R. v. Arganda (J.R.), 2011 MBCA 54

Citation: R. v. Arganda (J.R.), 2011 MBCA 54 Date: 20110715 Docket: AR 11-30-07517 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Martin H. Freedman Mr. Justice Alan D. MacInnes BETWEEN : HER MAJESTY THE QUEEN ) B. F. Bonney and ) D. H. Davis Respondent ) for the Appellant ) ) E. A.

Thomson - and - ) for the Respondent ) ) Appeal heard: ) May 16, 2011 JOSELITO RABAYA ARGANDA ) ) Judgment delivered: (Accused) Appellant ) July 15, 2011 MacINNES J.A. 1 The accused was sentenced on October 30, 2007, to two years in jail, less a credit of 18 months for pre-sentence custody, followed by 18 months of supervised probation. The accused completed both the jail sentence and probation some time ago.

Nevertheless, he now appeals that sentence and asks that the custodial portion of the sentence be varied from two years to two years less a day. 2 As will be apparent, the circumstances giving rise to this appeal are highly unusual.

FACTS 3 The accused pled guilty on October 30, 2007, to the following offences: OFFENCE DATE OF OFFENCE Forgery June 30, 2006 Possess Goods Obtained by Crime x 6 July 27, 2006 Possess Counterfeit Money July 27, 2006 Fraud Use of Credit Card Data July 27, 2006 Utter Forged Document August 12-14, 2006 Fail to Comply with Recognizance January 9, 2007 Possess Counterfeit Money January 25, 2007

4 It is common ground that the accused was an integral part of a group involved in a fraudulent cheque-writing/cashing scheme. He continued to be involved throughout the time period above indicated despite having been arrested and released on two occasions during that period. 5 Following his third arrest on January 25, 2007, the accused was detained in custody until his sentencing on October 30, 2007. 6 In the sentence submissions, the sentencing judge was informed that the accused was then 38 years of age, had been born in the Philippines and had been a permanent resident of Canada since February 1995.

No other information was provided as to the accused’s immigration status. 7 The Crown sought a jail sentence of three years, less credit of 18 months for pre-sentence custody. The accused acknowledged that a jail sentence was the appropriate penalty, but sought a sentence in the range of 20 months to just under 24 months, less credit for pre-sentence custody. The sentencing judge imposed the sentence previously indicated. 8 No sentence appeal was initiated by either the accused or the Crown at that time.

After completing both the custodial and probationary aspects of the sentence, the accused became reinvolved in criminal activities. On May 13, 2009, he was sentenced for the offences of possession of property obtained by crime, personation with intent, fail to comply with a probation order and fail to comply with a summons. He was sentenced to 75 days in jail concurrent, after spending 62 days in pre-sentence custody. 9 On April 21, 2010, he was sentenced for possession of a weapon for a dangerous purpose.

He was fined $500 and given one year of unsupervised probation, with conditions. 10 These sentences were fully served by the accused before this sentence appeal was initiated or argued. 11 The accused received a deportation or removal order in December 2010. As will be seen, s. 64(2) of the Immigration and Refugee Protection Act (the Act ) prohibits the accused from appealing that order to the Immigration Appeal Division by reason of the fact that he had received a sentence of two years’ imprisonment, whereas a sentence of less than two years would enable him to enjoy that right of appeal.

It is that fact which (after an extension of time and leave to appeal were granted) has given rise to this sentence appeal. THE LEGISLATION 12 For purposes of this appeal, the relevant provisions of the Act are as follows: Serious criminality 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; . . . . . No appeal for inadmissibility 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. Serious 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 two years. SUBMISSIONS 13 The accused asserts that the sentencing judge failed to consider a relevant factor at the time of sentencing, specifically, his immigration status, and that she erred in imposing a demonstrably unfit sentence. 14 He argues that at the time of sentencing, neither the accused, nor the Crown, nor the sentencing judge was aware of the immigration consequences for the accused of a two-year jail sentence.

He says that immigration consequences are a relevant consideration in sentencing and that a sentence of two years less a day would have done no harm to the sentencing principles relied upon by the sentencing judge while, at the same time, preserving his immigration appeal rights. 15 The accused asserts that appellate courts have reduced sentences when the original sentence carried the unintended result of denying an accused the ability to appeal a deportation order.

