COURT OF APPEAL FOR ONTARIO
Zarnett, Dawe and Madsen JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Abdulrazzaq Al-Gburi
Appellant
Matthew R. Gourlay and Tara Boghosian, for the appellant
Luke Schwalm, for the respondent
Heard: December 11, 2025
On appeal from the convictions entered by Justice J. Peter Wright of the Ontario Court of Justice, on May 10, 2024, and from the sentence imposed on September 26, 2024.
Overview
1Section 2 of the Criminal Code, R.S.C. 1985, c. C-46, defines a firearm as a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily harm or death to a person. In this appeal, Abdulrazzaq Al-Gburi challenges his convictions for firearm-related offences, including unauthorized possession of a prohibited or restricted loaded firearm contrary to s. 95 of the Code, possession of a firearm while prohibited by order contrary to s. 117 of the Code and possession of ammunition while prohibited by order contrary to s. 117 of the Code. He also challenges the sentences imposed.
2The central evidence against the appellant was an Instagram video call between the appellant and the complainant, in which the appellant points and displays what appears to be a handgun and, in response to a question about whether the gun was real, opens its magazine to show the ammunition loaded in it. The physical object in the video was never recovered; the case against the appellant was therefore circumstantial. The convictions relied on the trial judge’s finding that the Crown had proven beyond a reasonable doubt that the object in the video was a firearm as defined in s. 2 of the Code, rather than an imitation.
3On appeal from the convictions, the appellant argues that the findings of guilt were unreasonable. He submits that an alternative inference inconsistent with guilt—that the object was an imitation firearm—arose from the totality of the evidence. He argues that the unreasonableness of the findings of guilt is exacerbated in this case by the procedurally unfair way the trial judge dealt with the defence efforts to put into evidence a report the Crown had obtained from an expert the Crown had chosen not to call. Further, the appellant submits that the trial judge did not address—and there was no evidence to establish—a critical element for a conviction under s. 95: that the apparent firearm was capable of discharging the ammunition in it.
4I would dismiss the conviction appeal. The appellant has not met the stringent test of establishing that a properly instructed trier of fact, acting judicially, could not reasonably have been satisfied that the appellant’s guilt was the only reasonable conclusion available on the totality of the evidence. There was a sufficient evidentiary basis to conclude that the object in the video was a real, in the sense of being an operational or functional, firearm as defined in s. 2 of the Code, that it was loaded with ammunition capable of being discharged within the meaning of s. 95(2) of the Code, and that alternative inferences were speculative. As for the report of the expert not called by the Crown, it was not evidence, the trial judge did not use its absence as a make-weight for the Crown’s case, and defence counsel1 had the opportunity to call the expert at trial and expressly chose not to.
5The trial judge imposed a custodial sentence of 1080 days (less credit for pre-trial custody) on the s. 95 offence, and 360 days on the s. 117 offences to be served concurrently with each other but consecutively to the s. 95 sentence. On appeal from his sentence, the appellant submits that the trial judge erred in his appreciation of the immigration consequences the appellant might face, and failed to go beyond considering that the sentence could not be adjusted to one that was unfit (for example, below six months), rather than fully considering the immigration consequences as one of the circumstances of the offender that bore on the fitness of the overall sentence to be imposed.
6In my view, the trial judge did not err in the manner alleged. I would grant leave to appeal sentence but would dismiss the appeal.
The Trial Evidence
7The appellant was tried for three categories of offences:
(1) Threat and harassment related offences: 1) harassment by threatening another person, contrary to s. 264(3) of the Code; and 2) uttering threats to cause death or bodily harm, contrary to s. 264.1(2).
(2) Firearm related offences: 1) careless use of firearm, contrary to s. 86(3); 2) possession of a prohibited or restricted firearm without a licence, contrary to s. 91(3); 3) possession of a firearm knowing its possession is unauthorized, contrary to s. 92(3); 4) possession of a prohibited or restricted firearm with ammunition, contrary to s. 95(2); 5) possession of a firearm while prohibited, contrary to s. 117.01(3); 6) possession of ammunition while prohibited, contrary to s. 117.01(3).
(3) Offences related to the combination of threatening conduct and possession of a firearm: 1) possession of a weapon for a dangerous purpose, based on the alleged threatening or harassing conduct, contrary to s. 88(1); and 2) use of a firearm or imitation firearm while committing an indictable offence, contrary to s. 85(3).
