2015 QCCA 1515, 2015 QCCA 1515

Unofficial English Translation Onwualu v. R. 2015 QCCA 1515 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005711-146 (500-01-102847-149) DATE: September 21, 2015 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. JEAN-FRANÇOIS ÉMOND, J.A. ROBERT M. MAINVILLE, J.A. ASIKA SAMUEL ONWUALU APPELLANT - Accused v.

HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on March 13, 2014, by the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Claude Parent), sentencing him to nine months' imprisonment for possession of crack cocaine; [ 2 ] For the reasons of Mainville, J.A., with which Marcotte and Émond, JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appellant to gather and adduce new evidence; [ 4 ] DISMISSES the appeal. GENEVIÈVE MARCOTTE, J.A. JEAN-FRANÇOIS ÉMOND, J.A. ROBERT M. MAINVILLE, J.A.

Mtre Marie-Pierre Labbé For the appellant Mtre Robert Benoit Director of Criminal and Penal Prosecutions For the respondent Date of hearing: June 12, 2015 REASONS OF MAINVILLE, J.A. [ 5 ] The appellant appeals from a nine-month sentence of imprisonment imposed on March 13, 2014, by the Honourable Judge

Claude Parent of the Court of Quebec, Criminal and Penal Division, District of Montreal. The sentence follows a guilty plea to a charge of simple possession of crack cocaine. [ 6 ] The appellant, a permanent resident of Canada who is not a Canadian citizen, submits that the collateral consequences of this sentence under the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (" IRPA ") were not taken into account during sentencing.

He asks that his sentence be reduced to six months less one day, failing which he will be found inadmissible on grounds of serious criminality. context of the appeal [ 7 ] The appellant was arrested twice. The first time was on November 19, 2012, and the second on March 5, 2014.

Five charges were laid against him following these arrests in files 500-01-083670-130 (possession of 1.4 grams of marijuana), 500-01-083672-136 (obstructing a peace officer in the performance of his duties), 500-01-102846-141 (failure to comply with a recognizance), 500-01- 102850-143 (possession of five grams of marijuana) and 500-01-102847-149 (possession of eight grams of crack cocaine for the purpose of trafficking). [ 8 ] On November 19, 2012, the appellant was observed walking quickly and then running in the opposite direction of a police officer near the Berri metro station in Montreal.

The officer called for him to stop because he had jaywalked, which is contrary to the Highway Safety Code. The appellant continued to flee despite the officer's orders to stop and was intercepted at 1245 Berri Street. A quantity of 1.4 grams of marijuana was found in his pocket.

Two charges were subsequently laid against him: obstruction (for failure to comply) and possession of marijuana. [ 9 ] Following these events, the appellant entered into a recognizance on March 15, 2013, before Serge Boisvert, J.C.Q. to abstain from possessing or using narcotics or drugs, except in accordance with a medical prescription. [ 10 ] On March 5, 2014, police officers intercepted a vehicle, in which the appellant was seated. He was found to be in possession of eight grams of crack cocaine and five grams of marijuana.

Three new charges were laid against him, namely, failure to comply with a recognizance, simple possession of marijuana, and possession of crack cocaine for the purpose of trafficking. [ 11 ] On March 13, 2014, the appellant pleaded guilty to each of first four charges. For the fifth charge that is the subject of this appeal, he pleaded guilty to a reduced charge of simple possession of crack cocaine. [ 12 ] Before the trial judge, counsel for the Crown and counsel for the appellant made a joint suggestion of twelve months' imprisonment.

However, the appellant personally presented comments to the judge asking that he reduce the suggested sentence.

The trial judge ultimately imposed a sentence of nine months' imprisonment for the offence of simple possession of crack cocaine. [ 13 ] The judge broke down the sentence for the other charges: thirty days' imprisonment to be served concurrently for each of the charges of possession of marijuana and seven days' imprisonment to be served concurrently for each of the charges of obstruction and failure to comply. [ 14 ] The appellant served his term of imprisonment at the Montreal detention centre and was released on September 12, 2014. [ 15 ] Despite the fact that he had already served his term of imprisonment, the appellant sought leave to appeal to this Court on the ground that the sentence did not take into account the collateral consequences arising from the IRPA .

