U.S. CRIMINAL CONVICTION, DEPORTATION DID NOT ENGAGE CHARTER

This is an interesting decision . The Federal COurt held that a Permanent Resident convicted in the US who was reported for inadmissibility to Canada upon his return from India, did not have his Charter rights breached by the report referring him to deportation proceedings.

Brar v. Canada (Minister of Public
Safety and Emergency Preparedness)

Between
Hardeep Singh Brar, Applicant, and
The Minister of Public Safety and Emergency
Preparedness, Respondent

[2016] F.C.J. No. 1241

2016 FC 1214

Docket: IMM-1325-16

 Federal Court
Vancouver, British Columbia

A.L. Mactavish J.

Heard: October 27, 2016.
Judgment: November 2, 2016.

(34 paras.)

---

JUDGMENT AND REASONS

1     A.L. MACTAVISH J.:-- Hardeep Singh Brar is a permanent resident of Canada. After he was convicted of conspiracy to distribute cocaine in the United States, a Minister's Delegate referred Mr. Brar to an admissibility hearing to determine whether he was inadmissible to Canada for serious criminality, as well as organized criminality and involvement in transnational crime.

2     Mr. Brar seeks judicial review of the referral decision, asserting that it was unreasonable as it contained serious factual errors, and failed to consider important evidence. Mr. Brar further submits that the Minister's Delegate failed to properly take "Charter values" into account in deciding whether to refer him to an admissibility hearing.

3     For the reasons that follow, I am not persuaded that the Minister's Delegate erred as alleged. I am further satisfied that the decision to refer Mr. Brar to an admissibility hearing was entirely reasonable. Consequently, his application for judicial review will be dismissed.

I. Background

4     Mr. Brar is a citizen of India who came to Canada in 1998 when he was 15 years old.

5     In 2009, Mr. Brar agreed to take a rental car from Canada to the United States and to drop it off there for use by a drug courier. After meeting with the drug courier in the United States, Mr. Brar was arrested and charged with being part of a conspiracy to distribute 15 kilograms of cocaine, which was intended to be shipped to Canada.

6     Mr. Brar expressed remorse for his actions, and he co-operated with US law enforcement during the investigation and prosecution processes. Mr. Brar evidently told investigators about others involved in the drug trafficking scheme, which led to the indictment of two other individuals.

7     Mr. Brar subsequently pled guilty to the conspiracy offence. He was deemed by the prosecution to have accepted responsibility for his actions, and he was sentenced to 24 months in prison. After serving 21 months of his sentence, Mr. Brar was deported to India. He returned to Canada a month later, admitting to his criminal conviction when he was interviewed by a Canada Border Services Agency (CBSA) Officer at the Vancouver International Airport.

8     Mr. Brar was subsequently given notice that reports may be prepared declaring him to be inadmissible to Canada for serious criminality, organized criminality and transnational crime. He was then interviewed by a CBSA Inland Enforcement Officer, and was given the opportunity to provide written submissions to the Officer prior to a decision being made as to whether to refer him for an admissibility hearing. In support of his request not to be referred to an admissibility hearing, Mr. Brar and his counsel provided the Officer with several sets of submissions and supporting materials over a three and a half year period.

9     Among other things, Mr. Brar submitted that even though his offence was serious, it had not involved violence or firearms. Several years had passed since his one criminal offence, and he had not engaged in any further criminal activity. A psychologist's report provided by Mr. Brar had, moreover, indicated that he posed a low risk of re-offending. Mr. Brar also noted that he had come to Canada as a child, that he had lived in Canada for many years, and that he had minimal ties to India. All of Mr. Brar's immediate family, including his wife, were in Canada, and he was gainfully employed.

10     An initial decision to refer Mr. Brar to an admissibility hearing was set aside on consent, after he sought judicial review of that decision. After receiving further submissions from Mr. Brar, the Inland Enforcement Officer once again recommended that he be referred for an admissibility hearing in relation to his serious criminality, as well as his involvement in organized criminality and transnational crime. A Minister's Delegate subsequently adopted that recommendation, and referred Mr. Brar's case to the Immigration Division of the Immigration and Refugee Board, and it is this decision that underlies this application for judicial review.

11     Mr. Brar has never claimed that he would be at risk if he were returned to India. He further concedes that he is inadmissible to Canada as a result of his American drug conviction, and that he would inevitably be found to be inadmissible by the Immigration Division. He notes, however, that if his case goes to an admissibility hearing, the Immigration Division would have no equitable jurisdiction to consider humanitarian and compassionate factors before issuing a removal order against him.

12     Moreover, because the punishment for Mr. Brar's offence could have exceeded 10 years, had the offence been committed in Canada, he is not entitled to appeal the Immigration Division's finding to the Immigration Appeal Division of the Immigration and Refugee Board. Mr. Brar is also permanently barred from seeking humanitarian and compassionate relief under section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, because he is inadmissible to Canada under section 37 of the Act for organized criminality and transnational crime. Consequently, the only place where Mr. Brar's humanitarian and compassionate considerations can be considered is at the referral stage.

II. Analysis

13     Before addressing Mr. Brar's arguments with respect to the alleged deficiencies in the referral decision, I would start by observing that there is some debate as to the scope of the discretion conferred on Minister's Delegates in deciding whether to refer an individual for an admissibility hearing. Some cases suggest that a Minister's Delegate has no discretion in this regard, while other cases indicate that a Minister's Delegate does possess some, albeit it limited discretion not to refer cases for admissibility hearings: Faci v. Canada (Public Safety and Emergency Preparedness), 2011 FC 693 at paras. 22-31, [2011] F.C.J. No. 893.

14     I do not need to resolve this question in this case, as it is clear that the Minister's Delegate considered that he had discretion to decide whether or not Mr. Brar's case should be referred for an admissibility hearing. The Minister's Delegate determined, however, that the circumstances of Mr. Brar's case did not justify the exercise of that discretion in his favour.

15     In his submissions to the Inland Enforcement Officer, Mr. Brar made brief reference to the potential breach of his rights under section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. It will be recalled that section 7 states that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".

16     Because of the serious consequences that removal from Canada would have for him, Mr. Brar submits that his section 7 rights were engaged in the referral process. As a consequence, Mr. Brar submitted that the Officer had to exercise his discretion in accordance with the principles of fundamental justice. According to Mr. Brar, this required that his case not be referred for an admissibility hearing on the basis that there are sufficient compelling humanitarian and compassionate grounds to permit him to retain his permanent resident status, and removal would violate his constitutional rights.

17     Citing the Supreme Court of Canada's decision in Doré v. Barreau du Québec, 2012 SCC 12 at paras. 55-57, [2012] 1 S.C.R. 395, Mr. Brar argues that the Supreme Court has held that in considering Charter values in the exercise of statutory discretion, administrative decision-makers must balance the Charter values with the statutory objectives. The decision-maker must then ask how the Charter value at issue can best be protected in view of those statutory objectives. According to Doré, "[t]his is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives": at para. 56.

18     The Supreme Court went on in Doré to note that on judicial review, the question for the reviewing Court is "whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play". This determination is to be made applying the reasonableness standard of review: at para. 57.

19     According to Mr. Brar, because Charter values were at play in this case, the Minister's Delegate was required to exercise his discretion in a manner that best protected Mr. Brar's security of the person. This required that the Minister's Delegate not refer Mr. Brar's case to the Immigration Division for an admissibility hearing.

20     There are several reasons why I do not accept Mr. Brar's submission.

21     First of all, I have serious doubts that Mr. Brar's section 7 rights were engaged in this process. The jurisprudence is clear that deportation per se does not engage section 7 of the Charter, and that section 7 is, moreover, not engaged at the stage of determining admissibility to Canada: see, for example, B010 v. Canada (Citizenship and Immigration), 2015 SCC 58 at paras. 74-75, [2015] 3 S.C.R. 704; Torre v. Canada (Citizenship and Immigration), 2015 FC 591, [2015] F.C.J. No. 601; Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240.

22     The Supreme Court teaches that in determining whether section 7 of the Charter is engaged, regard has to be had to the nature of the interests at stake: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 at para. 18, [2007] 1 S.C.R. 350.

23     There has never been any suggestion that Mr. Brar is at risk in India. Indeed, the types of harm that Mr. Brar asserts will befall him if he is removed from Canada are typical consequences of deportation including family separation, loss of establishment and the need to become re-established in a country left years before. This distinguishes Mr. Brar's situation from cases such as Charkaoui, above, where the named individual's liberty interests had been affected by his detention under a Security Certificate, and Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, where individuals faced the prospect of deportation to torture.

24     Indeed, as Justice de Montigny noted in Stables, above at para. 42, "[i]t was the risk of torture on removal, though, and not the fact of removal itself, that engage the applicant's section 7 interests in [Suresh]".

