Her Majesty the Queen v. M.Q. [Indexed as: R. v. Q. (M.)]

110 O.R. (3d) 276

2012 ONCA 224

Court of Appeal for Ontario,

Winkler C.J.O., Doherty and Goudge JJ.A.

April 10, 2012

Criminal law -- Counsel -- Conflict of interest -- Accused charged with sexual assault and assaults against his former wife -- Court discovering after close of Crown's case that complainant had consulted defence counsel about incidents that led to charges -- Defence counsel having no recollection of meeting complainant -- Accused and complainant receiving independent legal advice -- Accused expressing desire to continue and signing direction waiving conflict -- Complainant indicating no objection to defence counsel continuing to act -- Defence counsel being accused's fifth counsel and trial commencing on date set for trial -- Trial judge not erring in ruling that trial should continue on basis neither interests of justice nor need for public confidence in trial fairness requiring mistrial -- Accused retaining new counsel after conviction and bringing application for mistrial -- Trial judge not erring in dismissing application given absence of evidence of any prejudice caused to accused.

Criminal law -- Sentencing -- Immigration consequences of sentence -- Accused sentenced to total sentence of five years' imprisonment on charges of sexual assault and other serious assaults over course of marriage to victim -- Sentence rendering accused inadmissible to Canada and removing his right to appeal an order of removal -- Accused arguing sentence should be reduced to reformatory range so could appeal [page 277] removal order -- Sentence at high end of range but appropriate for lengthy period of sexual and physical abuse of vulnerable spouse -- Accused remarried to Canadian after trial and expecting birth of first child -- Not appropriate operation of sentencing principles to reduce sentence to reformatory range to forestall immigration consequences -- Appropriate avenue for accused being appeal to minister on humanitarian grounds.

Criminal law -- Sentencing -- Sexual assault -- Accused sentenced to three and a half years' imprisonment for sexually assaulting his spouse and nine months consecutive on each of two counts of assaulting her with weapon -- Routine intrusive sexual abuse over extended period involving threats and physical abuse -- Complainant suffering psychological harm -- Sentence affirmed on appeal -- Five-year sentence at upper end of range but being fit -- Length of sentence rendering accused inadmissible to Canada and unable to appeal removal order -- Accused on appeal seeking reformatory sentence to avoid adverse immigration consequences -- Reduction of sentence to less than two years in order to preserve accused's right to appeal removal order being unwarranted by facts and proper sentencing principles.

The accused was charged with sexual assault, two counts of assault with a weapon and simple assault. The complainant was his former wife. After the Crown's case was completed, Crown counsel was informed by the complainant's mother that the complainant had consulted defence counsel about the incidents that led to the charges. The complainant did not recognize defence counsel until her mother refreshed her memory. Defence counsel had no recollection of that consultation and there was no evidence that this was anything other than an innocent failure of memory. Despite the conflict of interest, both the Crown and the accused wanted the trial to continue. Defence counsel was the accused's fifth counsel and the trial did not get underway until the fourth trial date. After receiving independent legal advice, the accused signed a direction waiving any right he had arising from the conflict and expressing his desire that the trial continue. The complainant also received independent legal advice and indicated that she did not object to the trial continuing with defence counsel acting for the accused. The trial judge ruled that the trial should continue. The accused was convicted. He retained new counsel and brought an application for a mistrial. The trial judge dismissed the application, noting the lengthy route the case had taken to trial and finding that the accused had made a free and informed decision and that he was not prejudiced by that decision. The accused was sentenced to five years' imprisonment. He appealed the conviction and the sentence.

Held, the appeal should be dismissed.

The trial judge did not err in his mid-trial ruling that the trial should continue. The accused's waiver, while not determinative, was entitled to considerable weight. Nothing in the record to that point suggested any adverse impact on defence counsel's performance, nor any use of any information obtained in his prior meeting with the complainant. Defence counsel had completed his thorough cross-examination of the complainant and the rest of the Crown's case had been completed as well. Thus, defence counsel's conflict presented a substantially smaller risk of harm to the accused's interests going forward than it might have at the beginning of the trial. The trial judge correctly determined that the accused's waiver was not determinative, but it was entitled to considerable weight. The judge was right in stating that the test for declaring a mistrial [page 278] mid-trial was whether the interests of justice or the need to maintain public confidence in the administration of justice required it. The trial judge also did not err in dismissing the application for a mistrial following the verdict. At that point, the accused was required to show that the conflict of interest adversely affected defence counsel's trial performance. The trial judge was in the best position to evaluate defence counsel's performance at trial and had the opportunity to review the entire record afterwards. There was no basis to question his finding of a lack of prejudice to the accused.

