ALBERTA COURT OF APPEAL REJECTS SENTENCE REDUCTION FOR OVERSTAY CONVICTED DRIVER

The Alberta COurt of APpeal unanimously rejected the argument that the sentence of a convicted driver who killed the driver of another car.  The appellant  was in Canada illegally after his  Study Permit had long expired, and he argued that his sentence should be reduced based in part on the potential immigration consequences that he would face. The court correctly held that, since the driver was already illegally in Canada after his Study Permit expired,  the matter had little relevance.

R. v. Mbachu

Between
Her Majesty the Queen, Respondent, and
Eze Mbachu, Appellant

[2016] A.J. No. 945

2016 ABCA 270

Docket: 1501-0147-A

Registry: Calgary

 Alberta Court of Appeal

R.L. Berger, P.W.L. Martin and B.K. O'Ferrall JJ.A.

Heard: June 21, 2016.
Judgment: September 19, 2016.

(35 paras.)

Appeal From:

On appeal from the Sentence by the Honourable Madam Justice M.C. Erb Dated the 27th day of May, 2015 (Docket: 130124621Q1).

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Memorandum of Judgment

·         The following judgment was delivered by 

·         THE COURT:-- 

I. Introduction

1     The appellant appeals his sentence of two-years less-a-day for dangerous driving causing death. Under section 249(4) of the Criminal Code, everyone who operates a motor vehicle in a manner which is dangerous to the public and thereby causes death is guilty of an indictable offence and liable to a term of imprisonment not exceeding 14 years.

2     The appellant asks that the two-years less-a-day sentence imposed by the sentencing judge be replaced with a sentence of six months incarceration followed by a period of probation.

3     The appellant argues that the sentence imposed was unduly harsh having regard to cases that have imposed lower sentences in what the appellant argues were similar circumstances and similar offences. He argues that a sentence of less than six months would accomplish the sentencing objectives of denunciation and deterrence. The appellant further submits that, in arriving at the sentence she did, the sentencing judge overemphasized his previous driving record (four prior convictions in contravention of the restriction in his learner's permit requiring him to drive only if accompanied by a fully-licenced driver). Finally, the appellant argues that the sentencing judge failed to give sufficient consideration to the immigration consequences of the sentence imposed.

II. Background

4     At 6:30 a.m. on a January morning in 2013 the appellant ran a stop sign on Big Hill Springs Road (secondary highway 567) and killed the driver of a vehicle driving south along Simons Valley Road (secondary highway 772).

5     The appellant pled not guilty to the charge. He did agree to a statement of facts which were put before the trial judge by counsel for the defence and the Crown. In that agreed statement of facts, the appellant admitted, inter alia, that:

·         (a) 

he was driving alone on the day in question in contravention of his Class 7 Operator's Licence (commonly referred to as a learner's permit or learner's licence) and that he was aware that he was required to have a fully-licenced driver supervising him when he was driving; 

·         (b) 

his vehicle passed nine warning signs that he was approaching a major intersection and was required to stop and that those warning signs were as follows: 

·         (i) 

a stop sign at the intersection; 

·         (ii) 

a flashing red light on top of the stop sign clearly visible from approximately half a kilometer from the intersection; 

·         (iii) 

a roadsign a half a kilometer from the intersection stating "Important Intersection Ahead"; 

·         (iv) 

the words "Stop" and "Ahead" painted on the road surface roughly 400 meters from the intersection; and 

·         (v) 

five sets of rumble strips warning of the intersection and the need to stop; the rumble strips were located 301, 253, 197, 147 and 100 meters, respectively, from the intersection stop line; 

·         (c) 

there were no obstructions restricting visibility; 

·         (d) 

the appellant did not brake or veer prior to the collision; and 

·         (e) 

the appellant's vehicle, including its brakes, were operating properly. 

6     Prior to the accident which resulted in the victim's death, the appellant, a 25-year-old Nigerian citizen who was in Canada on a student visa and who had only a learner's permit to drive, had been given four traffic tickets for driving without being accompanied by fully-licenced driver, as required by a learner's permit. His learner's permit was issued in March of 2011, shortly after he arrived in Canada at 23 years of age. His first ticket was issued in July of 2011 (he was convicted in September of 2011). The three other tickets were issued in January, February and March of 2012 (for which he was convicted in February, March and November, 2012, respectively). On the day of the fatality which gave rise to this charge (January 9, 2013) he was also driving without the required supervision.

III. The Sentencing Decision

7     Before delivering the sentence, the sentencing judge set out the circumstances of the offence. In particular, she noted the appellant was aware that he was not to drive without having a fully-licenced driver in the vehicle with him and also emphasized the fact that there were numerous indicators of the need to stop at the intersection which the appellant failed to heed. The sentencing judge then reviewed the circumstances of the offender, including his difficult early experiences in Nigeria, his coming to Canada and the fact that he was sincerely remorseful about the death of the driver of the other vehicle (though she noted that, according to the writer of the Pre-sentence Report, the appellant diminished his role in the tragic events). The sentencing judge also took into consideration the terrible loss suffered by the victim's family as illustrated by the victim impact statements.

8     After reviewing the principles and objectives of sentencing set out in the Criminal Code, the sentencing judge considered the aggravating and mitigating circumstances. She found the appellant's multiple prior convictions for not complying with the restrictions of his learner's licence to be aggravating. As to mitigating factors, she noted that the appellant had complied with the conditions of his judicial interim release, had expressed remorse and had proceeded to trial on the basis of an Agreed Statement of Facts with the result being that no additional witnesses needed to be called at trial. The sentencing judge also considered the immigration consequences of the appellant's conviction.

9     Before imposing sentence, the sentencing judge noted that, given the diversity of circumstances in dangerous driving cases, there was no sentence starting point for this offence. Having considered the circumstances of the offence and the offender, the sentencing judge found the gravity of the offence to be profound and the degree of the appellant's moral and legal blameworthiness to be high and as a result imposed a term of imprisonment of two-years less-a-day.

IV. Issues on Appeal

10     The appellant submits that the sentence imposed was unduly harsh. Therefore we must determine whether or not in the circumstances of this case a two-year sentence for dangerous driving is a fit sentence. In addressing this issue, we must consider the appellant's arguments that a less-restrictive sanction would be appropriate in the circumstances and would meet sentencing objectives and his argument that the trial judge erred in overemphasizing the appellant's previous convictions for driving without the required supervision. We must also consider, based on the case law, whether the sentence imposed in this case is within the range of sentences for cases involving similar circumstance and similar offences. Finally, we must address the appellant's argument that the trial judge did not give sufficient consideration to the immigration consequences of the sentence imposed.

