CHILD WITH CEREBRAL PALSY REQUIRES DETAILED CARE PLAN

Courts continue to struggle with the question of "unreasonable demand" for medical services. In the case below , the Federal Court determined that a mere "well intentioned" plan without sufficient specificity was not enough to overcome inadmissibility, but in an interesting twist, the court offered its "recommendation" to the applicants to start the process again.

Daniel v. Canada (Minister of Citizenship and Immigration)

Between Susanna Julia De Hoedt Daniel, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1500

2012 FC 1391

Docket IMM-4379-12

 Federal Court
Vancouver, British Columbia

Shore J.

Heard: November 28, 2012.
Judgment: November 29, 2012.

(63 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

SHORE J.:--

 

·       I. 

Overview

1     Accompanying an application for permanent residence, intentions, alone, are not enough to address medical care and corollary healing professional services to be administered. An excessive demand on health and social services may be considered to be the outcome if a practical and detailed plan for paid medical care and accessory social services (ex. in respect of a required medical team) is not provided.

 

·       II. 

Introduction

2     The Applicant, a Sri Lankan citizen, seeks judicial review of a decision of an immigration officer of the High Commission of Canada [HCC Officer] denying her application for permanent residence. The Applicant argues that the HCC Officer was unreasonable in finding that she and her accompanying family members were inadmissible on health grounds under paragraph 38(1)(c) and section 42 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. In particular, she argues that it was unreasonable to conclude that she and her accompanying family members were inadmissible on health grounds because her son's Cerebral Palsy might reasonably be expected to cause excessive demand on health or social services.

 

·       III. 

Judicial Procedure

3     This is an application, under subsection 72(1) of the IRPA, for judicial review of the decision of the HCC Officer, dated March 8, 2012.

 

·       IV. 

Background

4     The Applicant, Ms. Susanna Julia De Hoedt Daniel, and her spouse, Mr. Jeromie Daniel, are both citizens of Sri Lanka.

5     The Applicant's son, Jordan Isaac Daniel, was born in New Zealand in 2009 while the Applicant and her spouse were working in that country.

6     Jordan has Cerebral Palsy, with spasticity and development delay. As a result, he has delayed growth and weight gain due to initial poor feeding, motor dysfunction, learning difficulties, and neurodevelopment limitations.

7     Jordan was enrolled in an early intervention program and receives physiotherapy and occupational therapy. His physicians believed he was small but at a normal growth velocity, eating well, social, and gaining independence using a walking frame.

8     The Applicant and her spouse have friends and family living and working in Canada. Her spouse's sister is a permanent resident living in British Columbia with her family.

9     In August 2010, the Applicant applied for permanent residence in Canada [PR Application] under the Federal Skilled Worker Class, hoping to give Jordan an environment where children with Cerebral Palsy lead independent and fulfilling lives.

10     On November 7, 2011, the HCC Officer received an Immigration Medical Exam Summary [IME Summary] for Jordan, which concluded that his Cerebral Palsy might reasonably be expected to cause excessive demand on health or social services.

11     According to the IME Summary, Jordan would require a comprehensive assessment by a multi-disciplinary development team to establish and implement an appropriate program for Jordan. The services that Jordan would require, the IME Summary stated, would exceed the average amount spent on individual health care in Canada.

12     The IME Summary identified the following estimates of specific costs of services that Jordan would likely require: (i) participation in an Early Intervention Program for three years ($20,250); (ii) special education costs once he reached school age ($112,000); (iii) respite care over a 10-year period ($24,000); (iv) wheelchair costs ($6,500 to $8,000); and, (v) physiotherapy, occupational therapy, and speech therapy.

13     On November 24, 2011, the HCC Officer sent a letter to the Applicant [fairness letter] advising her that Jordan's health condition might reasonably be expected to cause excessive demand on health or social services. The fairness letter disclosed the findings of the IME Summary discussed above.

14     The fairness letter requested submissions on a reasonable and workable plan (and the Applicant's financial means and intent to implement it) to offset excessive demands that Jordan would impose on Canadian social services. The fairness letter advised that an excessive demand is a demand for which the anticipated costs exceed the average Canadian per capita health and social services cost amount of $4806.00/year.

15     The fairness letter contained a paragraph on the cost of vocational training and supported independent living for Jordan. The Affidavit of Mr. Sean Morency, filed by the Respondent, states that the fairness letter was drafted from a precedent letter and that this paragraph was included inadvertently.

16     On February 3, 2012, the Applicant submitted a financial plan [Plan] on Jordan's social and medical costs.

17     The Plan discussed the costs associated with Jordan's needs, the family's health and life insurance plan, job offers made to the Applicant and her spouse, their expected combined net income of $61,880 in Canada, and plans to accumulate $300,000 in savings over a 10-year period to meet Jordan's future needs.

18     In conjunction with the Plan, the Applicant filed letters of support for long-term financial assistance and free physical care (including daycare) from members of the Maple Ridge, British Columbia community and the congregation of St. George's Anglican Church in Maple Ridge and letters from the Applicant's sister-in-law's family offering general support and free accommodation for 5 years.

19     On March 8, 2012, the HCC Officer refused the PR Application, finding the family inadmissible because Jordan's health condition might reasonably be expected to cause excessive demand on health or social services in Canada [final decision letter].

 

·       V. 

Decision under Review

20     The HCC Officer determined that Jordan was inadmissible to Canada on health grounds, under paragraph 38(1)(c) of the IRPA, because he has a health condition that might reasonably be expected to cause excessive demand on health or social services. Pursuant to section 42, the Applicant and her spouse were also inadmissible to Canada because they were Jordan's accompanying family members.

21     The HCC Officer took the position that the Plan did not challenge (i) the IME Summary's determination of Jordan's health condition, or (ii) the assessment of the excessive cost of health and social services that he would require in Canada. In particular, the HCC Officer was not satisfied that the Plan showed that social services suited to Jordan's needs could be secured and delivered by private or alternative means. Nor did the Plan show that the Applicant had the financial means or intent to implement it without imposing an excessive demand on the publicly-funded system.

22     According to the Global Case Management System notes [GCMS Notes], the Plan addressed the Applicant's financial ability to meet Jordan's social services costs but did not ultimately disclose a credible individualized plan to privately deliver services.

23     The HCC Officer found that the Plan was contingent on assumptions which, if correct, would show that it might be possible to meet Jordan's needs privately. Nonetheless, the Plan did not explain how the Applicants would provide services to him. Since the offers of support discussed below were not from persons with identified medical or social service qualifications relevant to Jordan's needs, they were not probative of this issue.

24     The HCC Officer analyzed how the Plan compared the financial figures submitted by the Applicant with the social service costs projected in the IME Summary. The GCMS Notes summarize the 10-year table of figures presented in the Plan describing projected costs (early intervention programming and special education) and note that this table omitted costs for respite care because family and friends would provide such care and anticipated to cover wheelchair costs through fundraising. The HCC Officer noted that the Plan compared these costs against the projected net income of the Applicants in Canada (less living expenses), funds of $7500 that they were bringing with them from Sri Lanka, a yearly donation from a relative, and $300,000 in expected savings for future medical costs.

25     On the sister-in-law's offer to provide 5 years of free accommodation, the HCC Officer found that she had not explained how they would accommodate the Applicant's family. On her ability to accommodate the Applicant's family, the HCC Officer noted that her own family consisted of 5 individuals.

26     The GCMS Notes recognized that the Plan contained offers of financial and general support (including childcare support) from community and fellow congregation members, a letter from the proprietor of a day care in Maple Ridge offering to accept Jordan at no charge, an affidavit by the Applicant and her spouse undertaking financial commitment for Jordan's needs and outlining their confirmed employment and expected financial resources, offers by family and friends to provide respite care as a substitute for paid respite care and to raise funds for a motorized wheelchair, and an offer to provide $50/month in assistance from a relative in Australia.

27     On these offers, the HCC Officer concluded that they were insufficiently specific and did not explain how the offers would contribute to Jordan's social service costs.

28     The HCC Officer stated that while medical insurance purchased for the Applicant's family gave some coverage for medical devices and home care, it "did not appear to be designed for someone with Jordan's chronic needs" (Affidavit of Sean Morency [Morency Affidavit], Exhibit "A" GCMS Information Request: Application at p 57). The HCC Officer reasoned that the limit on 10 visits per year to a speech therapist and a limit of $250 for physiotherapy seemed unlikely to meet his chronic ongoing needs for specialized services. Moreover, the HCC Officer distinguished insurance to pay for services from a plan to actually provide services.

