Immigration Law

The Court of Appeal heard cross-motions within an appeal concerning a child's return to Bangladesh.

The mother (appellant) sought to stay a lower court order for the child's return, arguing a pending refugee claim should preclude the order, and also requested initials and a publication ban.

The father (respondent) sought security for costs for the appeal.

The court dismissed the mother's stay motion, finding no evidence of merit to the refugee claim or irreparable harm, and that the child's best interests favored return to Bangladesh.

The court granted the mother's request for initials and a limited publication ban.

The father's motion for security for costs was dismissed, as it would impede access to justice.

Ji Feng pleaded guilty to failing to stop at an accident resulting in death, contrary to section 320.16(3) of the Criminal Code.

The incident involved striking and killing a cyclist while distracted by medical news, followed by deliberate actions to obscure her involvement.

The Crown sought a nine-month jail sentence, while the defence proposed a twelve-month conditional sentence.

The court emphasized denunciation and general deterrence as primary sentencing objectives for such a grave offense, noting the maximum life imprisonment penalty.

Despite mitigating factors like a guilty plea, remorse, and positive rehabilitative prospects, the court found a conditional sentence inconsistent with sentencing principles due to the accused's heightened moral culpability from obscuring her involvement.

A traditional jail sentence was deemed necessary to denounce the conduct.

Considering the potential immigration consequences for the non-citizen accused, the court imposed a sentence of 179 days jail, a two-year driving prohibition, and a DNA sample, allowing for an appeal to the Immigration Appeal Division.

The defendant, Sukhmanpreet Singh, pleaded guilty to assault causing bodily harm.

The court considered aggravating factors, including the victim's vulnerability (17 years old) and the nature of the assaults committed in concert with others, and mitigating factors such as the guilty plea, efforts to address drug addiction, remorse, and harsh pre-trial custody conditions.

The central issue was whether to impose a conditional discharge, as sought by the defence due to potential immigration consequences, or a conviction with time served, as sought by the Crown.

The court ultimately imposed a sentence of time served (6 months less 1 day) and 12 months probation, concluding that a discharge was not appropriate given the seriousness of the offence and the paramount need for denunciation and general deterrence in cases involving abuse of minors.

The court emphasized that immigration consequences, while relevant, should not dictate a sentence that is disproportionate to the gravity of the offence.

The appellant, Chance Kabasele, appealed his conviction for sexual assault and forcible confinement, and his sentence.

He raised three grounds: inconsistent verdicts and insufficient evidence, violation of his Charter s. 11(b) right to a timely trial, and an unfit sentence due to immigration consequences.

The Court of Appeal dismissed all grounds, finding the verdicts were not inconsistent as they related to distinct acts, the Charter delay was primarily attributable to the appellant, and the sentence was fit, with immigration consequences not justifying an artificial reduction.

The applicant, detained for nearly seven years under an immigration removal order, brought a habeas corpus application challenging the legality of his continued detention.

The court found that while the detention was of significant duration, it was reasonable and Charter-compliant given the applicant's persistent refusal to cooperate in establishing his true identity and obtaining necessary travel documents.

The court emphasized that the applicant's lack of cooperation was the primary cause of the prolonged detention, and the administrative review process was fair.

The application was dismissed, but without prejudice to future reconsideration if progress towards obtaining travel documents stalled.

The appellant, a permanent resident of Canada, appealed his conviction on the basis that his guilty pleas were uninformed.

He was unaware of the serious immigration consequences of his pleas, specifically that he would be deported without a right of appeal.

The appellant pleaded guilty to firearm-related offences and possession of cocaine.

The Court of Appeal admitted fresh evidence demonstrating that trial counsel did not adequately inform the appellant of the specific immigration consequences, and that the appellant would have proceeded to trial had he been aware of the deportation consequences.

The court found the appellant satisfied both prongs of the test for setting aside a guilty plea: lack of awareness of a legally relevant consequence and prejudice.

