R. v. James
RE: Her Majesty the
Queen, and
Olatunji Omolay James
[2013] O.J. No. 2804
2013 ONSC 4177
Court File No. 155/12
Ontario Superior Court of Justice
K.L. Campbell J.
Heard: June 13, 2013.
Judgment: June 18, 2013.
Court File No. 155/12
Ontario Superior Court of Justice
K.L. Campbell J.
Heard: June 13, 2013.
Judgment: June 18, 2013.
(23 paras.)
ENDORSEMENT
[SUMMARY CONVICTION APPEAL]
K.L. CAMPBELL J.:--
A. OVERVIEW
1 This
sentence appeal involves the application of the principles recently articulated
by the Supreme Court of Canada in R. v. Pham, 2013 SCC 15, 293 C.C.C. (3d) 530, in relation to the potential
impact of collateral immigration consequences on the sentencing of an offender.
2 On
April 30, 2009 the appellant, Olatunji James, appeared before the Honourable
Mr. Justice F. Campling of the Ontario Court of Justice, and pled guilty to two
sets of property-related offences. The first offences were committed on June 1,
2006. The second series of offences were committed on October 17, 2008. There
were a total of five such offences - fraud, theft and three counts of
possession of stolen property (all under $5,000). The appellant also pled
guilty to one additional charge of failing to comply with a recognizance. The
appellant had been on bail for the first offences at the time he committed the
second group of offences, and he was discovered to have violated the terms of
his recognizance when he was arrested for the second set of offences.
3 The
pleas of guilty were taken following a judicial pre-trial conference, during
which the parties came to a negotiated resolution of the case. The appellant
agreed to plead guilty to the total of six offences on the basis that the other
pending charges would be withdrawn, and the parties would advance a joint
position on the issue of sentence. Indeed, before Campling J., the parties
jointly submitted that, after taking into account his eight days of
pre-sentence custody, the appellant should be given a suspended sentence and
probation for all six offences. In ultimately agreeing to "go along"
with this joint submission, Campling J. admitted that he had thought about
sending the appellant back to jail, and he commented that, in his opinion, the
appellant was getting a "big break." In the end, the trial judge
entered convictions, but suspended the passing of sentence and placed the
appellant on probation.
4 Subsequently,
the appellant, a refugee claimant originally from Nigeria, discovered that his
convictions for these offences may be a significant impediment to his ability
to remain in Canada on a permanent basis. Indeed, according to s. 36(2)(a) of
the Immigration and Refugee Protection Act, S.C. 2001, chap. 27, the appellant is "inadmissible"
because he has been "convicted in Canada of ... two offences ... not
arising out of a single occurrence." This does not mean that the appellant
will necessarily be deported from Canada, but it does create a potential
immigration problem for the appellant in the future. At the time of sentencing,
the appellant had been erroneously advised that the sentence proposed in the
joint submission would not have any negative consequences for his immigration
status. This mistaken advice was not passed along to the trial judge.
5 After
being granted the necessary extension of time, the appellant now appeals
against his sentence. The appellant argues that, in order to avert the
unanticipated adverse immigration consequences of his convictions, he should
now be given a conditional discharge. The appellant has already served the
entirety of the sentence imposed at trial.
B.
|
CONSIDERING
COLLATERAL IMMIGRATION CONSEQUENCES IN SENTENCING
|
6 In
R. v. Pham the accused was
convicted of two drug-related offences. Following the joint submission of the
parties, the trial judge imposed a two year penitentiary sentence of
imprisonment on the accused. Under s. 64 of the Immigration
and Refugee Protection Act, a non-citizen such as the
accused would lose the right of appeal against a "removal order" if
they were sentenced to a term of imprisonment of at least two years. In
advancing their joint submission, neither party had contemplated this
collateral consequence on the accused's immigration status. In allowing the
appeal and reducing the sentence imposed on the accused by one day, Wagner J.,
delivering the judgment of the unanimous court, outlined the legal principles
as to how and when such collateral consequences ought to properly be taken into
account in sentencing. Those principles are essentially as follows:
A sentencing judge may
exercise his or her discretion to take collateral immigration consequences into
account as part of the personal circumstances of the offender, provided that
the sentence ultimately imposed on the accused is proportionate to the gravity
of the offence and the degree of responsibility of the offender. The general
rule continues to require that the sentence imposed be fit having regard to the
particular crime and the particular offender. See: R. v.
