Court of Appeal for Ontario

Date: 2017-12-20

Docket: M48530 (C64589)

Epstein J.A. (In Chambers)

Parties

Between

Her Majesty the Queen Respondent (Respondent)

and

Mustafa Hassan Appellant (Applicant)

Counsel

Colin Wood, for the applicant

Jeanette Gevikoglu, for the respondent

Heard: December 11, 2017

Endorsement

Background

[1] On February 21, 2014, the applicant was arrested on suspicion of trafficking cocaine and marijuana. A search of the applicant incident to his arrest yielded, among other things, 88 grams of cocaine. The applicant was subsequently convicted of possession of cocaine for the purpose of trafficking and sentenced to two years in custody, less five months' pre-sentence credit.

[2] The applicant has appealed his sentence. On this application, he seeks bail pending his sentence appeal pursuant to s. 679(4) of the Criminal Code.

[3] The Crown opposes bail. In its view, the applicant has not demonstrated that his appeal has sufficient merit such that his detention would cause unnecessary hardship.

[4] For the reasons that follow, the application is dismissed.

The Applicant's Background

[5] The applicant is a permanent resident of Canada. He was born in Iraq in 1991 and immigrated to Canada with his family in 2005. In the words of the sentencing judge, after arriving in Canada as a teenager, the applicant experienced difficulties as he "faced integration into a free society with a new language, radically different cultural norms and educational challenges". In 2009, the applicant was convicted, as a youth, of breaking and entering, theft (x2) and failure to comply with a recognizance (x3). He was sentenced to time served of 4 days and 15 months' probation. The applicant's adult record consists of convictions for assault in 2010 (for which he received a suspended sentence and 12 months' probation) and failure to comply with a recognizance in 2011 (for which he was sentenced to one day in custody, along with credit for one day of pre-sentence custody).

[6] In spite of these difficulties, the applicant has much going for him. He has the support of his father, an engineer employed in the aviation industry, and of his mother, a professor at the University of Waterloo. The applicant has a long-term romantic relationship with a woman he hopes to marry. He is self-employed as a personal trainer and runs his own business.

Reasons for Sentence

[7] In comprehensive and thoughtful reasons, the sentencing judge reviewed the background of the applicant and his family and noted the importance of considering the applicant "in [the] context of achievement, hard work and commitment by his immediate family members not only to themselves but to this country."

[8] The sentencing judge also noted the numerous letters of support filed on behalf of the applicant in which he was generally described as a kind, caring and supportive person. The sentencing judge accepted this description of the applicant, but, in the light of the applicant's having been caught with a considerable amount of cocaine in his possession, found him also to be a sophisticated and knowledgeable young man "prepared to accept the risks of participating in serious criminality".

[9] After noting the devastating effects of drugs such as cocaine on individuals and communities, the sentencing judge turned to the submissions of counsel. The Crown took the position that the appropriate range of sentence was 12 months to 4 years. The defence submitted that the appropriate range was 9 to 12 months, but sought a reduced sentence between 2 months to 6 months less a day, on three grounds:

(1) credit for the applicant's restrictive pre-sentence bail conditions for a bail that extended over 28.5 months;

(2) sentence reduction for a proven breach of the applicant's Charter rights (the installation of cameras in the common areas of the applicant's apartment building without permission); and

(3) consideration of collateral immigration consequences stemming from the applicant's conviction.

[10] In support of argument (3), the defence filed an immigration opinion letter to the effect that the applicant would be at risk of being deported to Iraq without a right of appeal if he received a custodial sentence of six months or greater. The author of the letter observed that due to the applicant's conviction, an officer at the Canada Border Services Agency ("CBSA") would have discretion to commence inadmissibility proceedings against him by referring his matter to a minister's delegate. The delegate, in turn, could refer the matter to an inadmissibility hearing at the Immigration Division of the Immigration and Refugee Board, where a removal order would be issued. The author noted that "a sentence of less than six months will allow [the applicant] to appeal his removal order". However, if a sentence of six months or greater were imposed, the applicant would lose his right of appeal.

