Court of Appeal for Ontario

Citation: R. v. Edwards, 2015 ONCA 537 Date: 2015-07-17 Docket: C53924

Before: Hoy A.C.J.O and Simmons and Blair JJ.A.

Between: Her Majesty the Queen (Respondent) and Paul King Edwards (Appellant)

Counsel: Paul J.I. Alexander, for the appellant Roger A. Pinnock, for the respondent

Heard: In Writing

On appeal from the sentence imposed on May 2, 2011 by Justice David W. Salmers of the Superior Court of Justice.

Endorsement

[1] Following his conviction on a charge of fraud over $5,000, on May 2, 2011, the appellant was sentenced to 26 months’ imprisonment less credit of two months and one day for pre-sentence custody, resulting in a net sentence of imprisonment of two years less one day[^1].

[2] On December 13, 2011 we allowed the appellant’s sentence appeal and granted him 202 days additional credit for pre-sentence custody.

[3] The appellant now applies to re-open his sentence appeal and to introduce fresh evidence on appeal concerning the immigration consequences of his sentence.

[4] In all the circumstances of this case, we agree that the appellant’s sentence appeal should be re-opened, that fresh evidence should be admitted and that the appellant’s sentence should be further reduced. We reach these conclusions for the following reasons.

[5] First, a sentence appeal may be re-opened where, at the original appeal hearing, the court “did not have the information needed to fully and properly adjudicate the issue of sentence on the merits”: R. v. De la Cruz, 2003 45233 (ON CA), [2003] O.J. No. 3235 (C.A.), at para. 4.

[6] Second, the appellant’s fresh evidence demonstrates that he was unaware when he was sentenced and at the time of his original appeal that, because he was sentenced to a sentence of imprisonment of two years or more, he would have no right to appeal a deportation order made against him. In the result, he did not bring this factor to the attention of the sentencing judge or this court.

[7] Third, “the certainty of deportation” is a factor that can be considered in determining the appropriate sentence in a particular case: R. v. B.R.C., [2010] O.J. No. 3571 (C.A.) at para. 8; R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 156.

[8] Fourth, the appellant’s personal circumstances make the impact of his potential deportation a particularly compelling factor in assessing a fit sentence. The appellant is now 45 years old and has lived in Canada since he was 18. He has been in a long term relationship with a Canadian citizen, has a young child who is a Canadian citizen and has close connections to family in the Greater Toronto area. In contrast, he has no family, friends, contacts, employment or housing prospects in his homeland, Jamaica. Moreover, he has served the full sentence that was originally imposed.

[9] Fifth, Crown counsel at trial took the position that a fit sentence fell within the range of two to three years’ imprisonment. In that context, a gross sentence of two years less a day imprisonment cannot be seen as unfit.

[10] Sixth, while the gross sentence of 26 months’ imprisonment imposed by the trial judge was not unfit, it was imposed – and upheld – without all the information necessary to impose an appropriate sentence on the merits.

[11] In all the circumstances, the appellant’s request to re-open his sentence appeal is granted, fresh evidence is admitted and leave to appeal sentence is granted. The sentence appeal is allowed, the sentence of 26 months’ imprisonment is set aside, and a sentence of two years less a day imprisonment is imposed less credit for two months and 203 days presentence custody. All other terms of the original sentence remain the same.

“Alexandra Hoy A.C.J.O.”

“Janet Simmons”

“R.A. Blair”

[^1]: The appellant was also ordered to make restitution in the amount of $63,396.30.