COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lu, 2013 ONCA 324

DATE: 20130515

DOCKET: C56894

Weiler, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sz-Yin Lu

Appellant

Michael A. Crystal, for the appellant

Alison Wheeler, for the respondent

Heard: May 9, 2013

On appeal from the sentence imposed on April 10, 2013 by Justice Lynn Ratushny of the Superior Court of Justice.

Gillese J.A.:

[1] This case involves a young Taiwanese woman who was convicted, in Canada, of a serious offence but who wishes to be admissible to Canada where her Canadian husband lives. It revolves around the recent decision of the Supreme Court of Canada in R. v. Pham, 2013 SCC 15, in which the Court explained how collateral immigration consequences are to be taken into account on sentencing.

OVERVIEW

[2] Sz-Yin Lu is from Taiwan. She is not a Canadian citizen. She came to Canada on a student visa in 2006. She met Vlad Precup, a Canadian citizen, and they began dating early in the winter of 2007. She returned to Taiwan briefly that summer. She came back to Canada in the fall of 2007 after being accepted into the Early Childhood Education program at Algonquin College. She testified that she graduated from the program in 2008 and began working at a daycare.

[3] Late in the evening of July 13, 2008, Mr. Precup hit a pedestrian with his car. He did not stop his car after the accident. Tragically, the pedestrian died. Ms. Lu was a passenger in her boyfriend’s car at the time of the accident.

[4] Police interviewed Ms. Lu twice about the accident, first on August 11, 2008, and then again on November 26, 2008. Both times, Ms. Lu denied any knowledge of, or involvement in, the accident.

[5] On December 15, 2008, Ms. Lu and Mr. Precup voluntarily contacted the police and admitted their involvement in the hit and run.

[6] In the summer of 2009, Ms. Lu and Mr. Precup were married.

[7] On September 23, 2009, Ms. Lu pleaded guilty to obstruction of a peace officer in the execution of his duties, contrary to s. 129(a) of the Criminal Code of Canada. At the sentencing hearing, Ms. Lu requested a conditional discharge. The Crown sought a suspended sentence with a period of probation and community service.

[8] Ms. Lu was given a suspended sentence, six months’ probation, and 75 hours of community service. The six months have now elapsed and she has completed the community service requirement.

[9] In December 2009, Mr. Precup applied to sponsor Ms. Lu to become a permanent resident of Canada.

[10] In May 2011, Mr. Precup was convicted of dangerous driving causing death and failing to remain at the scene. He was sentenced to two years’ imprisonment. That conviction is currently under appeal with this court.

[11] Ms. Lu’s pending application for permanent residency in Canada was rejected in the summer of 2011. The reason that was given was that Mr. Precup’s incarceration made him ineligible to sponsor her.

[12] After her application for permanent residency was turned down, Ms. Lu was contacted by the immigration authorities and asked to leave the country voluntarily. She did so and returned to Taiwan in September 2011, where she found work in her field.

[13] While in Taiwan, Ms. Lu learned that even though she is married to a Canadian citizen, pursuant to s. 36(2) of the Immigration and Refugee Protection Act (“IRPA”), S.C. 2001, c. 27, because she had been convicted of an offence punishable by indictment to Canada, she was inadmissible on grounds of criminality.

[14] Section 36(2) of the IRPA provides:

A foreign national is inadmissible on grounds of criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment …

[15] Section 36(3)(a) deems hybrid offences to be indictable for the purpose of this provision. Thus, the rule in s. 36(2) applies to Ms. Lu even though the Crown had elected to proceed summarily. Since a discharge is not a conviction, the rule would not apply if she were given a conditional discharge rather than a suspended sentence.

[16] Consequently, although Mr. Precup has now been released on bail pending appeal, and is no longer incarcerated, Ms. Lu remains inadmissible.

[17] Ms. Lu appealed her sentence, seeking to have an absolute discharge substituted for the suspended sentence that she had been given.

[18] With the agreement of counsel and in light of the new evidence regarding the consequences of conviction on Ms. Lu’s immigration status, the summary appeal court judge (SCAJ) conducted a de novo sentencing hearing. While the SCAJ was sympathetic to Ms. Lu’s immigration plight, on April 10, 2013, she dismissed Ms. Lu’s sentence appeal.

[19] Ms. Lu now seeks leave to appeal to this court. She is facing imminent deportation from Canada and has been allowed to remain here only temporarily, for the purposes of her sentence appeals.

[20] If leave to appeal sentence is granted, Ms. Lu will ask that her suspended sentence be replaced with a conditional discharge.

[21] For the reasons that follow, I would grant leave but dismiss the sentence appeal.

THE DECISION BELOW

[22] The SCAJ began by considering the background facts leading to the obstruction offence, including Ms. Lu’s explanations for why she had lied to the police. She then indicated that Ms. Lu’s collateral immigration consequences, as that phrase is used in Pham, had not been given full consideration on sentencing and thus, with the agreement of counsel, she was undertaking a de novo sentencing hearing.

