Deportation

This decision concerns the judicial screening of a "faint hope" application under section 745.6 of the Criminal Code by Sean Lenworth Anthony Spence, convicted of first-degree murder.

The court reviews the statutory and legal principles for screening, the applicant’s character and conduct in custody, the nature of the offence, victim impact, and the relevance of deportation.

The court finds that the application is not out of time, that the lower screening standard applies, and that there is a reasonable prospect a jury might reduce the parole ineligibility period.

The application is granted and a jury will be empanelled.

The Ontario Court of Justice sentenced Rodolfo Sanchez-Neria to 8.5 years imprisonment for attempted murder, following a planned murder-for-hire shooting targeting Harpreet Hanjra.

The offender, aged 22 with no prior criminal record, shot Hanjra multiple times while he was driving his 6-year-old daughter to school.

The court considered significant aggravating factors including the use of a firearm, the presence of a child, and the public risk posed by the shooting.

Mitigating factors included the offender’s youth, guilty plea, harsh pre-trial custody conditions, and strong rehabilitative prospects supported by a solid community and family network.

The judge applied a 1.5:1 credit for 470 days served pre-trial, reflecting exceptionally harsh conditions including lockdowns, triple-bunking, and health risks.

Ancillary orders included a lifetime weapons prohibition and a DNA order.

The court sentenced K. M. Thauhidul Islam for the attempted murder of his wife, as well as for prior assaults and breaches of court orders.

The decision details the circumstances of the offences, the impact on the victims, and the aggravating and mitigating factors.

The court imposed a global sentence of 17 years, less pre-sentence custody, and made ancillary orders including a DNA order, weapons prohibition, and non-communication order.

The appellant, Dailean John, appealed his conviction for unlawful confinement and his sentence.

He argued the trial judge erred in finding him an active participant rather than a mere bystander.

The Court of Appeal dismissed the conviction appeal, finding it was open to the trial judge to conclude he played a culpable role given the evidence of the victim's confinement in his apartment and his awareness and control over her movements.

The appellant also sought to appeal his sentence, arguing it was unfit due to its impact on his Permanent Resident status and potential deportation.

The Court granted leave to appeal sentence but dismissed the appeal, holding that reducing the sentence to avoid deportation would result in an unfit sentence given the seriousness and aggravating factors of the offence.

Oladele Olafimihan pleaded guilty to sexual assault under s. 271 of the Criminal Code.

The court delivered a sentence of 4 years in penitentiary, minus pre-sentence custody, along with ancillary orders for DNA sample, lifetime weapons prohibition, and 20-year SOIRA registration.

The sentencing considered aggravating factors such as stalking, threats, and victim vulnerability, and mitigating factors including the offender's lack of criminal record, strong family support, self-help initiatives, and a significant guilty plea.

The court accepted the joint submission from the Crown and Defence, finding it proportionate and not bringing the administration of justice into disrepute, while also acknowledging the serious collateral consequences of deportation.

The accused, Allick Welcome, was convicted by a jury of sexual assault for removing a condom during consensual sex without the victim's knowledge ("stealthing").

The court considered aggravating factors, including the victim's emotional and financial impact and the breach of trust, and mitigating factors, such as the low risk of re-offence and the accused's expression of remorse.

A key consideration was the accused's immigration status, as a prison sentence exceeding six months would lead to automatic deportation without appeal.

The court imposed a conditional sentence order of two years less one day, including house arrest and ancillary orders, to allow the accused to appeal any removal order and to consider his family circumstances.

Lonelle Timothy Price pleaded guilty to three counts of assault.

The court delivered reasons for sentence, considering aggravating factors such as the sexualized nature and persistence of the assaults, targeting of young women, and significant victim impact.

Mitigating factors included the guilty plea, lack of prior criminal record, family support, and diagnosis of schizophrenia and cannabis use disorder, which diminished moral culpability.

The court balanced denunciation and deterrence with rehabilitation and the collateral consequences of deportation for the non-citizen offender.

A DNA order was also considered and granted.

The defendant, Emilio Gonzalez-Ramirez, was found guilty of aggravated assault and use of an imitation firearm.

This decision outlines the reasons for sentencing, considering factors such as the complainant's young age, the unprovoked nature of the assault, the use of an imitation firearm, the defendant's mental health issues (schizophrenia), and the significant collateral immigration consequences of a sentence of six months or more.

The court balanced the seriousness of the offence with mitigating factors, including the defendant's mental illness and the harshness of pre-trial custody, ultimately imposing a sentence structured to preserve the defendant's right to appeal a potential deportation order on humanitarian and compassionate grounds.

Nitish Verma was convicted by a jury of importing 13.739 kg of opium.

The Crown sought a nine-year sentence, while the defence argued for seven years, citing mitigating factors such as the offender's lack of criminal record, positive community contributions, and strong support network.

The court considered sentencing principles, including general deterrence and denunciation, and the less addictive nature of opium compared to other Schedule I substances.

Despite the large quantity of drugs and profit motive being aggravating factors, the court found the offender to be a courier, not a principal, and noted his high rehabilitative prospects.

A sentence of seven years was imposed, along with a DNA order, a 10-year firearms prohibition, and a forfeiture order.

The appellant appealed his conviction for second-degree murder and sought leave to appeal his sentence of life imprisonment with 13 years parole ineligibility.

The conviction appeal raised three grounds: error in jury instruction on after-the-fact conduct evidence for provocation, error in not compelling the Crown to call a witness, and error in not permitting the defence to call that witness.

The sentence appeal argued the trial judge erred by not properly considering the appellant’s immigration status and certainty of deportation in determining parole ineligibility.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no error in the jury instructions or the witness ruling, and upholding the sentencing decision as entitled to deference.

