MISREPRESENTATION OF STATUS IN THE US LEADS TO CANADIAN CITIZENSHIP REFUSAL

In the case below, the applicants appear to have misrepresented the fact that they have obtained status in the United States and tried to obtain Canadian citizenship even though they did not meet the residency requirements.  Applicants are cautioned never to misrepresent their status or make false declarations in any application.

Gavriluta v. Canada (Minister of Citizenship and Immigration)

Between Dragos Ovidiu Gavriluta, Applicant, and
The Minister of Citizenship and Immigration, Respondent
And between
Claudia Gavriluta, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 770

2013 FC 705

Dockets T-946-12, T-947-12

Federal Court
Toronto, Ontario

Heneghan J.

Heard: November 29, 2012.
Further submissions, received post hearing: December 13, 18
and 21, 2012.
Judgment: June 25, 2013.

(40 paras.)

Counsel:

---

REASONS FOR JUDGMENT

HENEGHAN J.:--

I. Introduction

1     Mr. Dragos Ovidiu Gavriluta and his wife Mrs. Claudia Gavriluta (collectively "the Applicants") appeal from a decision of Citizenship Judge Aris Babikian (the "Citizenship Judge") denying their applications for citizenship. The appeal is brought pursuant to subsection 14(5) of the Citizenship Act, R.S.C., 1985, c. C-29 (the "Act"). The applications for citizenship were denied on the basis that the Citizenship Judge was not satisfied that the Applicants had presented credible evidence to show that they had satisfied the residency requirements of the Act.

2     Pursuant to section 21 of the Federal Courts Act, R.S.C., 1985, c. F-7, appeals under the Act proceed as applications governed by Part 5 of the Federal Courts Rules, SOR/98-106. The Applicants commenced individual applications but in view of the overlap of the facts and arguments in these two appeals, I will review the background facts of both applications together.

II. Background

3     The Applicants are citizens of Romania.

4     The male Applicant claims that he began employment with Clariant Corporation in Minneapolis, Minnesota in August 2001. He says that he first entered Canada in November 2004, upon a work permit, for a business trip. He also claims that he was promoted to General Manager at Clariant (Canada) Inc. in January 2005. On August 14, 2005, he became a "permanent resident" of Canada within the meaning of that term in the Immigration and Refugee Protection Act, S.C. 2001, c. 27. His wife entered Canada in February 2005 and became a permanent resident on August 17, 2005.

5     On December 29, 2008, a "non-computer based entry" was made in the Field Operation Support System ("FOSS") as follows:

 

·        Received call from Officer Smith, Customs & Border Control at Windsor Ambassador Bridge stating that she is currently interviewing the subject who is re-entering the USA after being in Canada for work for the last 2 weeks. Subject is employed by Clariant USA. Subject stated to Officer Smith that he has only lived in the USA (Minnesota) since 2004 and has never lived in Canada. Subject is a permanent resident in the USA A#097-963-928. 

6     On March 8, 2009, the Applicants submitted applications for Canadian citizenship. They were required to meet the statutory residence requirements as set out in subsection 5(1) of the Act as follows:

 

·        5. 

(1) The Minister shall grant citizenship to any person who 

 

·        (a) 

makes application for citizenship; 

·        (b) 

is eighteen years of age or over; 

·        (c) 

is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: 

 

·        (i) 

for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and 

·        (ii) 

for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; 

 

·        (d) 

has an adequate knowledge of one of the official languages of Canada; 

·        (e) 

has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and 

·        (f) 

is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to section 20. 

* * *

 

·        5. 

(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois : 

 

·        a) 

en fait la demande; 

·        b) 

est âgée d'au moins dix-huit ans; 

·        c) 

est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante : 

 

·        (i) 

un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, 

·        (ii) 

un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; 

 

·        d) 

a une connaissance suffisante de l'une des langues officielles du Canada; 

·        e) 

a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté; 

·        f) 

n'est pas sous le coup d'une mesure de renvoi et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20. 

7     In his application for citizenship the male Applicant said that he had been present in Canada for 1,214 days during the relevant period, that is the four years immediately preceding the date of his application for citizenship. He said he had been absent for 166.5 days.

