Accounting for Law

SCC reduces sentence for non-Canadian citizen

The Supreme Court of Canada has allowed a reduced sentence for a non-Canadian citizen, ensuring he can fight to stay in the country, in a decision that Toronto criminal lawyer J.S. Vijaya says all immigrants should take note of.

“This case is very important to all the people in Canada who do not have citizenship,” says Vijaya.

Hoang Anh Pham was convicted on charges of producing marijuana and possessing it for the purpose of trafficking, with Alberta’s Provincial Court sentencing him to two years’ imprisonment, the decision says.  Read R. v. Pham

Pham appealed the sentence, seeking to have it reduced by one day, because of Immigration and Refugee Protection Act (IRPA) rules that say a non-citizen sentenced in Canada to at least two years imprisonment loses the right to appeal a removal order against him.

The decision says the judge was not aware of, and did not consider, the consequences on Pham’s immigration status in the original sentencing.

“Under the current immigration regime, generally speaking, any sentence that is more than six months or equivalent triggers proceedings where you are obliged to explain to immigration authorities why you should remain in Canada,” explains Vijaya. “Any sentence that is for more than or equal to two years automatically starts deportation proceedings.”

The Crown conceded that the sentence should be reduced by one day, but despite this, the Alberta Court of Appeal refused to vary the sentence, holding that allowing the appeal would undermine the provisions of the IRPA, the decision reads.

“In the Pham case, the Crown was actually consenting to a sentence less than two years that would have allowed this individual to stay in Canada,” says Vijaya. “Accordingly, even a day less than two years could theoretically allow you to fight to stay in Canada.”

Vijaya welcomes the ruling as it allows a sentencing judge to exercise his or her discretion to take potential immigration consequences into account while making a decision.

“The Supreme Court recognized that it is important not to limit discretion of judges in these types of criminal cases,” he says. “The court endorsed the ability to recognize the human face attached to each case and not be tied down by arbitrary numbers and related mandatory sentence policy provisions imposed by the current government.

“This decision is a clear signal that judges will continue to exercise their discretion and do justice on a case-by-case basis.”

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