IMMIGRATION CONSEQUENCES CANNOT AVOID APPROPRIATE SENTENCE

In another case considering the collateral consequences of criminal convictions, the court imposed a four year term of imprisonment despite the fact that the offender will likely be deported.

 R. v. Lauture

Between
The QUEEN, Prosecutor, and
Jamesson LAUTURE, Accused

[2015] Q.J. No. 3725

2015 QCCQ 3470

No.: 500-01-103176-142

 Cour of Quebec (Criminal and Penal Division)
District of Montréal

The Honourable Justice Patrick Healy J.C.Q.

Heard: November 27, 2014.
Judgment: April 30, 2015.

(9 paras.)

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JUDGMENT
 (Sentence)

1     On 27 November 2014, Mr. Lauture pleaded guilty to three counts concerning events on 9 March 2014: armed robbery,¹ conspiracy (armed robbery)² and aggravated assault.³ The prosecution proposes a sentence of sixty months. The defence, taking into account the offender's guilty pleas, remorse and age, proposes a sentence of thirty-six months. The sentence must also take into account the preventive detention since 11 March 2014, for a credit of 623 days.

2     For reasons explained below, it is probable that the collateral consequences of this decision will be far more severe for Mr. Lauture and his family than for any person born in Canada.

3     The gravity of the offences is apparent and the degree of Mr. Lauture's responsibility for them is complete. The crimes were committed in a calculated and opportunistic manner and with total disregard for others. The victim of the assault suffered aggravated injuries that are physical, mental and enduring. He lives in fear. His academic studies have been interrupted and compromised. His professional aspirations are suspended. Mr. Lauture's pleas, his remorse and his age will never diminish the gravity of the offences or his responsibility for them. The consequences for the victim will remain. As a result, a proportionate sentence in the circumstances of this case must privilege denunciation and deterrence by isolating the offender from society. The parties agree. This does not exclude consideration of rehabilitation, social reintegration and promoting an enhanced sense of responsibility in the offender. But the other principles and objectives must give priority to denunciation and deterrence. The parties agree and the jurisprudence is plainly to the same effect.

4     A sentence between three and six years is appropriate in this case. Such a conclusion takes into account proportionality and the totality principle. The gravity of these offences, however, requires a sentence at the higher end of the range to reflect the degree of the offender's responsibility for them. I accept that Mr. Lauture has accepted his responsibility and recognises that the seriousness of these crimes, considering his young age and the consequences for the victim, do not allow substantial reduction of the total.

5     There will be a sentence of forty-eight months. From this figure will be substracted 623 days for pre-sentence custody.

6     Mr. Lauture is nineteen years old and immigrated to Canada from Haiti at the age of eight. He is not a Canadian citizen but a permanent resident. He lives with his mother, who is the only other member of his family in this country. As a consequence of the sentence imposed today, Mr. Lauture is liable to be excluded from Canada under the Immigration and Refugee Protection Act. If he is subject to an exclusion order, he will have no right of appeal against that decision. Thus Mr. Lauture will be separated from his mother if she chooses to remain here after his removal; or she will leave Canada to remain with her son if he is removed. It is for this reason that the sentence imposed today will likely have adverse consequences for Mr. Lauture that are more severe than for a person born in Canada.

7     There is nothing that can be done in this court to address these collateral consequences. Only a sentence of less than six months would preserve Mr. Lauture's right of appeal against an adverse exclusion order. In Pham⁴, the Supreme Court explicitly concluded that collateral consequences could be taken into account but only on the proviso that doing so would not result in a disproportionate sentence. A sentence of less than six months would be unreasonable and disproportionate to the gravity of the offences and the degree of Mr. Lauture's responsibility.

8     An unresolved question is whether the collateral consequences concerning exclusion orders would be engaged where there is a conditional sentence of more than six months. As the Supreme Court has described a conditional sentence as a term of imprisonment, it would appear that the answer is yes, even though a conditional sentence may be granted solely if the sentencing court concludes that the offender poses no danger to others.

9     The collateral consequences under the Immigration and Refugee Protection Act⁵ are significant but this court is plainly not an appropriate forum in which to examine them in the circumstances of this case. Such an examination could only occur in a forum where the operation of those provisions is directly in issue. Where such is the case it might be expected that it might be questioned whether those measures precisely because the different treatment of persons born in Canada and persons not born in Canada is a question of status before the law. Persons born in Canada cannot be banished.

FOR THESE REASONS, Mr. Lauture, the sentence in this matter is as follows:

Imprisonment for four years, concurrent on the three counts, minus the preventive detention (calculated at a ratio of 1.5) of 623, for a total of 837 days from today;

An order according to section 109 of the Criminal Code prohibiting you to possess any weapons for a period of ten years;

An order according to section 487.051(1) for a sample of DNA.

THE HONOURABLE JUSTICE PATRICK HEALY J.C.Q.

1 Criminal Code, R.S.C. 1985, c. C-46, section 344(1)(b).

2 Criminal Code, section 465(1)(c).

3 Criminal Code, section 268.

4 2013 SCC 15, paragraph 11.

5 S.C. 2001, c. 27 (as amended).