8     The female Applicant declared physical presence in Canada of 1,298 days and an absence of 73 days.

9     Each Applicant, in their citizenship applications, also declared that they did not have permanent resident status in any other country.

10     On August 10, 2010, the Applicants completed a citizenship test. They were interviewed at that time by a citizenship officer. They were issued residence questionnaires which they returned approximately two weeks later, together with copies of other documents.

11     The Applicants' file was reviewed by another citizenship officer in or around November 2011. This Officer, in examining copies of the Applicants' passports, noticed that many stamps in the passports were imprinted "ARC", sometimes with a number. This Officer formed the opinion that "ARC" meant "Alien Registration Card". The Officer was also aware of the December 2008 FOSS notes referred to above.

12     As a result, on November 5, 2011, the Officer telephoned the male Applicant to discuss his residence status in the United States. According to the Global Case Management System notes, the Officer initially advised the male Applicant only about the 2008 FOSS notes. According to the Officer, the male Applicant replied that he was not a resident of the United States and that there had been a misunderstanding, but that it had been clarified.

13     When asked by the Officer if he knew the meaning of the "ARC" stamps in his passport, the male Applicant replied in the negative. When the Officer said that she believed "ARC" to stand for "Alien Registration Card", the male Applicant admitted that he held a U.S. Green Card. The Officer then informed the male Applicant that he needed to obtain a letter from the American authorities stating that he is not a U.S. resident. The Officer provided her contact information. However, the male Applicant did not subsequently contact the Officer or provide the requested information.

14     The Officer decided that a hearing would be necessary in order to verify the period of the Applicants' residency in Canada. On December 28, 2011, the Applicants appeared before the Citizenship Judge for their residence hearing.

15     Following the hearing, the Applicants were afforded further time to provide additional information. They submitted further documents throughout February 2012. The Citizenship Judge delivered his decision on April 10, 2012.

16     In his decision, the Citizenship Judge reviewed the conflicting evidence as to the male Applicant's resident status in the United States. Page 2 of the decision provides, in part, as follows:

 

·        On page 2 of the Canadian Citizenship Application (CIT 0002), and in response to Question 7(d) of that form which asks "Do you have permanent resident status in any other country," the Applicant ticked the "No" box. 

 

·        Yet, in Port of Entry (FOSS) notes, NCB #Z011511300, created on Dec. 29, 2008, a Canadian officer received the following information from a US counterpart and noted: 

 

·        "Received call from Officer Smith, Customs & Border Control at Windsor Ambassador Bridge stating that she is currently interviewing the subject [Mr. Gavriluta] who is reentering the USA after being in Canada for work for the last 2 weeks. Subject is employed by Clariant USA. Subject stated to Officer Smith that he has only lived in the USA (Minnesota) since 2004 and has never lived in Canada. Subject is a permanent resident in the USA A#097-963-928." 

 

·        The Applicant's Romanian passport has many USA entry stamps with a hand-written imprint of "ARC." The imprint "ARC" means Alien Registration Card." Also, under some of these stamps the serial number A #097-963-928 is written. The serial number is identical to the number referred to in the FOSS notes mentioned above. [Emphasis in original] 

17     The Citizenship Judge then commented upon the examination of the male Applicant at the hearing of December 28, 2011, as follows:

 

·        At the Dec. 28, 2011 hearing, I raised the Green Card issue with the Applicant and his response to Question 7(d) on Page 2 of the Canadian Citizenship Application (CIT 0002). He stated: 

 

·        "The way I interpreted is that when it says 'resident' it means that where I reside. I have also Romanian passport but I do not reside there. It was misunderstanding. 

 

·        When I read him Question 7(d) on page 2 of the Citizenship Application and stated that the question is very clear about the issue of having permanent residency status in any other country, he replied: 

 

·        "That's how I understood it; it is misunderstanding." 

 

·        I asked him about the US Custom and Border Patrol Officer's comments in the FOSS note. To this query he said, "It was misunderstanding." I asked him if he still has his Green Card and if the US authorities are aware that he has permanent residency status in Canada. He replied "Yes" to both questions. I asked him to provide me a letter from the US authorities stating that they are aware that he is a permanent resident holder in the US and Canada simultaneously and then requested an outline of the policy on retaining the Green Card. He stated "I will go and ask them." 