25     Similarly, in Torre, above, Justice Tremblay-Lamer concluded that section 7 of the Charter was not engaged where a long-term resident of Canada was being deported for having been convicted of trafficking in cocaine, because the individual in question was not being deported to a country where he faced torture: at para. 71.

26     Even if I were to accept that Mr. Brar's section 7 rights were engaged in the process at issue in this application, however, that would not be the end of the matter. Section 7 Charter rights are not absolute: individuals can be deprived of their life, liberty or security of the person, provided that this occurs through a process that accords with the principles of fundamental justice.

27     In this case, Mr. Brar had a face-to-face interview with the Inland Enforcement Officer. He was repeatedly afforded the opportunity to provide written submissions in support of his request not to be referred for an admissibility hearing, and he provided the Officer with copious submissions that had been prepared with the assistance of counsel. Mr. Brar was provided with draft recommendations prepared by the Inland Enforcement Officer for consideration by a Minister's Delegate, and he was given the right to comment on them. Any errors in the draft reports that were identified by Mr. Brar were corrected, and a thorough analysis of Mr. Brar's case was provided to the Minister's Delegate. This analysis is considered to be part of the Minister's Delegate's reasons: Huang v. Canada (Public Safety and Emergency Preparedness), 2015 FC 28 at para. 88, 473 F.T.R. 91.

28     Moreover, the Minister's Delegate had regard to the objectives of the Immigration and Refugee Protection Act and the seriousness of Mr. Brar's criminal offence. He then weighed these considerations against Mr. Brar's humanitarian and compassionate factors, as he was required to do by both Canadian and international law.

29     In other words, the Minister's Delegate balanced the severity of the interference with what Mr. Brar asserts was his Charter-protected right to security of the person right against the statutory objectives and the nature of Mr. Brar's criminal conviction. He then came to the conclusion that the seriousness of Mr. Brar's criminal conviction outweighed the humanitarian and compassionate factors that supported the exercise of discretion in Mr. Brar's favour.

30     This was a conclusion that was reasonably open to the Minister's Delegate on the record before him. I am, moreover, satisfied that it represents a proportionate balancing of the competing interests at stake: Doré, above at para. 57, Singh v. Canada (Citizenship and Immigration), 2016 FCA 96 at para. 57, [2016] F.C.J. No. 315.

31     Mr. Brar has not identified any further information that he was unable to provide to either the Inland Enforcement Officer or the Minister's Delegate that could possibly have assisted his case. Nor has he identified any principle of fundamental justice that was not complied with in relation to the Minister's Delegate's determination that Mr. Brar should be referred to the Immigration Division for an admissibility hearing.

32     In essence, what Mr. Brar says is that the Minister's Delegate gave too much weight to the seriousness of his criminal conviction and not enough weight to his humanitarian and compassionate factors, and that this breached principles of fundamental justice. It is not, however, this Court's role to usurp the role of the Minister's Delegate and reweigh the evidence to reach a different conclusion.

33     Mr. Brar also argued in his memorandum of fact and law that the Minister's Delegate made certain findings of fact that were unsupported by the evidence. The respondent's memorandum of fact and law identified the evidence in the record that supported the findings in question, and no reviewable error has been demonstrated by Mr. Brar in this regard. Indeed, the fact that evidence from the psychologist's report was referred to in the Inland Enforcement Officer's analysis simply confirms the thoroughness that was applied to the review of Mr. Brar's submissions.

III. Conclusion

34     For these reasons, the application for judicial review is dismissed. I agree with the parties that the case is fact-specific, and does not raise a question for certification.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed.

A.L. MACTAVISH J.

BRITISH COLUMBIA COURT OF APPEAL REJECTS ARGUMENT OF INEFFECTIVE ASSISTANCE OF COUNSEL

The immigration consequences of criminal convictions are always an important consideration sentencing, as per the Supreme Court of Canada decision in R.V. Pham. However, that decision did not offer a "free pass' to convicted criminals.  One argument that those convicted have tried to advance to escape the restrictive language in Pham is to rely on lack of knowledge of immigration consequences and "blame the lawyer" by arguing that counsel did not make them aware of those  consequences. In the case below , the BCCA rejects such argument.

R. v. Kitawine

Between
Regina, Respondent, and
Hemed Kassim Kitawine, Appellant

[2016] B.C.J. No. 752

2016 BCCA 161

Docket: CA41654

 British Columbia Court of Appeal
Vancouver, British Columbia

I.T. Donald, M.E. Saunders and R. Goepel JJ.A.

Heard: March 14 and 16, 2016.
Judgment: April 18, 2016.

(30 paras.)

Court Summary:

Appeal against a conviction for robbery following a guilty plea said to be without awareness of the immigration consequences. Held: appeal dismissed. While the legal advice the appellant received was incomplete, it did not cause him to plead guilty. He pleaded guilty in the hope of getting a lower sentence. The prospect of remaining in Canada after a conviction for robbery was too remote. No miscarriage of justice was shown.

Appeal From:

On appeal from an order of the Supreme Court of British Columbia, dated October 21, 2013 (R. v. Kitawine, Victoria Docket 155709-2).

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Reasons for Judgment

·         The judgment of the Court was delivered by 

1     I.T. DONALD J.A.:-- The appellant pleaded guilty to robbery, hoping that if he received a sentence of six months he would keep alive his chances of remaining in Canada. His counsel was unaware that as a matter of law a conviction for an offence, like robbery, carrying a maximum penalty of ten years or more, would terminate the appellant's appeal from an immigration removal order, regardless of the length of sentence.

2     The appellant appeals for an order permitting him to withdraw the plea and for a new trial on the ground he was not informed of the consequences of his plea.

3     I would dismiss the appeal. The criminal process was not unfair. The appellant was well aware that his conviction would seriously jeopardize his immigration status. His position was not made worse by acting on incomplete advice about sentencing.

Background

4     The appellant is a Tanzanian national. He was granted permanent resident status in Canada on 31 March 2001. He is the father of two children who live with their mother in Alberta.

5     On 15 July 2011, a member of the Immigration Division of the Immigration and Refugee Board made a removal order on a finding that the appellant is inadmissible to Canada on grounds of serious criminality: s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). This refers to convictions for 12 offences recorded on 7 October 2010 for fraud and identity theft. He was sentenced to 15 months' imprisonment and one year of probation.

6     The appellant appealed the order and sought a stay on humanitarian grounds: s. 68(1) of the Act. After a hearing before the Immigration Appeal Division, a stay was granted for four years. The decision, dated 29 November 2011, contained a Notice of Decision which, in relevant part, reads as follows:

NOTICE OF DECISION

·         The removal order in this appeal is stayed. This stay is made on the following conditions -- the appellant must: 

[1]

Inform the Canada Border Services Agency (the "Agency") and the Immigration Appeal Division (the "IAD") in writing in advance of any change in your address.

The address of the Agency is:
 Canada Border Services Agency
 700 - 300 West Georgia Street
 Vancouver, BC V6B 6C8

The address of the IAD is:
 Immigration Appeal Division
 1600 - 300 West Georgia Street
 Vancouver, BC V6B 6C9

[2]

Provide a copy of your passport or travel document to the Agency or, if you do not have a passport or travel document, complete an application for a passport or a travel document and to provide the application to the Agency.

[3]

Apply for an extension of the validity period of any passport or travel document before it expires, and provide a copy of the extended passport or document to the Agency.

[4]

Not commit any criminal offences.

[5]

If charged with a criminal offence, immediately report that fact in writing to the Agency.

[6]

If convicted of a criminal offence, immediately report that fact in writing to the IAD.

* * *

·         [13] Keep the peace and be of good behaviour. 

FINAL RECONSIDERATION

·         Take notice that the IAD will reconsider the case on or about the 9th day of October, 2015 or at such other date as it determines, at which time it may change or cancel any non-prescribed conditions imposed, or it may cancel the stay and then allow or dismiss the appeal. Until your final reconsideration is decided (or your stay is otherwise ended), your stay remains in effect and you must comply with the conditions of your stay, including advising the Agency and the IAD in writing before any change in your address. 

·         The IAD may contact you by letter in advance of final reconsideration to ask you to provide written confirmation that you have complied with the conditions of stay. 

IMPORTANT WARNING

·         This stay of removal is cancelled and your appeal is terminated by operation of law and you may be removed from Canada if you are convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act (sentence of more than six months imposed or punishable by term of imprisonment of at least ten years) before your case has been finally reconsidered. 

·         [Underlined emphasis added.] 

7     On 21 January 2013, the appellant was charged that, in Victoria, on 1 December 2011, he robbed a woman of her purse, contrary to s. 344(1)(b) of the Criminal Code. Robbery carries a maximum penalty of life imprisonment.

