INDIAN ADOPTION CASE IN THE SPOTLIGHT

This case is amazing. It must have been a great interview a tthe High Commission in New Delhi....

Singh v. Canada (Minister of Citizenship and Immigration)

Between Gurpreet Singh, Avtar Singh and Karamjit Kaur, Applicants, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1406

2012 FC 1302

Docket IMM-7785-11

 Federal Court
Toronto, Ontario

Zinn J.

Heard: November 6, 2012.
Judgment: November 7, 2012.

(15 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     ZINN J.:-- Avtar Singh and Karamjit Kaur are husband and wife. They have a birth daughter, Harwinder Kaur, and they claim that Gurpreet Singh is their adopted son. Mr. Singh and the two children made an application for permanent residence under the Live-In Caregiver Class as his spouse is a live-in caregiver in Canada. All family members are citizens of India.

2     The decision under review is that of a visa officer of the High Commission of Canada in New Delhi deleting Gurpreet Singh from the application for permanent residence in Canada on the basis that Gurpreet was not a "dependant child" as defined in section 2 of the Immigration and Refugee Protection Regulations, SOR 2002-227 (Regulations). The Regulations provide that a dependant child includes an adopted child, but the officer was not satisfied that Gurpreet was an adopted child of the adult applicants and accordingly, deleted him from the application.

3     In my view, this application has no merit. The decision was reasonable and made in accordance with law and the principles of natural justice. Based on the record before the Court, I would have found a decision contrary to that reached by the officer to have been perverse.

4     On July 30, 2011, an officer reviewing the applicants' file noted concerns about the inclusion of Gurpreet on the permanent residence application. Although a copy of the purported adoption deed and a birth certificate for Gurpreet had been submitted by Mr. Singh, the officer noted that the latter had been registered only recently. Moreover, the officer noted the absence of family photos including Gurpreet and photos showing the adoption ceremony including the 'giving and taking' of him. The officer concluded that he or she was "unable to confirm that an adoption ceremony ha[d] taken place," and requested that the applicant parents be interviewed.

5     On August 23, 2011, the officer, fluent in Punjabi, conducted an interview with the applicant parents, in Punjabi. The only written record of the interview is found in the CAIPS notes made by the officer at or very shortly following the interview. The officer provided an affidavit in which he swears that the notes in "'question-and-answer form' were typed as the questions were being asked and answered" and that the notes in "'paragraph form' were typed immediately following the portion of the interview reflected in the paragraph."

6     Mr. Singh, described by his wife as being "uneducated and unsophisticated," was interviewed first, in the absence of his wife. The following are relevant excerpts from the officer's notes of that interview:

 

·       Q Was Gurpreet's parents related to you 

 

·       A No to my my spouse - I am illiterate but it is my wife's bright idea 

 

·       Q What bright idea 

 

·       A My wife told me that we should do papers for the boy as she was likely to get permanent (PR) in Canada and that we could help relatives and tag along the boy [...] 

 

·       Q What rituals were conducted for adoption ceremony 

 

·       A We called the photographer to get some photos clicked in Holy Gurudwara 

 

·       Q So no formality or rituals were done 

 

·       A No - just to get the photos clicked - we posed while the sweet pudding (Prasad) were being distributed inside the Gurudwara and then outside in the community kitchen while some snacks were served
[...] 

 

·       I reviewed the photos and was surprised to see that the natural father no-where to be seen (boy's natural father is seen in the adoption papers) 

 

·       Q OK please point out where the natural father is in the photo 

 

·       A He was not there 

 

·       Q Why 

 

·       A Maybe because he had had a few drinks more and did not come inside the holy place 

 

·       Q So not the formality of giving and taking was done 

 

·       A I told you that my wife is very smart was she had thought of this adoption to take along the boy 

 

·       Q Since the formality of adoption, where did the boy stay 

 

·       A Dhowali- 

 

·       Q Your place 

 

·       A No why our place - this is where his father used to stay 

 

·       Q And he continues to stay there 

 

·       A No, now he has come to stay with us after his father died around 4 months back
[...] 

