R. v. Nassri, 2015 ONCA 316

Her Majesty the Queen v. Nassri

[Indexed as: R. v. Nassri]

Ontario Reports

Court of Appeal for Ontario,

Sharpe, Cronk and Huscroft JJ.A.

May 7, 2015

125 O.R. (3d) 578 | 2015 ONCA 316

Case Summary

Criminal law — Sentencing — Immigration consequences — Trial judge sentencing accused to nine months' imprisonment for robbery and possession of weapon for dangerous purpose — Unbeknownst to trial judge statute recently amended to cause accused to lose his right of appeal if sentenced to at least six months — Without right of appeal to Immigration and Refugee Board on compassionate or humanitarian grounds accused almost certain to be deported to war-torn Syria if he received sentence of six months or more — Accused would face compulsory military service in Syria — Sentence imposed grossly disproportionate due to collateral immigration consequences — Accused's appeal allowed and sentence reduced to six months less 15 days.

The accused, age 21 at the time of the offences and 24 at the time of sentencing, was convicted of robbery and possession of a weapon for a dangerous purpose. He drove the getaway car for a bank robbery involving the use of knives. He was a permanent resident of Canada. As a result of his conviction for robbery, pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 he was inadmissible on grounds of serious criminality. Realistically, the only way to avoid almost certain deportation would be to appeal to the Immigration and Refugee Board seeking compassionate or humanitarian relief. Defence counsel informed the trial judge that the accused would lose the right to appeal a removal order if he received a sentence of two years or more. The trial judge sentenced the accused to nine months' incarceration followed by two years' probation. Defence counsel and the trial judge were unaware that the law was changed one month before the sentence was imposed and that the accused lost his right to appeal a removal order if he received a sentence of six months or more. The accused appealed.

Held, the appeal should be allowed.

The Crown did not contest the admission of the fresh evidence regarding the actual collateral immigration consequences from the sentence imposed at trial. As a result of losing his right to appeal a removal order, the accused faced more or less automatic deportation to war-torn Syria, where he would be subject to mandatory military service. Deportation to Syria would be highly traumatic and would put the accused in a situation of extreme risk of physical harm or death. The trial judge found that the accused was already rehabilitating himself and that specific deterrence was not a factor in sentencing. Depriving the accused of his right to appeal deportation to one of the most dangerous places on Earth would be grossly disproportionate to this offence and this offender and would contravene the sentencing principle of individualization. The accused had already served his sentence before the appeal was heard. The custodial part of the sentence was varied to six months less 15 days. A sentence of just under six months was within the appropriate range for this youthful first offender.

R. v. Pham, [2013] 1 S.C.R. 739, [2013] S.C.J. No. 100, 2013 SCC 15, 441 N.R. 375, 2013EXP-916, J.E. 2013-500, 76 Alta. L.R. (5th) 206, 99 C.R. (6th) 219, 293 C.C.C. (3d) 530, 357 D.L.R. (4th) 1, 544 A.R. 40, 105 W.C.B. (2d) 488, consd [page579]

R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538, [1996] O.J. No. 3369, 93 O.A.C. 163, 110 C.C.C. (3d) 289, 1 C.R. (5th) 275, 32 W.C.B. (2d) 191 (C.A.), apld

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, s. 21

Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36(1)(a), 64(1), 64(2), [as am.], 68(1)

APPEAL by the accused from the sentence imposed on July 18, 2013 by Benotto J. of the Superior Court of Justice, sitting without a jury.

David E. Harris, for appellant.

Katie Doherty, for respondent.

The judgment of the court was delivered by

1SHARPE J.A.: — The appellant was sentenced to nine months' imprisonment following his convictions for robbery and possession of a weapon for a dangerous purpose. He drove the getaway car for a bank robbery involving the use of knives. His sentence appeal is based on fresh evidence. It was not known at the time of sentencing that as a result of a recent change in the law, the appellant, a permanent resident, faces more or less automatic deportation to war-torn Syria if sentenced to a term of six months or more imprisonment.

2For the following reasons, I would allow the appeal and reduce the sentence to a custodial term just under six months.

