Thursday, September 8, 2011


In the case below, recently reported, the court granted a conditional discharge to a foreign worker found guilty of obstruction of justice. The judge seems to have misunderstood the effect of  the IRPA provisions that deny appeal rights to the IAD to persons convicted in Canada and receiving  sentences of more than two years, as they only pertain to permanent residents and not to those on temporary status as in the case below. A person who is in Canada on temporary status ( i.e Work Permit, Study Permit) and has been convicted in Canada of any criminal offence can immediately be the subject of a report concerning inadmissibility, convoked to a hearing before the Immigration Division and found inadmissible and ordered deported. The only remedy at that point would be a judicial review a the Federal Court, as non-residents do not have appeal rights at the IAD.

R. v. MawuliBetween

Her Majesty the Queen, Crown, and

Henry Yaw Mawuli, Accused

[2011] A.J. No. 937

2011 ABPC 258
Dockets: 101008795P1, 101279800P1
Registry: Calgary
Alberta Provincial Court
A.J. Brown Prov. Ct. J.
Heard: March 22 and July 22, 2011.

Judgment: August 26, 2011.

(25 paras.)
Reasons for Sentence



1 For offences of attempting to obstruct justice and breaching a bail condition, Mr. Mawuli is discharged conditionally and placed on probation for two years.

2 He must also pay $150.00 in victim fine surcharges, $100.00 for the attempt to obstruct justice and $50.00 for the breach of a bail condition.

3 The conditions of the probation order will include directions to: undergo counselling in the areas of anger management and domestic violence; complete an educational course in civics, for example, the rights and responsibilities of citizenship, Canadian government and courts, or introduction to law; and, complete 75 hours of community service work.


4 The main issue in Mr. Mawuli's case is whether a conditional discharge is a fit sentence.

5 A related issue is the relevance of considering the potential negative impact on Mr. Mawuli's application for permanent residency in deciding on the application for a conditional discharge.



6 Mr. Mawuli, an ironworker, is a foreign national from Ghana in Canada on a work visa.

7 He pled guilty to: breaching a condition of his release by contacting his spouse; and, attempting to obstruct justice. The obstruction of justice charge was prosecuted by indictment and stemmed from a 911 call in which the telephone was left off the hook so that the operator could hear some fighting in the background. Mr. Mawuli then picked up the telephone and said he was "Sid" and had been mistakenly calling work friends. When police arrived at the home to pursue an investigation, he continued to mislead them and had even taken steps to hide bloody clothes in the rafters of the furnace room.

Positions of Defence and Crown

8 Defence Counsel argued for a conditional discharge, saying that a conviction would harm Mr. Mawuli's application for permanent residency.

9 Crown counsel opposed the granting of a discharge, saying that immigration status is rarely a factor to be considered and obstruction of justice is a very serious offence, in this case meriting a short, sharp jail sentence of 15 to 30 days.

Authorities Considered

10 In reaching my decision, I have considered the following cases: R. v. Ahmed, 2006 BCPC 386, 2006 CarswellBC 2054; R. v. Arganda, 2011 MBCA 54, 2011 CarswellMan 361; R. v. Belenky, 2010 ABCA 98; R. v. Daskalov, 2011 BCCA 169, 2011 CarswellBC 793; R. v. Duhra, 2011 ABCA 165; R. v. Eshghabadi, 2009 BCSC 1875, 2009 CarswellBC 379; R. v. Hamilton (2004), 72 O.R. (3d) 1, 241 D.L.R. (4th) 490 (C.A.); R. v. Leung, 2004 ABCA 55, [2004] A.J. No. 129; R. v. MacFarlane (1976), 3 Alta. L. R. (2d) 341 (C. A.); R. v. Martinez-Marte, 2008 BCCA 136, [2008] B.C.J. No. 738; R. v. Morgan, 2008 NWTCA 12; R. v. Nistor, 2010 SKCA 62, 350 Sask. R. 238, aff'g 2009 SKQB 464, 2009 CarswellSask 846; R. v. Noroozi, 1989 CarswellQue 1109; R. v. Singh, 2007 CarswellOnt 2078; R. v. Teclesenbet, 2009 ABCA 389, 469 A.R. 193; R. v. To, 2004 ABCA 197, 187 C.C.C. (3d) 526; R. v. Truong, 2007 ABCA 127, 404 A.R. 277; and, R. v. Yonis, 2011 ABPC 20, [2011] A.J. No. 102.

