SENTENCE REDUCTION TO ALLOW IMMIGRATION APPEAL

While the Alberta Court of Appeal granted the appeal below, the court noted that all sentence reductions for immigration purposes must be small , a few days at the most.

R. v. Haultain

Between Her Majesty the Queen, Respondent, and
Tonya Lee Haultain, Appellant

[2012] A.J. No. 1114

2012 ABCA 318

Dockets: 1201-0050-A, 1201-0051-A

Registry: Calgary

 

 Alberta Court of Appeal
Calgary, Alberta

J.E.L. Côté, K.G. Ritter and M.B. Bielby J.A.

Heard: October 23, 2012.
Judgment: November 6, 2012.

(46 paras.)

Criminal law -- Sentencing -- Criminal Code offences -- Offences against rights of property -- Breaking and entering -- Break and enter -- Particular sanctions -- Imprisonment -- Concurrent sentences -- Sentencing considerations -- Submissions -- Joint submissions -- Previous record -- Minor -- Addicts -- Drugs -- Deportation -- Appeal by Haultain from two concurrent sentences of two years' imprisonment imposed for break and enter convictions allowed -- Appellant had been sentenced in two different sentencing hearings in two different locations 10 days apart -- Appellant sought sentence of two years' imprisonment at first sentence hearing to take advantage of federal addiction programs -- Both counsel sought two years' concurrent at second sentencing, which added 11 days to sentence -- Appellant was a permanent resident and sought to have sentences reduced for immigration purposes -- Considering appellant's circumstances and circumstances of the sentencing, sentences were reduced by 11 days.

Appeal by Haultain from two concurrent sentences for immigration purposes. The appellant was sentenced for a spree of offences in two different sentencing sessions in two different places 10 days apart. The appellant had pleaded guilty to two break and enters and possession of a stolen vehicle. Although the Crown in the first hearing initially suggested a sentence of less than two years, the defence asked for a two-year penitentiary sentence because the appellant wanted to access the federal programs. The judge thus sentenced the appellant to two years' imprisonment. At the second sentencing hearing, the appellant pleaded guilty to another break and enter. Both the defence and the Crown sought a sentence of two years' imprisonment, concurrent to the sentence the appellant was currently serving. The sentencing judge accepted the joint submission, which effectively added 10 days' imprisonment to the sentence the appellant was then serving. The appellant, a permanent resident, now sought to have the sentences reduced for immigration purposes. She had a prior record for fairly minor offences and was a drug addict. She hoped to address her addiction in the penitentiary system.

HELD: Appeal allowed. Each sentence was reduced by 11 days. There had been no improper manipulation on the part of the appellant in this case. The appellant's previous criminal record was a relevant consideration, but in this case was not given much weight. The first sentencing was not a joint submission. Although the second sentencing hearing was expressly stated to be a joint submission, it merely rubber stamped the previous sentence imposed 10 days before. Sentence: two years' imprisonment less one day.

Appeal From:

Appeal from the Sentence by The Honourable Judge G.E. Deck. Dated the 17th day of September, 2010 (Docket: 101090314P1).

Appeal from the Sentence by The Honourable Judge J.J. Ogle. Dated the 27th day of September, 2010 (Docket: 101090322P1).

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Memorandum of Judgment

The following judgment was delivered by

THE COURT:--

A. Introduction

1     The issue here is a small reduction of two concurrent criminal sentences for immigration purposes. A subissue is whether they were an entrenched joint submission.

B. Facts

2     It is necessary to review the sentencing process here in some detail.

1. Introduction

3     The appellant was sentenced for a spree of offences in two different sentencing sessions in two different places 10 days apart. There had been efforts to move all the cases before the same judge at the same time, but that proved impossible. So two sessions were coordinated, 10 days apart.

2. First Sentencing in Red Deer

4     In appeal #1201-0050-A from Judge Deck, the following is what happened.

5     On September 17, 2010 in Red Deer, Mr. Scrase was the appellant's counsel. He had known the appellant's late husband, who was Canadian. Mr. Scrase appeared and elected Provincial Court for the appellant. He said the appellant wished to plead guilty to two different break and enter incidents. The Crown stated the facts of the two incidents, plus the fact that a stolen vehicle was found. The accused acknowledged that the facts were correct, and Mr. Scrase acknowledged that the record handed in was correct.

6     Crown counsel said (on p 4):

 

·       I did speak to my friend about a high-end provincial sentence. He indicated to me that Ms. Haultain is interested in accessing the programs available through her B through the penitentiary system, and, Sir, the Crown would join Mr. Scrase in a two-year penitentiary sentence. 