 

·        After interviewing Mr. and Ms. Gavriluta separately, I called them back together to my office to give them the new Residency Checklist to submit the missing supporting documents which they failed to submit with the Aug. 10, 2010 [residency questionnaire] request. I also asked them to provide to me their US Green Card applications and a letter from US authorities stating that they are aware that the Applicants are permanent residents of Canada and stating the US policy vis-à-vis Green Card Holders who reside in Canada. 

 

·        To this request, Ms. Gavriluta turned to her husband and said to him: "You will lose your Green Card." Mr. Gavriluta then said to me, "We will consult our lawyer." This response indicates that Ms. Gavriluta had an awareness that holding permanent residence status in two countries might raise red flags for immigration and citizenship officials in both countries. 

 

·        At the hearing the Applicant stated that he "files income tax in the US but he doesn't pay." This raises the question as to why would someone who is living, working, and filing income tax in Canada has to file US income tax unless they have residence status in the US. 

 

·        The above observation leads me to conclude that Mr. Gavriluta has US residence status and this puts into question his physical presence in Canada, and the number of days he claims that he resided in Canada during the relevant period. 

18     The Citizenship Judge also noted that two re-entries to Canada could be seen in the male Applicant's Integrated Customs Enforcement System ("ICES") Travel History and three in the female Applicant's travel history, none of which were declared by the Applicants in either their citizenship applications or their residency questionnaires. In the case of the male Applicant the undeclared re-entry dates were March 21, 2006, and November 25, 2007. In the case of his wife, the undeclared re-entry dates were March 4, June 17, and November 25, 2007.

19     By a letter dated February 10, 2012, the Applicants' lawyer acknowledged these dates after receiving a copy of the ICES Travel History and advised that "Mr. and Ms. Gavriluta advised that these are 1-day return trips to the US as they are not stamped on their passport." However, without documentary evidence to confirm that statement, the Citizenship Judge found that the departure dates, and the true length of the trips, could not be established.

20     After noting other minor inconsistencies in the travel dates given by the Applicants, the Citizenship Judge then reviewed the Applicants' Ontario Health Insurance Plan ("OHIP") usage history by examining their OHIP claims. He noted a break of approximately two years, that is from February 2006 to January 2008, in the male Applicant's usage history. There was a thirteen month gap, that is from September 2006 to October 2007, in the female Applicant's usage history. The Citizenship Judge expressed the view that these breaks were inconsistent with the Applicants' otherwise "extensive utilization of the medical system in Ontario."

21     The Citizenship Judge then considered that the Applicants had not obtained the information and documents that they had been requested to obtain from the American authorities. The Citizenship Judge did not accept their lawyer's statement that the requested information and materials "were not available".

22     The Citizenship Judge then proceeded to review other documents that had been provided by the Applicants, including Canada Revenue Agency Assessments, mortgage statements, municipal tax bills, and joint bank account statements. The Citizenship Judge characterized these documents as "passive indicia" of residency. Overall, the Citizenship Judge was not satisfied that the Applicants had submitted credible evidence or that they had discharged their burden of proving, on a balance of probabilities, that they had met the residency requirements of the Act as set out in subsection 5(1) of the Act.

III. Issues

23     The within proceeding raises the following issues:

 

·        i) 

What is the applicable standard of review; 

·        ii) 

Did the Citizenship Judge err in selecting the wrong test for residency under paragraph 5(1)(c) of the Act; 

·        iii) 

Did the Citizenship Judge err in his assessment of credibility; and 

·        iv) 

Did the Citizenship Judge err in calculating the time for the purposes of establishing residency? 

IV. Discussion and Disposition

24     The first issue to be addressed is the applicable standard of review. According to the decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, there are only two standards of review in the domain of administrative law, that is correctness for issues of law and procedural fairness, and reasonableness for questions of fact and mixed fact and law.

25     The Applicants argue that the Citizenship Judge's selection of the applicable test for residency is correctness, referring to several decisions including El Ocla v. Canada (Minister of Citizenship and Immigration) (2011), 389 F.T.R. 241 at para. 14, and Dedaj v. Canada (Minister of Citizenship and Immigration) (2010), 372 F.T.R. 61.

