



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Duncan, 2018 ONCA 574

DATE: 20180625

DOCKET: C64830

Lauwers, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Duncan

Appellant

Anthony Duncan, acting in person

Nader R. Hasan, appearing as duty counsel

Hannah Freeman, for the respondent

Heard: June 5, 2018

On appeal from the sentence imposed by Justice Jane E.
    Kelly of the Superior Court of Justice on December 5, 2017.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to a number of offences under the
Criminal
    Code
, R.S.C. 1985, c. C-46: making false documents, contrary to s. 366(1);
    three counts of possessing identity documents to commit an indictable offence,
    contrary to s. 402.2(1); two counts of using, trafficking, or possessing forged
    documents, contrary to s. 368(1); four counts of possession of property
    obtained by crime, contrary to s. 354(1); and trafficking in another persons
    identity information, contrary to s. 402.2(2).

[2]

At the sentencing hearing, Crown counsel sought a sentence of two years
    less-one-day in custody and two years of probation. The appellants counsel
    sought a conditional sentence of 15 months to allow the appellant to serve his
    sentence in the community.

[3]

The sentencing judge imposed a global term of incarceration of 18
    months, less time served at 1.5 days pre-sentence credit for a total of 5
    months credit, leaving an effective remaining sentence of 13 months.

[4]

Duty counsel submits that the sentencing judge made an error in failing
    to consider adverse immigration consequences and that, in light of the
    immigration consequences, a conditional sentence would be an appropriate and
    fit sentence.

[5]

The sentencing judge did not independently opine on the immigration
    issue in this specific case. However, she appears to have turned her mind to
    the issue. Before reviewing the purpose and principles of sentencing, she noted:
    Regardless of  his or her status in Canada, the court is required to consider
    s. 718 of the
Criminal Code
. Moreover, possible immigration issues
    were identified during sentencing submissions. Defence counsel noted that the
    appellant was a permanent resident and had an immigration lawyer who was
    preparing an opinion.

[6]

The situation for the appellant, as a British citizen, is that he is now
    exposed to deportation to the United Kingdom at the age of about 57 (although
    his actual birthdate is unclear), where he has not lived since he was a young
    boy.

[7]

The explanation given by Trotter J.A. in
R. v. McKenzie
, 2017
    ONCA 128, 346 C.C.C. (3d) 477, at para. 24, applies to the appellants
    situation:

The immigration consequences of the appellant's offending are
    extremely serious. Under s. 36(1)(
a
) of the
IRPA
[
Immigration
    and Refugee Protection Act
, S.C. 2001, c. 27], a permanent resident is
    "inadmissible" on grounds of "serious criminality." When
R.
    v. Pham
, 2013 SCC 15, [2013] 1 S.C.R. 739 was decided, s. 64(2) provided
    that a removal order based on inadmissibility due to "serious
    criminality" could not be appealed to the Immigration Appeal Division
    ("IAD") "with respect to a crime that was punished in Canada by
    a term of imprisonment of at least two years." Upon appeal, the IAD can
    stay a removal order if it is satisfied "that sufficient humanitarian and
    compassionate considerations warrant special relief in all of the circumstances
    of the case":
IRPA
, s. 68(1). This provision has since been
    amended by s. 24 of the
Faster Removal of Foreign Criminals Act
, S.C.
    2013, c. 16, which ousts the right to appeal "with respect to a crime that
    was punished in Canada by a term of imprisonment of at least six months or that
    is described in paragraph 36(1)(b) or (c)."

[8]

Duty counsel submits that this court should now substitute a conditional
    sentence in order to preserve the appellants appeal right to the Immigration
    Appeal Division if he is faced with a deportation order. Counsel points out
    that the appellant has almost served out his entire sentence, so the punitive
    element of the original sentence would not be diminished.

[9]

The issue before this court is, as in
Pham
, whether a sentence
    otherwise falling within the range of fit sentences can be varied by this court
    to take potential deportation into account. Trotter J. noted:

Wagner J.
    [in
Pham
] warned (at para. 16) that the consideration of immigration
    consequences must not lead to a separate sentencing scheme with a
de facto
if not a
de jure
special range of sentencing options where deportation
    is a risk:
McKenzie
, at para. 34.

[10]

The
    question for this court: was the sentence fit in light of the specific immigration
    consequences now made known to this court?

[11]

In
    her sentencing decision, the sentencing judge reviewed the elements of s. 718
    of the
Criminal Code
, and she reviewed both aggravating and mitigating
    circumstances, including his community involvement and support. She referred to
    the appellants significant criminal record, noting that he had 24 convictions
    for crimes of dishonesty: including public mischief, cheating at play, fraud,
    uttering forged documents, attempting to obstruct a peace officer, personation
    with intent, among others. The sentencing judge referred to the appellants
    previous ten terms of community supervision with four fail to comply [with]
    recognizance, one fail to comply [with] probation, and [a] fail to attend court.
    She also noted that his reporting habits were sporadic, as he would often
    either fail to report or report late. In the final analysis, the sentencing
    judge noted: Most of all,  [the appellant] has an extensive criminal record,
    and there is no insight offered for his behaviour. She specifically rejected a
    conditional sentence as not appropriate.

[12]

The
    sentence was heavier than the sentences imposed on his associates. One, who had
    no previous convictions, was given a conditional sentence. The other, who had a
    prior conviction, received a 12-month sentence. We do not find the appellants sentence
    to be comparatively disproportionate in light of his record.

[13]

Despite
    duty counsels able submissions, we are unable to find that the sentence
    imposed by the sentencing judge was unfit in light of the appellants criminal
    record. A conditional sentence would not have been appropriate in light of the
    appellants multiple previous failures to comply with the terms of community
    supervision orders.  There is no principled basis on which we could reduce his
    sentence to a conditional sentence, despite the immigration consequences. As
    noted in
Pham

at para. 15, the flexibility of our sentencing
    process should not be misused by imposing inappropriate and artificial
    sentences in order to avoid collateral consequences which may flow from a
    statutory scheme.

[14]

The
    appeal is dismissed.

P.
    Lauwers J.A.

G.
    Pardu J.A.

B.W.
    Miller J.A.


