ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 155/12

DATE: 20130618

RE: Her Majesty The Queen v. Olatunji Omolay James

BEFORE: Mr. Justice K.L. Campbell

COUNSEL:
Jason Gorda, for the Crown, respondent

Daniel Rechtshaffen, for the accused, appellant

HEARD: June 13, 2013

ENDORSEMENT

[Summary Conviction Appeal]

A. Overview

[1] This sentence appeal involves the application of the principles recently articulated by the Supreme Court of Canada in R. v. Pham, 2013 SCC 15, 293 C.C.C. (3d) 530, in relation to the potential impact of collateral immigration consequences on the sentencing of an offender.

[2] On April 30, 2009 the appellant, Olatunji James, appeared before the Honourable Mr. Justice F. Campling of the Ontario Court of Justice, and pled guilty to two sets of property-related offences. The first offences were committed on June 1, 2006. The second series of offences were committed on October 17, 2008. There were a total of five such offences – fraud, theft and three counts of possession of stolen property (all under $5,000). The appellant also pled guilty to one additional charge of failing to comply with a recognizance. The appellant had been on bail for the first offences at the time he committed the second group of offences, and he was discovered to have violated the terms of his recognizance when he was arrested for the second set of offences.

[3] The pleas of guilty were taken following a judicial pre-trial conference, during which the parties came to a negotiated resolution of the case. The appellant agreed to plead guilty to the total of six offences on the basis that the other pending charges would be withdrawn, and the parties would advance a joint position on the issue of sentence. Indeed, before Campling J., the parties jointly submitted that, after taking into account his eight days of pre-sentence custody, the appellant should be given a suspended sentence and probation for all six offences. In ultimately agreeing to “go along” with this joint submission, Campling J. admitted that he had thought about sending the appellant back to jail, and he commented that, in his opinion, the appellant was getting a “big break.” In the end, the trial judge entered convictions, but suspended the passing of sentence and placed the appellant on probation.

[4] Subsequently, the appellant, a refugee claimant originally from Nigeria, discovered that his convictions for these offences may be a significant impediment to his ability to remain in Canada on a permanent basis. Indeed, according to s. 36(2)(a) of the Immigration and Refugee Protection Act, S.C. 2001, chap. 27, the appellant is “inadmissible” because he has been “convicted in Canada of … two offences … not arising out of a single occurrence.” This does not mean that the appellant will necessarily be deported from Canada, but it does create a potential immigration problem for the appellant in the future. At the time of sentencing, the appellant had been erroneously advised that the sentence proposed in the joint submission would not have any negative consequences for his immigration status. This mistaken advice was not passed along to the trial judge.

[5] After being granted the necessary extension of time, the appellant now appeals against his sentence. The appellant argues that, in order to avert the unanticipated adverse immigration consequences of his convictions, he should now be given a conditional discharge. The appellant has already served the entirety of the sentence imposed at trial.

B. Considering Collateral Immigration Consequences in Sentencing

[6] In R. v. Pham the accused was convicted of two drug-related offences. Following the joint submission of the parties, the trial judge imposed a two year penitentiary sentence of imprisonment on the accused. Under s. 64 of the Immigration and Refugee Protection Act, a non-citizen such as the accused would lose the right of appeal against a “removal order” if they were sentenced to a term of imprisonment of at least two years. In advancing their joint submission, neither party had contemplated this collateral consequence on the accused's immigration status. In allowing the appeal and reducing the sentence imposed on the accused by one day, Wagner J., delivering the judgment of the unanimous court, outlined the legal principles as to how and when such collateral consequences ought to properly be taken into account in sentencing. Those principles are essentially as follows:

• A sentencing judge may exercise his or her discretion to take collateral immigration consequences into account as part of the personal circumstances of the offender, provided that the sentence ultimately imposed on the accused is proportionate to the gravity of the offence and the degree of responsibility of the offender. The general rule continues to require that the sentence imposed be fit having regard to the particular crime and the particular offender. See: R. v. Pham, at paras. 6, 11, 14.