29     Finally, the HCC Officer found that the Plan did not disclose professional estimates or assessments that would show the Applicant has begun to organize the multi-disciplinary developmental team discussed in the IME Summary. In the absence of such information, the Plan was not credible in the view of the HCC Officer: "Without a credible plan that identifies qualified service providers willing and able to provide the required services, and the costs that would be incurred to provide the services, it is impossible to make a final determination with respect to the applicants' financial ability to avert the projected excessive demand" (Morency Affidavit, Exhibit "A" GCMS Information Request: Application at pp 58).

 

·       VI. 

Issues

30     

 

·       (1) 

Was the HCC Officer reasonable in finding that Jordan was inadmissible to Canada because of a health condition that might reasonably be expected to cause excessive demand on health or social services? 

·       (2) 

Did the HCC Officer ignore or misconstrue the evidence before him? 

 

·       VII. 

Relevant Legislative Provisions

31     The following legislative provisions of the IRPA are relevant:

 

·       38. (1) A foreign national is inadmissible on health grounds if their health condition 

 

·       (a) is likely to be a danger to public health; 

 

·       (b) is likely to be a danger to public safety; or 

 

·       (c) might reasonably be expected to cause excessive demand on health or social services. 

 

·       ... 

 

·       42. A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if 

 

·       (a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or 

 

·       (b) they are an accompanying family member of an inadmissible person. 

* * *

 

·       38. (1) Emporte, sauf pour le résident permanent, interdiction de territoire pour motifs sanitaires l'état de santé de l'étranger constituant vraisemblablement un danger pour la santé ou la sécurité publiques ou risquant d'entraîner un fardeau excessif pour les services sociaux ou de santé. 

 

·       [...] 

 

·       42. Emportent, sauf pour le résident permanent ou une personne protégée, interdiction de territoire pour inadmissibilité familiale les faits suivants : 

 

·       a) l'interdiction de territoire frappant tout membre de sa famille qui l'accompagne ou qui, dans les cas réglementaires, ne l'accompagne pas; 

 

·       b) accompagner, pour un membre de sa famille, un interdit de territoire. 

32     The following provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] are relevant:

 

·       1. (1) The definitions in this subsection apply in the Act and in these Regulations. 

 

·       ... 

 

·       "excessive demand" means 

 

·       (a) a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required under paragraph 16(2)(b) of the Act, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years; or 

 

·       (b) a demand on health services or social services that would add to existing waiting lists and would increase the rate of mortality and morbidity in Canada as a result of an inability to provide timely services to Canadian citizens or permanent residents. 

 

·       ... 

 

·       20. An officer shall determine that a foreign national is inadmissible on health grounds if an assessment of their health condition has been made by an officer who is responsible for the application of sections 29 to 34 and the officer concluded that the foreign national's health condition is likely to be a danger to public health or public safety or might reasonably be expected to cause excessive demand. 1. (1) Les définitions qui suivent s'appliquent à la Loi et au présent règlement. 

 

·       [...] 

 

·       "fardeau excessif" Se dit : 

 

·       a) de toute charge pour les services sociaux ou les services de santé dont le coût prévisible dépasse la moyenne, par habitant au Canada, des dépenses pour les services de santé et pour les services sociaux sur une période de cinq années consécutives suivant la plus récente visite médicale exigée en application du paragraphe 16(2) de la Loi ou, s'il y a lieu de croire que des dépenses importantes devront probablement être faites après cette période, sur une période d'au plus dix années consécutives; 

 

·       b) de toute charge pour les services sociaux ou les services de santé qui viendrait allonger les listes d'attente actuelles et qui augmenterait le taux de mortalité et de morbidité au Canada vu l'impossibilité d'offrir en temps voulu ces services aux citoyens canadiens ou aux résidents permanents. 

 

·       [...] 

 

·       20. L'agent chargé du contrôle conclut à l'interdiction de territoire de l'étranger pour motifs sanitaires si, à l'issue d'une évaluation, l'agent chargé de l'application des articles 29 à 34 a conclu que l'état de santé de l'étranger constitue vraisemblablement un danger pour la santé ou la sécurité publiques ou risque d'entraîner un fardeau excessif. 

 

·       VIII. 

Position of the Parties

33     The Applicant submits that the HCC Officer had a duty to explain his analysis of the Plan and that his failure to provide adequate reasons is a reviewable error.

34     According to the Applicant, the HCC Officer breached his duty to provide adequate reasons in failing to explain why the Plan and the evidence submitted in its support was insufficient to show that Jordan might not reasonably be expected to cause excessive demand on heath or social services in Canada. The Applicant contends that the reasons are inadequate because it is difficult to assess how the Plan did not overcome paragraph 38(1)(c) of the IRPA from the fairness and final decision letters.

35     From this, the Applicant infers that the immigration officer was determined on refusing their application, whatever the evidence provided in their plan.

36     The Applicant further argues that the HCC Officer based his decision on an erroneous finding of fact that he made without regard to the material before him.

37     The Applicant claims that the Plan addressed: (i) all costs outlined in the fairness letter and IME Summary; (ii) her and her spouse's goal to accumulate $300,000 over a 10-year period through saving and fundraising; (iii) her family's comprehensive medical and life insurance; (iv) her and her spouse's job offers; (v) how the Maple Ridge community would support Jordan by letters of support promising to assist with respite care, ongoing fundraising, car pools, and other needs; (vi) her family's access to free accommodation for five years with her sister-in-law; (vii) free daycare available to Jordan; (viii) the Applicant's ability to begin work immediately on arrival in Canada; and, (xi) her savings of $7,500 to meet the family's immediate needs.

38     If the HCC Officer had considered the elements of the Plan, as discussed above, the Applicant argues, then he would have found that paragraph 38(1)(c) did not apply to Jordan. Citing Canada (Minister of Citizenship and Immigration) v Colaco, 2007 FCA 282, the Applicant contends that a decision-maker may not ignore evidence of an applicant's ability and willingness to pay for services in assessing the extent of his or her excessive demand on health or social services under paragraph 38(1)(c) of the IRPA. By extension, the Applicant argues that the HCC Officer should have considered the availability of community support.

39     The Applicant requests that this Court apply Justice Luc Martineau's decision in Sokmen v Canada (Minister of Citizenship and Immigration), 2011 FC 47, which holds that "some demand [on health or social services] is acceptable" under paragraph 38(1)(c) of the IRPA and that, by consequence, the HCC Officer was required to conduct "a full analysis ... to determine whether the demand is 'excessive'" (at para 34).

40     The Respondent submits that the HCC Officer conducted the individualized assessment of the Applicant's circumstances, as required by Hilewitz v Canada (Minister of Citizenship & Immigration), 2005 SCC 57, [2005] 2 SCR 706. Since the Plan provided by the Applicant was not credible, the HCC Officer could not determine if it would actually meet Jordan's needs.

41     The Respondent submits that the Plan was not credible because it did not address physiotherapy and speech therapy, special education, or a multi-disciplinary team. The statements of support were not probative of the Applicant's ability to meet these needs because these volunteers were not identified as professionally qualified. Finally, the Respondent submits that the HCC Officer acknowledged the Applicant's medical and life insurance but found that it was not designed to meet Jordan's needs.

42     In the Respondent's opinion, the fairness letter shows that the Applicant ought to have been aware of the need to submit a satisfactory plan. The Respondent cites OB 063 "Assessing Excessive Demand on Health and Social Services", which takes the position that a declaration of ability and intent must be supported by a credible plan, that the quality of this plan is the most significant element in assessing ability and intent, and that the plan should reflect the needs of the affected person.

43     The Respondent argues that, since the Plan was not sufficiently concrete to allow the HCC Officer to analyze the Applicant's intent and ability to pay, his decision was reasonable and consistent with the evidence. The Respondent distinguishes Sokmen, above, on the basis that the applicant in that application had submitted a specific plan which included a plan that her son would receive treatment from a specific physician in France. By contrast, the Applicant did not submit a comparably concrete plan.

44     With respect to the adequacy of the HCC Officer's reasons, the Respondent submits that this argument does not speak to the GCMS Notes, which form part of the HCC Officer's decision. The Respondent notes that the Applicant indicated that she had received written reasons for the decision in her Application for Leave and for Judicial Review and that the Court did not initiate a request for reasons under Rule 9 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 [Rules]. Citing Toma v Canada (Minister of Citizenship and Immigration), 2006 FC 779, 295 FTR 158 and Wang v Canada (Minister of Citizenship and Immigration), 2006 FC 1298, 302 FTR 127, the Respondent submits that the Applicant's failure to initiate a request under Rule 9 amounts to a waiver of the right to receive the report.

