Immigration Law - SCJ

The applicant, a permanent resident from Barbados, sought leave to extend the time to file an appeal of a sentence imposed on July 7, 2021, for breaking and entering offences.

The applicant's motivation was to preserve his right to appeal a deportation order to the Immigration Appeal Division, as sentences of six months or more eliminate this right.

The court dismissed the application, finding that the applicant failed to demonstrate a bona fide intention to appeal, failed to adequately explain the delay, and that the appeal had been rendered moot by the applicant's subsequent conviction and nine-month sentence imposed on February 19, 2025.

The applicant sought judicial review of the Minister of Public Safety and Emergency Preparedness' decision to refuse an Interim Measures Request (IMR) from the United Nations Human Rights Committee and proceed with the applicant's removal to Somalia.

The applicant, a permanent resident with serious mental health issues and criminal convictions, had been found inadmissible to Canada and subject to a deportation order.

The court addressed justiciability and jurisdiction, finding concurrent jurisdiction between the Ontario Superior Court and Federal Court over Crown prerogative matters.

The court found the Minister's decision reasonable and not requiring reasons, as it involved an exercise of Crown prerogative regarding international treaty obligations that are not binding on Canada domestically.

The decision addresses a constitutional challenge to section 16(3) of the Immigration and Refugee Protection Act (IRPA) regarding the search of digital devices at the border.

The court finds that the provision is unconstitutional as it permits searches of digital devices without any threshold, and declares it null and void as against the applicant, Kerwin Sonny.

However, the court declines to exclude the evidence obtained from the search, applying the Grant analysis and finding that the state conduct was not serious, the impact on the applicant was substantial, but society’s interest in adjudication on the merits favoured admission.

The decision also clarifies the scope of standing for Charter challenges and the limits of remedies for third-party Charter violations.

The defendant, Ayodele Adekoya, was found guilty by a jury of fraud over $5,000, possession of identity documents, uttering a forged document, and possession of property obtained by crime, stemming from a large-scale credit card fraud operation involving 60 compromised identities and a total loss of $239,677 to Citibank.

The court considered aggravating factors, including the significant quantum of fraud, the scale of the operation, and the defendant's extensive criminal record for similar dishonesty offences.

Mitigating factors included family support and rehabilitative potential.

The court rejected a conditional sentence order due to the defendant's history of non-compliance and dishonesty.

Despite concerns about collateral immigration consequences and the impact on the defendant's family, the court imposed a custodial sentence of 40 months concurrent for all counts, along with a DNA order and a restitution order of $239,677.

The defendant, Emilio Gonzalez-Ramirez, was found guilty of aggravated assault and use of an imitation firearm.

This decision outlines the reasons for sentencing, considering factors such as the complainant's young age, the unprovoked nature of the assault, the use of an imitation firearm, the defendant's mental health issues (schizophrenia), and the significant collateral immigration consequences of a sentence of six months or more.

The court balanced the seriousness of the offence with mitigating factors, including the defendant's mental illness and the harshness of pre-trial custody, ultimately imposing a sentence structured to preserve the defendant's right to appeal a potential deportation order on humanitarian and compassionate grounds.

The defendant, Sukhmanpreet Singh, pleaded guilty to assault causing bodily harm.

The court considered aggravating factors, including the victim's vulnerability (17 years old) and the nature of the assaults committed in concert with others, and mitigating factors such as the guilty plea, efforts to address drug addiction, remorse, and harsh pre-trial custody conditions.

The central issue was whether to impose a conditional discharge, as sought by the defence due to potential immigration consequences, or a conviction with time served, as sought by the Crown.

The court ultimately imposed a sentence of time served (6 months less 1 day) and 12 months probation, concluding that a discharge was not appropriate given the seriousness of the offence and the paramount need for denunciation and general deterrence in cases involving abuse of minors.

The court emphasized that immigration consequences, while relevant, should not dictate a sentence that is disproportionate to the gravity of the offence.

Miguel Ngabirano pleaded guilty to kidnapping, robbery, and use of an imitation firearm.

The court considered general sentencing principles, aggravating and mitigating factors, and the collateral immigration consequences of a custodial sentence.

The Crown sought 15 months custody, while the defence proposed a conditional sentence or a shorter custodial term.