7     The officer then telephoned Mrs. Kaur in Canada, and noted, in paragraph form, that Mrs. Kaur "appeared as very defensive while responding to questions of adoption." After finishing the phone call with Mrs. Kaur, the officer then "expressed [his] concerns to [Mr. Singh]." The officer noted the following concerns in the CAIPS notes:

 

·       You and your spouse were of young age and could not explain the need to adopt a child when you could have your own children 

 

·       Adoption was done with the intent to help the child and not forge a genuine child parent relationship 

 

·       Adoption did not involve any give and taking of the child in the ceremony 

 

·       Natural father of the child is not seen giving away the child during the adoption ceremony 

 

·       Child continued staying with natural father till very recently 

 

·       Previous child parent relationship were not ceased nor relationship was forged 

 

·       Your spouse did not bother to attend the adoption ceremony nor has ever visited the child 

8     The following appears immediately after the above-listed concerns:

 

·       [Mr. Singh] requested that since he was illiterate and his wife was very smart, she be called up. Call made to sponsor [a]gain and concern[s] explained. Sponsor indicated that she only wants visa for all three ([Mr. Singh], biological daughter & adoptive son). Call put on speaker phone- [Mr. Singh] requested sponsor that she should stop being stubborn and drop the idea of helping Gurpreet (adoptive son) as they could send him some money and that it would delay their case. Sponsor remains adamant - call disconnected. 

 

·       [Mr. Singh] informed that it is the smartness of his wife who added the child to application and requested that the child be immediately deleted from the application and he and his daughter be issued a visa. I informed him that the present application is only to confirm their relationship and that visa will be issued only if Karamjit lands as PR in Canada 

 

·       **** Interview Concluded ***** 

9     On September 9, 2011, roughly two and a half weeks after the interview, and referencing the decision under review, Mr. Singh delivered the following letter to the High Commission in New Delhi:

 

·       Dear Sir, 

 

·       With reference to your letter dated 25/08/2011 this is to inform you that I have no objection to the deletion of name of my adopted son Gurpreet Singh from my application for immigration to Canada. 

 

·       Kindly issue further instructions for the grant of immigrant visa for me and my daughter. I & my daughter have been medically examined on 03/05/2011 by Dr. U.S. Sidhu of [illegible]. 

10     The applicants submit that the officer erred by calling into question a "validly issued foreign legal judgment," namely the applicants' "court-issued adoption deed." They cite and rely upon Boachie v Canada (Citizenship and Immigration), 2010 FC 672, at para 31, for the proposition that the officer was "not entitled to assess the legality of a foreign adoption order in the absence of fraud."

11     I agree with the respondent that Boachie is distinguishable from the facts before the Court because in that case there was most clearly a "court order" and no allegation of fraud in obtaining it had been made. I further agree with the respondent that the facts at hand more closely parallel, in fact almost identically, those in Singh Dhadda v Canada (Citizenship and Immigration), 2011 FC 206, in which Justice Mactavish held that it was reasonable for the officer to conclude that no 'giving and taking' ceremony took place even though the Deed of Adoption stated otherwise and further that the Deed of Adoption was not a Court Order, and that it was inconsistent with the evidence of the adoptive father.

12     The Deed of Adoption is a contract drawn up by lawyers for the parties and executed by them. It is not evidence that a court of law turned its mind to whether the legal requirements for a valid adoption had been satisfied. It was then taken to a court for registration; however, there is no evidence that the registration process involved any independent decision-making. It appears to be merely an administrative process for which the court charges a nominal fee.

13     The officer in this case, unlike the tribunal in Boachie but like the officer in Dhadda, was faced with independent, "cogent evidence" which cast doubt on the adoption deed. I refer, in particular to the evidence of Mr. Singh who told the officer "my wife is very smart was she had thought of this adoption to take along the boy." Further, although he was given three chances to say that there was a giving and taking ceremony he never says that one occurred and he does not challenge the officer when he says that it did not.

14     Lastly, the applicants submit that the officer "bullied" and "frightened" Mr. Singh at the interview and "put ... words into his mouth." The officer denies it. To support these serious allegations, the applicants rely only on Mrs. Kaur's affidavit evidence which is hearsay. The best evidence of these allegations would have been her husband's as he was the only person other than the officer who was present when he made these damaging admissions. I give Mrs. Kaur's evidence no weight. Her affidavit does not explain why her husband sent his letter stating that he had no objection to the deletion of the adopted son from his application after receiving the decision. Counsel submits this is evidence that supports that he was bullied by the officer. I disagree. In my view, it is evidence of someone who knows that the jig is up and who wishes his family to be reunited in Canada. Further, it is consistent with the plea he made to his wife during that part of the interview when she was present by teleconference to "stop being stubborn and drop the idea of helping Gurpreet."

15     For these reasons, I find that the decision under review is unimpeachable and the application must be dismissed. Neither party proposed a question for certification.

JUDGMENT

THIS COURT'S JUDGMENT is that the application is dismissed and no question is certified.