V. Standard of Review

11     The standard of appellate review in sentence appeals is deferential. To ground intervention, the sentence must be "not fit", "clearly unreasonable" or a "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes" (see for example R v M(CA), [1996] 1 SCR 500, 105 CCC (3d) 327). This court may vary a sentence where there has been an error in principle, a failure to consider a relevant factor or an overemphasis of an appropriate factor, but only if the sentence is demonstrably unfit. An appellate court cannot intervene "simply because it would have weighed the relevant factors differently" (R v Lacasse, 2015 SCC 64 at para 49, [2015] 3 SCR 1089). An overemphasis of a relevant factor or failing to give sufficient weight to a relevant factor may amount to an error in principle requiring appellate intervention, but only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercised his or her discretion unreasonably: R v McKnight (1999), 44 OR (3d) 263, [1999] OJ No 1321 (QL) at para 35 (CA).

VI. Analysis

·         A. Would a sentence of six months or less satisfy the purposes of sentencing?

12     The appellant submits that the fundamental purpose of sentencing set out in section 718 of the Criminal Code could be met by a less-restrictive sanction. More specifically, the appellant argues that a custodial sentence of six months or less, with or without probation, would achieve that purpose.

13     For reasons which we will set out below, we are not of the view that the trial judge erred in imposing the sentence she did. That is, we do not agree that the sentencing judge erred in finding that the purpose and objectives of sentencing would not be satisfied by a term of imprisonment of six months or less, as the appellant had proposed.

·         B. Did the sentencing judge place undue emphasis on the appellant's driving record?

14     The appellant submits that the sentencing judge overemphasized his previous convictions for violating the terms of his learner's licence. He argues that the non-compliant behaviour, namely driving without the required supervision, had no bearing on his willingness to ignore danger and accept risk nor on the dangerousness of his driving at the time the offence took place. We cannot agree.

15     The requirement that those with a learner's licence not operate a vehicle without the supervision of a fully-licenced driver exists for a reason. The person with the learner's licence not only benefits from the presence of an experienced driver, but also from having a second set of senses in the vehicle. It is reasonable to think that, had an experienced driver been with the appellant on the morning of January 9, 2013, the tragedy that took place could have been avoided.

16     The appellant was very much aware that one of the conditions of his learner's permit required that he not operate a vehicle without a fully-licenced driver being present. Indeed, he had been convicted of failing to adhere to this condition on four separate occasions prior to January 9, 2013 when he, yet again, operated a vehicle without the required supervision. The conditions on learners' permits exist for the safety of both the licence holder and the general public. Although the appellant did not set out that fateful day intending to hurt anyone, let alone kill someone, in making the deliberate decision to drive without the required supervision, he disregarded a condition of his licence designed to ensure not only his own safety, but that of others as well.

17     Conditions on learners' permits are not negotiable or optional. It is not open to the holder of a learner's permit to decide that one or more requirements do not apply to him or her. If it were so, public safety would be compromised. Therefore, we do not agree with the appellant that the sentencing judge placed undue emphasis on the appellant's driving record or the fact that, on the day in question, the appellant again chose to drive without the supervision required under his learner's licence.

·         C. Is the sentence in this case within the range of sentences in dangerous driving cases with similar offenders and similar circumstances?

18     The appellant argues that the sentence of two years less a day is unduly harsh considering that there was no alcohol involved, no evidence he was driving recklessly prior to the accident, an expression of remorse by the appellant, and considering his personal circumstances and the immigration consequences of his conviction. The appellant argues that the facts of this case are more like to cases where a short-custodial sentence (e.g., 90 days) coupled with community service and probation or a suspended sentence have been imposed than to cases where substantial custodial sentences have been imposed.

19     Sentencing is an individualized process (see for example M(CA)) at para 92). Nowhere is this more apparent than sentencing those convicted of the offence of dangerous driving causing injury or death where courts throughout Canada have recognized the difficulty in comparing cases as the nature of the offender and the circumstances surrounding the offence vary greatly (R v Grenke, 2012 ABQB 198 at para 21, 537 AR 287, R v Dunford, 2015 SKQB 386 at para 42 (CanLII)). For this reason, in the case of dangerous driving offences, various courts have noted the futility of establishing sentencing starting points (e.g., R v Chikie, 2011 ABQB 420 at para 32, 527 AR 44) and also noted that the range of appropriate sentences is very broad (R v Hansell, 2015 MBQB 109, 318 Man R (2d) 169).

20     That being said, sentencing ranges are useful to the extent that they assist the court in applying the relevant sentencing principles and objectives (Lacasse at para 57). Alive to the wide range of circumstances in dangerous driving cases, we note that sentencing ranges are not "straightjackets" (to paraphrase Wagner, J. in Lacasse at para 69).

21     In considering the appropriate range of sentence in the present instance we are mindful that courts throughout Canada have stressed the importance of deterrence and denunciation in the sentencing of those convicted of dangerous driving causing death or injury (Grenke at paras 23-31, Dunford at 29). In the recent British Columbia Court of Appeal decision in R v Bosco, 2016 BCCA 55, Madam Justice Dickson discussed issues in sentencing in the case of dangerous driving offences:

·         General deterrence and denunciation are the primary sentencing goals in dangerous driving cases. Members of the public share its highways and are entitled to do so in the expectation of reasonable safety based, in part, on responsible use of motor vehicles by all concerned. As Madam Justice Epstein emphasized in Rawn, [2012] O.J. No. 3096 at paras. 49-50, driving is a privilege that can wreak great havoc when it is exercised recklessly. Accordingly, sentences for dangerous driving must unambiguously express society's condemnation of the conduct and serve to warn like-minded others that it will not be tolerated. 