8The complainant testified that she and the appellant attended the same high school. In early 2023, they, and a friend of the complainant whom the appellant was dating, were involved in a dispute. The dispute was carried on through text and Instagram communications.
9In February 2023, the appellant and complainant spoke on an Instagram video call. The complainant was using her own phone. She testified that at a point in the conversation the appellant went out of the view of the camera and returned holding a gun. This prompted the complainant to record the video call, using her father’s phone to capture her phone screen.
10In the video, the appellant is first seen holding what appears to be a firearm, with a laser-pointing device attached to it and its barrel pointing towards the camera. The appellant flicks the laser light on and off, then turns the apparent firearm to the side. The complainant is heard on the video asking “Is it a real gun”? She testified that she asked this question because she thought what the appellant was displaying as a gun was not a “real one”, and that he was “playing”.
11After the complainant asked about whether the gun was real, the video shows the appellant beginning, with difficulty, to open the magazine, while saying it was “so hard to pull the mag”. He then continues until he removes the magazine and holds it up to the camera, showing what looked to be ammunition (brass bullets) inside. The complainant then says “It’s a real one? Holy. Where did you get it from?” The appellant responds, “Huh?”. The complainant repeats her question. The appellant says something unintelligible in response. The appellant then replaces the magazine and walks away from the camera with the apparent firearm.
12The complainant testified that this interaction, in combination with various text messages from the appellant that she perceived as threatening, led her to bring the recording of the Instagram video and screenshots of the text messages to school authorities. The school authorities then contacted the police.
13Det. Richer, the investigating officer, was an 18-year veteran with Ottawa Police Service and had been with its Guns and Gangs Unit for under two years. She testified that the location of the appellant was not clear from the Instagram video, and no search warrant was obtained as a result. As such, the police did not recover the alleged firearm. She stated that the object the appellant was holding and displaying in the Instagram video was a handgun that she would “identify as a Glock”, though she acknowledged that she was not an expert in identifying guns. Defence counsel objected to this evidence on the basis that Det. Richer was not an expert on firearms. The Crown asserted that Det. Richer was “entitled to rely on her experience as a police officer”, and as a “person who knows what guns look like” to describe the object. The trial judge stated that he had taken Det. Richer’s evidence at that point as “being her belief.”
14The appellant made several admissions under s. 655 of the Code, including that he was never licensed to possess a firearm and that he was subject to an order made in September 2020, which prohibited him, for three years, from possessing weapons or ammunition.
15The appellant did not testify or call any evidence.
The Expert Report That Was Not in Evidence
16Det. Meehan, a firearms expert, prepared a report at the request of the Crown on whether the object in the Instagram video was a firearm for the purpose of s. 2 of the Code. In the report, Det. Meehan stated that the object’s general appearance and magazine containing centrefire ammunition was “consistent with a centrefire semi-automatic firearm”. But the report also stated that he could not identify a make, model, or manufacturer, and that he could not say “with any certainty that a pistol magazine containing centrefire ammunition could not be inserted into an air gun, an imitation firearm or a replica firearm, however unlikely that may be”.
17The report was not entered into evidence at trial, and Det. Meehan did not testify. However, the report was raised three times during the trial.
18First, defence counsel at trial initiated an abuse of process application, based in part on the Crown’s decision not to call Det. Meehan. The trial judge reviewed the report as part of that application, which was ultimately abandoned.
19Second, defence counsel sought to admit Det. Meehan’s report as an exhibit through Det. Richer, who had requested the report. The trial judge noted that the Crown had the burden of proof and stated that the report was “non-evidence”. In response, defence counsel said that she would move on. The trial judge then noted that he had read the report in the context of the abuse of process application, and that it was “an inconclusive report.” Again, defence counsel said that she heard what the trial judge was saying and did not seek to admit the report.
20Finally, in closing argument, the trial Crown relied on R. v. Singh, 2020 ONSC 5731, arguing that the evidence against the appellant was “stronger” than in Singh, because there an inconclusive expert report had been admitted into evidence while in the appellant’s case there was no “countervailing expert evidence”.
