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SCC immigration ruling timely as influx of cases expected

Article Originally Published on March 7, 2013 by Advocate Daily. 

A recent ruling from Canada’s top court has made it clear that immigration consequences attached to a particular sentence can be taken into account by the sentencing judge – a decision welcomed by Toronto criminal lawyer Aaron Harnett.

“I’m pleased that there’s now clarification in the law about what is going to become an extremely important issue in the months to come,” says Harnett.

The Supreme Court of Canada reduced Hoang Anh Pham’s two-year sentence to two years less one day, allowing him to appeal a deportation order should one be issued. Read R. v. Pham

Pham was convicted on drug-related charges and sentenced to two years’ imprisonment by Alberta’s Provincial Court, the decision says. He 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 judge was not aware of, and did not consider, the consequences on Pham’s immigration status in the original sentencing, the decision says, noting 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.

Amendments to the IRPA currently before the Senate will reduce the maximum sentence that allows the accused access to the appeal to six months instead of two years, says Harnett, noting the change will have sweeping impact.

“When you’re talking about that range in sentencing you’re going to have a very large number of people potentially affected,” he says. “This kind of argument and these legal issues are going to arise very frequently as opposed to really rarely.”

Harnett says with the threshold being reduced to six months, the instances of offenders concerned with the immigration consequences of their sentences will skyrocket.

“It strikes me that the Supreme Court of Canada has now written a roadmap for the large influx of cases that will follow the changes to the IRPA,” he says. “The court has made it very clear that while the immigration consequences are a factor that can be considered, they are also a factor that can be ignored.

“The prime concern of the Supreme Court is to ensure that the sentence is in the appropriate range and then within that range, sentencing judges may make adjustments, but it always has to be within appropriate range of sentence.”

Harnett says the decision is one that will undoubtedly be referenced in future cases.

“For counsel who are concerned about Parliament’s wave of mandatory minimum sentences and the harsh consequences that they can create, there is some useful language in this decision,” he says. “The court has emphasized in this decision the importance of the individualization of the sentencing process. This emphasis will be helpful to counsel who are arguing that mandatory minimum sentences may infringe a client’s constitutional rights.”

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