Sz-Yin Lu v. Her Majesty the Queen

(Ontario) (Criminal) (By Leave)


Criminal law - Sentencing.


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Criminal law – Sentencing – Collateral immigration consequences – Degree to which collateral immigration consequences should determine choice between suspended sentence or conditional discharge – Whether collateral immigration consequences impact the qualitative aspect of a sentence – Whether case law conflicts regarding appropriateness of a suspended sentence versus a conditional discharge where collateral immigration consequences exist

The applicant was a Taiwanese citizen in Canada on a student visa. She was a passenger in her boyfriend’s car when he struck and killed a pedestrian. They fled the scene. In two police interviews, she denied any knowledge of the accident or any involvement in the accident. Based on those denials, she was convicted of obstructing a peace officer in the execution of his duties. The applicant was given a suspended sentence. While still in Canada, she married her boyfriend, a Canadian citizen. He was convicted in relation to the accident and imprisoned, which caused the applicant’s application for permanent residency to be denied. She voluntarily returned to Taiwan. Section 36(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, sets out that anyone who has been convicted in Canada of an offence that is punishable by indictment is not eligible for admission to Canada. Section 36(2) applies to hybrid offences, even if the Crown proceeds summarily. Consequently, the applicant is not admissible to Canada even though she is married to a Canadian citizen. The applicant appealed her sentence and sought a conditional discharge instead of a suspended sentence.