Leave was granted on September 16, 2014. [1] the fresh evidence [ 16 ] A sworn statement and exhibits were submitted with the application for leave to appeal. These documents were subsequently filed in support of the appeal without a motion to adduce fresh evidence being presented to the Court. [ 17 ] In his sworn statement of August 27, 2014, the appellant maintains, inter alia , (

a) that he was born in Nigeria and is a Nigerian citizen; (

b) that his mother came to Canada and obtained refugee status here in 2006; (

c) that on February 23, 2009, she sponsored him and that he thereby became a permanent resident of Canada at the age of sixteen years; (

d) that he was not informed of the impact a nine- month prison sentence would have on his immigration status; and (

e) that the trial judge was not informed of this status and that he therefore did not take it into consideration. The attached exhibits are a confirmation of permanent residence issued in his name by Citizenship and Immigration Canada, as well as a copy of his expired Nigerian passport. [ 18 ] In R. v. Pham [2] (" Pham "), the main issue was whether a sentence otherwise falling within the range of fit sentences can be varied by an appellate court on the basis that the offender would face collateral consequences under the IRPA that were not taken into account by the sentencing judge.

In deciding that an appellate court could intervene in such circumstances according to certain criteria, Wagner, J. (for a unanimous Supreme Court of Canada panel) noted the following with respect to questions of fresh evidence which such appeals could raise: [3] [23] 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. [ 19 ] The fact that such evidence can be adduced in such circumstances does not, however, relieve the appellant from the requirements that must be met to adduce fresh evidence, including those of

section 54 of the Rules of the Court of Appeal of Quebec in Criminal Matters [4] (" Rules ") . Subsections 54(1) and (3) of the Rules are worth noting:

(1) A party seeking leave to adduce freshevidence shall first present a motion and explainin what manner the party has exercised duediligence in obtaining the evidence, in whatrespect it is relevant and credible and, if believed,could be expected to affect the result. …

(3) The Court shall first authorize or refuse thetaking of fresh evidence and determine, ifapplicable, the terms by which relevantdocuments will be exchanged and cross-examinations undertaken. After the evidence hasbeen taken, the Court hearing the appealdetermines its admissibility. 54.

(1) La

partie qui requiert la permission deproduire une nouvelle preuve doit d’abordprésenter une requête indiquant en quoi elle a faitpreuve de diligence raisonnable à l’égard del’obtention de cette preuve et en quoi celle-ci estpertinente, plausible et, si on y ajoute foi,susceptible d’influer sur le résultat. …

(3) Saisie de la requête, la Cour, dans unepremière étape, permet ou refuse que soitrecueillie la preuve proposée en prévoyant, s’il ya lieu, les modalités et l’échéancier pour larecueillir et procéder aux contre-interrogatoires.Saisie du fond de l’appel, the Court décideensuite de l’admissibilité de cette preuve. [20] This is not a mere formality. This rule largely mirrors the principles set out in Palmer v. The Queen:[5]

(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: see McMartin v. The Queen (SCC), [1964]S.C.R. 484.

(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. [21] The due diligence criterion is not an essential prerequisite for admissibility of fresh evidence in criminal matters.[6] Thiscriterion may, nevertheless, carry considerable weight if it appears that the evidence was available at trial and that it was not adduced forstrategic reasons.[7] [22] The absence of a motion under subsection 54(1) of the Rules deprives the Crown of its right to test this fresh evidence.[8]Consequently, fresh evidence should not usually be admitted in the absence of a motion in accordance with the provisions of the Rulesgoverning its adduction. [23] In the case at bar, the appellant did not present a motion to adduce fresh evidence in accordance with the provisions of theRules, but simply served and filed fresh evidence in the form of a sworn statement. [24] During the hearing of the appeal, Crown counsel stated that he did not object to the fresh evidence, thereby waiving the right totest it.

Failure to test fresh evidence does not make it admissible; the Court must nevertheless assess the relevance, credibility andprobative value of the proposed fresh evidence.[9] [25] The fresh evidence consists in establishing the appellant's immigration status as a permanent resident, the circumstances of hisarrival in Canada, and the fact that the trial judge was not informed of the collateral consequences of the sentence under the IRPA.Although the appellant did not meet the due diligence criterion in respect of this fresh evidence, since it was known and available at thetime of his trial, there is no indication that this evidence was not adduced for strategic reasons.