21This led the trial judge to express the concern that the Crown seemed to be placing reliance on the report not being in evidence as weighing against the defence, when he thought no one was relying on it one way or the other. He was not comfortable with the Crown relying on the absence of expert evidence as a factor strengthening the Crown’s case. He reiterated that, in his view, one could not “extrapolate from a report which is inconclusive.” The trial Crown, acknowledging that the Crown had the onus of proof, disavowed any such reliance, insisting they were just pointing out a factual difference from Singh. The trial judge remained concerned that he had advised defence counsel that the report was “non-evidence”. As he stated: “I wouldn’t have directed the defence in the manner that I did if I thought this was going to be an issue”.
22The trial judge noted several times that he had not intended any unfairness to the defence. He gave defence counsel the opportunity to reopen the case and call Det. Meehan. The trial judge also inquired whether the report could be filed on consent, but the Crown would not consent to admitting it without the opportunity for cross-examination. Defence counsel noted that the appellant was in custody, that she had released Det. Meehan from a subpoena and would have to determine his availability, and that she was concerned about delays arising from reopening, given the trial judge’s limited availability as a per diem judge. She sought the appellant’s instructions, and after taking them did not pursue reopening the case. No further evidence was called.
23When argument resumed the trial Crown came back to the point that led to the above discussion: “I just want to be very clear. The Crown’s position is not that the absence of this evidence is something that the court can draw a negative inference from. The burden never shifts [from the Crown]. So that is my position on Singh.”
Decisions Below
The Convictions
24The trial judge found that the complainant was a credible, believable witness. However, none of the text messages between the complainant and the appellant indicated an intention to convey a threat. The appellant was thus acquitted of the threat and harassment charges, and the charges that involved a combination of threatening conduct and possession of a firearm.
25In respect of the firearm charges, the trial judge was satisfied that the Crown had proven beyond a reasonable doubt that the object in the Instagram video was in the possession of the accused and that it was a firearm, namely a handgun.
26The trial judge referred to the definition of a firearm in s. 2 of the Code. He observed that when a firearm is recovered by the police, the fact that it is a firearm for the purposes of that definition is typically proven through a series of physical tests, often including a test firing. However, he noted that case law had held “there can be sufficient proof that an object is a firearm…where the object is not recovered.” He referred to several cases in which an unrecovered object was found to be a firearm based on circumstantial evidence. In these cases, the unrecovered firearm had been described by one or more witnesses and there was evidence of threats to shoot, and/or of loading, pointing or racking it.
27The trial judge then highlighted the following evidence. First, he noted that Det. Richer, “who one would expect to have at least some familiarity with firearms”, testified that the object looked like a firearm. Second, the video, which had been played “over and over” and in the trial judge’s view “surpasses the value of any momentary observation by a witness” showed “what looks to be a real firearm”. Third, in response to being asked by the complainant if the gun was real, the appellant had dropped the magazine out and displayed the cartridges to the complainant. The trial judge found this action to be as consistent with a real gun as the act of “racking” the gun, which was used as circumstantial evidence in prior cases. Fourth, there was a laser-aiming device on the object, which the trial judge found would not serve a purpose on a replica or air gun. Finally, the trial judge also noted that the gun was pointed at the camera.
28Considering the evidence, the trial judge found beyond a reasonable doubt that the object in the video was a firearm, as defined in s. 2 of the Code.
29The appellant was convicted of unauthorized possession of a firearm (s. 91(3)), possession of a firearm knowing its possession is unauthorized (s. 92(3)), possession of a prohibited or restricted firearm with ammunition (s. 95(2)), possession of a firearm while prohibited (s. 117.01(1)), and possession of ammunition while prohibited (s. 117.01(1)).
The Sentencing Decision2
30The trial judge described the appellant as a young man who had suffered from past family trauma and disruptions. He had a youth record for several offences which had resulted in the order prohibiting him from possessing weapons and ammunition. The trial judge also noted that the appellant completed his high school diploma and took other programming while in custody, and that he had the support of his mother.
31The appellant held permanent residency in Canada and had sought refuge here with his family as a convention refugee. The evidence at the sentencing hearing included a written opinion from an immigration lawyer on the potential immigration consequences faced by the appellant arising from criminal convictions in this case. The letter explained that if a person is convicted of offences with a maximum term of 10 years or more (such as the offences under s. 95 and 117) the person is deemed criminally inadmissible to Canada and is at risk of a deportation order. If the person is given a custodial sentence of six months or more, they do not have a right to appeal any deportation order made.