The accused routinely sexually assaulted his wife using both threats and force. The abuse included vaginal and anal rape and forced fellatio. The two counts of assault with a weapon involved choking the complainant into unconsciousness. The five-year sentence (three and a half years for sexual assault, nine months consecutive on each count of assault with a weapon and one day for simple assault) was at the upper end of the range but was not unfit. Reducing the sentence to less than two years in order to preserve the right of the accused (who was not a Canadian citizen) to appeal a removal order was unwarranted by the facts and proper sentencing principles. The accused can appeal to the Minister of Immigration on humanitarian grounds based on his recent marriage to a Canadian and the impending birth of his child.

APPEAL by the accused from the conviction entered, [2010] O.J. No. 378, 2010 ONSC 61 and sentence imposed on August 12, 2010 by Hill J. of the Superior Court of Justice, sitting without a jury.

Cases referred to R. v. Neil, [2002] 3 S.C.R. 631, [2002] S.C.J. No. 72, 2002 SCC 70, 218 D.L.R. (4th) 671, 294 N.R. 201, [2003] 2 W.W.R. 591, J.E. 2002-2002, 6 Alta. L.R. (4th) 1, 317 A.R. 73, 168 C.C.C. (3d) 321, 6 C.R. (6th) 1, 55 W.C.B. (2d) 36; R. v. Robillard, 1986 CanLII 4687 (ON CA), [1986] O.J. No. 261, 14 O.A.C. 314, 28 C.C.C. (3d) 22, 23 C.R.R. 364, 16 W.C.B. 467 (C.A.); R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161, [1995] O.J. No. 2383, 84 O.A.C. 241, 100 C.C.C. (3d) 225, 43 C.R. (4th) 26, 28 W.C.B. (2d) 72 (C.A.)

Authorities referred to Proulx, Michel, and David Layton, Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001) Woolley, Alice, Understanding Lawyers' Ethics in Canada (Markham, Ont.: LexisNexis, 2011)

John Collins, for appellant. James K. Stewart, for respondent.

The judgment of the court was delivered by

GOUDGE J.A.: --

Introduction

[1] The appellant was convicted by Hill J., sitting alone, of sexual assault, two counts of assault with a weapon and simple [page 279] assault. The complainant was his former wife. He received a global sentence of five years in penitentiary.

[2] He appeals both his conviction and his sentence.

[3] On his conviction appeal, he argues that he did not receive a fair trial because his counsel had a fatal conflict of interest. Prior to being retained by the appellant, his counsel had been consulted by the complainant about these very incidents. The appellant says that when this came to light mid-trial, the trial judge erred in deciding to continue the trial and compounded the error following conviction by dismissing the appellant's motion for a mistrial.

[4] For the reasons that follow, I conclude that Hill J. dealt with the conflict issue entirely appropriately. I would therefore dismiss the conviction appeal.

[5] I would also dismiss the sentence appeal.

The Facts

[6] The appellant's trial began on August 4, 2009. This was the fourth date fixed for trial. His counsel, who began representing him in January 2009, was the fifth lawyer to act for the appellant in this matter.

[7] The complainant was the first Crown witness. Her evidence-in-chief took up the first day of trial. She was cross-examined for most of the next day. By the close of the third day, the Crown had completed its case.

[8] At the opening of court on the fourth day of trial, August 7, the Crown told the trial judge that he had been advised the previous evening by the complainant's mother that she and the complainant recognized defence counsel as the lawyer they had at one time consulted about these incidents. Defence counsel immediately said that he had no recollection at all of this, and the appellant expressed his hope that his lawyer would continue to act for him.

[9] The trial judge adjourned the trial so that an investigation could be undertaken by the Crown and the police, statements could be taken from the complainant and his mother, and independent legal advice for the appellant explored.

