



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lu, 2013
    ONCA 324

DATE: 20130515

DOCKET: C56894

Weiler, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sz-Yin Lu

Appellant

Michael A. Crystal, for the appellant

Alison Wheeler, for the respondent

Heard: May 9, 2013

On appeal from the sentence imposed on April 10, 2013 by Justice
    Lynn Ratushny of the Superior Court of Justice.

Gillese J.A.:

[1]

This case involves a young Taiwanese woman who was convicted, in Canada,
    of a serious offence but who wishes to be admissible to Canada where her
    Canadian husband lives.  It revolves around the recent decision of the Supreme
    Court of Canada in
R. v. Pham
, 2013 SCC 15, in which the Court
    explained how collateral immigration consequences are to be taken into account
    on sentencing.

OVERVIEW

[2]

Sz-Yin Lu is from Taiwan.  She is not a Canadian citizen.  She came to
    Canada on a student visa in 2006.  She met Vlad Precup, a Canadian citizen, and
    they began dating early in the winter of 2007.  She returned to Taiwan briefly
    that summer.  She came back to Canada in the fall of 2007 after being accepted
    into the Early Childhood Education program at Algonquin College.  She testified
    that she graduated from the program in 2008 and began working at a daycare.

[3]

Late in the evening of July 13, 2008, Mr. Precup hit a pedestrian with
    his car.  He did not stop his car after the accident.  Tragically, the
    pedestrian died.  Ms. Lu was a passenger in her boyfriends car at the time of
    the accident.

[4]

Police interviewed Ms. Lu twice about the accident, first on August 11,
    2008, and then again on November 26, 2008.  Both times, Ms. Lu denied any
    knowledge of, or involvement in, the accident.

[5]

On December 15, 2008, Ms. Lu and Mr. Precup voluntarily contacted the police
    and admitted their involvement in the hit and run.

[6]

In the summer of 2009, Ms. Lu and Mr. Precup were married.

[7]

On September 23, 2009, Ms. Lu pleaded guilty to obstruction of a peace
    officer in the execution of his duties, contrary to s. 129(a) of the
Criminal
    Code of Canada
.  At the sentencing hearing, Ms. Lu requested a conditional
    discharge.  The Crown sought a suspended sentence with a period of probation
    and community service.

[8]

Ms. Lu was given a suspended sentence, six months probation, and 75
    hours of community service.  The six months have now elapsed and she has
    completed the community service requirement.

[9]

In December 2009, Mr. Precup applied to sponsor Ms. Lu to become a permanent
    resident of Canada.

[10]

In
    May 2011, Mr. Precup was convicted of dangerous driving causing death and failing
    to remain at the scene.  He was sentenced to two years imprisonment.  That
    conviction is currently under appeal with this court.

[11]

Ms.
    Lus pending application for permanent residency in Canada was rejected in the
    summer of 2011.  The reason that was given was that Mr. Precups incarceration
    made him ineligible to sponsor her.

[12]

After
    her application for permanent residency was turned down, Ms. Lu was contacted
    by the immigration authorities and asked to leave the country voluntarily. She did
    so and returned to Taiwan in September 2011, where she found work in her field.

[13]

While
    in Taiwan, Ms. Lu learned that even though she is married to a Canadian citizen,
    pursuant to s. 36(2) of the
Immigration and Refugee Protection Act

(
IRPA
),
    S.C. 2001, c. 27, because she had been convicted of an offence punishable by
    indictment to Canada, she was inadmissible on grounds of criminality.

[14]

Section
    36(2) of the
IRPA

provides:

A foreign national is inadmissible on grounds of
    criminality for (a) having been convicted in Canada of an offence under an Act
    of Parliament punishable by way of indictment

[15]

Section
    36(3)(a) deems hybrid offences to be indictable for the purpose of this
    provision.  Thus, the rule in s. 36(2) applies to Ms. Lu even though the Crown
    had elected to proceed summarily.  Since a discharge is not a conviction, the
    rule would not apply if she were given a conditional discharge rather than a
    suspended sentence.

[16]

Consequently,
    although Mr. Precup has now been released on bail pending appeal, and is no
    longer incarcerated, Ms. Lu remains inadmissible.