He argues that it is appropriate for an appellate court to exercise its powers in an exceptional case to avoid unintended consequences that would be patently unjust and unfair. He submits that had the sentencing judge been aware of the accused’s immigration status, she would have crafted a sentence of two years less a day to permit him to retain

his appeal right in respect of any future deportation order. 16 Lastly, the accused argues that the sentence imposed is harsh and excessive in that it will result in a disproportionately severesanction for him, as compared with other similar offenders in similar circumstances, a sanction that was not intended by the sentencingjudge and would not have occurred had the sentencing judge been aware of the immigration ramifications of such a sentence at the timethe sentence was imposed. 17 The Crown acknowledges that immigration consequences may be a relevant consideration in sentencing offenders. It asserts,however, that the degree of relevance depends on the seriousness of the offence(

s) and all of the sentencing principles. 18 The Crown asserts that deportation consequences have not been considered a significant factor when a serious offence isinvolved and where to impose a lower sentence, by reason of deportation consequences, would result in a sentence not in the range ofappropriate sentences. 19 Here, asserts the Crown, the accused was convicted of 12 offences involving a sophisticated identity-theft ring. The Crownsought a three-year jail sentence based upon its

interpretation of the principles of sentencing, including parity with a co-accused. It saysthe accused’s sentence of two years in jail, followed by 18 months’ probation, was fit and proper in the circumstances and that,notwithstanding any potential immigration consequences, the seriousness of the offences precludes any reduction in sentence. 20 The Crown argues that it is wrong to assert or conclude that the accused faces automatic deportation as a result of his two-year jail sentence.

To do either would ignore the other provisions of the Act which could result in his deportation, regardless of thereduction in sentence sought by the accused. As well, to do either would ignore the processes available to the accused in theimmigration regime to resist deportation, even if his sentence is not reduced. 21 The Crown argues that the risk of deportation exists simply as the result of a conviction for certain offences regardless of thesentence imposed, or as the result of the sentence imposed.

For example, s. 36 of the Act provides that an offender who has beenconvicted of an offence that has a maximum punishment of more than 10 years (which under s. 36 is considered “serious criminality”) issubject to deportation. This is so regardless of the sentence imposed. The accused here committed two such offences.

Section 36 alsoprovides that the risk of deportation exists where one has been convicted of an offence for which a term of imprisonment of more thansix months has been imposed.

This, too, is the case with the accused, whether or not the relief sought on his sentence appeal is granted. 22 In addition, says the Crown, while it is true that s. 64 of the Act removes one avenue of appeal if the sentence is at least twoyears in jail (namely, an appeal to the Immigration Appeal Division), there are several other processes that remain available to resistdeportation, including an appeal to the Minister of Citizenship and Immigration under s. 25 of the Act for an exemption from adeportation order, and an application to the Federal Court of Canada for judicial review from an unsuccessful appeal to the Minister. 23 The point, says the Crown, is that the effect of a two-year sentence is not that the accused will face possible deportation, butis simply that the accused loses his right of appeal to the Immigration Appeal Division in respect of the deportation order against him. 24 The Crown does not admit that had the sentencing judge been aware that the sentence which she imposed would haveremoved such right of appeal, she would have imposed a sentence of two years less one day.

To do so, submits the Crown, would be tospeculate. Rather, the Crown asserts the sentence imposed was a fit and proper sentence and that this court should not interfere with it,particularly in light of the accused’s criminal reinvolvement, evidenced by his subsequent convictions. In fact, the Crown asserts that itwould be wrong for this court to interfere with what was a fit sentence by reducing it even by one day, particularly in light of theaccused’s post-sentence criminal conduct. ANALYSIS 25 It is trite law that an appellate court must show great deference to the decision of a sentencing judge.

It can interfere with asentence in two circumstances only: when the sentence is demonstrably unfit, or when it has been arrived at as a result of an error inprinciple. An error in principle includes failing to consider a relevant factor, taking into account an irrelevant factor, failing to giveappropriate weight to a relevant factor or overemphasizing an appropriate factor. See R. v. Ruizfuentes (H.S.), 2010 MBCA 90 at para.7, 258 Man.R. (2d) 220; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; and R. v.

