



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Leila,







2008 
          BCCA 8



Date: 20080111

Docket: CA034711

Between:

Regina

Respondent



And

Monir 
    Alejandro Leila

Appellant






Before:


The 
          Honourable Madam Justice Rowles




The 
          Honourable Madam Justice Newbury




The 
          Honourable Madam Justice Levine








G. 
          Chand


Counsel for the Appellant




B. 
          MacLean


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




03 October 2007




Place 
          and Date of Judgment:


Vancouver, British Columbia




11 January 2008








Written 
          Reasons by
:




The 
          Honourable Madam Justice Rowles




Concurred 
          in by:




The 
          Honourable Madam Justice Newbury

The 
          Honourable Madam Justice Levine



Reasons 
    for Judgment of the Honourable Madam Justice Rowles:

[1]

Mr. Monir Alejandro Leila has applied for an extension of time within 
    which to appeal and for leave to appeal a two-year sentence imposed on him 
    on 24 May 2006 in the provincial court following his guilty plea to possession 
    of stolen property charged under s. 355(a) of the
Criminal Code
.  
    The Crown does not oppose the extension of time and that order is granted.

[2]

Leave to appeal sentence is advanced on the ground that there is a 
    serious and unintended collateral consequence to the sentence imposed by the 
    trial judge in that a custodial sentence of two years or more results in the 
    automatic termination of the appellants right to appeal a deportation order 
    to the Immigration Appeal Division.

[3]

I have concluded that leave ought to be granted and that the appeal 
    ought to be allowed.  My reasons for reaching that conclusion follow.

[4]

By way of background, the appellant is a citizen of Chile and, for 
    immigration purposes, is classed as a permanent resident of Canada.  He immigrated 
    to Canada with his family around 1982 when he was seven years old.  He is 
    now 32 years of age.

[5]

The appellants criminal record, which is mainly for property offences, 
    begins in 2001 and coincides with his becoming addicted to heroin.  Since 
    2002, the sentences he has received have been for periods of incarceration 
    of increasing length, although all within the provincial system.

[6]

In respect of the sentencing proceedings leading to this appeal, the 
    appellant elected trial by provincial court judge and pleaded guilty to the 
    charge of possession of stolen property charged under s. 355(a) of the
Criminal 
    Code
.  At the same time, he pleaded guilty to two charges waived in 
    from Windemere, British Columbia: impaired driving and wilfully obstructing 
    a peace officer.

[7]

Crown and defence counsel made a joint submission for a two-year sentence, 
    which was to be in addition to the two months the appellant had been in custody 
    awaiting trial.  Defence counsel informed the sentencing judge that the appellant 
    was addicted to heroin but had been clean and sober since his arrest.  Defence 
    counsel also told the court that the appellant wished to avail himself of 
    the programs available in the federal system to deal with his addiction and 
    was therefore consenting to a sentence, if the Court sees appropriate, of 
    two years on top of time served, which takes him into federal realm."  
    Crown counsel submitted that as the appellants most recent prior conviction 
    was effectively one of incarceration for 18 months, a two-year sentence is 
    appropriate to address specific and general deterrence and it also addresses 
    the step-up principle.

[8]

The sentencing judge acceded to the joint submission and imposed a 
    two-year sentence, plus the time served in respect of the possession of 
    stolen property charge.  The judge also imposed a 30-day concurrent sentence 
    on the obstruction charge, and a $600 fine and a driving prohibition on the 
    impaired driving charge.

[9]

The appellants immigration status in Canada was not raised or considered 
    at the sentence hearing.  Mr. Rishi Gill, defence counsel at the sentencing 
    hearing, has provided an affidavit in which he deposed:

4.  
    During my interviews with the appellant I do not remember asking him where 
    he was born, nor do I remember asking him whether or not he was a Canadian 
    citizen.  To my recollection, the issue of his immigration status in Canada 
    did not come up at any point in these proceedings.  I had no reason to believe 
    that Mr. Leila was not a fully naturalized citizen of Canada nor did I think 
    to ask.

[10]

Mr. Gill has also deposed that he was originally going to seek a custodial 
    sentence of less than two years but, on the appellants specific instructions, 
    he sought a two-year custodial sentence for the sole purpose of allowing the 
    appellant access to federal institution programs to combat his drug addiction.  
    Mr. Gill stated that he spoke to Crown counsel before the hearing and it was 
    agreed that a joint recommendation or submission to the trial judge for a 
    two-year custodial sentence would be made.

