



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Martinez-Rodriguez, 2018 ONCA 178

DATE: 20180223

DOCKET: C63418

Hoy A.C.J.O., Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mariano Martinez-Rodriguez

Appellant

Eva Taché-Green, for the appellant

Rebecca De Filippis, for the respondent

Heard and released orally:  February 12, 2018

On appeal from the conviction entered on September 23,
    2010 and the sentence imposed on September 30, 2010 by Justice J. Westman of
    the Ontario Court of Justice.

REASONS FOR DECISION

[1]

In September 2010, the appellant was convicted of criminal harassment
    and sentenced to a suspended sentence and two years probation, in addition to
    the 210 days served in pre-sentence custody. For immigration purposes, the
    seven months he spent in pre-sentence custody was deemed to constitute a period
    of imprisonment of more than six months.

[2]

The appellant has abandoned his conviction appeal. He seeks leave to introduce
    fresh evidence and to appeal his sentence on grounds that it was imposed
    without consideration of the collateral immigration consequences that later
    attached to it as a result of amendments to federal immigration legislation introduced
    after he was sentenced.

[3]

The Crown concedes that had these collateral immigration consequences
    been known at the time of the appellants sentencing, they can be expected to
    have affected the result and acknowledges that a suspended sentence with credit
    for six months less a day for pre-sentence custody is a fit sentence within the
    acceptable range for this offence and this offender. The Crown also consents to
    the appellants fresh evidence application.

[4]

Accordingly, the appellants fresh evidence application is granted,
    leave to appeal sentence is granted, and the appeal against sentence is
    allowed. A suspended sentence is imposed with credit for six months less one
    day of pre-sentence custody and two years probation on the terms imposed by
    the trial judge.

Alexandra Hoy A.C.J.O.

Janet Simmons J.A.

G. Pardu J.A.


