Tuesday, March 26, 2013


SCC weighs in on when to cut a defendant some slack

By Cristin Schmitz, Ottawa

The Lawyers Weekly
Vol. 32, No. 44 (March 29, 2013)


The Supreme Court has clarified that appeal courts may overturn sentencing judges who fail to consider the immigration consequences of their decisions.

In his first written judgment since joining the top court last October, Justice Richard Wagner said the majority of the Alberta Court of Appeal should not have refused appellant Hoang Anh Pham's request to reduce by one day his two-year prison sentence so that the Vietnamese citizen convicted of marijuana trafficking offences would not lose his right to appeal a deportation order.

Justice Wagner's March 14 reasons for a 7-0 oral ruling last January allowing Pham's appeal from the bench stipulates that in crafting sentences for foreign offenders, trial judges must take into account that under the Immigration and Refugee Protection Act (IRPA), a non-citizen sentenced in Canada to two years or more in prison automatically loses his or her right to appeal a removal order to the Immigration Appeal Division. (That two-year threshold would be reduced to six months under Bill 43, the Faster Removal of Foreign Criminals Act, which is currently before the Senate.)

"An appellate court has the authority to intervene if the sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel had failed to advise the judge on the issue," Justice Wagner wrote. "In such circumstances, the court's intervention is justified because the sentencing judge decided on the fitness of the sentence without considering a relevant factor."

Justice Wagner added: "Although there will be cases in which it is appropriate to reduce the sentence to ensure that it does not have adverse consequences for the offender's immigration status, there will be other cases in which it is not appropriate to do so."

Pham's counsel at the Supreme Court, Erika Chozik of Toronto, told The Lawyers Weekly that trial judges across the country had been uncertain about the extent to which they could consider immigration consequences in sentencing -- if at all. Appellate courts were similarly divided over whether they should overturn sentences because those consequences were not considered.

"This decision says to trial judges: 'Continue the individualized sentencing process that you already engage in, and proportionality is the paramount consideration in sentencing,' " Chozik said.

She added that principle will apply as well if Bill 43 becomes law.

Counsel for the respondent Crown, Ronald Reimer of the Public Prosecution Service of Canada in Edmonton, said the top court has adopted Ontario Court of Appeal Justice David Doherty's articulation of the law in R. v. Hamilton [2004] O.J. No. 3252.

The Supreme Court has accepted "that potential immigration consequences faced by a non-citizen offender can have a limited impact on the sentence that's imposed, but that they are not to be treated as 'mitigating' [factors], in the sense that they are going to push the sentence down below[...]what would be an appropriate sentence," Reimer said. "So, the [sentencing] court still has to come to a determination as to what's required by the gravity of the offence and the moral culpability of the offender, and [the sentence] has to be in that range."

Reimer added: "The impact is going to be most significant for those who are at, or near, the line where [immigration] consequences kick in" -- whether that's two years under the current IRPA, or six months under Bill 43.

In Pham's case, Justice Wagner said the Crown conceded at the Court of Appeal that a sentence of two years less a day was still within the range of fit sentences. Indeed, the Crown agreed to the sentence reduction. The prosecution also agreed that the sentencing judge would have ordered the reduced sentence had the judge been told of the collateral immigration consequences for Pham. The Crown and defence made a joint two-year sentencing recommendation to the trial judge that benefited the accused by sending him to an Ontario prison closer to his family. However, Pham's defence counsel (not Chozik) was apparently unaware of the negative immigration consequences.

Justice Wagner said that the appeal court should have intervened in the circumstances. "It was wrong for the Court of Appeal to refuse the one-day reduction solely on the basis that the appellant had a prior criminal record or that it felt that he had 'abused the hospitality that [had] been afforded to him by Canada,' " Justice Wagner said in reducing the two-year sentence by one day.

He said a sentencing judge may take collateral immigration consequences into account, provided that the sentence imposed is proportionate to the gravity of the offence and the offender's responsibility.

He said the significance of the immigration consequences will depend on the facts, but those consequences are only one factor in determining the appropriate sentence. It still remains open to the sentencing judge to conclude that even a minimal sentence reduction would be inappropriate, given the gravity of the offence and the offender's degree of responsibility, he said.

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