The fresh evidence would have beenrelevant and credible and it could have affected the sentence imposed at trial if it had been adduced. These factors outweigh the failure tomeet the due diligence criterion.[10] analysis 1.

Collateral consequences of the sentence under the IRPA [26] By the combined effect of paragraphs and subsections 36(1)(a), 44(1) and (2), 45(d), 46(1)(c), 48(1), 49(1), 63(3), 64(1) and (2)of the IRPA, a permanent resident sentenced in Canada to a term of imprisonment of more than six months[11] is inadmissible ongrounds of serious criminality and loses his permanent resident status when the removal order made following the inadmissibility comesinto force.

The permanent resident also loses the right to appeal from the removal order to the Immigration Appeal Division under theIRPA, including the right to claim humanitarian and compassionate considerations warranting special relief with respect to his situation. [27] It is relevant to reproduce here paragraph 36(1)(

a) and subsections 64(1) and (2) of the IRPA[12]:

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 ; ... 64 .

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

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1) (

b) or (c). … 64 .

(1) L’appel [à la Division d’appel de l’immigration] ne peut être interjeté par le résident permanent ou l’étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l’étranger, son répondant.

(2) L’interdiction de territoire pour grande criminalité vise, d’une part, l’infraction punie au Canada par un emprisonnement d’au moins six mois et, d’autre part, les faits visés aux alinéas 36(1)

b) et c). ... [ 28 ] It is useful to note that before the coming into force of

section 24 of the Faster Removal of Foreign Criminals Act [13] in 2013, subsection 64(2) of the IRPA provided that the right to appeal from a removal order to the Immigration Appeal Division was possible for persons declared inadmissible on grounds of serious criminality provided that the offence in question was punished by a term of imprisonment of less than two years. [ 29 ] Before the coming into force of

section 24 of the Faster Removal of Foreign Criminals Act , a permanent resident – who was declared inadmissible after having been convicted in Canada of an offence under

an Act of Parliament for which a term of imprisonment of more than six months was imposed – could thus appeal to the Immigration Appeal Division the resulting removal order if the sentence imposed was a term of imprisonment of less than two years. [ 30 ]

Section 24 of the Faster Removal of Foreign Criminals Act has since amended subsection 64(2) of the IRPA so as to limit appeals from a removal order on grounds of serious criminality to cases where the sentence imposed is a term of imprisonment of less than six months. Permanent residents who are convicted in Canada of an offence under

an Act of Parliament for which a term of imprisonment of more than six months is imposed are thus not only declared to be inadmissible, but also barred from appealing their removal order to the Immigration Appeal Division.

This is the situation in which the appellant finds himself. [ 31 ] However, if the sentence is reduced to a term of imprisonment of less than six months, the appellant will no longer be inadmissible since the offence to which he pleaded guilty is punishable by less than 10 years' imprisonment. [14] Indeed, a person convicted of possession of coca as well as its preparations, derivatives, alkaloids and salts is liable to imprisonment for a term not exceeding seven years. [15] The appellant could then remain in Canada without his case being reviewed by the Canadian immigration authorities. 2.

The analytical framework [ 32 ] In Pham , supra , the Supreme Court, per Wagner, J., recently established that collateral immigration consequences can be taken into account in sentencing as factors related to the personal circumstances of the accused in application of the principles of individualization of the sentence and of similar sentences for similar offences as well as the objective of offender rehabilitation. [ 33 ] In Pham , the offender was convicted of possession of marijuana for the purpose of trafficking and was sentenced to two years' imprisonment. Mr.

Pham appealed from this sentence, asking that it be reduced by one day so that he could avoid the collateral consequences of the sentence on his immigration status. [ 34 ] At the time, as today, subsection 36(1) of the IRPA provided that permanent residents were inadmissible on grounds of serious criminality for having been convicted in Canada of an offence under

an Act of Parliament for which a term of imprisonment of more than six months was imposed. The provisions of the IRPA at the time, however, provided for the possibility of an appeal to the Immigration Appeal Division from the removal order that arose from the inadmissibility if the sentence imposed was less than two years imprisonment. Mr. Pham therefore asked that his sentence of two years' imprisonment be reduced by one day so as to allow him to appeal to the Immigration Appeal Division. [ 35 ] In Mr. Pham's case, the Crown conceded that a reduced sentence of two years less a day was still a fit sentence.

