COURT FILE NO.: 18-9479 DATE: 20181130 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ABDULAHI QUADRI Appellant

COUNSEL: Moiz M. Karimjee, for the Crown Angela Stewart, for the Appellant

HEARD: November 21, 2018

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

Before: Aitken J.

Nature of Proceedings

[1] The Appellant, Abdulahi Quadri, appeals the sentence imposed on him by Fraser J. on April 18, 2018 following his guilty plea for the offence of knowingly using a forged document under s. 368(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. Fraser J. sentenced the Appellant to a suspended sentence and probation for a period of 12 months. The Appellant takes the position that he should have been given a conditional discharge with a 12-month probation order.

Background Facts

[2] On January 18, 2018, the Appellant tried to use a forged Ontario Driver’s license in the name of Michael Wilson at a CIBC branch in Ottawa to open a bank account. The employees at CIBC confirmed that there was a Michael Wilson registered in their system; however, the document that the Appellant had provided appeared to be fraudulent. CIBC staff notified the police. The police attended at the branch, confirmed the identity of the Appellant, and took possession of the documents that he had in his possession in the name of Michael Wilson. The Appellant was charged with use of a forged document as if it were genuine.

[3] At the time, the Appellant had a prior conditional discharge from August 2016 for a domestic assault. The current offence is unrelated to the earlier offence. On the earlier occasion, the Appellant received 18 months’ probation which had not yet expired by the time he committed the current offence.

[4] At the time of the guilty plea and sentencing before Fraser J., the Appellant was 29 years of age and was in receipt of Ontario Works. His lawyer conveyed to the court the Appellant’s explanation as to why he had been using a forged document at the CIBC branch in an attempt to open a bank account. The Appellant claimed that someone from his home country, Nigeria, had told him that they were moving to Canada and they asked him to open a bank account for them. The Appellant was unaware of the name of the person who had asked him for this favour. When speaking directly to the judge, the Appellant claimed that a person who was a friend, but not a close friend, had messaged him asking him to open a bank account for him, but the Appellant could not say who the friend was or where he was physically located.

[5] The Appellant is a refugee claimant who has been in Canada since 2011. The Appellant’s refugee status has not yet been determined. On this appeal, Defence counsel advised that the Appellant fears that if he is required to return to Nigeria, his life will be in danger because he is bisexual.

[6] The Appellant’s lawyer advised Fraser J. that, if a conviction were entered against the Appellant, the Appellant would be rendered inadmissible to Canada with no right of appeal. A conditional discharge would not result in this immigration consequence. Prior to Fraser J. imposing a sentence, the Appellant’s lawyer did not provide Fraser J. with the source of this information.

[7] Between the date of charge and the date of sentencing, the Appellant had completed 50 hours of community service with the Islamic Society of Sandy Hill.

[8] When declining to give the Appellant a conditional discharge and instead giving him a suspended sentence with 12 months’ probation, Fraser J. made it clear that he did not believe the Appellant’s explanation as to why he had used a forged document. He found that the Appellant would have understood the immigration jeopardy in which he was placing himself by, once again, committing a criminal offence. Fraser J. thought that the Appellant’s first criminal offence and “close call” would have been a wake-up call to the Appellant reinforcing the point that he had to walk a straighter line and abide by the law or risk facing immigration consequences. Fraser J. noted that, just days before the Appellant’s probation for his criminal offence would have expired, he committed a crime of dishonesty. Fraser J. considered impersonation offences to be quite serious.

Analysis

[9] Defence counsel argued that Fraser J. erred by failing to consider the immigration consequences that would be suffered by the Appellant if he was given a suspended sentence plus probation rather than a conditional discharge plus probation.

[10] If a sentencing judge fails to consider the collateral immigration consequences to be faced by an accused as a result of a particular sentence, it is an error of law permitting the appellate court to reconsider the sentence (R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 24). However, as stated in Pham, at para. 20:

… the sentencing judge is not compelled in all circumstances to adjust a sentence in order to avoid the impact of collateral immigration consequences on the offender. It remains open to the judge to conclude that even a minimal reduction … would render the sentence inappropriate for the particular offence and the particular offender. Collateral immigration consequences are but one relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender’s personal circumstances.

See also R. v. Lu, 2013 ONCA 324, 17 Imm. L.R. (4th) 191, at paras. 45-47.

[11] I do not accept Defence counsel’s assertion that Fraser J. failed to take into account the collateral immigration consequences to be faced by the Appellant if Fraser J. imposed a suspended sentence.