Pham, at paras. 6, 11, 14.
The weight and
significance of collateral immigration consequences will vary depending on the
facts and circumstances of each individual case, and should be determined
having regard to the type and seriousness of the offences. But collateral
immigration consequences may be one of the relevant factors that a sentencing
judge may properly take into account in tailoring the appropriate sentence.
See: R. v. Pham, at paras.
12-13.
The flexibility of the
sentencing process should not be misused by the imposition of inappropriate and
artificial sentences purely to avoid collateral immigration consequences which
may flow from a statutory scheme, as to do so would circumvent the will of
Parliament. In short, collateral immigration consequences must not be allowed
to dominate or skew the sentencing process for or against deportation. A
special sentencing range cannot be allowed to develop for cases where there is
a risk of deportation. See: R. v. Pham, at paras. 15-16.
The further a sentence
is varied from the range of otherwise appropriate sentences in order to avoid
collateral immigration consequences, the less likely the sentence will remain
proportionate to the gravity of the offence and the responsibility of the
offender. Conversely, the closer the varied sentence is to the range of
otherwise appropriate sentences, the more probable it is that the reduced
sentence will remain proportionate, and thus reasonable and appropriate. See: R. v. Pham, at paras. 18.
A sentencing judge is
not compelled to adjust a sentence in order to avoid the impact of collateral
immigration consequences on the accused. It remains open to the judge to
conclude that even a minimal reduction in the sentence would result in an
inappropriate sentence having regard to the offence and the offender.
Collateral immigration consequences are only one relevant factor amongst many
other considerations related to the nature and the gravity of the offence, the
degree of responsibility of the offender and the offender's personal
circumstances. See: R. v. Pham,
at paras. 20.
An appellate court has
the authority to vary a sentence if the sentencing judge was not aware of the
collateral immigration consequences, or if counsel failed to advise the judge
on this issue. Where the matter was not raised before the sentencing judge and
where the Crown does not give its consent to the appeal, some evidence should
be adduced for consideration by the appeal court. See: R.
v. Pham, at paras. 24.
It is wrong for an
appeal court to refuse a short proposed sentence reduction based solely on the
fact that the accused may have a prior criminal record or on its belief that
the accused had abused the hospitality which had been afforded to him or her by
Canada. See: R. v. Pham, at
paras. 25.
C. THE NATURE OF THE
OFFENCES
1. The Offences on June 1, 2006
7 On
June 1, 2006 the appellant and a female accomplice attended a Home Outfitters
store in Toronto. They jointly selected a "bed in a bag" and eight or
nine towels, with a total value of approximately $360, and the female
accomplice fraudulently paid for them with a credit card in the name of another
person. The appellant waited outside for her while she made the purchase.
8 Later,
they attended at a Hudson's Bay department store in a shopping mall at another
location in Toronto. They went to the appliance department and picked out an
air conditioning unit having a value of approximately $230. Again, the female
accomplice fraudulently paid for the purchase with the same credit card.
9 Next,
the female accomplice went to the children's wear department of The Bay, where
she fraudulently purchased approximately $766 of children's clothing on the
same credit card. At the same time, the appellant went to the men's wear
department, where he selected approximately $1862 of men's clothing. The female
accomplice fraudulently paid for this clothing with the same credit card, while
the appellant left the store.
10 The
appellant then drove his car to the store exit, where his female accomplice was
waiting. The appellant placed all of their merchandise in the trunk. At that
point, security guards approached the female accomplice and arrested her for
fraud. The appellant quickly drove off in his vehicle as his accomplice was
being arrested.
2. His Recognizance - Ultimately Breached
11 On
July 27, 2008 the appellant surrendered himself into police custody in relation
to these offences. He was released on a recognizance. One of the conditions of
that recognizance required that he not possess or apply for any identification
or credit cards in any name other than his own.
3. The Offences on October 17, 2008
12 On
October 17, 2008 the appellant was in the company of a different female accomplice.
