2011 QCCA 136, 2011 QCCA 136

Unofficial English Translation Guzman c. R. 2011 QCCA 136 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004551-105 (500-01-007818-070) DATE: January 28, 2011 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A. PAUL VÉZINA, J.A. WALTER ERNESTO GUZMAN APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellant appeals from a judgment of the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Louise Villemure) rendered on November 17, 2008, which imposed a sentence equivalent to two years' imprisonment, taking into account the pre-sentencing custody; [ 2 ] For the reasons of Doyon J.A., with which Bich and Vézina JJ.A. agree, the Court: [ 3 ] GRANTS the motion for leave to appeal; [ 4 ] GRANTS the motion to adduce fresh evidence; [ 5 ] DECLARES moot the motion to dismiss the respondent's notice of intent to seek a harsher sentence; [ 6 ] DISMISSES the appeal.

FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A. PAUL VÉZINA, J.A. Mtre Marie-Pierre Labbé Labbé Marie-Pierre For the appellant Mtre Michel Pennou Counsel for the Director of Public Prosecutions of Canada For the respondent Date of hearing: December 1, 2010

REASONS OF DOYON J.A. [7] Should the sentences be varied by being reduced to a term of imprisonment of two years less one day in order to permit theappeal of a removal order made under the Immigration and Refugee Protection Act (IRPA)?[1] That is the issue raised in this appeal. [8] Three appeals were heard together because they all raise similar grounds of appeal. They are: Guzman v. The Queen, filenumber 500-10-004551-105, Belance v. The Queen, file number 500-10-004606-107, and Laplante v. The Queen, file number 500-10-004647-101. These reasons will apply to all three cases.

BACKGROUND [9] None of the three appellants are Canadian citizens, but they have obtained their permanent residency status under the IRPA. [10] Subsequently, they were each sentenced to two years' imprisonment for committing various offences against a federal law. [11] These sentences have significant consequences. First, they entail their inadmissibility on the grounds of serious criminality.[2]They also prohibit any appeal of removal orders before the Immigration Appeal Division. Indeed, while the Immigration AppealDivision may, pursuant to paragraph 67(1)(

c) IRPA, stay a removal order or allow an appeal on the basis of humanitarian grounds, forinstance,

section 64 of that Act states that such an appeal may not be made when the sentence imposed is of at least two years’imprisonment: 64.

(1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident ifthe foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or internationalrights, serious criminality or organized criminality. Serious criminality

(2) For the purposes of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term ofimprisonment of at least two years. [Emphasis added.] [12] Therefore, the appellants ask the Court to reduce their respective sentences to two years less one day in order to preserve theirright to appeal the removal order before the Immigration Appeal Division. In their view, the reduction of the sentence they seek isminimal in relation to the prejudice they suffer due to the loss of their right of appeal.

In the circumstances, they argue, the impact of thesentence imposed is clearly disproportionate. [13] Before undertaking a deeper analysis of the arguments presented by the parties, it is appropriate to outline the individualsituation of each of the appellants. Walter Ernesto Guzman [14] Born in 1977 in El Salvador, Mr. Guzman has been in Canada since 1992. He is the father of a thirteen-year-old child, whomhe supports financially.

He asks the Court to declare documentary evidence on this subject admissible. [15] He was arrested on June 21, 2007, in possession of cocaine base for the purpose of trafficking (70 rocks of crack). He wascharged and released. He was arrested again on May 30, 2008, for various drug-related offences and breach of undertaking.

He remainedin detention and, on November 19, 2008, he pleaded guilty to eleven counts: - five counts of breach of undertaking subsequent to his release in June of 2007; - conspiracy and possession of cocaine base for the purposes of trafficking in June of 2007; - four counts of possession of a narcotic for the purposes of trafficking in May of 2008, to wit: cocaine base (50 rocks of crack), cannabis,methamphetamine and ecstasy. [16] The parties made a joint submission to the trial judge for a sentence of two years of imprisonment for the drug-relatedcharges, from which eleven months should be subtracted to take into account pre-sentencing custody from May to November of 2008. [17] After pointing out that the suggestion [translation] "appears lenient" to her, the judge nevertheless agreed because it was notunreasonable and was proposed by two experienced counsel.