[23] The SCAJ summarized testimony given by Ms. Lu at the sentencing hearing. She noted the presumption that Ms. Lu would be refused admission to Canada if the conviction stood. She also noted the defence position that an absolute discharge was appropriate, in light of Ms. Lu’s otherwise good character and all the other circumstances, including the significant immigration consequences flowing from a conviction by way of suspended sentence. She noted the Crown’s position that a discharge was outside the appropriate range of sentence for the offence in question, despite Ms. Lu’s personal circumstances, including the immigration consequences. She also recorded that the Crown had pointed out various ameliorating procedures that might be available to Ms. Lu, such as a record suspension or a pardon.

[24] The SCAJ then fully and carefully reviewed the numerous mitigating factors in Ms. Lu’s favour, including that she is young and of good character, has no criminal record (apart from this offence), bears no responsibility for her boyfriend’s dangerous driving or the accident, pleaded guilty to the offence, voluntarily disclosed to the police that she had been at the scene of the fatality, and is genuinely remorseful. Like the sentencing judge, the SCAJ found it “highly unlikely” that Ms. Lu would ever again be before the criminal courts, noting that she is a teacher by profession and has been gainfully employed. She concluded her consideration of the mitigating factors by referring to Ms. Lu’s friends, who attested to her “beautiful heart” and “sense of responsibility”.

[25] In terms of the aggravating factors, the SCAJ noted that Ms. Lu: lied to police about a fatality, which is a very serious offence; maintained her lies to the police on two separate occasions and over a five-month period; and, did not make the lies impulsively or spontaneously, in the confusion of the moment. The SCAJ stated that Ms. Lu deliberately impeded the progress of proper law enforcement in the community and contributed to the anguish and grief suffered by the deceased’s family.

[26] The SCAJ then considered the immigration consequences for Ms. Lu, including her “probable deportation”, and the authorities’ likely refusal to allow her re-entry into Canada. She described these immigration consequences as a “significant” factor to be considered as part of Ms. Lu’s personal circumstances.

[27] In determining an appropriate sentence, the SCAJ described the applicable sentencing objectives as follows:

Denunciation, deterrence, both general and specific, the providing of reparation for the harm done, and the promoting of a sense of responsibility and an acknowledgment of the harm done to the victims, including the deceased’s family in this case, and to the community including the police[.]

[28] After noting that a discharge is available only if it is a sentence that is not contrary to the public interest, the SCAJ concluded that despite the immigration consequences, she would not exercise her discretion and grant a conditional discharge. In her view, a discharge would not adequately reflect the serious nature of the offence or the sentencing objectives of denunciation, deterrence and reparation, nor would it achieve proportionality.

[29] The SCAJ then considered Pham. She noted that the facts in Pham are inapplicable to Ms. Lu’s situation, but that the reasoning in paras. 13-16 of the decision applied. She set out those paragraphs in full and concluded that Ms. Lu’s collateral immigration consequences did not serve as a dominant circumstance. In light of all the other circumstances, they did not “trump” the appropriate sentence which, at a minimum, was a suspended sentence.

THE ISSUES

[30] This proceeding raises two issues:

1. Should this court grant leave to appeal sentence?

2. If so, should this court substitute a conditional discharge for the suspended sentence imposed by the SCAJ?

LEAVE TO APPEAL SENTENCE

[31] The appellant’s only route of appeal to this court is through s. 839 of the Criminal Code, which requires leave. The test for leave is stringent and limited to questions of law alone: see R. v. R.(R.), 2008 ONCA 497, 234 C.C.C. (3d) 463, at paras. 24 and 37.

[32] The appellant urged the court to grant leave, noting that this is the first time this court has considered such a case since Pham was decided.

[33] Arguably, the appeal would raise a question of law and, without question, it is of potential significance to people beyond those in this specific case – that is, it is of significance to the administration of justice in the province.

[34] Moreover, the stringent leave requirements set out in R.(R.) are predicated on the situation where an appellant is seeking a second appeal. That is not – strictly speaking – the situation in this case, where the full immigration consequences for the appellant were considered for the first time before the SCAJ. Granting leave to appeal sentence in this case would, in effect, permit the appellant a first appeal.

[35] Accordingly, in my view, leave to appeal should be granted and the sentence appeal decided on its merits.

THE APPEAL

[36] Ms. Lu argues that the SCAJ erred in holding that a discharge was not available or was outside the appropriate range of sentence for this offence. She contends that a conditional discharge is consonant with sentencing principles, and is in Ms. Lu’s best interests and not contrary to the public interest.

[37] Before dealing with these submissions, it is important to recall the role of an appellate court when reviewing a sentencing decision. Appellate courts are to grant sentencing judges considerable deference when reviewing the fitness of a sentence. They are to interfere only where the sentence is demonstrably unfit, or where it reflects an error in principle, the failure to consider a relevant factor or the over-emphasis of a relevant factor. An appellate court cannot interfere with the sentence simply because it would have weighed the relevant factors differently. See R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 46.

