Thursday, April 1, 2010


Hare is another case, just released, dealing with whether or not a court can take into consideration the immigration consequences of a criminal sentence, and to what extent. In this case, the court decided that the immigration consequences are only a relatively small part of determining that a sentence is fit for the crime. Note paragraph 20 of the decision.

R. v. Belenky

Her Majesty the Queen, Appellant,
Alexander Sasha Belenky, Respondent

[2010] A.J. No. 318

2010 ABCA 98Docket: 0903-0288-ARegistry: Edmonton Alberta Court of Appeal
Edmonton, Alberta
J.E.L. Côté, K.G. Ritter and J.D.B. McDonald JJ.A.
Heard: March 16, 2010.
Oral judgment: March 16, 2010.
Filed: March 26, 2010.
(23 paras.)

Appeal From:
Appeal from the Sentence by The Honourable Judge L.G. Anderson.
Dated the 30th day of September

Memorandum of Judgment

The judgment of the Court was delivered by
J.D.B. McDONALD J.A. (orally):---


1 This is a Crown sentence appeal.
2 The respondent pled guilty to two counts of trafficking in cocaine (s. 5(1) of the Controlled Drugs and Substances Act). He was given a concurrent sentence of two years less a day, on each count followed by 18 months probation. The Crown appeals. In its factum the Crown had argued for a jail sentence in the range of two and a half to three years although in its oral submissions Crown counsel's position was that two and one-half years was sufficient.


3 The respondent sold 3.5 gm of cocaine for $200 to an undercover police officer on two separate occasions: March 18 and March 25, 2009. This was for commercial gain and the respondent was not an addict himself.
4 The sentencing judge's reasons refer to the following mitigating factors: the respondent's youth (born in 1988); his early guilty pleas; a "generally favourable" pre-sentence report; he is working; his family and co-worker support; and he "has been under strict release conditions for several months" and has "responded well".
5 The sentencing judge referred to the following aggravating factors: the drug in question was cocaine; there were two transactions; and the respondent had a prior criminal record which included a prior conviction for cocaine trafficking in 2007.
6 The Crown at the sentencing hearing had submitted that the appropriate range was two and a half to three years imprisonment. It sought a 33 months global sentence. The respondent sought two years less one day.
7 The sentencing judge referred to the respondent's immigration status. He was born in Ukraine and is a landed immigrant. He stated the respondent would be unable to appeal a deportation order if he received a penitentiary sentence. The Immigration and Refugee Protection Act, S.C. 2001, c. 27 at section 64 provides that there is no right of appeal from a deportation order where a term of imprisonment of at least two years has been imposed. It 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 [...] serious criminality [...]
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.
8 The sentencing judge cited R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), for the principle that if a sentence at or near two years is appropriate, the court may consider the consequence of deportation in imposing sentence. He thus sentenced the respondent to two years less a day.
9 At the time he was sentenced, the respondent had the following criminal record:

1. 2006-05-10 - Edmonton Alta (Youth Justice Court) Possession of a scheduled substance Sec 4(1) CDS Act Probation 3 mos
2. 2007-03-01 - (1) assault sec 266 CC, (2) obstruct peace officer Sec 129(a) CC; (3) Fail to comply with recognizance Sec 145 (3) CC (2 Chgs)
(1) and (2) - 30 days on each Chg (3) 30 days for each chg conc
3. 2007-05-15 - Edmonton Alberta
(1) Fail to comply with recognizance - Sec 145(3) CC - 60 Days
(2) Sec 5(1) CDSA - 24 months - 90 days remand = 21 months - 10 year weapon prohibition Sec 109(1)(c)
(3) Sec 129 (a) - 60 days
4. 2007-10-09 - Sec 145(3) - 91 days consecutive

