2017 QCCA 909, 2017 QCCA 909

Khan c. R. 2017 QCCA 909 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006425-175 (500-01-137585-169) MINUTES OF THE HEARING DATE: June 8, 2017 THE HONOURABLE MARK SCHRAGER, J.A. APPLICANT COUNSEL ABDULLAH KHAN Mtre Elfride-Andree Duclervil (Aide Juridique de Montréal) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre ROBERT BENOiT ( absent ) (Directeur des poursuites criminelles et pénales) DESCRIPTION: Motion to extend the limit for leave to appeal from sentence (Subs. 678 (1) and

(2) Criminal Code ) Clerk: Adam Scott Courtroom: RC-18

HEARING Continuation of the hearing of June 6, 2017. 9:32 Commencement of the hearing. Mtre Duclervil is present. Mtre Benoit is excused from appearing. BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing. (

s) Adam Scott Clerk BY THE JUDGE JUDGMENT [ 1 ] Applicant pleaded guilty to an armed assault following an altercation on the street where he struck an elderly man with an umbrella.

On December 12, 2016, he was sentenced to one day in jail in addition to the six days of incarceration prior to his guilty plea. [ 2 ] Applicant now seeks an extension of time and leave to appeal the sentence. [ 3 ] In February 2017, after serving his sentence, he was notified by the immigration authorities that given his status as a permanent resident he had now become inadmissible because of the conviction. [ 4 ] Applicant sought legal advice immediately following receipt of the letter from the immigration authorities and the delays in obtaining information including the audio recording of the proceedings in first instance have been explained. [ 5 ] Section 36(1) (

a) of the Immigration and Refugee Protection Act [1] provides: 36.

(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (

a) having been convicted in Canada of an offence under

an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years , or of an offence under

an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (…) 36.

(1) Emportent interdiction de territoire pour grande criminalité les faits suivants :

a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé; […] (Emphasis added) [ 6 ] Pursuant to his plea, Applicant was found guilty under s.267 Cr.C . which provides that the armed robbery is punishable by up to 10 years imprisonment. As such, the case comes within the first phrase of s.36(1) (

a) I.R.P.A . [2] [ 7 ] Applicant states that neither his lawyer nor the judge or the prosecutor informed him or made any mention of the impact of the guilty plea and the sentence on his immigration status. As such, he seeks leave to appeal the sentence to correct the situation. [ 8 ] The fact of conviction of the armed robbery punishable by a maximum of 10 years brings him within the purview of s.36(1)(

a) I.R.P.A. Counsel for the Applicant intends to argue that the sentence should be vacated and an absolute or conditional discharge be

imposed so that Applicant will not be considered as having been convicted within the meaning of s. 36(1) (

a) I.R.P.A. [ 9 ] Contrary to the submission of counsel for Respondent, I do not think that the case law submitted [3] is necessarily conclusive given that the sentences imposed in these cases are counted in months as opposed to the current sentence, counted in days. It is possible that, had the judge been made aware of the immigration repercussions, the sentence might have been otherwise.

FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] GRANTS the motion to extend the time limit for leave to appeal from sentence; [ 11 ] GRANTS leave to appeal; [ 12 ] ORDERS that the case proceed by memorandum; [ 13 ] ORDERS Applicant, after having served a copy upon Respondent, to file at the Office of the Court no later than August 8, 2017, five copies of the documents that ordinarily constitute Schedules I, II and III of the brief, including the present judgment, a book of authorities and, if applicable, an argument no longer than (15) pages in length; [ 14 ] ORDERS Respondent, after serving a copy upon Applicant, to file at the Office of the Court, no later than 30 days after Applicant has filed his memorandum, five copies of the questionnaire, a book of authorities, and if applicable, an argument no longer than (15) pages in length; [ 15 ] ORDERS that the hearing of 1 hour (30 minutes each party) will take place at such date and room fixed by the clerk of this Court following the parties’ request after filing of Respondent’s memorandum; [ 16 ] DIRECTS the parties’ attention to the Chief Justice’s notice of July 30, 2014, encouraging the filing with their paper version documents a technologic version that must be in PDF or Word format to enable key-word search and stored on a CD/DVD ROM or USB- key.

MARK SCHRAGER , J.A.