R. v. Chandran, 2022 NSSC 250

SUPREME COURT OF Nova Scotia Citation: R. v. Chandran , 2022 NSSC 250 Date: 20220817 Docket: Hfx No. 510332 Registry: Halifax Between: Her Majesty the Queen v. Jithin Chandran Decision Judge: The Honourable Justice Denise Boudreau Heard: Oral Decision: Written Release of Oral Decision: May 2, 2022 August 17, 2022, in Halifax, Nova Scotia September 12, 2022 Counsel: William Mathers, for the Applicant Josh Nodelman, for the Respondent By the Court (Orally): [ 1 ] This is an appeal decision in the matter of Her Majesty the Queen v. Jithin Chandran (Hfx No. 510332).

I should note that the record refers to the defendant as Jithin Chandrasekharan-Pill; I have been advised that this is an error, and that the defendant’s correct family name is Chandran. [ 2 ] The matter was heard jointly with the appeal in Her Majesty the Queen v. Anas Ankur (Hfx No. 507817). Both matters involve appeals brought from sentencing decisions of the Provincial Court. In the case of Mr. Chandran, it was a decision of Provincial Court Judge Cromwell (as she then was).

The issues in relation to both cases were similar and the grounds of appeal are the same. [ 3 ] By way of introduction, both individuals were charged with offences related to impaired driving. Mr. Ankur under the previous sections (253 and onward) of the Criminal Code ; Mr. Chandran under the new sections of the Code (320 and onward). Both individuals pled guilty before the Provincial Court.

Both were considered first offenders as defined by the sections. [ 4 ] In both the new and the old versions of these sections in the Code , there is a mandatory minimum sentence; in the case of a first offender, the minimum sentence is a fine. The difficulty for both Mr. Ankur and Mr. Chandran was not the mandatory fine, but the fact that because there was a mandatory minimum, a discharge was unavailable and, therefore, a criminal record was unavoidable in the circumstances.

[ 5 ] For these two individuals, a criminal record is very likely to have serious consequences. They are both foreign nationals, from India, and it appears that a criminal record will have significant consequences on their ability to remain in Canada. [ 6 ] When they came before the Provincial Court for sentencing, both individuals requested that the court find that the mandatory minimums in these Code sections violated

section 12 of the Charter as it constituted cruel and unusual punishment in their cases. Mr. Ankur’s case came first. Mr. Ankur’s argument was accepted and the court refused to apply the mandatory minimum in his case. He was granted a conditional discharge. [ 7 ] The court in Mr. Chandran’s matter took note of, and relied upon, the Ankur decision to also refuse to apply the mandatory minimum in his case. Mr. Chandran was also granted a discharge. [ 8 ] The Crown appeals from both of these decisions.

Facts [ 9 ] On August 17, 2019, at approximately 2:23 a.m., the defendant was identified to police as a person who had been drinking and who was in his vehicle. Police approached the defendant and during their interactions with him, noted him to be slurring his words, that he had difficulty keeping his balance, and that he smelled of alcohol. He was given the breath demand, and he became belligerent and refused several times. He was identified as Mr. Chandran. [ 10 ] Mr. Chandran was charged pursuant to the new sections of the Criminal Code : impaired driving pursuant to

section 320.14(1) (a), and refusal of the breathalyzer (

section 320.15(1) ). [ 11 ] The issue of the mandatory minimum in the Code

section was a concern for Mr. Chandran from the very beginning, due to the anticipated immigration issues that would result. He and his counsel explored a number of options but discovered that none were possible or acceptable to the Crown. Mr. Chandran then entered a guilty plea to the impaired driving charge. [ 12 ] Mr. Chandran argued before the sentencing judge that the mandatory minimum in his case offended

section 12 of the Charter , as it constituted cruel and unusual punishment. He noted that due to Canada's immigration laws and policies, in his understanding, a criminal conviction in his case would result in deportation. [ 13 ] During the time that Mr. Chandran’s matter was being argued, the decision in Mr. Ankur’s case was released. The Ankur decision was then the subject of additional submissions to the court in Chandran. [ 14 ] The court’s decision in Mr. Chandran’s case was released October 28, 2021. Similarly to Mr. Ankur, the sentencing judge found that the mandatory minimum violated

