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SUPREME
COURT OF CANADA
Citation: R. v. Pham, 2013 SCC 15, [2013] 1
S.C.R. 739
|
Date: 20130314
Docket: 34897
|
Between:
Hoang
Anh Pham
Appellant
and
Her
Majesty The Queen
Respondent
-
and -
Canadian
Association of Refugee Lawyers, Criminal Lawyers’ Association of Ontario,
British Columbia Civil Liberties Association, Canadian Council for Refugees and
Canadian Civil Liberties Association
Interveners
Coram: LeBel, Fish, Abella, Rothstein, Moldaver, Karakatsanis and
Wagner JJ.
Reasons
for Judgment:
(paras. 1 to 26)
|
Wagner J. (LeBel, Fish, Abella,
Rothstein, Moldaver and Karakatsanis JJ. concurring)
|
Appeal
heard and judgment rendered: January 18, 2013
Reasons
delivered: March 14, 2013
R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739
Hoang Anh Pham Appellant
v.
Her Majesty The Queen Respondent
and
Canadian Association of Refugee Lawyers,
Criminal Lawyers’ Association of
Ontario,
British Columbia Civil Liberties
Association,
Canadian Council for Refugees and
Canadian Civil Liberties
Association Interveners
Indexed as: R. v. Pham
2013 SCC 15
File No.: 34897.
Hearing and judgment: January 18, 2013.
Reasons delivered: March 14, 2013.
Present: LeBel, Fish, Abella, Rothstein, Moldaver, Karakatsanis and
Wagner JJ.
on appeal from the court of appeal for
alberta
Criminal
law — Sentencing —
Considerations — Collateral consequences of sentence — Accused sentenced to two
years’ imprisonment — Sentencing judge not made aware that sentence would
result in loss of right to appeal removal order under Immigration and Refugee
Protection Act — Court of Appeal refusing to vary sentence to two years less a
day — What weight should be attributed to collateral consequences in sentencing?
— Whether sentence can be varied by appellate court on basis that accused would
face collateral consequences — Criminal Code, R.S.C. 1985, c. C‑46, ss. 718.1 ,
718.2 .
The
accused, a non‑citizen, was convicted of two drug‑related
offences. In light of a joint submission by the Crown and defense counsel, the
sentencing judge imposed a sentence of two years’ imprisonment. Under the Immigration
and Refugee Protection Act , a non‑citizen sentenced to a term of
imprisonment of at least two years loses the right to appeal a removal order
against him or her. In the present case, neither party had raised the issue of
the collateral consequences of a two-year sentence on the accused’s immigration
status before the sentencing judge. The majority of the Court of Appeal
dismissed the appeal and refused to vary the sentence.
Held:
The appeal should be allowed and the sentence of imprisonment reduced to two
years less a day.
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.
Cases Cited
Referred
to: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R.
455; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Badhwar, 2011
ONCA 266, 9 M.V.R. (6th) 163; R. v. Hamilton (2004), 72 O.R. (3d) 1; R.
v. Guzman, 2011 QCCA 136 (CanLII).
Statutes and Regulations Cited
Controlled Drugs and Substances Act,
S.C. 1996, c. 19, ss. 5(2) , 7(1) .
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 718 , 718.1 , 718.2 .
Immigration and Refugee Protection Act,
S.C. 2001, c. 27, s. 64 .
Authors Cited
Manson, Allan. The Law of Sentencing. Toronto: Irwin Law,
2001.
Ruby, Clayton C., Gerald J. Chan and Nader R. Hasan. Sentencing,
8th ed. Markham, Ont.: LexisNexis, 2012.
APPEAL
from a judgment of the Alberta Court of Appeal (Martin, Watson and
McDonald JJ.A.), 2012 ABCA 203, 288 C.C.C. (3d) 305, 533 A.R. 192, 557
W.A.C. 192, 11 Imm. L.R. (4th) 1, [2012] A.J. No. 672 (QL), 2012
CarswellAlta 1109, affirming a sentence imposed by Barley J. Appeal
allowed.