[17]

Ms.
    Lu appealed her sentence, seeking to have an absolute discharge substituted for
    the suspended sentence that she had been given.

[18]

With
    the agreement of counsel and in light of the new evidence regarding the
    consequences of conviction on Ms. Lus immigration status, the summary appeal
    court judge (SCAJ) conducted a
de novo
sentencing hearing.  While the
    SCAJ was sympathetic to Ms. Lus immigration plight, on April 10, 2013, she
    dismissed Ms. Lus sentence appeal.

[19]

Ms.
    Lu now seeks leave to appeal to this court.  She is facing imminent deportation
    from Canada and has been allowed to remain here only temporarily, for the
    purposes of her sentence appeals.

[20]

If
    leave to appeal sentence is granted, Ms. Lu will ask that her suspended
    sentence be replaced with a conditional discharge.

[21]

For
    the reasons that follow, I would grant leave but dismiss the sentence appeal.

THE DECISION BELOW

[22]

The
    SCAJ began by considering the background facts leading to the obstruction
    offence, including Ms. Lus explanations for why she had lied to the police. 
    She then indicated that Ms. Lus collateral immigration consequences, as that
    phrase is used in
Pham,
had not been given full consideration on
    sentencing and thus, with the agreement of counsel, she was undertaking a
de
    novo
sentencing hearing.

[23]

The
    SCAJ summarized testimony given by Ms. Lu at the sentencing hearing.  She noted
    the presumption that Ms. Lu would be refused admission to Canada if the
    conviction stood.  She also noted the defence position that an absolute
    discharge was appropriate, in light of Ms. Lus otherwise good character and
    all the other circumstances, including the significant immigration consequences
    flowing from a conviction by way of suspended sentence.  She noted the Crowns
    position that a discharge was outside the appropriate range of sentence for the
    offence in question, despite Ms. Lus personal circumstances, including the immigration
    consequences.  She also recorded that the Crown had pointed out various
    ameliorating procedures that might be available to Ms. Lu, such as a record
    suspension or a pardon.

[24]

The
    SCAJ then fully and carefully reviewed the numerous mitigating factors in Ms.
    Lus favour, including that she is young and of good character, has no criminal
    record (apart from this offence), bears no responsibility for her boyfriends
    dangerous driving or the accident, pleaded guilty to the offence, voluntarily
    disclosed to the police that she had been at the scene of the fatality, and is
    genuinely remorseful.  Like the sentencing judge, the SCAJ found it highly
    unlikely that Ms. Lu would ever again be before the criminal courts, noting
    that she is a teacher by profession and has been gainfully employed.  She
    concluded her consideration of the mitigating factors by referring to Ms. Lus
    friends, who attested to her beautiful heart and sense of responsibility.

[25]

In
    terms of the aggravating factors, the SCAJ noted that Ms. Lu: lied to police about
    a fatality, which is a very serious offence; maintained her lies to the police
    on two separate occasions and over a five-month period; and, did not make the
    lies impulsively or spontaneously, in the confusion of the moment.  The SCAJ
    stated that Ms. Lu deliberately impeded the progress of proper law enforcement
    in the community and contributed to the anguish and grief suffered by the deceaseds
    family.

[26]

The
    SCAJ then considered the immigration consequences for Ms. Lu, including her
    probable deportation, and the authorities likely refusal to allow her re-entry
    into Canada.  She described these immigration consequences as a significant factor
    to be considered as part of Ms. Lus personal circumstances.

[27]

In
    determining an appropriate sentence, the SCAJ described the applicable
    sentencing objectives as follows:

Denunciation, deterrence, both general and specific, the
    providing of reparation for the harm done, and the promoting of a sense of
    responsibility and an acknowledgment of the harm done to the victims, including
    the deceaseds family in this case, and to the community including the
    police[.]

[28]

After
    noting that a discharge is available only if it is a sentence that is not
    contrary to the public interest, the SCAJ concluded that despite the
    immigration consequences, she would not exercise her discretion and grant a
    conditional discharge.  In her view, a discharge would not adequately reflect
    the serious nature of the offence or the sentencing objectives of denunciation,
    deterrence and reparation, nor would it achieve proportionality.