The Supreme Court of Canada reduced the sentence in question by one day so that it would fall below the two-year threshold then stipulated by the IRPA to be entitled to appeal the removal order to the Immigration Appeal Division.

[36] In this regard, Wagner J. wrote:[16] [11] In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on theparticular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not,strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to thedegree of responsibility of the offender (s. 718.2 (

a) of the Criminal Code). Their relevance flows from the application of the principlesof individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting inrehabilitating offenders (s. 718 (

d) of the Criminal Code).

Thus, when two possible sentences are both appropriate as regards the gravityof the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’srehabilitation. [12] However, the weight to be given to collateral consequences varies from case to case and should be determined having regard tothe type and seriousness of the offence. ... [13] Therefore, collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance dependson and has to be determined in accordance with the facts of the particular case. [37] Taking into account the collateral consequences under the IRPA must not, however, be allowed to skew the sentencing process.The sentence must be appropriate and must remain proportionate to the gravity of the offence and the degree of responsibility of theoffender:[17] [14] The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender.

Inother words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, providedthat the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. [15] The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order toavoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will. [16] 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 wheredeportation is a risk. … [18] It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range ofotherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility ofthe offender.

Conversely, the closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is thatthe reduced sentence will remain proportionate, and thus reasonable and appropriate. [38] Finally, Wagner, J. ruled on the role of appellate courts in such cases, distinguishing according to whether or not theimmigration consequences were brought to the trial judge's attention. [39] Where the issue of immigration consequences was brought to the trial judge’s attention and the trial judge applied the propersentencing principles but nonetheless decided on a sentence that could have such consequences, appellate courts must then showdeference to the decision to impose the sentence in question.[18] [40] However, where the issue of immigration consequences was not raised before the trial judge, fresh evidence may be presentedto an appellate court, which may then intervene.

"The aim of such an intervention is to determine the appropriate sentence in light of thefacts of the particular case while taking all the relevant factors into account".[19] [41] The manner in which our Court must approach such an appeal where the issue of immigration consequences was not raisedbefore the trial judge was specifically dealt with by our Court per Doyon, J.A. in Guzman v.

R.,[20] a decision that was endorsed byWagner, J., in Pham.[21] [42] In Guzman, the issue was to determine if two-year terms of imprisonment should be varied by reducing them by one day so thatan appeal could be made to the Immigration Appeal Division from a removal order under the IRPA.

The correct approach was expressedas follows by Doyon, J.A. :[22] [TRANSLATION] [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 of theevidence 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 in

light of the fresh evidence . [ 43 ] Thus, where the issue of immigration consequences has not been raised before the trial judge, the Court must take a two-step approach in its analysis. [ 44 ] The first part of the analysis consists in determining whether the individualized sentence imposed at trial is demonstrably unfit for the offender, regardless of the collateral consequences under the IRPA .

Indeed, the framework for intervention established in Pham applies to a sentence that falls within the range of fit sentences. [23] The fresh evidence concerning the collateral effects of the sentence under the IRPA must be considered with respect to a sentence which, to begin with, is not itself demonstrably unfit. It must therefore first be found that the sentence imposed is not itself demonstrably unfit. [ 45 ] In this first part of the analysis, the deference owed to the factual findings of the trial judge is completely appropriate.

In this regard, the principles governing an appellate court’s intervention set forth in R. v.

M. (C.A.) [24] are relevant: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. [25] [ 46 ] The second part of the analysis consists in determining whether the sentence remains fit when the collateral consequences under the IRPA related to the personal circumstances of the offender are taken into account. [ 47 ] It is this two-step analytical framework that the Court of Appeal for Ontario applied in R. v.

Pinas . [26] In that case, Ms. Pinas appealed from a one-year sentence of imprisonment imposed following her guilty plea to a robbery charge on the ground that the trial judge was not informed of the consequences of this sentence on her immigration status. [ 48 ] As a first step, the panel of the Court of Appeal for Ontario hearing the case noted that the sentence imposed on Ms. Pinas was not fit in light of the sentence of six months' imprisonment imposed on her friend and accomplice for the same offence. [27] The Court of Appeal for Ontario therefore concluded that the appropriate sentence for Ms.

