Thursday, May 7, 2015

Immigration Consequences of Sentence Proper to Consider

R. v. Nassri, 2015 ONCA 316

[25]       The appellant does not argue that the sentence imposed by the trial judge was unfit. He does submit that when the drastic and unforeseen collateral consequences of the sentence flowing from the change to s. 64(2) of the IRPA are taken into account, the result is grossly out of proportion to the crime he committed. He contends that a sentence of just under six months is within the realm of reasonable sentences for this offence and this offender.

[26]       The determination of this appeal is governed by the principles set out in the Supreme Court of Canada's decision in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739.  The collateral consequences in Pham and this case flow from the same statutory scheme. In Pham, the sentencing judge was not aware that "[u]nder the IRPA [in force at the time], a non-citizen sentenced in Canada to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her" (para. 4).  As in this appeal, the central issue in Pham was "whether a sentence otherwise falling within the range of fit sentences can be varied by an appellate court on the basis that the offender would face collateral consequences ... that were not taken into account by the sentencing judge" (para. 1).  

[27]       The court in Pham answered that question affirmatively. Writing for a unanimous court, Wagner J. found that the principles of individualization and parity, as well as "the sentencing objective of assisting in rehabilitating offenders", make the collateral consequences of a sentence relevant (para. 11). Wagner J. held that "when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offender, the most suitable one may be the one that better contributes to the offender's rehabilitation" (para. 11). Wagner J. added at para. 12 that "the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence". He accepted the proposition that "[b]urdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel".

[28]       Any sentence must, however, be fit having regard to the crime and the offender. Wagner J. cautioned, at para. 15:

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will.

Wagner J. explained, at para. 14, a sentencing judge should therefore first determine whether the sentence that avoids the collateral consequences is even a possibility: 

[A] sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

[29]       While this was a serious offence for which a period of incarceration was required, I do not agree with the Crown that there is any clearly defined lower limit from the jurisprudence that would require a sentence of six months or more. To the contrary, for the reasons that follow, a custodial sentence of just under six months was within the appropriate range for this offence and offender


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