32The letter also provided additional detail about the actual risk of deportation in light of the appellant’s status as a convention refugee. As summarized in defence counsel’s written submissions for the sentencing hearing:
It is essential to acknowledge that automatic deportation does not ensue, as the Canada Border Services Agency (CBSA) possesses limited discretion in referring individuals for inadmissibility. The CBSA may opt not to refer [the appellant’s] case to the immigration division for an admissibility hearing and the issuance of a deportation order, especially if he qualifies as a convention refugee or possesses a minimal criminal record and strong ties to Canada, rendering his removal challenging. In any case, [the appellant] would not face immediate deportation, as the removal would remain unenforceable until his status as a convention refugee is disputed by ministerial findings suggesting that he poses a threat to the Canadian public.
33The trial judge noted that the appellant was not a Canadian citizen and that there would be “immigration consequences” flowing from sentencing. He summarized the consequences as being that the offences did not render the appellant inadmissible unless he received a six-month sentence or longer, which would then be subject to appeal. He also noted that he could not impose an unfit sentence to address immigration consequences.
34After noting the seriousness of offences involving firearms, the trial judge found that the shortest appropriate sentence he could impose for the s. 95 count was 1080 days. Applying a pre-sentence custody credit of 896 days, 184 days remained for this count. The trial judge imposed a 360-day sentence for each s. 117 count, concurrent to each other but consecutive to the s. 95 sentence.
Analysis
1. Were the verdicts unreasonable because the circumstantial evidence did not exclude the alternative inference that the firearm was an imitation?
a. Legal Principles
35Where the Crown’s case is reliant on circumstantial evidence, the question for the trier of fact is whether guilt is the only reasonable inference the evidence permits: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30 and 55. The trier of fact must consider any alternative inferences that are inconsistent with guilt, provided those alternative inferences are reasonable and arise from the evidence or lack of evidence rather than speculation: Villaroman, at paras. 37, 41-42. To meet its onus of proving guilt beyond a reasonable doubt based on the circumstantial evidence, the Crown does not have to exclude speculative alternative inferences, but it must exclude inferences inconsistent with guilt that are “reasonable, not just possible”: Villaroman, at para. 42, citing R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25.
36To set aside a verdict based on circumstantial evidence as unreasonable, the appellant must show that a properly instructed trier of fact acting judicially could not reasonably have been satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence. Although this requires the appellate court to engage in an examination of the evidence, the review must still respect the ordinary rules of deference owed to a judge or jury’s fact finding. A determination that a verdict is unreasonable does not follow simply because an alternative inference did not raise a reasonable doubt in the mind of the trier of fact, as it is “fundamentally for the trier of fact to decide if a proposed way of looking at the totality of the evidence raises a reasonable doubt”. This assessment by the trier of fact can only be set aside where it is unreasonable: Villaroman, at paras. 55-56 and 71. Where the Crown’s case presents a strong case to answer, an appellate court may consider the accused’s failure to testify or adduce other evidence to support any other reasonable inference in assessing an unreasonable verdict argument: R. v. George-Nurse, 2018 ONCA 515, at paras. 33-35, aff’d 2019 SCC 12, [2019] 1 S.C.R. 570, at para. 2.
37To be convicted of an offence involving a firearm, the firearm must be real in the sense of being operable or functioning, rather than being an imitation or a non-functioning weapon.3 Section 2 of the Code defines “firearm” to mean a “barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm”.
38A finding that the accused was in possession of a firearm within the meaning of s. 2 is not dependent on the recovery or firing of the alleged firearm. Such a finding may be based on circumstantial evidence, as long as on the totality of the evidence the accused’s guilt is the only reasonable conclusion available: R. v. Wills, 2014 ONCA 178, 308 C.C.C. (3d) 109, at para. 50, aff’d 2014 SCC 73, [2014] 3 S.C.R. 612; R. v. O.A., 2022 ONCA 565, at para. 10, citing Villaroman; R. v. Brezi, 2024 ONCA 530, at para. 38.
b. Discussion
39The appellant argues that the trial judge failed to instruct himself on the standard for circumstantial evidence laid out inVillaroman. Specifically, the trial judge was required to consider whether the only reasonably available conclusion was that the gun was a real firearm. Instead, according to the appellant, the trial judge relied on cases involving an unrecovered firearm used in the commission of an offence to threaten or commit violence, which were factually distinct from the case at hand.
40I do not accept this argument.