45     The Respondent cites Ikhuiwu v Canada (Minister of Citizenship and Immigration), 2008 FC 344, [2008] 4 FCR 432 and Singh v Canada (Minister of Citizenship and Immigration), 2006 FC 315, for the proposition that the Applicant's complaint on the adequacy of reasons is answered by her failure to request further reasons under Rule 9.

46     In her Reply, the Applicant submits that the Plan did address physiotherapy and speech therapy, special education, and a multi-disciplinary team. She states that, while her insurance did not entirely address physiotherapy and speech therapy costs, it did provide some coverage; she submits that her general ability and intent to address Jordan's needs shows that she would have increased the insurance premium to provide further coverage. The Applicant also notes that the Plan did discuss special education beginning at Year 4 of the Plan. Finally, the Applicant argues that she was not obligated to include a plan for a multi-disciplinary team because this component was discussed in the IME Summary, to which she did not have access.

47     The Applicant's Reply also submits that the HCC Officer's decision that the letters of support were not from individuals who had identified themselves as qualified to meet Jordan's needs is also incorrect. The Applicant observes that a daycare operator wrote in her letter of support that she had cared for "children with various special needs" and that another set of individuals identified themselves as a teacher and software engineer who "have done professional respite care with community living ... and have significant experience with special needs children" (Applicant's Record [AR] at pp 39-40). The Applicant submits that the HCC Officer had a duty to further inquire into the qualifications of these persons.

 

·       IX. 

Analysis

Standard of Review

48     Whether the Applicant is inadmissible to Canada because of a health condition that might reasonably be expected to cause excessive demand on health or social services is a question of mixed fact and law reviewable on the standard of reasonableness (Ovalle v Canada (Minister of Citizenship and Immigration), 2012 FC 507). The HCC Officer's findings of fact are also reviewable on a standard of reasonableness (Chauhdry v Canada (Minister of Citizenship and Immigration), 2011 FC 22, 382 FTR 145).

49     Since the standard of reasonableness applies, this Court may only intervene if the reasons are not "justified, transparent or intelligible". To satisfy this standard, the decision must also fall in the "range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47).

50     The Applicant's submission that the final decision letter did not sufficiently explain why the Plan was insufficient amounts to a challenge to the adequacy of the HCC Officer's reasons. The Supreme Court of Canada has, however, held that if reasons are given, a challenge to the reasoning or result is addressed in the reasonability analysis. According to Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, "reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes" (at para 14). This Court may not "substitute [its] own reasons" but "may look ... to the record for the purpose of assessing the reasonableness of the outcome" (at para 15).

51     This Court also observes that the GCMS Notes are part of the HCC Officer's reasons. Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 has held that "notes to file" are sufficient reasons in administrative immigration proceedings (at paras 43 and 44). Although the Applicant did not make submissions on the application of Rule 9 of the Rules, the Respondent is correct that the Applicant's failure to initiate a request under Rule 9 amounts to a waiver of the right to receive the report (Toma, above, at para 13) and that the Applicant cannot complain as to the adequacy of reasons (Ikhuiwu, above, at para 18).

 

·       (1) 

Was the HCC Officer reasonable in finding that Jordan was inadmissible to Canada because of a health condition that might reasonably be expected to cause excessive demand on health or social services? 

52     In Hilewitz, above, the Supreme Court of Canada held that a decision-maker considering whether an applicant might reasonably be expected to impose an excessive demand on health and social services must conduct "individualized assessments", which require them to "take into account both medical and non-medical factors, such as the availability, scarcity or cost of publicly funded services, along with the willingness and ability of the applicant or his or her family to pay for the services" (at para 55 and 56). This is the touchstone principle of paragraph 38(1)(c) of the IRPA. Its rationale, as stated by Justice Rosalie Abella, is that a decision-maker who "considers the need for potential services based only on the classification of the impairment rather than on its particular manifestation" will take a "generic rather than individual" approach "which attaches a cost assessment to the disability rather than to the individual. This in turn results in an automatic exclusion for all individuals with a particular disability, even those whose admission would not cause, or would not reasonably be expected to cause, excessive demands on public funds" (at para 56).

53     In assessing the reasonability of this decision on this PR Applicant, the question to ask is: did the HCC Officer assess Jordan as an individual, taking into account his particular situation or as a member of a class of persons; that is, as someone with Cerebral Palsy?

54     To conduct this analysis, this Court must examine the Plan and ask if it is evidence of a credible plan that shows that Jordan's individual circumstances will not impose an excessive demand on health and social services. In Zhang v Canada (Minister of Citizenship and Immigration), 2012 FC 1093, Justice Martineau held that an applicant arguing that paragraph 38(1)(c) of the IRPA does not apply must "provid[e] a credible plan for mitigating the excessive demand on social services in Canada" (at para 21).

55     This Court is not satisfied that the Plan is a credible and viable plan showing that Jordan's individual situation is not such that it might reasonably be expected to impose an excessive demand on health and social services.

56     The Applicant's insurance plan does not appear to provide extensive coverage for someone in Jordan's particular circumstances; a young person in the early stages of child development with Cerebral Palsy. Although it is true that "some demand" is acceptable under paragraph 38(1)(c) of the IRPA (Sokmen, above) and that the insurance plan does begin to meet some of Jordan's physiotherapy and speech thebapy costs, the insurance plan is not sufficient to meet many of Jordan's other chronic and ongoing need for highly specialized services.

57     The Plan did not discuss a multi-disciplinary development team that would assess, establish, and implement an appropriate program to meet Jordan's medical developmental needs. Contrary to the Applicant's submissions, the need for such a team assessment was discussed in the fairness letter (Morency Affidavit, Exhibit "C"at pp 1-2).

58     The letters offering financial, physical, and other support do not demonstrate a level or quality of support that could meet Jordan's highly specific needs. Perhaps the most troubling aspect of this PR Application is the HCC Officer's assessment (and the judicial review of that assessment) of the offers from the Maple Ridge community and the Applicant's extended family. It falls within the range of reasonable, acceptable outcomes to find that such expressions of support do not establish a credible and viable plan. The HCC Officer reasonably observed that these persons are not necessarily qualified to provide the professional care that Jordan needs. Although some of the letters were from persons experienced with special needs children and respite care, there is no indication that these persons had a specialized expertise working with persons with Cerebral Palsy. The undersigned member of this Court stresses that the question that should (and indeed did) control the HCC Officer's decision under paragraph 38(1)(c) of the IRPA was whether the Plan was sufficient to meet Jordan's individualized needs. In Jordan's case, it was reasonable to find that general offers of support (even if the individuals making those offers had general experience in respite care for special needs persons) would not be sufficient to meet the highly specific medical needs of a very young boy with Cerebral Palsy.

59     Although it seems pedantic, the HCC Officer was also reasonable in questioning how the sister-in-law would actually accommodate the Applicant's family, given the size of her own family.

60     In finding that the offers of support from community members and family did not discharge the onus under Zhang, above, this Court recalls the following remarks of Justice Frank Iacobucci in Canada (Director of Investigation and Research) v Southam Inc, [1997] 1 SCR 748:

 

·       [80] I wish to observe, by way of concluding my discussion of this issue, that a reviewer, and even one who has embarked upon review on a standard of reasonableness simpliciter, will often be tempted to find some way to intervene when the reviewer him- or herself would have come to a conclusion opposite to the tribunal's. Appellate courts must resist such temptations. My statement that I might not have come to the same conclusion as the Tribunal should not be taken as an invitation to appellate courts to intervene in cases such as this one but rather as a caution against such intervention and a call for restraint. Judicial restraint is needed if a cohesive, rational, and, I believe, sensible system of judicial review is to be fashioned. 

The offers of support from community members and family presented in the Plan demonstrate much that is admirable in the human condition. Unfortunately, that is not enough to practically satisfy the requirements of the IRPA and the reasonability analysis as discussed by Justice Iacobucci in Southam, above.

61     It was reasonable to conclude that the Plan was not credible and viable on the basis of the Applicant's assumptions that she and her spouse could accumulate $300,000 over 10 years after moving to a new country, that fundraising could meet Jordan's complex and extensive needs, and that members of the Maple Ridge community could meet many of Jordan's extensive needs. The measure of a plan, that is to say, its credibility, often depends on the extent and strength of its assumptions. These assumptions, unfortunately, were not particularly strong without adding specific viable detail.