·         Driving offences are unusual in that otherwise law-abiding citizens like Mr. Bosco may be inclined to commit them without fully appreciating their criminality. Driving is a commonplace activity, and, to varying extents, human frailties like impatience, inattentiveness and impulsivity are ubiquitous. When drivers irresponsibly indulge such frailties from behind the wheel they imperil others in their orbit, sometimes with catastrophic consequences. All drivers are expected to know this and govern themselves accordingly. When they do not and harm ensues, the result is no mere accident. It is a true crime: R. v. Giles, 2012 BCSC 775 at para. 25; Johnson at [1996] B.C.J. No. 2508, para. 30. (paras 38-39) 

22     Although the court in Bosco was considering sentencing in the context of dangerous driving causing bodily harm, the court's reasoning also applies to cases of dangerous driving causing death. Similar reasoning is likely behind trends noted by Justice Germain in Grenke in his list of "commonsense propositions" regarding the sentencing of dangerous driving offenders, some of which are as follows:

·         2. 

lower or lighter sentences are handed out for dangerous driving causing death or bodily harm where there is an [sic] no involvement of alcohol or drugs, and the driving pattern is at the lower end of riskiness; 

·         ... 

·         4. 

where an offender has a previous record that involves drinking and driving or other dangerous tendencies relating to the rules of the road, sentences tend to be harsher. (para 34) 

23     Having read the transcript of the submissions before the sentencing judge as well as her sentencing decision, having considered the written and oral arguments by appellant's counsel and the Crown, having reviewed the case law put before us and bearing in mind the standard of review applicable to sentence decisions, we are not convinced appellate intervention is warranted in this case as we are not satisfied the sentence imposed is unfit.

24     It is apparent that the sentencing judge placed significant weight on the appellant's decision to drive without the required supervision both at the time of the incident and on a number of occasions prior to that. For reasons already discussed, we do not think it was unreasonable of her to do so.

25     As to the moral blameworthiness of the appellant, the judge's sentencing decision quite properly considered the appellant's driving without the requisite supervision to be risky behaviour. We do not consider this to be an unreasonable characterization. As the trial judge noted, "[t]he inattentiveness here was not only substantial, it was prolonged over half a kilometer distance in the face of repeated warnings". It is hard to imagine two occupants of a vehicle both failing to notice the numerous warnings, including rumble strips, of the need to stop at an upcoming intersection. The appellant's culpability was exacerbated by the fact that, despite multiple "reminders" that he was required to drive with supervision, the appellant repeatedly chose to engage in the prohibited behaviour.

26     The cardinal principle of sentencing is proportionality: the sentence imposed should reflect the gravity of the offence and the moral blameworthiness of the offender. In the present case, the gravity of the offence was high. The consequence of the impugned conduct was the most terrible imaginable--the loss of a life. Society's recognition of this gravity was reflected in changes to the Criminal Code in 2007 which made those convicted of dangerous driving causing death ineligible for conditional sentences. Given the significant gravity of the offence and the sentencing judge's conclusion that the appellant's conduct attracted an "exceedingly high degree of moral and legal blameworthiness" and our consideration of the cases provided to us by counsel, we do not believe a term of imprisonment of two years less a day is outside of the acceptable range of sentences or otherwise an unfit sentence considering the circumstances.

·         D. Immigration Consequences

27     The appellant submits that the trial judge erred in not giving sufficient consideration to the effect of the sentence imposed on his immigration status about which we note the evidence was less than satisfactory. It appears that, regardless of his criminal conviction and sentence, Mr. Mbachu faced the possibility of being the subject of a removal order. His student visa has expired. He has no work permit. He is not a permanent resident. And there was no evidence that the appellant holds a temporary resident permit or has temporary resident status. Consequently, on the record before us, he appears to have been a foreign national with no authorization to be in Canada.

28     Regardless of his seemingly precarious immigration status prior to trial, as a result of his criminal conviction Mr. Mbachu became "inadmissible" under the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), which means a removal order can be made against him without an admissibility hearing. Subsections 36(1)(a) and 36(2)(a) of IRPA read:

36

(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

·         (a) 

having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years [the maximum term for dangerous driving causing death is 14 years], or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed. 

·         (2) 

A foreign national is inadmissible on grounds of criminality for 

·         (a) 

having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence [emphasis added] 

29     Under both of these grounds, a foreign national may be subject to a removal order without an admissibility hearing (s. 44(2) IRPA and s. 228(1)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227). However, where a foreign national is deemed to be inadmissible on grounds of "serious criminality", more specifically where a foreign national has been sentenced to a term of imprisonment of at least six months, there is also no right to appeal the removal order to the Immigration Appeal Division (s. 64 IRPA).

30     In considering the immigration consequences of any sentence imposed upon the appellant, it is important to understand that the appellant faces the possibility of deportation as a consequence of having been convicted of an indictable offence (s. 36(2)(a)), regardless of the term of imprisonment. The only immigration consequence of the sentence imposed is that because the appellant was sentenced to a term of imprisonment longer than six months, he will not have the ability to appeal any deportation order which may be made.

31     At trial, defence counsel summarized the appellant's situation as follows:

·         Okay, Well, in the present case, presently, his visa has expired in any event. He is a foreign national with no visa. He's not a permanent resident. So currently -- his current status, as soon as this Court make a ruling, there will be a Section 44 deportation order given and he's going to be deported. If that's going to go fast-track, if it's six months or more, he can't even appeal it. And his chances on appeal, from my understanding, are very remote but there is -- that option is kept open for a hearing. 

32     On appeal, the appellant does not argue that the trial judge was unaware or otherwise ignored the fact that Mr. Mbachu faces significant immigration consequences. Rather, the appellant argues that the trial judge failed to give sufficient consideration to the effect of sentencing on the appellant in terms of his immigration status. While acknowledging that immigration consequences should not dominate the sentencing process, the appellant argues, citing the Supreme Court of Canada decision in R v Pham, 2013 SCC 15, [2013] 1 SCR 739, that these consequences should be given appropriate consideration.

33     In Pham, the Supreme Court considered the issue of the immigration consequences arising from sentencing and concluded that where the trial judge is aware of the immigration consequences and applies the proper sentencing principles but still arrives a sentence that results in the accused losing the right to appeal a removal order, then, absent fresh evidence, that decision is owed deference (para 23). As Justice Wagner, for the court, went on to explain at paragraph 24:

·         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 this issue. 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: M. (C.A.), at para. 90. As I explained above, however, the aim of such an intervention is to determine the appropriate sentence in light of the facts of the particular case while taking all the relevant factors into account. 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. 

