



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Freckleton, 2016 ONCA 130

DATE: 20160216

DOCKET: C59759 & C60388

Laskin, Juriansz and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Winston Freckleton and Denziel Jones

Applicants (Appellants)

John Norris and Meara Conway, for the appellants

Carolyn Otter, for the respondent

Heard: February 10, 2016

On appeal from the sentence imposed on June 4, 2012 by
    Justice Gary T. Trotter of the Superior Court of Justice, sitting without a
    jury and on appeal from the sentence imposed on February 19, 2013 by Justice Michael
    R. Dambrot of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

These two cases were heard together. In
    each case, the appellant seeks to reduce his sentence to avoid the prospect of
    deportation resulting from the retrospective application of the
Faster Removal of Foreign Criminals Act,
S.C.
    2013, c. 16. Section 24 of that Act amended s. 64 (2) of the
Immigration
    and Refugee Protection Act,
S.C. 2001, c. 27,
to
    allow a person found inadmissible for serious criminality to appeal to the
    Immigration Appeal Division only if he or she had been punished by a term of
    imprisonment of less than six months. Prior to the amendment, anyone receiving
    a sentence of less than two years had a right of appeal to the Immigration
    Appeal Division. Both appellants were sentenced before the amendment and would
    have had a right to appeal but for the subsequent retrospective amendment.

[2]

In sentencing, an offenders individual
    circumstances must be taken into account. Thus, the fact that the offender
    faces the collateral consequence of deportation is a relevant factor: see
R.
    v. Hamilton
(2004), 72 O.R. (3d) 1 (C.A.), at
    para. 158. An appellate court may intervene to vary a sentence that falls
    within the range of fit sentences if the sentencing judge did not take into
    account that the sentence could result in the deportation of the offender.
    However, the sentence ultimately imposed must still be proportionate to the
    gravity of the offence and the degree of the responsibility of the offender:
R.
    v. Pham,
2013 SCC 15, [2013] 1 S.C.R. 739, at
    para. 14. The Court also cautioned that the flexibility of the sentencing
    process should not be misused to impose an inappropriate and artificial
    sentence to circumvent Parliaments will:
Pham,
at para. 15.

[3]

The appellants seek to introduce fresh
    evidence i
n relation to the immigration consequences. The Crown does not
    oppose the application. We therefore admit the fresh evidence.

WINSTON FRECKLETON

[4]

Mr. Freckleton pleaded guilty on June
    4, 2012 to trafficking cocaine and received a seven month conditional sentence
    on a joint submission. He sold about 0.05 g of crack cocaine for $30 after
    being prompted to do so by a woman. The Crown concedes the one-month reduction
    in that sentence he now seeks would not render the sentence demonstrably unfit
    having regard to all the circumstances of the offence and the offender.

[5]

With the Crowns consent, his appeal is
    allowed and his sentence is varied to six months less a day of imprisonment.

DENZIEL JONES

[6]

The result of Mr. Jones appeal must be
    different. On February 19, 2013, he pleaded guilty to possession for the
    purposes of trafficking cocaine and sentenced on a joint submission to one day of
    imprisonment, plus credit for 11 months and one week of pre-trial custody,
    followed by six months of probation. An offenders pre-trial custody is
    considered to be part of the sentence for immigration purposes: see
Brown
    v. Canada (Minister of Public Safety and Emergency Preparedness)
, 2009 FC 660, 81 Imm. L.R. (3d) 90, at para. 23. The
    result of this is that Mr. Jones cannot appeal a finding of inadmissibility to
    the Immigration Appeal Division. Pointing out that he actually spent over 11
    months in prison, his counsel requests a theoretical variation of his
    sentence to one day with the accompanying stipulation that his sentence should
    be deemed to be six months less a day.

[7]

An effective sentence of six months
    would not be fit for Mr. Jones in all the circumstances. He came to Canada in
    June 2007 at the age of 17. He is now 25 years of age. He was convicted for two
    assaults in October 2010 for which he was sentenced to 47 days of
    incarceration, in addition to 43 days of pre-trial custody, plus probation for
    two years. In January 2011 he was arrested on the charges that give rise to
    this appeal. In July 2011, while on bail for these charges, he was arrested on
    charges of possession of cocaine, obstruct police and failing to comply with
    probation. He was convicted of these subsequent charges in October 2012 and
    sentenced to 30 days of pre-trial custody and six months of probation. The
    circumstances of the charge on appeal suggest that he is a mid-level commercial
    street supplier of crack cocaine and not a user addict. He supplied 3.3 g of
    crack cocaine to an undercover officer, and possessed an additional 6.76 g of
    crack cocaine and $330 of police buy money. The seriously aggravating factors
    in this case outweighed the mitigating effect of his youth and guilty plea.

[8]

Parliaments clear intent in enacting
    s. 24 of the
Faster Removal of Foreign Criminals Act
is that persons subjected to a fit sentence of at least
    six months of imprisonment may not appeal a finding that they are inadmissible
    to Canada
because of serious criminality to the Immigration Appeal Division.
    The
substantial reduction Mr. Jones
    seeks in his effective sentence would circumvent this clear parliamentary intent.
    His sentence appeal is dismissed.

John Laskin J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.


