R v Singh, 2021 ABQB 966

Court of Queen’s Bench of Alberta Citation: R v Singh, 2021 ABQB 966 Date: 20211206 Docket: 191165075S2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Amandeep Singh Accused _______________________________________________________

Summary Conviction Appeal Decision of the Honourable Mr. Justice Douglas R. Mah _______________________________________________________ A. Nature of Application [ 1 ] If either party requests a transcript of these reasons, or I later decide to turn these oral reasons into a written decision, I reserve the right to edit these reasons to correct non-substantive errors, and add headings and proper citations. I will not otherwise add to these reasons in any substantive manner. [ 2 ] There are two applications before the Court. The first is a preliminary application to adduce fresh evidence on the appeal.

The second is a sentence appeal in which the offender, Mr. Singh, seeks to have his sentence of 7 months incarceration reduced to 6 months less a day, in order to mitigate immigration consequences, namely Mr. Singh’s pending deportation. There are two grounds of appeal: • legal error by the sentencing judge in failing to address the immigration consequences in the sentencing decision; and • ineffectiveness of counsel resulting in a miscarriage of justice. B. Fresh Evidence [ 3 ] I granted the fresh evidence application during the hearing, with reasons to follow.

These are now the reasons. [ 4 ] The request to put fresh evidence before the Court is, of course, based on the modified Palmer test in cases where the evidence is sought to be admitted on the basis of the interests of justice. This encompasses ineffectiveness of counsel cases. The Court of Appeal says in R v Profeit, 2021 ABCA 379 (an ineffectiveness of counsel case) at para 86: The applicable term in this case is ‘fresh evidence’ not ‘new evidence’ because the proposed evidence falls within the description of evidence which was available at the date of the trial and is not, strictly speaking, ‘new evidence’.

New or fresh evidence on appeal may be found admissible on appeal under s 683(1) of the Criminal Code where the Court of Appeal “considers it in the interests of justice” to admit the evidence. [ 5 ] Section 683(1) of the Criminal Code , which deals with the appeal court’s evidentiary powers, is carried over to

summary conviction appeals through section 822(1). [ 6 ] In Profeit , the Court of Appeal articulates the modified test as follows: The Palmer factors requiring consideration on applications to introduce fresh evidence on appeal ... may be summarized as: i. admissibility; ii. cogency; and iii. due diligence. [ 7 ] Mr. Singh seeks to admit recent affidavits sworn by himself, his previous counsel and a law firm employee, Mr. Gauthier. The Crown consents to the admission of this additional evidence and I am otherwise satisfied that the modified Palmer criteria are met.

No objections to admissibility were made, nor can I think of any. The evidence is cogent in that it relates to a potentially decisive issue in the sentencing, and it was pursued with due diligence as the chain of events in Mr. Gauthier’s affidavit reveals.

As the Court of Appeal says at para 85 of Profeit : It is also noteworthy that where an ineffectiveness of counsel argument is made, proposed new evidence on appeal, related to the issue of ineffectiveness, tends to be assessed for admissibility on a somewhat more liberal variant of the standard test for admission of new evidence on appeal: see eg R v Tizzard , 2019 ABCA 340 , 381 CCC (3d) 250 . [ 8 ] Consequently, the application to admit the additional affidavits is granted. C.

Background [ 9 ] I will now move on to a discussion of the merits of the appeal. [ 10 ] The particulars of the offence are described in some detail in Judge Doyle’s reasons for decision delivered orally on July 10, 2020. Mr. Singh was convicted of assault with a weapon contrary to

section 267 (

a) of the Criminal Code in respect of a September 13, 2019 incident in which Mr. Singh was found to have slashed the complainant’s forearm with a knife. The complainant, Ms. Kaur, was Mr. Singh’s wife at the time. The couple is now separated. [ 11 ] At the sentencing hearing on October 5, 2020, the Crown sought a sentence of incarceration between 6 and 9 months, citing as aggravating factors that it was a domestic incident, the seriousness of a knife applied to a person’s wrist, Mr. Singh’s apparent lack of concern in regard to the injury inflicted, and the psychological impact upon Ms. Kaur.

Defence counsel noted that Mr. Singh was a first- time offender, steadily employed, and held in high regard by his family and community. The presentence report was in the main favourable to Mr. Singh. His counsel at the time suggested a sentence of 10 weeks to be served intermittently, so as to accommodate Mr. Singh’s employment. [ 12 ] It was the Crown, at the end of his initial submissions, who drew the Court’s attention to immigration concerns. Specifically, Mr.

