Court of Appeal for Ontario

Date: 2025-05-08
Docket: COA-25-CR-0032

Before: Fairburn A.C.J.O., Copeland and Pomerance JJ.A.

Between

His Majesty the King
Respondent

and

Errol Francis
Appellant

Appearances:
Jeff Marshman, appearing as duty counsel for the appellant
Nicholas Hay, for the respondent

Heard and released orally: May 6, 2025

On appeal from the sentence imposed by Justice Kathryn L. Hawke of the Ontario Court of Justice on March 28, 2024.

Reasons for Decision

[1] This is an appeal from sentence only. The appellant was convicted of sexual assault involving a young adult acquaintance. The crime was serious. He was about 40 years her senior. He is a permanent resident. The sentencing judge’s reasons for sentence are lengthy and clear. Ultimately, the appellant received a custodial sentence of two years less a day.

[2] The only issue raised on appeal is whether the sentencing judge erred by failing to take into account that a conditional sentence order would have preserved his right to appeal under s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The error is said to have arisen from an erroneous defence submission.

[3] We agree that counsel misstated the relevant law. Even so, the sentencing judge’s reasons make clear that a conditional sentence order would constitute an unfit sentence given the serious factual backdrop of this case. Immigration consequences cannot turn an unfit sentence into a fit one.

[4] Leave to appeal sentence is granted. The appeal is dismissed.

“Fairburn A.C.J.O.”
“J. Copeland J.A.”
“R. Pomerance J.A.”

Publication Ban

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code of Canada, R.S.C. 1985, c. C-46.