[11]

Section 36(1) of the
Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the 
Act
) provides that a permanent 
    resident of Canada who has been convicted of an offence in Canada under an 
    Act of Parliament for which a maximum term of imprisonment of at least 10 
    years could

be imposed is inadmissible to Canada and will be issued 
    a deportation order.  Possession of stolen property charged under s. 355(a) 
    of the
Criminal Code

carries a maximum penalty of 10 
    years imprisonment.

[12]

A permanent resident who is issued a deportation order has the right 
    to appeal the order to the Immigration Appeal Division, pursuant to subsection 
    63(3) of the
Act
.  Under s. 67 of the
Act
, 
    the Immigration Appeal Division may allow an appeal of a deportation order 
    on grounds that include humanitarian and compassionate considerations warranting 
    special relief in the circumstances.  In this case, as a result of being sentenced 
    to a term of imprisonment of two years, the appellant has no right of appeal 
    from a deportation order by reason of s. 64 of the
Act
, which 
    provides:

64.
(1) No appeal may be made to the Immigration Appeal 
    Division by a foreign national or their sponsor or by a permanent resident 
    if the foreign national or permanent resident has been found to be inadmissible 
    on grounds of [] serious criminality [.]

(2)
For the purpose of subsection (1), serious 
    criminality must be with respect to a crime that was punished in Canada by 
    a term of imprisonment of at least two years
.

[Emphasis 
    added.]

[13]

In
Atwal v. Canada

(Minister of Citizenship and 
    Immigration)
, 2004 FC 7, 245 F.T.R. 170, the Federal Court held that 
    all time credited for pre-trial detention forms part of the "term of 
    imprisonment" for purposes of s. 64(2) of the
Act
.  No 
    issue is taken with the correctness of that decision.

[14]

The ground on which Mr. Leila appeals his sentence is that there is 
    a serious and unintended collateral consequence to the sentence imposed by 
    the trial judge in that the custodial sentence of two years results in the 
    automatic termination of his right to appeal any deportation order to the 
    Immigration Appeal Division.

[15]

Counsel referred us to a number of appellate court decisions that have 
    considered the question of whether an effect on immigration status may become 
    a relevant factor in determining sentence, including the following:
R. 
    v. Kanthasamy
, 2005 BCCA 135,
195 C.C.C. 
    (3d) 182
;
R. v. Q.A.M.
,

2005 BCCA 615, 
    204 C.C.C. (3d) 114;
R. v. Lacroix
(2003), 172 O.A.C. 147, 57 W.C.B. (2d) 606 (C.A.);
and
R. v. Leung
, 2004 ABCA 55, 354 A.R. 
    2.

[16]

In
Kanthasamy
, the appellant had been given three concurrent 
    sentences of three-months' imprisonment after the sentencing judge had given 
    the appellant double time for the ten and one-half months he had spent in 
    pre-trial custody.  The effective sentence the appellant received was therefore 
    two years.  In that case, the appellant was a Tamil from northern Sri Lanka 
    who said he had come to Canada to avoid persecution by the Tamil Tigers.  
    He said that the Tamil Tigers had extorted money from his family and, when 
    his older brother and sister had resisted going with them to become insurgents, 
    they killed his brother.  In allowing the appeal in that case, Donald J.A., 
    for the Court, said:

[14]      
    The question of fitness in this case relates not to the quantum of the sentence, 
    in the ordinary sense, but to a serious but unintended collateral effect of 
    the penalty.  The matter of a single day, two years rather than two years 
    less a day, is inconsequential in terms of denunciation, retribution and deterrence, 
    although it determines the availability of a probationary order and it also 
    designates which corrections system, Federal or Provincial, is engaged.

[15]      
    But, in relation to the appellant's immigration status and his personal safety, 
    the difference of one day carries potentially enormous consequences.  [.]

[17]

Mr. Justice Donald observed that immigration consequences can be a 
    relevant consideration in sentencing and, in that regard, referred to the 
    following decisions of the Ontario Court of Appeal:
R. v. Hamilton
(2004), 72 O.R. (3d) 1, 241 D.L.R. (
4th)
490 (C.A.), and
R. v. Spencer
(2004), 
    72 O.R. (3d) 47, 241 D.L.R. (4
th
) 542, leave to appeal 
    to S.C.C. refused, [2003] S.C.C.A. No. 4, released the same day.  In
Hamilton
, 
    the court said the following in relation to one of the accused, Ms. Mason:

[157]     [I]f Ms. Mason were to receive a sentence of two years and 
    if she was ordered deported, her ability to challenge that deportation order 
    would be adversely affected by the length of the sentence.

