Court of Appeal for Ontario

Date: 2018-03-27 Docket: C64047

Judges: Sharpe, Pardu and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Jachja Al-Masajidi Appellant

Counsel

Jamaldin Najma, for the appellant

Kathleen Farrell, for the respondent

Heard: March 21, 2018

On appeal from: the sentence imposed on August 25, 2014 by Justice R.J. Ledressay of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was sentenced to eight months in custody upon his plea of guilty to uttering a death threat to an officer at the Maplehurst correctional facility. At the time of sentencing, neither counsel nor the court adverted to the fact that if sentenced to six months or more, due to his immigration status, the appellant would face deportation without any right of appeal pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(1)(a). He asks this court to admit fresh evidence related to his immigration status and to reduce the sentence to six months less a day.

[2] The appellant, now 30 years old, is a landed immigrant. He came to Canada at the age of 11. His history is complex and difficult. His family originates from Crimea, then in the Ukraine, and moved to Kenya for employment purposes. The Kenyan government ejected all foreign nationals after the 1998 bombing of the American Embassy. At that point, the family was rejected both by Russia and by the Ukraine. The appellant arrived with his family in Canada as refugees in 1999.

[3] Since arriving in Canada, the appellant has faced a number of very difficult problems. His mother suffered mental illness and the appellant was apprehended by the Children's Aid Society. He lived in various group homes and suffered from mental health issues. The Children's Aid Society took no steps to secure citizenship for the appellant whereas the appellant's siblings were placed in foster homes and they did obtain citizenship.

[4] The appellant suffers from various mental health illnesses, including ADHD, bi-polar disorder, depression and marijuana induced psychosis. He has a lengthy criminal record including several violent offences and convictions for failing to abide by court orders.

[5] He lacks any support if deported to either Russia or the Ukraine. His mental health issues would make deportation to a place where he lacks family and community support unusually difficult.

[6] The appellant has served the sentence under appeal and is now being held in immigration detention.

[7] The Crown has also filed fresh evidence. There is an outstanding removal order against the appellant because of the sentence under appeal and a subsequent conviction for a weapons offence. He has no appeal from the removal order because of his eight-month sentence.

[8] However, as a convention refugee, the appellant cannot be deported unless the Minister issues a "danger opinion" against him. The Canadian Border Services Agency has initiated the danger opinion process which is currently on-going. If his eight month sentence is reduced to less than six months, he would have a right to appeal the removal order. The danger opinion process would be suspended pending the determination of the appeal from the removal order by the Immigration Appeal Division.

Legal Framework

[9] In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, the Supreme Court of Canada held that a sentencing judge may take into account collateral consequences flowing from the immigration regime in determining an appropriate sentence. When those consequences were not known at the time of sentencing, they may be considered on appeal. Pham holds that the principles of individualization and parity, as well as "the sentencing objective of assisting in rehabilitating offenders", make the collateral consequences of a sentence relevant (para. 11). This court summarized the effect of Pham in R. v. Nassari, 2015 ONCA 316 at paras 26–28.

[10] Writing for the Court, Wagner J. held that "when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offender, the most suitable one may be the one that better contributes to the offender's rehabilitation" (para. 11). Wagner J. added at para. 12 that "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". He accepted the proposition that "[b]urdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel". However, the sentence must be fit having regard to the crime and the offender. Wagner J. cautioned, at para. 15:

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will.

[11] Wagner J. explained, at para. 14, a sentencing judge should therefore first determine whether the sentence that avoids the collateral consequences is even a possibility:

[A] sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

Application to This Case

[12] In our view, the collateral immigration consequences present in this case are clearly relevant to the appropriate sentence in this case. Those consequences were not known when the appellant was sentenced and it follows that they may be considered on appeal.

[13] The question becomes whether the proposed sentence of six months less one day is a fit sentence and proportionate to the gravity of the offence and the degree of responsibility of the offender.

[14] The sentencing judge stated that the eight-month sentence he imposed was "at the very bottom end of the range" and the Crown submits that any lower sentence would be unfit.

[15] We disagree with that submission. In our view, the case law falls well short of establishing a range with an eight-month minimum for this offence. It is apparent from the record before us that the appellant's mental illness was a major factor in this offence and has a significant bearing upon the degree of the appellant's responsibility. While his mental illness does not excuse his conduct in law, we see it as a factor that should be taken into account in mitigation of sentence. We are satisfied that the criteria laid down in Pham for reducing the sentence have been met. Taking all of the appellant's circumstances into account, a sentence of six months less one day is a fit sentence, particularly when combined with the collateral immigration consequences.

Decision

[16] For these reasons, the motions to admit fresh evidence are granted, leave to appeal sentence is granted, the sentence appeal is allowed and the sentence is reduced to six months less one day in custody.

"Robert J. Sharpe J.A."

"G. Pardu J.A."

"Fairburn J.A."