• The weight and significance of collateral immigration consequences will vary depending on the facts and circumstances of each individual case, and should be determined having regard to the type and seriousness of the offences. But collateral immigration consequences may be one of the relevant factors that a sentencing judge may properly take into account in tailoring the appropriate sentence. See: R. v. Pham, at paras. 12-13.

• The flexibility of the sentencing process should not be misused by the imposition of inappropriate and artificial sentences purely to avoid collateral immigration consequences which may flow from a statutory scheme, as to do so would circumvent the will of Parliament. In short, collateral immigration consequences must not be allowed to dominate or skew the sentencing process for or against deportation. A special sentencing range cannot be allowed to develop for cases where there is a risk of deportation. See: R. v. Pham, at paras. 15-16.

• The further a sentence is varied from the range of otherwise appropriate sentences in order to avoid collateral immigration consequences, the less likely the sentence will remain proportionate to the gravity of the offence and the responsibility of the offender. Conversely, the closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is that the reduced sentence will remain proportionate, and thus reasonable and appropriate. See: R. v. Pham, at paras. 18.

• A sentencing judge is not compelled to adjust a sentence in order to avoid the impact of collateral immigration consequences on the accused. It remains open to the judge to conclude that even a minimal reduction in the sentence would result in an inappropriate sentence having regard to the offence and the offender. Collateral immigration consequences are only one relevant factor amongst many other considerations related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender's personal circumstances. See: R. v. Pham, at paras. 20.

• An appellate court has the authority to vary a sentence if the sentencing judge was not aware of the collateral immigration consequences, or if counsel failed to advise the judge on this issue. Where the matter was not raised before the sentencing judge and where the Crown does not give its consent to the appeal, some evidence should be adduced for consideration by the appeal court. See: R. v. Pham, at paras. 24.

• It is wrong for an appeal court to refuse a short proposed sentence reduction based solely on the fact that the accused may have a prior criminal record or on its belief that the accused had abused the hospitality which had been afforded to him or her by Canada. See: R. v. Pham, at paras. 25.

C. The Nature of the Offences

1. The Offences on June 1, 2006

[7] On June 1, 2006 the appellant and a female accomplice attended a Home Outfitters store in Toronto. They jointly selected a “bed in a bag” and eight or nine towels, with a total value of approximately $360, and the female accomplice fraudulently paid for them with a credit card in the name of another person. The appellant waited outside for her while she made the purchase.

[8] Later, they attended at a Hudson’s Bay department store in a shopping mall at another location in Toronto. They went to the appliance department and picked out an air conditioning unit having a value of approximately $230. Again, the female accomplice fraudulently paid for the purchase with the same credit card.

[9] Next, the female accomplice went to the children’s wear department of The Bay, where she fraudulently purchased approximately $766 of children’s clothing on the same credit card. At the same time, the appellant went to the men’s wear department, where he selected approximately $1862 of men’s clothing. The female accomplice fraudulently paid for this clothing with the same credit card, while the appellant left the store.

[10] The appellant then drove his car to the store exit, where his female accomplice was waiting. The appellant placed all of their merchandise in the trunk. At that point, security guards approached the female accomplice and arrested her for fraud. The appellant quickly drove off in his vehicle as his accomplice was being arrested.

2. His Recognizance – Ultimately Breached

[11] On July 27, 2008 the appellant surrendered himself into police custody in relation to these offences. He was released on a recognizance. One of the conditions of that recognizance required that he not possess or apply for any identification or credit cards in any name other than his own.

3. The Offences on October 17, 2008

[12] On October 17, 2008 the appellant was in the company of a different female accomplice. They went to the same Hudson’s Bay store in the shopping mall. The female accomplice was seen, in the company of the appellant, selecting jewelry from the display shelf, opening the packaging, and concealing the jewelry in her purse. They eventually attended at the checkout cashier. The appellant used a credit card to pay for some other items that the female accomplice had collected, but neither of them paid for the jewelry in her purse.