M. (C.A.), (SCC),[1996] 1 S.C.R. 500. 26 As is evident from the reasons for sentencing, the sentence was one rendered after careful consideration of all of the factsthen known to the sentencing judge. She considered the accused’s involvement in the criminal endeavour which underlay the chargesfor which he was convicted, including his reinvolvement in that criminal endeavour, notwithstanding his arrest and release on twooccasions during its duration. She considered the aggravating and mitigating circumstances, including the fact that, prior to this criminalactivity, the accused had no criminal record.

She also considered the appropriate sentencing principles as they pertained to the accusedin the circumstances of the offences and, as well, the submissions of the Crown and the accused. 27 In my view, the best evidence of the fact that the sentence imposed was considered a fit sentence at the time of imposition isthe fact that the sentence was not appealed by the accused or the Crown within the time required under the Criminal Code (the Code).

Indeed, the sentence became a matter for appeal only when the accused received a deportation order in December 2010, long after thesentence was imposed upon and served by the accused. 28 In this case, both the accused’s immigration status and the consequences for him of a two-year incarceratory sentence wereunknown to the sentencing judge and to counsel for the Crown and for the accused. Thus, neither was brought to the attention of thesentencing judge nor considered by her at the time she imposed sentence. 29 But it is clear that immigration consequences are a relevant factor for consideration in sentencing.

See R. v. Hamilton (2004), (ON CA), 186 C.C.C. (3d) 129 (Ont. C.A.); R. v. Spencer (2004), (ON CA), 186 C.C.C. (3d) 181(Ont. C.A.); R. v. Kanthasamy, 2005 BCCA 135, 195 C.C.C. (3d) 182; and R. v. Wisniewski (R.), 2002 MBCA 93, 166 Man.R. (2d) 73.

30 While I have no doubt that the sentence was fit at the time of its imposition, based upon the facts then known and the factorsthen considered by the sentencing judge, nonetheless, her understandable failure to consider the accused’s immigration status and theconsequences for him of a two-year incarceratory sentence, in my opinion, amounts to error. 31 Further, this inadvertent error led her to impose a sentence which, in the peculiar circumstances of this case, was unfit.

Letme explain. 32 There is judicial precedent both for refusing to interfere with a sentence imposed and for interfering with a sentence imposedin circumstances analogous to those of this case.

I note, however, that in none of the cases referred to the court by counsel, or others thatI have read, was it necessary to consider the effect of post-sentence criminal conduct of the accused, as has been argued by the Crown inthis case. 33 Some of the authorities which support the interference with sentence by an appellate court so as to reduce a sentence imposedwhen that sentence carried an unintended or unknown collateral consequence peculiar to the accused, and of potentially significantadverse effect, are the following: Kanthasamy; R. v. Leila (M.A.), 2008 BCCA 8, 250 B.C.A.C. 117; R. v.

Doradea (B.S.), 2010 BCCA423, 295 B.C.A.C. 175; and R. v. Lacroix (D.) (2003), (ON CA), 172 O.A.C. 147. 34 Kanthasamy was a case with many similarities to that before us. As here, the court there granted an extension of time toappeal and leave to appeal a sentence of two years’ imprisonment where, by reason of s. 64(2) of the Act, that sentence deprived theaccused of his right to appeal a deportation order. There, the court allowed the appeal and varied the sentence to two years less oneday.

Donald J.A., for the court, wrote (at paras. 14-15): 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.

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. I note that unlike Kanthasamy, there was no suggestion before us that the accused’s personal safety would be affected if he weredeported. 35 In his judgment, Donald J.A., at para. 20, referred to Lacroix.

In Lacroix, the accused sought to vary the custodial part of hissentence from two years to two years less a day. In its endorsement decision, the court wrote (at para. 2): The appellant faces a deportation order. Under the Immigration and Refugee Act he can appeal that order only if his sentence is lessthan two years. At the time of sentencing the appellant was unaware of and, therefore, did not make known to the trial judge theimmigration consequences of his sentencing. These consequences are a relevant consideration on sentence.