She also imposed two months' imprisonment to be served concurrently forbreach of undertaking. [18] No mention was made of the consequence of these sentences on Mr. Guzman's status. Therefore, the judge was not informedof his situation. [19] It should be pointed out that, according to the

interpretation by the Federal Court in Atwal v. Canada (Minister of Citizenshipand Immigration) (2004), 2004 FC 7 , 245 F.T.R. 170, 2004 F.C. 7, the sentence imposed (eleven months in that case) is notrelevant to the analysis of subsection 64(2) IRPA. Rather, what must be determined is the length of the sentence taking into account thepre-sentencing custody credited by the judge. That is the reason the sentences imposed on Mr. Guzman should be considered to be two

years' imprisonment. This

interpretation is not challenged by the appellants. [ 20 ] On June 10, 2009, the Immigration Division made a removal order against the appellant. It was only after this decision that the appellant became aware of the impact of his sentences on the possibility of appealing to the Immigration Appeal Division. [ 21 ] He argues that the other remedies provided in the IRPA cannot compensate for the impossibility to appeal. Therefore, in his view, the proceeding under

section 25 of the Act is nothing more than a discretionary measure that the Minister is under no obligation to grant, [3] and the pre-removal risk assessment [4] (PRRA) is also inadequate as it does not take humanitarian grounds into consideration.

As for a judicial review by the Federal Court, the rules and purpose of that proceeding are in no way comparable to those of an appeal. [ 22 ] In his view, the Appeal Division could allow his appeal because he financially supports his son whose best interests require his presence here, because he has been a permanent resident for several years, because he is employed, and because his family and social attachments are in Canada and he no longer maintains any ties to El Salvador. [ 23 ] The respondent, faced with what it qualifies as a repudiation of the agreement between the parties at trial, gave notice of its intention to seek a harsher sentence in the appeal.

It did not, however, repeat this intention at the hearing. Instead, it vigorously contested the appeal. Jean-Zacarie Belance [ 24 ] On August 20, 2009, Mr. Belance was arrested in a public place in possession of a loaded .38 calibre revolver. He was charged with eight counts, one of which carries a minimum sentence of three years' imprisonment (paragraph 95(2)(

a) Cr. C. ). [ 25 ] One week later, he pleaded guilty to the offence of carrying a concealed weapon. In exchange, the prosecution withdrew all the other charges, including the one punishable by a minimum of three years' imprisonment. [ 26 ] He has a criminal record and his prior offences include one of the same nature (threats and possession of a weapon for a dangerous purpose), for which he was sentenced to forty-five days imprisonment in 2006, and an order prohibiting him from possessing a firearm for five years.

Therefore, he was in breach of this order when he was arrested in August of 2009. [ 27 ] Taking into account the seven days of pre-sentencing custody, the parties made a joint submission to the trial judge: in their view, a sentence of two years' imprisonment seemed appropriate. The judge agreed to their suggestion. [ 28 ] It should be noted that, unlike Mr. Guzman's case, the parties informed the trial judge that their agreement took into account certain measures that were already in progress.

Here is how Crown counsel put it: [ translation ] And this file also takes into account, obviously, and it was taken into account in the agreement, it's important for the Court to know that, the police told me that steps had been taken with Immigration, and the accused's extradition was apparently being sought, so he would be returned to his country of origin. [ 29 ] The appellant believes that these remarks are inaccurate, since it is not a case of extradition but rather of expulsion or removal; therefore, the trial judge could not grasp the actual impact of the sentence she was imposing and particularly the impact on the right of appeal before the Immigration Division. [ 30 ] Admittedly, the use of the word "extradition" is unfortunate.

The judge was aware, however, that [ translation ] "steps had been taken with Immigration" and that [ translation ] "he would be returned to his country of origin". Although not perfectly clear, this explanation nonetheless made it possible to understand that the appellant's immigration status was in jeopardy. The judge was therefore not completely in the dark, and the appellant also knew that his situation was precarious. [ 31 ] Nevertheless, and even though he does not call into question the competence of his trial lawyer, the appellant claims that he had been improperly advised.

He claims that he only learned about the consequences of the sentence much later, on February 19, 2010, when his new lawyer informed him of them. [ 32 ] He asks that the Court declare his sworn statement and that of Mtre Stéphane Handfield, a specialized immigration lawyer, admissible as fresh evidence. Mtre Handfield states that, without an appeal, the only remedy actually applicable is the PRRA, which would not take into account the most important aspect of the file, namely, the humanitarian grounds.

