R. v. McKenzie, 2017 ONCA 128
[24] The immigration consequences of the appellant's offending are extremely serious. Under s. 36(1)(a) of the IRPA, a permanent resident is "inadmissible" on grounds of "serious criminality". When R. v. Pham, [2013] 1 S.C.R. 739, [2013] S.C.J. No. 100, 2013 SCC 15 was decided, s. 64(2) provided that a removal order based on inadmissibility due to "serious criminality" could not be appealed to the Immigration Appeal Division ("IAD") "with respect to a crime that was punished in Canada by a term of imprisonment of at least two years". Upon appeal, the IAD can stay a removal order if it is satisfied "that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case": IRPA, s. 68(1). This provision has since been amended by s. 24 of the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16, which ousts the right to appeal "with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c)".
[26] In Pham, Wagner J., writing for the court, discussed the interaction of immigration consequences with the principles of sentencing set out in ss. 718, 718.1 and 718.2 of the Criminal Code. Referring to proportionality, parity, rehabilitation and denunciation, Wagner J. held, at paras. 11, 14 and 16:
In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity [page622] of the offence or to the degree of responsibility of the offender (s. 718.2(1)(a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(d) of the Criminal Code). 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.
. . . . .
The general rule continues to be that a sentence must be fit in having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or he 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.
. . . . .
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.
[27] In linking immigration consequences to the principles of sentencing, Wagner J. did not prescribe a preferred methodology for determining this issue.
[30] I do not read Nassri or Pham as requiring a specific methodology for dealing with the potential immigration consequences of an offender's sentence. I acknowledge that there is language in Pham that supports the appellant's preferred approach -- considering immigration status as a personal circumstance of the offender (paras. 11 and 20). However, Pham also contains language that supports an approach whereby potential immigration consequences are factored into the equation once the sentencing [page623] judge has made a determination of what would otherwise be an appropriate sentence. Wagner J. uses the following terms or expressions, all of which signal movement from such a fixed point: "varied sentence" (para. 18); "reduced sentence" (para. 18); "reduction" (para. 20); and "adjust" (para. 20).
[31] There are merits in both approaches. The approach employed by the trial judge avoids the need to deal with immigration consequences in circumstances when it is unnecessary. For example, where an otherwise fit sentence falls below the current IRPA threshold, an offender's immigration status is irrelevant for sentencing purposes. Similarly, where a sentencing judge determines that a substantial penitentiary term is warranted, there is little point in considering the offender's immigration status in the manner contemplated in Pham, at least based on the current IRPA threshold.
[32] Moreover, the appellant's suggested approach may create difficulties for judges applying sentencing ranges. The immigration status of an offender, a highly individualized circumstance, is not embedded or reflected in the sentencing ranges for various offences that have developed in this province over time. As Wagner J. noted in the passage quoted above (in para. 26 of these reasons), immigration consequences of a given sentence are neither aggravating nor mitigating factors. As such, immigration consequences are unlike other individualized factors that are generally considered when applying sentencing ranges. Viewed in this light, immigration consequences might best be addressed separately, and only if necessary.
[33] In Lacasse, the court discussed the nature of sentencing ranges. Writing for the majority, Wagner J. wrote the following, at paras. 57 and 58:
Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straightjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case[.]
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical equation. It involves a variety of facts that are difficult to define with precision. This is why it may happen that a sentence that, on itself face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances[.][page624]
[34] Returning to the immigration context, in his earlier decision in Pham, Wagner J. warned (at para. 16) that the consideration of immigration consequences "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". The appellant's approach risks doing just that.
Aucun commentaire:
Publier un commentaire