



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Edwards, 2015 ONCA 537

DATE: 20150717

DOCKET: C53924

Hoy A.C.J.O and Simmons and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul King Edwards

Appellant

Paul J.I. Alexander, for the appellant

Roger A. Pinnock, for the respondent

Heard: In Writing

On appeal from the sentence imposed on May 2, 2011 by
    Justice David W. Salmers of the Superior Court of Justice.

ENDORSEMENT


[1]

Following his conviction on a charge of fraud over $5,000, on May 2,
    2011, the appellant was sentenced to 26 months imprisonment less credit of two
    months and one day for pre-sentence custody, resulting in a net sentence of
    imprisonment of two years less one day
[1]
.

[2]

On December 13, 2011 we allowed the appellants sentence appeal and
    granted him 202 days additional credit for pre-sentence custody.

[3]

The appellant now applies to re-open his sentence appeal and to
    introduce fresh evidence on appeal concerning the immigration consequences of
    his sentence.

[4]

In all the circumstances of this case, we agree that the appellants
    sentence appeal should be re-opened, that fresh evidence should be admitted and
    that the appellants sentence should be further reduced. We reach these
    conclusions for the following reasons.

[5]

First, a sentence appeal may be re-opened where, at the original appeal
    hearing, the court did not have the information needed to fully and properly
    adjudicate the issue of sentence on the merits:
R. v. De la Cruz
,
    [2003] O.J. No. 3235 (C.A.), at para. 4.

[6]

Second, the appellants fresh evidence demonstrates that he was unaware
    when he was sentenced and at the time of his original appeal that, because he
    was sentenced to a sentence of imprisonment of two years or more, he would have
    no right to appeal a deportation order made against him. In the result, he did
    not bring this factor to the attention of the sentencing judge or this court.

[7]

Third, the certainty of deportation is a factor that can be considered
    in determining the appropriate sentence in a particular case:
R. v. B.R.C.
,
    [2010] O.J. No. 3571 (C.A.) at para. 8;
R. v. Hamilton
(2004), 72 O.R.
    (3d) 1 (C.A.), at para. 156.

[8]

Fourth, the appellants personal circumstances make the impact of his
    potential deportation a particularly compelling factor in assessing a fit
    sentence. The appellant is now 45 years old and has lived in Canada since he
    was 18. He has been in a long term relationship with a Canadian citizen, has a
    young child who is a Canadian citizen and has close connections to family in
    the Greater Toronto area. In contrast, he has no family, friends, contacts,
    employment or housing prospects in his homeland, Jamaica. Moreover, he has
    served the full sentence that was originally imposed.

[9]

Fifth, Crown counsel at trial took the position that a fit sentence fell
    within the range of two to three years imprisonment. In that context, a gross
    sentence of two years less a day imprisonment cannot be seen as unfit.

[10]

Sixth,
    while the gross sentence of 26 months imprisonment imposed by the trial judge
    was not unfit, it was imposed  and upheld  without all the information
    necessary to impose an appropriate sentence on the merits.

[11]

In
    all the circumstances, the appellants request to re-open his sentence appeal
    is granted, fresh evidence is admitted and leave to appeal sentence is granted.
    The sentence appeal is allowed, the sentence of 26 months imprisonment is set
    aside, and a sentence of two years less a day imprisonment is imposed less
    credit for two months and 203 days presentence custody. All other terms of the
    original sentence remain the same.

Alexandra Hoy A.C.J.O.

Janet Simmons

R.A. Blair





[1]

The appellant was also ordered to make restitution in the
    amount of $63,396.30.