[12] A review of the reasons of Fraser J., in their entirety, shows that Fraser J. took into account all of the factors relating to the offender and the offence – including the potential immigration consequences of the sentence he was about to impose. After having done that, he concluded that a conditional discharge was not a fit and appropriate sentence in all the circumstances. Fraser J. was well within his rights to come to this conclusion.

[13] Under s. 730(1) of the Criminal Code, a conditional discharge is available where: (1) the offence does not have a minimum punishment; (2) the offence is not punishable by imprisonment for 14 years or for life; (3) it is in the best interests of the accused; and (4) it is not contrary to the public interest. In R. v. Sanchez-Pino, [1973] O.R. 314, 11 C.C.C. (2d) 53 (C.A.), at paras. 17-19, Arnup J.A. offered some guidance as to when a discharge might be appropriate.

[14] In the case at hand, the first two pre-requisites for a conditional discharge are present.

[15] In Sanchez-Pino, Arnup J.A. stated that for the third factor to be present, rehabilitation and deterrence of the offender should not be relevant considerations in the circumstances, except to the extent required by conditions in a probation order. In the case at hand, it cannot be said that the sentencing objective of deterring the offender was not a relevant consideration for Fraser J. It is clear from the reasons of Fraser J. that he believed the Appellant had not yet learned his lesson that he must be law-abiding.

[16] Fraser J. had the opportunity to hear directly from the Appellant after he asked the Appellant if he had anything he wanted to say. By this time, Defence counsel had already provided to Fraser J. the Appellant’s explanation for having committed the offence. That explanation made no sense. That it made no sense was further reinforced by what the Appellant said directly to Fraser J. In short, Fraser J. did not believe what the Appellant had to say, and he found him not credible.

[17] It cannot be said that a conditional discharge is in the Appellant’s best interest where the Appellant did not appear to appreciate the importance of being a law-abiding citizen and where an earlier probation order had not had the desired effect of ensuring the Appellant remained law-abiding. Furthermore, Fraser J. could not find that the Appellant was a person of good character – particularly when, in the view of Fraser J., the Appellant was lying to the court.

[18] In regard to the fourth pre-requisite for granting a conditional discharge, namely, that a discharge be in the public interest, Arnup J.A. in Sanchez-Pino, at paras. 17-18, noted that one element to be considered was the extent to which general deterrence was an important objective in the circumstances at hand. The more serious the offence, the greater the need for general deterrence and denunciation. Fraser J. noted that identity theft has become a very serious problem in our society. For that reason, he considered the Appellant’s crime to have been a serious transgression of Canadian criminal law. Implicit in this finding was the finding that general deterrence and denunciation were important objectives in sentencing the Appellant. Fraser J. cannot be faulted for this conclusion.

[19] Fraser J. also knew that the Appellant had had one earlier conviction for which he had already received a very lenient disposition, namely, a conditional discharge with 18 months’ probation. It was open for Fraser J. to find that the Appellant should not be given a second chance to avoid the collateral immigration consequences that might flow from his being sentenced following a second criminal conviction. Fraser J. found that, before using the forged document, the Appellant was fully aware, or should have been fully aware, of the immigration jeopardy he was facing by committing further criminal acts. Despite that, the Appellant committed a serious criminal offence, and did so while he was still subject to the earlier probation order to keep the peace and be of good behaviour.

[20] There can be no doubt that a suspended sentence with 12 months’ probation was within the range of suitable sentences for an offence of this nature committed by an offender in the Appellant’s circumstances.

[21] When interacting with the Appellant, as an aside, Fraser J. commented that he was not sure that he even accepted the Appellant’s explanation of the immigration consequences of a suspended sentence, but he specifically followed up this brief statement by saying “but that’s another story”. After Fraser J. had expressed what he considered to be an appropriate sentence, Defence counsel advised that the information that had been advanced about the immigration consequences of the sentence had been provided by a full-time immigration lawyer employed by Legal Aid Ontario. Fraser J. advised that he was taking at face value that assessment but that, regardless of the potential consequences predicted by Defence counsel, he did not consider a conditional discharge an appropriate disposition in the circumstances of the case. His decision in this regard is entitled to deference.

[22] Fraser J. may not have assigned to the potential immigration consequences the weight that Defence counsel would have liked him to assign, but the weighing of the relevant factors was within the scope of what a sentencing judge must do, and the sentencing judge is entitled to significant deference in this regard (R. v. Shropshire, [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193, at paras. 46-48; R. v. C.A.M, [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327, at paras. 90-91; Lu, at paras. 37-38).

Disposition

[23] The summary conviction appeal is dismissed.

Aitken J.

Released: November 30, 2018