[10] On August 10, Crown counsel advised that the investigation was complete. He indicated he was quite satisfied that, despite not recollecting meeting with the complainant, defence counsel had done so, and had a conflict of interest. Nonetheless, the Crown wanted the trial to continue provided that the appellant agreed after receiving independent legal advice. [page 280]

[11] In the presence of the appellant, defence counsel informed the court that his client wished to continue the trial with him as counsel.

[12] The trial judge made clear to both counsel that beyond the consent of the parties, the court was required to consider the impact on the broader issue of the appearance of justice. He then adjourned the trial to the next day to facilitate independent legal advice for the appellant.

[13] On August 11, Crown counsel again advised that he saw the matter as an innocent non-recollection on the part of defence counsel. However, the investigation demonstrated that the complainant and her mother had met once, some two-and-a-half-years earlier, with defence counsel. They had reviewed in detail the incidents from which the charges arose, with a view to receiving legal advice, although they did not subsequently retain defence counsel. Only after the close of the Crown's case did the complainant recall the meeting, as a result of prodding from her mother.

[14] The court then heard from independent counsel for the appellant. She had received full disclosure from the Crown and then had taken the time she required to meet with and advise the appellant. She told the court that she had reviewed with the appellant the statements of the complainant and her mother, and provided him with legal advice. She indicated that the appellant did not feel defence counsel was in a conflict position, wished him to continue and waived any right he had arising from any conflict. Independent counsel then tendered a written direction signed by the appellant indicating this and expressing his desire that his trial continue without requiring him to seek new counsel.

[15] The trial judge asked if the complainant had also received independent legal advice. When told that she had not, the trial judge required that this take place and adjourned the trial to permit it.

[16] To avoid any risk to solicitor/client privilege, the Crown undertook to prepare a summary of the written statements taken from the complainant and her mother. This, rather than the statements, was filed with the court prior to the trial resuming on September 25, 2009.

[17] On that date, independent counsel for the complainant provided the court with a letter indicating that, after receiving his advice, she had no objection to the trial continuing with defence counsel acting for the appellant. [page 281]

[18] After hearing further submissions, the trial judge then ruled that the trial should continue. The essence of his ruling is as follows:

I remain concerned about the appearance of justice issues that arise from what I believe to be a conflict, which has innocently arisen, but given the position of the parties, and the position of the complainant, and the fact that she has already spent time in the witness stand, I believe these factors weigh in favour of us continuing with the trial.

[19] Following this ruling, the trial continued on November 6 and December 7, 2009 with evidence for the defence, including the appellant's testimony and the submissions of counsel. On January 26, 2010, the trial judge convicted the appellant of these charges. On May 12, defence counsel was removed from the record because of a breakdown in the solicitor/client relationship.

[20] The appellant's new counsel then filed an application for a mistrial. It was heard on August 12, 2010. Both the appellant and the counsel who provided him with independent advice gave evidence.

[21] The trial judge delivered his ruling the same day. He noted the number of appearances required in this matter (15 in the Ontario Court of Justice and 48 in the Superior Court) and the length of time (over four and a half years) that the case had required. He accepted the evidence of independent counsel that she had provided the advice necessary for the appellant to make a valid and informed decision. The trial judge found that while the appellant may well have been motivated to agree to continue by the cost and stress of any retrial, he had not raised these matters at the time with independent counsel or the court. The trial judge concluded succinctly:

He freely chose to make the decision that he did.

The applicant has failed to discharge the onus of why this case should be mistried. I am unable to discover, on a complete reading of the record, any prejudice to the accused from the decision that he made. @7 . . . . .

Considering the entirety of the record in this case, including the application evidence, the court is led inexorably to the conclusion that the accused's current complaint is the result of hindsight through the lens of the verdicts earlier rendered.

The application is dismissed.

[22] Following the dismissal of the mistrial application, the court went on the same day to sentence the appellant to five years in penitentiary. [page 282]

[23] In this court, without objection from the Crown, the appellant tendered as fresh evidence on his conviction appeal the statements taken from the complainant and her mother. These were not before the trial judge either mid-trial or on the mistrial application.

[24] On his sentence appeal, the appellant tendered fresh evidence that although he is a citizen of Pakistan, he has now married a Canadian citizen and they are expecting their first child in April 2012.

[25] The appellant appeals his conviction on the basis that he did not receive a fair trial because his defence counsel was in an irreparable conflict of interest. He appeals his sentence as harsh and excessive, and imposed without regard to his immigration status.