He then withdrew count 4. It was possession of a stolen license plate. The appellant had just pleaded guilty to three counts, one of which was possession of a stolen vehicle.

7     Then Mr. Scrase gave the background and mentioned that the appellant was born in Indiana, grew up in Oregon, and came to Alberta later. He said she was now divorced after a marriage in Alberta. (In fact she grew up in, and was married in, British Columbia, not Oregon.)

8     After the accused said that she had nothing to add, the judge passed sentence, considered aggravating and mitigating circumstances, and said, "I do accept the joint submission." He sentenced the appellant to two years.

9     An affidavit of the appellant is submitted as new evidence. The Crown concedes that the new evidence is admissible. Paragraph 7 says:

 

·       I do verily believe that the Crown prosecutor was initially asking for a provincial sentence of less than two years. It was me who requested the sentence be to two years because I knew that programming and services were much better in the federal penitentiary system for people with addictions. I recognized that I had a serious problem and wanted to get help so I could be treated, become a real mother and grandmother, and live a more normal life once I finished my imprisonment ... I signed written instructions asking for this sentence, and my understanding is that the Crown and my counsel, on both occasions, made joint submissions to the Court for this sentence. 

The appellant attaches as exhibits the transcripts of both sentencing hearings. Maybe one cannot be entirely sure which hearing she is referring to where she says that she believes "that the Crown prosecutor was initially asking for a provincial sentence of less than two years", and that it was she who wanted the higher sentence of federal time. But it certainly sounds like the first sentencing in Red Deer, and does not correspond to the second sentencing hearing.

10     Mr. Scrase's affidavit says that the appellant's previous husband is now dead, and that Mr. Scrase had believed that she had become a Canadian citizen by marriage.

11     Mr. Scrase also swears that "during discussions regarding a joint submission, the Crown prosecutor, Mr. Jason Snider, indicated that he was considering a sentence in the approximate range of eighteen (18) months." The next paragraph says:

 

·       Ms. Haultain instructed me to request a two year federal sentence so that she may be able to access better programming in custody to assist with her addiction issues. I advised her that she was unlikely to be released earlier from federal custody, but she insisted on this sentence and appeared determined to overcome her addiction. 

12     Then toward the end of the affidavit, Mr. Scrase again refers to "a sentence of less than two years, as originally proposed by the Crown prosecutor", and says that he believes that "if Ms. Haultain's immigration status had been known", that lower sentence "would have ultimately been imposed."

13     It will be noted that the judge called it a joint submission, but Crown counsel had merely said that he had been "speaking" about a "high-end provincial sentence", and it was the defence who was interested in federal time, and the "Crown would join [defence counsel] in a two-year penitentiary sentence."

14     Neither counsel called it a joint submission.

3. Second Sentencing in Didsbury

15     The other appeal, #1201-0051-A, is about the second sentencing which occurred at Didsbury before Judge Ogle. On September 27, 2010, the accused appeared through closed circuit television. Defence counsel, Mr. Boulton, also appeared by video. He waived reading of the charge, and on behalf of the accused elected Provincial Court judge alone. He said that the appellant wished to plead guilty, and that s 606(1.1) of the Criminal Code had been complied with. The prosecutor then briefly stated the facts, which really were one break-in at Sundre (which the appellant revealed when being questioned about the Lacombe incidents). The judge said that all that was before him was the Sundre matter, and the prosecutor confirmed that. Defence counsel then admitted the facts which had been recited by the Crown with respect to the Sundre incident.

16     The prosecutor briefly spoke to sentence, and stated that the appellant was on probation at the time of the event. Defence counsel admitted the criminal record which was then made an exhibit.

17     The prosecutor then went on to say that the Crown was seeking 2 years concurrent with the sentences she was currently serving.

18     Then defence counsel spoke and said it was a joint submission. The judge commented that this would effectively add about 10 days. Defence counsel said yes, that was understood, and it was a joint submission. Again the accused said that she had nothing to add.

19     The judge said that in view of the record and the submissions of experienced counsel, he was satisfied that the joint submission was within the range of appropriate sentences, and he would follow it. He then had it clarified to him that it was 2 years, not 2 years less 1 day. Defence counsel said yes, that was correct, that the accused was looking forward to getting into the federal system. The judge then gave 2 years' imprisonment. (He and counsel went on to talk about ancillary orders.) At the end, the judge said that he should have specified that the sentence imposed that day was concurrent to any other time being served.

