R v Dhaliwal, 2020 MBCA 65

Citation: R v Dhaliwal, 2020 MBCA 65 Date: 20200618 Docket: AR19-30-09340 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Lori T. Spivak BETWEEN : ) M. T. Gould and her majesty the queen ) Z. B. Kinahan ) for the Appellant ) (via videoconference) Respondent ) ) N. M.

Cutler ) for the Respondent - and - ) (via videoconference) ) ) Appeal heard and manpreet singh dhaliwal ) Decision pronounced: ) June 11, 2020 ) (Accused) Appellant ) Written reasons: ) June 18, 2020 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R , all appeals are heard remotely by videoconferencing until further notice. mainella JA (for the Court) : [ 1 ] This sentence appeal highlights, once again, the importance of considering collateral immigration consequences in the crafting of a fit sentence.

At the end of the hearing, we announced that the appeal would be allowed with reasons to follow, which are the following. [ 2 ] The accused, a citizen of India and a permanent resident of Canada, pleaded guilty to two counts of fraud and one count of forgery under the Criminal Code (the Code ), as well as one count of tampering with a vehicle identification number (VIN) under The Highway Traffic Act , CCSM c H60 (the HTA ) .

The offences related to a scheme where he falsely reported the theft of a semi- tractor trailer and then, after collecting insurance monies, resold the vehicle using an altered VIN. [ 3 ] At the sentencing hearing, all the judge was told about the accused’s immigration status was that he was a permanent resident who had lived in Canada for over a decade. Both counsel (not present counsel) agreed that the range of sentence for a premeditated fraud of approximately $100,000 was six to nine months’ imprisonment given the accused was 26 years old, previously of good character and had pleaded guilty.

A joint submission was made of a sentence of one day’s imprisonment on each of the criminal offences, taking into account 153 days of pre-sentence custody, which was enhanced to be the equivalent of seven and one-half months’ imprisonment on the basis of roughly one and one-half days’ of credit for every day in pre-sentence custody, together with a restitution order of $85,672.15.

The judge accepted the joint submission and also imposed a fine of $500 on the HTA offence. [ 4 ] After being sentenced, a removal order was issued against the accused pursuant to the Immigration and Refugee Protection Act , SC 2001, c 27 (the IRPA ).

Because the enhanced credit given to his pre-sentence custody increased his sentence to “at least six months” ( IRPA at section 64(2) ), the accused lost his right to appeal the removal order on the basis of humanitarian and compassionate considerations (see the IRPA at sections 63(3) , 64 , 67(1) ; and R v Yare , 2018 MBCA 114 at para 6 ). [ 5 ] As part of the appeal, both parties have moved to introduce further evidence as to the resolution discussions of counsel and the knowledge of the accused as to the plea bargain (see section 683(1) of the Code ).

In our view, the only relevant further evidence that is in the interests of justice to admit on the sentence appeal relates to the collateral immigration consequences the accused suffered after he was sentenced.

[6] While this was a joint submission on sentence, the difficulty here is that it is apparent from the transcript that thejudge was unaware that, by enhancing the pre-sentence custody pursuant to section 719(3.1) of the Code to at least six months, theaccused lost an important right under the IRPA to challenge the removal order despite having personal and familial ties to Canada (see Rv Pham, 2013 SCC 15 at para 24). The calculation of pre-sentence custody in this case resulted in a “serious unintended collateralconsequence” (R v Mai, 2005 BCCA 615 at para 31).

The judge thought the accused would continue to work in the trucking industry inCanada with good job prospects because of his education and experience that would allow him to repay the restitution over the next fiveyears. [7] In R v Ali, 2015 MBCA 64 at para 12, this Court expressed its expectation that, in cases involving non-citizensreceiving sentences that may result in collateral immigration consequences, all counsel have an obligation to raise the issue with thesentencing judge and, failing that, the judge should raise the issue on his or her own motion before imposing sentence.

These obligationsapply equally in cases of joint submissions on sentence, as sentencing on such plea bargains should not be “done in the dark” (R vAnthony-Cook, 2016 SCC 43 at para 54; see also para 59). [8] In Pham, the Supreme Court of Canada emphasised that, while collateral immigration consequences may be a relevantsentencing factor, proportionality remains the fundamental principle (see also Yare at para 21). Courts should not sacrificeproportionality by imposing “inappropriate and artificial sentences in order to avoid collateral consequences which may flow from [theIRPA]” (Pham at para 15).

The Court also explained that the importance of collateral immigration consequences as a relevant sentencingfactor depends in large part on how close or how far a varied sentence would be to an otherwise appropriate sentence (see Pham at para18). [9] Normally the purpose of enhanced credit for pre-sentence custody is to compensate an offender for lost rights or harshconditions (see R v Safarzadeh-Markhali, 2016 SCC 14 at para 8).

The accused is in the odd situation where, if he had been given no, orless, enhanced credit under section 719(3.1) of the Code, his sentence would have had less detrimental immigration consequencesbecause it would not have been “at least six months” for the purposes of

section 64 of the IRPA. [10] We are satisfied that the collateral immigration consequences of the joint submission is a relevant sentencing factor thatneeds to be considered. The otherwise appropriate range of sentence is six to nine months’ imprisonment. The Crown did not requestimprisonment beyond time served, only that restitution be paid. The accused has the desire and ability to repay the restitution owed. There are good prospects for his rehabilitation.

There is no “countervailing negative impact on broader societal interests” to pre-sentence custody being set at a length closer to the general rule set out in section 719(3) of the Code of one day credit for one day served(see R v Hamilton (2004), (ON CA), 186 CCC (3d) 129 at para 158 (Ont CA)). [11] While counsel at the sentencing failed to raise the collateral immigration consequence in their submissions, the judgedecided the fitness of the sentence without considering this relevant factor.

In our view, the resulting failure of the judge to considercollateral immigration consequences when enhancing the pre-sentence custody of 153 days was a material error, necessitatingintervention by this Court (see Pham at para 24; and R v Friesen, 2020 SCC 9 at para 26). [12] In the result, leave to appeal sentence was granted and the appeal was allowed. The sentence was varied to one dayimprisonment on each of the criminal offences, based on credit for six months less one day of pre-sentence custody, concurrent. Theremainder of the sentence remains as originally imposed. JA JA JA