He adds that the rate of success is minimal, with protection being granted in only about 2% of all cases submitted for review. [ 33 ] The respondent, for its part, files the sworn statements and the examinations of Caroline Labranche, of Citizenship and Immigration Canada, and Marie-Ève Maisonneuve, of Canada Border Services. These statements indicate that the appellant, who was born in Haiti on April 5, 1985, obtained permanent residence on September 20, 1999, on his arrival in Canada. He filed an application for citizenship in January of 2001 but has never followed up on it.

A removal order was made on April 8, 2010. He brought an appeal against the order, but the Immigration Appeal Division dismissed it for lack of jurisdiction in light of the sentence imposed. [ 34 ] We also learn that, since 2004, there has been a temporary suspension of removals to Haiti; this does not apply, however, to persons who are inadmissible for serious criminality, like the appellant. There has also been an administrative stay of all removals to Haiti since the severe earthquake in January 2010.

This measure, which also applies to convicted persons such as the appellant, may be lifted at any time. [ 35 ] The humanitarian grounds raised by the appellant for the consideration of the Immigration Appeal Division are his arrival in Canada at fourteen, the fact that he has been here for the last eleven years, the dangers that exist in Haiti, and his lack of any connection with that country.

[36] Because the two-year sentence took into account the seven days of his pre-sentencing custody, which is usually given doublecredit, he asks the Court to reduce it to two years less fifteen days to be sure to avoid any misunderstanding regarding the length of thenew sentence. [37] For its part, the respondent argues that the sentence is in no way unfit, that it was a joint submission, and that in any event, inthe absence of such agreement, the minimum sentence would have been three years' imprisonment, which would have precluded anyappeal to the Immigration Appeal Division.

It adds that the joint submission took into account the removal proceedings already inprogress. Henry Laplante [38] Mr. Laplante was born in Haiti on August 12, 1986, and obtained his permanent residency upon his arrival in Canada on June8, 1997. [39] Over the years, two citizenship applications were filed but the process was never completed. [40] Following a trial held in the Court of Quebec, on December 19, 2007, the appellant was convicted on two counts ofpossession of a prohibited weapon (paragraph 91(2)(3)(

a) Cr. C.) and one count of possession of a restricted weapon (paragraph 95(2)(a)Cr. C.) The weapons were a .12-calibre sawed-off shotgun and two revolvers, one of which was loaded, discovered in his bedroom. Oneof the weapons was in a bag that also contained gloves and a balaclava. [41] The prosecution proposed thirty months' imprisonment. The defence argued the sufficiency of a one-year sentence, which wasthe minimum sentence for an offence under paragraph 95(2)(

a) Cr. C. at the time. It should be noted that the judge was not informed ofthe appellant's status. [42] Being of the opinion that, contrary to the claims of the prosecution, there was no proof of his belonging to a gang, the trialjudge did not accept this suggestion – nor that of the defence, for that matter – and imposed a sentence of two years imprisonment, fromwhich he subtracted ten months to take into account the time spent in pre-sentencing custody. On that same date, Mr.

Laplante wasconvicted of an offence under the Controlled Drug and Substances Act (simple possession of cannabis) and of three breaches ofundertaking while awaiting trial, namely, failure to comply with a curfew, possession of a weapon (a pocketknife), and possession of acell phone. The judge imposed a two-year suspended sentence for possession of cannabis and one month's imprisonment for the countsof breach of undertaking. [43] A removal order was made on August 18, 2009.

The appellant appealed to the Immigration Appeal Division but was informedon March 8, 2010, that there could be no appeal. [44] He asks that his sworn statement be found admissible. He states that he did not learn of the consequences of his sentence untilMarch 8, 2010, when he found out that his appeal to the Immigration Appeal Division was dismissed because of lack of jurisdiction. Healso asks the Court to admit the sworn declaration of his counsel at trial, who states that she [translation] "was not aware of theprecarious immigration status" of her client, as well as that of Mtre Andrea C.

Snizynsky, the lawyer currently representing him in hisremoval proceedings, who describes the steps taken so far. [45] The respondent, for its part, files the sworn statements of Ms. Labranche and Ms.

