r v. Daniel, 2021 QCCQ 8005

R. c. Allushi 2021 QCCQ 8005 JP 2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-73-004665-192 DATE: September 1, 2021 BEFORE THE HONOURABLE JUSTICE YVAN POULIN [1] HER MAJESTY THE QUEEN Prosecutor v. Daniel ALLUSHI Accused SENTENCE [ 1 ] On April 1, 2021, Mr. Allushi was found guilty of returning to Canada without the authorization of an officer after a removal order had been enforced ( ss. 52(1) and 124(1)

a) of the Immigration and Refugee Protection Act ). [ 2 ] Mr. Allushi was born in Albania. He first arrived in Canada in 2015 as a stowaway aboard a merchant vessel. He was denied refugee status and was deported to Albania in 2017 after having exhausted all legal remedies. [ 3 ] He returned to Canada in 2019, again as a stowaway, aboard a merchant vessel. He did so without prior authorization of an immigration officer. His second refugee claim was declared ineligible and further legal remedies were denied.

He was convicted in the present file of returning to Canada illegally. [ 4 ] The facts described in the written judgment [2] rendered on April 1, 2021, should be considered to form part of the present judgment. In light of all the evidence, the Court rejected the defence of necessity and determined that all the essential elements of the offence were proven beyond a reasonable doubt. [ 5 ] The Court must now determine the just and appropriate sentence to impose on Mr. Allushi.

I - POSITION OF THE PARTIES [ 6 ] Given all the circumstances and the applicable principles, the Crown submits that a term of imprisonment of 60 days would be a just and appropriate sentence. In support of its submission, the Crown relies on case law [3] in which similar sentences have been imposed. [ 7 ] The Crown distinguishes the facts of the present case from the case of R . v. Suarez [4] , in which the Court of Appeal of Quebec granted a conditional discharge for that type of offence.

Based on the specific circumstances of the case at bar, the Crown argues that a conditional discharge would not be in the public interest, and that the principles of sentencing require that a short sentence of incarceration be imposed on the accused. [ 8 ] Conversely, t he defence argues that the present case does not call for imprisonment. Given the favorable profile of the accused, the defence argues that a conditional discharge would sufficiently serve the interests of justice. Despite the factual differences with the case of Suarez , the defence argues that Mr. Allushi should be given a similar sentence.

In the end, the defence submits that a discharge with a probation order would be in the best interests of the accused without being contrary to the public interest. II - THE ACCUSED [ 9 ] Mr. Allushi is 34 years old. The circumstances that led him to come to Canada illegally are described in more detail in the

judgment of April 1, 2021. Without repeating the facts in their entirety, it should be noted that Mr. Allushi was living in Germany when he decided to return to Canada illegally. [ 10 ] At the time of the offence, he knew very well that he was prohibited from returning to Canada. Due to a conflict with members of his family living in Albania, he had then been living in Germany for several months. [ 11 ] It should be noted that there was no danger for his life in Germany and that he was never told by the German authorities that he had to definitely leave the country.

Moreover, the record shows that he did not take any legal steps to try to obtain a permanent or temporary status in Germany. [ 12 ] Regarding his return to Canada, it was shown at trial that Mr. Allushi took no steps to obtain prior authorization to return to Canada. Even though he knew he was not legally allowed to come back, he testified that he still “took the risk” to do it.

He stated that it was “more convenient” to come back to Canada as a stowaway rather than try to do it legally. [ 13 ] Despite the clear terms of the deportation order, he neither asked for a visa nor contacted any immigration officer to obtain prior authorization. It is clear from the record that he wanted to circumvent the Canadian immigration rules and procedures in order to gain easier access to Canada. [ 14 ] While in Germany, Mr. Allushi checked the internet for details about ships going to Canada.

Acting on his own, he hatched a plan to board the ship without attracting the attention of crew members and port authorities. Before getting on the boat, he agreed to have a friend join his plan to immigrate illegally to Canada. [ 15 ] The two men boarded the ship unnoticed, but their presence was detected by crew members a few days after their departure. On May 10, 2019, they were turned over to the immigration authorities upon their arrival in Canada. [ 16 ] The day of his arrival, Mr.

Allushi’s refugee protection claim was determined to be ineligible pursuant to subsection 100(1) of the Immigration and Refugee Protection Act ( “ IRPA ” ). He later applied for a Pre-Removal Risk Assessment (“ PRRA ”) pursuant to

section 112 of the Act, which was denied on July 24, 2019. [ 17 ] Mr. Allushi has exhausted all legal remedies in connection with his immigration case. He has no status in Canada and will be deported regardless of the sentence imposed. He is the subject of a removal order dated May 10, 2019, which has not yet been enforced due to the present criminal case. He is a “foreign national” within the meaning of the IRPA and the removal order against him will be enforced once his sentence is completed. [ 18 ] Mr. Allushi has no criminal record.

In October 2020, while awaiting his criminal trial in the case at bar, he married a young woman living in Montreal. He made this decision despite the removal order against him. His new wife is a Canadian citizen of Albanian origin. She supervises students in a primary school during lunch hours. [ 19 ] At the hearing on sentencing, she testified about her relationship with Mr. Allushi. While indicating that she would sponsor him if she could, she stated that she herself fairly depends on Mr. Allushi’s support. She said that she met him through a friend and that their relationship developed quickly.

