Saturday, October 1, 2011


Decided this week, the case below is again a sentencing reduction to accommodate an immigration appeal. Note that if the convicted would have been a Canadian citizen, it would not have had the sentence reduced. Is that fair?  Should courts accommodate immigration consequences? Or  should they interpret immigration law as specifically wanting to exclude these offenders from the appeal process? How about the Charter of Rights provisions about equality under the law?  Should two offenders whose crimes are the same be sentenced differently?  A good policy debate should follow.

R. v. Barkza
Between Her Majesty the Queen, Respondent, and
Hamidullah Barkza, Appellant

[2011] A.J. No. 1024

2011 ABCA 273

Docket: 1001-0226-A

Registry: Calgary

Alberta Court of Appeal
Calgary, Alberta

P.T. Costigan, P.W.L. Martin and P.A. Rowbotham JJ.A.

Heard: September 27, 2011.
Oral judgment: September 27, 2011.
Filed: September 29, 2011.

(9 paras.)

Appeal From:

Appeal from the Sentence by The Honourable Judge T.J. Schollie. Dated the 30th day of July, 2010 (Docket: 080492598P1).

Memorandum of Judgment

The judgment of the Court was delivered by

1     P.A. ROWBOTHAM J.A. (orally):-- This is an appeal of a 26 1/2 month sentence imposed for aggravated assault. The appellant is a permanent resident of Canada, but not a Canadian citizen. He has served his sentence, but is now subject to a deportation order. Section 64(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 provides that no appeal of a deportation order may be made by a permanent resident who has been found to be inadmissible to Canada on grounds of serious criminality. Serious criminality is defined as a crime punished by a term of imprisonment of at least two years. He asks this court to reduce his sentence to two years less one day in order that he may appeal the deportation order.

2     The appellant was born in Afghanistan. He and his wife emigrated to Canada in 2004. They have two children. His wife and children are Canadian citizens. Eight days after the birth of the couple's second child, the appellant who was highly intoxicated, stabbed his wife once in the chest after she refused to have sex with him. His wife fled as he attempted to stab her a second time. The appellant also inflicted himself with multiple stab wounds. His injuries were severe. His wife's injuries were minor and she was released from hospital after one night's stay.

3     The appellant entered a plea of guilty to a charge of aggravated assault. The Crown sought a sentence of two to five years, while the appellant asked for provincial time. The appellant had been in custody for 11 months and both submissions requested credit for pretrial custody. The appellant had no criminal record on the offence date but accumulated seven breaches of bail conditions relating to the offence subject of this appeal. He was sentenced for these breaches on November 12, 2009 to the equivalent of six months of the time spent in pre-sentence custody. Although the appellant's counsel alluded to the immigration issue and the Crown indicated that the warrant of committal would have immigration consequences if it was a federal sentence, the sentencing judge was not advised of the specific consequences for the appellant. He did not address the immigration issues.

4     Although there was some confusion about the amount of pre-sentence custody to be credited, the sentencing judge was amenable to varying the amount of credit as long as there remained nine months to be served on the sentencing date. The sentencing judge ultimately concluded that he would give 17 1/2 months pre-sentence custody. The result was a sentence of 26 1/2 months.

5     The risk of deportation can be a factor to be taken into consideration in tailoring the sentence to best fit the offence and the offender: R. v. Hamilton (2004), 72 OR (3d) 1 at para 156, 186 CCC (3d) 129 (CA). The loss of a potential remedy against a deportation matter should not be characterized as a mitigating factor: Hamilton at para 158. If a sentence at or near two years is appropriate, the sentencing judge should consider the deportation consequences by imposing a sentence of two years less a day rather than two years: Hamilton at para 158. If the future prospects of the offender can be assisted by imposing a sentence of two years less a day, rather than two years, it is in keeping with the principles and objectives of sentencing to impose the lesser sentence: Hamilton at para 158.

6     This court recently allowed an appeal in similar circumstances where the sentence was one of two years, rather than two years less a day: see R. v. Dhura, 2011 ABCA 165, 2011 CarswellAlta 914 (CA). The Crown submits that as the sentence moves farther from the two-year point, the court ought to be reluctant to interfere. So, for example, in R. v. Morgan, 2008 NWTCA 12, 446 AR 140 (CA) the court upheld a three and one-half year sentence for aggravated assault. In R. v. Belenky, 2010 ABCA 98, 477 AR 354 this court allowed an appeal of a two year less a day sentence based in large part on immigration consequences where the accused was convicted of two counts of trafficking in cocaine. In varying the sentence to two and one-half years, the court stated that the consequence of deportation can only be given limited weight. It cannot remove a sentence from an otherwise appropriate range. At most it can move the sentence a small amount (at para 20).

7     The Crown also submits that counsel appeared to be aware of the immigration consequences, but chose not to make representations to the court, and that in the absence of an explanation from counsel (by way of a fresh evidence application), this court ought not to interfere with an otherwise fit sentence.

8     We are persuaded that the appellant's sentence falls within the small amount contemplated in Belenky. Moreover, the sentencing judge's major concern was that the appellant serve a further nine months. The credit for pre-sentence custody could have been altered to accommodate that concern, while at the same time giving an overall sentence of two years less a day. Two years less a day is still a fit sentence and is within one day of the range originally sought by the Crown.

9     The appeal is allowed, and the sentence varied to one of two years less one day.


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