Analysis

The conviction appeal

[26] An accused who is represented by counsel at trial is entitled to the undivided loyalty of that counsel. This principle is deeply embedded in Canadian law. It has common law, statutory and constitutional roots. It is an important aspect of the right to effective counsel. It is not only vital for the client. It is essential to the integrity of the justice system and the confidence of the public in it: see R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161, [1995] O.J. No. 2383 (C.A.), at pp. 171-72 O.R.

[27] The duty of undivided loyalty has as a central dimension the duty to avoid conflicting interests. Michel Proulx and David Layton in Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001) describe the duty this way, at pp. 290-91:

In criminal cases, the justification for prohibiting counsel from representing an accused while labouring under a conflict takes on constitutional dimensions. By definition where counsel for the accused has an actual conflict of interest, the client suffers through representation by an advocate whose loyalty is suspect. In such circumstances, and no matter how competent the conflicted lawyer, the accused has not been provided with effective counsel, which is itself a denial of fundamental justice and a violation of the Canadian Charter of Rights and Freedoms.

[28] In R. v. Neil, [2002] 3 S.C.R. 631, [2002] S.C.J. No. 72, 2002 SCC 70, at para. 31, Binnie J. described a conflicting interest as one creating a substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, a former client or third person.

[29] In this case, there is no dispute that defence counsel was burdened by an actual conflict of interest. He had previously met [page 283] with the complainant and her mother. They had sought his legal advice about the very incidents that were the basis for the charges against his client. He had received information from them about these incidents that he had a duty to keep in confidence. That duty continued regardless of whether he was subsequently formally retained by them or not: see Proulx and Layton, supra, at p. 310.

[30] Professor Alice Woolley in Understanding Lawyers' Ethics in Canada (Markham, Ont.: LexisNexis, 2011), at pp. 232-33, frames this conflict succinctly:

Either the lawyer will use the information, and violate his duty of confidentiality to the former client, or the lawyer will not use the information and violate his duty of zealous advocacy to his new client.

[31] The question facing the trial judge was not whether defence counsel had a conflict, but what if anything to do about it. As Binnie J. said in Neil, supra, at para. 36, it is one thing to demonstrate a breach of loyalty, but quite another to arrive at an appropriate remedy.

[32] In this case the trial judge was faced with the conflict issue on two different occasions. He quite rightly dealt with them somewhat differently.

[33] The first occasion was mid-trial. As Doherty J.A. described in Widdifield, supra, when the issue of conflict is raised before or during a trial, the court must be concerned not only with what has transpired, but also with the difficult assessment of what may transpire as the trial unfolds. That may involve speculation about the future impact of an existing conflict or the risk that a conflict will arise as the trial proceeds. In either case, the waiver of the right to the undivided loyalty of counsel is not determining. Ultimately, the court must be guided by the interests of justice and the need for public confidence in trial fairness: see R. v. Robillard, 1986 CanLII 4687 (ON CA), [1986] O.J. No. 261, 28 C.C.C. (3d) 22 (C.A.). This may be so even where no waiver exists.

[34] The second occasion followed conviction. The role of the complainant and the question of guilt or innocence had been concluded. Post-trial, the test is more onerous because it is no longer a matter of taking protective steps but of asking for the reversal of the court's judgment. This requires not only a demonstration of counsel's conflict but also that the conflict adversely affected counsel's trial performance: see Neil, supra, at paras. 38-39.

[35] I therefore propose to review separately each of the decisions made by the trial judge. The appellant does not suggest that the trial judge utilized an erroneous legal principle in either [page 284] case. Rather, the complaint is that he erred in finding the facts relevant to the issue and in the weight he attached to them, particularly in light of the fresh evidence. It is argued that had he not done so, he would have reached the opposite result on both occasions. Framed in this way, the argument is heavily fact-driven and suggests a deferential approach by this court to the decisions under review. In the circumstances, however, I find it unnecessary to dwell on the appropriate standard of appellate review because I agree entirely with both decisions made by the trial judge.

[36] The mid-trial decision was necessitated when the conflict burdening defence counsel came to light at the close of the Crown's case. Immediate investigation left no doubt that it was an actual conflict, and that it was serious.

