In his first written decision since joining the top court’s bench in October, Justice Richard Wagner ruled a court may change a sentence if the sentencing judge was not made aware of the accused’s immigration consequences.
“An appellate court has the authority to intervene if the sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel had failed to advise the judge on this issue. In such circumstances, the court’s intervention is justified because the sentencing judge decided on the fitness of the sentence without considering a relevant factor,” Wagner wrote in Pham v. R.
In Pham, non-Canadian citizen Hoang Anh Pham was convicted of of producing marijuana and possessing it for the purpose of trafficking and sentenced to two years in prison. Under the Immigration and Refugee Protection Act, a non-citizen loses the right to appeal a deportation order if he or she receives a sentence of at least two years. The Vietnamese man wanted his sentence reduced by a day.
Janet Dench, executive director of the Canadian Council for Refugees, says this is going to become increasingly difficult with the looming bill C-43, which will amend the Immigration and Refugee Act.
“The situation is going to become much, much worse for people being convicted of a crime because bill C-43, which is before the Senate, would reduce the maximum sentence that allows you to get access to the appeal to six months,” she says. “So it’s going to be a much larger group of people who are denied access to the appeal.”
As the sentencing judge was not made aware of Pham’s immigration situation, the SCC ruled it was appropriate to reduce the sentence, but cases must be considered on an individual basis. Wagner noted proportionality, parity, and individualization are fundamental principles of sentencing.
“[A] sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender,” he wrote.
“Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation. However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence.”
Dench says it’s important for everyone involved in the case — including the sentencing judge, but also the lawyers representing the accused — to be made aware of the consequences of the accused’s immigration status.
“We often hear of people who are not citizens who are represented by a criminal lawyer who may know their field very well but they are not aware of the immigration consequences. And so, they don’t pay attention to that and sometimes they will advise their client to accept or negotiate a deal that actually has devastating consequences in terms of their immigration status,” Dench tells Legal Feeds.
“So hopefully this will also serve as a reminder to criminal lawyers to make sure that they are looking into those consequences for any of their clients that are not citizens,” she says.