Maisonneuve. [46] The humanitarian grounds the appellant wishes to raise before the Immigration Appeal Division include his arrival in Canadaat a very young age (ten years old), the fact that his entire family is in Canada, his job, the very difficult situation in Haiti, and thecomplete lack of family or any other type of connections with that country. [47] The respondent argues in particular that humanitarian grounds may also be considered by the Minister of Citizenship andImmigration when an application is made under

section 25 IRPA. Therefore, the appeal is unjustified because the objective sought by theappellant may be achieved without varying the sentence imposed by the trial judge. ANALYSIS The relevance of the issue [48] There is no denying that the consequences of

section 64 IRPA carry a certain weight. I do not mean that they are alwaysdeterminative but, for the following reasons, I am of the view that a court should take them into account. Nevertheless, it should not beconcluded that every time a two-year sentence is appropriate, it should be reduced to two years less one day so that the right of appeal ofthe person concerned may be preserved, if applicable.

In my view, this is what the appellants are arguing, at least implicitly. [49] In my opinion, it is clear that the other measures set out in the IRPA are not analogous to a right of appeal and thereforecannot compensate for the loss of such a right. The Federal Court does not become an appellate court when it exercises its judicialreview jurisdiction.

Similarly, the discretionary power conferred on the Minister of Citizenship and Immigration in sections 25 and 112IRPA and following does not compensate for the loss of a right of appeal before a body such as the Immigration Appeal Division, whichmay, in the appeal, take into consideration other aspects of the removal decision in addition to the humanitarian grounds. [50] In short, while the appellants may not be completely without options, the measures that remain available to them are not assatisfying as a right of appeal. To paraphrase Doherty J.A. in R. v.

Spencer (2004), (ON CA), 72 O.R. (3d) 47 (Ont.C.A.), at para. 45, the accused who receives a two-year sentence and is thereby deprived of a right of appeal is "in a somewhat worseposition" than one who receives a sentence of two years less one day. [51] It therefore must be recognized that the impact of a sentence of two years of imprisonment remains a relevant fact that a courtmust be allowed to consider. This is in fact the idea expressed by Doherty J.A. in R. v. Hamilton, (2004) (ON CA), 72

O.R. (3d) 1 (Ont. C.A.): [156] …The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. Asindicated above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken intoconsideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender: R.v. Melo (1975), (ON CA), 26 C.C.C. (2d) 510 at 516 (Ont. C.A.). [157] …It is clear, however, that if Ms.

Mason were to receive a sentence of two years and if she was ordered deported, her ability tochallenge that deportation order would be adversely affected by the length of the sentence. [158] I would not characterize the loss of a potential remedy against a deportation order that might be made a mitigating factor onsentence. I do think, however, that in a case like Ms. Mason's there is room for consideration of the potentially added risk of deportationshould the sentence be two years or more.

If a trial judge were to decide that a sentence at or near two years was the appropriate sentencein all of the circumstances for Ms. Mason, the trial judge could look at the deportation consequences for Ms. Mason of imposing asentence of two years less a day as opposed to a sentence of two years. I see this as an example of the human face of the sentencingprocess. If the future prospects of an offender in the circumstances of Ms.

Mason can be assisted or improved by imposing a sentence oftwo years less a day rather than two years, it is entirely in keeping with the principles and objectives of sentencing to impose the shortersentence. While the assistance afforded to someone like Ms. Mason by the imposition of a sentence of two years less a day rather thantwo years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the impositionof that sentence: see R. v. Lacroix, (ON CA), [2003] O.J.

No. 2032 (C.A.). [52] In other words, the sentencing process should not be a way of circumventing the provisions of the Department of Citizenshipand Immigration Act and the objectives of Parliament.

On the other hand, the fact remains that the impact of a judicial decision on anaccused is always relevant, especially in the context of sentencing, which must be proportionate to both the seriousness of the offenceand the degree of responsibility of the offender, and must be tailored to each offender. [53] Therefore, the consequences of a sentence may sometimes cause a judge to reduce a sentence while remaining true to theobjectives and principles set out by Parliament. In some cases, it may be appropriate to reduce a sentence by a day, as long as it remainsappropriate under the applicable rules.