[11] The sentencing judge imposed a sentence of 24 months, less 5 months' credit for the applicant's restrictive bail terms, to be followed by two years' probation. The sentencing judge credited the applicant for one months' custody on account of a curfew imposed as part of his bail conditions, and four months' custody on account of the applicant's extended period of house arrest. The sentencing judge did not reduce the applicant's sentence on the basis of the Charter breach, given her finding that the breach did not seriously undermine the applicant's Charter-protected interests.

[12] The sentencing judge carefully considered the applicant's submissions regarding immigration consequences. She noted that she had discretion to take collateral immigration consequences into account when determining an appropriate sentence, provided that the sentence ultimately imposed remained proportionate to the gravity of the offence and the degree of responsibility of the offender. The first step in this inquiry, in the sentencing judge's view, was to determine whether "the sentence that avoids the collateral consequences is even a possibility". The sentencing judge ultimately determined that a sentence between two months and six months less a day was not a possibility for the applicant. While she agreed with the defence that the applicant was "well on the road to rehabilitation", the sentencing judge found that the gravity of the applicant's offence and the principles of sentencing – particularly general deterrence – called for a significantly longer sentence than six months.

[13] However, after the sentencing judge sentenced the applicant, she made the following comments about possible immigration consequences flowing from his conviction and sentence:

THE COURT: Now, here's what I'm also going to order a transcript of this part. All right? There is no doubt in my mind that you've seen the error of your ways. There's no doubt in my mind that you have a supportive and loving family. There's no doubt in my mind now, that you have ties to his community. In my view, at this point in time, your departure from this country would not serve anybody's interests, back to Iraq. All right? I'm going to order a transcript of that and just leave it in the file. Having said all of that, you noticed I didn't say, I'm not convinced you won't be back. I am convinced that you won't be back before this court. I will not go that far. There is still need for specific deterrence in this case, in my view, given your criminal history. All right? So, specific deterrence still plays a factor. However, for the purpose of any consequences, I'll order a transcript to take it with you. I see no benefit to deporting you back to Iraq. I think you can and you have the potential to be a very valuable, contributing member of Canadian society. All right? Thank you…very much. [Emphasis added.]

Analysis

Leave to Appeal

[14] Rule 31 of the Criminal Appeal Rules, SI/93-169 directs that, before disposing of this bail application, I must first determine whether the applicant should be granted leave to appeal his sentence: see also Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario (March 1, 2017).

[15] In my view, the applicant should be granted leave to appeal his sentence. While I have significant concerns regarding the merits of the pending appeal – and have factored those concerns into my below reasons for denying bail – I am satisfied the appeal is not so devoid of merit as to fail the low bar required to obtain leave to appeal sentence from this court.

[16] Having been granted leave, the applicant is entitled to have his bail application considered on the merits: Criminal Code, s. 679(1)(b).

Bail Pending Appeal

[17] To grant the applicant judicial interim release pending his sentence appeal, s. 679(4) of the Code requires me to be satisfied that: (1) the applicant's appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody; (2) he will surrender himself into custody in accordance with the terms of the order; and (3) his detention is not necessary in the public interest.

[18] There is no real dispute that the second and third elements of s. 679(4) are satisfied. The main issue is whether the applicant has satisfied the first element, which calls for (1) a threshold inquiry into the merits of his pending appeal and (2) an assessment of the hardship the applicant would experience if bail were denied. After viewing those factors in conjunction, I have concluded this application should be dismissed.

The Merits of the Appeal

[19] The threshold assessment of merit mandated by s. 679(4)(a) has been described by some courts as a search for "arguable merit": R. v. Ewanchuk, 2000 ABCA 303, 271 A.R. 118 (Alta. C.A.), at paras. 5-6; R. v. Figiel, 2015 ABCA 19, 588 A.R. 372, at para. 4. However the test is worded, I am of the view that the standard established in s. 679(4)(a) is more stringent than the test for leave to appeal sentence: The Honourable Justice Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2010), at 10-38. I am not convinced the applicant has met this higher threshold.

[20] The applicant's sentence appeal relies on three alleged errors in the decision below. First, the applicant submits that the trial judge erred by refusing to grant sentence reduction for the s. 8 Charter infringement in accordance with R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. Second, the applicant argues that the trial judge erred in the limited credit she gave for the 28.5 months during which he was subject to a curfew while on bail. Third, the applicant submits the trial judge erred by failing to properly appreciate the collateral immigration consequences of the sentence she imposed.