26     The Respondent submits that it remains within the discretion of the Citizenship Judge to decide which test to apply and that as long as one of these tests is correctly applied there will be no error on that basis alone; see the decisions in El-Khader v. Canada (Minister of Citizenship and Immigration) (2011), 386 F.T.R. 142 at para. 10 and Balta v. Canada (Minister of Citizenship and Immigration) (2011), 403 F.T.R. 134 at para. 10.

27     In my opinion, since the jurisprudence allows for a choice among the tests for the purpose of establishing residency, the choice of test is a question of discretion for the Citizenship Judge; see the decision in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177. Discretionary decisions are subject to deference; see Dunsmuir, supra, at para. 53. It follows that both the choice of the residency test and its application are reviewable on the standard of reasonableness.

28     The Citizenship Judge chose to apply the residency test set out in Pourghasemi, Re (1993), 62 F.T.R. 122. This test relies upon a strict count of days, as opposed to the "centralized mode of living" test as per Re Papadogiorgakis, [1978] 2 F.C. 208 at page 214, or the test of "substantial connection" as set out in Koo, Re (1992), 59 F.T.R. 27 at para. 10.

29     The Citizenship Judge was allowed to choose one of the three tests. The next question is whether he reasonably applied the test chosen, that is, did the Citizenship Judge reasonably conclude that the Applicants had failed to establish their physical presence in Canada for 1,095 days, in order to satisfy the requirements of the Act?

30     In addressing this issue, I must necessarily look at the manner in which the Citizenship Judge assessed the credibility of the Applicants, as well as his assessment of the reliability of the various documents that were submitted.

31     In my opinion, the Citizenship Judge's concerns about the Applicants' credibility were well-founded. The most obvious matter is the FOSS note entry, reproduced above, which shows that the male Applicant was not forthright about the history of his residence in both Canada and the United States. The male Applicant did not give a clear answer as to why he told the Canadian immigration officer that he had never lived in Canada and had been living in the United States since 2004. According to the reasons of the Citizenship Judge, the male Applicant dismissed this statement as a "misunderstanding". The Citizenship Judge reasonably found that there were serious grounds to disbelieve the male Applicant.

32     There is a further related serious concern about the Applicants' truthfulness and credibility, arising from the Applicants' answer to question 7(d) on the citizenship application, that is the question "Do you have permanent resident status in any other country?" The Applicants gave a negative answer. Both Applicants were examined on this issue, separately, according to the reasons of the Citizenship Judge. He concluded that the Applicants had misrepresented the facts in giving negative answers to this question. He did not accept their explanation that the negative answers were a result of a misunderstanding.

33     The Citizenship Judge made a reasonable finding that the Applicants had misrepresented their status in the United States.

34     The Applicants' arguments about the "materiality" of their misrepresentation cannot succeed. They submit that the "damage" arising from the missing re-entry data can be limited to a certain range of dates, based on the "undisputed" re-entry dates entered in the record. However, even if those particular re-entry dates can be limited by the previously recorded re-entry dates in the ICES travel history, there is no means of verifying the accuracy of the departure dates.

35     In these circumstances, the entire travel history of the Applicants is in doubt. No independent confirmation of their claim has been provided. I am satisfied that the Citizenship Judge considered the materiality of the Applicants' misrepresentation and reasonably found that misrepresentation to be relevant to all their claims. The Citizenship Judge acted reasonably in rejecting the Applicants' claim to Canadian citizenship on the basis of the evidence before him.

36     Although the Citizenship Judge erred in setting out the relevant time period for determining residency, a point addressed by Counsel in post-hearing submissions, this error does not affect the ultimate decision and disposition of these appeals.

37     The Citizenship Judge found that the relevant period for assessing the residency required for the male Applicant was August 14, 2005, to March 8, 2009. This was wrong; the relevant period was March 8, 2005, to March 8, 2009. In my opinion, the error is immaterial since it is clear from the decision that the Citizenship Judge was applying the physical presence test and given the problems with the evidence submitted by the Applicants, he could not determine if the Applicants had met the threshold of 1,095 days of residency.

38     In conclusion, the Applicants have failed to show that the Citizenship Judge committed any reviewable error or that the decision fails to meet the standard of reasonableness. The decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.

39     These reasons will be filed in cause number T-946-12 and placed on the file in cause number T-947-12.

40     The appeals will be dismissed. Since the Respondent did not seek costs, none will be awarded.

HENEGHAN J.