The trial judge must also be adequately informed of the situation by counsel. [54] That being the case, how should a court of appeal assess the fitness of the sentence when, unlike the trial judge, it receivesfresh evidence informing it of the correct information regarding the true situation of the accused and the impact of the sentence on theright of appeal? That is the question I shall now address.

The role of the appellate court [55] It has happened in the past that appellate courts have allowed appeals and varied sentences, reducing them by a few days,sometimes with the consent of the prosecution[5] and sometimes without,[6] because the specific circumstances of the case justifieddoing so. [56] That said, because this appeal is based essentially on fresh evidence, we must keep in mind the decision in R. v.

Lévesque,2000 SCC 47 , [2000] 2 S.C.R. 487, which addresses both the criteria for the admissibility of fresh evidence and the manner inwhich it should be treated if it is admissible in appeals of sentences. [57] Gonthier J. reminds us that, in matters of the admissibility of fresh evidence, the primary consideration must be the interestsof justice. He adds that the criteria in R. v. Palmer, (SCC), [1980] 1 S.C.R. 759, concerning the verdict are equallyrelevant in sentencing matters: [16]...

Although the rules concerning sources and types of evidence are more flexible in respect of sentence, the criteria for admittingfresh evidence on appeal are the same, regardless of whether the appeal relates to a verdict or a sentence. [58] I note the following criteria:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases ... .

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [59] That does not mean, however, that the criteria are rigid and cannot be analyzed in their context.

On the contrary, as Gonthier J.also points out, at paragraph 18: "the criteria stated by this Court in Palmer already call for a relaxed and flexible application...". [60] Admittedly, in Levesque, unlike in this case, the evidence was new in the sense that it did not exist at the time of thesubmissions on sentencing (three new expert reports prepared after the sentencing judgment), and the trial judge could not have beenmade aware of it. It is easier to see the evidence as fresh in that context than in the case before us.

Here, for the most part, the evidenceexisted at the time of the submissions on sentencing; it is "new" only because the appellant did not file it at trial. [61] This particular aspect of the present case does not, however, entirely preclude the admission of the fresh evidence. In myview, the existence of this evidence and the failure to file it at trial invoke essentially the first criterion from Palmer, which I repeat hereto shed a light on the remarks I will then make:

The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases ... . [62] If we limit ourselves to the first words of the rule, the evidence the appellants wish to submit should not be admitted. Becausethis principle should not be applied "as strictly in a criminal case as in civil cases...", however, it is possible for an appellate court toallow evidence that the parties could have adduced at trial. [63] In R. v.

Angelillo, 2006 SCC 55 , [2006] 2 S.C.R. 728, Charron J. notes in paragraph 14 that she agrees with GonthierJ. in Lévesque that "the strict rules of a trial do not apply to a sentencing hearing, because in order to determine the appropriate sentencethe judge must have as much information as possible about the accused".

Moreover, she adds, while the first criterion in Palmer "is animportant one whose specific purpose is to protect the interests and the administration of justice and to preserve the role of the appellatecourt", it should not be used "to refuse to admit fresh evidence on appeal if the evidence is compelling and if it is in the interests ofjustice to admit it". [64] Moreover, in Lévesque, Gonthier J. notes that, while fresh evidence is often the result of events subsequent to the judgment, itis not necessarily so in all cases: [32] Quite often, fresh evidence submitted to an appeal court in the context of an appeal from a sentence relates to events subsequent tothe sentence, or consists of information from the penitentiary administration relating to an accused progress in terms of adjustment andrehabilitation.... [65] Finally, I note that failure to meet the due diligence criterion is not always fatal and that sometimes it is necessary to "considerthe other three criteria set out in Palmer in order to determine whether their strength is such that failure to satisfy the due diligencerequirement is overborne": R. v.

Lévesque, supra at para. 42. [66] In short, even if the evidence existed and was available at the time of the trial judgment, it can nevertheless be foundadmissible if the appellant demonstrates due diligence, and this criterion should be applied in a relaxed and flexible manner.