ZINN J.

CUSTODY AN ISSUE IN SPONSORSHIPS

The case below highlights an often overlooked issue: those who seek to enter Canada as sponsored spouses must make heir children, even if they have no custody, available for medical examination or prove that is impossible to conduct them in teh circmstances.

Rojas v. Canada (Minister of Citizenship and Immigration)

Between Leobardo Ahumada Rojas, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1407

2012 FC 1303

Docket IMM-1823-12

 Federal Court
Toronto, Ontario

Zinn J.

Heard: November 6, 2012.
Judgment: November 7, 2012.

(19 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     ZINN J.:-- Mr. Ahumada Rojas seeks to set aside a decision of an immigration officer made February 2, 2012, refusing his application for permanent residence under the spouse or common-law partner in Canada class.

2     The application was refused because the officer found that the applicant failed to comply with subsection 72(1)(e)(i) of the Immigration and Refugee Protection Regulations, SOR 2002-227 (the Regulations), which requires a foreign national who seeks to become a permanent resident of Canada to establish that his family members are not inadmissible, whether or not they are accompanying the foreign national.

Background

3     Mr. Ahumada Rojas was born in Mexico. He travelled to Canada in September 2005 as a visitor and in December 2006 met Janice Leona Cotterell, a Canadian citizen. A relationship began and he moved in with Ms. Cotterell and her son in March 2008.

4     On January 6, 2010, Mr. Ahumada Rojas submitted an application for permanent residence under the spouse or common-law partner in Canada class, sponsored by Ms. Cotterell. At that time, Mr. Ahumada Rojas was already married, but he obtained a divorce from his first wife on January 14, 2010. He married Ms. Cotterell on October 10, 2010.

5     In his application, Mr. Ahumada Rojas listed three children from his first marriage - Esteban, Rebeca, and Mariana (born in 1992, 1995, and 1998, respectively) - and stated that all three children were living in Costa Rica with his ex-wife. Mr. Ahumada Rojas did not, however, specify who had custody of them, although he stated that he had no contact with the children since 2009 and that they were estranged from him. Mr. Ahumada Rojas asked to have them excluded as family members for the purpose of his application, acknowledging that this meant that he would not be able to sponsor them at a later date.

6     Mr. Ahumada Rojas' application was refused because he neither provided documentary evidence that the children were in the sole custody of another person nor ensured that they underwent examination.

Issues

7     Mr. Ahumada Rojas raises the following issues:

 

·       a. 

Did the officer err in law by ignoring, misconstruing, or disregarding relevant evidence in arriving at his decision to refuse the applicant's application? 

·       b. 

Did the officer fail to observe the rules of procedural fairness in failing to address key documentary evidence in the applicant's application and/or failing to provide adequate reasons for dismissing said evidence? 

·       c. 

Did the officer err in law by not taking into account the respondent's public policy, which clarifies an otherwise restrictive application of section 72(1)(e)(i) of the Regulations? 

8     The standard of review of the first question is reasonableness: Negash v Canada (Minister of Citizenship and Immigration), 2012 FC 1164, at paras 15-16. The standard of review of the second question, which deals with procedural fairness, is correctness: Foroogh v Canada (Minister of Citizenship and Immigration), 2012 FC 1171, at paras 16-17. The standard of review of the third issue is reasonableness, because the section of the Regulations to be interpreted is neither of central importance to the legal system as a whole nor outside the specialized expertise of an immigration officer: Portillo v Canada (Minister of Citizenship and Immigration), 2012 FC 678,at para 21.

9     Each party filed an affidavit in the application and each object to the other's affidavit. A party cannot introduce new evidence which was not before the decision-maker: Lemiecha v Canada (Minister of Citizenship and Immigration), [1993] FCJ No 1333. As a result, paragraph 9 of the applicant's affidavit and the annexed exhibits I and J, being a letter from Mr. Ahumada Rojas' lawyer in Costa Rica and a money order, are inadmissible in these proceedings. Similarly, a decision-maker cannot tender new evidence relating to his or her decision in an attempt to bootstrap the decision: Kalra v Canada (Minister of Citizenship and Immigration), 2003 FC 941,at para 15. In my view, that is what the officer does in his affidavit and, to the extent that it contains information not in the CAIPS notes or decision letter, it is rejected as evidence in this proceeding.

Analysis

 

·       1. 