section 12 of the Charter because of the immigration difficulties that it would cause Mr. Chandran. The sentencing judge refused to apply the mandatory minimum as a result, and Mr. Chandran was granted a conditional discharge (as had Mr. Ankur). [ 15 ] The sentencing judge in Mr. Chandran’s case undertook a very similar exercise that was undertaken in Ankur. She also concluded that, absent the mandatory minimum, an appropriate sentence for Mr.

Chandran would have been a discharge, and that the mandatory minimum was grossly disproportionate to him in the circumstances. [ 16 ] Firstly, as to the appropriateness of a discharge for Mr. Chandran, the court noted, at pages 144 and 145: Discharges are available for other serious offences such as sexual assault and assault causing bodily harm. As well, other provinces in Canada, including British Columbia and Alberta, have moved towards decriminalizing first-time impaired driving defences.

A reasonable member of the public would question, based on the specific circumstances of the offender and the circumstances of the offence, why Mr. Chandran is also not eligible for discharge. [ 17 ] As to the effects of a criminal record on Mr. Chandran, the court noted, from pages 128 and 129 of the decision: The certainty here is that, if a conviction is entered against Mr. Chandran, he is inadmissible to Canada and a report, pursuant to section 44(1) of the IRPA will likely be completed by an officer and that report will be sent to the Minister.

This is the first step in the process towards deportation, although deportation is not guaranteed. … [ 18 ] And at page 145: I find the collateral immigration consequences to Mr. Chandran would amount to cruel and unusual punishment. A properly informed member of the public would find the mandatory minimum penalty so excessive to outrage standards of decency, despite the comprehensive immigration regime. I find that allowing a conditional discharge would not frustrate and circumvent immigration laws in Canada. [ 19 ] I must start by saying that in the case of Mr.

Chandran, the evidentiary portion of the record was a bit more difficult to parse out than in the Ankur case. As far as I can tell, there was little to no formal evidence put before the court about the result a criminal conviction would actually have on Mr. Chandran. I say “as far as I can tell” because the record is not entirely clear about how some information came to be presented to (and possibly relied upon) by the court. [ 20 ] For example, in the case of Mr. Chandran there was no expert witness presented to the court, as there had been in Mr. Ankur’s case.

However, the Chandran decision notes the expert evidence from Ankur, and quotes from it, and (it appears) relies upon it. This may have been done by consent, but that is not clear to me. [ 21 ] At his sentencing hearing, Mr. Chandran spoke (unsworn) to the court and advised of his belief that, as a foreign national, a criminal conviction would result in his removal from Canada. It also appears that representations were made to the sentencing judge

about this issue during submissions, including information received from a CBSA representative about the process. [22] The decision notes all of these sources of information: Mr. Chandran’s comments to the court; the evidence of Mr. Buchert inthe Ankur decision; the immigration procedures in the Federal Court of Appeal case Revell v Canada, 2019 FCA 262; and also thefurther information that had been provided by the CBSA officer.

It is not clear which of these factors were relied upon, or if they allwere, and to what extent. [23] In any event, and leaving this issue aside for the moment, the sentencing judge concluded and confirmed that the aspect of themandatory minimum punishment in the Criminal Code

section 320.19 that she considered “cruel and unusual” in the case of Mr.Chandran, was this “risk of deportation” to him that was “not guaranteed” (page 129). [24] This brings me to the appeal before me. The Crown advanced the following grounds of appeal (the same as in Ankur): 1. The Provincial Court Judge erred in law in ruling that the mandatory minimum sentence prescribed by s. 320.19 of the Criminal Codeconstitutes a violation of s. 12 of the Charter. 2. The Provincial Court Judge erred in principle in determining that the appropriate sentence was a conditional discharge.