 

·       (2) 

Did the HCC Officer ignore or misconstrue the evidence before him? 

62     Reviewing the final decision letter and the GCMS Notes suggests that the HCC Officer did not ignore or misconstrue the evidence. This conclusion is confirmed by the analysis of the reasonability of the HCC Officer's decision that Jordan was inadmissible to Canada because of a health condition that might reasonably be expected to cause excessive demand on health or social services. The Applicant has not pointed to any evidence that was not discussed in the final decision letter or the CGMS Notes.

 

·       X. 

Conclusion

63     For all of the above reasons, the Applicant's application for judicial review is dismissed.

JUDGMENT

THIS COURT ORDERS that the Applicant's application for judicial review be dismissed. No question of general importance for certification.

OBITER

It is recommended by the undersigned that the number of well-intentioned individuals, organizations and entities, having come forward to assist the Applicant with the care of the said child, begin the process again and that the Canadian authorities give priority to that process, recognizing the time and effort that has already been given to the voluminous documents accompanying the application for permanent residence by all involved, including the specific individuals and entities in Maple Ridge, British Columbia.

It would seem that a viable plan requires the preparation of a practical commitment on paper to ensure that it is acknowledged and understood as such by the authorities who would then make their decision thereon.

SHORE J.

IMMIGRATION APPEAL RIGHTS CONSIDERED IN DRUG TRAFFICKER CASE

Once again, the immigration consequences of criminal sentencing are considered by a court. The proposed legislative changes would change the term barring appeals from sentences of two years to six months in jail.

R. v. Harrison

Between Her Majesty the Queen, and
Cordelius Harrison

[2012] A.J. No. 939

2012 ABPC 259

Dockets: 100777747P1-01-001-011, 110065000P1-01-001-003,

110134194P1-01-001-003

Registry: Calgary

 Alberta Provincial Court

T.C. Semenuk Prov. Ct. J.

September 7, 2012.

(68 paras.)

---

Reasons for Sentence

T.C. SEMENUK PROV. CT. J.:--

Introduction

1     The Accused pled guilty to multiple offences including, two charges of trafficking cocaine, possession of cannabis marihuana, two charges of breach of recognizance, conspiracy to commit a robbery/home invasion, and two more charges of breach of recognizance.

2     The matter is before the Court for disposition.

3     The issue is a fit global sentence.

4     For the reasons that follow, absent time spent in pre-trial custody, the Accused is sentenced to a global sentence of 36 months' imprisonment.

Facts

5     The Accused is charged in three separate Informations as follows:

 

·       Information Docket Number ending with 747

 

	Count 1:		On or about the 8th day of June, 2010, at or near Calgary, Alberta, did unlawfully traffic in a controlled substance, to wit: cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act.
	Count 4:		On or about the 8th day of June, 2010, at or near Calgary, Alberta, being at large on his recognizance entered into before a justice and being bound to comply with a condition of that recognizance requiring him to 5. You will keep a curfew and remain in your home or on its grounds between the hours of 9:00 PM and 7:00 AM seven (7) days per week, did fail without lawful excuse to comply with that condition, contrary to Section 145(3) of the Criminal Code of Canada.
	Count 6:		On or about the 18th day of June, 2010, at or near Calgary, Alberta, did unlawfully traffic in a controlled substance, to wit: cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act.
	Count 8:		On or about the 18th day of June, 2010, at or near Calgary, Alberta, being at large on his recognizance entered into before a justice and being bound to comply with a condition of that recognizance requiring him to 1. You will keep the peace and be of good behaviour, did fail without lawful excuse, to comply with that condition, contrary to Section 145(3) of the Criminal Code of Canada.
	Count 9:		On or about the 28th day of June, 2010, at or near Calgary, Alberta, did unlawfully possess a controlled substance to wit: cannabis marijuana in an amount not exceeding thirty grams, contrary to Section 4(1) of the Controlled Drugs and Substances Act.

 

·       Information Docket Number ending with 000

 

Count 3:

On or about the 15th day of December, 2010, at or near Calgary, Alberta, being at large on his recognizance entered into before a justice and being bound to comply with a condition of that recognizance requiring him to 14. You are prohibited from buying, having in your possession, using or consuming intoxicating substances, including alcohol and any drug not prescribed for you by a doctor or dentist except over the counter medication, did fail without lawful excuse, to comply with that condition, contrary to Section 145(3) of the Criminal Code of Canada.

 

·       Information Docket Number ending with 194

 

	Count 1:		On or about the 20th day of December, 2010, at or near Calgary, Alberta, did unlawfully conspire together, each with the other and others of them, and with some person or persons unknown to commit the indictable offence of robbery / home invasion, contrary to Section 465(1)(c) of the Criminal Code of Canada.
	Count 2:		On or about the 20th day of December, 2010, at or near Calgary, Alberta, being at large on his recognizance entered into before a justice and being bound to comply with a condition of that recognizance requiring him to 1) keep the peace and be of good behaviour, did fail without lawful excuse, to comply with that condition, contrary to Section 145(3) of the Criminal Code of Canada.
	Count 3:		On or about the 20th day of December, 2010, at or near Calgary, Alberta, being at large on his recognizance entered into before a justice and being bound to comply with a condition of that recognizance requiring him to 5) remain in your home or its grounds 24 hours a day 7 days a week, did fail without lawful excuse, to comply with that condition, contrary to Section 145(3) of the Criminal Code of Canada.

6     The facts in this case were adduced by way of two written Agreed Statement of Facts, marked in evidence as Exhibits 1 and 2 as follows:

 

· Information Docket Number ending with 747 and 000

 

·       The following facts are admitted by the accused, Cordelius Harrison ["Harrison"], without the necessity of calling evidence, pursuant to Section 655 of the Criminal Code.

 

·       Information 100777747P1:

 

	1.		On June 8, 2010, at approximately 11:22 p.m., Calgary Police Service ["CPS'] officer Constable Chichak, who was acting in an undercover capacity, called a cellular telephone number, 403-[...]-1125, and engaged in a drug related conversation. After speaking with an unknown woman, Constable Chichak was directed to attend at the corner of 24th Avenue and Rundlehorn Drive N.E., in the City of Calgary, Alberta, and to meet with "a black guy".
	2.		Constable Chichak was driving an unmarked police vehicle. At approximately 11:26 p.m., at the corner of 24th Avenue and Rundlehorn Drive N.E., Chichak, observed a black man who was later identified to be Harrison.
	3.		Harrison entered the front seat of the vehicle being driven by Constable Chichak. Chichak and Harrison engaged in a drug related conversation. Harrison provided Chichak with 0.4 grams of a substance later determined to be crack cocaine for the sum of 100 Canadian dollars.
	4.		The interaction on June 8, 2010, was observed by undercover members of the CPS, including Sergeant Bossley, Constable Christie and Constable Lynch. Harrison was positively identified in a photographic lineup by Constable Chichak on June 28, 2010.
	5.		On June 8, 2010, Harrison was bound by a Recognizance, bearing the identifier Number 090221359P1-01-001, which included, amongst other conditions, the following condition:

 

5.

You will keep a curfew and remain in your home or on its grounds between the hours of 9:00 p.m. and 7:00 a.m., seven (7) days per week.

 

	6.		On June 18, 2010, CPS Constable Krueger, while acting in an undercover capacity called a cellular telephone number, namely (403) xxx-1125, and spoke to an unknown male about purchasing $100.00 worth of crack cocaine. She was directed to the intersection of Rundlehorn Drive and 26th Avenue N.E., in the City of Calgary, to meet for purposes of obtaining the crack cocaine.
	7.		At approximately 3:55 p.m., on June 18, 2010, Constable Krueger arrived at the meet location in a taxi. She called the (403) xxx-1125 number and was told the male would arrive in a few minutes. At approximately 3:59 p.m., Harrison arrived at the meet location.
	8.		Harrison and Krueger engaged in a drug related conversation and then Harrison provided Krueger with a substance he held out to be crack cocaine for the sum of $100 Canadian dollars.
	9.		Following the transaction, Krueger, examined the substance and determined that it was not crack cocaine and in fact, believed to be soap.

 

	10.		The interaction on June 18, 2010, was observed by undercover members of the CPS including Constable Chichak, Constable Christie and Constable Lynch. Harrison, was positively identified in a photographic lineup by Constable Krueger on June 28, 2010.
	11.		On June 18, 2010, Harrison was bound by a Recognizance, bearing the Identifier Number 090221359P1-01-001, which included, amongst other conditions, the following condition:

 

1.

