Her Majesty the Queen v. B.R.C. [Indexed as: R. v. C. (B.R.)]

102 O.R. (3d) 135

2010 ONCA 561

Court of Appeal for Ontario,

Laskin, Sharpe and LaForme JJ.A.

August 25, 2010

Criminal law -- Sentencing -- Immigration consequences -- Accused sentenced to 30 months' imprisonment after pleading guilty to sexual exploitation -- Fresh evidence adduced on appeal that accused was subject to deportation order -- Counsel and trial judge not aware of [page136] immigration consequences of sentence imposed -- Accused having lived in Canada since infant and having no ties to country to which he would be deported -- Accused losing right to appeal deportation order as result of receiving sentence of two years or more -- Reformatory sentence not outside acceptable range -- Accused making significant progress in custody and presenting low risk of re-offending -- Sentence varied to two years less a day followed by six months' probation.

The accused pleaded guilty to sexual exploitation. The victim, the son of the accused's common law partner, was between the ages of 15 and 17 at the time of the offence. The offence was prolonged and included several acts of anal intercourse. The accused had no criminal record. He was sentenced to 30 months' imprisonment. He appealed and adduced fresh evidence on appeal that he was subject to a deportation order as a result of the conviction. Because he received a sentence of two years or more, he lost his right to appeal the deportation order.

Held, the appeal should be allowed.

Neither counsel nor the sentencing judge were aware of the accused's immigration status or of the immigration consequences of a penitentiary sentence. The accused came to Canada from Scotland when he was 14 months old. He was now 45. He adduced fresh evidence that he had made significant progress in custody and now presented a low risk of re-offending. The offence was serious, and apart from the immigration consequences, the 30- month sentence was not unfit. However, a reformatory sentence was not outside the acceptable range, and the certainty of deportation was a factor that tipped the scale in favour of the accused. In addition, he had already served almost the entire custodial sentence originally imposed. The sentence was varied to two years less a day in jail, followed by six months' probation.

APPEAL by accused from the sentence imposed by Durno J. of the Superior Court of Justice dated February 20, 2009.

Cases referred to R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1, [2004] O.J. No. 3252, 241 D.L.R. (4th) 490, 189 O.A.C. 90, 186 C.C.C. (3d) 129, 22 C.R. (6th) 1, 62 W.C.B. (2d) 510 (C.A.); R. v. Iamkhong, [2009] O.J. No. 2446, 2009 ONCA 478, 190 C.R.R. (2d) 185, 250 O.A.C. 220; R. v. Melo, 1975 1299 (ON CA), [1975] O.J. No. 723, 26 C.C.C. (2d) 510, 30 C.R.N.S. 328 (C.A.) Statutes referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 64(2)

Michael Dineen, for appellant (duty counsel). Lorna Bolton, for respondent.

The judgment of the court was delivered by

[1] SHARPE J.A. -- The appellant pleaded guilty to sexual exploitation and was sentenced to 30 months' imprisonment. The victim was the son of the appellant's common law partner and was between age 15 and 17 at the time the offence was committed. [page137]

[2] The appeal from conviction was abandoned. The sole ground raised on the sentence appeal is based upon fresh evidence. The proposed fresh evidence is that the appellant is now subject to a deportation order imposed as a result of his conviction and sentence. Because the sentence was for more than two years, the appellant cannot appeal the deportation order to the Immigration Appeal Division: Immigration and Refugee Protection Act, S.C. 2001, c. 27. s. 64(2). Had the sentence been for less than two years, the appellant would have a right of appeal.

[3] It is apparent from the record of the sentencing proceedings that neither the sentencing judge nor counsel was aware of the appellant's immigration status or of the full impact of a penitentiary sentence upon the appellant.

[4] The appellant's problem with his immigration status is unusual. He came to Canada from Scotland as a 14-month-old infant. Neither he nor his parents took any steps to become Canadian citizens. The appellant is now 45 years old and has lived 44 of those years in Canada as if he were a Canadian. He has no ties to Scotland apart from the fact that it is the place of his birth.