Benron said “The 6 months as your honour is aware is a very important number given some of what I anticipate will be the immigration concerns that [previous counsel] will raise. I don’t know, but I would just flag that as well, Your Honour, …” [ 13 ] However, as it turned out, defence counsel at the time in his initial sentencing submissions did not raise any immigration implications. It was only after the defence had made the pitch for 10 weeks intermittent that the Court posed this question to the defence: “Thank you very much. Mr.

Benron made reference to potential collateral consequences involving immigration consequences. Is that an issue here?”

[ 14 ] To which defence counsel replied, “Yes. It certainly is an issue. Mr. Singh is a permanent resident and this conviction as well as the length of the sentence will have impact on his ability to remain in Canada.” [ 15 ] That was the last thing said during the entire proceedings about immigration. Judge Doyle did not specifically mention immigration implications in her reasons for sentence. She did review the principles and objectives of sentencing from

section 718 of the Criminal Code , and commented that crimes in a domestic context must be treated more seriously. Judge Doyle considered as aggravating the use of the knife near the wrist area, the attempt to conceal the cause of injury from the doctor, and Mr. Singh’s apparent lack of concern afterwards. She emphasized general deterrence as a principle and thereby imposed a sentence 7 months imprisonment, followed by a probationary period of 24 months. [ 16 ] What was not stated explicitly at the hearing was that Mr. Singh, as a permanent resident of Canada, is subject to

section 36, ss (1)(

a) of the Immigration and Refugee Protection Act which provides a permanent resident convicted of a criminal offence in Canada for which a term of imprisonment of more than 6 months has been imposed is inadmissible on grounds of serious criminality, meaning that the offender is subject to an automatic deportation order back to the country of origin, which in this case is India. [ 17 ] It appears that it was not until after Mr. Singh was sentenced that he realized the implications of the 7-month sentence.

His current counsel as of April 21, 2021 began inquiries with the previous counsel as to why the deportation question had not been discussed before Judge Doyle. [ 18 ] Although it took him some months to get there, previous counsel eventually provided on or about November 8, 2021 what is essentially a rather revealing mea culpa affidavit. Previous counsel effectively threw himself under the bus.

He deposes to taking standard law school criminal law and procedure courses, not having done any criminal or immigration work during his articles, and then only engaging in the slightest of dabbling in criminal law before the Provincial Court during his ensuing 7 years as a lawyer. His practice consists primarily of civil litigation, real estate, and wills and estates. He understood in a general way that Mr.

Singh could face immigration consequences as a result of a criminal conviction but thought, erroneously, that a sentence over 6 months would result in an admissibility hearing, not an automatic deportation order. He says that he did not have a detailed understanding of the consequences and did not look into the issue other than to have a discussion with the client and the client’s brother-in-law.

Previous counsel candidly admits that part of the reason he did not make any submissions concerning immigration implications, even though invited to do so by Judge Doyle, is because he did not know what those consequences were. D. Legal Error? [ 19 ] Counsel for the Crown conceded that the two grounds of appeal are disjunctive, that I may find one or the other, if established, as a sufficient ground for appellate intervention, but that they overlap or are connected by the immigration aspects of the case. [ 20 ] Mr.

Singh’s counsel today cited R v Lopez-Orellana , 2018 ABCA 35 at para 24 in his brief (my emphasis added): In our view, a sentencing judge should first determine what is a fit and proper sentence, irrespective of immigration consequences, and proceed from there. It is only once a fit and proper sentence has been determined that an analysis should proceed to consider the collateral immigration consequences . As stated in Pham at para 14 The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender.

In other words, 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. [ 21 ] Of course, this is a case that is binding on me. Here, the Court of Appeal sets out the exact reasoning process a sentencing Court should undertake in cases involving collateral immigration consequences.

There are two steps, or perhaps three: • First, determine a fit and proper sentence, irrespective of immigration consequences; • Second, consider whether to exercise discretion to take collateral immigration consequences into account; and • Third, ensure that the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 22 ] The reasons for sentence as shown in the transcript reveal that only the first step in this process took place. I say this because there is no mention anywhere in the actual sentence decision of immigration consequences.