You will keep the peace and be of good behaviour.

 

	12.		On June 28, 2010, at approximately 3:54 p.m, members of CPS, acting in an undercover capacity, were surveilling at a residence located at [...] Rundlehorn Drive N.E., in the City of Calgary, Alberta. Constable Christie observed Harrison leave the residence and enter a green 2005 Hyundai Elentra vehicle bearing the licence plate number [...] 941. Because Harrison was wanted for the drug trafficking offences that had occurred on June 8, 2010, and June 18, 2010, the vehicle was followed.
	13.		At 4:38 p.m., Constable Christie directed uniformed officers, Constable Cumming and Constable Kennedy to stop the Hyundai vehicle and arrest Harrison for the drug trafficking offences.
	14.		A search of Harrison, incident to his arrest produced 1.8 grams of marijuana and a cellular telephone located on the passenger seat in a male shoulder bag.
	15.		On June 28, 2010, Harrison was bound by a Recognizance, bearing the identifier number 090221359P1-01-001, which included, amongst other conditions, the following condition:

 

5.

You will keep a curfew and remain in your home or on its grounds between the hours of 9:00 p.m. and 7:00 a.m., seven (7) days per week.

 

·       Information 110065000P1:

 

	16.		On December 15, 2010, at approximately 0:47 a.m., Constable Adaikin observed a red Acura Integra vehicle with the licence plate [...] 642 enter a parking lot at the area around 10th Avenue and 4th Street S.W. Calgary, Alberta. The Acura had a burnt out front head light.
	17.		As Constable Adaikan approached the vehicle, he detected a strong smell of burnt marijuana. He observed a marijuana cigarette in the front seat middle console. He arrested the occupants of the vehicle which included Harrison, who was a passenger in the vehicle. Harrison was noted to smell of alcohol. Harrison was noted to have an unsteady gait when asked to exit the vehicle.
	18.		On December 15, 2010, Harrison was bound by two Recognizances, bearing the Identifier Numbers 090221359P1-01-001, and 100777747P1, which included, amongst other conditions, the following condition:

 

8.

You are prohibited from buying, having in your possession, using or consuming alcohol, intoxicating or any drug not prescribed for you by a doctor or a dentist.

 

·       Information Docket Number Ending with: 194

 

·       FOR THE PURPOSE of dispensing with the need to call evidence in a trial or at this sentencing, the Accused and Crown admit to the following facts to support the guilty plea and for The Honourable Court to pass an appropriated and just sentence:

 

	1.		On October 28th, 2010, the Honourable Justice M.C. Erb, authorized the lawful interception of Murtaza Mohammad's communications for murder and for conspiracy to robbery and break and enter. The Authorization expired on December 26th, 2010.
	2.		On December 19th, 2010, at approximately 22:50:29 MST hours, the Calgary Police Service intercepted a private communication between Murtazza Mohammad (using cellular telephone (403) xxx-8261) and Maung Zaw [AKA 'Tizle' or 'Tizo'] and Cordelius Harrison [AKA "T.J."], using (403) xxx-2368. The following is a summary of the pertinent portions of the conversation:

 

	a.		Mohammad said that the 'Big Black Guy' [referring to Anthony Merah] has a house for them to do in the next few days;
	b.		Harrison said that he is in and that he will bring some tools. Harrison added that it will be him, Mohammad, Tizle [Zaw] and Tony [Merah].
	c.		Harrison said, everybody's gonna bring a strap, everybody's gonna be strapped ... and he will make sure everybody has a bullet proof vest just in case.
	d.		Mohammad said that there was $20,000 inside the house.

 

	3.		"Strap' means firearm and "strapped" means carrying a firearm.
	4.		On December 20th, 2010, at approximately 1937 hours, the Calgary Police Service intercepted a private communication between Murtaza Mohammad using (403) xxx-8261 and Anthony Merah [AKA "Tony"]. The following is a summary of the pertinent portions of the conversation:

 

	a.		Merah told Mohammad he would show him the house he was talking about after Mohammad got off work;
	b.		Mohammad said that they will go tonight along with Tizle and TJ. T.J. was trying to look for some more 'pieces' so they could all go in strapped and bullet proof vests;
	c.		Merah said that four was enough and so no other people were needed.

 

5.

On December 20, 2010, at approximately 2030 hours the Calgary Police Service intercepted a private communication between Murtaza Mohamad using (403) xxx-8261 and Maung Zaw [AKA "Tizle"]. The following is a summary of the pertinent portions of the conversation:

 

	a.		Mohammad told Zaw there is a house with $20,000 and shit inside and that is why he needs to get a hold of T.J. [Harrison], and the four doing the house tonight;
	b.		Mohammad said he will get his gun from his car at home and Zaw said, you bring yours, and we will bring ours just in case.

 

6.

On December 20th, 2010, at approximately 2043 hours, the Calgary Police Service intercepted a private communication between Murtaza Mohammad using (403) xxx-8261 and Maung Zaw. The following is a summary of the pertinent portions of the conversation:

 

a.

Mohammad told Zaw the house is in the Northwest and that there might be people inside. Mohammad further states that they will send T.J. [Harrison] and Tony [Merah] in the house, but that Mohammad and Zaw will get the money. After further discussion, they stick to the original plan of all going in, but that if somebody fucks around he [Zaw] will pull the trigger and Mohammad agreed.

 

	7.		On December 20th, 2010, at approximately 2210 hours, Calgary Police watched Murtaza Mohammad leave his job at the Shell Gas Station and drive in a Honda Odyssey van to Mike's Billiards on 32nd Ave. N.E., Calgary, AB.
	8.		At 2240 hours on the same date (30 minutes later), a red Integra arrived in the parking lot with a large black male and three unknown males.
	9.		At 2252, Murtaza Mohammad got into the back seat of the red Integra. A minute later, Calgary Police watch the red Integra leave the parking lot and drive in tandem with the Honda Odyssey van.

 

	10.		Calgary Police followed the two vehicles until members of the TAC team stopped both vehicles at 2301 hours at Beddington Trail and Deerfoot Trail N.E. Police believed the direction would be consistent with the route to be taken to arrive at the home of Murtaza Mohammad. The vehicles were driving in tandem throughout the police surveillance to the time of the traffic stop.
	11.		Driving the Honda Odyssey van was Murtaza Mohammad and Anthony Merah [Tony] was in the front passenger seat. Merah was described as a large black male.
	12.		Driving the red Integra, and stopped right in front of the Honda Odyssey van, was Maung Zaw [Tizle], and in the passenger seat was Cordelius Harrison.
	13.		Found in the vehicle was directions to a house in the Northwest of Calgary and two black and white bandanas.
	14.		Harrison was searched incidental to detention and an air hand gun that looks the same as a Glock semi-automatic handgun used by the Calgary Police Service was found in the front of his jacket he wore. Also found on Harrison was a folding knife, red bandanas and cell phone.
	15.		Cordelius Harrison was bound by two Recognizances at the time of his arrest, under docket numbers 090221359P1 and 100777747P1. The Recognizances had multiple conditions that included a curfew condition and prohibition for having a weapon and firearms prohibitions.
	16.		On January 19th, 2011, Anthony Merah was interviewed by Calgary Police Service and gave a full account of what he and his co-conspirators were intending to do that evening, which was to break and enter into a home and steal $20,000 and drugs.
	17.		Cordelius Harrison has a criminal record, which is attached, that shows a robbery under 344(b), causing a disturbance and assault in 2007 as a youth, and fourteen breaches under 145(3) between then and July 12th, 2011.

7     Sentencing in this case started with the Court being told that it was being presented with a joint submission by Crown Counsel and Defence Counsel at the time, P. Flynn.