Facts

The offences

3The robbery involved a CIBC branch in Toronto on November 10, 2010. Three men, Mohamed Noori, Abdirahman Diriye and an unknown man, entered the branch just after 11:30 a.m. All three men were armed with knives and had their faces covered with bandanas. Noori remained at the front door keeping watch, while Diriye and the third man vaulted over the cashiers' counter and obtained money at knifepoint. At one point, Diriye or the unknown man was holding a large knife to the back of a teller's neck. The three men were in the bank for under a minute.

4The appellant had driven the three men to the area in his father's Corolla and parked across the road from the bank. He waited in the car. Following the robbery, the three men ran to the car and got in. The appellant drove away at a high rate of speed but almost immediately ran a stop sign and collided with [page580] an 18-wheel tractor-trailer. The appellant stayed with the damaged car and offered to pay the driver to be "let go". The other three men fled.

5At the appellant's two-day judge-alone trial, the sole issue was whether the appellant knew that the individuals he was driving in his father's car planned to commit a robbery. The trial judge disbelieved the appellant's denial and convicted him as a party to both offences pursuant to s. 21 of the Criminal Code, R.S.C. 1985, c. C-46.

6Two of the other participants in the robbery, Noori and Diriye, have been convicted and sentenced. Noori was 18 years old at the time of the offence and had no criminal record. He pleaded guilty during the preliminary inquiry. He was sentenced to 13.5 months' incarceration. Diriye was 20 years old at the time of the offences and had a criminal record that included a penitentiary sentence. He also pleaded guilty during the preliminary inquiry. He was sentenced to two years less a day incarceration.

The circumstances of the appellant

7The appellant was 21 years old at the time of the offence and 24 years old at the time of sentencing. He was born in Syria and he has been living in Canada with his parents since the family immigrated in 2005. He is a permanent resident of Canada. He had no prior criminal record at sentencing beyond one minor incident of failure to comply with his bail recognizance for the current offence, to which he pleaded guilty and received a conditional discharge.

8At the time of sentencing, the appellant was living with his parents, taking business courses at a college and operating a small business. He has strong family support and positive references. One of the appellant's professors described him as an "exemplary student".

9The appellant was released on parole and has now served his nine-month sentence.

Change in immigration legislation

10As a result of his conviction for robbery, the appellant is "inadmissible on grounds of serious criminality": Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), s. 36(1)(a). The definition of "serious criminality" includes having been convicted in Canada of an offence punishable by a maximum term of imprisonment of at least ten years.

11The appellant's inadmissibility makes him vulnerable to a removal order leading to deportation. A permanent resident may appeal a removal order to the Immigration Appeal Division ("IAD") [page581] of the Immigration and Refugee Board. The IAD can stay a removal order if it is satisfied that "sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case": IRPA, s. 68(1). But, no appeal to the IAD may be made by a permanent resident if he or she has been found to be inadmissible on grounds of "serious criminality": IRPA, s. 64(1).

12One month before the sentence was imposed, Bill C-43, the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16, came into force and amended s. 64(2) of the IRPA. As a result of the amendment, the definition of "serious criminality" for the purpose of s. 64(2) changed from "a crime that was punished in Canada by a term of imprisonment of at least two years" to "a crime that was punished in Canada by a term of imprisonment of at least six months" (emphasis added).

13Accordingly, the appellant's nine-month sentence prevents him from appealing a removal order to the IAD for consideration of the humanitarian and compassionate grounds of his case.

The sentence

14The Crown sought 13 months' incarceration (minus six days of pre-sentence custody), three years' probation, a DNA order and a weapons prohibition for life. The appellant sought eight months' incarceration and 18 months' probation. He agreed to the DNA order and weapons prohibition.

15The appellant's trial counsel, unaware of the recent changes brought about by the legislation reviewed above, misinformed the trial judge that the right to appeal a removal order would only be lost if the sentence was two years or more.

16The trial judge imposed a sentence of nine months in custody and two years' probation. She noted the seriousness of the offence that involved the brandishing of knives in a busy place of business in broad daylight. The mitigating factors were the appellant's youth, lack of criminal record, conduct at trial, conduct while on bail, community support, family support, expression of remorse to his parent and a "generally positive" pre-sentence report.

17The primary sentencing principles were denunciation, general deterrence and rehabilitation. Specific deterrence was not an issue: "rehabilitation is not just likely, it is well under way". The trial judge sought to impose a sentence which "emphasizes and gives the best possibility for rehabilitation". If specific deterrence had been an issue, the trial judge would have accepted the Crown's proposal of 13 months in custody. She could not accept the appellant's proposal of eight months [page582] in custody as it did "not accurately reflect the seriousness of this offence".

