



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hassan, 2017 ONCA 1008

DATE: 20171220

DOCKET: M48530 (C64589)

Epstein J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Mustafa Hassan

Appellant (Applicant)

Colin Wood, for the applicant

Jeanette Gevikoglu, for the respondent

Heard: December 11, 2017

ENDORSEMENT

[1]

On February 21, 2014, the applicant was arrested on suspicion of
    trafficking cocaine and marijuana. A search of the applicant incident to his
    arrest yielded, among other things, 88 grams of cocaine. The applicant was
    subsequently convicted of possession of cocaine for the purpose of trafficking
    and sentenced to two years in custody, less five months pre-sentence credit.

[2]

The applicant has appealed his sentence. On this application, he seeks
    bail pending his sentence appeal pursuant to s. 679(4) of the
Criminal Code
.

[3]

The Crown opposes bail. In its view, the applicant has not demonstrated
    that his appeal has sufficient merit such that his detention would cause
    unnecessary hardship.

[4]

For the reasons that follow, the application is dismissed.

THE APPLICANTS BACKGROUND

[5]

The applicant is a permanent resident of Canada. He was born in Iraq in
    1991 and immigrated to Canada with his family in 2005. In the words of the
    sentencing judge, after arriving in Canada as a teenager, the applicant
    experienced difficulties as he faced integration into a free society with a
    new language, radically different cultural norms and educational challenges.
    In 2009, the applicant was convicted, as a youth, of breaking and entering,
    theft (x2) and failure to comply with a recognizance (x3). He was sentenced to
    time served of 4 days and 15 months probation. The applicants adult record
    consists of convictions for assault in 2010 (for which he received a suspended
    sentence and 12 months probation) and failure to comply with a recognizance in
    2011 (for which he was sentenced to one day in custody, along with credit for
    one day of pre-sentence custody).

[6]

In spite of these difficulties, the applicant has much going for him. He
    has the support of his father, an engineer employed in the aviation industry,
    and of his mother, a professor at the University of Waterloo. The applicant has
    a long-term romantic relationship with a woman he hopes to marry. He is
    self-employed as a personal trainer and runs his own business.

REASONS FOR SENTENCE

[7]

In comprehensive and thoughtful reasons, the sentencing judge reviewed
    the background of the applicant and his family and noted the importance of
    considering the applicant in [the] context of achievement, hard work and
    commitment by his immediate family members not only to themselves but to this
    country.

[8]

The sentencing judge also noted the numerous letters of support filed on
    behalf of the applicant in which he was generally described as a kind, caring
    and supportive person. The sentencing judge accepted this description of the
    applicant, but, in the light of the applicants having been caught with a
    considerable amount of cocaine in his possession, found him also to be a
    sophisticated and knowledgeable young man prepared to accept the risks of
    participating in serious criminality.

[9]

After noting the devastating effects of drugs such as cocaine on
    individuals and communities, the sentencing judge turned to the submissions of
    counsel. The Crown took the position that the appropriate range of sentence was
    12 months to 4 years. The defence submitted that the appropriate range was 9 to
    12 months, but sought a reduced sentence between 2 months to 6 months less a
    day, on three grounds:

(1)

credit for the applicants
    restrictive pre-sentence bail conditions for a bail that extended over 28.5
    months;

(2)

sentence reduction for a proven
    breach of the applicants
Charter
rights (the installation of cameras
    in the common areas of the applicants apartment building without permission);
    and

(3)

consideration of collateral
    immigration consequences stemming from the applicants conviction.

[10]

In
    support of argument (3), the defence filed an immigration opinion letter to the
    effect that the applicant would be at risk of being deported to Iraq without a
    right of appeal if he received a custodial sentence of six months or greater.
    The author of the letter observed that due to the applicants conviction, an
    officer at the Canada Border Services Agency (CBSA) would have discretion to
    commence inadmissibility proceedings against him by referring his matter to a
    ministers delegate. The delegate, in turn, could refer the matter to an
    inadmissibility hearing at the Immigration Division of the Immigration and
    Refugee Board, where a removal order would be issued. The author noted that a
    sentence of less than six months will allow [the applicant] to appeal his
    removal order. However, if a sentence of six months or greater were imposed,
    the applicant would lose his right of appeal.