8     The joint submission put before the Court was as follows:

 

·       Information Docket Number ending with 747

 

	Count 1 -	Trafficking Cocaine
		30 months' imprisonment

 

	Count 4 -	Breach of Recognizance
		15 days' imprisonment

 

	Count 6 -	Trafficking Cocaine
		20 months' imprisonment

 

	Count 8 -	Breach of Recognizance
		15 days' imprisonment

 

	Count 9 -	Possession of Cannabis Marijuana
		30 days' imprisonment

9     The sentence for each offence to run concurrently, but consecutive to any other sentence.

 

·       Information Docket Number ending with 000

 

	Count 3 -	Breach of Recognizance
		30 days' imprisonment

10     The sentence imposed is to run concurrently to any other sentence.

 

·       Information Docket Number ending with 194

 

Count 1 -

Conspiracy to commit robbery / home invasion 6 months' imprisonment

 

	Count 2 -	Breach of Recognizance
		6 months' imprisonment

 

	Count 3 -	Breach of Recognizance
		6 months' imprisonment

11     The sentence imposed for each offence to run concurrently, but consecutive to any other sentence.

12     The global sentence in this case, absent time spent in pre-trial custody, was to be 36 months' imprisonment.

13     During the course of submissions made by Defence Counsel, P. Flynn, the Court inquired if the Accused was a Canadian citizen. The Court was told by Defence Counsel that the Accused was a permanent resident, originally from Liberia. The Court then advised Defence Counsel that if the joint submission for a global sentence of 36 months' imprisonment, absent time spent in pre-trial custody, was accepted, as a factor in sentencing, the Court may consider that the Accused would be subject to an automatic deportation order, without a right of appeal, pursuant to Section 64 of the Immigration and Refugee Protection Act.

14     In the subsequent exchange between the Court and Defence Counsel, it became apparent that Defence Counsel was under the mistaken understanding that it was the actual sentence resulting, after time in custody was credited to the Accused, that governed the application of Section 64 of the Act, and not the effective sentence, absent time spent in pre-trial custody.

15     After an adjournment was granted so Defence Counsel could consider his position in law, the Court was asked by Defence Counsel to order a Pre-Sentence Report (PSR), and adjourn the sentence hearing.

16     During the course of the adjournment, and prior to the preparation of the PSR, Defence Counsel tried, unsuccessfully, to have the global sentencing for Provincial and Federal matters split by other members of this Court.

17     When the matter was next before this Court, Defence Counsel made the same application to have the matters split for sentencing purposes. That application was refused, and the Court was alerted by Defence Counsel that he may be making a submission, after the preparation of the PSR, that was contrary to the joint submission already put to the Court.

18     When the matter was spoken to next, Defence Counsel, P. Flynn, made an application to withdraw as Counsel of record for the Accused. That application was granted, and Ms. Przepiorka, appeared as agent for Defence Counsel, R. Snukal, to have her now come on as Counsel of record for the Accused.

19     When the matter was spoken to next, Defence Counsel, R. Snukal appeared as Counsel for the Accused. She advised the Court that the Accused may need the wisdom and experience of an Immigration lawyer in the circumstances of this case and that she had communicated with B. Harsanyi, to possibly come on the record as Counsel for the Accused. She also alerted the Court to the possibility of an application being made to withdraw the guilty pleas, and the case was adjourned.

20     When the case was spoken to next, Defence Counsel, R. Snukal, advised the Court that both she and B. Harsanyi would appear as co-counsel for the Accused, and there would be no application made to withdraw the guilty pleas. Rather, the sentence hearing would resume with Defence Counsel backing away from the joint submission already made, and reliance placed on the PSR, marked in evidence as Exhibit 4.

21     The Court then asked both Crown Counsel, Ms. Spaner and Mr. Parker, if their position on the guilty pleas on the charges before the Court, and the sentence to be imposed would change, absent the joint submission. The Court was told that, despite the backing away from the joint submission by new Defence Counsel, the Crown's position on the guilty pleas on the charges before the Court and the suggested global sentence of 36 months', absent time spent in pre-trial custody, would not change.

Issue

22     There being no joint submission in this case, the issue is a fit global sentence.

Law and Analysis

Position of the Crown

23     The Court was referred to the following authorities by Crown Counsel: R. v. Maskill, 1981 A.J. No. 907; R. v. Rahime, 2001 ABCA 203; and R. v. Pham, 2012 ABCA 203.

24     Crown Counsel submit, that a fit global sentence for all offences, absent time spent in pre-trial custody, is 36 months' imprisonment.

25     Crown Counsel submits, that the automatic deportation order, without a right of appeal, pursuant to Section 64 of the Act, is an intended consequence of sentencing the Accused in this case.

26     Ms. Spaner, for the Federal Crown, submits that on Counts 1, 4, 6, 8, and 9, contained in Information Docket Number ending 747, and on Count 3 in Information Docket Number ending 000, a global sentence under 30 months' imprisonment, absent time spent in pre-trial custody, would be unfit considering the circumstances of the offences and the offender in this case.

27     Mr. Parker, for the Provincial Crown, submits that a fit global sentence on Counts 1, 2, and 3, contained in Information Docket Number ending 194, absent time spent in pre-trial custody, is six (6) months' imprisonment, consecutive to any other sentence, having regard to the totality principle.

Position of the Defence

28     Defence Counsel referred the Court to the following authorities: Rahime, supra ; R. v. Taleb, 2002 ABPC 130; R. v. Shaw 2004 ABPC 217; R. v. Daskalov, 2011 BCCA 169; and R. v. Marshall , 2012 ABCA 160.

29     Defence Counsel submits, that a fit global sentence on Counts 1, 4, 6, 8, and 9, contained in Information Docket Number ending 747 and Count 3 in Information Docket Number ending 000, absent time spent in pre-trial custody, is two (2) years' less one (1) day imprisonment.

30     Defence Counsel submit that a fit global sentence on Counts 1, 2, and 3, contained in Information Docket number ending 194, absent time spent in pre-trial custody, is between six (6) and fourteen (14) months' imprisonment. Mr. Harsanyi submits that a sentence of twelve (12) months' in the circumstances of this case would be fit.

31     The global sentence for all offences, absent time spent in pre-trial custody, to run consecutively.

32     Mr. Harsanyi, on behalf of the Accused, submits that it is at least arguable that so long as it is clear on the record that if the effective global sentence for the charges contained in each Information does not exceed two years', the Accused would not lose his right to appeal any deportation order made pursuant to Section 64 of the Act, despite the fact that the effective global sentence for all offences, absent time spent in pre-trial custody, would be three (3) years' less one (1) day imprisonment.

Range of Sentence for Trafficking Cocaine

33     It is well established in Alberta that the starting-point sentence for trafficking cocaine is three (3) years' imprisonment. See: Maskell and Rahime, supra. The starting-point sentence assumes the Accused is of prior good character with no prior criminal record. A lesser sentence that dips into the Conditional Sentence Order (CSO) range may be justified depending on the circumstances of the offence and the offender and the aggravating and mitigating circumstances in the case. See: Taleb, Shaw, and Marshall, supra. The sentencing principles of denunciation and deterrence are primary considerations in the sentencing process.

34     I would note in passing that this Court in R. v. Hamilton, 2008 ABPC 159, imposed a sentence of 15 months' imprisonment on a youthful, drug addicted Accused on one charge of possession of cocaine for the purpose of trafficking. The Accused in that case had a dismal PSR, and a substantial criminal record, including three prior drug related convictions, two of those involving crack cocaine.

35     I would also note in passing that this Court in R. v. Aden 2010 ABPC 220, granted a two years' less one day CSO to a youthful, first offender, on two charges of trafficking cocaine, the second charge being a " holding out" scenario, where the Accused admitted that he honestly believed the substance he held out to the undercover officer was crack cocaine. He was not just trying to perpetrate a fraud and the offence was not treated in a far less serious way for sentencing purposes.

 

·       Range of Sentence for Conspiracy to Commit Robbery / Home Invation

36     This Court is alive to the Decision of the Alberta Court of Appeal, in R. v. Matwiy, (1996) 105 CCC (3d) 251, wherein the Court at pp. 263 - 264 stated as follows:

 

·       We consider the following features to be the basic, essential features of a "home invasion" robbery to which this guideline applies. A mature individual with no prior record,

 

	(a)		plans to commit a home invasion robbery (although the plan may be unsophisticated), and targets a dwelling with intent to steal money or property, which he or she expects is to be found in that dwelling or in some other location under the control of the occupants or any of them;
	(b)		arms himself or herself with an offensive weapon;
	(c)		enters a dwelling, which he or she knows or would reasonably expect is occupied, either by breaking into the dwelling or by otherwise forcing his or her way into the dwelling;
	(d)		confines the occupant or occupants of the dwelling, even for short periods of time;
	(e)		while armed with an offensive weapon, threatens the occupants with death or bodily harm; and
	(f)		steals or attempts to steal money or other valuable property.

The starting-point for sentences for a home invasion robbery as we have defined it, should be eight years.

 

·       The use of actual force against the occupants, the causing of injuries to any of them, a prolonged detention, terrorization, the discharge of firearms, gang activity or acting in concert with others, prior record for violent offences, the theft of substantial sums of money or valuable property, are all considered to be aggravating factors.

 

·       Some examples of mitigating factors might include the youthfulness, or other circumstances of the offender, a lack of planning, or an early guilty plea.