VISA DELAYS PLAGUE CONSULATES, FORCE CHANGES IN TRAVEL PLANS

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FOREIGN SERViCE STRIKE WREAKS HAVOC ON VISAS

Canadian diplomats’ strike widely felt and very costly | Canada | News | National Post

SCAM TARGETS IMMIGRANTS, CALLER THREATENS DEPORTATION IF FEE NOT PAID

Halifax police warn immigrants about deportation scam | CTV Atlantic News

COURT REFUSES TO REDUCE SENTENCE BASED ON NEGATIVE IMMIGRATION CONSEQUENCES

This is one of the first reported cases taking into consideration the recent decision of the Supreme Court of Canada in R. Pham. In this case, the court refused to reduce the sentence of a serial convicted offender who engaged in fraud at retail stores. There is a misconception that immigration consequences are a "carte blanche" to criminals for obtaining lenient sentences. This is not so under R. Pham. the bigger policy question in this case is whether there is any public interest in granting a person such as the appellant the right of permanent residency, given the circumstances of the case.

R. v. James

RE: Her Majesty the Queen, and Olatunji Omolay James

[2013] O.J. No. 2804

2013 ONSC 4177

Court File No. 155/12

Ontario Superior Court of Justice

K.L. Campbell J.

Heard: June 13, 2013.
Judgment: June 18, 2013.

(23 paras.)

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ENDORSEMENT  [SUMMARY CONVICTION APPEAL]

K.L. CAMPBELL J.:--

A. OVERVIEW

1     This sentence appeal involves the application of the principles recently articulated by the Supreme Court of Canada in R. v. Pham, 2013 SCC 15, 293 C.C.C. (3d) 530, in relation to the potential impact of collateral immigration consequences on the sentencing of an offender.

2     On April 30, 2009 the appellant, Olatunji James, appeared before the Honourable Mr. Justice F. Campling of the Ontario Court of Justice, and pled guilty to two sets of property-related offences. The first offences were committed on June 1, 2006. The second series of offences were committed on October 17, 2008. There were a total of five such offences - fraud, theft and three counts of possession of stolen property (all under $5,000). The appellant also pled guilty to one additional charge of failing to comply with a recognizance. The appellant had been on bail for the first offences at the time he committed the second group of offences, and he was discovered to have violated the terms of his recognizance when he was arrested for the second set of offences.

3     The pleas of guilty were taken following a judicial pre-trial conference, during which the parties came to a negotiated resolution of the case. The appellant agreed to plead guilty to the total of six offences on the basis that the other pending charges would be withdrawn, and the parties would advance a joint position on the issue of sentence. Indeed, before Campling J., the parties jointly submitted that, after taking into account his eight days of pre-sentence custody, the appellant should be given a suspended sentence and probation for all six offences. In ultimately agreeing to "go along" with this joint submission, Campling J. admitted that he had thought about sending the appellant back to jail, and he commented that, in his opinion, the appellant was getting a "big break." In the end, the trial judge entered convictions, but suspended the passing of sentence and placed the appellant on probation.

4     Subsequently, the appellant, a refugee claimant originally from Nigeria, discovered that his convictions for these offences may be a significant impediment to his ability to remain in Canada on a permanent basis. Indeed, according to s. 36(2)(a) of the Immigration and Refugee Protection Act, S.C. 2001, chap. 27, the appellant is "inadmissible" because he has been "convicted in Canada of ... two offences ... not arising out of a single occurrence." This does not mean that the appellant will necessarily be deported from Canada, but it does create a potential immigration problem for the appellant in the future. At the time of sentencing, the appellant had been erroneously advised that the sentence proposed in the joint submission would not have any negative consequences for his immigration status. This mistaken advice was not passed along to the trial judge.

5     After being granted the necessary extension of time, the appellant now appeals against his sentence. The appellant argues that, in order to avert the unanticipated adverse immigration consequences of his convictions, he should now be given a conditional discharge. The appellant has already served the entirety of the sentence imposed at trial.

B.