She knew that he had no status in Canada and he told her at first that he was here to work. [ 20 ] She testified that she later learned that he came to Canada illegally but she did not ask for details or specifics about it. To use her own words, she “ didn’t bother to ask him questions about it ”. When asked by counsel if she would still have married him had she known that he would in any event be removed from Canada, she said yes. [ 21 ] It must be noted that immigration authorities have allowed Mr. Allushi to work while awaiting the outcome of the criminal case [5] .

It must be emphasized that his work permit does not give him any status in Canada [6] . The record shows that he works full time in the construction industry. [ 22 ] As regards to immigration consequences for foreign nationals, it is clear that Mr. Allushi will be prohibited from returning to Canada for life unless authorized by an officer. This consequence is not the result of his criminal conviction but rather of the execution of the removal order issued in May 2019: see s. 52 of the IPRA . [ 23 ] Moreover, as a result of having been convicted in Canada of a criminal offence, Mr.

Allushi will also be considered “ inadmissible on grounds of criminality ” pursuant to subsection 36(2) of the IRPA . [ 24 ] On this point, the parties agree that in the event of incarceration, the combined effect of the IRPA [7] and the Criminal Records Act [8] will result in Mr. Allushi having to wait at least 10 years before being able to initiate steps to try to obtain authorization to return to Canada, a consequence that would not apply in the event of a discharge [9] .

III - ANALYSIS The principles [ 25 ] The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code . They are: the denunciation of unlawful conduct; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; repair of harm done to the victims or the community; promoting a sense of responsibility in offenders; and acknowledgement of the harm done. [ 26 ]

Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It requires that a sentence be similar to those imposed on similar offenders in similar circumstances. It also requires consideration of all available sanctions, other than imprisonment, that may be appropriate in the circumstances and

consistent with the purpose and principles of sentencing. [ 27 ] It must be emphasized that the determination of a fit sentence is a fact-specific exercise. The facts of the offence, the consequences, the circumstances of the accused and his moral blameworthiness are all factors that the Court must consider.

In the words of the Supreme Court: “ the determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation ” [10] . [ 28 ] While the maximum sentence for this offence is two years of imprisonment and/or a fine of 50 000$, the IRPA does not provide for a minimum penalty. The possibility of granting a discharge has been left open by Parliament.

In appropriate cases, Courts can consequently grant a discharge if this outcome is in the best interests of the accused and not contrary to the public interest [11] . [ 29 ] Many examples of sentences imposed for returning illegally to Canada can be found in the jurisprudence. Whereas short incarceration terms are regularly imposed to offenders with favorable profiles, the Court of Appeal of Quebec has recently accepted to grant a conditional discharge in a case where the situation of the accused was described as being a “very particular”. [ 30 ] In Suarez v.

R . [12] , the two accused were originally from Colombia. They returned illegally to Canada after having taken several steps to comply with the immigration rules and procedures. They pleaded guilty and were sentenced to 45 days of imprisonment.

The Court of Appeal reversed this decision and granted a conditional discharge. [ 31 ] At paragraph 15, the Court of Appeal described the situation of the accused in the following manner: [15] The appellants’ situation is very particular in that they sought to claim refugee protection by going to the border in a completely lawful manner, resulting in the outcome that we know. They subsequently tried to obtain legal services in order to appeal the decision.

They did so first in the Buffalo area, where they spent four days doing so, and then in New York, where they spent three months looking for the necessary information to challenge the correctness of the decision made against them. Their financial situation became very precarious and they lived in unhygienic homeless shelters.

Out of desperation, they decided to return to Canada a few months before the end of their period of inadmissibility, in order to try to have the decision changed. [ 32 ] Moreover, the Court of Appeal highlighted the favorable presentence reports and emphasized the significant psychological consequences suffered by the accused. In the end, the Court held that the trial judge should not have excluded the possibility of a conditional discharge from the outset. In the specific factual context of this case, the Court reversed the sentence of incarceration and granted a conditional discharge. [ 33 ] In R . v.

Daskalov [13] , the Court of Appeal for British Colombia overturned a conditional discharge that was granted by a trial judge to a citizen of Bulgaria that entered a guilty plea for an offence under the IRPA in the context of an illegal entry into Canada.

The Court of Appeal held that the judge erred in principle by considering, as a determining factor, that a sentence of incarceration would prevent the accused from meeting the criteria for future admissibility into Canada. [ 34 ] After reviewing the case law and the applicable principles as regards to immigration consequences [14] , the Court held, at paragraph 26: [26] […] In my view, the sentencing judge erred in principle by considering an irrelevant consideration, namely that a conviction for an indictable offence would prevent Mr.

Daskalov from meeting the criteria for future admissibility into Canada, when he decided to grant Mr. Daskalov a conditional discharge. [ 35 ] At paragraphs 28 and 31, the Court added: [28] Therefore, while immigration consequences may be an appropriate consideration in crafting a fit sentence for an offender who has been lawfully admitted into Canada, they are not, in my view, a relevant consideration for an offender who is without legal status in the country and subject to a removal order.