They went to the same Hudson's Bay store in the shopping mall. The female
accomplice was seen, in the company of the appellant, selecting jewellery from
the display shelf, opening the packaging, and concealing the jewellery in her
purse. They eventually attended at the checkout cashier. The appellant used a
credit card to pay for some other items that the female accomplice had
collected, but neither of them paid for the jewellery in her purse.
13 The
appellant and his female accomplice continued shopping. The appellant was seen
selecting another piece of jewellery and passing it to the female accomplice,
who concealed it in the Bay shopping bag they had been given in relation to the
previous purchase. The appellant then made another purchase with his credit
card but, again, did not pay for the additional piece of jewellery.
14 When
the appellant and his female accomplice left the store they were arrested by
security guards. The appellant was found in possession of four debit/credit
cards, none of which were in his own name, and a driver's licence which was
also in the name of another person. The credit card that was used by the
appellant to make the purchases from the Bay store was in the name of another
person.
4. Subsequent Offences - May 22, 2009 - Resulting
in an Absolute Discharge
15 On
May 22, 2009 the police stopped and searched the appellant's motor vehicle.
They found three cell phones that had been stolen from a Roger's cell phone
store. The cell phones were not stolen by the appellant, but they did not
belong to the appellant. They had been given to the appellant by a friend.
Subsequently, the appellant pled guilty to one count of possession of stolen
property and one count of breach of probation. In the result, the appellant received
an absolute discharge.
D.
|
THE PERSONAL
CIRCUMSTANCES OF THE OFFENDER - AND THE FRESH EVIDENCE
|
16 As
of the date of sentencing on April 30, 2009, the appellant was 26 years old. He
was married and supporting a step-daughter. He had a grade 12 education and no
previous criminal record. He was employed in customer service for a consulting
firm, answering their phones. At the time of the offences the appellant was out
of work. The appellant expressed remorse for these offences, stating that he
knew that he should not have done it. The appellant is now 31 years old.
17 The
appellant has claimed refugee status. According to the fresh evidence
materials, some time ago the appellant and his wife submitted a joint
application to Citizenship and Immigration Canada (CIC) seeking permanent
residency in Canada. In mid-July of 2012 the appellant and his wife received a
written request from CIC for documentation regarding the appellant's previous
criminal charges. The appellant began to try to collect the documentation
requested. In late September of 2012 the appellant and his wife received
further correspondence from CIC indicating that, given their failure to
promptly provide the requested information, their application for permanent
residency could not be completed. Shortly thereafter, the appellant obtained
the additional information that was necessary and provided it to CIC.
18 According
to the fresh evidence, in early November of 2012 the appellant met with an
"immigration consultant," and was advised that his suspended sentence
"would be a problem" for the joint application, by he and his wife,
for permanent residence in Canada.
E. ANALYSIS
19 On
this appeal the appellant asks that his convictions be set aside and he be
granted a discharge in relation to all of these offences. According to s.
730(1) of the Criminal Code, a
sentencing court may, if it considers it to be in the best interests of the
accused and not contrary to the public interest, instead of convicting the
accused, order that the accused be discharged absolutely or on conditions
prescribed in a probation order.
20 It
would serve no legitimate purpose to try to now speculate as to what the trial
judge might have done had he been advised of the potential collateral
immigration consequences for the appellant as a result of his conviction for
these offences. All that can be accurately known at this point is what he said
and did in the face of the circumstances that were placed before him on the
issue of sentence. Given the fresh evidence in this case, my responsibility at
this point, as I see it, is simply to determine, on the basis of all of the
circumstances of this case, including the fresh evidence regarding the
potential collateral immigration consequences for the appellant, whether the
sentence imposed at trial should be changed, and a conditional discharge
granted. In other words, I need not approach the sentencing decision of the
trial judge with the deference that would otherwise be appropriate. See: R. v. Singh, [2007] O.J. No. 1319 (S.C.J.) at
para. 30; R. v. Pham, at para.
24.
21 There
is no question that a discharge would be in the best interests of the accused.
As already mentioned, under the provisions of the Immigration
and Refugee Protection Act, if the appellant remains
convicted of these offences he is deemed "inadmissible" in Canada,
and this status may ultimately make it more difficult for him to remain in
Canada. It does not mean that he will necessarily be deported, as there are
ways he may remain in Canada notwithstanding his convictions. However, given
the potential immigration hurdles ahead, the appellant has met the first prong
of the legal standard under s. 730(1) of the Code.