Pinas was six months' imprisonment, regardless of the consequences under the IRPA . [ 49 ] In a second step, the Court of Appeal for Ontario determined whether this fit sentence of six months should be reduced, considering that without a reduction, Ms. Pinas would be found inadmissible under the IRPA and would therefore be subject to a removal order from Canada. A one-day reduction was granted on the ground that no negative impact on society would result from this.

In this matter, the Court affirmed the principle it had stated in another case: [28] If a trial judge were to decide that a sentence at or near two years was the appropriate sentence in all of the circumstances for [the offender], the trial judge could look at the deportation consequences for [the offender] of imposing a sentence 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 sentencing process.

If the future prospe cts of an offender in the circumstances of [the offender] can be assisted or improved by imposing a sentence of two years less a day, rather than two years, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence.

While the assistance afforded to someone like [the offender] by the imposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition o f that sentence. [ 50 ] The second part of the analysis, which consists in determining whether the sentence remains fit in light of the collateral consequences under the IRPA , must, however, be circumscribed. This analysis must not lead to circumventing or replacing the administrative and judicial mechanisms set out in the IRPA .

It should also not lead to a parallel system of criminal justice for non-citizens in which the latter would receive lighter sentences than those imposed on Canadian citizens for the same offence committed in similar situations. I will explain. [ 51 ] Sections 112 to 115 of the IRPA provide for a pre-removal risk assessment in most cases where an individual is subject to a removal order, including where the removal arises from being found inadmissible on grounds of serious criminality.

For example, according to the circumstances set out in the IRPA, such an individual can, in most cases, apply to the Minister for protection on the ground that if he or she was sent back to the country of origin, he or she would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, or at risk of torture or cruel and unusual treatment or punishment.

If the facts in support of the application substantiate these risks, the individual may become a "protected person" within the meaning of the IRPA or benefit from a stay of the removal order. [ 52 ] It is therefore not for the courts to substitute themselves for the mechanisms set out in the IRPA so as to proceed to a review of pre-removal risks as part of the sentencing decision following a criminal offence.

On the contrary, the courts must rather assume that the assessment and review mechanisms set out in the IRPA will be effective in preventing the offender from being sent back to a country where he is at risk of persecution.

This is, indeed, a fundamental principle of Canadian immigration law which echoes Canada's international commitments in this respect. [ 53 ] In addition, as Pham stipulates, courts ought not to be imposing inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament’s will on matters of immigration. [29] Such slippage would raise serious concerns about the rule of law and could also bring both the criminal justice system and the Canadian immigration system into public disrepute. [ 54 ] For example, in Guzman v.

R. , [30] our Court refused to reduce two-year prison terms by one day so as to enable the concerned offenders to appeal to the Immigration Appeal Division. The Court was of the opinion that the sentences imposed were fit according to sentencing principles. [ 55 ] In R. v. R.B. , [31] the Court of Appeal for Ontario refused to reduce a five-year sentence of imprisonment to two years less a day on the ground that this would result in an artificial and unfit sentence imposed merely to circumvent the provisions of the IRPA . [ 56 ] Similarly, in R v.

Badhwar , [32] the Court of Appeal for Ontario refused to reduce a thirty-month sentence of imprisonment to

twenty-three months so as to take into account the collateral consequences under the IRPA . As Moldaver, J.A. noted in that case: [33] "No matter how one chooses to come at the issue, the bottom line remains the same. Courts ought not to be imposing inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament’s will on matters of immigration". These words of Moldaver, J.A. were explicitly reiterated by Wagner, J. in Pham . [34] 3.

Applying the analytical framework to this appeal First part: Is the sentence imposed demonstrably unfit to begin with? [ 57 ] The sentence imposed on the appellant resulted in large part from a recommendation of one year of imprisonment made jointly by counsel for the Crown and counsel for the appellant. [35] This recommendation followed a reduction of the charge from possession for the purpose of trafficking to that of simple possession of crack cocaine. [ 58 ] I note, however, that the appellant did not appear to fully agree with this joint recommendation.

During the submissions on sentencing made to the trial judge, counsel for the appellant explained the following: [36] I spoke to my client, Your Honour, this afternoon and I explained to him the position of the Crown and that a suggestion would be made … he told me he quite doesn’t agree with all this but he wanted to plead guilty and he wanted to speak to you.

