Sentence reduced (very slightly) for immigration reasons

R. v. Duhra, 2011 ABCA 165 is another decision in which an appeal court reduced a sentence imposed at the trial level because of the immigration consequences of such sentence.  Although no issue was taken with the fitness of sentence at trial, the immigration consequences of the sentence were overlooked and the Court of Appeal varied the sentence to take those into account.  Perhaps the best lesson to take from this case, and similar cases, is to ensure the immigration status of an accused is known at sentencing and the effect of a sentence is raised before the sentencing judge.

 

The Court held:

 

[1]               The appellant was born in India. He immigrated to Canada with his parents in 1992. He is now 43 years old and a permanent resident, but not a Canadian citizen. On a joint submission following his guilty plea to a count of robbery, he was sentenced to a term of imprisonment that (with double credit for pre-trial custody) was regarded by the sentencing judge as an effective sentence of imprisonment for two years plus 18 months probation. Although double credit for pre-sentence custody figures in this analysis, it has been stated that the effective prison term will be treated in law as two years if that is what the sentencing judge stated: see R v Belance, 2011 QCCA 137 (CanLII), 2011 QCCA 137, [2011] JQ no 432 (QL), under motion as of (March 29, 2011) [2011] SCCA No 121 (QL) (SCC No 34176).

 

[2]               At the time the sentence was imposed, no one raised with the sentencing judge the implications under those circumstances of the Immigration and Refugee Protection Act (IRPA). The appellant, since sentencing, has been notified that he faces an initial hearing to determine if he is a person “described in paragraph 36(1)(a)” of IRPA. By operation of IRPA, a person convicted of an offence of “serious criminality” under sections 36 and 64 of IRPA becomes subject to deportation on grounds of inadmissibility.

 

[3]               Under section 64 of IRPA, if the prison sentence imposed is “at least two years”, the person is not given any right to appeal to the Immigration Appeal Division. As pointed out in Medovarski v Canada, 2005 SCC 51 (CanLII), 2005 SCC 51 at paras 43 to 48, 2005 SCC 51 (CanLII), [2005] 2 SCR 539, the serious criminality provision therefore has a significant impact on the individual affected as it is, let alone when coupled with elimination of any right to appeal to the Immigration Appeal Division. Nonetheless, as pointed out by the Crown in reliance on Medovarski, the individual does not have an absolute legal right to remain in Canada, although he is not, on the other hand, completely stripped of his options.

…

 

[9]               We recognize the illogic of reducing a sentence for an offender either to a disproportionately low sentence or to a lower sentence than a citizen might receive reasonably for the same crime in order to assist an offender guilty of serious criminality towards a lighter burden under section 64 of IRPA: see R v Belenky, 2010 ABCA 98 (CanLII), 2010 ABCA 98, 477 AR 354, (2010) 253 CCC (3rd) 344; R v Morgan, 2008 NWTCA 12 (CanLII), 2008 NWTCA 12, (2008) 239 CCC (3rd) 187. With all due respect to a few appeal panels in Canada which may have reached somewhat different results in a few cases, we are not persuaded that citizenship should be a disadvantage for sentencing purposes.

 

[10]           But the present case is not at all like that. In sum, the appellant is seeking the same fit sentence which he, his counsel and Crown counsel thought was being imposed. He is a long-term resident of Canada. No one considered section 64 of IRPA.

 

[11]           We are persuaded that the justice of this case, as well as the proportionality principle and relevant considerations and recommendations, lead to the conclusion that the appeal should be allowed and the prison sentence cut to an effective term of two years less one day. All of the other elements of the sentence are affirmed.