Standard of review [25] The parties agree that the standard of review in relation to a decision relating to the constitutional validity of legislation iscorrectness. The standard of review in relation to a sentencing decision is reasonableness; appellate intervention is warranted only if thejudge committed an error in principle that impacted the sentence, or the sentence is demonstrably unfit (R. v. Alcorn, 2021 NSCA 75; R.v. Hillbach, 2020 ABCA 332). [26] I will start with the first ground of appeal, whether the mandatory minimum in the case of Mr. Chandran violates

section

Section 12 [27]

Section 12 of the Charter prohibits cruel and unusual punishment. The onus is upon the applicant to establish a breach of thissection. It is settled law that in order to constitute cruel and unusual punishment, a sentence must be grossly disproportionate to thepunishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender. The sentence must"outrage standards of decency" to a point that Canadians would find the punishment abhorrent or intolerable: R. v. Nur, 2015 SCC 15; R.v. Lloyd , 2016 SCC 13. [28] The Supreme Court of Canada has also confirmed that a finding of a breach of

section 12 would be a rare and unique occasion;the test is very properly stringent and demanding (Steele v. Mountain Institution, (SCC), [1990] 2 SCR 1385). [29] The Nur case tells us that a proper

section 12 analysis is to be broken down into two steps: [46] … First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives andprinciples of sentencing in the Criminal Code. Then, the court must ask whether the mandatory minimum requires the judge to impose asentence that is grossly disproportionate to the fit and proportionate sentence. … [30] In terms of the second step, a sentence might be grossly disproportionate either (

a) on the particular offender before the court;or (

b) on the basis that it is reasonably foreseeable that it will impose cruel and unusual punishment on other persons. [31] Although in theory, a breach of

section 12 would next require an assessment pursuant to

section 1 of the Charter; practically,however, a

section 12 breach is such a high test that it would be difficult to imagine such a situation being salvaged by

section 1. [32] I start by saying that, in my view, the decision of the sentencing judge in Chandran is flawed, for the very same reasons as inAnkur. While the sentencing judge did undertake the two steps described in Nur, I find that she committed errors in her analysis of bothsteps. [33] Firstly, in terms of the appropriate sentence for Mr. Chandran, it is clear that a discharge was not within the appropriate rangeof sentence for this offence and for this offender. [34] Impaired driving is an offence that has seen a significant evolution in the past number of decades.

It is very clear that Canadiansociety today, as well as Parliament (as can be seen with evolving legislation), understands this offence to be very serious, and to be amajor contributor to death and serious injury all over this country. [35] Penalties for these offences have continually increased over time, in an effort to deter and denounce this behaviour. Parliamenthas repeatedly spoken through legislation as to how seriously they wish this offence to be treated.

It is notable that the one possibility fordischarge that existed (for curative purposes in the case of chronic alcohol addiction), has recently been removed. [36] Mr. Chandran had pled guilty to the offence and he was a first time offender. Nonetheless, it appears that the sentencing judgedisregarded the prevailing body of authority in relation to drinking and driving offences; in particular, that discharges for impaireddriving offences are not considered to be in the public interest, given the importance of the statutory scheme that has been created tocombat this offence.

The caselaw is clear that these offences require clear deterrence and denunciation and that, at the very least, aconviction and fine are necessary components of any sentence. [37] For example, it is often noted in the caselaw and literature that, as opposed to other offences, impaired driving is an offencethat is often committed by otherwise law-abiding persons. It seems to me that, on the basis of what was before the court at the time ofsentencing, a discharge should not have been considered within a reasonable range of sentences for Mr. Chandran.

[ 38 ] In relation to the appropriateness of a discharge for Mr. Chandran, the sentencing judge seemed to have formed the impression that impaired driving offences were not considered serious, which is a concept entirely unsupported by common law and/or statute. As noted hereinabove, the sentencing judge made reference to certain Western provinces moving to “decriminalize” impaired driving offences. Provinces lack jurisdiction to do so.

