COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Freckleton, 2016 ONCA 130

DATE: 20160216

DOCKET: C59759 & C60388

Laskin, Juriansz and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Winston Freckleton and Denziel Jones

Applicants (Appellants)

John Norris and Meara Conway, for the appellants

Carolyn Otter, for the respondent

Heard: February 10, 2016

On appeal from the sentence imposed on June 4, 2012 by Justice Gary T. Trotter of the Superior Court of Justice, sitting without a jury and on appeal from the sentence imposed on February 19, 2013 by Justice Michael R. Dambrot of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] These two cases were heard together. In each case, the appellant seeks to reduce his sentence to avoid the prospect of deportation resulting from the retrospective application of the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16. Section 24 of that Act amended s. 64 (2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, to allow a person found inadmissible for serious criminality to appeal to the Immigration Appeal Division only if he or she had been punished by a term of imprisonment of less than six months. Prior to the amendment, anyone receiving a sentence of less than two years had a right of appeal to the Immigration Appeal Division. Both appellants were sentenced before the amendment and would have had a right to appeal but for the subsequent retrospective amendment.

[2] In sentencing, an offender’s individual circumstances must be taken into account. Thus, the fact that the offender faces the collateral consequence of deportation is a relevant factor: see R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 158. An appellate court may intervene to vary a sentence that falls within the range of fit sentences if the sentencing judge did not take into account that the sentence could result in the deportation of the offender. However, the sentence ultimately imposed must still be proportionate to the gravity of the offence and the degree of the responsibility of the offender: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 14. The Court also cautioned that the flexibility of the sentencing process should not be misused to impose an inappropriate and artificial sentence to circumvent Parliament’s will: Pham, at para. 15.

[3] The appellants seek to introduce fresh evidence in relation to the immigration consequences. The Crown does not oppose the application. We therefore admit the fresh evidence.

WINSTON FRECKLETON

[4] Mr. Freckleton pleaded guilty on June 4, 2012 to trafficking cocaine and received a seven month conditional sentence on a joint submission. He sold about 0.05 g of crack cocaine for $30 after being prompted to do so by a woman. The Crown concedes the one-month reduction in that sentence he now seeks would not render the sentence demonstrably unfit having regard to all the circumstances of the offence and the offender.

[5] With the Crown’s consent, his appeal is allowed and his sentence is varied to six months less a day of imprisonment.

DENZIEL JONES

[6] The result of Mr. Jones’ appeal must be different. On February 19, 2013, he pleaded guilty to possession for the purposes of trafficking cocaine and sentenced on a joint submission to one day of imprisonment, plus credit for 11 months and one week of pre-trial custody, followed by six months of probation. An offender’s pre-trial custody is considered to be part of the sentence for immigration purposes: see Brown v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 660, 81 Imm. L.R. (3d) 90, at para. 23. The result of this is that Mr. Jones cannot appeal a finding of inadmissibility to the Immigration Appeal Division. Pointing out that he actually spent over 11 months in prison, his counsel requests a “theoretical” variation of his sentence to one day with the accompanying stipulation that his sentence should be deemed to be six months less a day.

[7] An effective sentence of six months would not be fit for Mr. Jones in all the circumstances. He came to Canada in June 2007 at the age of 17. He is now 25 years of age. He was convicted for two assaults in October 2010 for which he was sentenced to 47 days of incarceration, in addition to 43 days of pre-trial custody, plus probation for two years. In January 2011 he was arrested on the charges that give rise to this appeal. In July 2011, while on bail for these charges, he was arrested on charges of possession of cocaine, obstruct police and failing to comply with probation. He was convicted of these subsequent charges in October 2012 and sentenced to 30 days of pre-trial custody and six months of probation. The circumstances of the charge on appeal suggest that he is a mid-level commercial street supplier of crack cocaine and not a user addict. He supplied 3.3 g of crack cocaine to an undercover officer, and possessed an additional 6.76 g of crack cocaine and $330 of police buy money. The seriously aggravating factors in this case outweighed the mitigating effect of his youth and guilty plea.

[8] Parliament’s clear intent in enacting s. 24 of the Faster Removal of Foreign Criminals Act is that persons subjected to a fit sentence of at least six months of imprisonment may not appeal a finding that they are inadmissible to Canada because of “serious criminality” to the Immigration Appeal Division. The substantial reduction Mr. Jones seeks in his effective sentence would circumvent this clear parliamentary intent. His sentence appeal is dismissed.

“John Laskin J.A.”

“R.G. Juriansz J.A.”

“L.B. Roberts J.A.”