In this case the Supreme Court of Canada unanimously agreed that a sentencing judge may reduce a sentence in order to prevent deportation.  The Court also held that if immigration-related concerns were not raised before a sentencing judge, they may be raise before an appellate court.

Facts

Mr. Pham was convicted on charges of producing and possessing marijuana for the purpose of trafficking and was sentenced to two years’ imprisonment.  According to Immigration and Refugee Protection Act s 64, Mr. Pham, as a non-citizen sentenced in Canada to a term of two years, loses his right to appeal a removal order.  Mr. Pham’s counsel and the Crown did not raise the immigration issues before the sentencing judge.  Mr. Pham appealed the sentence seeking to have it reduced by one day, arguing that the sentence judge was not aware of the collateral consequences of two years’ imprisonment on his immigration status.

The central issue of the case 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?

 

Analysis

 The Court started its analysis by summarizing the key principles in sentencing.  Proportionality is a fundamental principle of sentencing.  Section 718.1 of the Criminal Code provided that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.  The Court stated that closer the varied sentence is to the range of appropriate sentences, the more probable it is that the reduced sentence will remain proportionate and thus reasonable.

In addition, the principle of individualization informs the sentencing process, which should take into account any relevant aggravating, mitigating and personal circumstances.

The parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences in similar circumstances.

The Court also stressed the importance of rehabilitation.  The Court stated that when two possible sentences are both appropriate with respect to the gravity of the offence and responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation.

The Court referenced the decision R v Hamilton (2004), 72 OR (3d) 1 (ONCA) where Justice Doherty maintained that reducing a sentence of two years to two years less a day is an example of 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.

However, collateral immigration consequences are but one relevant factor among many others related to the nature and gravity of the offence.  The Supreme Court asserted that 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.  To that effect, the Court cited the case R v Guzman, 2011 QCCA 136 (Que CA) where Justice Doyon concluded:

…given the 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.

With respect to role of the appellate court, the Supreme Court concluded that 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 this case the appellate court had the authority to intervene given that the issue of immigration was not raised before the sentencing judge.  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 Mr. Pham had abused the hospitality afforded to him by Canada.

 Sentence of two years less a day remained within the range of appropriate sentences in these circumstances.  The one-day reduction of sentence would not disturb the goals of sentencing and would still mean that the accused was receiving a fit and proper sentence. It was proper for the appellate court to intervene and vary the sentence accordingly.

Since the Crown conceded to a sentence of two years less a day, the Supreme Court allowed the appeal and reduced the sentence from two years to two years less a day.