Sentence for sexual exploitation reduced to avoid automatic deportation

R. v. B.R.C., 2010 ONCA 561 is an extraordinary case. The convict was convicted of sexual exploitation of his common law partner's teen aged son and was sentenced to 30 months imprisonment.  

The convict came to Canada as an infant but never became a citizen. As a result he, at age 45, was subject to deportation. Because the sentence was for more than two years, the convict could not appeal the deportation order to the Immigration Appeal Division: Immigration and Refugee Protection Act, 2001, c. 27. s. 64(2).  Had the sentence been for less than two years, the convict would have a right of appeal. 

The trial judge did not know of the immigration issue.

The Court of Appeal reduced the sentence to allow for an appeal against deportation. In so doing the Court emphasized the "human face" of sentencing. Some might ask about the failure to take out citizenship and the human face of the teen victim but that is another issue.

The Court held:

[1]               The appellant pleaded guilty to sexual exploitation and was sentenced to 30 months imprisonment.  The victim was the son of the appellant's common law partner and was between age 15 and 17 at the time the offence was committed.
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[8]               This court has held that "the certainty of deportation may justify some reduction in the term of imprisonment for purely pragmatic reasons":  R. v. Hamilton (2004), 72 O.R. (3d) 1 at para. 156.  While the sentencing process should not be used to circumvent the provisions of the Immigration and Refugee Act, the calculation of the appropriate sentence is not an exact science.  Where there is a range of possible sentences, the fact that an offender will face deportation under one possibility "is one of the factors which is to be taken into consideration…in conjunction with all of the other circumstances of the case" in choosing the appropriate sentence and tailoring the sentence to fit the crime and the offender: R. v. Melo (1975), 26 C.C.C. (2d) 510 at p. 516.

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[14]          The sentencing process must retain "a human face".  Hamilton, supra, at para. 158; R. v. Iamkhong 2009 ONCA at para. 60.  Appellate courts appropriately exercise their powers in exceptional cases to avoid unintended penalties and consequences that would be patently unjust and unfair.  The cumulative effect of the factors I have mentioned makes this such a case.  The appellant has effectively served his time.  It would be unfair and unjust to leave in place a sentence that would have the unintended effect of condemning the appellant to exile in a country with which he has no meaningful connection.