20     The affidavit by the other defence counsel, Mr. Boulton, a lawyer in Sundre, is that Ms. Haultain had already been sentenced to 2 years' imprisonment on September 17, 2010 in Red Deer, so the Crown prosecutor here in Sundre "suggested a concurrent 2 year sentence in this instance. I was instructed to accept this as a joint submission." Again in para 7 he says:

 

·       I do verily believe that if Ms. Haultain had received a sentence of less than 2 years on September 17, 2010 in Red Deer, the Crown prosecutor would have again sought a sentence that was identical and concurrent with the Red Deer sentence. 

21     That last sworn statement suggests that the proceeding at Didsbury was not really a joint submission, and that both sides were simply rubber stamping whatever had happened in Red Deer.

C. The Law on Immigration Considerations

22     Both counsel cited to us, and we read, a considerable number of appellate decisions on one question. Can an otherwise fit sentence be lowered on appeal to avoid adverse effects of immigration laws? Often the accused desires the right to appeal deportation, or stay a deportation order. The cases provided were from various Courts of Appeal. Almost all the adjustments to sentences made by them were tiny, such as one day. The only bigger adjustments were decided outside Alberta. The Alberta Court of Appeal decisions tend to be critical of thus interfering with immigration law and practice. Nothing in the present judgment is intended to reverse, vary, question, or criticize any of those Alberta Court of Appeal decisions.

23     They do allow such a reduction where it is small, the reduction would not render the sentence unfit, and there is no other impediment. The archetypical example is giving a sentence of 2 years less a day, instead of the original full 2 years. Sentencing is not so exact that a day or two ordinarily matters. And there is an old tradition of giving sentences of 2 years less a day to leave the prisoner in a provincial jail, so securing collateral benefits by minor adjustments in sentencing has precedent.

24     Here the appellant began this appeal by asking for just that, a reduction of 2 years to 2 years less a day. Then it was suggested that precise calculation of sentences might in effect make the second sentencing add 10 days. To avoid any more belated technical surprises, we see no reason in principle barring reducing each 2-year sentence to 2 years less 11 days. Once again, 11 days is well within the margin of error of sentences. For most penal purposes, 730 days and 719 days are virtually the same thing.

25     The Crown has been fair in this appeal. They do not argue that the Court of Appeal lacks power to do what the appellant requests. Nor is deference owed to the sentencing judges on this particular topic, as it was never raised before them; the very facts were not mentioned to them. The Crown says that the decision is in the Court of Appeal's discretion.

26     The Crown urges us not to exercise the discretion for a number of reasons. First, it says that the appellant deliberately lived in Canada as an adult for many years without taking out Canadian citizenship, saying that citizenship would have few advantages. Here that factor has low weight. She herself did not immigrate. The convicted appellant was brought here by her parents as a child. The U.S.A. and Canada look superficially so similar to someone who has just attained his or her majority, that that oversight is not grave.

27     The Crown also objects that here the accused deliberately sought 2 years in jail, not 2 years less a day, to get better treatment in a federal institution (and may have got it). We see no improper manipulation in this case. And that choice probably helped with rehabilitation here, which is in the public interest. In other fact situations, deliberately reversing course between the sentencing court and the Court of Appeal might be weightier. In some prosecutions one wonders whether the aim was earlier pre-release under federal parole procedures, but here the sworn evidence of the appellant and her first sentencing counsel clearly negative that aim.

28     Finally, the Crown urges that we weigh previous offences by the appellant, i.e. her criminal record. That deserves some weight. But hers is not a grave record, and featured fairly small crimes until this group. Strikingly, it also demonstrated a very unusual late onset of crime, doubtless from drug addiction. Very few people of good character first begin committing smaller crimes at age 46.

29     The two sentences appealed here were the first "break and enters" of which the appellant was ever convicted (and they were very small). She had had five previous sentencings, each with about three charges. Most were for theft or possession of stolen goods, always under $5000 value. A few were for failure to comply, to appear, or to attend.

30     Her highest previous sentence was 6 months, and a number were far lighter. There had been a gap between the last of the previous convictions and the offence date of the offences now under appeal.

31     The previous criminal record is a relevant consideration, but in this case we do not give it so much weight as the Crown suggests. So absent any other obstacle, we would reduce the sentence by 11 days.

D. Joint Submissions?

32     But is there another obstacle? Before neither Provincial Court judge did the prosecutor and the defence counsel enter into a contest over what the sentence should be. And in the second courtroom, it was expressly stated that this was a "joint submission". Were these indeed joint submissions? The Crown suggests they were (para 20). Or if they were not, should they have the same effects as joint submissions?