Standard of Review

10 Sentencing decisions attract considerable deference: R. v. C.A.M., [1996] 1 S.C.R. 500 at paras. 89-90; R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31 at para. 14. 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.
11 The starting-point sentence for trafficking in cocaine in the amount involved in this case is three years imprisonment: R. v. Maskell [1981] 58 CCC (2d) 408.
12 The appellant Crown pointed out in its factum that on May 15, 2007 the respondent was sentenced to 24 months imprisonment for a conviction pursuant to section 5 (1) of the Controlled Drugs and Substances Act- trafficking in cocaine. The sentencing judge was in error when he stated that the sentence was only 21 months.
13 The appellant argues that the sentencing judge erred in principle by not placing significant or sufficient emphasis on specific deterrence and points out that the respondent was convicted of two offences of trafficking in cocaine in which he was involved on two separate dates in the commission of the offences before the Court.
14 We agree with the appellant Crown that the sentencing judge clearly erred, as he must have, in placing insufficient emphasis on the sentencing principle of specific deterrence in light of the respondent's prior sentence of 24 months for trafficking in cocaine. The respondent is not being resentenced for his past misdeeds, but his prior record does point to the need for greater emphasis to be placed upon the sentencing principle of specific deterrence than seems to have been done by the sentencing judge.
15 Having regard to the mitigating factors present in this case, had this been the respondent's first conviction or even convictions for the offence of trafficking in cocaine, the appropriate sentence might well have been in the range of two years less a day. However, that is not the case here. In light of the respondent's escalating criminal behaviour, the sentencing judge clearly erred in imposing a lesser sentence for these two convictions than had been imposed upon the respondent in 2007 for his initial conviction for trafficking in cocaine.
16 Counsel for the appellant Crown also argues that the sentencing judge erred in principle by placing any significant weight on the impact that the sentence would have on the respondent's immigration status. The sentencing judge was certainly aware of the decision of the Ontario Court of Appeal in R. v. Hamilton (2004) O.R. (3d) 1 para. 158.
17 The factor of the collateral consequence of deportation was considered by the Northwest Territories Court of Appeal in R. v. Morgan [2008] N.W.T.J. 61. There at trial the Crown had sought a sentence of four to five years imprisonment following a conviction for aggravated assault whereas defence counsel had sought a sentence in the range of 18 to 24 months. The trial judge decided that the proper range of sentence for an aggravated assault with a knife was between 30 months and five years. She then proceeded to impose a sentence of three and one-half years' imprisonment.
18 The Northwest Territories Court of Appeal in Morgan referred to the Ontario Court of Appeal decision in R. v. Hamilton and the decision in R. v. Leung 2004 ABCA 55, 354 A.R. 2, where this court reduced a sentence of 30 months to two years less a day. In Leung, the initial sentence had been the product of a joint submission, but this Court found that the joint submission would have been for two years less a day had all the parties known of the immigration legislation which was enacted after the sentence was imposed but with retroactive effect. Furthermore, the court found that a joint sentence of two years less a day would have been accepted by the trial judge as it was within the acceptable range for the offence in question.
19 We note the views expressed in Morgan where the Northwest Territories Court of Appeal stated at para 10:
Further, we are not aware of a case where an otherwise fit sentence has been trimmed by 18 months to benefit an appellant in this way. In our view, it is neither desirable nor appropriate to establish such a precedent, which would have the effect of defeating the clear intention of Parliament to expeditiously remove non-citizens from the country who are convicted of "serious criminality"
20 The factor of the collateral consequence of deportation can be given at most very limited weight. It cannot by itself remove a sentence from what would otherwise be the appropriate range. At most it can serve to move the sentence a small amount, nothing more. For example, in R. v. Hamilton, the Ontario Court of Appeal varied the sentence from two years to two years less a day.
21 In the case at bar, unlike Leung, there was no joint submission, the Crown arguing before the sentencing judge that a jail sentence in the range of two and a half to three years was appropriate.
22 The sentencing judge erred in principle by either ignoring or giving insufficient weight to the importance of specific deterrence in this case; and by giving anything more than nominal weight to the collateral consequence of deportation that would result from a penitentiary sentence. Therefore, we find the sentences imposed to be demonstrably unfit.


23 Accordingly we allow the appeal and impose a sentence of two and a half years on each count, to be served concurrently.


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