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Criminal law Sentencing Considerations Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 64 How should a criminal or appellate court consider the unintended or collateral consequences of a criminal sentence, particularly consequences relating to the immigration status of an offender? Whether the Court of Appeal erred in principle by refusing to vary the appellant’s sentence by one day in order to preserve his right to appeal an immigration deportation order.

Under s. 64 of the Immigration and Refugee Protection Act (“IRPA”), a non citizen loses his right to appeal a removal order if he has been, among other things, convicted of a crime for which he has been sentenced to a term of imprisonment of at least two years. The appellant is a Vietnamese citizen who came to Canada under the sponsorship of his father. He was convicted of producing and possessing marihuana for the purposes of trafficking. Pursuant to a joint submission on sentence, he was sentenced to 2 years’ imprisonment. Despite the joint submission, the appellant appealed, arguing that the consequences of the sentence with respect to the IRPA ought to have triggered a reduced sentence. The Crown consented to the reduction. The majority of the Court of Appeal dismissed the appeal. In its view, the particular circumstances of this case, and in particular, the appellant’s prior convictions, did not warrant varying the sentence or undermining the provisions of the IRPA. Martin J.A., dissenting, would have allowed the appeal solely on the basis of the Crown’s consent which, in his view, was given on the assumption that the sentencing judge would have agreed to the reduction had counsel been aware of the collateral consequence flowing from a two year sentence. He cautioned, however, that this relief is not automatic and that had it not been for the Crown’s concession based on fairness, the appellant would not have qualified for such relief.

Lower Court Rulings