The Crown today suggested that the analysis of immigration consequences was implicitly undertaken because the sentencing judge was aware of Mr. Singh’s permanent resident status and therefore must have taken the immigration implications into consideration. The aggravating factors, says the Crown, overwhelmed any potential immigration ramifications and rendered them insignificant. [ 23 ] I do not see that from reading the transcript. [ 24 ] However, this ground of appeal is inextricably connected to the other, so I move on to discuss ineffectiveness of counsel. E.

Ineffectiveness of Counsel? [ 25 ] The Supreme Court of Canada in R v Pham , 2013 SCC 15 sets out the rules with regard to the consideration of immigration consequences in sentencing at paras 13 – 16:

• First, collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case. • Second, the general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender.

In other words, a sentencing judge has 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. • Third, 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. • These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation.

Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk. [ 26 ] Further, Pham at para 24 states exactly when an appellate Court can intervene with respect to immigration consequences: 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. Considering collateral immigration consequences is part of the exercise of determining a fit and proper sentence.

There will be some cases where it is appropriate for an appellate court to intervene so that the immigration consequence is mitigated, and some cases where it is not. [ 27 ] The case of R v MacDonald , 2018 ABCA 138 at para 13 outlines the criteria for establishing ineffective counsel as a ground of appeal: • the appellant must establish the facts on which the claim of incompetence is based; • the appellant must establish that the representation provided by original counsel was incompetent; and • the appellant must establish that the incompetent representation resulted in a miscarriage of justice. [ 28 ] Here, Mr.

Singh has established the facts on which the incompetence claim is based and that the original representation was incompetent. Previous counsel admits to that incompetence. He admits to not knowing, not understanding and doing nothing to inform himself of the legal result in immigration terms flowing from a sentence of 6 months or more. The transcript from the sentencing hearing itself shows that previous counsel did not enlighten the sentencing judge as to precisely how a sentence of 6 months or greater would operate to revoke Mr. Singh’s immigration status or how deportation would affect Mr.

Singh personally. [ 29 ] Even applying the deferential standard of review from R v Sewak , 2019 ABCA 303 at para 13 , I cannot say there is a mere difference of opinion over tactical choices. This is not a case of hindsight or second-guessing choices made by original counsel. That counsel failed to advise the sentencing Court not only of the automatic deportation, but also the individualized effect of that deportation would have on Mr. Singh.

It is an admitted case of clear ignorance and omission, falling short of the standard that the Court says is required in criminal cases involving immigration consequences. [ 30 ] The last question is therefore whether a miscarriage of justice has resulted. The Crown says that it has not. The Crown says that the record clearly shows that the sentencing judge was aware of the immigration consequence. The Crown also says that the adverse consequences to Mr. Singh of deportation are not severe enough to change the sentence now.

Finally, the Crown contends that the immigration consequence must be treated as collateral, or secondary or less important than the principles and objectives of sentencing, and cannot form a focal point of sentencing. [ 31 ] While it is true that Judge Doyle was aware from the record and discussions with both counsel that Mr.

Singh is a permanent resident and that previous counsel, in the most vague, generic and ambiguous way, advised there would be a consequence, she was not apprised exactly of the potential, or rather inevitability, of the deportation order and she was not advised of the exact effect of such a deportation upon Mr. Singh. Information in the latter regard, in the least, was within the grasp of previous counsel. He did not bother to elicit that information from his client. Rather, the client in an affidavit filed November 25, 2021 supplies that information himself for the purposes of this appeal.

In consequence, Judge Doyle was totally in the dark about how to deal with the effect of deportation on Mr. Singh where Pham at para 13 directs that collateral immigration consequences are relevant in tailoring a fit sentence but the significance has to be determined in the precise factual context. Here, that factual context was completely missing. Judge Doyle was effectively prevented from carrying out the second step from R v Lopez-Orellana . [ 32 ] I further do not agree that there is no great prejudice to Mr. Singh as a result of his deportation. It is true that his safety would not be compromised.

It is true that he would not be separated from his children because he doesn’t have any. However, he deposes that he has no connection with India anymore, no family or support network, and no prospects for employment. It was an inability to secure employment in India that prompted Mr. Singh to come to Canada in the first place. Now, in Canada, he has a strong system of family and community in place. Canada is now his home. He has steady employment in Canada that has enabled him to become a productive member of the community, and he sees himself with prospects for the future.

All of this would be taken from him if he were deported back to India. [ 33 ] Judge Doyle, because of counsel’s ineffectiveness, did not have the opportunity to consider the deprivations that Mr. Singh will suffer upon deportation, which may well have affected the outcome. In my view, had she known, there is ‘reasonable possibility’ and ‘reasonable probability” that Mr.