 

·       As other cases where this court has established starting-points for sentences, we have reached this conclusion after considering the increasing frequency of this type of offence in this community, the need to deter the accused and others from committing such offences, and the importance of the denunciation of the offence by the society and the court. Of course, in deciding on the sentence to be imposed, the sentencing judge will consider not only the starting-point, but also any aggravating or mitigating circumstances specific to that case. 

37     The Court appreciates that in this case the charge is one of conspiracy to commit a robbery/home invasion, but it is to be noted that pursuant to Section 465 (1)(c) of the Criminal Code, the Accused is liable to the same punishment as that to which an Accused is guilty of the substantive offence.

38     That being said, in sentencing for conspiracy to commit robbery/home invasion, Crown Counsel, Mr. Parker, submitted that given the starting-point for the full offence is eight (8) years' imprisonment, the general range of sentence in the authorities has been somewhere between six to eight (6-8) years'. He submitted that given the full offence was not committed, the sentence for conspiracy to commit the offence, can be reduced to somewhere between three to four (3-4) years' imprisonment. Being mindful of the parity principle, he then drew the Court's attention to a few recent unreported cases in Alberta, where on a joint submission, the sentences ranged between fourteen (14) months' and four and half (4 1/2) years' imprisonment, depending on the role played by the Accused in the conspiracy, and the other aggravating and mitigating circumstances in the case. He submitted that in the circumstances of this case, a fit sentence for the Accused would be fourteen (14) months' imprisonment, however, if that sentence is to run consecutive to any other sentence imposed for other offences in this case, it should be reduced to six (6) months' imprisonment, having regard to the totality principle.

39     I accept Mr. Parker's analysis in arriving at a fit sentence for the conspiracy to commit robbery/home invasion offence in the circumstances of this case.

40     I am fortified in that conclusion by my review and consideration of the range of sentences imposed for conspiracy to commit robbery/home invasion in the following authorities not cited by Counsel: R. v. Binns, 2009 Carswell Ont 8970 (OSCJ); R. v. Dao, 2010 Carswell Ont 5222 (ONCJ); R. v. Rhidar, 2010 Carswell Ont 7454 (ONCJ); R. v. Tran, 2010 ONCA 471; and R. v. Cromarty, 2010 Carswell Yukon 138 (YKTC).

Immigration Consequences

41     In Pham, supra, McDonald, J., delivering the majority Judgment at paras. 16 - 26, stated as follows:

 

[16]

Parliament has enacted the Immigration and Refugee Protection Act. That legislation provides, inter alia, at Section 64 as follows:

 

·       64(1) No appeal for inadmissibility

 

·       No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminally or organized criminality.

 

·       64(2) Serious criminality

 

·       For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.

 

[17]

As this Court stated in R. v. Belenky, 2010 ABCA 98, 477 AR 354 at para 20:

 

·       The factor of the collateral consequence of deportation can be given at most very limited weight. It cannot by itself remove a sentence from what would otherwise be the appropriate range. At most it can serve to move the sentence a small amount, nothing more.

 

	[18]		In Belenky, this Court allowed the Crown appeal and increased the sentence to two and one-half years on each count to be served concurrently, notwithstanding the effects of Section 64 of the Immigration and Refugee Protection Act upon the appellant.
	[19]		Reference should also be made to the British Columbia Court of Appeal Decision R.v. Kanthasamy, a 2005 BCCA 135, 210 BCAC 54. In that case the appellant (who was a permanent resident of Canada but a citizen of Sri Lanka) had been convicted of a sexual assault and lawful confinement. He had been sentenced to three months concurrent imprisonment on each count, which after receiving double credit for the ten and one-half months he had spent in pre-trial custody, resulted in an effective sentence of two years.
	[20]		On appeal, the British Columbia Court of Appeal allowed his appeal and substituted for the sentence of two years that had been imposed, a sentence of two years less a day, stating that such a variation "... does no violence to the sentence imposed by the trial judge and avoids an unintended consequence of great significance" (at para 23).
	[21]		With respect, the plain and unequivocal language of a statute passed by the Parliament of Canada cannot amount of "an unintended consequence of great significance."
	[22]		As the Supreme court of Canada stated in Medovarski v Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 SCR 539 at para 46:

 

·       The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada: Chiarelli v Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p.733. Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter Rights and Freedoms.

 

	[23]		Furthermore, it would be a strange and unfortunate legal system wherein a non-citizen could expect to receive a lesser sentence than a citizen for the same crime. No such distinction should be countenanced.
	[24]		The appellant abused the hospitality that has been afforded to him by Canada, particularly in light of the fact that he learned nothing from his prior encounter with the criminal justice system. It would not be appropriate to fly in the face of a proper and acceptable joint submission regarding sentence under the circumstances of this case in order to undermine the provisions of the Immigration Refugee Protection Act.
	[25]		Given the appellant's prior convictions, the provisions of the Immigration Refugee Protection Act cannot amount to "an unintended consequence of great significance" such as to warrant even the seemingly minor variation to sentence that the Crown was prepared to concede in this case relating to these convictions.
	[26]		This Court in R. v. Duhra, 2011 ABCA 165, 505 AR 248 and R. v. Barkza, 2011 ABCA 273, 513 AR 333, allowed appeals whereby a sentence of two years was reduced to two years less a day due to the ramifications of the Immigration and Refugee Protection Act. It is noteworthy to point out, however, that in neither case had the appellant a prior criminal record. Accordingly, these decisions have no applicability to the case at bar.

Circumstances of the Accused

42     The Accused's background is fully documented in the PSR. He is now 23 years of age. At the time of the commission of the offences in this case, he was 20-21 years of age. He was born in the Republic of Liberia, and has four siblings. As a result of civil unrest and war in Liberia, his mother brought him and his siblings to Canada when he was 10 years of age. When he was 16 years of age, his mother revealed to him that his father had been murdered in Liberia. At the present time, the Accused has permanent resident status in Canada.

43     After moving to Canada, the Accused and his siblings were raised by his mother. The family struggled financially. When the Accused was 13 years of age, he and his youngest sister were apprehended by Child and Family Services, and he has not seen her since.

44     The Accused left home when he was 18 years of age to reside with a friend. At 21 years of age, the Accused moved back to live with his mother.

45     The Accused has a girlfriend, and they have a four year old daughter together. When he is not in custody, he supported his girlfriend and his daughter financially. He has not seen his daughter since being detained in custody. He is still committed to his relationship with his girlfriend and daughter. Despite his involvement in the criminal justice system, his mother remains supportive of him, and she was present in Court throughout the sentence hearing. He also has a positive relationship with his two older brothers and sister. The Accused also has the support of Bishop Curtis Daine of the Church of Jesus Christ of Latter Day Saints, who visited him in custody once every two months.

46     The Accused has completed grade 10 and some of grade 11. He wants to complete his high school education, and go on to university for a Bachelors degree in Business Administration. He has worked in the service industry as shipper receiver. He has not maintained any steady employment since he was 21 years of age and detained in custody.

47     The Accused felt it difficult to adjust to living in Canada. He experienced racism and was bullied as a youth. He found it difficult to cope without a father and his youngest sister. At age 15, he began associating with a negative peer group and skipping school. He also began experimenting with drugs. He first used marihuana at age 15. At age 18, he started to use cocaine, crack cocaine, oxycontin and ecstasy. He became addicted to cocaine and oxycontin. He hid his addiction from his family. He became fixated on obtaining the drugs which contributed to his criminal behaviour. The Accused comes before the Court with a substantial criminal record marked in evidence as Exhibit 3 as follows:

Sentencing Principles

48     As in all sentencing cases, the ultimate disposition for an offender must reflect on the fundamental purpose and all the principles of sentencing provided for in Section 718 of the Criminal Code, and in this case, Section 10(1) of the Controlled Drugs and Substances Act (CDSA). The sentence must be in accordance with the fundamental principle of proportionality found in Section 718.1 of the Code. See: R. v. Arcand, 2010 ABCA 263. As well, the sentence, in accordance with Section 718.2 of the Code, and in this case, Section 10(2) of the CDSA, must account for any relevant aggravating and mitigating circumstances tailored to fit the individual before the Court. "Individualized" sentencing, as opposed to "tariff" sentencing, has been endorsed by the Supreme Court of Canada, in R. v. McDonnell, (1997) 1 SCR 948 and R. v. Proulx, (2000) 140 CCC (3d) 449. Finally, in accordance with Section 718.2(b), (c), (d) and (e) of the Code, there should be parity in sentencing similar offenders for similar offences; a global sentence should not be excessive; the least restrictive sentence should be imposed; and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered.