Failure to Have Regard for the Evidence as a Whole

10     Mr. Ahumada Rojas submits that the officer failed to have regard to the evidence as a whole. He points to the fact that there is no mention made in the refusal decision of (i) the signed declarations he provided confirming his understanding that failure to have his children examined would lead to their exclusion from the family class in the future, (ii) two separate confirmations from his former immigration consultant that he had not been able to contact the children, and (iii) the fact that the Canadian visa office was equally unsuccessful in locating the children.

11     He says that the officer approached the application with a closed mind, considering only the fact that the children were not examined, and gave no consideration to the documentary evidence that showed that this was not feasible. He further submits that the custody arrangement was irrelevant, as his signed declarations made it very clear that he had no contact with the children and no intention of sponsoring them in the future.

12     There is no dispute that Mr. Ahumada Rojas did not provide proof that he did not have custody of his children. None of the evidence before the officer contains a statement that Mr. Ahumada Rojas does not have custody, or that his ex-wife or some other person has custody. The absence of such evidence or an explanation why it is not available is shocking in light of the fact that the respondent sent two letters informing the applicant of this requirement. In its letter dated July 20, 2011, which was sent after the applicant provided statutory declarations indicating that he understood the consequences of his children not being examined, the respondent wrote: "As you have not been able to provide documentary evidence that your child(ren) are in the sole custody of another person, examination of the following family member(s) must continue ...[emphasis in original]." In its letter dated December 21, 2011, the respondent wrote: "you have not provided documentary evidence of your attempts to contact your children and you have not been able to provide documentary evidence that your child(ren) are in the sole custody of another person. Therefore examination for the following family member(s) must continue [emphasis in original]."

13     Mr. Ahumada Rojas simply says directly and through his representative that he has lost contact with the children. Given the importance for his application of establishing custody and the efforts made to contact them for examination, it was within the range of acceptable outcomes for the officer to find that the applicant had failed to meet his burden of proof.

14     I agree with the submission of the respondent that an officer must be satisfied that an applicant's family members are not inadmissible. Section 23 of the Regulations creates an exception regarding the admissibility requirements for applicants when their children are in the sole custody of a separated or former spouse. In order to take the benefit of that exception, applicants must provide documentary proof of custody arrangements for non-accompanying dependent children. The applicant failed to do this even after repeated requests.

15     Section 23(b)(iii) of the Regulations renders a foreign national inadmissible if, by virtue of a court order, a written agreement, or the operation of law, he or she has custody of the non-accompanying dependent children and they are not confirmed to be admissible. In this case, as a result of the applicant's failure to adduce the necessary evidence, there was no finding by the officer that he did not have custody of these three children. It is only when and if an officer makes such a finding and determines that the children need not be examined, that a request would be made for the declarations which the applicant submitted, purporting to exclude his children from the family class.

 

·       2. 

Procedural Fairness

16     The applicant submits that he was not provided with a reasonable opportunity to respond to the officer's concerns. I am simply unable to accept that submission. The applicant was repeatedly made aware of the precise issue and he was given over a year to provide the requested information or a satisfactory answer as to why it could not be provided. He provided neither. There was no breach of procedural fairness by the officer.

 

·       3. 

Failure to Consider Respondent's Policy

17     The respondent's IP8 Manual specifies that if family members are "genuinely unavailable" an officer may proceed to a statutory declaration. It requires officers to be "open to the possibility that a client may not be able to make a family member available for examination." They are advised to decide on a case-by-case basis, but the IP8 Manual specifies that proceeding without the examination of all family members is to be a "last resort" and the applicant cannot himself choose not to have a family member examined.

18     Absent evidence that the applicant had no custody of the children, I am unable to find that the officer erred or reached an unreasonable decision in finding that the applicant had not arrived at the point of last resort. It was reasonably open to the officer, given the evidence before him or her, to find that the applicant had not exhausted all avenues and to decline to proceed as provided for in IP8.

19     For these reasons, the application is dismissed. Neither party proposed a question for certification.

JUDGMENT

THIS COURT'S JUDGMENT is that the application is dismissed and no question is certified.

ZINN J.

HARPER SEEKS MORE SKILLED IMMIGRANTS

Question:Why, then, are we spending so much resources on those who do not have the right set of skills? Answer: political expediency and pandering. We need a major revamp of the system.

Canada needs to get competitive to attract skilled immigrants: Harper - The Globe and Mail

SENTENCE REDUCTION TO ALLOW IMMIGRATION APPEAL

While the Alberta Court of Appeal granted the appeal below, the court noted that all sentence reductions for immigration purposes must be small , a few days at the most.

