Court of Appeal for Ontario
MacPherson, Lauwers and Hourigan JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Nigel George Frater
Appellant
Counsel:
Samuel Walker, for the appellant
Nadia Thomas, for the respondent
Heard: May 17, 2016
On appeal from the conviction entered on May 29, 2015 and the sentence imposed on May 29, 2015 by Justice P. H. Marjoh Agro of the Ontario Court of Justice.
ENDORSEMENT
1The appellant Nigel Frater pleaded guilty to assault and two counts of breach of probation. He was sentenced by Agro J. of the Ontario Court of Justice to 183 days custody (time served), plus three years’ probation and a DNA order. There was a joint submission on sentence which the sentencing judge accepted.
2Unbeknownst to anyone at the time, there is a potentially devastating immigration consequence for the appellant because of the duration of the sentence. About two months after he was sentenced, the appellant received a notice from Citizenship and Immigration Canada informing him that he was potentially inadmissible as a permanent resident because he had been “convicted in Canada of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.” The Immigration and Refugee Board then notified the appellant about a hearing to determine whether he could remain in Canada.
3The appellant is a Jamaican citizen. He is also a permanent resident of Canada. He immigrated to Canada in 1989 and has lived here ever since. He is 53 years old, married a Canadian citizen, and they had four children. He also has a grandchild.
4The appellant appeals his sentence based on this fresh evidence about the potential immigration consequences of his 183 day sentence. He seeks only a very modest reduction of this sentence.
5The Crown does not oppose the relief sought by the appellant. The Crown summarizes its position in its factum, at para. 1:
The respondent accepts the facts contained in Parts I and II of the appellant’s factum. The respondent also accepts that the fresh evidence tendered by the appellant should be admitted on the appeal in this matter. The respondent is satisfied that due diligence is not a factor weighing against the admissibility of the evidence and that the fresh evidence is relevant and credible. The respondent also concedes that, had the collateral immigration consequences been known at the time of the appellant’s guilty plea, it can be expected to have affected the result. The respondent further acknowledges that a sentence of six months less a day would have been a fit sentence within the acceptable range for this offence and offender.
6We agree with the parties’ joint submission. It is consistent with other cases where appeal courts have agreed to very modest reductions in sentence in order to obviate unforeseen and serious immigration consequences: see, for example, R. v. Pinas, 2015 ONCA 136.
7Accordingly, the appeal is allowed and the sentence imposed following plea is set aside and a sentence of six months incarceration less a day is substituted.
“J.C. MacPherson J.A.”
“P. Lauwers J.A.”
“C.W. Hourigan J.A.”