The appeal was allowed, the guilty pleas were set aside, and a new trial was ordered.

The Appellant, Young Min Shon, appealed a 10-month jail sentence for assaulting his 12-year-old son, arguing the sentencing judge failed to adequately consider the punitive effect of his impending deportation and that a shorter custodial sentence would suffice.

The Superior Court of Justice dismissed the appeal, finding the original sentence was not demonstrably unfit and fell within the acceptable range for the offence.

The court held that the sentencing judge's silence on immigration consequences did not constitute an error impacting the sentence, as deportation was a direct result of the conviction itself, not the length of the custodial term, and the trial judge was fully aware of these consequences.

The appellant appealed his conviction and sentence for criminal harassment.

The appellant abandoned his conviction appeal but sought leave to introduce fresh evidence and to appeal his sentence on the grounds that it was imposed without consideration of collateral immigration consequences that arose from amendments to federal immigration legislation introduced after sentencing.

The Crown conceded that had these consequences been known at sentencing, they would have affected the result.

The court granted the fresh evidence application, granted leave to appeal sentence, and allowed the appeal, imposing a suspended sentence with credit for six months less one day of pre-sentence custody and two years' probation.

Grace Gaurino was convicted of fraud over $5,000 and theft over $5,000, with the theft count stayed under the Kienapple principle.

The fraud involved $16,629.96 from her 98-year-old vulnerable employer, Eileen Rennie, through altered cheques.

The Crown sought 18-21 months custody, while the defence requested 90 days or less intermittent.

A key consideration was the collateral immigration consequence under the Immigration and Refugee Protection Act, where a custodial sentence of six months or more would remove the right to appeal a deportation order on humanitarian and compassionate grounds.

The court balanced denunciation, general deterrence (paramount in breach of trust fraud), and rehabilitation, alongside mitigating factors (first offence, admissions, personal difficulties, late remorse) and aggravating factors (breach of trust, vulnerable victim, some planning).

Finding the appropriate sentence range to be between 90 days and 12 months, the court imposed a 90-day intermittent sentence to preserve Gaurino's right to appeal deportation, considering her three Canadian citizen children and strong rehabilitation prospects.

A restitution order of $16,629.96 and a 2-year prohibition from positions of financial authority were also imposed.

The appellant appealed the dismissal of her applications for prerogative relief and a Charter application challenging various provisions of the Criminal Code and the Immigration and Refugee Protection Act.

The appellant was charged with six counts under the IRPA for providing immigration advice without proper credentials.

She sought declarations that reverse onus clauses and other statutory provisions violated her Charter rights.

The Court of Appeal dismissed the appeal, finding that since the appellant had been released on bail, the policy against granting Charter or prerogative relief during ongoing criminal proceedings applied.

The court also noted that the Crown's decision to prefer a direct indictment and stay the preliminary inquiries rendered the appeal moot.

The applicants, foreign nationals under house arrest due to immigration proceedings, sought a writ of habeas corpus or modification of their release terms.

The Attorney General of Canada opposed and brought a preliminary motion for a stay based on lack of jurisdiction, arguing that house arrest does not constitute "detention" for habeas corpus purposes.

The court dismissed the application, finding that house arrest, while restrictive, does not amount to detention or a deprivation of liberty in the context of habeas corpus, distinguishing it from jail or imprisonment.

The court noted that the applicants had alternative remedies through the Immigration Division and Federal Court for modifying release terms.

The appellant, R. J.-B., appealed his sentence of 35 months in custody for two convictions of sexual assault, arguing that the sentencing judge failed to adequately consider the immigration consequences, which would lead to his automatic deportation.

The appellant sought a reduced sentence of six months less one day per count (consecutive) or a conditional sentence of 18 months per count to preserve his right to appeal the removal order.

The court acknowledged that immigration consequences can be relevant in sentencing but found the proposed sentences manifestly unfit given the egregious nature of the crimes, which involved digital and attempted vaginal penetration of his 16-year-old cousin, whom he was supposed to be helping after she had been previously sexually abused.