Erika Chozik and Alias
Sanders, for the appellant.
Ronald C. Reimer and Donna Spaner, for the respondent.
John Norris and Melinda
Gayda, for the intervener the Canadian Association of Refugee Lawyers.
P. Andras Schreck and Apple Newton‑Smith, for the intervener the
Criminal Lawyers’ Association of Ontario.
Lorne Waldman, Clare
Crummey and Tamara Morgenthau, for the intervener the British
Columbia Civil Liberties Association.
Barbara Jackman and Carole
Simone Dahan, for the intervener the Canadian Council for Refugees.
Matthew S. Estabrooks and D. Lynne Watt, for the intervener the Canadian Civil
Liberties Association.
The
judgment of the Court was delivered by
Wagner J. —
I. Introduction
[1]
The central issue in this appeal is 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 under the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (“IRPA ”), s. 64 , that were not taken into account by the
sentencing judge.
[2]
Since the Crown conceded that, had it been aware
of the collateral consequences at the time of the sentencing hearing, it would
have agreed to a sentence of two years less a day, this Court decided at the
conclusion of oral argument to allow the appeal and reduce the sentence from
two years to two years less a day. The following are the reasons for that
decision.
II. Background
[3]
Hoang Anh Pham was convicted on charges of
producing marihuana and possessing it for the purpose of trafficking contrary
to ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act, S.C.
1996, c. 19 . In light of a joint submission by the Crown and counsel for the
appellant, the Provincial Court of Alberta imposed a sentence of two years’
imprisonment.
[4]
Mr. Pham appealed the sentence, seeking to have
it reduced by one day. He argued that the sentencing judge was not aware of
and, for this reason, did not consider the collateral consequences of a
sentence of two years’ imprisonment on his immigration status. Under the IRPA ,
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. Considering
that a sentence of two years less a day, like the imposed sentence of two
years, remained within the range of appropriate sentences, the Crown conceded
that the sentence should be reduced by one day. It must be noted that neither
the appellant’s counsel nor the Crown had raised these issues before the
sentencing judge, who apparently was not aware of the collateral consequences.
[5]
Despite the Crown’s concession, the majority of
the Court of Appeal of Alberta refused to vary the appellant’s sentence by one
day, holding that, in the circumstances, allowing the appeal from a sentence
situated within the range of otherwise fit sentences would inappropriately
undermine the provisions of the IRPA (2012 ABCA 203, 533 A.R. 192, at
paras. 24-25). The dissenting judge would have allowed the variation, noting
that, had the appellant’s counsel been aware of the collateral consequences of
a two-year sentence in this case, a joint submission for a sentence of two
years less a day would have been agreed upon (para. 33).
III. Analysis
[6]
Proportionality is a fundamental principle of
sentencing. Section 718.1 of the Criminal Code, R.S.C. 1985, c. C‑46 ,
provides that a sentence must
be proportionate to the gravity of the offence and the degree of responsibility
of the offender.
[7]
LeBel J. explained proportionality as follows in
R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37:
Proportionality is the sine qua non
of a just sanction. First, the principle ensures that a sentence reflects the
gravity of the offence. This is closely tied to the objective of denunciation.
It promotes justice for victims and ensures public confidence in the justice
system. . . . Second, the principle of proportionality ensures that a sentence
does not exceed what is appropriate, given the moral blameworthiness of the
offender. In this sense, the principle serves a limiting or restraining
function and ensures justice for the offender. In the Canadian criminal justice
system, a just sanction is one that reflects both perspectives on
proportionality and does not elevate one at the expense of the other.
[8]
In addition to proportionality, the principle of
parity and the correctional imperative of sentence individualization also
inform the sentencing process. This Court has repeatedly emphasized the value
of individualization in sentencing: Ipeelee, at para. 39; R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 21; R. v. M. (C.A.),
[1996] 1 S.C.R. 500, at para. 92. Consequently, in determining what a fit
sentence is, the sentencing judge should take into account any relevant
aggravating or mitigating circumstances (s. 718.2 (a) of the Criminal
Code ), as well as objective and subjective factors related to the
offender’s personal circumstances.