41First, the trial judge is presumed to know the law. Although he did not refer specifically to Villaroman, he followed its precepts. He referred to decisions of this court that stand for the proposition that an unrecovered firearm may be shown to meet the definition of firearm in the Code “by inference from the totality of the circumstances” where that inference is reasonable to draw: see Wills, at paras. 50-51. He clearly found that inference was the only reasonable one available in this case. After considering what he referred to as the “totality of the evidence”, he stated: “I am satisfied that the Crown has proved to the criminal standard of beyond a reasonable doubt that the object was in the possession of the accused, that it was a firearm, and that it was a handgun”. Proof beyond a reasonable doubt that the object is a real firearm necessarily entails the conclusion that the alternative inference—that the object is not a real firearm—is not reasonable.
42Second, the trial judge did not misapply the cases he referred to. Although he did not expressly refer to the alleged firearm in those cases having been used in the commission of an offence, nothing turns on this. He relied on the cases for the correct legal proposition that possession or use of a firearm may be proven even where the object has not been recovered. Beyond that, he did not use them to drive the conclusion in this case one way or the other. He referenced certain similarities and dissimilarities between those cases and this one, noting in particular that a threat to use the firearm was present in most of the cases he referred to but there was no such threat in this case.
43Whether the totality of the circumstantial evidence properly supports an inference of guilt is a case specific question. Reference to the facts of other cases may in some situations be illuminating but cannot distract from the central task of the fact finder to determine what inferences should be drawn on the evidence before them. In my view, the trial judge’s references and comparisons to the situations in other cases do not indicate that he lost sight of his central and case specific fact-finding task.
44The appellant also argues that the specific facts the trial judge referenced were insufficient to prove beyond a reasonable doubt that the object was a firearm. He submits that Det. Richer’s observation that the object was a handgun should have been given no weight as she was not an expert and the trial judge said he had received it as a statement of her belief. The trial judge’s observation that a laser aiming device would have no place on an imitation gun was not rooted in any evidence. Further, as not everything said on the video was intelligible, he submits that it was a misapprehension of the evidence to link the appellant’s display of the ammunition in the magazine to the complainant’s question about whether the gun was real.
45I reject these submissions. It was open to the trial judge to place principal reliance on the video, from which the gun, its laser pointer, and the magazine containing ammunition could be carefully observed. It was also open to him to interpret the appellant’s conduct in the video as consisting of displaying and pointing the gun, and opening the magazine to show it was loaded with ammunition in specific response to the complainant’s question about whether it was real. Even disregarding the view of the investigating officer, this evidence was sufficient to reasonably ground the verdict, in the sense that a properly instructed trier of fact acting judicially could reasonably have been satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence. The trial judge was entitled to find, as part of the totality of the evidence, that the fact that there was a laser pointing device supported that the gun was real. On appellate review, the fact that the appellant did not testify or lead any evidence undermines his argument that a reasonable alternative inconsistent with guilt should have been drawn from the totality of the evidence.
46I also do not accept the appellant’s argument that the way in which the trial judge dealt with Det. Meehan’s expert report amounted to procedural unfairness, or led him to arrive at an unreasonable conclusion.
47Defence counsel abandoned an abuse of process application arising from the Crown’s decision not to call the expert. The appellant relies on the exchange between the trial judge and defence counsel which led her not to pursue an attempt to admit the expert report through Det. Richer, but defence counsel did not object to the way that was left at the time, nor call Det. Meehan as a witness before the close of evidence. The trial judge, on his own during argument, raised the concern that the Crown was using the absence of the report in evidence against the defence. Any unfairness arising from the Crown’s argument was ameliorated by (i) the trial judge’s offer to reopen the case and allow the defence to call Det. Meehan, which defence counsel chose not to do; (ii) the Crown’s clarification that it was not relying on the absence of the report against the defence or to meet its burden its case; and (iii) the fact that the trial judge did not reason in the manner that he was concerned the Crown was proposing. The appellant does not allege that defence counsel’s representation of him was inadequate.
48The views of Det. Meehan as expressed in the expert report were not in evidence. The trial judge was correct not to consider them: R. v. Kwok, 2023 ONCA 458, 427 C.C.C. (3d) 462, at para. 57. They cannot be used, on appeal, to suggest a reasonable alternative inference inconsistent with guilt that arises from the evidence, including any gap in the evidence. In any event, all Det. Meehan said in his report was that it might be physically possible for some pistol magazines to be inserted into some replica firearms. The trial judge was entitled to conclude that this was not a reasonable possibility on the totality of the evidence, including his finding that the appellant showed the complainant the magazine in response to her question “Is it a real gun?”.