8     The appellant engaged Mr. Andrew Rafuse, who represented him at the immigration appeal hearing, to act for him at the preliminary inquiry. He was committed for trial. He engaged Mr. Timothy Russell as counsel for the trial. After discussing the immigration implications of the robbery case with Mr. Rafuse, Mr. Russell approached the Crown prosecutor for a plea bargain for a sentence of six months. The prosecutor was seeking a sentence of one year and the appellant was so informed. On the day of trial, Mr. Russell had a conflict in his schedule and arranged for Mr. Mathais Sarrazin to act for the appellant.

9     The trial proceeded on 21 October 2013 and the Crown called the complainant and her friend who witnessed the event. They testified they were walking down the street in Victoria at night when a man came from behind, grabbed the purse strap off the complainant's shoulder, and after a brief struggle ran away with the purse. He was apprehended by the police shortly thereafter.

10     Before the Crown was to call its last witness, a police officer, the court took a recess. According to Mr. Russell, he and Mr. Sarrazin explained to the appellant that the case against him was strong, and unless he testified, a conviction was inevitable. The appellant did not want to give evidence. Counsel then suggested he might receive a lesser sentence by pleading guilty as a show of remorse and acceptance of responsibility. He instructed counsel that he wished to plead guilty. The appellant and his lawyers have different versions of what happened next.

11     The appellant was cross-examined on his affidavit to support a claim of ineffective assistance of counsel. His evidence was that he pleaded guilty to get a sentence that allowed him to stay in Canada. That was his theme and he stuck to it. For the most part, his testimony was unconvincing. He was argumentative and unresponsive. His statement that he had a plea bargain for a sentence of six months does not fit in with the surrounding circumstances. He was not promised a six-month sentence in exchange for a plea. What does emerge from the evidence is that his lawyers thought, before trial, that a six-month sentence might have an impact on his immigration status and so advised him. I am satisfied that the appellant believed that if he received a six-month sentence he might be able to argue for a continuation of his stay of removal. But I am also satisfied that he knew the Crown was seeking a greater sentence and there was no plea bargain.

12     At sentencing, his counsel was still not fully briefed on the immigration implications of the sentence. The following is an excerpt from the transcript at the sentence hearing:

·         MR. RUSSELL: ... 

·         I wish to say something also about Mr. Kitawine's immigration circumstances, and I -- I had spoken to Mr. Rafuse a number of months ago, actually around the time that the plea was entered, and the advice at that time from Mr. Rafuse was that an offence of. . . 

·         THE COURT: Who's Mr. Rafuse? 

·         MR. RUSSELL: Sorry, Mr. Rafuse is the immigration counsel for Mr. Kitawine, and as a result of his last offence, he -- Mr. Kitawine is facing immigration issues with -- he's a permanent resident and so there -- there was a[n] effort to have him removed from Canada and that effort has been resisted, and what Mr. Rafuse advised just prior to the guilty plea was that a sentence of six months or less would be a significant advantage to him in his immigration pursuits and I -- in the sense that it would, as I understood, preserve a right of appeal. 

·         Now, I -- what I'd tried at the break, I -- I tried to contact Mr. Rafuse again today, this morning, and I was unable to. I was trying to get some material for Your Ladyship to point to the sections and to try to explain that to you, but unfortunately immigration law is a little bit more complicated than I'm able to put that altogether, but that -- I can tell you that I did have that conversation with Mr. Rafuse and that was the advice I received from him. 

·         Certainly, there's a reference in s. 36(1) to the definition of serious criminality, however in trying to -- and one of those definitions is being convicted of an offence for which a term of imprisonment of more than six months has been imposed. The other definition for that is being convicted of a[n] offence with a maximum term of imprisonment of at least 10 years. So I think both of them apply, so I'm not sure how the six-month limitation -- not sure how it, in fact, engages in this case, but that was the advice that had been provided to me earlier. 

·         And the reason I raise that is because I am asking this court to consider a sentence of six months and what -- the cases that my -- my friend referred to, in my submission, are all significantly worse cases... 

13     He was sentenced to a term of one-year imprisonment and two years' probation.

14     The Immigration Appeal Division issued a further Notice of Decision, Removal Order, cancelling the stay and terminating the appeal, on 8 May 2014.

15     This matter began as a sentence appeal and was converted to a conviction appeal when it appeared to a division of this Court that, after hearing him in person, the appellant's argument went to the validity of his guilty plea. Counsel was appointed for him under s. 684 of the Criminal Code and, in due course, an application was filed to admit as fresh evidence the affidavits of the appellant, Mr. Rafuse and Mr. Russell.

16     Counsel for the respondent was given leave to cross-examine all three affiants at the hearing of the appeal and did so.

Issues

17     The appeal raises the following issues:

·         1. 

Must an accused have complete awareness of the collateral consequences of a guilty plea? 

·         2. 

Was the process in which the appellant pleaded guilty of robbery unfair? 

Discussion

·         Awareness of Consequences

18     The elements of a valid guilty plea are prescribed in s. 606 of the Criminal Code which, in subsection (1.1), sets out the conditions for accepting a guilty plea:

·         (1.1) 

A court may accept a plea of guilty only if it is satisfied that the accused

·         (a) is making the plea voluntarily; and 

·         (b) understands

·         (i) 

that the plea is an admission of the essential elements of the offence, 

·         (ii) 

the nature and consequences of the plea, and 

·         (iii) 

that the court is not bound by any agreement made between the accused and the prosecutor. 

·         [Emphasis added.] 

19     Relevant consequences may, depending on the circumstances, include the effect of a sentence on matters collateral to the criminal process itself, such as immigration or licensing. Thus, in R. v. Quick, 2016 ONCA 95, the court set aside a guilty plea for dangerous driving on the ground that the appellant's plea was not informed because he was unaware of the indefinite suspension that automatically followed under the Highway Traffic Act, R.S.O. 1990, c. H.8. Mr. Justice Laskin, for the court, put the test this way:

·         [33] What is called for is a fact-specific inquiry in each case to determine the legal relevance and the significance of the collateral consequence to the accused. A simple way to measure the significance to an accused of a collateral consequence of pleading guilty is to ask: is there a realistic likelihood that an accused, informed of the collateral consequence of a plea, would not have pleaded guilty and gone to trial? In short, would the information have mattered to the accused? If the answer is yes, the information is significant. I draw support for this approach from the reasons of Lebel J. in R. v. Taillefer; R. v. Duguay, 2003 SCC 70; [2003] 3 S.C.R. 307 and the reasons of Watt J.A. in R. v. Henry, 2011 ONCA 289. 

20     Quick was a case of absence of knowledge. More difficult are those cases where the accused had a general awareness of the nature of the collateral consequences, but not necessarily an appreciation of the precise outcome. The general trend in such cases, beginning with R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Tyler, 2007 BCCA 142, in this jurisdiction; and R. v. Shiwprashad, 2015 ONCA 577 in Ontario, is to uphold the plea as sufficiently informed.

21     Where it is alleged that counsel failed to give any advice on immigration consequences, the extent of the accused's own knowledge of his jeopardy is a crucial factor: see, e.g., Shiwprashad at paras. 72-73. The instant case presents a different wrinkle; here, the appellant says he was wrongly led to believe by his lawyers that pleading guilty might help his immigration problem. It would appear that the bargaining for a six-month sentence before trial and the submission at sentence by Mr. Russell support the appellant's contention. Mr. Darnay, his counsel on appeal, submits that this misunderstanding deprived his client of the option of continuing with the trial and taking his chances on the outcome. This argument must be closely examined to determine whether there was a miscarriage of justice.

·         Fairness of the Process

22     During the break in the trial, the appellant found himself in a tight predicament. The Crown had put in a strong case which called for an answer. The appellant was unwilling to testify. He was left with two options: proceeding with the trial and advancing an argument that he did not intend any violence and should be found not guilty of robbery, but guilty of the lesser but included offence of theft under $5,000; or pleading guilty and hoping for a more lenient sentence.

23     The first option was not viable. Both Crown witnesses testified that the complainant resisted the theft and struggled with the appellant, so the violence element of the robbery offence was established. Their testimony was not shaken in cross-examination. This would have been obvious to the appellant.

24     The second option, pleading guilty, was the one he chose. I can put the appellant's position no higher than the following: the six-month issue may have been at the back of his mind and influenced his choice, but the immigration problem was not part of the discussion he had with his counsel at the break just before he pleaded guilty. This is how Mr. Russell described the discussion in his affidavit:

·         6. 

I was at the same Courthouse during the trial and I spoke with Mr. Kitawine and Mr. Sarrazin at the break after the critical crown evidence had been called. Mr. Sarrazin advised me that the crown witnesses were very strong and that, in his opinion, a conviction was inevitable. I was present when Mr. Sarrazin told Mr. Kitawine that unless he could testify and raise a reasonable doubt as to his actions and/or his intentions that it was very likely he would be convicted. Mr. Kitawine was clear that he did not want to testify. Mr. Sarrazin suggested to Mr. Kitawine that he might receive a lesser sentence by pleading guilty, as a show of remorse and an acceptance of responsibility. Mr. Kitawine then instructed Mr. Sarrazin that he wished to change his plea to guilty. 