[29]

The
    SCAJ then considered
P
h
am
.  She noted that the facts in
Pham

are inapplicable to Ms. Lus situation, but that the reasoning in paras.
    13-16 of the decision applied.  She set out those paragraphs in full and
    concluded that Ms. Lus collateral immigration consequences did not serve as a
    dominant circumstance.  In light of all the other circumstances, they did not
    trump the appropriate sentence which, at a minimum, was a suspended sentence.

THE ISSUES

[30]

This
    proceeding raises two issues:

1. Should
    this court grant leave to appeal sentence?

2.  If so, should
    this court substitute a conditional discharge for the suspended sentence
    imposed by the SCAJ?

LEAVE TO APPEAL SENTENCE

[31]

The
    appellants only route of appeal to this court is through s. 839 of the
Criminal
    Code
, which requires leave.  The test for leave is stringent and limited to
    questions of law alone: see
R. v. R.(R.)
, 2008 ONCA 497, 234 C.C.C.
    (3d) 463, at paras. 24 and 37.

[32]

The
    appellant urged the court to grant leave, noting that this is the first time
    this court has considered such a case since
Pham
was decided.

[33]

Arguably,
    the appeal would raise a question of law and, without question, it is of
    potential significance to people beyond those in this specific case  that is,
    it is of significance to the administration of justice in the province.

[34]

Moreover,
    the stringent leave requirements set out in
R.(R.)

are
    predicated on the situation where an appellant is seeking a second appeal. 
    That is not  strictly speaking  the situation in this case, where the full
    immigration consequences for the appellant were considered for the first time
    before the SCAJ.  Granting leave to appeal sentence in this case would, in
    effect, permit the appellant a first appeal.

[35]

Accordingly,
    in my view, leave to appeal should be granted and the sentence appeal decided on
    its merits.

THE APPEAL

[36]

Ms.
    Lu argues that the SCAJ erred in holding that a discharge was not available or
    was outside the appropriate range of sentence for this offence.  She contends
    that a conditional discharge is consonant with sentencing principles, and is in
    Ms. Lus best interests and not contrary to the public interest.

[37]

Before
    dealing with these submissions, it is important to recall the role of an
    appellate court when reviewing a sentencing decision.  Appellate courts are to
    grant sentencing judges considerable deference when reviewing the fitness of a
    sentence.  They are to interfere only where the sentence is demonstrably unfit,
    or where it reflects an error in principle, the failure to consider a relevant
    factor or the over-emphasis of a relevant factor.  An appellate court cannot
    interfere with the sentence simply because it would have weighed the relevant
    factors differently.  See
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1
    S.C.R. 206, at para. 46.

[38]

This
    deference extends to the sentencing judges consideration of the immigration
    consequences.  Where the issue of immigration consequences has been brought to
    the sentencing judges attention and that judge has applied the proper
    sentencing principles in deciding sentence, deference is owed: see
Pham
,
    at para. 23.

[39]

With
    that standard of review in mind, I turn to the appellants submissions.  As I
    will explain, I do not accept them.

The SCAJs Treatment of a Conditional Discharge

[40]

I
    see nothing in the reasons of the SCAJ to suggest that she thought a
    conditional discharge was outside the range or legally unavailable, as the
    appellant contends.  Rather, the SCAJ concluded that a conditional discharge
    was not a fit sentence in the particular circumstances of this case.  In
    reaching this conclusion, the SCAJ took into consideration all mitigating and
    aggravating factors and the applicable sentencing principles.

[41]

Further,
    the SCAJ had the benefit of
Pham

and she followed its direction
    when considering the immigration consequences that would flow from imposing a
    suspended sentence.

[42]

As
    the SCAJ noted, the facts in
Pham

are very different than in
    the present case.  Nonetheless, a brief overview of those facts is helpful to
    place in context the Courts direction on how to take into account collateral
    immigration consequences on sentencing.

[43]

In
Pham
, the sentencing judge imposed a two-year sentence on the accused,
    who was a non-citizen.  Under the
IRPA
, a non-citizen sentenced to a
    term of imprisonment of at least two years loses the right to appeal a removal
    order against him or her.  Neither party had raised the issue of these collateral
    immigration consequences before the sentencing judge.  A majority of the Alberta
    Court of Appeal dismissed the sentence appeal.

