R. v. Ly (T.Q.) (2013), 441 N.R. 375 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2013] N.R. TBEd. MR.014
Hoang Anh Pham (appellant) v. Her Majesty The Queen (respondent) and Canadian Association of Refugee Lawyers, Criminal Lawyers’ Association of Ontario, British Columbia Civil Liberties Association, Canadian Council for Refugees and Canadian Civil Liberties Association (intervenors)
(34897; 2013 SCC 15; 2013 CSC 15)
Indexed As: R. v. Ly (T.Q.)
Supreme Court of Canada
LeBel, Fish, Abella, Rothstein, Moldaver, Karakatsanis and Wagner, JJ.
January 18, 2013.
Summary:
The accused (Ly and Pham) were convicted of producing marijuana and possession of marijuana for the purpose of trafficking. Pham was sentenced to two years’ imprisonment based on a joint recommendation by the Crown and Pham. Pham appealed on the ground that his trial counsel was unaware of the “unintended consequence” of a two year sentence precluding him from appealing any deportation order under the Immigration and Refugee Protection Act. The Crown did not oppose reducing the two year sentence to two years less a day to permit the accused to appeal any deportation order that might be made against him. The Crown conceded that had it been aware of the collateral consequences at the time of sentencing, it would have agreed to a sentence of two years less a day.
The Alberta Court of Appeal, Martin, J.A., dissenting, in a judgment reported (2012), 533 A.R. 192; 557 W.A.C. 192, dismissed the appeal. The accused appealed.
The Supreme Court of Canada allowed the appeal and substituted a sentence of imprisonment for two years less a day.
Criminal Law – Topic 5840
Sentencing – Considerations on imposing sentence – Prospective deportation of convict – An accused convicted of two drug offences (production of marijuana and possession of marijuana for the purpose of trafficking) was sentenced to two years’ imprisonment based on a joint recommendation accepted by the sentencing judge – He had two prior drug convictions – The accused appealed, submitting that the unintended consequences of a two year sentence (loss of right to appeal a deportation order under the Immigration and Refugee Protection Act) warranted reducing the sentence to imprisonment for two years less a day – The Alberta Court of Appeal dismissed the appeal, stating that “the plain and unequivocal language of a statute passed by the Parliament of Canada cannot amount to ‘an unintended consequence of great significance’. … Furthermore, it would be a strange and unfortunate legal system wherein a non-citizen could expect to receive a lesser sentence that a citizen for the same crime. No such distinction should be countenanced. The [accused] abused the hospitality that has been afforded to him by Canada, particularly in light of the fact that he learned nothing from his prior encounter with the criminal justice system. … Given the [accused’s] prior convictions, the provisions of the Immigration and Refugee Protection Act cannot amount to ‘an unintended consequence of great significance’ such as to warrant even the seemingly minor variation to sentence that the Crown was prepared to concede in this case relating to these convictions.” – The Supreme Court of Canada allowed the accused’s appeal and substituted a sentence of imprisonment for two years less a day – The Crown conceded that it would have agreed to the reduced sentence, that a sentence of two years less a day would remain within the appropriate range, and that the sentencing judge would have imposed the lesser sentence had he known of the immigration consequences – The court held that “it was wrong for the Court of Appeal to refuse the one-day reduction solely on the basis that the appellant had a prior criminal record or that it felt that he had ‘abused the hospitality that [had] been afforded to him by Canada'” – See paragraphs 1 to 25.
Criminal Law – Topic 5840
Sentencing – Considerations on imposing sentence – Prospective deportation of convict – On appeal, an accused sought to have his two year sentence reduced by one day to imprisonment for two years less a day to avoid the unintended immigration consequences (loss of right to appeal a deportation order under the Immigration and Refugee Protection Act) – Neither counsel nor the sentencing judge were aware of the immigration consequences – The Supreme Court of Canada stated that “the collateral consequences of a sentence … are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender … Their relevance flows from the application of the principles of individualization and parity. … 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. 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” – See paragraphs 11, 14.