The court imposed a sentence of three months custody followed by 21 months less a day conditional sentence and three years probation, specifically tailoring the custodial portion to be less than six months to preserve the offender's right to appeal a potential removal order to Burundi, an unstable country.

J.D. was found guilty of sexual assault.

The court considered aggravating factors, including abuse of trust, the victim's vulnerability, and the lasting impact on the victim, and mitigating factors such as no prior criminal record, good character, and collateral consequences related to marital breakdown and potential immigration status.

The defence sought a conditional sentence, while the Crown sought 3.5 years custody.

The court rejected a conditional sentence, emphasizing denunciation and general deterrence, and sentenced J.D. to three years' imprisonment, along with a DNA order, a 20-year SOIRA order, a 10-year firearms prohibition, and a no-contact order with the victim.

The applicant, detained for nearly seven years under an immigration removal order, brought a habeas corpus application challenging the legality of his continued detention.

The court found that while the detention was of significant duration, it was reasonable and Charter-compliant given the applicant's persistent refusal to cooperate in establishing his true identity and obtaining necessary travel documents.

The court emphasized that the applicant's lack of cooperation was the primary cause of the prolonged detention, and the administrative review process was fair.

The application was dismissed, but without prejudice to future reconsideration if progress towards obtaining travel documents stalled.

This decision concerns a second extradition request by the United States for Mohamed Abdi Siyad, also known as "Hassan," for alleged human smuggling.

The respondent had been discharged in a previous extradition hearing because the judge was not satisfied on a balance of probabilities that he was the person sought.

In this second hearing, the court found sufficient prima facie evidence of conduct that would justify committal for trial in Canada under section 117(1) of the Immigration and Refugee Protection Act.

Crucially, new fingerprint evidence, not available in the first hearing, satisfied the court on a balance of probabilities that the respondent was indeed the person sought by the requesting state.

The court ordered the respondent's committal into custody to await surrender.

The Appellant, Young Min Shon, appealed a 10-month jail sentence for assaulting his 12-year-old son, arguing the sentencing judge failed to adequately consider the punitive effect of his impending deportation and that a shorter custodial sentence would suffice.

The Superior Court of Justice dismissed the appeal, finding the original sentence was not demonstrably unfit and fell within the acceptable range for the offence.

The court held that the sentencing judge's silence on immigration consequences did not constitute an error impacting the sentence, as deportation was a direct result of the conviction itself, not the length of the custodial term, and the trial judge was fully aware of these consequences.

The appellant, Abdulahi Quadri, appealed a suspended sentence imposed for knowingly using a forged document, arguing he should have received a conditional discharge due to potential immigration consequences.

The sentencing judge had disbelieved the appellant's explanation and considered the offence serious, especially given a prior conditional discharge.

The appellate court dismissed the appeal, affirming that a sentencing judge is not compelled to adjust a sentence to avoid collateral immigration consequences if it would render the sentence inappropriate, and that the judge's weighing of sentencing factors is entitled to deference.

Grace Gaurino was convicted of fraud over $5,000 and theft over $5,000, with the theft count stayed under the Kienapple principle.

The fraud involved $16,629.96 from her 98-year-old vulnerable employer, Eileen Rennie, through altered cheques.

The Crown sought 18-21 months custody, while the defence requested 90 days or less intermittent.

A key consideration was the collateral immigration consequence under the Immigration and Refugee Protection Act, where a custodial sentence of six months or more would remove the right to appeal a deportation order on humanitarian and compassionate grounds.

The court balanced denunciation, general deterrence (paramount in breach of trust fraud), and rehabilitation, alongside mitigating factors (first offence, admissions, personal difficulties, late remorse) and aggravating factors (breach of trust, vulnerable victim, some planning).

Finding the appropriate sentence range to be between 90 days and 12 months, the court imposed a 90-day intermittent sentence to preserve Gaurino's right to appeal deportation, considering her three Canadian citizen children and strong rehabilitation prospects.

A restitution order of $16,629.96 and a 2-year prohibition from positions of financial authority were also imposed.

The applicants, foreign nationals under house arrest due to immigration proceedings, sought a writ of habeas corpus or modification of their release terms.

The Attorney General of Canada opposed and brought a preliminary motion for a stay based on lack of jurisdiction, arguing that house arrest does not constitute "detention" for habeas corpus purposes.

The court dismissed the application, finding that house arrest, while restrictive, does not amount to detention or a deprivation of liberty in the context of habeas corpus, distinguishing it from jail or imprisonment.

