Friday, August 30, 2013


I was quoted in The Lawyers Weekly commenting on the recent Alberta Court of Appeal decision on criminal sentencing and immigration consequences:

Deportation threat no cause for leniency

By Michael Benedict

The Lawyers Weekly
Vol. 33, No. 16 (August 30, 2013)


In uncharacteristically forceful language, the Alberta Court of Appeal has ruled that a trial judge's conditional discharge for a "doubly abhorrent" assault thoroughly misapplied sentencing principles that relate to non-Canadians.

In R. v. Bandesha [2013] A.J. No. 800, the court said the 32-year-old male respondent, a permanent Canadian resident for a decade, participated in a "vicious group attack" in which they "attacked, pushed, kicked and beat a family member in order to coerce her to marry someone whom she did not want to marry." According to the court, the sentencing judge issued a conditional discharge to Balsher Singh Bandesha, a long-distance truck driver, to "avoid any danger of deportation and to avoid any difficulty in crossing the American border."

At issue is the extent to which a judge may reduce a sentence for non-Canadians so that they may have an opportunity to appeal any deportation order that results from a conviction. Earlier this year, amendments to the Immigration and Refugee Protection Act reduced to six months or fewer the sentencing ceiling for launching such appeals. Previously, any non-Canadian had to be sentenced to two years or more before automatically losing the right to appeal a removal order to the Immigration Appeal Division on humanitarian and compassionate grounds.

In Bandesha, "the sentencing reasons made errors in principle," the Alberta Court of Appeal said in its August 6 decision written by Justice Jean Côté. "They did not properly apply the principles in Pham (R. v. Pham [2013] S.C.J. No. 100) and failed to consider denunciation. Proportionality got little or no weight, and the sentence is unfit."

In summarizing the Supreme Court of Canada's Pham ruling, Justice Côté said: "Some personal circumstances of the offender, such as possible deportation, can be taken into account[...]But such circumstances do not overrule proportionality, and every sentence must fit the crime and the offender. Immigration consequences cannot make the sentence disproportionate to the gravity of the offence or the degree of the offender's responsibility."

Noting that "there was nothing technical or minor about this assault, nor about the respondent's role," Côté goes on to explain that Pham's intent is to: "[...]involve trimming a few days (or weeks) off a fit sentence for immigration reasons. We have not seen any precedent for adopting a completely different type of sentence for immigration purposes."

According to Toronto immigration law specialist Sergio Karas, the Bandesha decision sends a strong message that a person's immigration status is not a "free pass" when it comes to sentencing. He added that Bandesha also makes it clear that one can't rely on Pham to produce a disproportionate sentence.

Before Pham, Karas said some judges imposed sentences of two years less a day for non-citizens so they could retain their right to appeal a deportation, while Canadians received much longer sentences for the same offence. "That was thoroughly ridiculous," he said.

Furthermore, Karas added that Bandesha is also noteworthy because of the strong language the court used to condemn social practices that might be accepted elsewhere.

Writing for a unanimous three-judge panel, Côté said: "In some cultures, women are not free to choose or reject a prospective spouse. That sort of coercion is abhorrent to Canadian society, and physical beatings to enforce such coercion are doubly abhorrent."

Said Karas: "Appeal courts don't normally use such language. It's really unbelievable. You can feel their frustration."

For his part, criminal lawyer Brian Heller, of Heller, Rubel in Toronto, said his "eyebrows shot up" when he read the facts of the case, especially the part about "pulling out a large clump of her hair by the roots." Heller said Bandesha demonstrates that Pham is of no help if the sentence does not fit the crime. "First you have to look at the offence," he adds, "and then you can perhaps vary the sentence within reasonableness."

Said Heller: "Bandesha is a practical application of how Pham precludes a convicted person from benefitting from a claim for leniency if the sentence is not appropriate."

The Alberta Crown Prosecution Service appealed the conditional discharge on the successful grounds that the judge erred in principle when applying the sentence. "There's no way someone should have received a conditional discharge in this case," said Brian Graff, appellate counsel in the Alberta Department of Justice and Solicitor General. "Bandesha confirms that immigration consequences can't produce a disproportionate sentence."

Graff, who argued the appeal, says Bandesha "spells out more clearly that, yes, a convicted person's immigration status can have an effect -- but only a small effect."

Ironically, in the end, Bandesha will have a right to appeal any deportation order that might result from his conviction for assault causing bodily harm. That is because he received only a 90-day sentence, the same as that imposed on his father, who the appeal court described as the "ringleader" of the attack. But because of the father's sentence, the court said, "we feel unable to go higher."

Lawyers for Bandesha declined to comment on the case or the court decision.

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