25     The appellant's assertion that he thought he had a plea bargain for six months is not credible. He admitted in cross-examination that he knew the prosecutor intended to argue for a higher penalty. But what about his state of mind regarding his immigration plight?

26     The appellant acknowledged receiving the Immigration Appeal Division's stay decision with the notice attached stipulating a condition that he not commit any criminal offence (see para. 6 of these reasons). His immigration lawyer, Mr. Rafuse, said in cross-examination that he told the appellant any conviction would likely end the stay order regardless of the sentence.

27     In trying to measure the degree of influence that the confusion over the six-month sentence played in the appellant's decision to plead guilty, I note the following uncertainties that were known to him:

·         1. 

The sentencing judge would have to give him a sentence of six months. Mr. Russell told him a sentence of less than one year was unlikely. I quote from Mr. Russell's affidavit: 

·         3. 

I met with Mr. Kitawine before trial. I explained to him that if the crown witnesses appeared and testified in accordance with their statements to police that he would very likely be convicted of robbery, unless he could testify to a defence. I advised him that if convicted the Crown would seek a 1 year jail sentence and that I thought it unlikely he would receive less, given his record and all of the circumstances... 

·         2. 

Even if he succeeded in getting a sentence of six months, he had to face the Immigration Appeal Division when he had breached its condition not to commit an offence within six months of its issuance. 

28     I conclude that if, as the appellant says, he pleaded guilty to stay in Canada, he did so on wishful thinking, not from anything his lawyer said to him. The only incentive held out to him was the prospect of a lower sentence. He was not led to believe that he would get a sentence that would help his immigration problems. In my judgment, the appellant pleaded guilty to make the best of a bad situation.

29     For the foregoing reasons, I conclude that the process was not unfair and no miscarriage of justice occurred.

30     I would dismiss the appeal.

I.T. DONALD J.A.
M.E. SAUNDERS J.A.:-- I agree.
R. GOEPEL J.A.:-- I agree.

FEDERAL COURT OF APPEAL RULES ON CRIMINAL INADMISSIBILITY

The Federal Court of Appeal has ruled that the consideration of criminal equivalence for the purposes of inadmissibility must take into account the punishment for the offence in Canada a the time of decision, not at the time of commission of the offence abroad.

Sanchez v. Canada (Minister of Citizenship and Immigration)

Between
Noe Gama Sanchez, Appellant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 635

2014 FCA 157

Docket: A-315-13

 Federal Court of Appeal
Vancouver, British Columbia

Nadon, Stratas and Scott JJ.A.

Heard: June 10, 2014.
Oral judgment: June 10, 2014.

(10 paras.)

Immigration law -- Exclusion (Inadmissible persons) -- Grounds for inadmissibility -- Criminality -- Inadmissibility findings -- Judicial review -- Appeal by Sanchez from dismissal of application for judicial review dismissed -- Appellant was found inadmissible to Canada due to serious non-political criminality -- At issue was whether seriousness of crime should be assessed at time of commission, or at time of Refugee Protection Division's determination of exclusion given subsequent increase in likely sentence in Canada -- Court of Appeal answered certified question, stating where a change to penalty for Canadian equivalent offence occurred, assessment of seriousness should be undertaken when Refugee Protection Division considered issue of exclusion.

Statutes, Regulations and Rules Cited:

United Nations Convention Relating to the Status of Refugees, Article 1F(b)

Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 98

Appeal From:

Appeal from a judgment of the Federal Court (The Honourable Mr. Justice Russell) dated August 29, 2013, Docket No. IMM-11894-12.

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REASONS FOR JUDGMENT OF THE COURT

The judgment of the Court was delivered by

1     STRATAS J.A. (orally):-- This is an appeal from the judgment of the Federal Court (per Justice Russell) dated August 29, 2013: 2013 FC 913. The Federal Court dismissed the appellant's application for judicial review from the Refugee Protection Division's decision dated October 30, 2012.

2     In its decision, the Refugee Protection Division found that the Applicant had committed a "serious non-political crime" outside Canada and, thus, was excluded from refugee protection pursuant to Article 1F(b) of the United Nations Convention Relating to the Status of Refugees and section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.

3     The central issue before the Federal Court was when the seriousness of the crime under article 1F(b) of the Convention should be assessed. Should it be assessed at the time of the commission of the crime or at the time of the Refugee Protection Division's determination? The Federal Court concluded that the relevant time for assessment is the time of determination.

4     One factor to be assessed when considering the seriousness of the crime is to examine the penalty in Canada for an equivalent crime. In this case, at the time of the Division's determination, the penalty in Canada for the equivalent crime was much higher than it was at the time the appellant committed the crime abroad.

5     On this point, we substantially agree with the Federal Court's reasons and conclusion at paragraphs 59-62 of its reasons.

6     In assessing the seriousness of the crime, the Refugee Protection Division must consider all relevant considerations pertaining to the factors set out in Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R.164 at paragraph 44. In assessing the penalty for the equivalent crime under Canadian law, the Refugee Protection Division cannot close its eyes to the law that is on the books at the time of its determination.

7     The appellant submitted that this Court in Febles v. Canada (Minister of Citizenship and Immigration), 2012 FCA 324 at paragraph 52 held that the seriousness of the crime should be assessed at the time of commission. But in making that comment, this Court was responding to the submission that the offender's later rehabilitation could affect the assessment of the seriousness of the crime. This Court did not deal with the question before us, which is the relevance of a later change in the penalty for the equivalent crime in Canada.

8     The appellant accepts that if the Federal Court's decision on this point is correct, the decision of the Refugee Protection Division was reasonable.

9     Accordingly, despite the able submissions of counsel for the appellant, we will dismiss the appeal. We will answer the certified question as follows:

·        Question: When assessing the Canadian equivalent of a foreign offence in the context of exclusion under Article 1F(b) of the Convention Relating to the Status of Refugees and the Jayasekara factors, should the Refugee Protection Division Member assess the seriousness of the crime at issue at the time of commission of the crime or, if a change to the Canadian equivalent has occurred in the interim, at the time when the exclusion is being determined by the Refugee Protection Division? 

·        Answer: If a change to the penalty for the Canadian equivalent offence has occurred, the assessment should be done at the time when the Refugee Protection Division is determining the issue of the section 1F(b) exclusion. 

10     There are no special reasons for an award of costs in this case and so there will be no award of costs.

STRATAS J.A.

IMMIGRANT CONVICTED OF MANSLAUGHTER IN NIGHTCLUB DISPUTE RECEIVES NINE YEAR SENTENCE

Another case considering the impact of R.v. Pham. However, because the sentence is so far off the threshold that triggers appeal rights to the IAD, there is little impact on the decision-making process by the court. 

R. v. César

Between
Her Majesty the Queen, and
Rosny César

[2013] O.J. No. 3623

2013 ONSC 4190

Court File No. JJ-10-1014

 Ontario Superior Court of Justice
L'Orignal, Ontario

R.J. Smith J.

Heard: May 9, 2013.
Oral judgment: July 30, 2013.

(77 paras.)

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REASONS FOR SENTENCE

1     R.J. SMITH J. (orally):-- The offender Rosney César ("César") was found guilty of the offence of manslaughter contrary to s. 236(b) of the Criminal Code of Canada (the "Code") after a trial by jury.

A.

Circumstances of the Offence

2     The victim Danny Trineer ("Trineer") was 32 years of age and lived with his father. On the evening of September 10, 2010, Trineer and two friends decided to go to the Déjà Vu restaurant in the town of Hawkesbury. They then went to the second floor which has a dance bar called the Jamais Vu, which is the only dance bar in the town of Hawkesbury.

3     The victim had previously worked as a bouncer or "assistant manager" at the Déjà Vu restaurant.

4     The offender worked until midnight on September 11, 2010. When he arrived home, his girlfriend Marie-Pierre asked him to go to the Déjà Vu restaurant with a friend Melissa. They arrived at the Déjà Vu restaurant at 12:39 a.m. on September 11, 2010 and went up to the Jamais Vu dance bar.

5     At approximately 12:46 a.m., a dispute occurred between Marie-Pierre and a woman in the victims' group. As a result of this dispute, there was a verbal confrontation between Trineer and César. César testified that during the confrontation the victim threatened to kill him and his girlfriend that night and he alleged that the victim showed him a gun. I do not believe the offender's version of events as no gun or other weapon was found on the victim shortly thereafter and it is not credible for the offender to have left the Jamais Vu bar, leaving his girlfriend Marie-Pierre alone and unprotected in the presence of Trineer whom he alleged had threatened to kill her. I do find however, that there was a verbal confrontation between the victim and the offender as a result of the dispute between the two women in their respective groups and accept the offender's evidence that Trineer called him "a N who was not welcome here" or words to that effect.