[5] The sentencing judge carefully considered the mitigating and aggravating factors. The appellant is a first-time offender and has a good employment history. He pleaded guilty, expressed his remorse, was dealing with his problem with drugs and alcohol and he appeared to be a low risk to re-offend. On the other hand, he was in a position of trust and authority over the victim and the offence was prolonged and included several acts of anal intercourse. The Crown asked for a three-year sentence while the appellant asked for a conditional sentence.

[6] When considering the plea for a conditional sentence, the sentencing judge concluded that he "could not exclude a penitentiary sentence" and that "even if [he] were to be persuaded that an appropriate range of sentence includes the reformatory", a custodial term was required. Earlier, the sentencing judge observed that "even in the Crown's view", the mitigating factors "take the sentence into the lowest part of the range . . .".

[7] Were it not for the fresh evidence as to the deportation order, I would not interfere with this sentence. However, I do not agree with the submission of the Crown that a reformatory sentence was outside the acceptable range. In my view, in the unusual circumstances of this case, the certainty of deportation is a factor that properly tips the scale in favour of a sentence of two years less a day.

[8] This court has held that "the certainty of deportation may justify some reduction in the term of imprisonment for purely pragmatic reasons": [page138] R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1, [2004] O.J. No. 3252 (C.A.), at para. 156. While the sentencing process should not be used to circumvent the provisions of the Immigration and Refugee Protection Act, the calculation of the appropriate sentence is not an exact science. Where there is a range of possible sentences, the fact that an offender will face deportation under one possibility "is one of the factors which is to be taken into consideration . . . in conjunction with all of the other circumstances of the case" in choosing the appropriate sentence and tailoring the sentence to fit the crime and the offender: R. v. Melo, 1975 1299 (ON CA), [1975] O.J. No. 723, 26 C.C.C. (2d) 510 (C.A.), at p. 516 C.C.C.

[9] I recognize that most cases in which an appellate court has reduced a sentence on account of the risk of deportation have involved modest reductions, often from two years to two years less a day. However, when I assess the unusual circumstances of this offence and this offender with the benefit of knowing what has transpired since that sentence was imposed, I conclude that a 30-month sentence is not fit and that the interests of justice would be served if the sentence were reduced to two years less a day.

[10] First, the appellant is within less than two months of his statutory release date. This means that he has effectively served virtually all the custodial time imposed by the sentencing judge. In practical terms, by reducing the sentence and adding a term of probation we do not significantly interfere with the practical effect of the sentence imposed by the sentencing judge.

[11] Second, the appellant has led as fresh evidence reports from the institution indicating that he has made significant progress in custody, completing programs to assist sex offenders and those with problems of substance abuse. These reports indicate that the custodial authorities are satisfied that he presents a low risk of re-offending.

[12] Third, the appellant has married his long-term partner, who is a Canadian citizen.

[13] Fourth, it is now apparent that unless his sentence is reduced, he will almost certainly be deported from Canada to a country with which he has no meaningful connection.

[14] The sentencing process must retain "a human face": Hamilton, supra, at para. 158; R. v. Iamkhong, [2009] O.J. No. 2446, 2009 ONCA 478, at para. 60. Appellate courts appropriately exercise their powers in exceptional cases to avoid unintended penalties and consequences that would be patently unjust and unfair. The cumulative effect of the factors I have mentioned makes this such a case. The appellant has effectively served his time. It would be unfair and unjust to leave in place a sentence that would [page139] have the unintended effect of condemning the appellant to exile in a country with which he has no meaningful connection.

[15] Accordingly, the appeal from conviction is dismissed as abandoned. I would grant leave to appeal sentence, allow the appeal and reduce the custodial portion of the sentence to one of two years less a day, plus six months' probation.

Appeal allowed.