CONSIDERING COLLATERAL IMMIGRATION CONSEQUENCES IN SENTENCING

6     In R. v. Pham the accused was convicted of two drug-related offences. Following the joint submission of the parties, the trial judge imposed a two year penitentiary sentence of imprisonment on the accused. Under s. 64 of the Immigration and Refugee Protection Act, a non-citizen such as the accused would lose the right of appeal against a "removal order" if they were sentenced to a term of imprisonment of at least two years. In advancing their joint submission, neither party had contemplated this collateral consequence on the accused's immigration status. In allowing the appeal and reducing the sentence imposed on the accused by one day, Wagner J., delivering the judgment of the unanimous court, outlined the legal principles as to how and when such collateral consequences ought to properly be taken into account in sentencing. Those principles are essentially as follows:

 

·        * 

A sentencing judge may exercise his or her discretion to take collateral immigration consequences into account as part of the personal circumstances of the offender, provided that the sentence ultimately imposed on the accused is proportionate to the gravity of the offence and the degree of responsibility of the offender. The general rule continues to require that the sentence imposed be fit having regard to the particular crime and the particular offender. See: R. v. Pham, at paras. 6, 11, 14. 

·        * 

The weight and significance of collateral immigration consequences will vary depending on the facts and circumstances of each individual case, and should be determined having regard to the type and seriousness of the offences. But collateral immigration consequences may be one of the relevant factors that a sentencing judge may properly take into account in tailoring the appropriate sentence. See: R. v. Pham, at paras. 12-13. 

·        * 

The flexibility of the sentencing process should not be misused by the imposition of inappropriate and artificial sentences purely to avoid collateral immigration consequences which may flow from a statutory scheme, as to do so would circumvent the will of Parliament. In short, collateral immigration consequences must not be allowed to dominate or skew the sentencing process for or against deportation. A special sentencing range cannot be allowed to develop for cases where there is a risk of deportation. See: R. v. Pham, at paras. 15-16. 

·        * 

The further a sentence is varied from the range of otherwise appropriate sentences in order to avoid collateral immigration consequences, the less likely the sentence will remain proportionate to the gravity of the offence and the responsibility of the offender. Conversely, the closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is that the reduced sentence will remain proportionate, and thus reasonable and appropriate. See: R. v. Pham, at paras. 18. 

·        * 

A sentencing judge is not compelled to adjust a sentence in order to avoid the impact of collateral immigration consequences on the accused. It remains open to the judge to conclude that even a minimal reduction in the sentence would result in an inappropriate sentence having regard to the offence and the offender. Collateral immigration consequences are only one relevant factor amongst many other considerations related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender's personal circumstances. See: R. v. Pham, at paras. 20. 

·        * 

An appellate court has the authority to vary a sentence if the sentencing judge was not aware of the collateral immigration consequences, or if counsel failed to advise the judge on this issue. Where the matter was not raised before the sentencing judge and where the Crown does not give its consent to the appeal, some evidence should be adduced for consideration by the appeal court. See: R. v. Pham, at paras. 24. 

·        * 

It is wrong for an appeal court to refuse a short proposed sentence reduction based solely on the fact that the accused may have a prior criminal record or on its belief that the accused had abused the hospitality which had been afforded to him or her by Canada. See: R. v. Pham, at paras. 25. 

C. THE NATURE OF THE OFFENCES

1. The Offences on June 1, 2006

7     On June 1, 2006 the appellant and a female accomplice attended a Home Outfitters store in Toronto. They jointly selected a "bed in a bag" and eight or nine towels, with a total value of approximately $360, and the female accomplice fraudulently paid for them with a credit card in the name of another person. The appellant waited outside for her while she made the purchase.

8     Later, they attended at a Hudson's Bay department store in a shopping mall at another location in Toronto. They went to the appliance department and picked out an air conditioning unit having a value of approximately $230. Again, the female accomplice fraudulently paid for the purchase with the same credit card.

9     Next, the female accomplice went to the children's wear department of The Bay, where she fraudulently purchased approximately $766 of children's clothing on the same credit card. At the same time, the appellant went to the men's wear department, where he selected approximately $1862 of men's clothing. The female accomplice fraudulently paid for this clothing with the same credit card, while the appellant left the store.

10     The appellant then drove his car to the store exit, where his female accomplice was waiting. The appellant placed all of their merchandise in the trunk. At that point, security guards approached the female accomplice and arrested her for fraud. The appellant quickly drove off in his vehicle as his accomplice was being arrested.