6     At 12:51 a.m., the offender left the Déjà Vu restaurant and drove to his home to retrieve a 33 centimetre long knife. César then returned to the Déjà Vu at 1:02 a.m with the knife concealed on his person to pick up his girlfriend.

7     When the offender returned to the Déjà Vu restaurant, his girlfriend Marie-Pierre was standing outside the main entrance in a hysterical state, accusing the bouncers of having manhandled her and exposed her private parts when they evicted her from the Jamais Vu dance bar.

8     At approximately the same time as the offender returned to the restaurant, Trineer and his two female friends walked out of the main entrance. They walked around Marie-Pierre and continued towards the parking lot where their vehicle was parked at the rear of the restaurant. After Trineer had walked past Marie-Pierre, he continued towards the parking area. Marie-Pierre pointed at Trineer and stated that he was the one who had taken her beer away. At this point, the offender's demeanour changed such that bouncer Mr. Jalbert told a co-worker to go and call the police. Another bouncer, Christian Sauvé, was also present outside the main entrance, walked backwards in front of César trying to stop César from advancing towards Danny Trineer as he walked to the rear parking lot. Sauvé told César that he would call the police if he did not stop and to leave the premises immediately. César told him to go ahead and call the police and continued to walk towards Trineer.

9     As Trineer approached his vehicle, Marie-Pierre started to charge at Trineer, hitting him with her head on his chest on several occasions. Trineer told her to stop and warned her that he would have to hurt her if she did not stop. Marie-Pierre continued to ram him in this manner.

10     As Marie-Pierre was charging Trineer, César was approaching the victim. César testified that he wanted to speak to Triner about what Marie-Pierre told him Trineer had done to her. Shortly after Trineer threw Marie-Pierre to the ground, the offender stabbed Trineer three times in the chest area. One of the stab wounds severed his aorta and was fatal; two of the other stab wounds to his chest were potentially fatal.

11     César testified that he was acting in self-defence and only stabbed Trineer after he was attacked by Danny Trineer and the other bouncers. César's evidence that he stabbed Trineer in self-defence was rejected by the jury as they convicted him of manslaughter.

12     I further find that César intended to kill Trineer or to cause him bodily harm that he knew was likely to kill Trineer and was reckless whether Trineer died or not because of the nature of the weapon used by the offender, namely a 33 cm long knife and the infliction of three very deep stab wounds near the victim's heart, when the victim was unarmed.

13     I find that based on the evidence at trial that the jury rejected the offender's evidence that he acted in self-defence. The jury either accepted or had a reasonable doubt about whether César was provoked by Trineer throwing his girlfriend to the ground in a manner where her face struck the pavement and as a result, the jury found the offender guilty of manslaughter as opposed to second degree murder.

14     Trineer had no defensive wounds on his hands or wrists which indicate that he did not defend himself from the attack with the knife. Christian Sauvé who was also a bouncer at the Déjà Vu wrestled the knife away from the offender as Danny Trineer fell to the ground, cutting his hand in the process. César then ran away from the scene and turned himself in to the police several hours later.

B.

Offender's Circumstances

15     The offender is now 29 years of age and has no prior criminal record. The defence argues that he is a youthful offender. I agree however, he is somewhat more mature than a 19 or 20 year old first time offender.

16     The offender was born in Haïti and is not a Canadian Citizen and this conviction will affect his ability to remain in Canada and is a factor to be considered in the sentencing.

17     The offender has been continually employed while in Canada and has supported his girlfriend Marie-Pierre and her son since they commenced their relationship. The offender has also supported his mother in Haïti, especially following the earthquake.

18     César was described in the pre-sentence report by his employer as his best employee, a hard worker and he was very surprised that the offender was involved in a violent altercation. The offender's employer stated that he would rehire him even after the conviction. The employer also described him as calm and thoughtful and someone who did not get involved in conflicts at work.

19     The offender has no addiction issues as confirmed by his employer who has a regular drug testing program.

20     The offender has been double bunked throughout his pre-trial custody. The offender breached the terms of his non-communication order shortly after he was arrested and imprisoned. He pleaded guilty to this offence with the explanation that he was told by the police that he could see Marie-Pierre when he went to jail. Marie-Pierre spoke with him on the telephone after César had already given a statement to the police. Marie-Pierre came to jail to visit which the defence submits was an isolated breach. No additional institutional time or punishment was imposed other than 21 days of pre-trial custody.

21     There has been no evidence of any difficulties with the offender's conduct or behaviour while in prison and he has been respectful throughout the trial.

C.

Impact on the Victim and Family

22     The victim was killed by the actions of the offender. Victim Impact Statements were filed by the victim's mother, Line St-Jean, his father, Harry Trineer, and his close friend, Nathalie Paquette. They all testified that Danny Trineer's death has had a huge impact on them. His mother continues to be depressed and very sad. His father has lost the support that he was given to him by his son and Nathalie Paquette has lost her best friend, has become depressed and has had a relapse to substance abuse.

D.

Positions of Crown and Defence

23     Crown seeks a total sentence of 12 years which is the upper range of the eight to twelve years set out in the R. v. Clarke (2003), 172 O.A.C. 133 (C.A.) decision of the Court of Appeal. The Crown submits that a sentence at the upper end of the range should be imposed due to the high level of moral blameworthiness of the offender's conduct of stabbing the victim, who was unaware that César was armed, as he was attempting to leave the parking lot.

24     The defence argues that the appropriate range of sentence is from six to nine years and that a period of six years in jail, with credit with the pre-sentence time served on a one and half to one basis, should be imposed.

25     The Crown also seeks a non-communication order pursuant to s. 743 of the Criminal Code, namely a non-communication with Line St-Jean, Harry Trineer and Nathalie Paquette and the members of their immediate families, as well as a weapons prohibition for life pursuant to s. 109 of the Code and a DNA order. The defence does not oppose the ancillary terms and therefore a non-communciation order, the weapons prohibition and the DNA order as requested are granted as part of this sentence.

26     Both Crown and defence agree that the offender has spent 31 months of pre-sentence custody, plus the time spent between May 9, 2013 and the sentencing date of July 30, 2013; (another two and one half months). The total pre-sentence time is 33 and one half months.

E.

Mitigating Factors

27     The following are the mitigating factors:

·       (a) 

the offender has no prior criminal record; 

·       (b) 

the offender is relatively youthful at 28 years of age; 

·       (c) 

his conviction and a sentence of over two years in prison will affect his ability to remain in Canada as he is not yet a Canadian Citizen; 

·       (d) 

prior to the incident he was a responsible citizen; he was employed, described as the employer's best worker; he supported his girlfriend and her son, and supported his mother in Haïti, especially after the earthquake; 

·       (e) 

the employer described him as a thoughtful individual who declined to get involved in conflict, who was as a good worker and was willing to hire him upon his release; 

·       (f) 

there is no evidence the offender has addiction issues; 

·       (g) 

the offender has expressed remorse for what occurred in the pre-sentence report. The offender stated that he was remorseful but also said he was feeling fear that evening and apologized to the victim's family and friends. The offender also testified that he acted in self-defence and his evidence was rejected by the jury. 

·       (h) 

I have found that the jury concluded or had a reasonable doubt that the offender was provoked by the actions of the victim in throwing his girlfriend to the ground, hitting her head on the pavement, thus reducing a conviction for second degree murder to manslaughter; and 

·       (i) 

the offender's girlfriend, Marie-Pierre, was the source of the first confrontation when she was became in a dispute with the another woman that had accompanied Trineer to the Jamais Vu dance bar. Marie-Pierre's conduct also led to her being evicted from the bar. She refused to leave the dance bar when asked to leave and had to be removed by the bouncers. Marie-Pierre was very emotional and attacked Trineer as he walked to his car in the parking lot and she also became involved in a dispute with one of the girls in Trineer's group as they were leaving. 

F.

Aggravating Factors

28     Pursuant to s. 724(3) of the Criminal Code, any aggravating factors must be proven beyond a reasonable doubt by the Crown. The following are the aggravating factors.

·       (a) 

The offender was involved with a relatively minor verbal confrontation with the victim at the Jamais Vu dance bar. Immediately following this confrontation he left the restaurant and returned to his home to retrieve a 33 cm long knife and then returned to the bar with the knife concealed on his person. 

·       (b) 

After he returned to the Déjà Vu bar with the knife, the offender did not pick up his girlfriend and leave the restaurant even though he was told to leave the premises by the bouncer. 

·       (c) 

César advanced towards the victim into the parking lot as Trineer was walking to his car to leave the premises. Trineer did not initiate the confrontation. Rather, César advanced towards Trineer who was the person he had previously confronted at the Jamais Vu dance bar who he alleged had called him a "nigger" who was not welcome at the dance bar. The offender chose to confront the victim as he testified he wanted to ask the victim if the allegations made by his girlfriend Marie-Pierre were true. 

·       (d) 

The offender approached Trineer while armed with a large knife concealed on his person. The victim was unaware that the offender was armed with a knife and as a result, was very vulnerable to serious injuries by being stabbed by the offender. 