[13] The appellant and his female accomplice continued shopping. The appellant was seen selecting another piece of jewelry and passing it to the female accomplice, who concealed it in the Bay shopping bag they had been given in relation to the previous purchase. The appellant then made another purchase with his credit card but, again, did not pay for the additional piece of jewelry.

[14] When the appellant and his female accomplice left the store they were arrested by security guards. The appellant was found in possession of four debit/credit cards, none of which were in his own name, and a driver’s licence which was also in the name of another person. The credit card that was used by the appellant to make the purchases from the Bay store was in the name of another person.

4. Subsequent Offences – May 22, 2009 – Resulting in an Absolute Discharge

[15] On May 22, 2009 the police stopped and searched the appellant’s motor vehicle. They found three cell phones that had been stolen from a Roger’s cell phone store. The cell phones were not stolen by the appellant, but they did not belong to the appellant. They had been given to the appellant by a friend. Subsequently, the appellant pled guilty to one count of possession of stolen property and one count of breach of probation. In the result, the appellant received an absolute discharge.

D. The Personal Circumstances of the Offender – And The Fresh Evidence

[16] As of the date of sentencing on April 30, 2009, the appellant was 26 years old. He was married and supporting a step-daughter. He had a grade 12 education and no previous criminal record. He was employed in customer service for a consulting firm, answering their phones. At the time of the offences the appellant was out of work. The appellant expressed remorse for these offences, stating that he knew that he should not have done it. The appellant is now 31 years old.

[17] The appellant has claimed refugee status. According to the fresh evidence materials, some time ago the appellant and his wife submitted a joint application to Citizenship and Immigration Canada (CIC) seeking permanent residency in Canada. In mid-July of 2012 the appellant and his wife received a written request from CIC for documentation regarding the appellant’s previous criminal charges. The appellant began to try to collect the documentation requested. In late September of 2012 the appellant and his wife received further correspondence from CIC indicating that, given their failure to promptly provide the requested information, their application for permanent residency could not be completed. Shortly thereafter, the appellant obtained the additional information that was necessary and provided it to CIC.

[18] According to the fresh evidence, in early November of 2012 the appellant met with an “immigration consultant,” and was advised that his suspended sentence “would be a problem” for the joint application, by he and his wife, for permanent residence in Canada.

E. Analysis

[19] On this appeal the appellant asks that his convictions be set aside and he be granted a discharge in relation to all of these offences. According to s. 730(1) of the Criminal Code, a sentencing court may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, order that the accused be discharged absolutely or on conditions prescribed in a probation order.

[20] It would serve no legitimate purpose to try to now speculate as to what the trial judge might have done had he been advised of the potential collateral immigration consequences for the appellant as a result of his conviction for these offences. All that can be accurately known at this point is what he said and did in the face of the circumstances that were placed before him on the issue of sentence. Given the fresh evidence in this case, my responsibility at this point, as I see it, is simply to determine, on the basis of all of the circumstances of this case, including the fresh evidence regarding the potential collateral immigration consequences for the appellant, whether the sentence imposed at trial should be changed, and a conditional discharge granted. In other words, I need not approach the sentencing decision of the trial judge with the deference that would otherwise be appropriate. See: R. v. Singh, [2007] O.J. No. 1319 (S.C.J.) at para. 30; R. v. Pham, at para. 24.

[21] There is no question that a discharge would be in the best interests of the accused. As already mentioned, under the provisions of the Immigration and Refugee Protection Act, if the appellant remains convicted of these offences he is deemed “inadmissible” in Canada, and this status may ultimately make it more difficult for him to remain in Canada. It does not mean that he will necessarily be deported, as there are ways he may remain in Canada notwithstanding his convictions. However, given the potential immigration hurdles ahead, the appellant has met the first prong of the legal standard under s. 730(1) of the Code.