R. v. Haultain

Between Her Majesty the Queen, Respondent, and
Tonya Lee Haultain, Appellant

[2012] A.J. No. 1114

2012 ABCA 318

Dockets: 1201-0050-A, 1201-0051-A

Registry: Calgary

 

 Alberta Court of Appeal
Calgary, Alberta

J.E.L. Côté, K.G. Ritter and M.B. Bielby J.A.

Heard: October 23, 2012.
Judgment: November 6, 2012.

(46 paras.)

Criminal law -- Sentencing -- Criminal Code offences -- Offences against rights of property -- Breaking and entering -- Break and enter -- Particular sanctions -- Imprisonment -- Concurrent sentences -- Sentencing considerations -- Submissions -- Joint submissions -- Previous record -- Minor -- Addicts -- Drugs -- Deportation -- Appeal by Haultain from two concurrent sentences of two years' imprisonment imposed for break and enter convictions allowed -- Appellant had been sentenced in two different sentencing hearings in two different locations 10 days apart -- Appellant sought sentence of two years' imprisonment at first sentence hearing to take advantage of federal addiction programs -- Both counsel sought two years' concurrent at second sentencing, which added 11 days to sentence -- Appellant was a permanent resident and sought to have sentences reduced for immigration purposes -- Considering appellant's circumstances and circumstances of the sentencing, sentences were reduced by 11 days.

Appeal by Haultain from two concurrent sentences for immigration purposes. The appellant was sentenced for a spree of offences in two different sentencing sessions in two different places 10 days apart. The appellant had pleaded guilty to two break and enters and possession of a stolen vehicle. Although the Crown in the first hearing initially suggested a sentence of less than two years, the defence asked for a two-year penitentiary sentence because the appellant wanted to access the federal programs. The judge thus sentenced the appellant to two years' imprisonment. At the second sentencing hearing, the appellant pleaded guilty to another break and enter. Both the defence and the Crown sought a sentence of two years' imprisonment, concurrent to the sentence the appellant was currently serving. The sentencing judge accepted the joint submission, which effectively added 10 days' imprisonment to the sentence the appellant was then serving. The appellant, a permanent resident, now sought to have the sentences reduced for immigration purposes. She had a prior record for fairly minor offences and was a drug addict. She hoped to address her addiction in the penitentiary system.

HELD: Appeal allowed. Each sentence was reduced by 11 days. There had been no improper manipulation on the part of the appellant in this case. The appellant's previous criminal record was a relevant consideration, but in this case was not given much weight. The first sentencing was not a joint submission. Although the second sentencing hearing was expressly stated to be a joint submission, it merely rubber stamped the previous sentence imposed 10 days before. Sentence: two years' imprisonment less one day.

Appeal From:

Appeal from the Sentence by The Honourable Judge G.E. Deck. Dated the 17th day of September, 2010 (Docket: 101090314P1).

Appeal from the Sentence by The Honourable Judge J.J. Ogle. Dated the 27th day of September, 2010 (Docket: 101090322P1).

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Memorandum of Judgment

The following judgment was delivered by

THE COURT:--

A. Introduction

1     The issue here is a small reduction of two concurrent criminal sentences for immigration purposes. A subissue is whether they were an entrenched joint submission.

B. Facts

2     It is necessary to review the sentencing process here in some detail.

1. Introduction

3     The appellant was sentenced for a spree of offences in two different sentencing sessions in two different places 10 days apart. There had been efforts to move all the cases before the same judge at the same time, but that proved impossible. So two sessions were coordinated, 10 days apart.

2. First Sentencing in Red Deer

4     In appeal #1201-0050-A from Judge Deck, the following is what happened.

5     On September 17, 2010 in Red Deer, Mr. Scrase was the appellant's counsel. He had known the appellant's late husband, who was Canadian. Mr. Scrase appeared and elected Provincial Court for the appellant. He said the appellant wished to plead guilty to two different break and enter incidents. The Crown stated the facts of the two incidents, plus the fact that a stolen vehicle was found. The accused acknowledged that the facts were correct, and Mr. Scrase acknowledged that the record handed in was correct.

6     Crown counsel said (on p 4):

 

·       I did speak to my friend about a high-end provincial sentence. He indicated to me that Ms. Haultain is interested in accessing the programs available through her B through the penitentiary system, and, Sir, the Crown would join Mr. Scrase in a two-year penitentiary sentence. 

He then withdrew count 4. It was possession of a stolen license plate. The appellant had just pleaded guilty to three counts, one of which was possession of a stolen vehicle.

