Tuesday, December 3, 2013


The case below, just reported, is quite amazing as a person has been deported five time, convicted for that offence, and still returns. Is the sentence appropriate?  Will he return?

 R. v. Fernandes

Her Majesty the Queen, and
Jose Fernandes
[2013] N.J. No. 377
Docket: 0113A02561

 Newfoundland and Labrador Provincial Court
Judicial Centre of St. John's
St. John's, Newfoundland and Labrador

D. Orr Prov. Ct. J.

Heard: October 17, 2013.
Judgment: November 15, 2013.
(23 paras.)
Cases cited:
R. v. John Doe, 2004 CarswellBC 487.
R. v. Blanas, 2006 CarswellOnt 511.
R. v. Daskalov, 2011 BCCA 169.
R. v. Khan, 2004 BCCA 143.
R. v. Lin, 2005 CanLil 15782 NLPC.
R. v. Fawaz, 2010 BCSC 384; 2010 BCCA 592.
R. v. Zelaya, 2009 CarswellAlta 37.
R. v. Lin, 2007 NLCA 13.
R. v. Stewart, [2001] O.J. No. 6058 (O.C.J.).
R. v. H.P. (1995), 133 Nfld. & P.E.I.R. 20 (Nfld. C.A.).
R. v. Robitaille, [1993] B.C.J. No. 1404 (B.C.C.A.).
R. v. Gladue, [1999] 1 S.C.R. 688.
R. v. Harrison, [1978] 1 W.W.R. 162.

Statutes cited:
Immigration and Refugee Protection Act, S.C. 2001, c. 27.
Criminal Code, RSC, 1985, c. C-46.

D. ORR PROV. CT. J.:--
1     The accused has entered guilty pleas to a breach of section 123(1) (b) of the Immigration and Refugee Protection Act and a breach of section 57(1) (b) of the Criminal Code.
2     The facts were that the accused entered Canada on the 8th of September, 2013 from a cruise ship which had docked in St John's Harbour. He is a Portuguese citizen whose parents came to Canada in 1969. He has been removed from Canada five times in the past, three times by deportation, the last time about seven months ago. When Mr. Fernandes was arrested this time he had a fraudulent passport under the name James Swift. He claimed that he obtained the passport by purchasing it for 25 thousand dollars from a former Canadian Government Employee (an immigration officer). The alleged payment has not been independently confirmed by the investigators. The authorities were aware of the existence of the passport as it had been used in the past and were on the alert for it. Mr. Fernandes was found on the ship posing as James Swift and he presented the passport to Canada Border Services Agency as he attempted to enter the country.
3     At this hearing he has acknowledged he has been removed from Canada five times in the past. He has family members in Canada including children and that is why he attempted to return. He has stated he will attempt to return to Canada again although he maintains he will not try to do so again unlawfully.
4     The Crown submitted that Mr. Fernandes has a criminal record in Canada with offences dating from 1977 to 1994. The sentences he has received in the past for individual attempts to enter Canada were: one day in 1998; three months in 1999; and 12 months in April 2012. Following the 12 months in custody, he was removed from Canada and as on this occasion he had used a false passport. Counsel for the Crown states this demonstrates the accused has little regard for the law.
5     Counsel for the Crown has relied on the following cases to suggest a sentence range: R. v. John Doe, 2004 CarswellBC 487, R, v. Fawas, 2010 CarswellBC 721 and R. v. Blanas, 2006 CarswellOnt 511. He has argued that the cases suggest a low end of the range at ten months and the upper end in the two year range. He has argued given the accused's criminal record and his history of similar offences that a three year sentence be imposed.
6     Counsel for the accused has acknowledged that a jail sentence is warranted given the accused's previous history of arrest and removal and has relied on the following cases: R. v. Daskalov, 2011 BCCA 169, R. v. Khan, 2004 BCCA 143, Her Majesty The Queen v. Zhao Zhang Lin, 2005 CanLil 15782 (NLPC), R. v. Fawaz, 2010 BCSC 384; 2010 BCCA 592 and R. v. Zelaya, 2009 CarswellAlta 37. Counsel has argued that given his family circumstances that a sentence in the range of one year is appropriate.
7     The main aggravating factor in this case is the repeated attempts by the accused to enter the country illegally. In terms of the mitigating factors, counsel for the accused has pointed to his antecedents as a consideration. He was born in Portugal and came to Canada with his parents and sisters. He was expelled from his house by his father at an early age. He was placed in training school at 15 and subsequently developed an alcohol problem. As a result of his difficulties with substance abuse, he became involved in criminal activity which is reflected in his criminal record showing convictions between 1977 and 1993. It was when he was in training school that he missed an opportunity to become a Canadian citizen. His parents and sisters applied for citizenship but as he was absent from the home at the time an application was not made on his behalf. His mother is in Canada and he has five sisters here. He has been married for 18 years although the marriage has been troubled. He has two children and a number of grandchildren all of whom are living in Canada.
8     The accused has had no criminal convictions other than the immigration matters since 1993. He is 52 years of age and would like to return legally to Canada but he has been told that based on his history that will be difficult.
9     The provisions of section 718 and following of the Criminal Code apply, however, none of the statutory aggravating factors identified in the Criminal Code are present. In addition, section 123 of the Immigration and Refugee Protection Act sets out two more aggravating factors:

·       123. (1) Every person who contravenes 

·       (a) 
paragraph 122(1) (a) is guilty of an offence and liable on conviction on indictment to a term of imprisonment of up to five years; and 
·       (b) 
paragraph 122(1) (b) or (c) is guilty of an offence and liable on conviction on indictment to a term of imprisonment of up to 14 years. 

·       (2) 
The court, in determining the penalty to be imposed, shall take into account whether 

·       (a) 
the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization as defined in subsection 121.1(1); and 
·       (b) 
the commission of the offence was for profit, whether or not any profit was realized. 
10     In this case neither of these factors are present the accused was not motivated by profit nor was there any organized crime involvement.
11     Counsel have relied on a number of cases in support of their sentencing positions only one is a Newfoundland case R. v. Zhou Zhang Lin, 2007 NLCA 13. In that case the accused was sentenced to eight months imprisonment. The accused was involved in helping to smuggle several other people into Canada aboard a cruise ship. The Newfoundland and Labrador Court of Appeal stated at page 3 of the judgment:

·       It must be noted that in 2001, Parliament replaced the previous statutory provisions with the revision referred to as IRPA. One of the significant changes was increasing the maximum penalty under what is now the section 123(1) (b) to 14 years. That must be considered by courts to be a strong indication by parliament that this offence requires serious punishment. 
12     Similarly in R. v. Stewart, [2001] O.J. No. 6058 (O.C.J.), the Ontario Court of Justice said at para. 18, "the Courts must now take a stronger look at persons who utilize false and professionally manufactured I.D. for illegal purposes."
13     And in R. v. Khan,supra, the British Columbia Court of Appeal upheld a sentence of 23 months imprisonment for an accused attempting to enter Canada using a forged passport. The accused in that case was described as "an international fraud artist" at paragraph 6 the court held:

·       In my, opinion this sentence is clearly a fit one. If it could be faulted at all, and I do not say it could be, it would be because it is at the low end of the range. 
14     In the Alberta decision of R. v. Zelaya, supra, after being denied refugee status the accused left Canada and then returned attempting to re enter illegally using a false passport. Judge Grieve reviewed the case law extensively at paragraph 19 and following and he concluded at paragraph 20:

·       A review of these cases suggests that on Count Four alone, merely returning after deportation without proper authorization, that for an accused with no record, the sentence can range from a fine to a three month jail term, depending on the circumstances. 
15     In Zelaya, Judge Grieve characterized the actions of the accused as "deliberately undermining the security of ordinary Canadians" and imposed a sentence of 18 months.
16     Mr. Fernandes has recently been sentenced to serve one year imprisonment in relation to this same offence in November of 2012. He was deported and has now returned. It is obvious that the one year sentence did not deter him.
17     In R. v. H.P. (1995), 133 Nfld. & P.E.I.R. 20 (Nfld. C.A.), the Court of Appeal at paragraph 14, pointed out:

·       A criminal record surely indicates diminished prospects for rehabilitation. Furthermore, a criminal record, and particularly where the offences are similar, is the omen that immediately alerts the sentencing judge to the reality that the offender has become a serious threat to the community. How great the risk of course, depends on the nature of the offences and the circumstances. Ruby, in his Fourth Edition at p. 202, observes that courts often state that "a second offence is always considered more serious than a first" and, as the protection of society is the basic purpose of sentencing, the criminal record of a repeat offender is relevant in fixing the measures necessary to protect society. He expresses the point in these terms: 

·       The real issue is how dangerous the offender may be to society. The criminal record may show the offender is "committed to a criminal way of life" and therefore a danger to society. The criminal record may "display a settled intention to ignore all warnings and continue committing crime". But there are limits to this doctrine: "Propensity may inhibit mitigation but in the absence of statutory authority it cannot do more." Nevertheless, the acquisition of such a record does mark someone as a danger and since the basic purpose of sentencing is the protection of society, a criminal record is often relevant in determining the measures that will be needed to protect society from this individual. 
18     In this case, there is no indication that the accused is dangerous now and presents a threat as someone who will go on to commit criminal offences. His offending has been confined to attempts to enter the country.
19     In this case counsel for the Crown has asked that the accused be sentenced to three years, a federal term of imprisonment and three times the length of the previous sentence he received for the same offence. Courts have in the past considered that such a large increase could offend the "jump" principle". This principle was considered in R. v. Robitaille, [1993] B.C.J. No. 1404 (B.C.C.A.):

·       The sentencing judge had in mind that the applicant was on parole at the time when this offence was committed and accordingly that the six months he spent in prison before conviction on these counts was not spent there because he was awaiting trial on these counts but because of the forfeiture of his parole. In that aspect the Crown has conceded that the trial judge was incorrect in his understanding. That is one of the arguments that is put forward on behalf of the applicant, but the principal argument is that an escalation from a maximum sentence previously served of three year concurrent sentences for armed robbery to the seven years for armed robbery in this case which is coupled with two years for the use of a weapon in the course of the commission of the armed robbery to make a total of nine years is too big a jump and that it fails to give proper consideration for the principles of deterrence and rehabilitation as they would apply to this man. 

·       In relation to that argument, I say that the theory that sentences should go up only in moderate steps is a theory which rests on the sentencing principles of rehabilitation. It should be only in cases where rehabilitation is a significant sentencing factor. So the conclusion, in any particular case, that the increase in sentence should not be too large rests on a consideration of the circumstance of the particular offender and a desire not to discourage any effort he may be making to rehabilitate himself by the imposition of a sentence that may be seen by him to be a dead weight on his future life. 
20     The jump principle flows from the principle of restraint contained within sections 7 18.2(d) and (e) of the Criminal Code and has been further articulated by the Supreme Court of Canada in R. v. Gladue,[1999] 1 S.C.R. 688. Sentences for recidivists should not simply continue to escalate proportionality and restraint must be considered to ameliorate a potential sentence and find an appropriate sanction in each case.
21     In this case, the accused was not motivated by any of the factors usually considered as criminogenic. A longer period of incarceration will not change his situation and consequently conventional rehabilitation is not a factor here. General deterrence is a consideration but as was noted in R. v. Harrison, [1978] 1 W.W.R. 162:

·       It is my view that general deterrence is a byproduct of the whole system of justice and not necessarily an aim of any particular sentence. 
22     Specific deterrence is undeniably a consideration but given the rather unique situation of the accused in this case it seems unlikely that a substantially longer period of imprisonment would provide any greater level of deterrence. Consequently I am satisfied that the sentence in this case must be longer than the 12 month sentence previously imposed but need not be increased to a federal term. I find that a sentence of 18 months imprisonment is appropriate.
23     The sentence will be imposed as follows: 12 months (365 days) with respect to the offence under section 123 of the IRPA and 6 months (180 days) consecutive for the breach of section 57 of the Criminal Code, for a total sentence of 545 days. The accused has served 69 days in custody I will give credit for that on a one and half to one basis for a total of 103 days, leaving the total time left to serve of 442 days.

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