Mr. Mawuli's Background

11 Born and raised in Ghana, Mr. Mawuli, now 30 years old, completed a high school program that qualified him to work as an ironworker. He has been steadily employed since high school graduation, working 6 years for one company in Ghana before being recruited to come to Canada to work for LMS Reinforcing Steel Group in 2008. Laid off by LMS in December 2010, he soon found work, in February of this year, with his current employer.

12 Despite the physical separation from his family in Ghana, Mr. Mawuli continues to have a close relationship with his mother and siblings. He tries to send money to his family every month and has recently purchased some land in Ghana, which he plans to use to build a ranch business he can manage from Canada.

13 In 2009, after a 6-month relationship, Mr. Mawuli married his wife Wendy. Problems in the marriage gave rise to Mr. Mawuli's current charges; the future of the relationship is unclear, there being mixed indications from both Mr. Mawuli and his wife about their respective interest in receiving counselling and reconciling.

14 Mr. Mawuli's friend and fellow ironworker from Ghana, with whom he is now living, and his pastor, speak highly of him and say that his offences are out of character.

15 Mr. Mawuli does not smoke or drink and has never taken drugs.

16 The pre-sentence report is positive and deems Mr. Mawuli suitable for a community based sentence.

Immigration Status as a Factor in Sentencing

17 From my review of the case law, I have concluded that the effect on immigration status is a relevant sentencing consideration but only if the sentence sought is within the appropriate range. Three recent decisions from the Alberta Court of Appeal illustrate this principle:

• Truong: Mr. Truong pled guilty to drug offences and, following a joint submission from counsel, was sentenced to serve a two year sentence. A provision of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, denies a right of appeal of a deportation order to any person sentenced to 2 years or more. Justice Paperny extended the time for Mr. Truong to file his notice of appeal, observing that: while there may be little difference between 2 years and 2 years less a day for sentencing purposes, the deportation without appeal may be unduly punitive; and, this harsh consequence of the sentence was not put to the sentencing judge, nor considered by Mr. Truong when he agreed to the joint submission.
• Belenky: A Crown appeal from a 2 year less a day sentence followed by 18 months' probation for two charges of cocaine trafficking was allowed and a 2 1/2 year sentence imposed. Mr. Belenky had a record for cocaine trafficking for which he had received a 2 year sentence. The Court of Appeal held that the consequence of deportation could not allow imposition of a sentence outside the appropriate range.
• Duhra: As in Truong and in contrast to Belenky, the Court of Appeal allowed the reduction of the effective sentence imposed from 2 years to 2 years less a day. The reduction by one day did not remove the sentence from the appropriate range and the immigration consequence would be unduly harsh.

Availability of a Discharge for an Obstruction of Justice Offence

18 Obstruction of justice is a very serious offence, striking at the heart of maintaining a justice system that is a cornerstone of our civil society. Often, a jail sentence is the only sentence viewed to deliver the necessary denunciatory and deterrent message for those who would thwart the justice system.

19 There are, however, no statutory bars to a discharge and the range of sentences runs from discharges to penitentiary sentences.

20 The most severe sentences for obstruction of justice are delivered in cases of witness intimidation or bribery, or fraudulent representations to the court.

Application of the Law to Mr. Mawuli's Case

21 The MacFarlane test for a discharge is met for these reasons:
• a discharge is in Mr. Mawuli's best interests as it preserves his ability to make an application for permanent residency;
• it is not against the public interest, in particular because it was an impulsive act and, while a serious offence, low on the scale of moral blameworthiness.

22 While ignorance of the law is not a defence, it is a relevant factor in assessing Mr. Mawuli's degree of moral culpability; as a foreign national in the country on a work visa for 2 to 3 years, Mr. Mawuli being ignorant of the seriousness of obstruction of justice is understandable and does reduce his degree of culpability, while not excusing it.

23 Mr. Mawuli's form of obstruction has more in common with the offence of obstruction of a peace officer than with witness intimidation; the Ahmed case dealt with an offender in very similar circumstances to those of Mr. Mawuli, except that his offence was obstruction of a peace officer. Mr. Ahmed received a conditional discharge.

24 Therefore, considering the favourable pre-sentence report, employment history and community support surrounding Mr. Mawuli a discharge is within the range of available sentencing options, whereas registering a conviction would have unduly harsh consequences.


25 For these reasons, I have concluded that the fit sentence in Mr. Mawuli's case is a conditional discharge with two years of probation.


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