[21] The applicant argued his first two grounds of appeal in the proceedings below. They were expressly considered and rejected by the sentencing judge. The applicant has not, in my view, identified any error in principle with the sentencing judge's analysis on either point and faces an uphill battle to do so on appeal. In any event, during oral argument, it became clear that the focus of the applicant's sentence appeal is on his submission about collateral immigration consequences, which he also raised before the sentencing judge.

[22] On that issue, the applicant submits the sentencing judge misunderstood the immigration opinion letter filed by the defence, and consequently failed to appreciate the "actual consequences of her decision to impose a sentence of over six months."

[23] The opinion letter set out that the applicant's conviction for possession of cocaine for the purposes of trafficking would render him inadmissible to Canada due to serious criminality under s. 36(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The following is the relevant passage from the letter:

At the admissibility hearing the Minister's delegate will likely attempt to advocate that a Removal Order should be issued and the Immigration Division would have no other option but to issue a deportation order.

The Immigration Division lacks jurisdiction to consider humanitarian or compassionate factors or to stay the removal order once it determines identity, the fact of the conviction and the fact of the status of the person concerned. The procedure at the Immigration Division, insofar as it relates to matters of crimes committed in Canada, is mostly pro forma in nature. It is important to emphasize that the removal order issued by the Immigration Division would be a "deportation order." The person concerned would not be able to return to Canada at any time in the future until he received written permission to do so, which would be near impossible to obtain until he was no longer inadmissible.

[24] The letter also explains why a sentence of six months less a day would provide the applicant with the opportunity to pursue an appeal to the Immigration Appeal Division should he be found inadmissible.

A permanent resident would, assuming he spent less than six (6) months in prison rising from a conviction, have recourse to an appeal at the Immigration Appeal Division. Permanent residents who have had little contact with their country of origin, who have been living in Canada for many years, who have strong ties to Canada and who have a possibility of rehabilitation may be able to stay their removal on humanitarian and compassionate grounds at the Immigration Appeal Division. This is often the only recourse which would allow permanent residents who have been inadmissible for serious criminality pursuant to section 26(1) of the IRPA to remain in Canada.

[25] The applicant argues that the sentencing judge misapprehended the letter. As mentioned earlier in these reasons at para. 13, the sentencing judge ordered for the applicant a transcript of proceedings that included her comments advocating against the applicant's deportation. These comments, in the applicant's view, suggest that the sentencing judge mistakenly believed that the issuance of a removal order was a matter of discretion, one in which her opinion on the applicant's suitability (or lack thereof) for deportation would carry some weight.

[26] I see two significant difficulties with this position that, in my view, militate strongly against granting bail.

[27] First, I am not convinced the sentencing judge misunderstood the immigration opinion letter. While the opinion letter states that "[a]t the admissibility hearing … the Immigration Division would have no other option but to issue a deportation order", the author also indicates that at an earlier stage of the removal process, a CBSA officer "has discretion to issue a section 44 Report and render the person-concerned inadmissible at the admissibility hearing" (emphasis added in both quotations). The sentencing judge may simply have hoped that her comments would be included in the materials reviewed by a CBSA officer, who, according to the opinion letter, would have discretion over whether to commence inadmissibility proceedings against the applicant.[1]

[28] Second, even assuming the sentencing judge misapprehended the immigration lawyer's opinion, the applicant would still need to demonstrate that this error had an impact on his sentence: R v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11. I anticipate the applicant will face significant difficulty meeting this requirement on his sentence appeal. The sentencing judge's comments – delivered after she had sentenced the applicant – do not detract from her central conclusion that a sentence of six months less a day was not appropriate given the gravity of the applicant's offence and the need for general deterrence. The applicant must ultimately overcome that finding to succeed on appeal – unless he does so, this court will not have discretion to impose a sentence that preserves his appeal rights under s. 64(1) of the IRPA: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 14.

[29] I see little merit in the submission that the sentencing judge erred by finding that a sentence of six months less a day would have been inappropriate for the applicant. The sentencing judge's conclusions on this point are owed deference and do not, in my view, disclose any error in principle.