I do not know what was before the sentencing judge for her to come to those misunderstandings, but they appear to have been relied upon. [ 39 ] It is clear that in finding that a discharge was an appropriate sentence for Mr. Chandran, the specific circumstance that made the difference for the sentencing judge was the immigration consequence Mr. Chandran would face if a conviction was entered. This is what differentiated him from every other accused. In other words, the assessment by the sentencing judge of the suitability of a discharge for Mr.

Chandran was heavily, or even entirely, predicated on the collateral consequences to him of any other sentence. [ 40 ] Sentencing authorities support the principle that collateral consequences, such as immigration consequences, can be considered by a sentencing judge in crafting an appropriate sentence. However, in my view, the court in Mr. Chandran’s case went much further than that. It seems apparent to me that the sentencing judge used these collateral immigration consequences, to craft an inappropriate sentence for Mr. Chandran. [ 41 ] In R. v.

Pham , 2013 SCC 15 , at paragraphs 15 and 16 : [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. [16] These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation.

Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk. [ 42 ] It seems clear that the sentencing judge was of the view that even the “risk of” deportation of Mr. Chandran, as a result of this offence, was entirely excessive and inappropriate. As a consequence, she fashioned a sentence that specifically avoided it. [ 43 ] Immigration is the purview of the federal government, not the provincial court.

The legislation it enacts for the proper management of immigration must be assumed to be Parliament’s will and, by extension, the Canadian populace’s will. The process in the Immigration Act exists for a reason. [ 44 ] I note with approval the comments of my colleague Justice Campbell in R. v. Nagendran , 2022 NSSC 14 (paragraphs 19 and 20 ): [19] …[T]he court should not place its finger on the scales of the immigration process. Sentencing should not be adjusted to allow the judge in the criminal sentencing process to assume de facto jurisdiction over immigration matters.

Those immigration consequences may be taken into consideration in determining a sentence within the range of otherwise appropriate sentences. Within that range, if one sentence has significant immigration consequences and another does not, the court may use that factor in setting the sentence. If the sentence remains within the appropriate range the process has not then been dominated by the collateral consequences. [20] In this case, Mr. Nagendran faces deportation and removal to Sri Lanka. Whatever sentence is imposed, that may be the result. An independent determination is made in that process.

The determination made by the court in a sentencing may be a factor. But the purpose of this sentencing is not to influence that process. [ 45 ] A good example is the case of Pham itself, where a difference of one day (two years versus two years less a day) made a significant difference to the immigration situation.

In such a case, where both possibilities are within the range and could be imposed, it could very well be reasonable for a court, as a result of that factor, to impose the slightly lesser sentence. [ 46 ] While collateral consequences are certainly worthy of consideration in sentencing, they cannot justify an entirely inappropriate sentencing decision. Further, while immigration consequences can be considered in sentencing as could any other collateral consequence, they cannot be used to “end run” the will of Parliament.

Only the federal government has the authority to make decisions about immigration. [ 47 ] A discharge simply was not within the reasonable range of sentences for Mr. Chandran. The discharge came about in order to avoid the immigration procedure that would follow. [ 48 ] In her decision, in my view, the sentencing judge did exactly what the court in Pham said she could not do; set up a separate sentencing scheme only for those persons in Mr.

Chandran’s circumstances, i.e., a foreign national facing likely or probable deportation as a result of criminal convictions. [ 49 ] It should go without saying that all offenders face consequences. Of course, not all offenders face deportation. But that does not mean that offenders do not face consequences that are, to them, enormously serious. For example, a criminal record (or the loss of driving privileges) can have very serious employment consequences to an offender.

In the case, for example, of the sole wage earner in a family, such a consequence can be catastrophic to that entire family. [ 50 ] In sentencing, however, consequences are the very point of the exercise. [ 51 ] In relation to the second part of the Nur test, whether the mandatory minimum was grossly disproportionate to the fit and proportionate sentence, Mr.