7     Then Mr. Scrase gave the background and mentioned that the appellant was born in Indiana, grew up in Oregon, and came to Alberta later. He said she was now divorced after a marriage in Alberta. (In fact she grew up in, and was married in, British Columbia, not Oregon.)

8     After the accused said that she had nothing to add, the judge passed sentence, considered aggravating and mitigating circumstances, and said, "I do accept the joint submission." He sentenced the appellant to two years.

9     An affidavit of the appellant is submitted as new evidence. The Crown concedes that the new evidence is admissible. Paragraph 7 says:

 

·       I do verily believe that the Crown prosecutor was initially asking for a provincial sentence of less than two years. It was me who requested the sentence be to two years because I knew that programming and services were much better in the federal penitentiary system for people with addictions. I recognized that I had a serious problem and wanted to get help so I could be treated, become a real mother and grandmother, and live a more normal life once I finished my imprisonment ... I signed written instructions asking for this sentence, and my understanding is that the Crown and my counsel, on both occasions, made joint submissions to the Court for this sentence. 

The appellant attaches as exhibits the transcripts of both sentencing hearings. Maybe one cannot be entirely sure which hearing she is referring to where she says that she believes "that the Crown prosecutor was initially asking for a provincial sentence of less than two years", and that it was she who wanted the higher sentence of federal time. But it certainly sounds like the first sentencing in Red Deer, and does not correspond to the second sentencing hearing.

10     Mr. Scrase's affidavit says that the appellant's previous husband is now dead, and that Mr. Scrase had believed that she had become a Canadian citizen by marriage.

11     Mr. Scrase also swears that "during discussions regarding a joint submission, the Crown prosecutor, Mr. Jason Snider, indicated that he was considering a sentence in the approximate range of eighteen (18) months." The next paragraph says:

 

·       Ms. Haultain instructed me to request a two year federal sentence so that she may be able to access better programming in custody to assist with her addiction issues. I advised her that she was unlikely to be released earlier from federal custody, but she insisted on this sentence and appeared determined to overcome her addiction. 

12     Then toward the end of the affidavit, Mr. Scrase again refers to "a sentence of less than two years, as originally proposed by the Crown prosecutor", and says that he believes that "if Ms. Haultain's immigration status had been known", that lower sentence "would have ultimately been imposed."

13     It will be noted that the judge called it a joint submission, but Crown counsel had merely said that he had been "speaking" about a "high-end provincial sentence", and it was the defence who was interested in federal time, and the "Crown would join [defence counsel] in a two-year penitentiary sentence."

14     Neither counsel called it a joint submission.

3. Second Sentencing in Didsbury

15     The other appeal, #1201-0051-A, is about the second sentencing which occurred at Didsbury before Judge Ogle. On September 27, 2010, the accused appeared through closed circuit television. Defence counsel, Mr. Boulton, also appeared by video. He waived reading of the charge, and on behalf of the accused elected Provincial Court judge alone. He said that the appellant wished to plead guilty, and that s 606(1.1) of the Criminal Code had been complied with. The prosecutor then briefly stated the facts, which really were one break-in at Sundre (which the appellant revealed when being questioned about the Lacombe incidents). The judge said that all that was before him was the Sundre matter, and the prosecutor confirmed that. Defence counsel then admitted the facts which had been recited by the Crown with respect to the Sundre incident.

16     The prosecutor briefly spoke to sentence, and stated that the appellant was on probation at the time of the event. Defence counsel admitted the criminal record which was then made an exhibit.

17     The prosecutor then went on to say that the Crown was seeking 2 years concurrent with the sentences she was currently serving.

18     Then defence counsel spoke and said it was a joint submission. The judge commented that this would effectively add about 10 days. Defence counsel said yes, that was understood, and it was a joint submission. Again the accused said that she had nothing to add.

19     The judge said that in view of the record and the submissions of experienced counsel, he was satisfied that the joint submission was within the range of appropriate sentences, and he would follow it. He then had it clarified to him that it was 2 years, not 2 years less 1 day. Defence counsel said yes, that was correct, that the accused was looking forward to getting into the federal system. The judge then gave 2 years' imprisonment. (He and counsel went on to talk about ancillary orders.) At the end, the judge said that he should have specified that the sentence imposed that day was concurrent to any other time being served.

20     The affidavit by the other defence counsel, Mr. Boulton, a lawyer in Sundre, is that Ms. Haultain had already been sentenced to 2 years' imprisonment on September 17, 2010 in Red Deer, so the Crown prosecutor here in Sundre "suggested a concurrent 2 year sentence in this instance. I was instructed to accept this as a joint submission." Again in para 7 he says:

 

·       I do verily believe that if Ms. Haultain had received a sentence of less than 2 years on September 17, 2010 in Red Deer, the Crown prosecutor would have again sought a sentence that was identical and concurrent with the Red Deer sentence. 