[22] The real issue between the parties is whether or not a discharge is “contrary to the public interest.” After considering all of the circumstances of this case I cannot accept the appellant’s position that a discharge is not contrary to the public interest. In my view, for all of the following reasons, the imposition of a discharge in this case would, indeed, be contrary to the public interest:

• The Duration of the Criminal Conduct: The appellant did not commit an isolated offence during a time of great stress and during an unfortunate lapse of judgment. Instead, while in Canada claiming refugee status, the appellant committed a total of six criminal offences over the course of a 28½ month period of time. In short, the appellant engaged in multiple acts of criminal misconduct over an extended period of time.

• Breach of Recognizance: After his arrest for the first offences, the appellant was released on a recognizance that required him to abide by certain conditions, including refraining from the possession of any identification or credit cards in the name of any other person. However, when he was arrested for his second series of offences the appellant was in possession of four debit/credit cards, none of which were in his own name. He also had a driver’s licence in the name of another person. Moreover, the credit card he used to make the fraudulent purchases was in the name of another person. The appellant flagrantly violated the terms of his recognizance.

• Nature of the Offences: As the trial judge mentioned, the nature of the various property-related offences committed by the appellant and his female accomplices suggested that the appellant was involved in a type of “ongoing fraud.” Such offences cost law-abiding customers dearly, as the cost of merchandise must be increased to cover the losses retail outlets suffer from such thefts and frauds. Therefore, in such cases sentences must be imposed that carry at least some effective measure of general and specific deterrence. The merchandise in the present case, which was illegally obtained by the appellant or his accomplice by fraud or theft (but which was ultimately returned to the retailers) totaled in excess of $3,000.

• Discharge Not Sought at Trial: At the time of sentencing, the joint submission advanced by the parties proposed the conviction of the accused with a suspended sentence and probationary term. The appellant did not seek a discharge at trial.

• Sentence Imposed at Trial Already Lenient: As the trial judge observed, the non-custodial sentence imposed at trial as a result of the resolution agreement of the parties was itself a “big break” for the appellant. As Campling J. suggested, the circumstances of the offender and the offences could have justified a further term of imprisonment. In short, the sentence imposed upon the appellant is already a lenient one.

• Discharge Would Offend R. v. Pham Principles: To now grant a discharge to the appellant just to ameliorate the appellant’s potential future immigration difficulties would, in my view, not ensure the necessary proportionality having regard to the gravity of the offences and the degree of responsibility of the offender, and would result in an unfit sentence. Collateral immigration consequences to an accused must be properly taken into account as one of the personal circumstances of the accused, and as one factor in tailoring the appropriate sentence. But such consequences cannot justify the imposition of unfit dispositions which dominate and skew the sentencing process either for or against deportation. See: R. v. Pham, at paras. 6, 11-13, 14-16, 20; R. v. Lu, 2013 ONCA 324, at paras. 46-47; R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont.C.A.) at paras. 155-156. In my opinion, to now grant the appellant’s request for a discharge would not only result in an unfit sentence, but it would wrongly skew the sentencing process against deportation.

• The Authorities: Discharges are, of course, not limited to trivial or technical offences. A discharge is within the legal range of potential sentences that the appellant might receive in this case. Further, there are, no doubt, some cases where conditional discharges have been granted in significant theft/fraud cases. See, for example: R. v. Kalonji, 2010 ONCA 111; R. v. Huang, [2011] ONSC 2545. However, apart from the potential immigration consequences for the appellant, this case does not present with the kinds of “exceptional” circumstances which might justify the imposition of such a disposition, especially given the number and nature of the criminal offences admittedly committed by the appellant over a significant period of time.

F. Conclusion

[23] In the result, the appeal against sentence must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: June 18, 2013