Chandran argued before the sentencing judge that the “grossly disproportional” element was the deportation that would result if a conviction is entered. [ 52 ] The Federal Court of Appeal and the Supreme Court of Canada have spoken as to whether or not immigration consequences can constitute cruel and unusual punishment. Both courts have said it does not. ( Revell v Canada (Citizenship and Immigration) , 2019

FCA 262; Chiarelli v Canada (Minister of Employment and Immigration), (SCC), [1992] 1 SCR 711). [53] In Revell, paragraph 129: [129] Even if this were not the case, I would still find, for essentially the same reasons as those set out earlier with respect to "grossdisproportionality" in the context of my

section 7 analysis, that the appellant has not made out a breach of

section 12 of the Charter. Iagree with the Judge that, while it may be "slightly disproportionate" to deport the appellant if he is at low risk of reoffending (FCreasons at para. 223), this does not reach the high bar for a finding of cruel or unusual treatment.

As noted above, the various processes inthe inadmissibility determination and removal regime allow for individual circumstances to be considered, and protect against grosslydisproportionate results. [54] In Chiarelli, at paragraph 33: [33] The deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remainin Canada by committing a criminal offence punishable by imprisonment of five years or more, cannot be said to outrage standards ofdecency.

On the contrary it would tend to outrage such standards if individuals granted conditional entry into Canada were permitted,without consequence, to violate those conditions deliberately. [55] In the case at bar, the sentencing judge concluded that if a conviction were entered, Mr. Chandran would be deemedinadmissible to Canada and might be deported. Deportation itself, as it is clearly made out by the above decisions, is not cruel andunusual punishment.

The decisions confirm that in the circumstances of a criminal conviction, the deportation of a foreign nationalwould not shock the community, although it might be more or less appropriate in any given case. [56] To state the obvious, if a deportation does not constitute an affront to

section 12, then a “risk of” deportation cannot either. [57] I note a few cases that have been provided. In R v. Luke, 2019 ONSJ 514, a first-time aboriginal offender entered a guilty pleato driving while impaired. The sentencing court agreed with her submission that the mandatory minimum was grossly disproportionate inher circumstances and violated

section 12 of the Charter. However, this decision was overturned on appeal (R. v. Luke, 2021 ONSC3550). The appeal court found that a discharge was not in the public interest, essentially because of the pervasiveness of impaired drivingoffences, as I have already described. [58] I also note the case of R. v. Sabattis, 2020 ONCJ 242, again a first-time aboriginal offender convicted of impaired driving whoargued for a discharge. The Ontario court considered Ms.

Sabattis’ arguments and determined that, although her circumstances weresympathetic, the imposition of a criminal conviction was not grossly disproportionate. I also note R. v. Tebay, 2020 NSPC 43, a caseinvolving a permanent resident of Canada, where a discharge was also not granted. [59] Having reviewed the authorities, I can find no authority or support for the sentencing judge’s conclusion that a discharge wasan appropriate sentence for Mr. Chandran, or that his circumstances met the test for a breach of

section 12 of the Charter. I am not awareof another case where a similar conclusion has been allowed to stand in a similar circumstance. [60] Other than the “risk of deportation”, there was no other evidence before the court as to the result of a criminal conviction onMr. Chandran, and, in particular, nothing put forward in support of his contention that the mandatory minimum sentence would be crueland unusual in his case. [61] Therefore, I find that the sentencing judge was in error in concluding that the mandatory minimum in the case of Mr. Chandranoffended

section 12 of the Charter. [62] As to the second ground of appeal, again, for all of the reasons I have already set out, I find that the sentencing judge erred inimposing a conditional discharge. I assess this on the ground of reasonableness. I repeat everything I have already said, and I add theobvious point that a sentencing Order that violates the relevant and explicit sentencing provisions of the Criminal Code cannot possiblybe reasonable. [63] In conclusion, in the case of Mr.

Chandran, I find the sentencing court committed the errors alleged in both grounds of appeal.As I have already noted, the sentencing judge appears to (at least in part) have based her decision and reasoning on the Ankur decision.Unfortunately, she did not recognize the errors made in that earlier decision. [64] The sentence imposed on Mr. Chandran is hereby quashed and the matter is remitted to the Provincial Court for an appropriatesentence to be imposed. Boudreau, J.