



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carlisle, 2016 ONCA 950

DATE: 20161215

DOCKET: C62523

Feldman, MacPherson and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Carlisle

Applicant/Appellant

Meara Conway, for the appellant

Christopher Chorney, for the respondent

Heard and released orally: December 13, 2016

On appeal from the sentence imposed on February 21, 2013
    by Justice Lloyd M. Budzinski of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant is 58 years old. He came to Canada
    from Ireland when he was nine. He has been a permanent resident for 50 years.

[2]

On February 21, 2013, the appellant pleaded
    guilty to break and enter and breach of probation. The trial judge accepted the
    joint submission of the Crown and defence and imposed a sentence of eight
    months. The appellant has served his sentence. However, he seeks leave to
    appeal and asks the court to reduce the sentence to five and a half months
    because of the unexpected consequence of an amendment to the
Immigration
    and Refugee Protection Act
,
S.C.
    2001, c. 27,

which came into force four months after the conviction. The
    amendment applies retrospectively and provides that when a person is sentenced
    to a term of six months or more, he can be found inadmissible to Canada for
    serious criminality and deported with no right of appeal. The appellant has had
    an admissibility hearing, and has been ordered removal ready with no right of
    appeal. His only recourse is to appeal his sentence and have it reduced below six
    months.

[3]

The Crown accepts that no one was aware of the
    future immigration consequences of the sentence when the joint submission was
    proposed and accepted by the trial judge. The Crown therefore agrees that it is
    open to this court to vary the sentence, if the proposed reduced sentence is
    proportionate to the gravity of the offence and the degree of responsibility of
    the offender. See
R. v. Pham
, [2013] 1 S.C.R. 739.

[4]

The facts of the offences were the following:
    the appellant had previously pleaded guilty to uttering a death threat against
    a resident of his former apartment. His probation order prohibited him from
    attending the apartment. In order to retrieve some property he left there, he climbed
    through a window of his former bedroom, but while there, he damaged a bed,
    spilled milk in the kitchen, and ate some food that belonged to another
    resident. He was also cold and needed somewhere to sleep.

[5]

The trial judge acceded to the joint submission,
    commenting that it was lenient. The appellant has a record of ten convictions
    beginning in 1981 including a number of break and enters.  His longest sentence
    before this one was less than six months. The trial judge recognized that
    alcohol was the source of many of the appellant's problems.

[6]

The appellant has no connection to Ireland but
    close ties to Canada with all his family here including a son, as well as
    friends.  He is supported in an addiction recovery program from the LAMP
    Community Health Centre. If the sentence is reduced to the six

months
    less one day level, these facts will be able to be considered on an appeal of
    his deportation order.

[7]

In our view, having regard to the fact that
    there was no violence and only some food taken, a reduction in the sentence to five
    and a half months to include credit for presentence custody, would still keep
    the sentence in the range that reflects the gravity of the offence and the
    circumstances of the offender. It is not a reduction that would render the
    sentence inappropriately low. In our view, this is a case where the court
    should grant leave to appeal sentence and reduce the sentence in order to take
    into account the immigration consequences of the sentence imposed.

[8]

Leave to appeal sentence is therefore granted, the
    appeal is allowed and the sentence is reduced to five and a half months
    inclusive of pretrial custody.

K. Feldman
    J.A.

J.C.
    MacPherson J.A.

C.W. Hourigan
    J.A.


