DATE: 20060406

DOCKET: C42044

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – VICTOR HUGO TIGSE-VACA (Appellant)

BEFORE:

SIMMONS, MACFARLAND AND ROULEAU JJ.A.

COUNSEL:

Nicholas A. Xynnis

for the appellant

Marco Mendicino

for the respondent

HEARD & RELEASED ORALLY:

March 27, 2006

On appeal from the sentence imposed by Justice R. Bigelow of the Ontario Court of Justice on November 4, 2003.

E N D O R S E M E N T

[1] The appellant appeals a two-year sentence imposed following his pleas of guilty to two counts of trafficking in cocaine, one count of possession of cocaine for the purpose of trafficking and one count of possession of the proceeds of crime. A two-year sentence was imposed based on a joint submission and was in addition to six and one-half months of pre-trial custody.

[2] The appellant was ordered deported several months after the sentencing hearing. On appeal the appellant asks that his sentence be reduced by one day in order that he can pursue an argument in the appropriate forum that ss. 64(1) and (2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, do not prohibit an appeal of his deportation order. Those subsections prohibit, in various circumstances, an appeal of a finding that a permanent resident of Canada is inadmissible, including where the permanent resident has been convicted of a crime that was punished in Canada by a term of imprisonment of at least two years.

[3] The appellant relies on Regina v. Lacroix, [2003] O.J. No. 2032, in which this court reduced a sentence of two years imprisonment to two years less one day. As is the case here, in Lacroix the original two-year sentence was in addition to substantial pre-sentence custody (in Lacroix the appellant had served 6 months pre-sentence custody for which he received two for one credit).

[4] The appellant submits that at the time of his sentencing hearing neither he nor counsel were alive to the provisions of s. 64 of the Immigration and Refugee Protection Act and that the issue was not brought to the attention of the sentencing judge. He says that the immigration consequences of his sentence were a relevant consideration on sentencing and that reducing his sentence by one day would not detract from its fitness. Although there was no fresh evidence filed on this appeal, the Crown does not take issue with the underlying facts on which the appellant relies.

[5] We accept the Crown’s submission that existing Federal Court authorities indicate that pre-sentence custody must be taken into consideration when determining if the s. 64(2) prohibition applies. However, this is a relatively new provision and the issue of how it should be interpreted has not yet been definitively determined by the Federal Court of Appeal. In these circumstances, given that the appellant wishes to pursue this issue, that the sentencing proceeded by way of joint submission, that no one turned their mind to the immigration issue, and that, in our view, a variation of one day does not detract from the fitness of this sentence, we conclude that the appeal should be allowed.

[6] Accordingly, leave to appeal sentence is granted and the sentence is varied by reducing the term of imprisonment to two years less one day. All other terms of the original sentence shall remain the same.

“Janet Simmons J.A.”

“J. MacFarland J.A.”

“Paul Rouleau J.A.”