[38] This deference extends to the sentencing judge’s consideration of the immigration consequences. Where the issue of immigration consequences has been brought to the sentencing judge’s attention and that judge has applied the proper sentencing principles in deciding sentence, deference is owed: see Pham, at para. 23.

[39] With that standard of review in mind, I turn to the appellant’s submissions. As I will explain, I do not accept them.

The SCAJ’s Treatment of a Conditional Discharge

[40] I see nothing in the reasons of the SCAJ to suggest that she thought a conditional discharge was outside the range or legally unavailable, as the appellant contends. Rather, the SCAJ concluded that a conditional discharge was not a fit sentence in the particular circumstances of this case. In reaching this conclusion, the SCAJ took into consideration all mitigating and aggravating factors and the applicable sentencing principles.

[41] Further, the SCAJ had the benefit of Pham and she followed its direction when considering the immigration consequences that would flow from imposing a suspended sentence.

[42] As the SCAJ noted, the facts in Pham are very different than in the present case. Nonetheless, a brief overview of those facts is helpful to place in context the Court’s direction on how to take into account collateral immigration consequences on sentencing.

[43] In Pham, the sentencing judge imposed a two-year sentence on the accused, who was a non-citizen. Under the IRPA, a non-citizen sentenced to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her. Neither party had raised the issue of these collateral immigration consequences before the sentencing judge. A majority of the Alberta Court of Appeal dismissed the sentence appeal.

[44] On further appeal to the Supreme Court, the Court allowed the appeal and reduced the sentence to two years less a day. It held that as the sentencing judge was not aware of the collateral immigration consequences, the appellate court had the authority to intervene. Further, it found that as a sentence of two years less a day was within the range of otherwise fit sentences, it was an error for the appellant court to have refused the one-day reduction solely on the basis of the appellant’s prior criminal record or because it felt he had abused the hospitality that Canada had afforded him: Pham, at para. 25.

[45] Justice Wagner, writing for the Court, explains that the collateral consequences of a sentence are any consequences the sentence has on the particular offender and may be taken into account as part of the offender’s personal circumstances. They are neither aggravating nor mitigating factors. Their relevance flows from the application of the principles of individualization and parity, and may also flow from the sentencing objective of rehabilitation. The weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Therefore, while the collateral immigration consequences may be relevant in tailoring the sentence, their significance depends on the individual case: Pham, at paras. 11-13.

[46] Justice Wagner further explains that the sentence imposed must be fit having regard to the particular crime and the particular offender. While a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, the sentence ultimately imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The collateral immigration consequences must not be allowed to dominate the sentencing exercise or skew the process: Pham, at paras. 14-16.

[47] The SCAJ in this case followed Pham. She considered the mitigating and aggravating factors and then considered the collateral immigration consequences as part of Ms. Lu’s personal circumstances. She recognized that as a result of the criminal conviction and suspended sentence, Ms. Lu is inadmissible to Canada unless she obtains a record suspension or, possibly, an exemption from inadmissibility on humanitarian and compassionate grounds pursuant to ss. 24 and 25 of the IRPA. However, in light of the seriousness of the offence, the sentencing objectives of denunciation, deterrence and reparation, and the need for proportionality, a discharge was not a fit sentence. It was open to her to so conclude.

The SCAJ’s Conclusion that a Discharge was not in the Public Interest

[48] The SCAJ correctly observed that a discharge cannot be granted if it would be contrary to the public interest. In determining whether it would be contrary to the public interest, one consideration is whether the sentence will be a deterrent to others who might be minded to commit a like offence: see R. v. Sanchez-Pino, 1973 CanLII 794 (ON CA), [1973] 2 O.R. 314 (C.A.), at p. 320.

[49] The SCAJ held that a discharge would be contrary to the public interest because it would not give adequate effect to the sentencing objectives of denunciation, deterrence, and reparation. Furthermore, it would not achieve the fundamental principal of proportionality in sentencing, which requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[50] The SCAJ made a case-specific determination that a discharge would be contrary to the public interest. It was open to her to reach this conclusion and there is no basis for interfering with it. Lying to the police, particularly in the context of an investigation into a fatality, is a very serious offence. I am sympathetic to Ms. Lu’s personal circumstances and her desire to be in Canada with her husband as soon as possible. However, those circumstances were fully considered by the SCAJ, who concluded that, at a minimum, her sentence must be a suspended one.

CONCLUSION

[51] In my view, there is no basis for interfering with the sentence imposed by the SCAJ. Her articulation and application of the relevant legal principles is impeccable. She fully, fairly and thoughtfully considered all of the relevant factors. She had the benefit of Pham and gave appropriate consideration to the collateral immigration consequences of a suspended sentence, rather than a discharge.

[52] Accordingly, while I would grant leave to appeal sentence, I would dismiss the appeal.

Released: May 15, 2013 (“K.M.W.”)

“E.E. Gillese J.A.”

“I agree. K.M. Weiler J.A.”

“I agree. Alexandra Hoy J.A.”