21     That last sworn statement suggests that the proceeding at Didsbury was not really a joint submission, and that both sides were simply rubber stamping whatever had happened in Red Deer.

C. The Law on Immigration Considerations

22     Both counsel cited to us, and we read, a considerable number of appellate decisions on one question. Can an otherwise fit sentence be lowered on appeal to avoid adverse effects of immigration laws? Often the accused desires the right to appeal deportation, or stay a deportation order. The cases provided were from various Courts of Appeal. Almost all the adjustments to sentences made by them were tiny, such as one day. The only bigger adjustments were decided outside Alberta. The Alberta Court of Appeal decisions tend to be critical of thus interfering with immigration law and practice. Nothing in the present judgment is intended to reverse, vary, question, or criticize any of those Alberta Court of Appeal decisions.

23     They do allow such a reduction where it is small, the reduction would not render the sentence unfit, and there is no other impediment. The archetypical example is giving a sentence of 2 years less a day, instead of the original full 2 years. Sentencing is not so exact that a day or two ordinarily matters. And there is an old tradition of giving sentences of 2 years less a day to leave the prisoner in a provincial jail, so securing collateral benefits by minor adjustments in sentencing has precedent.

24     Here the appellant began this appeal by asking for just that, a reduction of 2 years to 2 years less a day. Then it was suggested that precise calculation of sentences might in effect make the second sentencing add 10 days. To avoid any more belated technical surprises, we see no reason in principle barring reducing each 2-year sentence to 2 years less 11 days. Once again, 11 days is well within the margin of error of sentences. For most penal purposes, 730 days and 719 days are virtually the same thing.

25     The Crown has been fair in this appeal. They do not argue that the Court of Appeal lacks power to do what the appellant requests. Nor is deference owed to the sentencing judges on this particular topic, as it was never raised before them; the very facts were not mentioned to them. The Crown says that the decision is in the Court of Appeal's discretion.

26     The Crown urges us not to exercise the discretion for a number of reasons. First, it says that the appellant deliberately lived in Canada as an adult for many years without taking out Canadian citizenship, saying that citizenship would have few advantages. Here that factor has low weight. She herself did not immigrate. The convicted appellant was brought here by her parents as a child. The U.S.A. and Canada look superficially so similar to someone who has just attained his or her majority, that that oversight is not grave.

27     The Crown also objects that here the accused deliberately sought 2 years in jail, not 2 years less a day, to get better treatment in a federal institution (and may have got it). We see no improper manipulation in this case. And that choice probably helped with rehabilitation here, which is in the public interest. In other fact situations, deliberately reversing course between the sentencing court and the Court of Appeal might be weightier. In some prosecutions one wonders whether the aim was earlier pre-release under federal parole procedures, but here the sworn evidence of the appellant and her first sentencing counsel clearly negative that aim.

28     Finally, the Crown urges that we weigh previous offences by the appellant, i.e. her criminal record. That deserves some weight. But hers is not a grave record, and featured fairly small crimes until this group. Strikingly, it also demonstrated a very unusual late onset of crime, doubtless from drug addiction. Very few people of good character first begin committing smaller crimes at age 46.

29     The two sentences appealed here were the first "break and enters" of which the appellant was ever convicted (and they were very small). She had had five previous sentencings, each with about three charges. Most were for theft or possession of stolen goods, always under $5000 value. A few were for failure to comply, to appear, or to attend.

30     Her highest previous sentence was 6 months, and a number were far lighter. There had been a gap between the last of the previous convictions and the offence date of the offences now under appeal.

31     The previous criminal record is a relevant consideration, but in this case we do not give it so much weight as the Crown suggests. So absent any other obstacle, we would reduce the sentence by 11 days.

D. Joint Submissions?

32     But is there another obstacle? Before neither Provincial Court judge did the prosecutor and the defence counsel enter into a contest over what the sentence should be. And in the second courtroom, it was expressly stated that this was a "joint submission". Were these indeed joint submissions? The Crown suggests they were (para 20). Or if they were not, should they have the same effects as joint submissions?

33     Here we must distinguish the two different rules which apply to joint submissions. The first rule is that the sentencing judge and the Court of Appeal owe a good deal of deference to a joint submission, and should only reject it for good reason. That is largely because ordinarily the courts have no way to know what factors (bargains or other things) led to the joint submission. The second rule is that counsel should not find their joint submission rejected without prior warning and a chance to argue or explain or adduce evidence to support it.