Fresh evidence

Immigration consequences

18The Crown does not oppose the appellant's fresh evidence application.

19Affidavits from an experienced immigration lawyer state that as a result of his robbery conviction it is "almost a certainty" that the appellant will be referred to an admissibility hearing, and that will lead to a non-discretionary removal order. If the sentence including pre-trial custody were less than six months, the appellant would have "a strong case" before the IAD to appeal his removal on humanitarian and compassionate grounds. The affiant deposes that under current legislation, regulation and practice, other means of avoiding deportation such as a ministerial stay, humanitarian and compassionate application, judicial review, or pre-removal risk assessment would be futile.

20The Crown did not cross-examine the immigration counsel, lead any evidence or make any argument to contradict her opinion. The only response offered by the Crown is a motion to admit the affidavit of a justice liaison officer with the Canada Border Services Agency, stating that the appellant's "pre-removal risk assessment has not been completed as he is not yet removal ready", and that the appellant has been allowed to "file submissions as to why he should not be reported and referred to [an] admissibility hearing".

21In my view, the Crown's proposed fresh evidence merely explains the stage the immigration proceedings have reached and does nothing to cast doubt on the evidence that, given the "virtually certain" removal order, the appellant's "only viable option" to avoid deportation to Syria is an IAD appeal, which will not be available if his sentence is not reduced to less than six months.

Current conditions in Syria

22The appellant has also filed a considerable volume of evidence describing the ongoing civil war in Syria. The Crown does not dispute the appellant's characterization of current conditions in Syria. The dangerous and grievous conditions in contemporary Syria are notorious and need not be repeated here.

23The appellant, who moved to Canada as a teenager, has no close connections in Syria, except for a grandmother in her 90s. The fresh evidence strongly suggests that the appellant would be subject to mandatory military service upon returning [page583] to Syria, leading to his involvement in the civil war. There seems little doubt deportation to Syria would be highly traumatic and would put the appellant in a situation of extreme risk of physical harm or death.

Issue

24The sole issue on appeal is whether this court should reduce the custodial portion of the sentence to a period of less than six months because of the collateral immigration consequences of a sentence of six months or more. To avoid any doubt as to the calculation of the length of the sentence on account of pre-trial custody, the appellant asks us to vary the sentence to six months less 15 days.

Analysis

25The 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.

26The determination of this appeal is governed by the principles set out in the Supreme Court of Canada's decision in R. v. Pham, [2013] 1 S.C.R. 739, [2013] S.C.J. No. 100, 2013 SCC 15. 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).

27The 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). [page584] 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".

28Any 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.

29While 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.

30The appellant is a relatively youthful first offender and the Crown concedes that the principle articulated in R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538, [1996] O.J. No. 3369 (C.A.), at pp. 543-44 O.R., applies, namely, that the primary objectives in sentencing a youthful first offender are specific deterrence and rehabilitation. The trial judge found that specific deterrence was not necessary. In any event, the interest of specific deterrence has been fully met. The appellant has served his sentence and experienced a significant period of incarceration. The trial judge was clearly focused on crafting a sentence that would promote rehabilitation. And, as the trial judge noted, by the date of sentencing, the appellant was well along that path. She found that his prospects for rehabilitation were strong.

31While general deterrence and denunciation remain relevant factors, they must be considered in light of the appellant's age, lack of criminal record and strong prospects for rehabilitation. In addition, I note that the appellant was a secondary participant to the offences. [page585]

32Similarly, I do not agree with the Crown's submission that a sentence of less than six months would offend the parity principle. The lengthier sentences imposed on Noori and Diriye may be readily explained on the basis that they were the ones who used weapons and threatened victims to carry out the robbery.

33Applying the principles stated in Pham, it is my view that a fit sentence is this case is one that "better contributes to the offender's rehabilitation" (para. 11). It is self-evident that depriving the appellant of the right to appeal deportation to one of the most dangerous places on Earth would be grossly disproportionate to this offence and this offender and would contravene the sentencing principle of individualization.

Disposition

34For these reasons, I would grant leave to appeal sentence and allow the appeal, reducing the custodial portion of the sentence to one of six months less 15 days.