22 The
real issue between the parties is whether or not a discharge is "contrary
to the public interest." After considering all of the circumstances of
this case I cannot accept the appellant's position that a discharge is not
contrary to the public interest. In my view, for all of the following reasons,
the imposition of a discharge in this case would, indeed, be contrary to the
public interest:
The Duration of the
Criminal Conduct: The appellant did not commit an
isolated offence during a time of great stress and during an unfortunate lapse
of judgment. Instead, while in Canada claiming refugee status, the appellant
committed a total of six criminal offences over the course of a 28 1/2 month
period of time. In short, the appellant engaged in multiple acts of criminal
misconduct over an extended period of time.
Breach of Recognizance: After his arrest for the first offences, the appellant was
released on a recognizance that required him to abide by certain conditions,
including refraining from the possession of any identification or credit cards
in the name of any other person. However, when he was arrested for his second
series of offences the appellant was in possession of four debit/credit cards,
none of which were in his own name. He also had a driver's licence in the name
of another person. Moreover, the credit card he used to make the fraudulent
purchases was in the name of another person. The appellant flagrantly violated the
terms of his recognizance.
Nature of the Offences: As the trial judge mentioned, the nature of the various
property-related offences committed by the appellant and his female accomplices
suggested that the appellant was involved in a type of "ongoing
fraud." Such offences cost law-abiding customers dearly, as the cost of
merchandise must be increased to cover the losses retail outlets suffer from
such thefts and frauds. Therefore, in such cases sentences must be imposed that
carry at least some effective measure of general and specific deterrence. The
merchandise in the present case, which was illegally obtained by the appellant
or his accomplice by fraud or theft (but which was ultimately returned to the
retailers) totalled in excess of $3,000.
Discharge Not Sought at
Trial: At the time of sentencing, the joint submission
advanced by the parties proposed the conviction of the accused with a suspended
sentence and probationary term. The appellant did not seek a discharge at
trial.
Sentence Imposed at
Trial Already Lenient: As the trial judge observed, the
non-custodial sentence imposed at trial as a result of the resolution agreement
of the parties was itself a "big break" for the appellant. As
Campling J. suggested, the circumstances of the offender and the offences could
have justified a further term of imprisonment. In short, the sentence imposed
upon the appellant is already a lenient one.
Discharge Would Offend
R. v. Pham Principles: To now grant a discharge to the
appellant just to ameliorate the appellant's potential future immigration
difficulties would, in my view, not ensure the necessary proportionality having
regard to the gravity of the offences and the degree of responsibility of the
offender, and would result in an unfit sentence. Collateral immigration
consequences to an accused must be properly taken into account as one of the
personal circumstances of the accused, and as one factor in tailoring the
appropriate sentence. But such consequences cannot justify the imposition of unfit
dispositions which dominate and skew the sentencing process either for or
against deportation. See: R. v. Pham, at paras. 6, 11-13, 14-16, 20; R. v. Lu, 2013 ONCA 324, at paras. 46-47; R. v.
Hamilton (2004), 186 C.C.C. (3d) 129 (Ont.C.A.) at
paras. 155-156. In my opinion, to now grant the appellant's request for a
discharge would not only result in an unfit sentence, but it would wrongly skew
the sentencing process against deportation.
The Authorities: Discharges are, of course, not limited to trivial or technical
offences. A discharge is within the legal range of potential sentences that the
appellant might receive in this case. Further, there are, no doubt, some cases
where conditional discharges have been granted in significant theft/fraud
cases. See, for example: R. v. Kalonji, 2010 ONCA 111; R. v. Huang, [2011] ONSC 2545. However, apart from the potential immigration
consequences for the appellant, this case does not present with the kinds of
"exceptional" circumstances which might justify the imposition of
such a disposition, especially given the number and nature of the criminal
offences admittedly committed by the appellant over a significant period of
time.
F. CONCLUSION
23 In
the result, the appeal against sentence must be dismissed. An order shall issue
accordingly.
K.L. CAMPBELL J.
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