R v Norris, 2019 MBCA 101

Citation: R v Norris, 2019 MBCA 101 Date: 20191001 Docket: AR19-30-09244 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice William J. Burnett Madam Justice Janice L. leMaistre Madam Justice Karen I. Simonsen BETWEEN : HER MAJESTY THE QUEEN ) ) M. A. Zurbuchen ) for the Appellant Respondent ) ) B. M. P. Moen and - and - ) J. W. Avey ) for the Respondent JAMES FREEMAN NORRIS ) ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) October 1, 2019 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ) . LEMAISTRE JA (for the Court): [ 1 ] The accused seeks leave to appeal and, if granted, appeals his combined sentence of imprisonment of two years less a day for five counts of sexual assault.

He also seeks to admit fresh evidence on the appeal. [ 2 ] The accused was sentenced consecutively on each of the five counts of sexual assault as follows: Sexual assault on L.D. four months (count 1) Sexual assault on W.T. five months (count 2) Sexual assault on L.H. four months less a day (count 3) Sexual assault on A.B. six months (count 4) Sexual assault on L.R. five months (count 5) [ 3 ] The accused is a permanent resident of Canada. The six-month sentence on count 4 took away his right to appeal a finding of inadmissibility (see

section 64 of the Immigration and Refugee Protection Act , SC 2001, c 27 (the Act )). While he does not dispute the total sentence imposed, the accused seeks to reduce his sentence on count 4 by one day to six months less a day and increase his sentence on count 3 by one day to four months in order to preserve his right of appeal. [ 4 ] The sentencing judge imposed the sentence based on a joint recommendation resulting from a plea bargain.

During submissions, she was told that the accused would likely face a removal order upon being sentenced to two years less a day and that she could do nothing to affect this consequence. She was not told that the accused’s right of appeal under the Act would be preserved if she imposed consecutive sentences less than six months, regardless of the total combined sentence. [ 5 ] The accused seeks to adduce as fresh evidence on appeal his affidavit, as well as affidavits from his counsel at the

sentencing hearing and his immigration counsel. The affidavits explain that neither the accused nor his lawyers were aware that thesentence would be broken down into individual sentences for each count or that the sentence could be imposed in a manner that wouldpreserve his right to appeal a removal order. [6] We are satisfied that it is in the interests of justice to admit the fresh evidence (see Palmer v The Queen, (SCC), [1980] 1 SCR 759 at 775; and R v Richard (DR) et al, 2013 MBCA 105 at para 199).

While the Crown expresses concernabout counsel’s failure to fully advise the sentencing judge about the immigration consequences, we agree with the accused that theoversight is understandable in the circumstances of this case. [7] In terms of the merits of the appeal, in our view, appellate intervention is justified because the collateral immigrationconsequences of the sentence were not fully explained to the sentencing judge and, therefore, she decided the fitness of the sentencewithout considering a relevant factor (see R v Pham, 2013 SCC 15 at para 24).

Moreover, we are satisfied that had the sentencing judgeknown about the consequences of imposing a six-month sentence, she would have adjusted the individual sentences as suggested by theaccused to improve his future prospects without any countervailing negative impact on broader societal interests (see R v Hamilton(2004), (ON CA), 186 CCC (3d) 129 at para 158 (Ont CA)). [8] While the offences in question are serious, involved an abuse of trust and significantly impacted the complainants,reducing the sentence on count 4 by one day with a corresponding increase to the sentence on count 3 does not, in our view, render thesentence unfit nor does it result in an inappropriate or artificial sentence intended to avoid collateral consequences (see Pham at paras 13-15).

Ultimately, the combined sentence of two years less a day remains the same. [9] In the result, leave to appeal is granted, the appeal is allowed and the accused’s sentence is varied to four months oncount 3 and six months less a day on count 4. The probation order and the ancillary orders imposed by the sentencing judge will remainthe same. JA JA JA