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.

Miguel Ngabirano pleaded guilty to kidnapping, robbery, and use of an imitation firearm.

The court considered general sentencing principles, aggravating and mitigating factors, and the collateral immigration consequences of a custodial sentence.

The Crown sought 15 months custody, while the defence proposed a conditional sentence or a shorter custodial term.

The court imposed a sentence of three months custody followed by 21 months less a day conditional sentence and three years probation, specifically tailoring the custodial portion to be less than six months to preserve the offender's right to appeal a potential removal order to Burundi, an unstable country.

Charles Okito pleaded guilty to kidnapping and robbery.

The court considered aggravating factors (impact on victim, imitation firearm) and mitigating factors (youth, first offence, guilty plea, difficult background, mental health challenges, collateral consequence of deportation).

Applying sentencing principles, including deterrence, denunciation, and rehabilitation, the court imposed a sentence of 42 months' imprisonment before credit for presentence custody, resulting in a further 20 months and 15 days to serve.

The judge also made a DNA order, a lifetime weapons prohibition, and a non-communication order, and waived the victim fine surcharge.

The judge recommended against deportation due to the offender's rehabilitation prospects and lack of support in his home country.

This is a ruling on a challenge to the mandatory minimum sentence provisions of the Criminal Code for a drinking and driving offence.

The applicant, Ali Haider Cheema, was found guilty of having care or control of a motor vehicle with excess alcohol and challenged the constitutionality of the mandatory minimum sentence (conviction and $1500 fine) under s.12 of the Charter, arguing it constituted cruel and unusual punishment due to the risk of removal from Canada under the Immigration and Refugee Protection Act (IRPA).

The court found that a conditional discharge was not a fit sentence for the offence, considering the gravity of drinking and driving offences and the public interest in deterrence and denunciation, even with the sympathetic personal circumstances and serious immigration consequences.

The application was dismissed, and the mandatory minimum sentence was imposed.

R.A. was convicted of two counts of sexual interference against his 11-year-old stepdaughter, C.A. The court considered aggravating factors, including the breach of trust and multiple incidents, and mitigating factors, such as R.A.'s pro-social life and lack of criminal record.

Applying the principles from R. v. Friesen, the court emphasized denunciation and deterrence for child sexual offences.

Despite the defence's request for a conditional sentence and potential deportation consequences, the court found a non-custodial sentence would be insufficient.

R.A. was sentenced to two years in penitentiary on the more serious count, concurrent to six months on the other, along with mandatory ancillary orders.

The appellant, Peter Cowan, appealed his conviction for possession of cocaine for the purpose of trafficking and sought leave to appeal his nine-month sentence.

The conviction appeal centered on the trial judge's application of the burden of proof, specifically the "could reasonably be true" phrase in relation to the W.(D.) questions.

The Court of Appeal dismissed the conviction appeal, finding that despite the inappropriate language, the trial judge correctly applied the burden of proof.

Regarding the sentence, the parties agreed the trial judge misapprehended the likelihood of deportation.

The Court of Appeal granted leave to appeal the sentence and varied it to a 12-month conditional sentence, considering the appellant's first-offender status, low-level trafficking, and mental disabilities.

Pezhman Saberi pleaded guilty to child luring under s. 172.1(1)(b) of the Criminal Code.

The Crown sought the mandatory minimum penalty (MMP) of one year incarceration.

Saberi challenged the MMP under s. 172.1(2)(a) as a violation of s. 12 of the Charter, arguing it was grossly disproportionate.

The court found that a fit and proportionate sentence, considering Saberi's circumstances, guilty plea, and severe immigration consequences (deportation if sentence is 6 months or more), was 6 months less one day.

The court declared the MMP of one year unconstitutional as applied to Saberi, finding it to be cruel and unusual punishment that would outrage Canadian standards of decency.

Saberi was sentenced to 6 months less one day incarceration (with credit for pre-trial custody) followed by 18 months probation and various ancillary orders.

This decision concerns the sentencing of J.T. for failing to attend court, contrary to section 145(2)(b) of the Criminal Code.

J.T. was convicted after absconding during the 13th day of his second trial for sexual abuse and exploitation, fleeing to British Columbia, and assuming a new identity.

The Crown sought an 18-month sentence, while the defence proposed 3-6 months.

The court considered aggravating factors, including absconding mid-trial and assuming a new identity, and mitigating factors such as the offender's age, permanent residence in Canada, and impending deportation.

The judge imposed a 12-month sentence, less pre-sentence custody, emphasizing deterrence, denunciation, and respect for the law, and a 3-year probation order.

The appellant, a permanent resident, appealed his convictions for drug and credit card offences, arguing his guilty pleas were uninformed due to erroneous advice from trial counsel regarding immigration consequences.

A prior deportation order had been stayed but was lifted following these convictions.

The Court of Appeal admitted fresh evidence, found that trial counsel had misadvised the appellant, leading to an uninformed plea and subjective prejudice.

The court emphasized the duty of defence counsel to advise on collateral immigration consequences.

The appeal was allowed, convictions set aside, and a new trial ordered.

The accused, Courtney Foster, was found guilty of attempted murder and assault against his former wife, Barbara Foster.

This decision outlines the sentencing, considering aggravating factors such as the violent and sustained nature of the attack, the significant physical, emotional, and financial impact on the victim, and the accused's prior record of violence.

Mitigating factors included the accused's willingness to plead guilty to aggravated assault, his employment history, expressed remorse, the consequence of deportation post-sentence, and participation in rehabilitation programs while in custody.

The court imposed a global sentence of 10 years imprisonment, reduced to 6 years after accounting for pre-sentence custody credit, along with a 10-year weapons prohibition and a DNA order.