Singh could have avoided automatic deportation, within the meaning of R v Sauverwald , 2020 ABCA 388 at para 21 , or a “reasonable probability” which is one that is “sufficient to undermine confidence in the outcome” and “lies somewhere between a mere possibility and a likelihood” within the meaning of Sewak at para 31 . Six to nine months was the range suggested by the Crown at the sentencing hearing. Six months less a day is not so far from the seven months actually imposed, especially when taking into account the residual prejudice that Mr. Singh still faces. Because of counsel, Mr.

Singh did not receive a meaningful chance to appeal and avoid his deportation, when it was within a reasonable realm of outcomes. Accordingly, a miscarriage of justice has been established.

[ 34 ] Finally, I do not agree that because a consequence is collateral that it cannot occupy a position of importance in the sentencing itself. As Pham notes , collateral consequences may be part of tailoring a fit sentence and 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. Rather, the sentencing judge should not skew the system in order to avoid deportation.

That is not what is being asked here. [ 35 ] In a case where the Crown itself suggested a period of 6 to 9 months in jail as the appropriate range of sentence for this offence, and where the sentencing judge herself landed on 7 months, the sentence of 6 months less one day does not skew the process or create parallel sentencing regimes, one for citizens and one for those facing deportation. Counsel for the Crown today conceded that if legal error was established and the appeal were successful, a sentence of 6 months less a day would still be a fit and appropriate sentence.

In my view, the circumstances of this case suggest that a sentence of 6 months less a day ultimately is still proportionate to the gravity of the offence and the responsibility of the offender. This is so because he still faces deportation jeopardy. A sentence of 6 months less a day still presents Mr. Singh with more prejudice than a Canadian citizen faces. The only thing he gains from a successful sentence appeal is the right to appeal the deportation order.

It is by no means a sure thing, and he still faces obstacles to becoming a Canadian citizen down the road, as a result of this conviction. [ 36 ] I am not faulting Judge Doyle because it was defence counsel who failed to put her in a position to carry out the analysis required by Pham and specified in R v Lopez-Orellana . Any error that might be attributed to her was induced by counsel’s ineffectiveness.

It is up to counsel, not the sentencing judge, to develop and present the entirety of the sentencing context, explain the significance of the facts comprising that context and to draw to the judge’s attention how a particular sentence might affect an offender. A sentencing judge cannot be expected to know these things in the absence of being told by counsel. The illuminated pathway, to borrow the words from R v DPB , 2006 ABCA 344 at para 5 , had one

section of darkness because previous counsel failed to shine the light. [ 37 ] In the result, previous counsel failed to advise the sentencing judge in any meaningful manner on the issue of immigration consequences and the threshold for appellate intervention described in Pham is met. I allow the appeal on the grounds of ineffectiveness of counsel and I reduce the sentence from 7 months in jail to 6 months less one day for the reasons given above. F. Disposition of remainder of sentence [ 38 ] Appellate counsel for Mr. Singh urged me today to convert what remains of Mr.

Singh’s jail time to a conditional sentence to be served in the community, and there was a discussion between he and I about appropriate conditions. However, I must have due regard to the aggravating factors found by the sentencing judge. I have concluded that allowing Mr. Singh to serve the balance of his sentence, as amended, in the community would not properly serve the sentencing objectives of deterrence and denunciation, and would give Mr. Singh a more lenient form of sentence than a Canadian citizen would receive in the same offence circumstances.

I am not convinced that granting a CSO for the remainder rather than jail is connected to the immigration issue. It is a request for additional leniency. I deny the request for a CSO. [ 39 ] I further do not believe that Mr. Singh is entitled to enhanced credit because he served no remand time, nor to a reduction for COVID as he has not shown how the circumstances of COVID have a disproportionate effect on him as an inmate. [ 40 ] I heard two different versions of how much time Mr. Singh has left to serve. I leave it to correctional authorities to sort out the exact amount of time he has remaining.

Unless counsel has another submission, I direct that Mr. Singh turn himself in at the Edmonton Remand Centre on Monday, December 6, 2021 at 9:00 a.m. Heard on the 3 rd day of December, 2021. Dated at the City of Edmonton, Alberta this 6 th day of December, 2021. Douglas R. Mah J.C.Q.B.A. Appearances: Luke Craggs for the Crown Zachary Al-Khatib

Aloneissi O’Neil Hurley O’Keefe Millsap for Mr. Singh