34     Obviously this second rule is irrelevant here; neither sentencing judge departed from the suggestion of any of the four counsel.

35     The distinction between the two rules matters, because one finds some statements and debate about the definition or boundaries of a joint submission. Should coincidental identity of opposing counsel's submissions be treated as a joint submission, or should partly overlapping sentence ranges from the two sides be so treated? However, all such cases which we have seen are about the second rule (duty to warn). That rule is irrelevant here. None of those debates were about the first rule (owing deference).

36     At the first sentencing, in the City of Red Deer, counsel arrived with no common view, and the transcript negatives any previous sentence bargain. Crown counsel proposed an 18-month sentence (which is almost half a year less than what the defence seeks today from the Court of Appeal). At the sentencing, the defence suggested 2 years, to get the advantage of a federal facility. The Crown acquiesced. There was no negotiation, back and forth, or quid pro quo for the sentence. And it seems impossible that either side gave up anything to get this sentence. The charge of possessing a license plate was withdrawn, doubtless in return for the guilty pleas. But had that charge proceeded and not been withdrawn, it could not possibly have affected the global sentence.

37     We repeat that the Crown began lower and the defence wanted to go up. That sort of "reverse auction" is not unheard of, but it is definitely seen only in a small minority of cases. It shares very few of the usual circumstances which could even motivate a joint submission.

38     In our view, this first sentencing was not a joint submission. And if we are wrong and it was one, it was a very unusual one with few, if any, of the usual reasons for deferring to a joint submission. The transcript here assures the Court of Appeal that it can review the sentence without fear of hidden factors such as a quid pro quo for the sentence.

39     The second sentencing hearing in the Town of Didsbury was expressly stated to be "a joint submission", but clearly it merely rubber stamped the previous sentence 10 days before. There had been some attempt to have all the sentences imposed at the same time and place, but that proved impossible. Though the second sentencing judge had to be satisfied that the sentence was roughly within a proper range, the role of the second two counsel that day was hardly more than clerical.

40     What is more, both sentencing sessions were infected with errors, such as assuming that the appellant was a Canadian citizen. That is made clear by the new evidence on appeal, whose admission under express motion the Crown concedes. There are obvious grave dangers to later reopening sentences or joint submissions on the basis of, "Oh, I hadn't thought of that", e.g. learning later that the sentence given bars getting a visa to visit another country, or bars a certain type of employment.

41     However, once again we note that what the appeal here seeks is not a general or significant reopening, and only a minor sentence adjustment (at most 11 days). Besides, as noted, the whole sentence is much (1/2 year) above what the Crown requested. It was the appellant who asked for and got so long a sentence; the sentence clearly would not have to be this long had the appellant not asked for it. Neither the facts as understood at the sentencing, nor the facts now known, require so long a sentence. To repeat the context, all that injecting discovery of the mistake does is to allow the Court to tinker a little with the unusual (inverted) submissions here by counsel, joint submission or not. We do not suggest mistake as a way to attack sentences in general, still less to attack sentences fit in themselves.

42     Though sentencing memoranda of decision have limited weight as precedent, we take some comfort in the fact that in two Alberta cases the Court of Appeal reduced a sentence by a day for immigration reasons, though the original sentence was a joint submission. See R v Leung, 2004 ABCA 55, 354 A.R. 2, and R v Duhra, 2011 ABCA 165, 505 A.R. 248.

E. Is Sentence Outside Proper Range?

43     The factum of the appellant asserts that, even ignoring all immigration topics, the sentences here were too high. It asks the Court of Appeal to intervene on that ground alone. We disagree. Two years concurrent for this group of offences was not outside a proper range, though obviously sentences a number of months lower could also be justified and inside a proper range.

F. Conclusion

44     However, for all the other reasons given in the earlier parts of this judgment, we have concluded that a minor downward adjustment is proper.

45     Therefore, we grant leave to appeal (if leave was never earlier granted), and we allow the two appeals by reducing each sentence by 11 days.

46     Counsel for the appellant had sent us a letter expressing concern about whether the conviction on one count was proper, but he later told us at the opening of argument that he was not pressing the point. Probably the practical inconveniences of trying to raise a conviction appeal at this late date would swamp any tiny practical advantage which might thus be gained.

J.E.L. CÔTÉ J.A.
K.G. RITTER J.A.
M.B. BIELBY J.A.