[9]
As a corollary to sentence individualization,
the parity principle requires that a sentence be similar to those imposed on
similar offenders for similar offences committed in similar circumstances (s.
718.2 (b) of the Criminal Code ). In other words, “if the personal
circumstances of the offender are different, different sentences will be
justified” (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed.
2012), at §2.41).
[10]
Ultimately, the sentence that is imposed must be
consistent with the fundamental purpose of sentencing, which is to contribute
to respect for the law and the maintenance of a just, peaceful and safe
society. The sentence must have one or more of the objectives of denunciation,
general and specific deterrence, separation of offenders from society if need
be, rehabilitation, reparations to victims for harm done to them, promotion of
a sense of responsibility in offenders and acknowledgment of the harm done to
victims and to the community (s. 718 of the Criminal Code ).
[11]
In light of these principles, the collateral
consequences of a sentence are any consequences for the impact of the sentence
on the particular offender. They may be taken into account in sentencing as
personal circumstances of the offender. However, they are not, strictly
speaking, aggravating or mitigating factors, since such factors are by
definition related only to the gravity of the offence or to the degree of
responsibility of the offender (s. 718.2 (a) of the Criminal Code ).
Their relevance flows from the application of the principles of
individualization and parity. The relevance of collateral consequences may also
flow from the sentencing objective of assisting in rehabilitating offenders (s.
718 (d) of the Criminal Code ). Thus, when two possible sentences
are both appropriate as regards the gravity of the offence and the
responsibility of the offenders, the most suitable one may be the one that
better contributes to the offender’s rehabilitation.
[12]
However, 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. Professor Manson explains this as
follows:
As
a result of the commission of an offence, the offender may suffer physical,
emotional, social, or financial consequences. While not punishment in the true
sense of pains or burdens imposed by the state after a finding of guilt, they
are often considered in mitigation. . . .
. . .
The
mitigating effect of indirect consequences must be considered in relation both
to future re-integration and to the nature of the offence. Burdens and
hardships flowing from a conviction are relevant if they make the rehabilitative
path harder to travel. Here, one can include loss of financial or social
support. People lose jobs; families are disrupted; sources of assistance
disappear. Notwithstanding a need for denunciation, indirect consequences which
arise from stigmatization cannot be isolated from the sentencing matrix if they
will have bearing on the offender’s ability to live productively in the
community. The mitigation will depend on weighing these obstacles against
the degree of denunciation appropriate to the offence. [Emphasis added.]
(The
Law of Sentencing (2001), at pp. 136-37)
[13]
Therefore, collateral consequences related to
immigration may be relevant in tailoring the sentence, but their significance
depends on and has to be determined in accordance with the facts of the
particular case.
[14]
The general rule continues to be that a sentence
must be fit having regard to the particular crime and the particular offender.
In other words, 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.
[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.
[16]
These consequences must not be allowed to
dominate the exercise or skew the process either in favour of or against
deportation. Moreover, it must not lead to a separate sentencing scheme with a de
facto if not a de jure special range of sentencing options where
deportation is a risk.
[17]
In R. v. Badhwar, 2011 ONCA 266, 9 M.V.R.
(6th) 163, the offender was convicted of criminal negligence causing death
while street racing and failure to stop at the scene of an accident. He was
sentenced to 30 months (less 5 months for pre-trial custody) on the first count
and 12 months consecutive on the second. On appeal, he did not seek a reduction
of his global sentence of 37 months; rather, he asked the court to adjust his
sentence to 23 months and 19 months consecutive in order to avoid the
collateral consequences of a sentence of 24 months or more, namely the loss of
his immigration appeal rights. I agree with Moldaver J.A. (as he then was),
who, in refusing to grant the adjustment, wrote the following, at paras. 42-45:
In seeking to have his
sentence adjusted, the appellant does not suggest that the trial judge erred in
imposing a penitentiary sentence on the charge of criminal negligence causing
death — nor could he. This court . . . upheld a 30 month sentence for
[the offence of criminal negligence causing death while street racing] in
respect of Mr. Multani (2010), 261 O.A.C. 107 (Ont. C.A.).
