



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Al-Masajidi, 2018 ONCA 305

DATE: 20180327

DOCKET: C64047

Sharpe, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jachja Al-Masajidi

Appellant

Jamaldin Najma, for the appellant

Kathleen Farrell, for the respondent

Heard: March 21, 2018

On appeal from the sentence imposed on August 25, 2014 by
    Justice R.J. Ledressay of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was sentenced to eight months in
    custody upon his plea of guilty to uttering a death threat to an officer at the
    Maplehurst correctional facility. At the time of sentencing, neither counsel
    nor the court adverted to the fact that if sentenced to six months or more, due
    to his immigration status, the appellant would face deportation without any
    right of appeal pursuant to the
Immigration and Refugee Protection Act,
S.C. 2001, c. 27, s. 36(1)(a). He asks this court to admit fresh evidence
    related to his immigration status and to reduce the sentence to six months less
    a day.

[2]

The appellant, now 30 years old, is a landed
    immigrant. He came to Canada at the age of 11. His history is complex and
    difficult. His family originates from Crimea, then in the Ukraine, and moved to
    Kenya for employment purposes. The Kenyan government ejected all foreign
    nationals after the 1998 bombing of the American Embassy. At that point, the
    family was rejected both by Russia and by the Ukraine. The appellant arrived
    with his family in Canada as refugees in 1999.

[3]

Since arriving in Canada, the appellant has
    faced a number of very difficult problems. His mother suffered mental illness
    and the appellant was apprehended by the Childrens Aid Society. He lived in
    various group homes and suffered from mental health issues. The Childrens Aid
    Society took no steps to secure citizenship for the appellant whereas the
    appellants siblings were placed in foster homes and they did obtain
    citizenship.

[4]

The appellant suffers from various mental health
    illnesses, including ADHD, bi-polar disorder, depression and marijuana induced
    psychosis. He has a lengthy criminal record including several violent offenses
    and convictions for failing to abide by court orders.

[5]

He lacks any support if deported to either
    Russia or the Ukraine. His mental health issues would make deportation to a
    place where he lacks family and community support unusually difficult.

[6]

The appellant has served the sentence under
    appeal and is now being held in immigration detention.

[7]

The Crown has also filed fresh evidence. There
    is an outstanding removal order against the appellant because of the sentence
    under appeal and a subsequent conviction for a weapons offence. He has no
    appeal from the removal order because of his eight-month sentence.

[8]

However, as a convention refugee, the appellant
    cannot be deported unless the Minister issues a danger opinion against him.
    The Canadian Border Services Agency has initiated the danger opinion process
    which is currently on-going. If his eight month sentence is reduced to less
    than six months, he would have a right to appeal the removal order. The danger
    opinion process would be suspended pending the determination of the appeal from
    the removal order by the Immigration Appeal Division.

[9]

In
R. v. Pham,
2013 SCC 15, [2013] 1
    S.C.R. 739, the Supreme Court of Canada held that a sentencing judge may take
    into account collateral consequences flowing from the immigration regime in
    determining an appropriate sentence. When those consequences were not known at
    the time of sentencing, they may be considered on appeal.
Pham
holds
    that the principles of individualization and parity, as well as the sentencing
    objective of assisting in rehabilitating offenders, make the collateral
    consequences of a sentence relevant (para. 11). This court summarized the
    effect of
Pham
in
R. v. Nassari
, 2015 ONCA 316 at paras 26  28.

[10]

Writing for the Court, Wagner J. held that when
    two possible sentences are both appropriate as regards the gravity of the
    offence and the responsibility of the offender, the most suitable one may be
    the one that better contributes to the offenders rehabilitation (para. 11).
    Wagner J. added at para. 12 that 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. He accepted the proposition that
    [b]urdens and hardships flowing from a conviction are relevant if they make
    the rehabilitative path harder to travel. However, the sentence must be fit
    having regard to the crime and the offender. Wagner J. cautioned, 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 or from
    other legislation, thus circumventing Parliaments will.

[11]

Wagner J. explained, at para. 14, a sentencing judge should therefore
    first determine whether the sentence that avoids the collateral consequences is
    even a possibility:

[A] sentencing judge may exercise his or her
    discretion to take collateral immigration consequences into account, provided
    that the sentence that is ultimately imposed is proportionate to the gravity of
    the offence and the degree of responsibility of the offender.

[12]

In our view, the collateral immigration
    consequences present in this case are clearly relevant to the appropriate
    sentence in this case. Those consequences were not known when the appellant was
    sentenced and it follows that they may be considered on appeal.

[13]

The question becomes whether the proposed
    sentence of six months less one day is a fit sentence and proportionate to the
    gravity of the offence and the degree of responsibility of the offender.

[14]

The sentencing judge stated that the eight-month
    sentence he imposed was at the very bottom end of the range and the Crown
    submits that any lower sentence would be unfit.

[15]

We disagree with that submission. In our view,
    the case law falls well short of establishing a range with an eight-month
    minimum for this offence. It is apparent from the record before us that the
    appellants mental illness was a major factor in this offence and has a
    significant bearing upon the degree of the appellants responsibility. While
    his mental illness does not excuse his conduct in law, we see it as a factor
    that should be taken into account in mitigation of sentence. We are satisfied
    that the criteria laid down in
Pham
for reducing the sentence have
    been met. Taking all of the appellants circumstances into account, a sentence
    of six months less one day is a fit sentence, particularly when combined with
    the collateral immigration consequences

[16]

For these reasons, the motions to admit fresh
    evidence are granted, leave to appeal sentence is granted, the sentence appeal
    is allowed and the sentence is reduced to six months less one day in custody.

Robert
    J. Sharpe J.A.

G.
    Pardu J.A.

Fairburn
    J.A.


