R. v. Ali, 2015 MBCA 64

Citation: R. v. Ali, 2015 MBCA 64 Date: 20150625 Docket: AR14-30-08263 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Alan D. MacInnes Mr. Justice Christopher J. Mainella BETWEEN : ) I. L. Singh HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) R. D.

Lagimodière ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: MAHMUD OSMAN ALI ) June 16, 2015 ) (Accused) Appellant ) Written reasons: ) June 25, 2015 MAINELLA J.A. (for the Court): Introduction [ 1 ] The appellant, a 49-year old permanent resident of Canada, originally from Somalia, with no previous criminal record, a large family and many other compelling personal antecedents, appeals his sentence of nine months’ imprisonment and a three-year driving prohibition resulting from his conviction after trial on two counts of dangerous operation of a motor vehicle causing bodily harm ( s. 249(3) of the Criminal Code ).

Leave to appeal the sentence and judicial interim release pending the appeal, were previously granted by a judge of this court sitting in chambers. [ 2 ] The appellant asks that the imprisonment aspect of his sentence be varied to time served (89 days) due to alleged errors in principle committed by the sentencing judge, or on the basis that, in the circumstances, a nine-month prison sentence is demonstrably unfit. [ 3 ] The appeal was dismissed at the hearing with reasons to follow. These are those reasons.

Background [ 4 ] On a sunny weekday afternoon in June 2012, the appellant entered a busy downtown intersection in Winnipeg against a red light while holding and talking on his mobile phone, behaviour that is contrary to the rules of the road (see The Highway Traffic Act , C.C.S.M., c. H60, ss. 88(7) and 215.1 ). [ 5 ] The appellant did not attempt to stop, and kept talking on his mobile phone as he crossed six lanes of traffic despite other motorists honking their horns.

Another vehicle collided with the appellant’s vehicle causing his vehicle to careen sideways into two pedestrians, knock down a traffic-light pole and end up upside down on the sidewalk. The pedestrians were both knocked unconscious and received significant injuries, which in one case will permanently affect the victim’s mobility. One victim called the incident “the most traumatic and terrifying day of [his] life.” Discussion

[ 6 ] The task of a sentencing judge in a case involving dangerous driving is, for the purposes of s. 718.1 of the Criminal Code , to consider all of the circumstances surrounding the offender’s manner of driving and then assess the magnitude of fault on the continuum (see R. v. Eckert (J.J.) , 2006 MBCA 6 at paras. 15-16 , 201 Man.R. (2d) 175; and R. v. Wallace (B.K.) , 2012 MBCA 54 at para. 50 , 280 Man.R. (2d) 209). In our view, the sentencing judge followed that approach.

She concluded that the appellant’s “complete lack of attention” while driving and failure to be “aware of the risk posed by his manner of driving and [take] steps to avoid it” made his moral blameworthiness “high.” We are not convinced that she erred in principle and we see no basis to interfere with her finding regarding the appellant’s degree of blameworthiness. [ 7 ] We are also not persuaded that a nine-month prison sentence, while towards the high end of the range for a sympathetic first-time offender convicted of dangerous operation of a motor vehicle causing bodily harm, is demonstrably unfit (see R. v.

O’Keefe (G.M.) , 2011 NLCA 41 at paras. 81-82 , 309 Nfld. & P.E.I.R. 253 ; and R. v. Rawn (H.A.-M.) , 2012 ONCA 487 at paras. 41-45 , 294 O.A.C. 261 ) . [ 8 ] Synchronously operating a motor vehicle and a hand-operated electronic device is dangerous and highly blameworthy conduct that can result in significant criminal consequences for otherwise law-abiding motorists. Simply put, mobile phones and other like gadgets do not belong in a driver’s hand. The public interest requires motorists to resist the temptation to talk, text or otherwise become distracted to ensure that our streets do not resemble battlefields.

Cases of dangerous driving, like this one, which result in significant injuries to a third party and are caused by a motorist being purposefully distracted because of use of a hand-operated electronic device, require that the primary sentencing considerations be denunciation and general deterrence even for sympathetic first- time offenders, with good driving records, who, like the appellant, are considered by probation services to be remorseful and a “very low risk to re-offend.” [ 9 ] One final comment.

Nobody at the sentencing hearing raised the issue of the potential immigration consequences of the sentence on the appellant. For the purposes of immigration law, by virtue of the maximum punishment for dangerous driving causing bodily harm and the sentence imposed, also, this was a situation of “serious criminality.” Section 36(1) (

a) of the Immigration and Refugee Protection Act (the IRPA ) provides: 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; [ 10 ] The immigration consequences to criminal proceedings amounting to “serious criminality” under the IRPA are that a permanent resident may be declared inadmissible to Canada, subject to a removal order and ultimately lose their immigration status.

Also, s. 64(2) of the IRPA has the effect that when the term of imprisonment for a case of “serious criminality” is six months or more, the affected permanent resident cannot appeal a removal order to the Immigration Appeal Division of the Immigration and Refugee Board of Canada, thereby limiting their ability to challenge deportation. These immigration laws are designed to “facilitate the removal of permanent residents who have engaged in serious criminality” and to “[emphasize] the obligation of permanent residents to behave lawfully in Canada” ( Medovarski v.

Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration) , 2005 SCC 51 at paras. 9-10 , [2005] 2 S.C.R. 539). [ 11 ] In this case, the failure of anyone to address the immigration consequences to the appellant at his sentencing turns out to be inconsequential.

We were advised that the Canada Border Services Agency (the CBSA) is aware of the appellant’s nine-month sentence and has exercised its discretion under s. 44(2) of the IRPA not to refer the report prepared regarding the appellant’s “serious criminality” to the Immigration Division of the Immigration and Refugee Board of Canada for an admissibility hearing that could have resulted in a removal order against him.

The letter filed with the court from the CBSA in effect advises that while the report setting out the relevant facts of the appellant’s “serious criminality” forms part of his immigration file, no further steps will be taken against him at this time if he is of good behaviour going forward. Nonetheless, his case illustrates an important problem for the criminal justice system. [ 12 ] The “collateral consequences” to a person’s immigration status by a criminal conviction is a relevant factor to be considered in imposing a sentence ( R. v. Pham , 2013 SCC 15 at para. 13 , [2013] 1 S.C.R. 739).

In a multi-cultural society such as Canada, who is, and who is not a citizen, can only be ascertained by direct inquiry. Our expectation, to avoid situations like that which occurred here, where an offender’s immigration status is not considered by the sentencing judge in an appropriate matter, is that, in cases of “serious criminality,” counsel will, as a matter of routine, put an offender’s immigration status before the court as background information as is currently done with respect to an offender’s age or criminal record (see R. v. Martinez-Marte , 2008 BCCA 136 at para. 19 (QL)).

Failing that, the sentencing judge should inquire about an offender’s immigration status in cases of “serious criminality,” on his or her motion. Conclusion [ 13 ] In the result, the appeal is dismissed. J.A.

J.A. J.A.