R. v. Tmenov, 2017 ONCA 454

Court of Appeal for Ontario

Date: 2017-06-02 Docket: C63054

Judges: Cronk, Blair and van Rensburg JJ.A.

Between

Her Majesty the Queen Respondent

and

Tamerlan Tmenov Appellant

Counsel

Jacob Stilman, for the appellant

Nadia Thomas, for the respondent

Heard and Released

Heard and released orally: May 29, 2017

On appeal from the sentence imposed on November 17, 2015 by Justice H. Chisvin of the Ontario Court of Justice.

Reasons for Decision

1The appellant pleaded guilty to counts of break and enter to commit theft and break and enter with intent. After a joint submission he was sentenced to a suspended sentence with two years' probation. The sentencing judge credited the appellant's pre-sentence custody of 132 days at a rate of 1.5:1 resulting in a credit of 198 days. The result was that the appellant, who is a convention refugee, was ordered deported and, because he had received a custodial sentence greater than 180 days (as interpreted by certain decisions of the Federal Court) he is barred from appealing the deportation order.

2The fresh evidence admitted on appeal with the consent of the Crown demonstrates that trial counsel did not appreciate the immigration consequences of attributing enhanced credit to the period of pre-sentence custody. As these consequences were not brought to the attention of the sentencing judge or taken into consideration in the appellant's sentence, this court is entitled to intervene: R. v. Pham, 2013 SCC 15; R. v. Nassri, 2015 ONCA 316.

3Accordingly, on consent of the Crown, the sentence appeal is allowed. The credit for pre-sentence custody is reduced by 19 days to 179 days. The appellant's sentence is therefore varied to a suspended sentence with two years' probation, with credit for 179 days' pre-sentence custody. The s. 109 weapons prohibition and DNA order remain in place.