Further, minor errors in the sequence of application of s. 742.1 may not warrant intervention by appellate courts. Again, I stress that appellate courts should not second-guess sentencing judges unless the sentence imposed is demonstrably unfit.

18 The Saskatchewan Court of Appeal in R. v. Laliberte, supra, considering conditional sentences, considerations in imposing sentences, the powers of an appeal court in variation of sentences and the effect of the decision of the Supreme Court of Canada in R. v. Proulx, supra, and the effect of ss. 718 to 718.2 on the purposes and principles of sentencing wherein the Court states at paras. 73 and 74:
[73] In C.A.M. [[1996] 1 S.C.R. 500], Chief Justice Lamer, while acknowledging the important function appellate courts serve in reviewing and minimizing the disparity of sentences, cautioned courts of appeal to exercise a margin of deference before intervening in the "specialized discretion that Parliament has explicitly vested in sentencing judges" ... Appellate courts should only interfere where there has been a substantial and marked departure from sentences customarily imposed for similar offences. Courts of appeal should not be quick to use a so called disparity to interfere with sentences imposed by trial judges. To do so runs contrary to the role of appellate courts.
[74] ... consider all available sanctions other than imprisonment that are reasonable in the circumstances. Those new statutory provisions coupled with the new conditional sentence of imprisonment created by s. 742.1, which the Supreme Court recognized in Gladue [1999] 1 S.C.R. 688] as creating a new sentencing regime, expand the principles and parameters of sentencing. They require appellate courts to re-examine the appropriateness of sentences imposed prior to September 3, 1996, including where the sentences are served, and the ranges created for such offences. This is necessary for the purpose of determining whether there is disparity in sentences imposed subsequent to September 3, 1996, pursuant to Part XXIII.

19 As the appeal before the Court considers the effect of the respondent's status as a refugee the Court must also consider the effect of s. 64 of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 27 ("IRPA"), which states:
64.(1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
(2)
For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.

20 This section of the IRPA strips a refugee of his right to appeal to the Immigration Appeal Division when he has been convicted of a criminal offence and punished for a term of at least two years. Although the court does not presently have jurisdiction to deal with the immigration matter, the fact that the respondent may inevitably lose his right to appeal a decision of the Immigration Appeal Division is one that should be considered when imposing a just sentence.

21 A number of decisions have considered s. 64 of the IRPA in the context of criminal sentencing. The common view is that an unduly tough sentence should not be imposed where the effect of the sentence produces "unintended collateral consequences". In R. v. Leila, 2008 BCCA 8, [2008] B.C.J. No. 30 (QL), the Court of Appeal reversed the sentence of the accused and imposed a sentence of two years less one day. At para. 23, the Court stated:
I agree with appellant's counsel that the loss of the appellant's immigration appeal rights is a disproportionately severe collateral sanction, which was unforeseen by the appellant and his counsel at the sentencing hearing and apparently unintended by the sentencing judge. In the circumstances of this case, reducing the appellant's sentence to one which will allow him to preserve his immigration appeal rights is inconsequential to the sentence principles relied upon by the sentencing judge.

22 The avoidance of "unintended collateral consequences" has also been considered by the Saskatchewan Court of Appeal, in R. v. Almajidi, 2008 SKCA 56, 310 Sask. R. 142, a decision that cited Leila with approval.

23 It is admitted by counsel for the respondent that the result of the conviction will not result in automatic deportation. As noted in R. v. Kanthasamy, 2005 BCCA 135, 195 C.C.C. (3d) 182, the immigration consequences can be a relevant consideration in sentencing. Donald J.A., for the Court, stated:
[14] The question of fitness in this case relates not to the quantum of the sentence, in the ordinary sense, but to a serious but unintended collateral effect of the penalty. The matter of a single day, two years rather than two years less a day, is inconsequential in terms of denunciation, retribution and deterrence, although it determines the availability of a probationary order and it also designates which corrections system, Federal or Provincial, is engaged.
[15] But, in relation to the appellant's immigration status and his personal safety, the difference of one day carries potentially enormous consequences. ...