The court noted that the applicants had alternative remedies through the Immigration Division and Federal Court for modifying release terms.

Marek Adam pleaded guilty to eight charges related to four armed robberies and four wearing a disguise charges.

The robberies involved the use of a pellet gun and an axe, with victims confined.

The Crown sought a 7-year global prison term, while the defence sought 5 years.

The court considered sentencing principles, aggravating and mitigating factors, including the offender's youth, lack of criminal record, and guilty plea, balanced against the seriousness and number of offences, and the impact on victims.

The court also addressed the parity principle with a co-accused who received a 7-year sentence and the collateral consequence of deportation for the non-citizen offender.

A global sentence of 5 years was imposed, with credit for pre-trial custody and restrictive bail conditions, resulting in an actual sentence of 4 years and 4 months.

Ancillary orders included a DNA sample, a lifetime weapon prohibition, and a non-communication order.

The appellant, R. J.-B., appealed his sentence of 35 months in custody for two convictions of sexual assault, arguing that the sentencing judge failed to adequately consider the immigration consequences, which would lead to his automatic deportation.

The appellant sought a reduced sentence of six months less one day per count (consecutive) or a conditional sentence of 18 months per count to preserve his right to appeal the removal order.

The court acknowledged that immigration consequences can be relevant in sentencing but found the proposed sentences manifestly unfit given the egregious nature of the crimes, which involved digital and attempted vaginal penetration of his 16-year-old cousin, whom he was supposed to be helping after she had been previously sexually abused.

The court dismissed the appeal, upholding the original sentence as fit and not demonstrably unfit.

Her Majesty the Queen in Right of Ontario brought a motion for summary judgment to dismiss the plaintiff's claim regarding his sponsorship of his former spouse as a permanent resident.

The plaintiff sought a declaration that his former spouse was not entitled to social assistance she received and a return of monies confiscated due to his sponsorship obligation, arguing an implied term that repayment only applied to rightful payments and that estoppel applied.

The court, relying on Supreme Court precedent, held that a sponsor's statutory obligation to reimburse social assistance is absolute, regardless of whether the sponsoree obtained benefits fraudulently, and that estoppel does not apply against a statute.

The motion for summary judgment was granted, and the plaintiff's action against Ontario was dismissed.

The appellant, a permanent resident and recognized convention refugee, appealed his conviction for possessing a weapon for a dangerous purpose.

He argued his guilty plea was invalid due to ineffective assistance of duty counsel regarding immigration consequences and lack of intent due to intoxication.

The court found that duty counsel had advised the appellant to seek immigration advice and that the appellant had signed an acknowledgment of potential immigration consequences.

The court declined to find ineffective assistance of counsel due to lack of evidence on the standard of care.

It also rejected the argument that the plea was uninformed due to the appellant's own failure to seek advice, distinguishing it from cases where erroneous advice was given.

The court further dismissed the intoxication argument, finding the appellant admitted to possessing the weapon.

The appeal was dismissed.

The three defendants were convicted of fraud over $5,000 for making fraudulent claims for statutory accident benefits after a motor vehicle accident in which they were not present.

All first-time offenders and immigrants from Haiti, two of whom are landed immigrants whose immigration status would be jeopardized by a sentence of six months or more.

The Crown sought a one-year jail sentence for each, while defence counsel sought a conditional sentence of less than six months.

The court considered the principles of sentencing, including general deterrence and rehabilitation, and the mitigating factors of the offenders' difficult economic circumstances, lack of prior record, and their role as minor players in a scheme instigated by another individual.

The court imposed a conditional sentence of five months and 29 days of house arrest, followed by two years of probation, and 150 hours of community service for each defendant, with partial restitution of $1,000 from one defendant.

This sentence was chosen to avoid deportation and promote rehabilitation while still denouncing the conduct.

The appellant appealed his conviction and sentence for uttering a threat, arguing his guilty plea was not informed due to a mistaken belief that a conditional discharge was guaranteed following a judicial pre-trial.

The court dismissed the appeal against conviction, finding that the appellant understood the sentence was not guaranteed.

However, the court allowed the appeal against sentence, concluding that the trial judge erred in principle by misapprehending the severe immigration consequences of a suspended sentence.

The suspended sentence was vacated and replaced with an absolute discharge.