Obviously,this fresh evidence must also meet the three other criteria in Palmer. [67] In the event the fresh evidence is deemed admissible, we must also consider the manner in which an appellate court shouldapproach the appeal. [68] In my view, the answer can once again be found in Lévesque: If the fresh evidence is admitted, the court of appeal must again consider its probative value as well as the probative value of all the otherevidence in order to determine whether the sentence imposed by the trial judge was "demonstrably unfit”. R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227 at para. 46 and 50; M. (C.A.), supra at para. 90; and R. v. Proulx, [2000] 1 S.C.R. 61 2000 SCC 5 at para.125. [69] Therefore, an appellate court must repeat the exercise and consider whether the sentence is "demonstrably unfit" in light ofthe evidence as a whole, including the fresh evidence, the probative value of which must be sufficient to have been admitted as such.

Ofcourse, it goes without saying that the deference due to the trial judge's findings of fact is no less important in this second analysis. [70] Thus, the appellate court must keep the trial judgment in mind and not limit itself only to the sentence it considers to beappropriate.

Indeed, before it may intervene, the court of appeal must find that the sentence imposed at trial was demonstrably unfit inlight of the fresh evidence. [71] The respondent argues that the Court of Appeal of British Columbia breached the applicable rule by establishing a newstandard of intervention permitting a court to intervene to vary a sentence that is otherwise adequate. In other words, the Court of Appealof British Columbia unduly eased the appellant's burden and we should not follow its method of analysis. I do not share the respondent'sview. [72] In R. v.

Kanthasany, [2005] 210 B.C.C.A. 54, 2005 BCCA 135 (B.C.C.A.), Donald J.A. wrote: 14 The question of fitness in this case relates not to the quantum of the sentence, in the ordinary sense, but to a serious but unintendedcollateral effect of the penalty.

The matter of a single day, two years rather than two years less a day, is inconsequential in terms ofdenunciation, retribution and deterrence, although it determines the availability of a probationary order and it also designates whichcorrections system, Federal or Provincial, is engaged. 15 But, in relation to the appellant's immigration status and his personal safety, the difference of one day carries potentially enormousconsequences. For that reason Mr. Holloway, counsel for the appellant (not counsel at trial), submitted that a two year sentence lacksproportionality.

I agree with this submission. [Emphasis added.] [73] In my view, although the terms differ, the conclusion that a term of two years' imprisonment does not comply with theproportionality principle (a fundamental principle set out in

section 718.1 Cr. C.) because of its significant consequences is simplyanother way of stating that it is demonstrably unfit. [74] This is in fact the same conclusion reached by Donald J.: 23 In my view, the substitution of a term of two years less a day does no violence to the sentence imposed by the trial judge and avoidsan unintended consequence of great significance. I am persuaded by the appellate authority to which I have referred that the adjustmentin the sentence is within our review power and should be exercised to prevent the disproportionate ramifications of a single day of

imprisonment. [Emphasis added.] [ 75 ] These principles being established, it now remains to apply them to the three appeals before the Court. THE APPEAL OF WALTER ERNESTO GUZMAN [ 76 ] Given the incontestable nature of the documents that the appellant wishes to adduce as fresh evidence, and given their importance to him in arguing for his status, I find that the interests of justice require the Court to find the following documents admissible as fresh evidence: his record of landing, his birth certificate, and the judicial proceedings establishing his child support obligations.

In the circumstances, I would also find the examination of Marie-Ève Maisonneuve to be admissible as fresh evidence. [ 77 ] I unreservedly agree with the opinion of the trial judge when she states that the joint submission [ translation ] "seems lenient" but accepts it nevertheless because it is not unreasonable and results from discussions between two experienced lawyers. [ 78 ] Does the sentence become demonstrably unfit because the appellant cannot appeal the removal order that was made because of his conviction?

I do not believe so. [ 79 ] First, although they are not equivalent to an appeal, the other measures allow the appellant to seek a stay, especially since the best interests of a child may be at issue. [7] [ 80 ] Moreover, the offences are serious and the appellant committed some of them while awaiting trial for other offences.

During that same waiting period, he also breached the conditions of the release he had been under since his first arrest. [ 81 ] It should also be noted that, aside from their objective seriousness, this type of offence is generally linked to organized crime, and the appellant had an impressive array of drugs in his possession. Furthermore, the dangerousness of cocaine base has been well documented. [ 82 ] The appellant in this case, like the other two, claims that a reduction of his sentence by one day is so minimal that it could not have an effect on the fitness of the sentence.

