2018 QCCA 428, 2018 QCCA 428

Khan c. R. 2018 QCCA 428 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006425-175 (500-01-137585-169) DATE: March 16, 2018 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. MARK SCHRAGER, J.A. MARIE-JOSÉE HOGUE, J.A. ABDULLAH KHAN APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] On May 4, 2016, with an umbrella, the appellant assaulted a man sitting on a bench in front of the Papineau Metro station. Appellant was charged with, first count, committing an assault with a weapon (s. 267

a) Cr.C .) and, second count, committing an assault (s. 266

a) Cr.C. ). [ 2 ] On December 12, 2016, the appellant pleaded guilty to both counts and counsel jointly submitted that the appropriate sentence was one (1) day imprisonment, considering six (6) days of pre-sentencing custody as time served. The sentence was pronounced on the first count and a conditional stay was entered on the second count. In the process, the appellant’s immigration status in Canada, a permanent resident, was never raised. [ 3 ] Given the conviction on the first count, the appellant is now inadmissible to remain in Canada on the grounds of serious criminality as per section 36(1) (

a) of the Immigration and Refugee Protection Act . [ 4 ] On June 8, 2017, the appellant was granted leave to appeal from the sentence. The appellant filed his memorandum and respondent was to do the same. Instead, counsel requested a facilitation conference in criminal matters and agreed to proceed with the appeal without a formal hearing. [ 5 ] Counsel confirm that the parties were not aware of the appellant’s immigration status at the time of sentencing. Had it been known, counsel would not have proceeded the way they did before the judge.

In the circumstances giving rise to the charges, an incident of limited gravity, counsel agree that the collateral consequences are disproportionate: R. c. Pham , [2003] 1 S.R.C. 739. Counsel suggest to stay count no. 1 and to sentence the appellant on count no. 2. Seeing the discontinuance of the sentence appeal and that the appellant maintains his guilty pleas, the respondent agrees that the Court grant the motion to extend time to appeal and the motion for leave to appeal the conviction. [ 6 ] The Court agrees with counsel’s position which is correct in law and has merit considering the underlying facts.

FOR THESE REASONS, THE COURT: [ 7 ] TAKES COGNIZANCE of the discontinuance of the appeal of the sentence; [ 8 ] GRANTS the motion to extend time to appeal the conviction; [ 9 ] GRANTS the motion to appeal the conviction; [ 10 ] ALLOWS the appeal; [ 11 ] QUASHES the conviction on the count of committing an assault with a weapon (s. 267

a) Cr.C .) and the conditional stay on the count of committing an assault (s. 266

a) Cr.C .) in file 500-01-137585-169; [ 12 ] ENTERS a conviction on count no. 2 (assault (s. 266

a) Cr.C .) in file 500-01-137585-169;

[ 13 ] STAYS the proceedings on count no. 1 (assault with a weapon (s. 267

a) Cr.C .) in file 500-01-137585-169; [ 14 ] IMPOSES the same sentence passed on December 12, 2016, on count no. 2 and TAKES COGNIZANCE that the period of custody has been served by the Appellant. MARTIN VAUCLAIR, J.A. MARK SCHRAGER, J.A. MARIE-JOSÉE HOGUE, J.A. Mtre Hélèna Lamed For the appellant Mtre Maude Payette CRIMINAL AND PENAL PROSECUTING ATTORNEY For the respondent