No disservice to the fitnessof the sentence would be caused by the variation the appellant seeks. In Kanthasamy, Donald J.A. concluded (at para. 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 avoids anunintended consequence of great significance.

I am persuaded by the appellate authority to which I have referred that the adjustment inthe sentence is within our review power and should be exercised to prevent the disproportionate ramifications of a single day ofimprisonment. 36 In my opinion, Donald J.A.’s comments in Kanthasamy are appropriate and instructive to the case before us. 37 While it is indeed speculative to predict whether the sentencing judge here would have imposed a two-year sentence had sheknown of the immigration consequences which might then face the accused, the fact is that there is nothing in her reasons which wouldsuggest that she considered it necessary for the accused to be required to serve penitentiary time as distinct from provincial time.

Indeed,based upon the sentence submissions of counsel, the sentencing judge would have been well aware that whether the sentence imposedwas two years, or two years less a day, the accused would be serving his sentence in a provincial jail by reason of the fact that he woulddoubtless be credited (as he was) with time in custody, thus reducing his actual custodial sentence to one of substantially less thantwo years. 38 The law is clear that in imposing sentence, one must hold true to the sentencing principles which are well known and nowenunciated in the Code.

One cannot be false to the sentencing principles so as to avoid what may be perceived to be unfortunateimmigration ramifications. But, it is well accepted, as it should be, that sentencing is an art, not a science. Proper application of thesentencing principles does not demand that a fit and proper sentence be fixed in units of days, but rather in ranges more broadlydetermined. As that applies to the present case, a difference of one day, that is, a sentence of two years less one day, rather than twoyears, does not make the former an unfit, and the latter a fit, sentence.

Thus, without speculating what the sentencing judge may havedone, there is no doubt that here she could have imposed a sentence of two years less one day without doing any mischief to thesentencing principles. 39 The principle of proportionality is the fundamental or overarching principle of sentencing. Compliance with the principle ofproportionality is essential to the imposition of a fit and proper sentence. See R. v.

Wozny (C.P.), 2010 MBCA 115 at paras. 38-40, 54,262 Man.R. (2d) 75. 40 Here the sentence imposed upon the accused failed, through inadvertence, to take into account a circumstance peculiar to himand relevant for consideration, namely, the immigration status of and the potential immigration consequences peculiar to the accused

here. The failure resulted in a penalty disproportionately severe for the accused when compared with one falling within the acceptablerange for sentences for similar offences committed in similar circumstances by similar offenders.

In my opinion, such a sentence is unfit. 41 In the circumstances here, therefore, I would disagree with the Crown’s assertion that the sentence imposed was fit andwould conclude that, notwithstanding the inadvertent occurrence, the sentence was unfit at the time it was imposed. 42 This being a sentence appeal and having found an error in principle leading to an unfit sentence, we are entitled to look at thecircumstances as they exist at the time of the sentence appeal hearing before us. 43 In R. v.

N.A.S., 2007 MBCA 97 at paras. 27-32, 220 Man.R. (2d) 43, Freedman J.A. wrote with respect to the effect of post-sentence conduct of an accused on a sentence appeal. After making reference to certain cases, including R. v. Shrupka (M.L.),2000 MBCA 112, 153 Man.R. (2d) 61, he wrote (at para. 30): These cases are illustrations of when post-sentence conduct favourable to the accused has been considered by an appellate court inassessing fitness of sentence. Such conduct has usually resulted in an amelioration of the sentence.

I see no reason, in principle, why weshould not take into account negative post-sentence conduct, as to which the facts are not disputed, which may result, on a Crownappeal, in a more severe sentence. In this regard, I think Sentencing (op. cit.), has articulated the principle fairly (at pp. 136-137): 4.50 If there has been a change of circumstance, after the fact of conviction and sentence, the court should exercise its discretion and acton it pursuant to the obligation to assess the fitness of the sentence at the time when the appeal is heard.

Assuming the material isproperly presented to the court, in accordance with established principles as to what will and will not be accepted, there is no statutoryauthority for limiting the court’s inquiry to the time of the original sentence. (Emphasis added) 44 In my view, it is clear that in light of N.A.S., we ought to consider the post-sentence conduct of the accused and decidewhether, by reason of it, the sentence of two years’ incarceration should be imposed by this court.