Criminal Law – Topic 5840
Sentencing – Considerations on imposing sentence – Prospective deportation of convict – On appeal, an accused sought to have his two year sentence reduced by one day to imprisonment for two years less a day to avoid the unintended immigration consequences (loss of right to appeal a deportation order under the Immigration and Refugee Protection Act) – Neither counsel nor the sentencing judge were aware of the immigration consequences – The Supreme Court of Canada stated that “the sentencing judge is not compelled in all circumstances to adjust a sentence in order to avoid the impact of collateral immigration consequences on the offender. It remains open to the judge to conclude that even a minimal reduction, i.e. from two years’ imprisonment to two years less a day, would render the sentence inappropriate for the particular offence and the particular offender. Collateral immigration consequences are but one relevant factor amongst many … Where the issue of immigration consequences is brought to the trial judge’s attention and the trial judge applies the proper sentencing principles but nonetheless decides on a two-year sentence, then, absent fresh evidence, deference is owed to that decision. Where this issue has not been raised before the trial judge and the Crown does not give its consent, an affidavit or some other type of evidence should then be adduced for consideration by the Court of Appeal. An appellate court has the authority to intervene if the sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel had failed to advise the judge on this issue. In such circumstances, the court’s intervention is justified because the sentencing judge decided on the fitness of the sentence without considering a relevant factor” – See paragraphs 20, 23, 24.
Cases Noticed:
R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 7].
R. v. Wust (L.W.) et al., [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 8].
R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 8].
R. v. Badhwar (R.) (2011), 280 O.A.C. 273; 9 M.V.R.(6th) 163; 2011 ONCA 266, refd to. [para. 17].
R. v. Hamilton (M.A.) et al. (2004), 189 O.A.C. 90; 72 O.R.(3d) 1 (C.A.), refd to. [para. 19].
R. v. Guzman, 2011 QCCA 136, refd to. [para. 21].
Authors and Works Noticed:
Manson, Allan, The Law of Sentencing (2001), pp. 136, 137 [para. 12].
Ruby, Clayton C., Chan, Gerald J., and Hasan, Nader, R., Sentencing (8th Ed. 2012), §2.41 [para. 9].
Counsel:
Erika Chozik and Alias Sanders, for the appellant;
Ronald C. Reimer and Donna Spaner, for the respndent;
John Norris and Melinda Gayda, for the intervenor, Canadian Association of Refugee Lawyers;
P. Andras Schreck and Apple Newton-Smith, for the intervenor, Criminal Lawyers’ Association of Ontario;
Lorne Waldman, Clare Crummey and Tamara Morgenthau, for the intervenor, British Columbia Civil Liberties Association;
Barbara Jackman and Carole Simone Dahan, for the intervenor, Canadian Council for Refugees;
Matthew S. Estabrooks and D. Lynne Watt, for the intervenor, Canadian Civil Liberties Association.
Solicitors of Record:
Chozik Law, Toronto, Ontario, and Alias Sanders, Calgary, Alberta, for the appellant;
Public Prosecution Service of Canada, Edmonton, Alberta, for the respondent;
Simcoe Chambers, Toronto, Ontario, and Refugee Law Office, Toronto, Ontario, for the intervenor Canadian Association of Refugee Lawyers;
Schreck Presser, Toronto, Ontario, and Berkes Newton-Smith, Toronto, Ontario, for the intervenor, Criminal Lawyers’ Association of Ontario;
Waldman & Associates, Toronto, Ontario, for the intervenor, British Columbia Civil Liberties Association;
Jackman Nazami & Associates, Toronto, Ontario, and Refugee Law Office, Toronto, Ontario, for the intervenor, Canadian Council for Refugees;
Gowling Lafleur Henderson, Ottawa, Ontario, for the intervenor, Canadian Civil Liberties Association.
This appeal was heard and judgment rendered on January 18, 2013, before LeBel, Fish, Abella, Rothstein, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada.
On March 14, 2013, Wagner, J., delivered the following reasons for judgment in both official languages for the Court.