·       (e) 

Christian Sauvé, one of the bouncers, tried to stop the offender from advancing towards the victim and told him to go home or he would call the police. The offender ignored the warning and told the bouncer to go ahead and call the police. 

·       (f) 

The victim was stabbed five times by the offender. Three of the stab wounds were potentially fatal. One was a fatal stab wound to the victim's chest which severed his aorta. Two other deep stab wounds were in close proximity to the fatal wound in Trineer's chest area and were potentially fatal. The pointed end of the blade of the knife stopped when it struck the victim's rib bones in his back. There were two further minor stab wounds in the victim's back. 

·       (g) 

Trineer was unarmed and unaware that César was armed as he approached. The attack was sudden, however this is consistent with provocation having occurred after the victim threw the offender's girlfriend to the ground. The victim was unable to land any punches and he was described as flailing in the air with his fists. The victim had no defence wounds on his hands or wrists and arm area indicting that he had not tried to defend himself against the knife attack. 

·       (h) 

The offender fled the scene after the other bouncer took the knife from him and he did not remain at the scene or offer assistance to the victim. 

·       (i) 

The offence was not committed while the offender was under the influence of drugs or alcohol. This is not an aggravating factor but the absence of a mitigating factor. 

·       (j) 

The stabbing of Trineer has had a serious effect on the victim's family, both emotionally on the mother and Trineer's best friend as well as financially and emotionally on the father. 

·       (k) 

The Crown submits that a serious crime, namely a stabbing death, has a large effect on a small community. The Crown relies on the Ontario Court of Appeal case in R. v. Brunet, 2010 ONCA 781, (2010), 271 O.A.C. 25, I agree that the impact of a serious offence is important in a small community, however, the impact on society or a larger community is also significant when a serious offence is committed. 

G.

Principles of Sentencing

29     The principles of sentencing are set out in s. 718 of the Criminal Code. The applicable principles in this case are specific and general deterrence, denunciation and the rehabilitation of the accused given the lack of a criminal record and his relatively youthful age.

30     The Crown submits that greater weight should be given to the principles of denunciation and deterrence and that rehabilitation should be recognized as a secondary principle. The Crown submits that rehabilitation is not a principle to be given great weight because the offender does not suffer from any drug or alcohol problems, has no psychological problems and has no previous background which requires counselling, treatment or other rehabilitative approaches.

31     The defence submits that the principles of restraint as set out in s. 718.2(d) and (e) of the Criminal Code are applicable given that the fact that the offender has no prior criminal record and is relatively youthful.

32     I find that denunciation and general deterrence are the predominant sentencing principles in the circumstances of this case. However, the principles of restraint recognized in s. 718.2(d) are also important factors to be considered given that this accused has no prior criminal record and is of relatively youthful age.

H.

Case Law

33     In R. v. Clarke, supra, a decision of the Court of Appeal, the trial judge imposed a sentence for a manslaughter conviction of 14 years of prison and gave credit for pre-sentence custody. In the Clarke case, the victim was 47 years of age, was emaciated and frail and suffered numerous health problems. The offender stabbed him several times in his own home which was a rooming house where the offender also had a room. Two of the wounds were likely fatal. The victim had a blood alcohol level of 196 milligrams of alcohol per 100 millilitres of blood and the court described it as a brutal killing. The offender was 29 years of age at the time of the offence and in good health.

34     In Clarke, supra, the Court of Appeal referred to the decision of Bastarache J. in R. v. Stone, [1999] 2 S.C.R. 290 at para. 237, where he held that "'[t]he argument that the provocation factor was spent because it had already served to reduce the legal character of the crime overlooks the purpose of s. 232 and therefore must fail.'". The Court of Appeal went on to state "[t]hus, provocation is one of the many factors to be considered when assessing the appropriate sentence. In this case, it deserved some modest consideration."

35     At para. 8 of the Clarke, supra, decision, the Court of Appeal stated that "[i]n light of these aggravating factors, we agree that the proper range for this offence and this offender is 8 to 12 years imprisonment. The 14-year sentence imposed by the trial judge is outside that range." The Court of Appeal imposed a sentence of nine years imprisonment.

36     In R. v. Devaney (2006), 215 O.A.C. 253 (C.A.), the offender was convicted by a jury of manslaughter in the death of his landlady. The victim who was in her early 60's, was stabbed 107 times all over her body. She also sustained a blunt force injury to her head and about 25 defensive wounds indicating a significant struggle. The respondent killed the victim shortly after she told him that he had to move out so that another tenant, who was able to pay rent, could move in. The jury's verdict of manslaughter indicated that they accepted or had a reasonable doubt that the respondent committed the offence while under the influence of alcohol and was sufficiently intoxicated to lack the requisite intent for murder. The offender had no criminal record, was in his early 40s and was sentenced to 11 years in prison. The Crown appealed and sought a sentence to be increased 18 to 20 years. The appeal was dismissed.

37     In Devaney, supra, there were a greater number of stab wounds, the offender was substantially older, and he was so intoxicated that he was unable to form the intent for murder when the offence was committed. These factors distinguish it from the case before me.

38     In R. v. Cleyndert, 2006 CanLII 33851 (C.A.), the offender was convicted of manslaughter after being charged with second degree murder following a 21 day jury trial. The trial judge imposed a global sentence of 12 years imprisonment less credit for pre-sentence detention. The offence took place after the victim and others attended a field party after a high school graduation. A confrontation occurred during the course of the party involving insults and spitting on the victim's girlfriend. In the fist fight that followed, the victim threw the first punch and the appellant stabbed the victim eight times in the torso resulting in the victim's death. The victim was unarmed and had no knowledge that the offender carried a weapon. The weapon used was a butterfly knife with a five inch blade that the offender had concealed on his person.

39     In Cleyndert, the trial judge concluded that the verdict of manslaughter demonstrated that the jury had a reasonable doubt on the question of intent, however, as the appellant's moral blameworthiness was very high, and in the trial judge's view it was one of near murder. The offender was only 19 years of age at the time and there was evidence of good character and good behaviour while in pre-trial custody. The aggravating factors included that the victim was vulnerable, the offender had a youth record including convictions for assault and threatening, there was a substantial impact on the victim and his family, and the offender fled the scene.

40     At para. 11 of the Cleyndert, supra, decision, the Court of Appeal stated that the trial judge "... did not err in considering the appellant's use of a concealed prohibited weapon in a fistfight with an unarmed man as an aggravating factor on sentencing." In the case before me, Mr. César had a concealed weapon, namely a 33 cm knife concealed on his person, which he used in what the victim thought was to be a fist fight. This is an aggravating factor on sentencing.

41     In Cleyndert, supra, the Court of Appeal did not interfere with the sentence of 12 years imprisonment as the offender had inflicted multiple stab wounds in a cluster on a vulnerable part of the victim's body. The offender had been looking for a fight, was armed with a concealed prohibited weapon, and was prepared from the outset to use that weapon and used it repeatedly on an unarmed man who had approached the incident as a fist fight. This case has many similarities although the offender was much younger. He was only 19 years old and had a youth record. Also, the trial judge inferred that the offender did not have the necessary intent for murder or there was a reasonable doubt as to whether he had the intent to commit murder. In the case before me, I found that Mr. César had the requisite intent but acted under provocation.

42     In Hermiz, supra, the offender was originally charged with second degree murder but agreed to plead guilty to manslaughter based on the accepted defence of provocation. The victim initially attended a party at a motel. During the same evening, the offender attended a separate gathering at the same motel with a number of other individuals. The victim and his group ordered a pizza which arrived at 2:27 a.m. which caught the attention of members of the offender's group. The offender and members of his group followed the pizza delivery to the victim's motel room. When the victim answered the door to receive the pizza, a dispute occurred with the offender. The argument turned into a fight between the two groups. The victim broke a double sized full bottle of beer over Mr. Hermiz's head. After being struck with the beer bottle, the offender fell to the ground. He then got to his feet, immediately pulled his knife and struck the victim with it once, in the right lateral chest area. The victim died shortly thereafter.

43     At para. 11 of Hermiz, supra, Hill J. recited a number of principles from a number of cases and stated that the crime of manslaughter attracts a broad range of sentences depending on the circumstances of the offence and the offender (R. v. Clarke, supra). In Hermiz, supra, there were a number of aggravating factors which were similar to the case before me including that the offender was carrying a large knife on his person; the offender had no legitimate reason to follow the pizza man to the third floor of the motel, just as Mr. César had no legitimate reason to follow the victim to his car in the rear of the bar after been told to leave the restaurant by the bouncer. Mr. Hermiz did not make any effort to extricate himself from the confrontation nor did he reveal a knife before using deadly force. These facts are very similar to the facts of Mr. César's case. César's use of a knife is an important aggravating feature, the size of the weapon as well as the depth and the position of the stab wounds demonstrate that César had the intention to kill or cause bodily harm knowing it was likely to cause death with indifference to whether death ensued or not, and the offender fled the scene. All of the factors as set out in para. 13 of the Hermiz, supra, decision are present on the facts before me.