A sentence that falls markedly outside the range of fit sentences in order to maintain the ability of the offender to be admitted into Canada at some future time is an error in principle since it is an irrelevant consideration that attempts to circumvent a legislated policy decision that has been implemented by Parliament. […] [31] In

summary, the immigration considerations in this case are distinguishable from those that have been considered relevant in circumstances involving the loss of a right to remain in Canada by an offender having legal status in the country. Mr. Daskalov’s lack of legal status in Canada at the time of the offence does not give him a legal right to enter or remain in Canada. A sentence that is crafted in such a way that permits him from avoiding the effect of s. 36(2) (

a) of IRPA , in my view, amounts to an error in principle . (Emphasis added) [ 36 ] Given all the circumstances of the case, the Court allowed the appeal and varied the sentence to an effective term of imprisonment of 4 months. [ 37 ] Furthermore, a number of decisions were rendered by first instance courts [15] for returning illegally to Canada. For example: ➢ In R . c. Naser [16] , the accused was sentenced to a 60-day jail term after pleading guilty on two counts pertaining to returning illegally to Canada.

Despite the humanitarian grounds put forward by the accused, the Court emphasized the factors of denunciation and deterrence and concluded that the submission of the defence for a suspended sentence was too lenient; ➢ Similarly, in R . c. David [17] , the Court concluded that a sentence of 60 days of imprisonment was warranted in the case of a 23 year- old accused with no prior convictions that pleaded guilty to returning illegally to Canada. After reviewing the applicable case law and principles, the Court held that the submission of the defence for a conditional discharge was too lenient;

➢ In R . c. Dias Costa de Jesus [18] , the accused pleaded guilty to returning illegally to Canada. He was sentenced to a 9-month jail term. The record showed that he had been deported from Canada on several occasions. Moreover, he had a few prior convictions, including one in a similar matter; ➢ In R . v. Rojo Beltran [19] , a 5-month jail term was imposed by the Provincial Court of Alberta after the accused entered a guilty plea. It was his third illegal return to Canada. [ 38 ] It is understood that sentencing ranges “ are primarily guidelines, and not hard and fast rules ” [20] .

Moreover, it bears repeating that proportionality must always guide judges in determining the sentence that is fair and appropriate in any given case. [ 39 ] The fact that denunciation and deterrence should sometimes be emphasized does not mean that the other factors must completely be ignored [21] . [ 40 ] In the end, a sentence should always be individualized, proportionate to the gravity of the offence and the degree of responsibility of the offender, and consistent with the sentencing objectives already mentioned.

The appropriate sentence [ 41 ] In the case at bar, the accused knowingly and wilfully took the risk to return to Canada illegally. Although his family situation in Albania was difficult, there was no danger or peril for his life or security when he decided, while living in Germany, to commit the offence. [ 42 ] The record shows that Mr. Allushi took no steps to obtain prior authorization to return to Canada. It is clear from the evidence that he wanted to circumvent the Canadian immigration rules and procedures in order to gain easier access to our country. [ 43 ] Despite the terms of the deportation order, Mr.

Allushi neither asked for a visa nor contacted any immigration officer to obtain prior authorization. In his mind, it was simply “ more convenient ” to come back to Canada as a stowaway rather than try to do it legally. [ 44 ] In light of all of the evidence, it is clear that the factual context of the present case can easily be distinguished from that of Suarez.

In the Court’s opinion, the distinctions between the two cases relate not only to the circumstances of the offence, but also to the personal and psychological situations of the accused. [ 45 ] It is true that immigration consequences may be a relevant consideration in crafting a fit sentence. However, in R . v.

Pham [22] , at paragraph 15, the Supreme Court of Canada held that: [15] 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. [ 46 ] In the case at bar, the Court takes into account, as an aggravating factor, the fact that the offence was planned and premeditated. With regards to mitigating factors, the Court considers the fact that Mr.

Allushi has no criminal record; the difficult situation he was living in Albania; and his personal profile and circumstances, including the fact that he is supported by his new wife and that he was working while awaiting the outcome of the criminal case. [ 47 ] After considering all the circumstances, the Court concludes that the position put forward by the defence is too lenient. Although Parliament has left open the possibility of granting a discharge for this type of offence, it would not be appropriate to do so here.

In light of all the evidence and case law, a sentence of this nature would not be proportionate to the gravity of the offence and the specific degree of responsibility of Mr.

Allushi. [ 48 ] Having regard to the appropriate weight to be given to the above mentioned factors, the Court is of the opinion that a short jail term is the fit, just and appropriate sentence in the present case, as it takes into account all the mitigating and aggravating factors, and adequately strikes a balance between the sentencing principles that apply in such cases. [ 49 ] For all these reasons, given all the circumstances, the case law and the applicable principles, Mr.

Allushi is hereby sentenced to a term of imprisonment of 30 days . _____________________________ HONOURABLE YVAN POULIN Mariana Ramos Vidal For the prosecution Me Sharon Sandiford For the accused Dates of hearing: July 13 and 14, 2021