34     In the present case, the trial judge was aware of the immigration consequences for the appellant of imposing a term of imprisonment of greater than six months. But given what we have said above about the fitness of the two-year-less-a-day sentence imposed, to drastically reduce that fit sentence to less than six months in order to ameliorate the immigration consequences of the sentence would have been inappropriate.

VII. Conclusion

35     In conclusion, we are of the view that the sentence imposed was not unfit. The sentencing judge exercised her discretion in a reasonable way and our intervention is not warranted. The appeal is therefore dismissed. The appellant will surrender himself to the Calgary Police within 48 hours of the filing of this Judgment.

Memorandum filed at Calgary, Alberta this 19th day of September, 2016

R.L. BERGER J.A.
P.W.L. MARTIN J.A.
B.K. O'FERRALL J.A.

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).

BOUNCER GRANTED CONDITIONAL DISCHARGE DUE TO IMMIGRATION CONSEQUENCES

Another twist of R.v. Pham. In this case, the court lowered the sentence, with some caveats in the decision. The offender is a Foreign Worker in Canada.

Omene v. Saskatchewan (Attorney General)

Between
Efe Omene, Appellant, and
The Crown as Represented by the Attorney General of
Saskatchewan, Respondent

[2014] S.J. No. 18

2014 SKQB 1Docket: QBG 1624/2012 Saskatchewan Court of Queen's Bench
Judicial Centre of ReginaB. Barrington-Foote J.

January 7, 2014.

(48 paras.)

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JUDGMENT

1     B. BARRINGTON-FOOTE J.:-- On July 20, 2012, the appellant, Efe Omene, was convicted of three counts of theft contrary to s. 334(b) of the Criminal Code,R.S.C. 1985, c. C-46 in the Provincial Court of Saskatchewan (reported as R. v. Omene, 2012 SKPC 120, 401 Sask. R. 210). On August 13, 2012, he received a suspended sentence of 15 months, including a restitution order in the amount of $430. The sentence has been fully served, and restitution paid.

2     Mr. Omene has now appealed this sentence. He says that the sentence is demonstrably unfit, as the learned trial judge did not consider mitigating factors, and focused only on aggravating factors. The crux of this appeal, however, is whether the sentence should be varied due to its collateral immigration consequences. Although the learned trial judge was aware that a suspended sentence may have immigration consequences, he was not aware that it would result in the application of provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("the IRPA"), which would make Mr. Omene subject to deportation without any right of appeal. Indeed, it is apparent that counsel inadvertently provided incorrect advice to the trial judge as to the immigration consequences of the sentence.

3     It was common ground between the Crown and the defence that it is open to the court on this appeal to consider the collateral immigration consequences, and to vary the sentence. I agree. As noted by Wagner J. in R. v. Pham, 2013 SCC 15, 293 C.C.C. (3d) 530:

• 24 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 this issue. 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: M. (C.A.), at para. 90. As I explained above, however, the aim of such an intervention is to determine the appropriate sentence in light of the facts of the particular case while taking all the relevant factors into account. 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. 

4     The question, accordingly, is this: what is the appropriate sentence not only in light of the collateral immigration consequences, but "in light of the facts of the particular case while taking all the relevant factors into account"? More specifically, should Mr. Omene receive a conditional discharge rather than a suspended sentence, thereby avoiding the conviction that could result in his deportation?

Background

5     The offences at issue occurred on March 26 and 27, 2013. Mr. Omene was then employed as the head bouncer at a Regina nightclub known as "the Drink". All of the victims were patrons at the nightclub.

6     Mr. Omene asked the first victim to show him identification. The victim handed him his wallet. He then followed Mr. Omene to a washroom, where he returned the wallet to the victim. The victim, realizing that $200 was missing from the wallet, demanded the return of his money Mr. Omene reacted in an aggressive manner toward the victim, accused him of being a racist, pushed him out of the washroom and ordered him from the bar. (R. v. Omene, supra, at paras. 7 and 19)

7     The second victim was involved in an altercation in the bar, and was escorted outside by two bouncers, one of whom was Mr. Omene. One of the bouncers asked him for his wallet for identification. When the victim handed it over, the bouncer who was not Mr. Omene spoke to him in a manner that he believed was an attempt to distract him, while Mr. Omene handled the wallet. When his wallet was returned to him, the victim noticed that $150 was missing. He attempted to follow the bouncers back into the bar, but was prevented from doing so. (R. v. Omene, supra, at para. 8)

8     The third victim was asked to leave the bar by two people, one of whom was Mr. Omene. He was asked to empty his pockets, the contents of which included four $20 bills folded together. The bills were not returned to him with the other items. He promptly demanded the money back, but it was not returned. He was taken out of the bar, and when he tried to return, was prevented from doing so. He accordingly called 911 and made a complaint. (R. v. Omene, supra, at paras. 13-14)

9     At trial, Mr. Omene gave evidence, denying that he had taken money from any of the victims. He claimed that he conducted searches for appropriate reasons, and in particular, to search for drugs. The trial judge specifically found that Mr. Omene's evidence was not credible: see R. v. Omene, supra, at paras. 39 - 42. Mr. Omene has never taken responsibility for or expressed remorse for having committed these offences.

10     Mr. Omene, who is originally from Nigeria, came to Canada in 2004. He is now 39 years old. He has completed a degree in geography at the University of Regina, and intended to continue his education and obtain a Masters degree. When he arrived in Regina, he was employed first as a teacher's assistant, and thereafter as a janitor at Luther College, a janitor at SaskPower, and a warehouseman. He has also worked a second job as a bouncer at the Drink and at another nightclub while working a day job, continuing to take at least one university course despite working. He worked continuously until he lost his most recent job due to a reorganization. He has applied for but been unsuccessful in getting other jobs, submitting that he has been turned down due to his conviction for these offences.

11     Mr. Omene had no prior criminal record, and there is no evidence, other than that relating to these offences, that he is not of good character. His counsel provided the court with testimonial letters which describe him as a pillar of the African community who has provided guidance to other students who have come to Regina from Nigeria, and as a hard-working, responsible and dedicated man who is respected by family, friends and members of his community. He has two children, two months and six years of age, who live in Regina with their mother. Mr. Omene and the mother of his children do not live together, but have been in a relationship for most of the last seven years. Mr. Omene provides some financial support for his children. Counsel for Mr. Omene noted the potential disruption of the relationship between Mr. Omene and his children in the event he is deported.