44     Mr. Hermiz was almost 19 years of age and was younger than César, the violence was unplanned and he acted under provocation after having a beer bottle broken over his head. The offender had no prior criminal record and was under the influence of alcohol which is not the case before me. In addition, the offender, Mr. Hermiz, pleaded guilty to manslaughter at the outset.

45     A very important factor which distinguishes Mr. Hermiz from the facts before me in Mr. César's case is there was a joint submission on sentencing and partial guilty plea at the outset. The offender, Mr. Hermiz, was approximately 19 years of age while Mr. César was 27 years of age at the time of the offence. A sentence of eight years imprisonment was imposed in Hermiz, supra.

46     In R. v. Mohammed, 2008 CanLII 60979 (Ont. Sup. Ct.), I.V.B. Nordheimer J. sentenced a 19 year old offender who pleaded guilty to manslaughter, to imprisonment for six and one half years. The trial judge stated that the appropriate sentence was nine years plus credit for time served.

47     In Mohammed, supra, a verbal and physical altercation occurred between the parties during which the offender pulled out a knife and stabbed the victim eight times and then fled the scene. The 21 year old victim later died from his wounds. The offender was 19 years old at the time of the offence, was single, had no prior criminal record, had a positive pre-sentence report which suggested that the conduct of the offender on the day in question was out of character. These facts are very similar to those in the case before me, however, is distinguished on the basis that Mr. Mohammed was only 19 years of age, much younger than Mr. César, and he had also been drinking with the victim before the altercation.

48     In Mohammed, supra, the court stated at para. 26 "... that the attitude that carrying a weapon as a legitimate form of self-protection is an approach that must be firmly and absolutely rejected." César testified that he returned to his home to get the knife, which he then hid on his person, in order to defend himself. I agree with the statement in Mohammed, supra, that using a knife as a legitimate form of self-protection should be firmly and absolutely rejected. The decision of Mohammed, supra, was upheld by the Court of Appeal in R. v. Mohammed 2009 ONCA 586.

49     In R. v. Cioppa, 2013 ONSC 1242 (Ont. Sup. Ct.), a decision of I.V.B. Nordheimer J., an 18 year old offender stabbed a 16 year old victim. Mr. Cioppa was slapped by the victim and then responded by taking out the knife and stabbing the victim once in the chest causing his death. The offender ran away from the scene and disposed of the knife in an alley. The offender had no prior record. Two psychiatric reports concluded that he was not a risk to re-offend, that he was remorseful and accepted responsibility for his actions. The offender was sentenced to eight years in prison.

50     The defence referred to the case of R. v. Yeung, [1994] O.J. No. 1495 (C.A.). In the Yeung decision, the trial judge had imposed a sentence of seven years for manslaughter after the trial judge determined that the jury had accepted that provocation was a factor. The Court of Appeal held that the trial judge gave undue weight to general deterrence in view of the fact that provocation had been accepted by the jury and stated that the appropriate sentence should have been five years in prison. This case is given limited weight as it was decided before R. v. Clarke, supra, which established the range for a morally blameworthy manslaughter to be in the eight to 12 year range. In addition, very few facts were referred to in the appeal decision as a result of the age of the offender and whether a knife was used or not is unknown.

51     R. v. Simcoe (2002), 156 O.A.C. 190 (C.A.), was an appeal from sentence where the offender had pleaded guilty to manslaughter in the death of her father. At trial, she was sentenced to four years in prison in addition to eight months of pre-sentence custody. The Court of Appeal varied the sentence to time served of approximately one year plus the pre-sentence custody for a total sentence of two and one half years in prison.

52     In Simcoe, supra, the offender had been drinking with her father and a family friend when her father sexually assaulted her. She was intoxicated at the time. The friend pulled the daughter away and took her upstairs to calm her down. Her father shouted obscenities and taunted Ms. Simcoe then came down in a rage and began throwing things around the room and subsequently stabbed her father repeatedly with a knife. The father had sexually assaulted Ms. Simcoe when she was a child, she had attempted suicide several times, abused drugs and alcohol, was 41 years of age at the time of the stabbing, and had no criminal record.

53     Simcoe, supra, is distinguished by the fact that the offender pleaded guilty to manslaughter, and there was very provocative conduct by the victim which affected the moral culpability of this defendant. This case was also decided before the Court of Appeal's decision in R. v. Clarke, supra, which established a range of eight to 12 years. The manslaughter plea may not have been based on the defense of provocation but rather on a lack of intent to kill. Also in this case, the offender had been abused by the victim in the past and the victim had sexually assaulted her that evening which were substantial mitigating factors. The offender had also consumed alcohol that evening and there was extreme provocation of the sexual assault by her father in front of a friend followed by the taunting obscenities addressed to the offender by her father.

54     The defence referred to the case of R. v. Q.B. (2003), 63 O.R. (3d) 417 (C.A.), where the offender pleaded guilty to a number of offences including possession of a loaded restricted weapon, aggravated assault and using a firearm in the commission of an indictable offence. This is not a manslaughter conviction. The offender was 18 years of age when the offences were committed. The sentence was reduced from 12 years and two months to four years and two months. The case is referred to for the principle that the restraint should be exercised and that the first penitentiary sentence should be as short as follows for a very youthful 18 year old first time offender. I agree with the rationale in R. v. Q.B., however it is distinguished by the fact that it does not deal with a manslaughter conviction, and the offender was only 18 years of age as opposed to 27 years of age in Mr. César's case. The Court of Appeal stated at para. 36 that "where the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives." This principle must be considered in addition so that "[t]he length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence." Following the R. v. Q.B. rationale, I find that the principle of rehabilitation should also be given substantial weight.

55     In R. v. Batisse, 2009 ONCA 114, (2009), 93 O.R. (3d) 643 (C.A.), the offender was an aboriginal woman who abducted a newborn infant from a Sudbury hospital in 2007. She pleaded guilty to one count of abduction of a person and was sentenced to five years' imprisonment in addition to time served of 23 days. The defence relies on this case for the principle that rehabilitation also applies in serious cases involving violence. Rehabilitation is not the determinative factor, but is a factor to be considered along with general deterrence and denunciation. This case is distinguished by the fact that it is not a manslaughter case, that the offender suffered from a mental illness which was an important factor and that the offender was an aboriginal offender where the principles of Gladue had to be considered. A sentence of two and one half years of incarceration was imposed.

56     R. v. Pham, 2013 SCC 15, (2003), 293 C.C.C. (3d) 530, is a decision of the Supreme Court of Canada where the offender was convicted of two drug related offences where the sentencing judge had imposed a sentence of two years' imprisonment in light of a joint submission by the Crown and defence counsel. At the sentencing hearing, neither party raised the issue of collateral consequences of a sentence of two years' imprisonment to the offender under the Immigration and Refugee Protection Act, (S.C. 2001, c. 27) (the "Act"). Under the Act, a non-citizen sentenced to a term of imprisonment of at least two years looses the right to appeal a removal order against him or her. The Supreme Court reduced the sentence of imprisonment to one of two years less one day to avoid the additional penalty to the offender. The collateral consequences of a sentence in excess of 24 months, namely the loss of immigration appeal rights was a factor to be considered, especially in circumstances where the sentence imposed is one of two years rather than two years less one day, and where the defence, Crown and sentencing judge had not adverted to the effect of the length of sentence by one day. The facts in this case are very different than the circumstances before me as the offender has already spent more than two years in pre-trial custody and the sentence proposed by the offender of six years already greatly exceeds the two years served. The fact that the offender will be in all likelihood deported because he has received a sentence of imprisonment in excess of two years is a factor to be given some weight in sentencing.

57     In R. v. Milina, [1992] O.J. No. 3072 (Ont. Ct. (Gen. Div.)), Watt J. sentenced the offender to five years imprisonment in a penitentiary. The offender and the victim had been quarrelling over the manner in which the offender took coffee from the pot which the deceased was in charge of. The deceased constantly berated the offender. The day of the incident, the offender thrust her fist in the air as a sign of triumph over the offender, whereupon the offender approached the deceased and stabbed her with a knife. The offender had a troubled past and was a first time offender. This case has some similarities as the offender was found not guilty of second degree murder but guilty of manslaughter to which she had pleaded guilty. This is distinguished by the fact that it was decided many years before the R. v. Clarke decision, the offender lacked the mental element of the state of mind to constitute murder. There was no excessive or gratuitous violence, although a weapon (a knife) was used on an unarmed assailant who posed no physical threat to the offender. An additional important factor is that the offender had been depressed for a substantial period of time beforehand. The offender had become fatigued through lack of sleep and felt exasperated and overwhelmed by the circumstances. The offender acted out of character and was a 58 year old first time offender.