49I therefore reject this ground of appeal.
2. Was there a gap in the evidence that prevented a conviction for the s. 95 offence?
50Section 95 makes it an offence to possess, in any place, “a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm”. Exceptions exist where the person has an authorization or licence to possess the firearm at that particular place and a registration certificate for the firearm, or where they are using it under the supervision of a person who is authorized to have the weapon and are using it in the manner of that authorization. The exceptions are inapplicable in this case.
51The appellant argues that even if the finding that the appellant possessed a firearm as defined by s. 2 of the Code was reasonable, the s. 95 conviction cannot stand because the trial judge failed to consider the reasonable alternative that the ammunition in the gun was not capable of being fired from the firearm.
52I reject this argument.
53The appellant relies on St-Pierre v. R., 2024 QCCA 518, in which the Quebec Court of Appeal reversed a conviction under s. 95(2), but the case is not analogous. The error identified by the court in that case related to whether a sawed-off .22 calibre rifle, found in a shelf on a trailer during a search, was a firearm as defined in s. 2 of the Code at all. The rifle had not been tested to show it could fire; the trial judge erred in concluding it was a firearm, which is a prerequisite for a s. 95(2) conviction, without sufficient evidence. The court cautioned that a gun being loaded or near ammunition cannot independently establish that a gun is functional, which is a required element of the definition under s. 2 of the Code.
54In this case, prior to the finding on s. 95(2), the trial judge found that the firearm met the definition in s. 2 of the Code, meaning that he concluded it was operational or functional. As noted above, the trial judge did not make this finding on the sole basis that there was ammunition in the gun, but from a variety of considerations including the way the appellant removed the magazine to display the ammunition after being asked if the gun was real. The additional requirement in s. 95(2), that the (operational) firearm was loaded with ammunition was apparent from the video. The trial judge stated: “we see the magazine with cartridges being removed so while on camera and before the removal, the accused was in possession of a loaded firearm”.
55The absence of an explicit finding that the ammunition in the (operational) gun was the type that could be fired from it does not make the s. 95(2) unreasonable or unsupportable. The trial judge’s reasons responded to the arguments at trial; defence counsel did not argue that even if the firearm met the s. 2 definition, the ammunition in it could not be fired. Nor was there any evidence, such as the ammunition not fitting the magazine or the magazine not fitting the firearm, to suggest this was the case.
56The trial judge found that the appellant showed that the gun was loaded with ammunition “in response” to her question about whether the gun was real. This finding, which was available to the trial judge on the evidence before him, supported the inference that the ammunition could be fired from it—otherwise, why show it? In these circumstances, the alternative inference that the operational firearm was loaded with ammunition that fit, and that the appellant chose to display, but that could not be fired, is speculative.
57I therefore reject this ground of appeal.
3. The sentence appeal
a. The Appellant’s Arguments
58The appellant argues that the trial judge did not appropriately consider immigration consequences in his sentencing decision. The alleged error has two components.
59First, the appellant submits that the trial judge misunderstood the immigration consequences. The trial judge stated that 1) the convictions would not render the appellant inadmissible unless he received a six-month sentence or longer and 2) the deportation order arising from a custodial sentence of longer than six months would be subject to appeal. The correct propositions were that the convictions themselves would deem the appellant criminally inadmissible and subject to a deportation order if CBSA were to seek one, and 2) a custodial sentence of six months or more would result in the appellant not having a right to appeal a deportation order if made.
60Following from this, the appellant submits that the trial judge’s singular reference to the fact that immigration consequences could not justify an unfit sentence does not reflect a proper consideration of those consequences as an aspect of the circumstances of the offender. Whether or not immigration consequences could be avoided or mitigated by imposing a sentence of less than six months, those consequences should still have been considered in deciding what was a fit sentence.
b. Discussion
61A sentence imposed by a trial judge is owed considerable deference on appeal. Appellate interference is justified only where (i) the sentence is demonstrably unfit, or (ii) the trial judge made an error in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor and the error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 41 and 44.
62Collateral immigration consequences of a sentence for the particular offender may be taken into account in sentencing. Their weight varies depending on the case. 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”: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 13-14.