[158]    I would not characterize the loss of a potential remedy against 
    a deportation order that might be made a mitigating factor on sentence.  I 
    do think, however, that in a case like Ms. Mason's there is room for consideration 
    of the potentially added risk of deportation should the sentence be two years 
    or more.  If a trial judge were to decide that a sentence at or near two years 
    was the appropriate sentence in all of the circumstances for Ms. Mason, the 
    trial judge could look at the deportation consequences for Ms. Mason of imposing 
    a sentence of two years less a day as opposed to a sentence of two years. 
     I see this as an example of the human face of the sentencing process.  If 
    the future prospects of an offender in the circumstances of Ms. Mason can 
    be assisted or improved by imposing a sentence of two years less a day rather 
    than two years, it is entirely in keeping with the principles and objectives 
    of sentencing to impose the shorter sentence.
While the assistance afforded 
    to someone like Ms. Mason by the imposition of a sentence of two years less 
    a day rather than two years may be relatively small, there is no countervailing 
    negative impact on broader societal interests occasioned by the imposition 
    of that sentence
: see
R. v. Lacroix
, [2003] O.J. No. 2032 (C.A.).

[Emphasis added.]

[18]

Mr. Justice Donald concluded in
Kanthasamy
that substitution 
    of a reformatory term in these circumstances "does no violence to the 
    sentence imposed by the trial judge and avoids an unintended consequence of 
    great significance." (at para. 23)

[19]

In this case, neither the appellant nor his counsel was aware of the 
    consequences of seeking a term of imprisonment of two years, as opposed to 
    a sentence of two years less one day.  There is no indication in the transcript 
    that the sentencing judge was aware of the appellants immigration status 
    or the consequences to the appellant of a sentence of two years or more.

[20]

In
Q.A.M
., a similar problem arose and this Court reduced 
    the appellants two-year sentence by one day to preserve his right to appeal 
    to the Immigration Appeal Division.  Mr. Justice Smith, giving judgment for 
    the majority, said:

[31]      
    On the authority of
R. v. Kanthasamy
[.], and as the unavailability 
    of an appeal to the Immigration Appeal Division as a result of the difference 
    of one day in the sentence was not brought to the attention of the sentencing 
    judge, we may regard the loss of this right of appeal as a serious unintended 
    collateral consequence.  In my view, this makes the sentence disproportionate 
    in all the circumstances.

[21]

In
Leung
, the Alberta Court of Appeal reduced the appellants 
    sentence of 30 months to one of two years less one day for the same reason.

[22]

In
Lacroix
, the Ontario Court of Appeal granted the same 
    relief that the appellant seeks in this case.  In an endorsement, the court 
    said:

[2]        
    The appellant faces a deportation order.  Under the
Immigration and Refugee 
    Act
he can appeal that order only if his sentence is less than two years.  
    At the time of sentencing the appellant was unaware of and, therefore, did 
    not make known to the trial judge the immigration consequences of his sentencing.  
    These consequences are a relevant consideration on sentence.  No disservice 
    to the fitness of the sentence would be caused by the variation the appellant 
    seeks.

[23]

I agree with appellants counsel that the loss of the appellants immigration 
    appeal rights is a disproportionately severe collateral sanction, which was 
    unforeseen by the appellant and his counsel at the sentencing hearing and 
    apparently unintended by the sentencing judge.  In the circumstances of this 
    case, reducing the appellants sentence to one which will allow him to preserve 
    his immigration appeal rights is inconsequential to the sentence principles 
    relied upon by the sentencing judge.

[24]

As I understand it, the appellant spent from 29 March 2006 to the date 
    of sentencing in pre-trial custody, which is a period of 57 days.  The judge 
    imposed a sentence of two years plus time spent in custody.  There is no 
    indication that the judge gave credit beyond the 57 days spent in pre-trial 
    custody and, therefore, the effective sentence appears to be one of two years 
    and 57 days.

[25]

I would grant leave and allow the appeal to the extent of reducing 
    the effective sentence so that it is one day under two years.

The Honourable Madam Justice Rowles

I 
    agree:

The 
    Honourable Madam Justice Newbury

I 
    agree:

The 
    Honourable Madam Justice Levine