The court dismissed the appeal, upholding the original sentence as fit and not demonstrably unfit.

The appellant was detained awaiting trial on charges under the Immigration and Refugee Protection Act for advising on immigration matters without authorization.

She appealed the denial of habeas corpus relief by the Superior Court.

The Crown preferred a direct indictment on all charges, and the original charges were stayed.

The Court of Appeal addressed four issues: the validity of the preferred indictment, the continued validity of the detention order, the statutory authority for arrest, and the duration of pre-trial custody compared to potential sentence.

The court found no defect in the direct indictment under current Criminal Code provisions, confirmed the detention order continues to apply to the new indictment, and determined that the duration of pre-trial custody issue was best addressed through a bail review rather than habeas corpus.

The court set aside the application judge's decision for inadequate reasons and ordered a new bail review hearing.

The defendant pleaded guilty to impaired driving, fail to stop for police, and drive while disqualified arising from a high-speed chase on November 17, 2015.

The Crown sought consecutive sentences totalling 12-15 months, while the defence sought a global 12-month sentence, arguing for reduced sentences due to serious immigration consequences.

The court imposed consecutive sentences totalling 12 months (6 months for impaired driving with 3-month credit for restrictive bail conditions, 4 months for fail to stop for police, and 2 months for drive disqualified), along with a 10-year driving prohibition and 3 years probation.

The court considered collateral immigration consequences under the Immigration and Refugee Protection Act but ensured sentences remained proportionate to the offences.

The three defendants were convicted of fraud over $5,000 for making fraudulent claims for statutory accident benefits after a motor vehicle accident in which they were not present.

All first-time offenders and immigrants from Haiti, two of whom are landed immigrants whose immigration status would be jeopardized by a sentence of six months or more.

The Crown sought a one-year jail sentence for each, while defence counsel sought a conditional sentence of less than six months.

The court considered the principles of sentencing, including general deterrence and rehabilitation, and the mitigating factors of the offenders' difficult economic circumstances, lack of prior record, and their role as minor players in a scheme instigated by another individual.

The court imposed a conditional sentence of five months and 29 days of house arrest, followed by two years of probation, and 150 hours of community service for each defendant, with partial restitution of $1,000 from one defendant.

This sentence was chosen to avoid deportation and promote rehabilitation while still denouncing the conduct.

The appellant appealed his conviction and sentence for uttering a threat, arguing his guilty plea was not informed due to a mistaken belief that a conditional discharge was guaranteed following a judicial pre-trial.

The court dismissed the appeal against conviction, finding that the appellant understood the sentence was not guaranteed.

However, the court allowed the appeal against sentence, concluding that the trial judge erred in principle by misapprehending the severe immigration consequences of a suspended sentence.

The suspended sentence was vacated and replaced with an absolute discharge.

The offender pleaded guilty to sexual assault after failing to disclose that he was likely infected with HSV-2 (genital herpes) before engaging in unprotected sexual intercourse with the complainant.

The complainant subsequently contracted the virus and suffered significant physical and emotional harm.

The court imposed a conditional discharge with one year of probation, including 80 hours of community service and a ten-year SOIRA order, rather than a custodial sentence or conviction.

The decision represents a "test case" on sentencing for sexual transmission of herpes through non-disclosure, with the court emphasizing the novel nature of the offence and the disproportionate immigration consequences that would follow a conviction.

The accused, a pastor of a Spanish Pentecostal Church in London, Ontario, was charged with withholding material facts during border entry and attempting to aid and abet an undocumented individual to contravene immigration requirements.

The accused claimed duress, alleging that the hidden passenger threatened harm to his family in El Salvador if he did not smuggle him into Canada.

The court found the accused guilty on both counts, holding that the alleged threat of harm to the accused's parents lacked the temporal immediacy required for the duress defence and that the threat was too contingent and remote to constitute immediate harm.

The court also found the accused's account of events improbable and incredible.