63The errors in the trial judge’s summary of the immigration consequences do not rise to a level that justifies appellate intervention. The trial judge misstated the prerequisite to deemed inadmissibility for serious criminality as including a sentence of six months or more.4 The error was harmless. No one suggested in this case that the sentence should be less than six months, and therefore the consequences that might occur in that situation were not pertinent and could not have impacted on the sentence imposed.
64The trial judge’s statement that a deportation order could be appealed if the sentence exceeded six months was incorrect. There would be no right of appeal from a deportation order if the sentence were six months or more. But more pertinent to sentencing is the risk of deportation itself: R. v. Sousa, 2023 ONCA 100, 165 O.R. (3d) 641, at para. 10-11, 14. The presence or absence of a right of appeal is relevant to sentencing to the extent it sheds light on the likelihood or risk of deportation.
65Here, given the appellant’s status as a convention refugee, a deportation order might not be sought. In any event, the appellant would not be deportable unless the Minister of Immigration, Refugees and Citizenship made a finding that he was a danger to the Canadian public. “Serious criminality does not suffice. The Minister must also be of the opinion that the person is a danger to the public”: Makomena v. Canada (Citizenship and Immigration), 2019 FC 894, at para. 4; Immigration and Refugee Protection Act, s. 115(1) and (2). Before a danger to the public finding is made, the refugee is notified and given an opportunity to respond; if made, the danger to the public finding may be judicially reviewed: Makomena, at paras. 5 and 25-26, citing Ragupathy v. Canada (Minister of Citizenship and Immigration), 2006 FCA 151, [2007] 1 F.C.R. 490, at paras. 16-19.
66Accordingly, the trial judge’s error could not have had an impact on sentence since legal protections and process existed which affected the likelihood of deportation actually occurring, similar to a right of appeal.
67The appellant submits that the trial judge only considered whether he could reduce the sentence to avoid immigration consequences and, having decided that less than six months would be an unfit sentence, did not otherwise consider those consequences in determining what a fit sentence would be for this offender. This was an error, according to the appellant, because even if a sentence cannot be reduced to avoid immigration consequences, those consequences remain relevant, as the sentence imposed will have a more significant impact on a person subject to immigration consequences than on a Canadian citizen: R. v Ignacio, 2019 ONSC 2832, at paras. 28 to 30. The appellant points out that nowhere does the trial judge specify how he was taking the immigration consequences into account.
68I do not accept this argument, for two reasons.
69First, in light of the submissions on sentence of counsel, I do not read the trial judge’s statement that he could not impose an unfit sentence to address immigration consequences to mean he limited himself to only considering whether such consequences could be avoided completely by a sentence of less than six months. Both counsel submitted to him that a sentence below six months was not available. Defence counsel, in arguing that immigration consequences should be considered, acknowledged that “regardless of the sentence Your Honour gives [the appellant], he’s over the six months”.
70Accordingly, a fair reading of the reasons is that the trial judge was viewing the immigration consequences as a factor in deciding a fit sentence, which would be above six months, subject to the limitation that that factor could not justify a sentence that was unfit. This reading is consistent with his conclusion with respect to the s. 95(2) offence, in respect of which he indicated he was imposing the “shortest sentence” available. And although he did not make an express statement to the same effect with respect to the sentences for the s. 117 offences, he imposed a sentence at the bottom of the range that was suggested to him.
71Second, the trial judge had no obligation to identify exactly how immigration consequences impacted the sentence, let alone give a specific reduction for them. A sentencing judge has a discretion as to whether, and to what extent, collateral immigration consequences should be taken into account, provided the ultimate sentence is proportionate to the gravity of the offence and the offender’s degree of responsibility. There is no separate range of sentences for persons facing a risk of deportation: Pham, at paras 16.
Disposition
72I would dismiss the conviction appeal. I would grant leave to appeal sentence, but would dismiss the sentence appeal.
Released: July 8, 2026 “B.Z.”
“B. Zarnett J.A.” “I agree. J. Dawe J.A.” “I agree. L. Madsen J.A.”
Footnotes
- Not Mr. Gourlay or Ms. Boghosian.
- At the same time as he imposed sentences for the convictions which are the subject of this appeal, the trial judge also sentenced the appellant for an assault that occurred while he was in custody (to which he pled guilty).
- A discrete offence of using an imitation firearm in the commission of an indictable offence exists under s. 85(2) of the Code.
- Under s. 36 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, conviction for an offence punishable by a maximum of at least 10 years results in deemed inadmissibility.