[44]

On
    further appeal to the Supreme Court, the Court allowed the appeal and reduced
    the sentence to two years less a day.  It held that as the sentencing judge was
    not aware of the collateral immigration consequences, the appellate court had
    the authority to intervene.  Further, it found that as a sentence of two years
    less a day was within the range of otherwise fit sentences, it was an error for
    the appellant court to have refused the one-day reduction solely on the basis
    of the appellants prior criminal record or because it felt he had abused the
    hospitality that Canada had afforded him:
Pham
, at para. 25.

[45]

Justice
    Wagner, writing for the Court, explains that the collateral consequences of a
    sentence are any consequences the sentence has on the particular offender and
    may be taken into account as part of the offenders personal circumstances. 
    They are neither aggravating nor mitigating factors.  Their relevance flows
    from the application of the principles of individualization and parity, and may
    also flow from the sentencing objective of rehabilitation. The weight to be
    given to collateral consequences varies from case to case and should be
    determined having regard to the type and seriousness of the offence. 
    Therefore, while the collateral immigration consequences may be relevant in
    tailoring the sentence, their significance depends on the individual case:
Pham
,
    at paras. 11-13.

[46]

Justice
    Wagner further explains that the sentence imposed must be fit having regard to
    the particular crime and the particular offender.  While a sentencing judge may
    exercise his or her discretion to take collateral immigration consequences into
    account, the sentence ultimately imposed must be proportionate to the gravity
    of the offence and the degree of responsibility of the offender.  The
    collateral immigration consequences must not be allowed to dominate the sentencing
    exercise or skew the process:
Pham
, at paras. 14-16.

[47]

The
    SCAJ in this case followed
Pham
.  She considered the mitigating and
    aggravating factors and then considered the collateral immigration consequences
    as part of Ms. Lus personal circumstances.  She recognized that as a result of
    the criminal conviction and suspended sentence, Ms. Lu is inadmissible to
    Canada unless she obtains a record suspension or, possibly, an exemption from
    inadmissibility on humanitarian and compassionate grounds pursuant to ss. 24
    and 25 of the
IRPA
.  However, in light of the seriousness of the
    offence, the sentencing objectives of denunciation, deterrence and reparation,
    and the need for proportionality, a discharge was not a fit sentence.  It was
    open to her to so conclude.

The SCAJs Conclusion that a Discharge was not in
    the Public       Interest

[48]

The
    SCAJ correctly observed that a discharge cannot be granted if it would be contrary
    to the public interest.  In determining whether it would be contrary to the
    public interest, one consideration is whether the sentence will be a deterrent
    to others who might be minded to commit a like offence: see
R. v.
    Sanchez-Pino
, [1973] 2 O.R. 314 (C.A.), at p. 320.

[49]

The
    SCAJ held that a discharge would be contrary to the public interest because it
    would not give adequate effect to the sentencing objectives of denunciation,
    deterrence, and reparation.  Furthermore, it would not achieve the fundamental
    principal of proportionality in sentencing, which requires that a sentence be
    proportionate to the gravity of the offence and the degree of responsibility of
    the offender.

[50]

The
    SCAJ made a case-specific determination that a discharge would be contrary to
    the public interest.  It was open to her to reach this conclusion and there is
    no basis for interfering with it.  Lying to the police, particularly in the
    context of an investigation into a fatality, is a very serious offence.  I am
    sympathetic to Ms. Lus personal circumstances and her desire to be in Canada
    with her husband as soon as possible.  However, those circumstances were fully
    considered by the SCAJ, who concluded that, at a minimum, her sentence must be
    a suspended one.

CONCLUSION

[51]

In
    my view, there is no basis for interfering with the sentence imposed by the
    SCAJ.  Her articulation and application of the relevant legal principles is
    impeccable.  She fully, fairly and thoughtfully considered all of the relevant
    factors.  She had the benefit of
Pham

and gave appropriate
    consideration to the collateral immigration consequences of a suspended
    sentence, rather than a discharge.

[52]

Accordingly,
    while I would grant leave to appeal sentence, I would dismiss the appeal.

Released: May 15, 2013 (K.M.W.)

E.E. Gillese
    J.A.

I agree. K.M. Weiler J.A.

I agree. Alexandra Hoy J.A.