12     Mr. Omene is a foreign national within the meaning of the IRPA. He came to Canada on a student visa, and is now on a work visa. The Crown and the defence submit, and I agree, that if Mr. Omene does not receive a discharge, he will be inadmissible to Canada for criminality pursuant to s. 36(2)(a) of the IRPA. He would then be subject to deportation from Canada pursuant to s. 44(2) of the IRPA, with no right of appeal.

13     It is noted that deportation is not inevitable. It would still be possible for Mr. Omene to stay in Canada if he obtained a temporary resident permit pursuant to s. 24 of the IRPA, and to seek permanent resident status on humanitarian and compassionate grounds pursuant to s. 25 of the IRPA. It would also be open to the Minister to grant permanent resident status on humanitarian and compassionate grounds pursuant to s. 25.1 of the IRPA.

Law: Conditional Discharges

14     The authority to grant a conditional discharge arises pursuant to s. 730(1) of the Criminal Code, which is as follows:

• 730.(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears 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, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). 

15     Section 730(3) describes the effect of such a discharge, as follows:

• 730.(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence that 

• (a) 
  the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence; 
• (b) 
  the Attorney General and, in the case of summary conviction proceedings, the informant or the informant's agent may appeal from the decision of the court not to convict the offender of the offence as if that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against the offender; and 
• (c) 
  the offender may plead autrefois convict in respect of any subsequent charge relating to the offence. 

16     Accordingly, if Mr. Omene receives a discharge, he will not be inadmissible to Canada on grounds of criminality pursuant to s. 36(2) of the IRPA, as he will be deemed not to have been convicted of these offences.

17     The Crown submitted that the law does not permit the court to grant a discharge in the circumstances of this case. It submitted that on these facts, denunciation and general and specific deterrence are the most important of the sentencing considerations referred to in s. 718 of the Criminal Code. It relies onR. v. Foianesi, 2011 MBCA 33, 277 C.C.C. (3d) 366 (at para. 10) for the proposition that a discharge is not available when the primary sentencing consideration is general deterrence, and on R. v. Boyko, 2003 SKQB 139, 231 Sask.R. 57 (at para. 9) for the proposition that while the need for specific deterrence does not preclude a discharge, it is a key consideration. It takes the position that specific deterrence is very much at issue in this case, as Mr. Omene has not acknowledged his guilt, taken responsibility or expressed remorse. Indeed, the Crown suggests that a discharge is not in Mr. Omene's best interests, as he needs rehabilitation.

18     Further, the Crown submits - relying on R. v. Bennett, [2006] A.J. No. 540 (QL) (Alta. Prov. Ct.), R. v. D.E., 2000 ABQB 786, 273 A.R. 368 and R. v. Glover, 2002 ABQB 576, 318 A.R. 370 -- that the accused was in a position of trust within the meaning of s. 718.2(a)(iii) of the Criminal Code, which provides as follows:

• 718.2 A court that imposes a sentence shall also take into consideration the following principles: 

• (a) 
  a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, 

• ... 

• (iii) 
  evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, 

...

19     It says that a conditional discharge should never be granted where the offence involves the abuse of a position of trust in relation to the victim.

20     With respect, I do not agree that the court's discretion is limited to the extent suggested by the Crown. Section 730(1) requires that two conditions be met before a discharge is granted: the discharge must be in the best interests of the accused, and not contrary to the public interest. These conditions are described in the leading decision of the British Columbia Court of Appeal in R. v. Fallofield, [1973] 6 W.W.R. 472, 13 C.C.C. (2d) 450 as "conditions precedent" to the exercise of the court's jurisdiction. In that case, the court outlined the following principles in relation to s. 662.1 of the Criminal Code (a predecessor section which was, for these purposes, identical to s. 730(1)) at p. 476:

• From this review of the authorities and my own view of the meaning of s. 662.1, I draw the following conclusions, subject, of course, to what I have said above as to the exercise of discretion. 

• (1) 
  The section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life or by death. 
• (2) 
  The section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivial violation. 
• (3) 
  Of the two conditions precedent to the exercise of the jurisdiction, the first is that the court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused, that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the next consideration into operation. 
• (4) 
  The second condition precedent is that the court must consider that a grant of discharge is not contrary to the public interest. 
• (5) 
  Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions. 
• (6) 
  In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions. 
• (7) 
  The powers given by s. 662.1 should not be exercised as an alternative to probation or suspended sentence. 
• (8) 
  Section 662.1 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of cases. 

• [Emphasis in Original] 

21     In R. v. Roberts (M.J.), 2004 SKCA 153, 254 Sask.R. 174, the court adopts essentially the same approach as Fallofield, including the emphasis on general deterrence when considering the public interest. As the court there comments:

• [8] In R. v. Elsharawy (M.) (1997), 156 Nfld. & P.E.I.R. 297; 483 A.P.R. 297; 119 C.C.C. (3d) 565 (Nfld. C.A.), at pp. 566-67 [C.C.C.], the Court of Appeal for Newfoundland commented as follows on the prerequisites to a valid discharge: 

• "[3] For the Court to exercise its discretion to grant a discharge under s. 730 of the Criminal Code, the Court must consider that that type of disposition is: (i) in the best interests of the accused: and (ii) not contrary to the public interest. The first condition presupposes that the accused is a person of good character, usually without previous conviction or discharge, that he does not require personal deterrence or rehabilitation and that a criminal conviction may have significant adverse repercussions. The second condition involves a consideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminal law. See R. v. Fallofield (1973), 13 C.C.C. (2d) 450 (B.C.C.A.), and R. v. Waters (1990), 54 C.C.C. (3d) 40 (Sask. Q.B.)." 

22     The above list of considerations from Fallofield was also cited by Vancise J., as he then was, in R. v. Anderson, [1982] S.J. No. 577 (QL) (Sask. Q.B.). In that case, the court also cited the following passage from R. v. Sanchez-Pino(1973), 11 C.C.C. (2d) 53, [1973] O.J. No. 1903 (QL) (Ont. C.A.) with approval at pps. 58-59:

• ... The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing. 