Significantly,
in Multani’s case, the court refused to give effect to Mr. Multani’s submission
that the sentence of 30 months should be reduced to 23 months for reasons
relating to his immigration status. At para. 3 of the decision, the court noted
that “while the deportation consequences of the sentence may be a proper factor
to consider in determining the appropriate sentence in certain cases,
immigration consequences cannot take a sentence out of the appropriate range.”
That
principle applies equally to the appellant. In his case, somewhat ironically,
he seeks to benefit from the fact that he was convicted of two offences and therefore
can seek the adjustments he is requesting without interfering with the overall
length of his sentence — something Mr. Multani could not do given that he was
only convicted of the single offence of criminal negligence causing death.
No
matter how one chooses to come at the issue, the bottom line remains the same.
Courts ought not to be imposing inadequate or artificial sentences at all, let
alone for the purpose of circumventing Parliament’s will on matters of
immigration.
[18]
It follows that where a sentence is varied to
avoid collateral consequences, the further the varied sentence is from the
range of otherwise appropriate sentences, the less likely it is that it will
remain proportionate to the gravity of the offence and the responsibility of
the offender. Conversely, the closer the varied sentence is to the range of
otherwise appropriate sentences, the more probable it is that the reduced
sentence will remain proportionate, and thus reasonable and appropriate.
[19]
I adopt the position asserted by Doherty J.A. in
R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at paras. 156 and 158:
. . . the risk of deportation
cannot justify a sentence which is inconsistent with the fundamental purpose
and the principles of sentencing identified in the Criminal Code . The
sentencing process cannot be used to circumvent the provisions and policies of
the Immigration and Refugee Act. As indicated above, however, there is
seldom only one correct sentencing response. The risk of deportation can be a
factor to be taken into consideration in choosing among the appropriate
sentencing responses and tailoring the sentence to best fit the crime and the
offender . . . .
. . .
. .
. If a trial judge were to decide that a sentence at or near two years was the
appropriate sentence in all of the circumstances for [the offender], the trial
judge could look at the deportation consequences for [the offender] of imposing
a sentence of two years less a day as opposed to a sentence of two years. I see
this as an example of the human face of the sentencing process. If the future
prospects of an offender . . . can be assisted or improved by imposing a
sentence of two years less a day rather than two years, it is entirely in
keeping with the principles and objectives of sentencing to impose the shorter
sentence. While the assistance afforded to [the offender] by the imposition of
a sentence of two years less a day rather than two years may be relatively
small, there is no countervailing negative impact on broader societal interests
occasioned by the imposition of that sentence . . . . [Citations omitted.]
[20]
Accordingly, the sentencing judge is not
compelled in all circumstances to adjust a sentence in order to avoid the
impact of collateral immigration consequences on the offender. It remains open to
the judge to conclude that even a minimal reduction, i.e. from two years’
imprisonment to two years less a day, would render the sentence inappropriate
for the particular offence and the particular offender. Collateral immigration
consequences are but one relevant factor amongst many others related to the
nature and the gravity of the offence, the degree of responsibility of the
offender and the offender’s personal circumstances.
[21]
The reasons of Doyon J.A. in R. v. Guzman,
2011 QCCA 136 (CanLII), provide an illustration of this approach to the
treatment of collateral immigration consequences in sentencing. In that case,
the Quebec Court of Appeal was asked to grant a minimal variation of a sentence
to ensure that the sentence would not have adverse consequences for the
offender’s immigration status. Doyon J.A. declined to acquiesce in this
request, stating that, in light of the facts of the case, a reduction of the
sentence, even a modest reduction of one day, would be both unfit and
inconsistent with the principles of sentencing. He held as follows, at paras.
