Thursday, March 14, 2013

Immigration consequences a proper consideration on sentencing

A number of cases have dealt with whether a reduction in sentence is appropriate to avoid immigration consequences: R. v. Duhra, 2011 ABCA 165 and R. v. B.R.C., 2010 ONCA 561 are two examples.  Reduced sentences are often given avoid deportation. In so doing the Courts have emphasized the "human face" of sentencing. Some might ask about the failure to take out citizenship and the human face of the victim but that is another issue. 


Today’s Supreme Court decision in R. v. Pham, 2013 SCC 15 follows these decisions.  The Court holds that a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.  The significance of collateral immigration consequences will depend on the facts of the case.  However, it remains that they are but one of the relevant factors that a sentencing judge may take into account in determining an appropriate sentence.  Those consequences must not be allowed to skew the process either in favour of or against deportation.  Further, it remains open to the sentencing judge to conclude that even a minimal reduction of a sentence would render it inappropriate in light of the gravity of the offence and the degree of responsibility of the offender.


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 had 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 Court of Appeal.  In the case at bar, the sentencing judge was unaware of the sentence’s collateral immigration consequences and the Crown had conceded that sentence should be reduced by one day.  It was wrong for the Court of Appeal to refuse the sentence reduction based solely on the fact that the accused had a prior criminal record or on its belief that the accused had abused the hospitality that had been afforded to him by Canada.  It is therefore appropriate to grant the variation of the sentence from two years to two years less a day.



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