2. His Recognizance - Ultimately Breached

11     On July 27, 2008 the appellant surrendered himself into police custody in relation to these offences. He was released on a recognizance. One of the conditions of that recognizance required that he not possess or apply for any identification or credit cards in any name other than his own.

3. The Offences on October 17, 2008

12     On October 17, 2008 the appellant was in the company of a different female accomplice. They went to the same Hudson's Bay store in the shopping mall. The female accomplice was seen, in the company of the appellant, selecting jewellery from the display shelf, opening the packaging, and concealing the jewellery in her purse. They eventually attended at the checkout cashier. The appellant used a credit card to pay for some other items that the female accomplice had collected, but neither of them paid for the jewellery in her purse.

13     The appellant and his female accomplice continued shopping. The appellant was seen selecting another piece of jewellery and passing it to the female accomplice, who concealed it in the Bay shopping bag they had been given in relation to the previous purchase. The appellant then made another purchase with his credit card but, again, did not pay for the additional piece of jewellery.

14     When the appellant and his female accomplice left the store they were arrested by security guards. The appellant was found in possession of four debit/credit cards, none of which were in his own name, and a driver's licence which was also in the name of another person. The credit card that was used by the appellant to make the purchases from the Bay store was in the name of another person.

4. Subsequent Offences - May 22, 2009 - Resulting in an Absolute Discharge

15     On May 22, 2009 the police stopped and searched the appellant's motor vehicle. They found three cell phones that had been stolen from a Roger's cell phone store. The cell phones were not stolen by the appellant, but they did not belong to the appellant. They had been given to the appellant by a friend. Subsequently, the appellant pled guilty to one count of possession of stolen property and one count of breach of probation. In the result, the appellant received an absolute discharge.

 

D.

THE PERSONAL CIRCUMSTANCES OF THE OFFENDER - AND THE FRESH EVIDENCE

16     As of the date of sentencing on April 30, 2009, the appellant was 26 years old. He was married and supporting a step-daughter. He had a grade 12 education and no previous criminal record. He was employed in customer service for a consulting firm, answering their phones. At the time of the offences the appellant was out of work. The appellant expressed remorse for these offences, stating that he knew that he should not have done it. The appellant is now 31 years old.

17     The appellant has claimed refugee status. According to the fresh evidence materials, some time ago the appellant and his wife submitted a joint application to Citizenship and Immigration Canada (CIC) seeking permanent residency in Canada. In mid-July of 2012 the appellant and his wife received a written request from CIC for documentation regarding the appellant's previous criminal charges. The appellant began to try to collect the documentation requested. In late September of 2012 the appellant and his wife received further correspondence from CIC indicating that, given their failure to promptly provide the requested information, their application for permanent residency could not be completed. Shortly thereafter, the appellant obtained the additional information that was necessary and provided it to CIC.

18     According to the fresh evidence, in early November of 2012 the appellant met with an "immigration consultant," and was advised that his suspended sentence "would be a problem" for the joint application, by he and his wife, for permanent residence in Canada.

E. ANALYSIS

19     On this appeal the appellant asks that his convictions be set aside and he be granted a discharge in relation to all of these offences. According to s. 730(1) of the Criminal Code, a sentencing court may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, order that the accused be discharged absolutely or on conditions prescribed in a probation order.

20     It would serve no legitimate purpose to try to now speculate as to what the trial judge might have done had he been advised of the potential collateral immigration consequences for the appellant as a result of his conviction for these offences. All that can be accurately known at this point is what he said and did in the face of the circumstances that were placed before him on the issue of sentence. Given the fresh evidence in this case, my responsibility at this point, as I see it, is simply to determine, on the basis of all of the circumstances of this case, including the fresh evidence regarding the potential collateral immigration consequences for the appellant, whether the sentence imposed at trial should be changed, and a conditional discharge granted. In other words, I need not approach the sentencing decision of the trial judge with the deference that would otherwise be appropriate. See: R. v. Singh, [2007] O.J. No. 1319 (S.C.J.) at para. 30; R. v. Pham, at para. 24.

