Court of Appeal for Ontario

Citation: R. v. Carlisle, 2016 ONCA 950 Date: 2016-12-15 Docket: C62523

Before: Feldman, MacPherson and Hourigan JJ.A.

Between

Her Majesty the Queen Respondent

and

Robert Carlisle Applicant/Appellant

Counsel: Meara Conway, for the appellant Christopher Chorney, for the respondent

Heard and released orally: December 13, 2016

On appeal from the sentence imposed on February 21, 2013 by Justice Lloyd M. Budzinski of the Ontario Court of Justice.

Endorsement

[1] The appellant is 58 years old. He came to Canada from Ireland when he was nine. He has been a permanent resident for 50 years.

[2] On February 21, 2013, the appellant pleaded guilty to break and enter and breach of probation. The trial judge accepted the joint submission of the Crown and defence and imposed a sentence of eight months. The appellant has served his sentence. However, he seeks leave to appeal and asks the court to reduce the sentence to five and a half months because of the unexpected consequence of an amendment to the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which came into force four months after the conviction. The amendment applies retrospectively and provides that when a person is sentenced to a term of six months or more, he can be found inadmissible to Canada for serious criminality and deported with no right of appeal. The appellant has had an admissibility hearing, and has been ordered “removal ready” with no right of appeal. His only recourse is to appeal his sentence and have it reduced below six months.

[3] The Crown accepts that no one was aware of the future immigration consequences of the sentence when the joint submission was proposed and accepted by the trial judge. The Crown therefore agrees that it is open to this court to vary the sentence, if the proposed reduced sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. See R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739.

[4] The facts of the offences were the following: the appellant had previously pleaded guilty to uttering a death threat against a resident of his former apartment. His probation order prohibited him from attending the apartment. In order to retrieve some property he left there, he climbed through a window of his former bedroom, but while there, he damaged a bed, spilled milk in the kitchen, and ate some food that belonged to another resident. He was also cold and needed somewhere to sleep.

[5] The trial judge acceded to the joint submission, commenting that it was lenient. The appellant has a record of ten convictions beginning in 1981 including a number of break and enters. His longest sentence before this one was less than six months. The trial judge recognized that alcohol was the source of many of the appellant's problems.

[6] The appellant has no connection to Ireland but close ties to Canada with all his family here including a son, as well as friends. He is supported in an addiction recovery program from the LAMP Community Health Centre. If the sentence is reduced to the six months less one day level, these facts will be able to be considered on an appeal of his deportation order.

[7] In our view, having regard to the fact that there was no violence and only some food taken, a reduction in the sentence to five and a half months to include credit for presentence custody, would still keep the sentence in the range that reflects the gravity of the offence and the circumstances of the offender. It is not a reduction that would render the sentence inappropriately low. In our view, this is a case where the court should grant leave to appeal sentence and reduce the sentence in order to take into account the immigration consequences of the sentence imposed.

[8] Leave to appeal sentence is therefore granted, the appeal is allowed and the sentence is reduced to five and a half months inclusive of pretrial custody.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“C.W. Hourigan J.A.”