[37] In order to obtain the positions of both the appellant and the complainant on how to proceed, the trial judge moved expeditiously to obtain independent legal advice for each of them. After receiving that advice, both were content to have the trial continue. Indeed, the appellant sought to have the trial proceed with defence counsel as his counsel of choice. The trial judge found these waivers to be both informed and voluntary, and nothing in the record at that point suggests otherwise. Through this informed consent the accused was in effect advancing his fundamental constitutional right to counsel. As such, his waiver while not determinative had to be given significant weight.

[38] Crown counsel urged that despite this conflict, the trial should proceed. He argued that the absence of demonstrable adverse impact on the appellant's defence together with the stage the trial had reached should dictate this result. The appellant argues that the Crown's position should have been disregarded because it was based only on practical considerations despite such a stark conflict. I do not agree. In my view, these were perfectly relevant considerations.

[39] Thus, the trial judge was faced with two parties who both wished the trial to proceed, and a complainant who did not oppose that. Nonetheless, the trial judge was rightly conscious of his overriding responsibility to ensure that a decision to proceed was consistent with the interests of justice and the maintenance of public confidence in the fairness of the trial.

[40] In assessing these considerations, the trial judge was acutely aware of the point the trial had reached and what had transpired so far.

[41] Defence counsel had participated to that point with no recollection of his prior meeting with the complainant and her [page 285] mother. There was no suggestion of bad faith or of anything other than an innocent failure of memory. Nothing in the record to that point suggests any adverse impact on defence counsel's performance, nor any use of any information obtained in his prior meeting with the complainant.

[42] Defence counsel had concluded his thorough cross-examination of the complainant. There would be no future interaction between them. The rest of the Crown's case had been completed as well. All that remained was the defence evidence. Thus, defence counsel's conflict presented a substantially smaller risk of harm to the appellant's interests going forward than it might have at the beginning of his trial.

[43] The trial judge also had before him the tortured route this case had taken to trial. The lengthy passage of time, from the laying of charges and the number of lawyers who at various stages had represented the appellant, provided a difficult backdrop for any further delay that a mistrial order would necessitate.

[44] Finally, the trial judge was aware that to declare a mistrial at this stage to permit a retrial with different defence counsel would not only deny the appellant his counsel of choice, but would subject the complainant to repeating the unpleasant experience of giving evidence about these events.

[45] In my view, in these circumstances the decision of the trial judge at that point to continue the trial cannot be faulted. It served the interest of justice and the maintenance of public confidence in its fairness.

[46] However, the appellant raises challenges to the mid-term ruling based on the fresh evidence and the evidence tendered on August 12, 2010 on the mistrial application, neither of which were available to the court when the mid-term ruling was made. In my view, none of these challenges impair that decision in any way.

[47] First, the appellant argues that if the trial judge had been given the statements of the complainant and her mother rather than a summary, it would have affected his finding that both the appellant and the Crown wished the trial to continue. The simple answer to this is that although the trial judge did not have the statements, both the appellant and the Crown did when they advised the court of their desire to continue. Had the trial judge had the statements, it would have had no impact on his finding about their wishes.

[48] Second, the appellant says that had the complainant's assertion in her statement that defence counsel indicated to her that he knew the right people to talk to and would guarantee the [page 286] appellant's conviction been put before the trial judge, he would not have decided that the interest of justice could accommodate defence counsel continuing. I do not agree. Defence counsel's recollection of the meeting was never obtained. If he said what the complainant reported, it was clearly unprofessional. However, without hearing from defence counsel, the trial judge was without any basis to make a finding that would result in his disqualification.

[49] Third, the appellant says that the trial judge would not have found the appellant's waiver informed and voluntary had he known that the appellant's independent counsel was chosen by defence counsel, that they had jointly prepared the direction signed by the appellant and that the appellant felt influenced in agreeing to proceed by the potential financial burden of a new trial. I do not agree. Neither being chosen by defence counsel nor preparing the direction with him puts independent counsel in a relationship with defence counsel sufficient to taint her with his conflict. Nor is there any other reason to challenge the professionalism of the advice she gave. The voluntariness of the appellant's waiver is not undermined by the financial considerations facing him at that stage. [They] were simply part of the unavoidable reality of his situation.