24 In Kanthasamy, the Court cited R. v. Hamilton and Mason (2004), 186 C.C.C. (3d) 129 (Ont. C.A.) as standing for the principle that the sentencing process should not be used to circumvent the IRPA, nor should the IRPA be used to defeat the applicable goals of sentencing. At para. 156 of Hamilton:
The case law referable to the relevance of deportation in fixing an appropriate sentence addresses two very different situations. In the first situation, it is acknowledged that imprisonment is the only appropriate sentence and that deportation from Canada will inevitably follow upon completion of the sentence. In the second situation, it is argued that a certain kind of sentence should be imposed to avoid the risk of deportation from Canada. In the first situation, the certainty of deportation may justify some reduction in the term of imprisonment for purely pragmatic reasons: R. v. Critton, [2002] O.J. No. 2594 (S.C.J.) (QL) ..., at paras. 77-86. In the second situation, the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Protection Act. As indicated above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender: ...

25 Imposing a sentence of less than two years will not deny the respondent's right of appeal. Nor will it prevent the Immigration Appeal Division from considering whether the respondent would be inadmissible, pursuant to s. 36 of the IRPA.

26 In the circumstances of this case the respondent's right to appeal will not be significantly affected by the imposition of a more severe sentence, provided the sentence is less than two years of incarceration.

27 The appellate division of the Alberta Supreme Court in R. v. Fung (1973), 11 C.C.C. (2d) 195 at 196 stated:
... The appellant is in Canada not as of right but as a privilege. We do not think the section should be applied in order to influence the immigration authorities; in fact to the contrary, we think the immigration authorities are entitled to know that the appellant has committed the offence and to take such into consideration in coming to a decision whether the appellant should be allowed to remain in Canada.
The Court declined to substitute a conditional discharge for the conviction of an individual from Hong Kong in Canada on a student visa.

28 This view is repeated in R. v. Melo (1975), 26 C.C.C. (2d) 510 (Ont. C.A.), wherein the Court states at para. 22:
... The case is clearly one in which, apart from immigration considerations, not even a conditional discharge should have been granted. Accordingly, in keeping with the principles I have earlier stated, the fact of imminent jeopardy with the immigration authorities ought not to lead to the granting of a discharge in this case.

29 As stated in R. v. Mendoza (1993), 135 A.R. 395 (C.A.), at para. 3:
We agree with the Ontario Court of Appeal in The Queen v. Melo (1975), 26 C.C.C. (2d) 510, that the fact that an accused person's immigration status will be adversely affected does not in itself justify the granting of a discharge; nor will the granting of a discharge ensure that the appellant will not face deportation. ...

30 It is also noted in R. v. Tan, [1975] 2 W.W.R. 747, the British Columbia Court of Appeal stated at page 751:
These facts [that the accused had received a previous conditional discharge] were being introduced in this case, not to form the basis of a request for greater punishment, but rather to satisfy the Court that the Court should not form the consideration referred to in s. 662.1(1) [Criminal Code] and thus make a direction for another conditional or absolute discharge and for the second time absolve the appellant from punishment.
This construction is in complete harmony with the objects which s. 662.1 seeks to achieve and it rejects the complete and total absurdity which would result otherwise.

31 McIntyre J.A. goes on further to state at page 751-52:
... In deciding whether to grant or withhold a discharge under the provisions of the Criminal Code, R.S.C. 1970, c. C-34, s. 662.1 [en. 1972, c. 13, s. 57], the sentencing judge must consider both the interest of the accused and that of the public. In the second consideration the question of whether the accused person has had a previous discharge and the manner of his or her reaction to it is certainly both by logic and common sense a relevant factor to be known and considered by the judge. This information may, indeed must, be put before the judge so that he can discharge his task in considering the fundamental conditions under which a discharge may be given.
No question of a past conviction is involved. In dealing with the matter the trial judge is merely weighing a factor relevant to the disposition of the case. ...

32 The respondent has referred the Court to a number of cases involving the consideration of a conviction on the accused's ability to state his case under the Immigration Act including possible deportation. Most of the cases referred to were minor shoplifting cases and all of the cases appear to be first-time offences with no prior criminal record even R. v. Boyle (1990), 100 N.S.R. (2d) 39 (T.D.), where the accused was found guilty of causing bodily harm.

33 In the case before the Court it is noted that the respondent did not plead guilty to his offences, failed to express any remorse for his actions, continued to deny the allegations of assault throughout the trial and inflicted an assault with violence upon a domestic partner as well as an individual under the age of 18 years.