I said fine. [ 59 ] In fact, the trial judge did not follow the joint recommendation made by counsel, but instead imposed a nine-month sentence of imprisonment. [ 60 ] In the case at bar, the submissions on sentencing were brief in light of the agreement negotiated between counsel for both parties.

In exchange for a guilty plea to all the other charges and insofar as a recommendation for a twelve-month term of imprisonment was to be jointly submitted, the Crown agreed to reduce the initial charge, that of possession of crack cocaine for the purpose of trafficking, to a charge of simple possession. [ 61 ] As Guzman [37] teaches us, this joint recommendation made in the context of a reduced charge cannot be ignored. The joint suggestion and the resulting reduced sentence take into account the fact that the charge in question concerns crack cocaine.

As observed in Guzman , the [TRANSLATION] "dangerousness of cocaine base has been well documented". [38] As our Court again noted in R. v.

Moreira , [39] the [TRANSLATION] "derivative of cocaine known as crack cocaine is very dangerous and offences related to it result in harsh sentences". [ 62 ] The cases dealing with a quantity similar to that in the possession of the appellant (eight grams) are more usually associated with an offence of possession for the purpose of trafficking which, in fact, was the charge initially laid against the appellant before the agreement to reduce the charge and proceed with a joint suggestion. As our Court noted in R. v.

Moreira , sentences for trafficking crack cocaine range from six to fifty-four months. [40] An analysis of the judgments shows that for trafficking or possession for the purpose of trafficking eight grams of crack cocaine, the courts impose harsh sentences of imprisonment starting at about twenty-four months. [41] [ 63 ] Even if we do not take into account the joint suggestion which followed the reduction of the charge, the sentence of nine months' imprisonment imposed for simple possession of eight grams of crack cocaine does not appear demonstrably unfit, especially considering the fact that the appellant had previously entered into a recognizance before a judge to abstain from using narcotics or drugs as a condition of his release pending his trial on other charges related to drug use. [ 64 ] There are few reported decisions concerning sentences applicable to simple possession of crack cocaine.

Offences related to this dangerous drug can, however, lead to significant sentences, even for simple possession. As noted by Clayton C. Ruby: [42] "Offenses involving the freebase form of cocaine, crack, attract a higher range of sentence across the board due to its perceived dangerousness. Mere possession may have severe consequences ". [ 65 ] Thus, in Loyer v.

R. , [43] our Court upheld a judgment of the Court of Quebec, which had imposed a sentence of thirty months' imprisonment for an offence of simple possession of 28 grams of crack cocaine in a prison context by an offender who was already serving a sentence for possession of crack cocaine for the purpose of trafficking. Our Court noted at the time that this was a harsh sentence for the offence in question, but that it was nevertheless appropriate in the circumstance of the case. [ 66 ] Sentences for simple possession of crack cocaine vary widely, but they are often harsh, even for small quantities.

For example: - R. v. Crann : [44] a sentence of six months' imprisonment was imposed for simple possession of 0.29 grams of crack cocaine, and this sentence was consecutive to other sentences for trafficking, for a cumulative total of three years' imprisonment; - R. v. Simmonds : [45] a sentence of five months' imprisonment was imposed for simple possession of 3.95 grams of crack cocaine; - R. v.

Brown : [46] a sentence of six months' imprisonment was imposed for simple possession of 4.47 grams of crack cocaine, a sentence to be served consecutively to another sentence of twenty months' imprisonment for burglary; - R. v. Manhas : [47] a sentence of three months' imprisonment was imposed for simple possession of 6 grams of crack cocaine, to be served concurrently with a one-year prison sentence for a number of trafficking of narcotics offences; - R. v.

Cortez : [48] a sentence of three months' imprisonment was imposed for an offence of simple possession of 6.7 grams of crack cocaine, but it should be noted that this sentence was concurrent with a twenty-month prison term for trafficking. - R. v. Whalen : [49] a sentence of three months' imprisonment was imposed for simple possession of 7 grams of crack cocaine; - R. v. Bennet : [50] a sentence of forty-two months' imprisonment was imposed for simple possession of 56 grams of crack cocaine. [ 67 ] However, where the quantities at issue are very small, the sentences are often more lenient. [51]

[68] In the case at bar, the appellant was in possession of eight grams of crack cocaine.