33     Here we must distinguish the two different rules which apply to joint submissions. The first rule is that the sentencing judge and the Court of Appeal owe a good deal of deference to a joint submission, and should only reject it for good reason. That is largely because ordinarily the courts have no way to know what factors (bargains or other things) led to the joint submission. The second rule is that counsel should not find their joint submission rejected without prior warning and a chance to argue or explain or adduce evidence to support it.

34     Obviously this second rule is irrelevant here; neither sentencing judge departed from the suggestion of any of the four counsel.

35     The distinction between the two rules matters, because one finds some statements and debate about the definition or boundaries of a joint submission. Should coincidental identity of opposing counsel's submissions be treated as a joint submission, or should partly overlapping sentence ranges from the two sides be so treated? However, all such cases which we have seen are about the second rule (duty to warn). That rule is irrelevant here. None of those debates were about the first rule (owing deference).

36     At the first sentencing, in the City of Red Deer, counsel arrived with no common view, and the transcript negatives any previous sentence bargain. Crown counsel proposed an 18-month sentence (which is almost half a year less than what the defence seeks today from the Court of Appeal). At the sentencing, the defence suggested 2 years, to get the advantage of a federal facility. The Crown acquiesced. There was no negotiation, back and forth, or quid pro quo for the sentence. And it seems impossible that either side gave up anything to get this sentence. The charge of possessing a license plate was withdrawn, doubtless in return for the guilty pleas. But had that charge proceeded and not been withdrawn, it could not possibly have affected the global sentence.

37     We repeat that the Crown began lower and the defence wanted to go up. That sort of "reverse auction" is not unheard of, but it is definitely seen only in a small minority of cases. It shares very few of the usual circumstances which could even motivate a joint submission.

38     In our view, this first sentencing was not a joint submission. And if we are wrong and it was one, it was a very unusual one with few, if any, of the usual reasons for deferring to a joint submission. The transcript here assures the Court of Appeal that it can review the sentence without fear of hidden factors such as a quid pro quo for the sentence.

39     The second sentencing hearing in the Town of Didsbury was expressly stated to be "a joint submission", but clearly it merely rubber stamped the previous sentence 10 days before. There had been some attempt to have all the sentences imposed at the same time and place, but that proved impossible. Though the second sentencing judge had to be satisfied that the sentence was roughly within a proper range, the role of the second two counsel that day was hardly more than clerical.

40     What is more, both sentencing sessions were infected with errors, such as assuming that the appellant was a Canadian citizen. That is made clear by the new evidence on appeal, whose admission under express motion the Crown concedes. There are obvious grave dangers to later reopening sentences or joint submissions on the basis of, "Oh, I hadn't thought of that", e.g. learning later that the sentence given bars getting a visa to visit another country, or bars a certain type of employment.

41     However, once again we note that what the appeal here seeks is not a general or significant reopening, and only a minor sentence adjustment (at most 11 days). Besides, as noted, the whole sentence is much (1/2 year) above what the Crown requested. It was the appellant who asked for and got so long a sentence; the sentence clearly would not have to be this long had the appellant not asked for it. Neither the facts as understood at the sentencing, nor the facts now known, require so long a sentence. To repeat the context, all that injecting discovery of the mistake does is to allow the Court to tinker a little with the unusual (inverted) submissions here by counsel, joint submission or not. We do not suggest mistake as a way to attack sentences in general, still less to attack sentences fit in themselves.

42     Though sentencing memoranda of decision have limited weight as precedent, we take some comfort in the fact that in two Alberta cases the Court of Appeal reduced a sentence by a day for immigration reasons, though the original sentence was a joint submission. See R v Leung, 2004 ABCA 55, 354 A.R. 2, and R v Duhra, 2011 ABCA 165, 505 A.R. 248.

E. Is Sentence Outside Proper Range?

43     The factum of the appellant asserts that, even ignoring all immigration topics, the sentences here were too high. It asks the Court of Appeal to intervene on that ground alone. We disagree. Two years concurrent for this group of offences was not outside a proper range, though obviously sentences a number of months lower could also be justified and inside a proper range.

F. Conclusion

44     However, for all the other reasons given in the earlier parts of this judgment, we have concluded that a minor downward adjustment is proper.

45     Therefore, we grant leave to appeal (if leave was never earlier granted), and we allow the two appeals by reducing each sentence by 11 days.

46     Counsel for the appellant had sent us a letter expressing concern about whether the conviction on one count was proper, but he later told us at the opening of argument that he was not pressing the point. Probably the practical inconveniences of trying to raise a conviction appeal at this late date would swamp any tiny practical advantage which might thus be gained.

J.E.L. CÔTÉ J.A.
K.G. RITTER J.A.
M.B. BIELBY J.A.