23     These cases confirm that a discharge is available for any offence, except those specifically excepted by s. 730. That is not to suggest that discharges should be granted lightly. As noted by Vancise J.A. in R. v. Sorensen (D.B.) (1993), 116 Sask.R. 223, [1994] S.J. No. 24 (QL):

• [4] ... although such orders should be made sparingly, they should not be reserved exclusively for trivial or unintentional offences. See: R. v. Bram (1982), 30 C.R. (3d) 398 (Alta C.A.); R. v.Fallofield (1973), 22 C.R.N.S. 342 (B.C.C.A.). 

24     There is, in particular, no rule that discharges are not an option if the offence involves the abuse of a position of trust or authority in relation to the victim within the meaning of s. 718.2(a)(iii). I note, by way of example, the following decisions:

• * 
  In R. v. Kalonji, 2010 ONCA 111, [2010] O.J. No. 551 (QL) the court refused the Crown's appeal of a conditional sentence for fraud over $5,000 involving the offender's employer. The fight was perpetrated over a period of many months, and involved planned and sophisticated conduct. The offender was a first time offender with a strong record of community service and enjoy the support of his family and community. The trial judge also took account of the offender's wish to enroll in medical school. 
• * 
  In R. v. Edmunds, 2012 NLCA 26, 322 Nfld. & P.E.I.R. 337, the court dismissed an appeal against the conditional discharge of a corrections officer who was convicted of stealing from two individuals in the lockup. The offender pled guilty, and suffered from mental illness which was connected to the offences. 
• * 
  In R. v. Sellars, 2013 NSCA 129, [2013] N.S.J. No. 597 (QL) the court granted a conditional discharge to an offender who used her password to fraudulently obtain monies from her employer's health care plan for her abusive partner. As in Edmunds, supra, the offender had a history of mental illness that contributed to her involvement in the offence. 
• * 
  In R. v. McIntosh, 2012 ONCJ 216, [2012] O.J. No. 1772 (QL) the court granted a conditional discharge to an offender who stole between 12 and 32 blackberry phones from his employer, Research In Motion, during a seven month period. The offender had no prior record, a history of substance abuse and was terminated from his employment. He was under stress at the time of the offences due to his recent bankruptcy and stress from his mother's illness. The court found the offences were completely out of character. 
• * 
  In R. v. Howard, [2013] O.J. No. 3843 (QL) (Ont. Ct. J.) , the court granted a conditional discharge to the principal of an elementary school who misappropriated $29,448 donated by parents. He did not use the funds for his personal benefit, but for unauthorized purchases connected with the school. There was a joint recommendation for a conditional discharge. 

25     These cases demonstrate that courts in other provinces have been prepared to grant discharge when there is theft or fraud involving a breach of trust. That is so despite the fact that many courts have repeatedly confirmed that an abuse of a position of trust is a serious aggravating factor, and calls for an increased sentence: see, for example, R. v. Sereke, 2013 ABCA 67, 544 A.R. 110, R. v. Harding, 2006 SKCA 118, 213 C.CC. (3d) 543, at paras. 20-21, and R. v. Bethke, 2013 SKCA 135, [2013] S.J. No. 742 (QL). Indeed, large scale thefts involving a breach of trust generally call for incarceration in the absence of exceptional circumstances.

26     A fit sentence, however, always depends on the facts. Not all breaches of trust are equal. Where the abuse of trust or authority involves theft, the court must consider factors such as the nature of the relationship giving rise to the trust or authority, and the nature and extent of the abuse, including how much was stolen, and over what period of time, and for what reasons. The fundamental principle of sentencing in s. 718.1 of the Criminal Code -- that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender -- always applies.

27     As is noted above, general deterrence is of particular importance in determining whether a discharge is contrary to the public interest. However, just as there is no rule that a discharge cannot be granted where the offence involves a breach of trust, there is no rule that a discharge cannot be granted where there is a need for general deterrence or denunciation. In R. v. Meneses, (1974), 25 C.C.C. (2d)115, [1974] O.J. No. 736 (QL) (Ont. C.A.) the Ontario Court of Appeal granted a conditional discharge to a 41-year-old widow who supported five children, who had no prior criminal record and who may have been prevented from returning to her profession as a dentist by a conviction for shoplifting. Dubin J.A. there confirms that the public interest includes more than general deterrence, and that the court must consider the circumstances of the offence and the accused when considering a discharge, just as it does when considering other sentencing options. Further, deterrence may be served despite the absence of a conviction. As he notes at pps. 116 - 117:

• There is no doubt that the offence of shoplifting is a prevalent one, and many Courts have stressed that a sentence for this offence should be such as would be a deterrent to others. However, each case must be considered on its own facts, having regard to the particulars of the offence and of the accused. General principles of punishment must always be pliable enough to accommodate a careful consideration of the effect of punishment on the individual. 

• In this case, we think the paramount considerations are that the appellant is a widow with children, that she has had a good standing in the community, that she has no criminal record, that her misconduct was an isolated one and out of keeping with her past good character, and a conviction might have a detrimental effect on her ability to obtain gainful employment in the profession of dentistry of which she already has some expertise. 

• ... 

• Consonant with that purpose, we are all of the opinion that having regard to the facts of this case it is appropriate for the Court to have resort to this section of the Criminal Code which provides for an absolute or conditional discharge. The section sets forth the test against which the facts must be measured before resort is taken to it. The offence is one for which a discharge may be imposed. It is certainly in the interests of the accused and, in our opinion, it is in the interest of the public as well, and thus not contrary to the public interest. It is in the public interest for this woman to be given every opportunity to become a useful person in the community and earn a livelihood for herself and her family. 

• The argument that a conviction and fine against this accused must stand to effect a more apparent deterrent to others must give way when other considerations are more paramount, and when the broad view of the public interest is considered. In our opinion, the knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons such as the accused who may be tempted to commit such an offence. A conviction and a fine would not be a deterrent to a professional shoplifter, but, of course, such a person would not receive either an absolute or conditional discharge. 

28     I agree with this broader view of the public interest, which is also reflected in R. v. Zadorozniak, 2008 SKQB 313, 319 Sask. R. 213 at para. 57, Boyko,supra, at para. 11, and in the following comment by Y.G.K. Wilkinson J.A., as she then was, in R. v. Montgrand (D.L.), 2008 SKCA 50, 310 Sask.R. 41:

• [7] If the "best interests" condition is met, the Court must turn to consider whether granting a discharge would be "contrary to the public interest". As noted in R. v. Sanchez-Pino, (1973), 11 C.C.C. (2d) 53 (Ont. C.A.), the public interest aspect requires that attention be given to the need for general deterrence of like-minded offenders, the seriousness of the offence, the risk that the individual may re-offend, and the cultivation of a sense of responsibility in the offender. 