49     That being said, the aggravating and mitigating circumstances in this case are as follows:

 

·       Aggravating Circumstances

 

·       1. 

As to the charges of trafficking cocaine, the nature of the drug involved in this case is serious. Crack cocaine is a very dangerous and highly addictive hard drug. It is responsible for much derivative property and violent crime in the community. 

·       2. 

The fact of there being 2 separate drug transactions on different dates is aggravating. 

·       3. 

The prevalence of this type of offence in the community, particularly involving the ease of use at street level dial-a-dope commercial drug trafficking, is aggravating. Although there is some suggestion in the PSR, and the submissions of Defence Counsel, that the Accused was addicted to crack cocaine at the time of the offences; I am not satisfied on all the material presented to the Court during the sentence hearing that was the case. He was in it for profit. 

·       4. 

Pursuant to Sections 10(2)(a)(iii) and 10(2)(b) of the CDSA, there are two statutory aggravating factors in this case. The Court was told by Crown Counsel that both trafficking offences took place near Rundlehorn Dr. and 50th Ave., N.E., where three schools are located in the immediate area. As well, the fact that the Accused comes before the Court with three prior convictions for designated substance offences, two of them involving Schedule I substances, and one of those being possession for the purpose of trafficking cocaine. 

·       5. 

Both trafficking offences took place while the Accused was on bail, bound by two Recognizances with a curfew condition and condition to keep the peace and be of good behaviour. 

·       6. 

As to the conspiracy to commit a robbery/home invasion, the nature of the offence is serious. According to the facts admitted, this was a planned and deliberate offence that was to occur at night on the date in question. Four individuals, including the Accused, were to invade a private residence in northwest Calgary, where they expected to find $20,000 and drugs. Although they did not know for sure if the residence would be occupied at the time, they were all to be "strapped" with a firearm, and wearing bullet proof vests. 

·       7. 

Although the Accused was not the "mastermind" behind the offence, he was to provide "muscle" in the commission of the offence. According to the facts admitted, when the vehicle occupied by the Accused was intercepted by police on the way to the residence, the Accused was found to be in possession of an air handgun that looks the same as a Glock semi-automatic handgun used by the CPS, as well as a folding knife, red bandana, and cell phone. At the time, the Accused was on bail and bound by two Recognizances including a curfew condition, and prohibition from having a weapon, and a firearms prohibition. 

·       8. 

The Accused comes before the Court with a substantial criminal record including related convictions for robbery, assault, theft and breaching Court Orders. 

·       9. 

As to the charge of possession of cannabis marihuana, I note that the Accused has one prior conviction for possession of a Schedule II substance in 2010, that being cannabis marihuana. 

·       10. 

The PSR adduced in evidence in this case is not positive. The Accused has demonstrated by his record for breaching Court Orders, and committing other substantive offences while on bail, that he is not a suitable candidate for community supervision. 

 

·       Mitigating Circumstances

 

·       1. 

As to all charges, the Accused has entered guilty pleas to the offences. 

·       2. 

As to the two cocaine trafficking offences, I take into account the relatively small quantity and value of the substance sold. I also take into account the fact that the second offence only involved a substance "held out" to be cocaine, and that the undercover officer, following the transaction, examined the substance and readily determined that it was not crack cocaine and believed it to be soap. 

·       3. 

As to the cannabis marihuana possession offence, I take into account the relatively small quantity and value of the substance. 

·       4. 

As to the conspiracy to commit robbery/home invasion, I take into account that the Accused played no part in masterminding the offence. 

·       5. 

I accept the fact that despite his substantial criminal record, the Accused is still a youthful offender, and that he has the continued support of his family. 

·       6. 

I take into account the Accused's unfortunate background outlined in the PSR, with his family's escape from the civil unrest and war torn Republic of Liberia, the murder of his father in Liberia, and the permanent loss of his youngest sister, after she was apprehended by Child and Family Services in Calgary. I also take into account his difficulties in adjusting to life in Canada, and the financial and other struggles his mother had to endure in trying to care of herself, and her four children, alone in a strange country. 

Pre-trial Custody

50     As a factor in sentencing, I also take into account the time the Accused has spent in pre-trial custody. As at the date of sentencing, the Accused has a pre-trial custody credit of approximately 19 months.

Disposition

51     As to the two charges of trafficking cocaine, the Court has given much thought and serious consideration to the submissions of Crown and Defence Counsel both in terms of the fitness of sentence for these offences, as well as the immigration consequences that may flow as a result of the Court accepting the Crown submission.

52     I have come to the conclusion that any sentence under two (2) years' imprisonment for those offences in all the circumstances of this case would not be fit essentially for the same reasons stated by the Alberta Court of Appeal in R. v. Belenky, 2010 ABCA 98.

53     My Decision in Hamilton, supra, is distinguishable from this case for four reasons. Firstly, the Accused in that case pled guilty to a single charge of possession of cocaine for the purpose of trafficking. Secondly, although the Accused in that case also had three prior drug convictions, his prior conviction for trafficking, unlike the Accused in this case, involved a Schedule II substance, cannabis marihuana, not crack cocaine. Thirdly, the Accused in that case was addicted to crack cocaine at the time of the commission of the offence. Fourthly, the Accused in this case has a more substantial criminal record.

54     My Decision in Aden, supra, is also distinguishable from this case on the basis that the Accused had no prior criminal record.

55     Indeed, when looking at those cases decided in Rahime, supra, where a sentence of less than two years' imprisonment was imposed, the individual Accused had no criminal record, an unrelated Youth Court record, or an unrelated criminal record.

56     The fact that the Accused in this case has three related drug convictions, and that he had already received the benefit of a 12 month CSO for possession of cocaine for the purpose of trafficking, simply cannot be ignored.

57     This fact is also significant in so far as this Court's consideration of the immigration consequences to the Accused.

58     This case has much in common with the Decision of the Alberta Court of Appeal in Belenky, supra, where the Court found error in the imposition of a sentence of two (2) years less one (1) day imprisonment and eighteen (18) months' probation on two charges of trafficking cocaine to avoid the immigration consequences of Section 64 of the Act. The Accused had a prior related conviction for trafficking cocaine. The Court increased the sentence to two and a half (2 1/2) years' imprisonment, because the trial judge erred in principle by ignoring or giving insufficient weight to the importance of specific deterrence in the case, and by giving more than nominal weight to the collateral consequence of deportation that would result from a penitentiary sentence.

59     Accordingly, considering the circumstances of the offences and the offender, the fundamental purpose and all the principles of sentencing, the aggravating and mitigating circumstances in the case, the Accused is sentenced as follows:

 

·       Information Docket Number ending with 747

 

	Count 1 -	Trafficking Cocaine
		30 months' imprisonment

 

	Count 4 -	Breach of Recognizance
		15 days' imprisonment

 

	Count 6 -	Trafficking Cocaine
		20 months' imprisonment

 

	Count 8 -	Breach of Recognizance
		15 days' imprisonment

 

	Count 9 -	Possession of Cannabis Marihuana
		30 days' imprisonment

60     The sentence imposed for each offence to run concurrently, but consecutive to any other sentence.

 

·       Information Docket Number ending with 000

 

	Count 3 -	Breach of Recognizance
		30 days' imprisonment

61     The sentence imposed for this offence is to run concurrently to any other sentence.

 

·       Information Docket Number ending with 194

 

Count 1 -

Conspiracy to commit robbery / home invastion 6 months' imprisonment

 

	Count 2 -	Breach of Recognizance
		6 months' imprisonment

 

	Count 3 -	Breach of Recognizance
		6 months' imprisonment

62     The sentence imposed for each offence to run concurrently, but consecutive to any other sentence.

63     The global sentence in this case, absent time spent in pre-trial custody, is thirty-six (36) months' imprisonment.

64     Giving the Accused credit for 19 months spent in pre-trial custody, the global sentence is reduced to seventeen (17) months' imprisonment.

65     Pursuant to Section 109 of the Criminal Code, there will be a Firearms Prohibition Order for life.

66     Pursuant to Section 487.053(1) of the Criminal Code, a DNA sample will be taken from the Accused prior to his release from custody.

67     Pursuant to Section 490 of the Criminal Code, there will be an Order that all offence related items be forfeited to Her Majesty the Queen.

68     Finally, there will be no Victim Fine Surcharge in this case.

T.C. SEMENUK PROV. CT. J.