34 The trial judge in making his decision stated at page 262 of the transcript, at line 5:
... the only issue is whether he gets it by way of a suspended sentence, probation or -- or a conditional discharge.
Ordinarily I'm not inclined to give conditional discharges on assaults, especially when the assault involves a -- a family member, a partner. And the reason for that is not -- not because of any particular reasons that I feel, but it's what Parliament has said, and Parliament has said that I have to treat them more seriously than an ordinary assault. And in this case having heard the trial, the facts are not minimal either when I look at all of the things that happened that -- that particular evening.
I am mindful of -- however, of the immigration issues here, and of the -- what might be in the best interests of the accused, but only be if it was not contrary to the public interest that I would not grant a conditional discharge. ...

35 The trial judge states further on page 267, lines 5-16:
Mr. Nistor, I'm very cognizant of the fact that -- that had I done -- that if -- if you breach any of these conditions and lose out on the benefit of conditional sentence then you may very well be deported. And if you are, I'm trying to avoid that because as I told the Crown, I want the punishment to fit the crime here. But had it not been for the special situation you're in as a refugee in Canada, I would have considered a suspended sentence here and you would have a criminal record arising out of this, so you'll have to govern yourself accordingly. ...

36 As stated by the Supreme Court of Canada, the court must consider what is in the best interest of the accused but only to the extent it is not contrary to the public interest combined with the principle that absent as stated in R. v. M. (C.A.), supra, at para. 90, "[p]ut simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit" [my emphasis].

37 In the current appeal, the Court does find there was an "overemphasis of the appropriate factors" as it relates to the respondent's refugee status while giving inordinately little weight to the principles of denunciation and general deterrence with the imposition of three further conditional sentences.

38 For the respondent to face a possible immigration hearing to justify why he should be allowed to remain in Canada would hopefully "promote a sense of responsibility" in the respondent and encourage an "acknowledgment of the harm done to victims and to the community" (s. 718 of the Criminal Code). This is a far more significant denunciation of the actions of the respondent than five consecutive conditional discharges within slightly more than two years.

39 Had this been the first offence and first conditional discharge requested by the respondent this decision may have been different. However it is contrary to the public interest and would bring the administration of justice into disrepute to have successive conditional discharges considered appropriate because the accused claims refugee status. In arriving at this decision the Court has considered in particular s. 718 of the Criminal Code with respect to denunciation, deterrence and promotion of a sense of responsibility in offenders and acknowledgement of harm done to victims and to the community as well as the principles set forth in s. 718.2 with particular reference to ss. (2.1) and (b) as well as the quotation of Professor Mason in R. v. Laliberte, supra, at para. 36:
[36] Professor Manson puts it this way in Finding a Place for Conditional Sentences ...
"... Our Supreme Court, recently distinguished between retribution and denunciation:
'The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct ... in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code.'
...
"Regardless of how one explains denunciation, it is an expressive goal. Denunciation signifies a communal message about the gravity of the offence in general or the gravity of a particular offence as shaped by a characteristic of the offender. The goal of the expressive message is to promote fundamental values. It may only remind us of how we condemn certain conduct ...".
[emphasis in original]

40 The Court stated further at para. 71:
Section 718.2(b) of the Code provides: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This implies there must not be an unjustifiable disparity in sentences between sentences imposed for similar offences and similar offenders. ...

41 The principles of denunciation and deterrence are of paramount significance in cases involving domestic violence (s. 718.2(a)(ii) of the Criminal Code). As stated by the Ontario Court of Appeal in R. v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.), the Court states at para. 27:
... this court has repeatedly emphasized that the principles of denunciation and deterrence are of paramount importance in cases involving domestic violence ... In Denkers, in particular, this court indicated that the sentences imposed in cases involving domestic violence must be such that they will foster an environment in which individuals can feel free to leave romantic relationships without fear of harassment or harm, and without fear of violence aimed at forcing a return to a no longer wanted relationship: ...

42 To grant five conditional discharges successively to one accused on three occasions in less than a two-year period when such a large number of conditional discharges would not be granted to other individuals for similar offences is not in compliance with s. 718.2(b) of the Criminal Code.

43 For the reasons set forth above the Court does find the original sentence demonstratively unfit and the appeal is allowed. The three consecutive conditional discharges are replaced with one global suspended sentence of 18 months probation upon the same conditions as set forth by the trial judge in the original sentence.

M.D. ACTON J.