29     There is, also, no rule that a conditional discharge cannot be granted where there is a need for specific deterrence or rehabilitation. In my view, the better approach to considering these sentencing objectives -- which are relevant in deciding whether a discharge is in the offender's interests -- is demonstrated by R. v. Sanchez-Pino, supra where the court asks whether the need for deterrence and rehabilitation can be achieved through a probation order. That question reflects the fact that interests of the offender, and in particular, what might be required to meet these sentencing goals, depend on the particular circumstances of that offender. One size does not fit all, and for that reason, specific deterrence does not always require a criminal record. On a similar note, Y.G.K. Wilkinson J.A., inR. v. Montgrand, supra, describes the enquiry into the offender's best interests as follows:

• [5] On the aspect of an offender's "best interests", it is generally necessary to demonstrate that a conviction will have significant repercussions in respect of employment, employability, or career aspirations outside the ordinary consequences of a criminal conviction. Further, if the circumstances indicate a need for specific deterrence, rehabilitation or treatment of the offender, an absolute discharge may notbe appropriate. 

Law: Collateral Immigration Consequences

30     On this appeal, the issue as to the availability of a discharge arises as a result of the collateral immigration consequences to Mr. Omene. The correct approach to the consideration of those collateral consequences was recently considered by the Supreme Court of Canada in R. v. Pham, supra. In that case, Wagner J. first outlines the principled foundation for the consideration of collateral consequences in the course of sentencing, as follows:

• 1. 
  Section 718.1 of the Criminal Code requires that a sentence be proportionate to the gravity of the offence and the responsibility of the offender. Proportionality is closely tied to denunciation, and promotes justice for victims and public confidence in the justice system. It accordingly serves a limiting or restraining function that ensures justice for the offender, and that a sentence does not exceed what is appropriate given the moral blameworthiness of the offender. (paras. 6-7) 
• 2. 
  The sentencing process is also informed by the principle of parity and the correctional imperative of sentence individualization. The parity principle requires that similar sentences be imposed for similar offences committed by similar offenders in similar circumstances. If the personal circumstances of offenders differ, different sentences will be justified. (para. 9) 
• 3. 
  The sentencing judge must take account of aggravating and mitigating circumstances, as well as objective and subjective factors related to the offender's personal circumstances. (para. 8) 
• 4. 
  A sentence must be consistent with the fundamental purpose of sentencing described in s. 718 of the Criminal Code, which is to contribute to respect for the law and maintenance of a just, peaceful and safe society by the imposition of just sanctions which reflect one or more of the sentencing objectives specified in s. 718. (para. 10) 
• 5. 
  The collateral consequences of a sentence are any impacts of the sentence on the particular offender. Those consequences should be taken into account as the offender's personal circumstances. They are relevant due to the principles of individualization and parity, and may also be relevant to rehabilitation. In some cases, the sentence which better contributes to rehabilitation will be more suitable. (para. 11) 
• 6. 
  The weight to be given to collateral consequences depends on the facts of the particular case. The relevant facts include the type and seriousness of the offence, and may include the extent to which the collateral consequences will affect the ability of the offender to be effectively reintegrated into the community. (paras. 12-13) 

31     Wagner J. then specifically comments on the application of these principles to the consideration of collateral immigration consequences, as follows:

• 15 The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will. 

• 16 These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk. 

• ... 

• 18 It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it 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. 

• 19 I adopt the position asserted by Doherty J.A. in R. v. Hamilton(2004), 72 O.R. (3d) 1 (C.A.), at paras. 156 and 158: 

• ... the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. As indicated above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender ... 

32     Pham was applied in R. v. Lu, 2013 ONCA 324, [2013] O.J. No. 2222 (QL) where the court refused an appeal by a foreign national who was inadmissible to Canada because she had been convicted of an offence punishable by indictment. The offence was obstructing a police officer, the appellant having denied knowledge of a motor vehicle accident which resulted in the death of a pedestrian despite having been a passenger in the car. The appellant, who had no prior criminal record, eventually turned herself in and pled guilty. The court found that the court below considered the relevant sentencing principles and that was open to the sentencing judge to conclude that a discharge was not a fit sentence and would be contrary to the public interest.

33     This decision, while distinguishable on the facts, demonstrates the discretion vested in the trial judge when faced with collateral immigration consequences. As noted by Wagner J. in Pham:

• 20 ... the sentencing judge is not compelled in all circumstances to adjust a sentence in order to avoid the impact of collateral immigration consequences on the offender. It remains open to the judge to conclude that even a minimal reduction, i.e. from two years' imprisonment to two years less a day, would render the sentence inappropriate for the particular offence and the particular offender. Collateral immigration consequences are but one relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender's personal circumstances. 

34     It may, in other words, be appropriate to refuse to vary a sentence despite the fact that such consequences may, in a case such as Mr. Omene's, result in a sentence which appears to offend the principles of parity and proportionality, and which makes it practically impossible to reintegrate the offender into society. The loss of the right to continue residing in Canada, particularly if the offender has built a life in this country, is a very significant impact indeed. However, and as noted by Wagner J., such collateral immigration consequences should not be permitted to dominate the sentencing process or to circumvent the IRPA.

35     I have also considered the other cases cited by counsel, including in particular R. v. Bandesha, 2013 ABCA 255, 556 A.R. 1, and R. v. Nistor, 2009 SKQB 464, 347 Sask.R. 36. Both of those cases are distinguishable on their facts.

36     Finally, counsel did not provide the court with any case law as to the appropriate sentence in this case, leaving aside the collateral immigration consequences. However, the Crown advised the court that it considered the sentence levied by the learned trial judge to be appropriate, while counsel for Mr. Omene took no issue with that sentence. Indeed, he suggested that if the court saw fit to impose a conditional discharge, it may wish to consider imposing additional conditions.

Analysis

37     There is, first of all, no doubt but that the sentence imposed by the learned trial judge was, leaving aside for the moment the potential impact of the collateral immigration consequences, a fit and appropriate sentence. As the Crown notes, the only mitigating circumstance in this case is that Mr. Omene has no prior criminal record. Mr. Omene concocted a story which was rejected by the trial judge. He has not acknowledged his crimes, and there is no evidence that explains why he committed these offences -- such as evidence of financial pressure or an addiction -- which bears on personal responsibility. The fact that he has now paid restitution is not a mitigating circumstance, as it was pursuant to the sentence.