We must also consider the deportationfactor, given that we are embarking upon a fresh sentencing process. 45 In Hamilton, Doherty J.A., for the court, wrote respecting “Deportation as a consideration on sentencing” (see paras. 154-58). In particular, he wrote (at paras. 157-58): Ms. Mason does not fit exactly within either category of case. She faces the risk of deportation regardless of the sentence imposed uponher. That risk arises from her conviction and there is no evidence that the length or type of sentence imposed will affect the risk ofdeportation.

I also agree with Crown counsel’s submission that the risk of deportation cannot be quantified on this record. It is clear,however, that if Ms. Mason were to receive a sentence of two years and if she was ordered deported, her ability to challenge thatdeportation order would be adversely affected by the length of the sentence. I would not characterize the loss of a potential remedy against a deportation order that might be made a mitigating factor on sentence. Ido think, however, that in a case like Ms.

Mason’s there is room for consideration of the potentially added risk of deportation should thesentence be two years or more. If a trial judge were to decide that a sentence at or near two years was the appropriate sentence in all ofthe circumstances for Ms. Mason, the trial judge could look at the deportation consequences for Ms. Mason of imposing a sentence oftwo 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 thefuture prospects of an offender in the circumstances of Ms.

Mason can be assisted or improved by imposing a sentence of two years lessa 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 Ms. Mason by the imposition of a sentence of two years less a day rather than two yearsmay be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition of thatsentence: see R. v.

Lacroix, (ON CA), [2003] O.J. 2032 (QL) (C.A.) [reported 172 O.A.C. 147]. [emphasis added] 46 In this case, one could argue that there would be a countervailing negative impact on broader societal interests if we were toallow the appeal and impose a lesser sentence than was imposed by the sentencing judge given the post-sentence conduct of the accused,namely, his reinvolvement in criminal activities resulting in his convictions on May 13, 2009, and April 21, 2010, as earlier described(see paras. 8-9). 47 In my view, what this appeal ultimately comes down to is whether the sentence appealed from, which was unfit at the time ofimposition by reason of inadvertent error, should be maintained by reason of, or should be reduced notwithstanding, the post-sentenceconduct of the accused.

In my view, it should not be maintained. Rather, it should be reduced. I reach that conclusion because of theunique or near unique circumstances of this case. 48 As I have concluded, this sentence when imposed was unfit. It lacked proportionality as it pertained to the accused, whereasa sentence of two years less a day now requested by him would not have been offside the sentencing principles if originally imposed, allas I have previously explained. Had a fit sentence been imposed, the issue now giving rise to this appeal would not have arisen.

Thepost-sentence conduct, while clearly of concern, is not, in my opinion, sufficiently serious to result in our maintaining the term of what Ihave concluded was an unfit sentence. This is so particularly where, as here, the accused has long ago served the sentences for his post-sentence conduct, and where to maintain the sentence would, in my opinion, give rise to a disproportionately severe penalty for thisaccused in the circumstances, namely, the loss of his appeal right in respect of the deportation order against him. 49 In R. v.

C. (B.R.), 2010 ONCA 561, 259 C.C.C. (3d) 27, Sharpe J.A. wrote (at para. 14): The sentencing process must retain “a human face”. Hamilton, supra, at para. 158; R. v. Iamkhong, 2009 ONCA 478 at para. 60,83 W.C.B. (2d) 677. Appellate courts appropriately exercise their powers in exceptional cases to avoid unintended penalties andconsequences that would be patently unjust and unfair. The cumulative effect of the factors I have mentioned makes this such acase. The appellant has effectively served his time.

It would be unfair and unjust to leave in place a sentence that would have theunintended effect of condemning the appellant to exile in a country with which he has no meaningful connection.

CONCLUSION 50 While a sentence of two years’ incarceration would not condemn the accused to deportation, it certainly would deprive him of one important opportunity to appeal the deportation order against him. In my view and in all of the circumstances here, such would be an unintended, unjust and unfair consequence. I would therefore allow the accused’s appeal and vary the sentence from two years’ incarceration to that of two years less one day. _________________________ J.A. I agree: _____________ ____________ J.A. I agree: _________________________ J.A.