R. v. Erhunmwunsee, 2022 ONCA 708

Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20221017 DOCKET: C69876

Doherty, Benotto and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

Eseosa Erhunmwunsee Appellant

Counsel: Ian B. Kasper, for the appellant Nicholas Hay, for the respondent

Heard: October 11, 2022

On appeal from the sentence imposed by Justice R.J. Richards of the Ontario Court of Justice on April 4, 2012.

Reasons for Decision

Background

1The appellant pled guilty to one count of fraud over $5,000 and one count of breaching his probation. Over a 17-month period, the appellant, acting in concert with others, opened and deposited into 37 different bank accounts cheques that had been stolen or altered. The appellant then used counterfeit identification to attempt to withdraw funds from those accounts and 27 additional accounts opened by others. The appellant attempted to withdraw some $300,000. The actual loss to the bank was about $66,000.

2On April 4, 2012, the appellant received an effective sentence of slightly over 8 months in jail, to be followed by 12 months probation.

3In September 2021, the appellant was granted an extension of time to bring this appeal from his sentence.

4The appellant was 24 years old at the time of his convictions in 2012. He had permanent resident status in Canada. The appellant is from Nigeria and arrived in Canada in 2007. After his convictions and sentence, the appellant’s immigration status was changed to criminally inadmissible to Canada based on his conviction and sentence. He was ordered deported.

5At the time of sentencing (2012), the appellant was entitled to appeal a finding of criminal inadmissibility to the Immigration Appeal Division (“IAD”). That right of appeal was retroactively removed by legislation in 2013 in respect of any conviction that resulted in a sentence of six months or more. As the appellant had received a sentence of over eight months, he lost the right of appeal to the IAD from the deportation order.

6The appellant still had remedies under the relevant legislation. He has been pursuing those remedies for several years. The deportation order is currently stayed by order of the Federal Court, dated April 9, 2021, pending a new pre-removal risk assessment (“PRRA”). The appellant is also seeking relief from the Minister on humanitarian grounds. He has been at large on a release order since April 2021.

Analysis

7There can be no quarrel with the fitness of the sentence in the absence of submissions based on the immigration consequences of the sentence. The 8-month jail sentence was lenient, given the significant amount of the fraud, the length of time over which the appellant perpetrated the fraud, the relative sophistication of the fraud, the appellant’s record for similar offences committed both before and after the offences in question, and the fact that the appellant was on probation when he committed these offences. The appellant’s criminal record is a particularly aggravating factor in these circumstances.

8The “fresh” evidence filed by the appellant, detailing the potential immigration consequences for the appellant flowing from the sentence imposed, and outlining the appellant’s circumstances as relevant to the immigration consequences of the sentence imposed, is admissible on appeal. The respondent does not challenge the admissibility of that evidence. Based on the “fresh” evidence, the appellant asked the court to reduce the jail term to 6 months, less a day, so that an appeal to the IAD in respect of his immigration status would remain a possibility, as it was when he was sentenced in 2012.

9The law governing this appeal is laid down in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 14-15:

[14] The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, 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.

[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.

10We are satisfied that a sentence of 6 months, less 1 day is not a “fit sentence”. A sentence of less than 6 months for this offence would properly be described as an “inappropriate and artificial sentence” imposed to “avoid collateral consequences” flowing from the application of the duly enacted immigration related legislation.

11The appellant will no doubt continue to pursue the immigration remedies available to him. He will have his opportunity to make his case, to the proper authorities, for being allowed to remain in Canada.

Disposition

12Leave to appeal sentence is granted and the appeal is dismissed.