38     There were, on the other hand, aggravating circumstances. This was not a single offence, committed in the heat of the moment. I agree with the Crown's submission that this was a planned and deliberate misuse by Mr. Omene of his position as a bouncer which constituted an abuse of a position of trust or authority within the meaning of s. 718(a)(iii) of the Criminal Code. He was the head bouncer. As such, he had a degree of authority not only in relation to the victims, but in relation to his workplace and certain of his coworkers. He used that authority to get his hands on his victims' money. Although there is no evidence that his coworkers were party to his scheme, he also used them to his advantage. That said, I must also keep in mind that the amount stolen was relatively small, and that the offences occurred over a period of only two days.

39     Further, I must respectfully disagree with defence counsel's suggestion that these offences are comparable for purposes of sentencing to shoplifting, or that the court should consider theft as one of the least serious crimes in the Criminal Code. Theft covers a wide variety of crimes, some of which are very serious indeed. Although Mr. Omene did not use or threaten force, he did misuse his authority. His victims believed that he had the right to demand that they hand over their wallets or the contents of their pockets. When challenged, he became aggressive with one of his victims, accusing him of racism and ejecting him from the nightclub. All of his victims were prevented from reentering the nightclub.

40     There are, notwithstanding these aggravating circumstances, factors that weigh in favour of Mr. Omene. This is Mr. Omene's first offence. He has been a productive member of his community in all respects since arriving in Canada. He has attended university, consistently supported himself and contributed to the support of his children. He has also acted as a volunteer and as a mentor to other students arriving from Nigeria. The evidence supports the conclusion that he is otherwise a person of good character, and that these offences were out of character.

41     Mr. Omene recently lost his job due to a reorganization by his employer. He has been unsuccessful in obtaining new employment. His ability to obtain employment -- and thus to continue his education, support himself and contribute to the support of his children - has already been and will continue to be negatively impacted if he has a criminal record. Although there was no evidence on point, it is also reasonable to infer that his plans to continue his education and to advance his career, as well as his ability to contribute to the support of his children, will be seriously disrupted if he is deported. Mr. Omene's counsel notes that deportation will prevent from maintaining his relationship with his children.

42     On these facts, I agree with the Crown that the sentencing objectives that must be taken into account include general deterrence, denunciation and promoting a sense of responsibility in Mr. Omene. Based on Mr. Omene's history and demonstrated character, specific deterrence is of limited significance. I also agree with the submission by counsel for Mr. Omene that the court should consider rehabilitation and the effect of a suspended sentence on Mr. Omene's ability to reintegrate into society. A suspended sentence may prevent Mr. Omene from staying in Canada at all, which would seriously disrupt his education, employment prospects and relationship with his children. The question is whether a conditional discharge, combined with a probation order, better meets these sentencing objectives in relation to these crimes and this offender, and is proportionate to the gravity of the offence and the degree of Mr. Omene's responsibility.

43     In my view, the disposition that best meets these objectives is a conditional discharge. Although general deterrence is certainly at issue, I have no evidence or case law to suggest that thefts involving an abuse of trust or authority by those who are bouncers or in similar positions are often committed or present a particular risk in the community. Mr. Omene has, as a result of being charged and tried, already suffered the loss of his employment and damage to his reputation in the community. Further, and as noted by his counsel, Mr. Omene has had to face the stress and anxiety associated with the prospect of deportation without a right of appeal. In the circumstances, I find that the fact that Mr. Omene has been charged, tried, and made subject to a probation order for 15 months serves the sentencing objectives of general deterrence and denunciation.

44     I am, in making this decision, mindful of Wagner J.'s caution that collateral immigration consequences should not dominate the sentencing process or skew the sentence. However, that principle does not mean that a collateral immigration consequences can never tip the balance in favor of a conditional discharge. That is apparent from Wagner J.'s recognition (at para. 18 of his judgment) that a sentence may be varied so as to fall outside the range of sentences that would otherwise be appropriate in order to avoid collateral consequences, but still be fit and appropriate.

45     In my view, a conditional discharge was within the range of available sentences on the facts which were before the learned trial judge. Even if I am incorrect in that conclusion, and a conditional discharge is slightly outside the range that would apply in the absence of these collateral consequences, it is appropriate taking account of those consequences. I would reiterate, in particular, the parity principle and the need for sentencing individualization. As noted Wagner J. in R. v. Pham, supra:

• 8 In addition to proportionality, the principle of parity and the correctional imperative of sentence individualization also inform the sentencing process. This Court has repeatedly emphasized the value of individualization in sentencing ... 

• 9 As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b) of the Criminal Code). In other words, "if the personal circumstances of the offender are different, different sentences will be justified" (C. C. Ruby, G. J. Chan and N. R. Hasan,Sentencing, (8th ed. 2012) at s. 2.41). 

46     As to the two conditions precedent that must be met before a conditional discharge is granted, there is -- notwithstanding the Crown's argument that Mr. Omene's need for specific deterrence and rehabilitation would be better met by a conviction -- no doubt but that a conditional discharge is in Mr. Omene's best interests. It will offer him a far better prospect of staying in Canada, re-integrating into the community, and continuing to pursuing his plans and meet his obligations to his children. The objectives of personal deterrence and rehabilitation -- taking account, among other things, of Mr. Omene's history, personal circumstances and lack of a criminal record, which support the conclusion that he is at a low risk to re-offend -- are best met by a probation order and discharge, rather than a suspended sentence.

47     Similarly, a discharge is not contrary to the public interest. The need for general deterrence and denunciation will, for the reasons noted above, be met by a conditional discharge, combined with a 15 month probation order. Further, general deterrence is not the only issue, and for the reasons noted above, is not the dominant consideration in this case. It is difficult to see how the interests of the community would be served by a sentence which may well result in the deportation of a long term resident who has otherwise been and has the demonstrated potential to continue to be a positive and productive member of his community, taking due account of the nature of the offence and his low risk to re-offend.

Conclusion

48     I accordingly grant Mr. Omene's appeal, and substitute a conditional discharge, with a 15 month probation order on the terms imposed by the trial judge.

B. BARRINGTON-FOOTE J.