In light of the cases reviewed above, I cannotconclude that the sentence of nine months' imprisonment is demonstrably unfit, especially when the circumstances of this case are takeninto account: it was a second offence for possession of drugs; the appellant had previously entered into a recognizance before a judge toabstain from possessing or using narcotics or drugs; the appellant has a criminal record for having used an imitation firearm whilecommitting an indictable offence and for having carried a concealed weapon; and the sentence followed a harsher joint recommendationmade in the context of a reduction of the charge at issue.

Second part of the analysis: Does the sentence remain fit if the collateral consequences under the IRPA are taken into account? [69] There is no need here to examine or to take into account the risk to which the appellant would be exposed if he were sent backto his country of origin, Nigeria, as counsel for the appellant has suggested. First, no evidence has been adduced for this purpose.Second, pre-removal risk assessments fall within the purview of the responsible federal minister under the IRPA. It is not for this Court tosubstitute itself for the minister in this matter.

On the contrary, our Court must assume that the appellant will not be removed to hiscountry of origin if there is a risk of persecution or serious injury. [70] We must, rather, determine whether the reduction of the sentence to six months less one day of imprisonment, that is, more thanone third of the otherwise fit sentence of nine months' imprisonment for the offence in question, is justified in light of criminal lawsentencing principles, bearing in mind that we must avoid moving towards a parallel system of criminal justice for non-citizens in whichthe latter would receive lighter sentences than those imposed on Canadian citizens for the same offences committed in similar situations. [71] The evidence in the record, including the appellant's fresh evidence, that would enable us to make this determination is ratherscarce.

In fact, there is no evidence in the record that would allow us to assess the appellant's social situation, his prospects forrehabilitation, or the risk of re-offending. We know little about the appellant's family situation apart from the fact that his mother andsome members of his family reside in Canada. As for his future prospects, we are merely informed that he is attempting to complete highschool and that he enrolled in courses at the Aviron Technical Institute.

We do not know if he successfully completed his courses. [72] In fact, the only submission that the appellant makes to justify the reduction of his sentence by more than a third is that he willbe found inadmissible on grounds of serious criminality.

This is precisely the effect of the IRPA, in which Parliament sets out its firmintention to remove non-citizens who, like the appellant since his arrival in the country, flout criminal laws. [73] There is an absence of evidence in the record establishing that the substantial sentence reduction sought would have a positiveimpact on the fundamental purpose of sentencing, which is to contribute to respect for the law and the maintenance of a just, peacefuland safe society.[52] There is no evidence or demonstration here that the sentence reduction would achieve the objectives ofdenunciation, general and specific deterrence, rehabilitation, reparations for harm done, or promotion of a sense of responsibility in theappellant. [74] The reduction by more than one third of the (otherwise fit) sentence that the appellant requests of this Court would, on thecontrary, have the effect of creating an artificial sentence in order to circumvent Parliament's firm intention to tighten the rules of theIRPA with respect to criminality.

This is precisely what the Supreme Court of Canada cautions us against in Pham. The appeal musttherefore fail. CONCLUSIONS [75] For these reasons, I would allow the appellant to gather and adduce fresh evidence. I would, however, dismiss the appeal. ROBERT M. MAINVILLE, J.A. [12] Emphasis added. [29] R. v. Pham, supra note 2 at para. 17, citing in this regard Moldaver, J.A., in R. v. Badhwar, 2011 ONCA 266, 9 M.V.R. (6th) 163at paras. 42–45. [40] Ibid. at para. 22, relying in this regard on the analysis of Beaudoin, J.A. in R. v. Dorvilus, (QC CA), J.E 90-1357, 60 C.C.C. (3d) 437 (C.A.

Que.). [51] For example, in R. v. Martel, 2008 NWTSC 5, [2006] N.W.T.J. No. 97 (QL), a sentence of thirty-five (35) days' imprisonmentwas imposed for simple possession of 1 gram of crack cocaine. In R. v. Morrison, 74 W.C.B. (2d) 651, [2007] O.J. No. 3210 (QL), thesentence was four (4) days in custody and a fine of $100 for simple possession of approximately 2 grams of crack cocaine; the judgecommented, however, that this was a very light sentence.