This recent case illustrates the paradox created by the Immigration and Refugee Protection Act appeal thresholds for permanent residents who are not citizens of Canada when convicted of serious criminal offences: courts take into consideration their status in Canada to reduce a sentence that could have been higher, in order to afford them the opportunity to avoid deportation by preserving their appeal rights to the Immigration Appeal Division (IAD). Individuals sentenced to more than two years do not have the right to appeal deportation orders to the IAD.The practice of reducing sentences seems to contradict the principle of equality before the law: if a person commits an offence, should not the punishment fit the crime and the sentence be the same for citizens and non-citizens? In imposing the bar on deportation appeals, Parliament intended to prevent non-citizens convicted of serious offences to have access to the IAD. Courts have been routinely reducing sentences in many cases to preserve those appeal rights, afforded only to those permanent residents whose sentences are under two years. Is this in the public interest? Or should Parliament make its intentions clearer? No doubt, this can be a good subject for public debate in any legislative reforms. Note however that in this particular case, the appellant claimed that he was unaware that he was not a citizen, and the sentence reduction was minimal, so those factors were critical in granting the appeal.
R. v. Doradea
Between
Regina, Respondent, and
Bryant Steven Doradea, Appellant
[2010] B.C.J. No. 2366
2010 BCCA 423
Docket: CA037999
British Columbia Court of Appeal
Vancouver, British Columbia
J.E. Prowse, E.C. Chiasson and C.E. Hinkson JJ.A.
Heard: September 23, 2010.
Oral judgment: September 23, 2010.
(22 paras.)
Appeal From:
On appeal from: Provincial Court of British Columbia, April 1, 2008 (R. v. Doradea, Vancouver Reg. No. 194404-C2)
________________________________________
Oral Reasons for Judgment
The judgment of the Court was delivered by
1 C.E. HINKSON J.A. (orally):-- On March 14, 2008, Mr. Doradea pled guilty to charges of robbery and carrying a knife, contrary respectively to ss. 344(b) and 88(1) of the Criminal Code. The events that gave rise to the charges occurred on October 11, 2007 when Mr. Doradea and two companions threatened and robbed a taxi cab driver. Mr. Doradea used a knife during the robbery.
2 On April 8, 2008, after giving him credit for his pre-trial incarceration, His Honour Judge McKay sentenced Mr. Doradea as follows:
• ... a sentence of two years which would translate into an additional period of incarceration of approximately 13 months, not accounting for the likelihood of early parole.
• As the two-year sentence allows for it, there will be a probation order. The probation order will commence upon your release on this sentence. It will be for a period of two years and contain these terms and conditions ...
3 The terms and conditions are not in issue, nor are the weapons prohibition or the order for DNA samples that were also imposed by the sentencing judge.
4 Mr. Doradea was released from custody on December 29, 2008 but remains subject to the probation order that was a part of his sentence.
5 On March 31, 2010 Mr. Doradea filed applications in this Court for leave to appeal his sentence and for an extension of time to appeal his sentence. If either of those orders is granted, he wishes to appeal only the custodial portion of his sentence, asking that it be reduced by 10 days.
6 In his affidavit filed in support of his application for an extension of time within which to appeal, Mr. Doradea swore that he was unaware of his citizenship status at the time of his sentencing, and that he believed at that time that he was a Canadian citizen. He swore that it was not until February of this year when he was required to appear before the Immigration Division that he learned that his criminal convictions would result in the issuance of a deportation order which he would be unable to appeal due to the length of the custodial portion of his sentence.
7 The Crown does not oppose the extension of time. In these unique circumstances, despite the fact that Mr. Doradea did not have a bona fide intention to appeal before the expiry of his appeal period, it is in the interests of justice that he be granted an extension, and I would grant that order.
8 Leave to appeal his sentence is advanced by Mr. Doradea on the ground that there is a serious and unintended collateral consequence to the sentence imposed on him. As a result of his citizenship status, a sentence of imprisonment of two years or more results in Mr. Doradea's automatic deportation without the right of an equitable appeal to the Canadian Immigration Appeal Division, pursuant to s. 64 of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 27.
9 I conclude that leave should be granted and that the appeal ought to be allowed, for the reasons that I will explain.
10 Mr. Doradea's father was from El Salvador, and his mother from Chile. They came to Vancouver where Mr. Doradea's sister was born, and then moved to Los Angeles, California where Mr. Doradea was born in 1989. The sentencing judge found that Mr. Doradea had a troubled upbringing that featured some physical abuse and neglect. Mr. Doradea's father died in a gang shooting in Los Angeles, following which his mother returned to Vancouver with her two children, and Mr. Doradea was then adopted by his aunt. That aunt died in a motor vehicle accident when Mr. Doradea was five years of age.
11 Thereafter, Mr. Doradea became a ward of the B.C. Ministry of Children and Families, living for a period of time with an adoptive family, but after age thirteen in a succession of group homes.
12 At the time of the sentencing that gives rise to this appeal, Mr. Doradea produced letters of support from his then foster mother, a social worker who had dealt with him as a ward, and a youth worker commenting on his positive motivation and capacity for positive change in his life, and from an educator confirming Mr. Doradea's positive motivation and application at seeking to complete his grade 10 level courses.
13 Mr. Doradea also provided a letter to the court explaining how the events that led to the charges against him arose, and acknowledging "the idiocy and cowardice that his actions exemplified". The sentencing judge commented that Mr. Doradea had resolved "to use this experience as a learning process" and that he had apologized for his actions.
14 Counsel for Mr. Doradea at his sentencing (not counsel on this appeal) was understandably unaware of the fact that Mr. Doradea was a landed immigrant, but not a Canadian citizen, and did not raise that fact at the sentencing hearing.
15 The Crown concedes that, had the sentencing judge been made aware of the Mr. Doradea's permanent resident status, he would likely have fashioned a sentence which would not have deprived him of the right to appeal a deportation order; a sentence of two years less a day in prison, combined with a probation order of two years.
16 Crown counsel points out, however, that because the sentencing judge specifically gave credit to Mr. Doradea for 344 days, when that time is added to the thirteen months, the effective sentence would then be 739 days, or nine days more than two years.
17 This Court has reduced sentences of two years where the result would be that which Mr. Doradea is facing; the loss of any ability to appeal a deportation order; see R. v. Kanthasamy, 2005 BCCA 135, 195 C.C.C. (3d) 182; R. v. Mai, 2005 BCCA 615 R. v. Leila, 2008 BCCA 8, and R. v. Nasabi, 2010 BCCA 209.
18 I agree with both counsel that the loss of Mr. Doradea's immigration appeal rights is a disproportionately severe sanction, which was unforeseen by his counsel, Crown counsel, and the sentencing judge, and unintended by the sentencing judge. The reduction of Mr. Doradea's sentence to one which will preserve his immigration appeal rights is inconsequential to the sentencing principles relied on by the sentencing judge.
19 I would grant leave to appeal, and reduce the custodial portion of the sentence to 12 months and 20 days.
20 J.E. PROWSE J.A.:-- I agree.
21 E.C. CHIASSON J.A.:-- I agree.
22 J.E. PROWSE J.A.:-- There is a grant of the extension of time to appeal, leave to appeal, and the appeal will be allowed with the custodial portion of the sentence reduced to 12 months and 20 days.
C.E. HINKSON J.A.
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