58     In R. v. Phan, [2000] O.J. No. 6004 (Ont. Sup. Ct.), Mr. Phan pleaded guilty to manslaughter, which was accepted by the Crown due to evidence of provocation. The victim was involved with Mr. Phan's wife and when Mr. Phan asked him to cease contact, the victim challenged Mr. Phan to a fight. The offender armed himself with a carving knife and stabbed the victim to death. He then called 9-1-1 and reported the offence immediately. The offender was 32 years of age, was married with two children, was employed, and had no prior criminal record. Mr. Phan was sentenced to six years in prison.

59     In R. v. Kokopenace, [2008] O.J. No. 4582 (Ont. Sup. Ct.), the offender was charged with second degree murder but convicted of manslaughter. The offender was convicted of stabbing the deceased in the chest. The Crown argued that the appropriate range of sentence was eight to 12 years in jail. The defence argued that the appropriate range of sentence was incarceration between four to five years. The defendant was sentenced to seven and one half years in jail, did not accept responsibility for his conduct, did not express remorse, and posed a serious risk to public safety. His criminal record was extensive and the court held that denunciation and deterrence of serious criminal conduct were significant factors that mandated the need to separate the offender from the community.

60     In the Kokopenace decision, both the victim and the offender participated in binge drinking over a two day period in April 2007. The victim's death was caused by a single stab wound that entered his body in the left chest between the first rib and perforated the artery and jugular vein. The jury found that neither accident nor self-defence had any application. The trial judge found that the jury rejected the offender's testimony on all essential points save for the intoxication.

61     In Kokopenace, supra, the trial judge found that the jury could have concluded due to the extensive consumption of alcohol that the offender had not formed the intent necessary for second degree murder and also could possibly have found provocation. The trial judge found that it was more probable owing to the excessive consumption of alcohol, that Mr. Kokopenace had not formed the intent necessary for second degree murder. The trial judge imposed a term of imprisonment of seven and one half years and gave credit for pre-sentence time served. This case is distinguished by the fact that the offender was severely intoxicated at the time of the offence, he was an aboriginal man entitled to consideration of the Gladue factors, and also had a very extensive and disturbing criminal record as an adult for violent assaults.

62     In R. v. Abeyewardene, [2009] O.J. No. 3077 (Ont. Sup. Ct.), W.B. Trafford J. imposed a sentence of eight years in prison less a credit for pre-sentence custody. The offender had stabbed the victim in the neck causing his death. The victim had just left the residence of a woman after abusing her emotionally, physically and verbally and damaging her parents' residence. The offender who was 19 years of age at the time, drove towards her place of residence in response to her request to help clean up the residence. The offender saw the victim walking along the side of the road. The offender intentionally struck the victim multiple times with his vehicle after which the victim began to run in the general direction of the young woman's residence. The offender stopped his vehicle, grabbed a machete and gave chase. At one point, the victim placed the offender in a chokehold saying "... you are dead ... I am going to kill that fucking bitch and her family too ..." The offender then took out his knife and stabbed the victim multiple times in a frenzy, causing the fatal wounds.

63     The court emphasized the principles of denunciation and specific deterrence having regard for the rehabilitative interest of the offender and the need to develop a sense of responsibility for his own conduct. The attack was brutal, included the use of a vehicle, a machete and a knife. The victim was vulnerable however, this was a case where the immature Judgment of a 19 year old was clouded by moral outrage and unreasonable mistakes of fact. The defendant fled the scene failing to provide any assistance to the victim. The offender expressed remorse, had no prior criminal record, and had an impressive list of character references.

I.

Sentence and Reasons

64     Considering the above case law and the specific facts of this case outlined above, I find that given the seriousness of the multiple stab wounds inflicted by Mr. César on Trineer, including three deep stab wounds to the chest area with a 33 centimetre long knife, I find that the principles of deterrence and the denunciation are the primary factors in sentencing. However, due to the offender's lack of a criminal record that his actions appear to have been out of character, given his responsible behaviour both at work and to his family, his relative youthful age of 27 years at the time of the offence, the principles of restraint and the rehabilitation of the offender are also important factors to be considered.

65     I find that the fact that the offender was provoked or insulted by the victim throwing his girlfriend to the ground such that her head hit the pavement, is a mitigating factor. However, there are also a number of serious aggravating factors which were set out above under the heading of aggravating factors, including in particular, that the offender left the restaurant to retrieve a long knife which he concealed on his person, then returned to the restaurant, where the unfortunate hysterical actions of his girlfriend led him to advance towards the victim. Trineer was attempting to get to his car and leave the restaurant when César advanced towards him. Trineer was a former bouncer at the restaurant and was a large man, who was prepared for a fist fight, however, he was vulnerable to the offender armed with a large knife which was concealed on his person. In these circumstances, I find there was a high degree of moral blameworthiness in the offender's conduct of returning to his home to get a knife, and then returning to the bar after being told to leave the premises and then initiating a confrontation with the unarmed victim armed with a concealed weapon on his person and using the knife to stab Trineer.

66     In Clarke, supra, the Court of Appeal set a range of sentence for high morally blameworthy conduct at between eight to 12 years imprisonment prior to credit for pre-sentence custody. The Court of Appeal has upheld sentences in this range and while the defence has referred to a number of sentences that are slightly lower, none of those cases were decided following the Clarke, supra, decision and all have other distinguishing factors.

67     The facts in Hermiz, supra, decision are the closest to the circumstances in this case, other than it was a joint submission after a guilty plea, the offender was younger than Mr. César, there was extreme provocation of having a beer bottle broken over his head by the victim, as well as some evidence that the offender was under the influence of alcohol. Mr. Hermiz was sentenced to eight years' imprisonment. I find that César's sentence should be slightly higher than in Hermiz, supra, because he was not under the influence of alcohol, returned to his home to get a large knife and returned to confront the victim who was unarmed and there was no guilty plea or a joint submission on sentence.

68     Having considered all of the above factors, I find that a sentence of imprisonment of nine years in jail is appropriate in the circumstances and reflects society's concern for the sanctity of life and would provide adequate denunciation and general deterrence while allowing for an opportunity for rehabilitation.

J.

Pre-Sentence Custody

69     The offender has been in custody before sentencing for 31 months plus the time spent from May 9, 2013 to sentence for a total of 33 and one half months; 21 days of the pre-sentence custody has been removed and allocated to the breach of the no contact order.

70     In R. v. Summers, 2013 ONCA 147 (C.A.), the offender pleaded guilty to manslaughter in relation to the death of his baby daughter, attributed to shaken baby syndrome. The trial judge gave Mr. Summers enhanced credit of 1.5:1 for remand time exclusively on the basis of his inability to earn remission or parole while in remand custody.

71     Section 719(3.1) of the Criminal Code states as follows:

·       Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). 

72     The Court of Appeal concluded at para. 79 that:

·       Stated differently, the fact that crediting to a maximum of 1.5:1 is an expressly permitted exception to 1:1 crediting does not mean that the circumstances warranting such enhanced credit must themselves be exceptional. 

73     The Court of Appeal at para. 117 in Summers, supra further stated:

·       That said, nothing in these reasons should be understood as suggesting that enhanced credit will be available under s. 719(3.1) to every remand offender on the basis of the absence of remission and parole eligibility. There must be some basis in the evidence or the information before the sentencing judge to support the conclusion that this factor merits enhanced credit for a particular offender in a given case. 

74     In this case, the evidence before me is that the offender, other than the one breach, has been a model prisoner and has not been disciplined for breaching any of the prison's rules or regulations and has been respectful throughout the trial. However, the offender did breach the terms of a non-communication order and was sentenced to 21 days of pre-trial jail time.

75     In Summers, the Court of Appeal upheld the trial judge's decision to award a credit for pre-sentence custody on the basis of 1.5 to 1.0, based on the loss of eligibility for earned remission and early parole for the time spent in pre-sentence custody. This situation also applies to Mr. César as there is evidence that he has not breached any of the prison rules and regulations other than the terms of a no contact order. This breach was based on a misunderstanding, and he has pleaded guilty and served 21 days for this offence. Based on the circumstances of the breach and the great likelihood that he has lost earned remission as he has maintained good conduct while in prison awaiting trial and sentence. Mr. César is given credit for 46 months of pre-sentence custody.

K.

Disposition

76     The offender is sentenced to nine years in prison with credit of 46 months for pre-sentence custody, leaving a balance of five years and two months to be served in prison. Enhanced credit was given to the offender due to his loss of remission and the right to early parole. Credit was not given at the full one and one-half times to one due to the breach of the no contact order while he was in prison.

L.

Ancillary Orders

77     The offender is required to provide a DNA sample. The offender is banned from possessing any weapons for life pursuant to s. 109 of the Criminal Code. The offender is ordered not to contact Line St-Jean, Harry Trineer, Nathalie Paquette, or any members of their immediate family while in custody.

R.J. SMITH J.