[30] These difficulties are compounded by the fact that, according to the immigration opinion letter, the length of sentence necessary to trigger the relevant provisions of the IRPA is measured "prior to any credit given for pre-sentence custody" (emphasis added). This position is borne out by decisions of the Federal Court and this court: see Brown v. Canada (Minister of Public Safety & Emergency Preparedness), 2009 FC 660, 81 Imm. L.R. (3d) 90, at paras. 18-23; Ariri v. Canada (Minister of Public Safety & Emergency Preparedness), 2009 FC 834, 83 Imm. L.R. (3d) 162, at para. 17-19; R. v. McKenzie, 2011 ONCA 42, 280 O.A.C. 175, at para. 14; R. v. Freckleton, 2016 ONCA 130, 39 Imm. L.R. (4th) 158, at para. 6. In other words, to avoid the collateral immigration consequences the applicant complains of, this court must vary his sentence to six months less a day before accounting for any pre-sentence credit. This outcome would contradict the defence position at sentencing that the appropriate range of sentence, not including pre-sentence credit, is between 9 and 12 months. It would also run counter to the position adopted in the applicant's factum for these bail proceedings, in which he submits that "[a] sentence of 11 to 12 months custody would have been fit and within the range of available sentences for [this] offence".

[31] In my view, therefore, an assessment of the merits of the appeal weighs against granting bail.

Hardship

[32] I am required under section 679(4)(a) to consider not only the merits of the applicant's sentence appeal, but also whether denying the applicant bail pending appeal would cause "unnecessary hardship". The two factors are inter-related: the weaker the merits of a pending appeal, the harder it will be for an applicant to show that hardship caused by continued incarceration is "unnecessary". My above observations regarding the merits of this particular appeal therefore weigh strongly against a finding of "unnecessary hardship". Even assuming the applicant's sentence appeal has greater merit than I have recognized, however, I am still of the view that unnecessary hardship has not been made out.

[33] Of course, incarceration is by its nature a hardship. Unnecessary hardship means something more: The Law of Bail in Canada, at 10-37-10-39. To show unnecessary hardship, an applicant must demonstrate that his appeal is sufficiently meritorious such that, if judicial interim release is not granted, he will have spent more time in custody than what is subsequently determined to be fit: The Law of Bail in Canada, at 10-39. Accordingly, I will also consider whether, even if the applicant is ultimately successful on appeal, it is likely that he will have served more time in custody than he ought to have spent.

[34] The applicant has been in custody since his sentencing on November 16, 2017. He seeks to have his sentence varied to six months less a day. Assuming he is successful on appeal, he would be eligible for release by mid-March in 2018. I am confident the appeal can be disposed of on an expedited basis before then, even allowing for some delay for the decision to be reserved, written and released. Consequently, I do not think it is likely the applicant will have spent more time than necessary in custody even if he succeeds on appeal. In these circumstances, I am unable to find that the applicant's continued detention would cause "unnecessary hardship". [2] His bail application must therefore be denied.

Disposition

[35] This has not been an easy case for the determination of bail. As I have attempted to stress in these reasons, the applicant's personal circumstances, including his immigration issues, are compelling. I share the sentencing judge's view that the applicant's deportation from Canada would not advance the public interest. That said, I am not satisfied that the applicant has met his onus under s. 679(4) to obtain judicial interim release. The application is therefore dismissed.

[36] I direct that the applicant's sentence appeal be expedited to the first date available from the Registrar of this court. Counsel should contact the Registrar for this purpose on their receipt of these reasons.

"Gloria Epstein J.A."

Footnotes

[1] The opinion letter is silent on whether the materials reviewed by a CBSA officer would include the transcript of the decision below.

[2] This analysis assumes the applicant is seeking an effective sentence of six months' less a day. As mentioned above, in his factum, the applicant states the appropriate range of sentence is between 11-12 months, and only arrives at a six month sentence following deductions for pre-sentence credit (5 months) and the Charter breach (1 month). Had the applicant argued for a formal sentence of six months less a day (i.e. an effective sentence of one month), I would still have dismissed this bail application, on the grounds that the appeal does not have sufficient merit such that the risk of the applicant spending unnecessary time in custody amounts to "unnecessary hardship".