102-3:
[translation] In summary, the status of
the appellants and the impact of the prison sentences on their right to appeal
to the Immigration Appeal Division are relevant circumstances and must be taken
into consideration. However, given the circumstances in which the offences were
committed, their seriousness, the profile of the appellants, and the objectives
and principles of sentencing set out in the Criminal Code , I am of the
view that the sentences inflicted on the appellants are fit even if they are
not reduced by one day, as the appellants seek.
. .
. the near total lack of factors suggesting a real
possibility of rehabilitation and change of behaviour on the part of the
appellants convinces me that, even if the judges had been aware of all of
the relevant facts, they would not have imposed sentences of less than two
years’ imprisonment solely to allow the appellants to preserve their right
of appeal. [Emphasis added.]
[22]
In sum, collateral immigration consequences may
be just as relevant in sentencing as the collateral consequences of other
legislation or of circumstances specific to the offender.
[23]
Where the issue of immigration consequences is
brought to the trial judge’s attention and the trial judge applies the proper
sentencing principles but nonetheless decides on a two-year sentence, then,
absent fresh evidence, deference is owed to that decision. Where this issue has
not been raised before the trial judge and the Crown does not give its consent,
an affidavit or some other type of evidence should then be adduced for
consideration by the Court of Appeal.
[24]
An appellate court has the authority to
intervene if the sentencing judge was not aware of the collateral immigration
consequences of the sentence for the offender, or if counsel had failed to
advise the judge on this issue. In such circumstances, the court’s intervention
is justified because the sentencing judge decided on the fitness of the
sentence without considering a relevant factor: M. (C.A.), at para. 90.
As I explained above, however, the aim of such an intervention is to determine
the appropriate sentence in light of the facts of the particular case while
taking all the relevant factors into account. Although there will be cases in which
it is appropriate to reduce the sentence to ensure that it does not have
adverse consequences for the offender’s immigration status, there will be other
cases in which it is not appropriate to do so.
[25]
In the case at bar, the sentencing judge was not
aware of the sentence’s collateral immigration consequences, and the appellate
court accordingly had the authority to intervene. The Crown conceded both in
the Court of Appeal and at the hearing in this Court that a reduced sentence of
two years less a day remains within the range of otherwise fit sentences and
that the imposed sentence of two years’ imprisonment should be reduced by one
day. The Crown also agreed that the reduced sentence is the one that the
sentencing judge would have imposed in the case at bar had he been aware of the
collateral immigration consequences (R.F., at para. 69). It was wrong for the
Court of Appeal to refuse the one-day reduction solely on the basis that the
appellant had a prior criminal record or that it felt that he had “abused the
hospitality that [had] been afforded to him by Canada” (para. 24). It is
therefore appropriate to grant the variation of the sentence sought by the
appellant.
IV. Conclusion
[26]
For these reasons,
the Court allowed the appeal at the conclusion of the hearing and reduced the
sentence of imprisonment from two years to two years less a day.
Appeal
allowed.
Solicitors
for the appellant: Chozik Law, Toronto; Alias Sanders, Calgary.
Solicitor
for the respondent: Public Prosecution Service of Canada, Edmonton.
Solicitors
for the intervener the Canadian Association of Refugee
Lawyers: Simcoe Chambers, Toronto; Refugee Law Office, Toronto.
Solicitors
for the intervener the Criminal Lawyers’ Association of
Ontario: Schreck Presser, Toronto; Berkes Newton‑Smith,
Toronto.
Solicitors
for the intervener the British Columbia Civil Liberties
Association: Waldman & Associates, Toronto.
Solicitors
for the intervener the Canadian Council for Refugees: Jackman Nazami
& Associates, Toronto; Refugee Law Office, Toronto.
Solicitors for the
intervener the Canadian Civil Liberties Association: Gowling Lafleur
Henderson, Ottawa.