I do not agree. [ 83 ] In my view it is reductive to restrict the analysis solely to whether or not one day of detention should be deducted from the sentence. [ 84 ] First, the remarks of the trial judge lead me to believe that it is not inconceivable that she would have imposed a harsher sentence if not for the joint submission. [ 85 ] Second, a penitentiary term signals that the detainee will serve the sentence in a federal institution, which may have a symbolic value in terms of general deterrence and eliminates any possibility of a conditional sentence. [ 86 ] Finally, it is clear to me that the appellants' submission would lead to the following result: where a right of appeal is denied through the application of

section 64 IRPA , the judge would be compelled to impose a sentence of two years less one day even if a sentence of two years would be appropriate. I cannot agree with such a submission. It would encourage courts to disregard the clear intent of Parliament. [ 87 ] While the impact of a sentence is one of the circumstances that a court must consider, it should not lead to an automatic reduction of the sentence. Each case turns on its own facts, and the appellant Guzman has not convinced me that the sentence he received became demonstrably unfit solely because of unforeseen consequences.

APPEAL OF JEAN ZACARIE BELANCE [ 88 ] I would also find the sworn statements of Mr. Belance and Mtre Stéphane Handfield to be admissible as fresh evidence, as well as the statements and examinations of Caroline Labranche from Citizenship and Immigration Canada and Marie-Ève Maisonneuve from Canada Border Services. [ 89 ] The appellant’s criminal history involves firearms and he was convicted of having committed a similar offence while in breach of a prohibition order. He was found carrying a loaded weapon in a public place, specifically, on a bus.

The extreme dangerousness of his actions has been amply demonstrated. I would add that his record of possession of weapons, combined with the offence at issue here, also leads to a conclusion of his dangerousness. Even a court order prohibiting him from possessing weapons had no effect on him. [ 90 ] The prosecution agreed to withdraw a charge punishable by a minimum of three years' imprisonment in exchange for a guilty plea and a joint submission.

Without that agreement, the appellant would be unable to even try to preserve his right of appeal. [ 91 ] Moreover, the prosecution clearly stated at trial that it consented to such a suggestion because proceedings seeking his expulsion were already in progress. [ 92 ] In the circumstances, the appellant has not shown that the sentence is demonstrably unfit. THE APPEAL OF HENRY LAPLANTE [ 93 ] Again, I would find the following to be admissible as fresh evidence: the sworn statements of the appellant, of his trial counsel, and of Mtre Snizynsky, as well as the statements and examinations of Ms. Labranche and Ms.

Maisonneuve.

[ 94 ] Although he was heard during submissions on sentencing, little was learned about the appellant aside from the fact that he [ translation ] "did it because he wanted to please his friends", that he was twenty-one years old at the time, that he had no criminal record, and that he [ translation ] "play[s] music". He added that he had a pocketknife in his possession to defend himself against certain [ translation ] "enemies". That is not reassuring. [ 95 ] Mr. Laplante committed very serious crimes while in possession of a sawed-off shotgun and two handguns, one of which was loaded.

It should also be reiterated that one of the weapons was in a bag in which gloves and a balaclava were also found. We may speculate at length on the appellant's plans, but we need not come to a definitive conclusion in order to find that the sentence imposed is not a severe punishment, especially since Mr. Laplante did not comply with his conditions of release.

Indeed, this led to the revocation of his release order and his return to detention before his conviction. [ 96 ] When an offender has not only been convicted of possession of three weapons but has also breached three conditions of his pre-trial release, it is difficult to speak of isolated acts. Indeed, it should be kept in mind that the conditions he breached sought to ensure public protection (prohibition of possession of a weapon) by removing the appellant from criminality (curfew and prohibition from possessing a cell phone).

By breaching these conditions, he himself demonstrated his dangerousness. [ 97 ] I find that the circumstances, taken together, demonstrate not only that the sentence was fit but that it has not become inappropriate solely because it precludes a right of appeal to the Immigration Appeal Division. COMMENTS [ 98 ] I cannot conclude without making the following remarks. [ 99 ] It is distressing to see the number of appeals that raise the same issue that is before us now.

Without the contributions of defence counsel, who must inform the judge not only of their clients' situations but also of the impact of the sentence on this status, appeals like the present ones are inevitable. We should, however, do everything in our power to avoid them and make it possible for trial judges to exercise their duties with full knowledge of the situation, without having the accused, after retaining new counsel, ask an appellate court to reassess the situation. The situation is even more worrying when the sentence is the result of an agreement and a joint submission.

