Court of Appeal for Ontario

Date: 2018-02-23 Docket: C63418

Judges: Hoy A.C.J.O., Simmons and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Mariano Martinez-Rodriguez Appellant

Counsel

Eva Taché-Green, for the appellant

Rebecca De Filippis, for the respondent

Heard and Released

Heard and released orally: February 12, 2018

On appeal from: The conviction entered on September 23, 2010 and the sentence imposed on September 30, 2010 by Justice J. Westman of the Ontario Court of Justice.

Reasons for Decision

[1] In September 2010, the appellant was convicted of criminal harassment and sentenced to a suspended sentence and two years' probation, in addition to the 210 days served in pre-sentence custody. For immigration purposes, the seven months he spent in pre-sentence custody was deemed to constitute a period of imprisonment of more than six months.

[2] The appellant has abandoned his conviction appeal. He seeks leave to introduce fresh evidence and to appeal his sentence on grounds that it was imposed without consideration of the collateral immigration consequences that later attached to it as a result of amendments to federal immigration legislation introduced after he was sentenced.

[3] The Crown concedes that had these collateral immigration consequences been known at the time of the appellant's sentencing, they can be expected to have affected the result and acknowledges that a suspended sentence with credit for six months less a day for pre-sentence custody is a fit sentence within the acceptable range for this offence and this offender. The Crown also consents to the appellant's fresh evidence application.

[4] Accordingly, the appellant's fresh evidence application is granted, leave to appeal sentence is granted, and the appeal against sentence is allowed. A suspended sentence is imposed with credit for six months less one day of pre-sentence custody and two years' probation on the terms imposed by the trial judge.

"Alexandra Hoy A.C.J.O."

"Janet Simmons J.A."

"G. Pardu J.A."