[50] Finally, the appellant says that the trial judge ought not to have paid any attention to the appellant's signed direction because his lawyer had inserted a provision that there be no appeal based on conflict. That provision was before the court mid-trial and is therefore not fresh evidence. In addition, clearly this provision has had no effect. Moreover, the appellant does not say that it affected his desire to have the trial proceed. If anything, it would have diminished that desire. In my view, it was irrelevant to the factors the trial judge had to consider.

[51] In summary, none of these arguments have merit in my view. They provide no basis for altering the conclusion that the trial judge's mid-trial decision was the right one. This ground of appeal fails.

[52] The appellant's challenge to the dismissal of his application for a mistrial following his conviction can be readily disposed of. Since the application was brought after conviction, the question for the trial judge was equivalent to that facing an appellate court when the conflict issue is raised for the first time on appeal, namely, whether to set aside the conviction. The same considerations apply. To succeed, the appellant had to not only demonstrate the conflict of interest but that it adversely affected defence counsel's performance on his behalf at the trial. [page 287]

[53] In dismissing the application, the trial judge reviewed the relevant facts, including the difficulties with delay and continuity of representation. He set out the appellant's choice to continue the trial and why it was voluntary and informed. He then turned to the issue of prejudice to the appellant's case.

[54] Here the appellant offered nothing more than an assertion in his affidavit that during the presentation of his defence, he felt defence counsel was not giving his best effort. However, the trial judge was in the best position to evaluate defence counsel's performance at trial and had the opportunity to review the entire record afterwards. His conclusion was unequivocal: "I am unable to discover on a complete reading of the record, any prejudice to the accused from the decision that he made." There is no basis to question that finding in this court. Given this finding, the appeal from the dismissal of the mistrial application was doomed to failure.

[55] For these reasons, the conviction appeal is dismissed.

The sentence appeal

[56] The appellant was convicted of sexually assaulting the complainant over a period of months. The trial judge found that the appellant routinely sexually assaulted his wife using both threats and force. The sexual abuse included vaginal and anal rape, as well as forced fellatio. The complainant was sexually objectified by the appellant, who felt entitled to treat her this way just because she was his wife. This pattern of abuse has resulted in continuing emotional and psychological consequences for the complainant. The trial judge imposed a sentence of three and a half years for this offence.

[57] The appellant was also convicted of two counts of assault with a weapon. In each case, he choked the complainant into unconsciousness. The trial judge imposed consecutive sentences of nine months for each of these two convictions.

[58] The appellant was also convicted of simple assault for slapping the complainant after an argument. He received a concurrent sentence of one day for this offence.

[59] The global sentence was therefore five years in penitentiary.

[60] The appellant is a permanent resident in Canada. This was known to the sentencing judge. Since his sentencing, he has married a Canadian citizen and they are expecting a child in April 2012. This was of course not known to the sentencing judge but was tendered as fresh evidence.

[61] The appellant raises two arguments. First, he says that the global sentence is unfit. I do not agree. The appellant [page 288] engaged in a pattern of serious sexual crimes against a vulnerable victim during an abusive marital relationship. The trial judge took into account the mitigating factors, including the appellant's education, his employment history and the absence of any criminal record. However, the trial judge also properly took into account the extended time over which the abuse occurred, the serious consequences for the victim and the appellant's abuse of trust, physical dominance and sense of cultural entitlement to treat his wife as he did.

[62] In these circumstances, denunciation and deterrence were of paramount importance. While the global sentence is at the upper end of the range, it is not unfit.

[63] The appellant's second argument is that the trial judge did not sufficiently consider his immigration status. In support of this argument, the appellant points to the fresh evidence of his marriage and his expected child.

[64] The trial judge was clearly aware that the appellant was not a Canadian citizen. While the sentence imposed renders the appellant inadmissible to Canada and unable to appeal any removal order, the circumstances described in the fresh evidence may justify the humanitarian relief permitted by the immigration legislation. That is for the minister to decide. In my view, however, it is not a case where these circumstances should affect the appellant's sentence. The sentence imposed by the trial judge is fit. Altering it to something less than two years, so that the appellant's right to appeal his removal order would be restored, would represent a very significant reduction unwarranted by the facts and proper sentencing principles.

[65] I would therefore dismiss the sentence appeal.

Appeal dismissed.