Before making such suggestions, counsel for an accused has the responsibility of ensuring that his or her clients' situations are truly being taken into account. [ 100 ] Similarly, where counsel for the prosecution is aware of the accused's precarious status, he or she should inform counsel for the defence as well as the court. In some cases, the court itself may take the initiative to gather such information.

Without imposing an extra burden of investigation on the prosecution, it seems to be that it is its duty to inform the court and to share any facts of which it has knowledge and that may have an impact on the status of the accused in Canada. [ 101 ] I believe that the judicial system is entitled to expect the legal community to ensure that this takes place. CONCLUSION [ 102 ] In

summary, the status of the appellants and the impact of the prison sentences on their right to appeal to the Immigration Appeal Division are relevant circumstances and must be taken into consideration. However, given the circumstances in which the offences were committed, their seriousness, the profile of the appellants, and the objectives and principles of sentencing set out in the Criminal Code , I am of the view that the sentences inflicted on the appellants are fit even if they are not reduced by one day, as the appellants seek. [ 103 ] Although the one day (or, in the case of Mr.

Belance, the fifteen days) may appear symbolic and some may therefore believe there is no harm in reducing the sentence by this much, in my opinion, such a view would be a misinterpretation of the law.

Indeed, the near total lack of factors suggesting a real possibility of rehabilitation and change of behaviour on the part of the appellants convinces me that, even if the judges had been aware of all of the relevant facts, they would not have imposed sentences of less than two years' imprisonment solely to allow the appellants to preserve their right of appeal. [ 104 ] For these reasons, I would declare the fresh evidence admissible, grant the motions for leave to appeal, save in the case of Mr. Laplante whose motion has already been granted, and dismiss the appeals.

FRANÇOIS DOYON, J.A. [1] S.C. 2001, c. 27 . [2] Paragraph 36 (1) (

a) IRPA : 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; [3] Subsection 25(1) is worded as follows: The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable

criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerationsrelating to the foreign national, taking into account the best interests of a child directly affected. [4] Sections 112 and following of the IRPA. [5] R. v. Paz, [2004] J.Q. No. 17010 (C.A.); R. v. A.S., J.E. 2006-13752006, QCCA 879; R. v. Khemili, EYB 2008-132657, 2008QCCA 796; R. v. Lacroix, (ON CA), 172 O.A.C. 147 (Ont. C.A.); R. v. Hennessey, 228 O.A.C. 29, 2007 ONCA 581(Ont. C.A.); R. v. Moretto, [2009] B.C.J. No. 834, 2009 BCCA 139 (B.C.C.A.); R. v. Alpine, [2009] B.C.J.

No. 2172, 2009 BCCA 453(B.C.C.A.); [6] R. v. Stapf, [2010] J.Q. No.3870, 2010 QCCA 846 (C.A.); R. v. Leung, [2004] 354 A.R. 2, 2004 ABCA 55 (Alta. C.A.); R. v.Kanthasany, [2005] 210 B.C.C.A. 54, 2005 BCCA 135 (B.C.C.A.); R. v. Curry, (ON CA), [2005] 77 O.R. (3d) 587(Ont. C.A.); R. v. Q.A.M., [2005] 219 B.C.C.A. 272, 2005 BCCA 615 (B.C.C.A.); R. v. Tigse-Vaca, [2006] 69 W.C.B. (2d) 537 (Ont.C.A.); R. v. Leila, [2008] 67 Imm. L.R. (3d) 82, 2008 BCCA 8 (B.C.C.A.); R. v. Almajidi, [2008] 310 Sask.R. 142, 2008 SKCA 56(Sask. C.A.); R. v. Sutherland, [2008] 78 W.C.B. (2d) 487, 2008 BCCA 158 (B.C.C.A.); R. v.

Martinez-Marte, [2008] 78 W.C.B. (2d)602, 2008 BCCA 136 (B.C.C.A.); R. v. Sidhu, [2008] 78 W.C.B. (2d) 673, 2008 BCCA 157 (B.C.C.A.); R. v. Nasabi, [2010] B.C.J. No.441, 2010 BCSC 326 (B.C.C.A.). [7] See for example s. 25 IRPA.