21     There is no question that a discharge would be in the best interests of the accused. As already mentioned, under the provisions of the Immigration and Refugee Protection Act, if the appellant remains convicted of these offences he is deemed "inadmissible" in Canada, and this status may ultimately make it more difficult for him to remain in Canada. It does not mean that he will necessarily be deported, as there are ways he may remain in Canada notwithstanding his convictions. However, given the potential immigration hurdles ahead, the appellant has met the first prong of the legal standard under s. 730(1) of the Code.

22     The real issue between the parties is whether or not a discharge is "contrary to the public interest." After considering all of the circumstances of this case I cannot accept the appellant's position that a discharge is not contrary to the public interest. In my view, for all of the following reasons, the imposition of a discharge in this case would, indeed, be contrary to the public interest:

 

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The Duration of the Criminal Conduct: The appellant did not commit an isolated offence during a time of great stress and during an unfortunate lapse of judgment. Instead, while in Canada claiming refugee status, the appellant committed a total of six criminal offences over the course of a 28 1/2 month period of time. In short, the appellant engaged in multiple acts of criminal misconduct over an extended period of time. 

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Breach of Recognizance: After his arrest for the first offences, the appellant was released on a recognizance that required him to abide by certain conditions, including refraining from the possession of any identification or credit cards in the name of any other person. However, when he was arrested for his second series of offences the appellant was in possession of four debit/credit cards, none of which were in his own name. He also had a driver's licence in the name of another person. Moreover, the credit card he used to make the fraudulent purchases was in the name of another person. The appellant flagrantly violated the terms of his recognizance. 

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Nature of the Offences: As the trial judge mentioned, the nature of the various property-related offences committed by the appellant and his female accomplices suggested that the appellant was involved in a type of "ongoing fraud." Such offences cost law-abiding customers dearly, as the cost of merchandise must be increased to cover the losses retail outlets suffer from such thefts and frauds. Therefore, in such cases sentences must be imposed that carry at least some effective measure of general and specific deterrence. The merchandise in the present case, which was illegally obtained by the appellant or his accomplice by fraud or theft (but which was ultimately returned to the retailers) totalled in excess of $3,000. 

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Discharge Not Sought at Trial: At the time of sentencing, the joint submission advanced by the parties proposed the conviction of the accused with a suspended sentence and probationary term. The appellant did not seek a discharge at trial. 

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Sentence Imposed at Trial Already Lenient: As the trial judge observed, the non-custodial sentence imposed at trial as a result of the resolution agreement of the parties was itself a "big break" for the appellant. As Campling J. suggested, the circumstances of the offender and the offences could have justified a further term of imprisonment. In short, the sentence imposed upon the appellant is already a lenient one. 

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Discharge Would Offend R. v. Pham Principles: To now grant a discharge to the appellant just to ameliorate the appellant's potential future immigration difficulties would, in my view, not ensure the necessary proportionality having regard to the gravity of the offences and the degree of responsibility of the offender, and would result in an unfit sentence. Collateral immigration consequences to an accused must be properly taken into account as one of the personal circumstances of the accused, and as one factor in tailoring the appropriate sentence. But such consequences cannot justify the imposition of unfit dispositions which dominate and skew the sentencing process either for or against deportation. See: R. v. Pham, at paras. 6, 11-13, 14-16, 20; R. v. Lu, 2013 ONCA 324, at paras. 46-47; R. v. Hamilton (2004), 186 C.C.C. (3d) 129 (Ont.C.A.) at paras. 155-156. In my opinion, to now grant the appellant's request for a discharge would not only result in an unfit sentence, but it would wrongly skew the sentencing process against deportation. 

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The Authorities: Discharges are, of course, not limited to trivial or technical offences. A discharge is within the legal range of potential sentences that the appellant might receive in this case. Further, there are, no doubt, some cases where conditional discharges have been granted in significant theft/fraud cases. See, for example: R. v. Kalonji, 2010 ONCA 111; R. v. Huang, [2011] ONSC 2545. However, apart from the potential immigration consequences for the appellant, this case does not present with the kinds of "exceptional" circumstances which might justify the imposition of such a disposition, especially given the number and nature of the criminal offences admittedly committed by the appellant over a significant period of time. 

F. CONCLUSION

23     In the result, the appeal against sentence must be dismissed. An order shall issue accordingly.

K.L. CAMPBELL J.