[11]

The
    sentencing judge imposed a sentence of 24 months, less 5 months credit for the
    applicants restrictive bail terms, to be followed by two years probation. The
    sentencing judge credited the applicant for one months custody on account of a
    curfew imposed as part of his bail conditions, and four months custody on
    account of the applicants extended period of house arrest. The sentencing
    judge did not reduce the applicants sentence on the basis of the
Charter
breach, given her finding that the breach did not seriously undermine the
    applicants
Charter
-protected interests.

[12]

The
    sentencing judge carefully considered the applicants submissions regarding
    immigration consequences. She noted that she had discretion to take collateral
    immigration consequences into account when determining an appropriate sentence,
    provided that the sentence ultimately imposed remained proportionate to the
    gravity of the offence and the degree of responsibility of the offender. The
    first step in this inquiry, in the sentencing judges view, was to determine
    whether the sentence that avoids the collateral consequences is even a
    possibility. The sentencing judge ultimately determined that a sentence
    between two months and six months less a day was not a possibility for the
    applicant. While she agreed with the defence that the applicant was well on the
    road to rehabilitation, the sentencing judge found that the gravity of the
    applicants offence and the principles of sentencing  particularly general
    deterrence  called for a significantly longer sentence than six months.

[13]

However,
    after the sentencing judge sentenced the applicant, she made the following
    comments about possible immigration consequences flowing from his conviction
    and sentence:

THE COURT: Now, heres what Im also going to order a
    transcript of this part. All right? There is no doubt in my mind that youve
    seen the error of your ways. Theres no doubt in my mind that you have a
    supportive and loving family. Theres no doubt in my mind now, that you have
    ties to his community.
In my view, at this point in time, your departure
    from this country would not serve anybodys interests, back to Iraq. All right?
    Im going to order a transcript of that and just leave it in the file.

Having
    said all of that, you noticed I didnt say, Im not convinced you wont be
    back. I am convinced that you wont be back before this court. I will not go
    that far. There is still need for specific deterrence in this case, in my view,
    given your criminal history. All right? So, specific deterrence still plays a
    factor.
However, for the purpose of any consequences, Ill order a
    transcript to take it with you. I see no benefit to deporting you back to Iraq.
    I think you can and you have the potential to be a very valuable, contributing
    member of Canadian society.
All right? Thank youvery much. [Emphasis
    added.]

ANALYSIS

Leave to Appeal

[14]

Rule
    31 of the
Criminal Appeal Rules
, SI/93-169 directs that, before
    disposing of this bail application, I must first determine whether the
    applicant should be granted leave to appeal his sentence: see also
Practice
    Direction Concerning Criminal Appeals at the Court of Appeal for Ontario
(March 1, 2017).

[15]

In
    my view, the applicant should be granted leave to appeal his sentence. While I
    have significant concerns regarding the merits of the pending appeal  and have
    factored those concerns into my below reasons for denying bail  I am satisfied
    the appeal is not so devoid of merit as to fail the low bar required to obtain
    leave to appeal sentence from this court.

[16]

Having
    been granted leave, the applicant is entitled to have his bail application
    considered on the merits:
Criminal Code
, s. 679(1)(b).

Bail Pending Appeal

[17]

To
    grant the applicant judicial interim release pending his sentence appeal, s.
    679(4) of the
Code
requires me to be satisfied that: (1) the
    applicants appeal has sufficient merit that, in the circumstances, it would
    cause unnecessary hardship if he were detained in custody; (2) he will
    surrender himself into custody in accordance with the terms of the order; and
    (3) his detention is not necessary in the public interest.

[18]

There
    is no real dispute that the second and third elements of s. 679(4) are
    satisfied. The main issue is whether the applicant has satisfied the first
    element, which calls for (1) a threshold inquiry into the merits of his pending
    appeal and (2) an assessment of the hardship the applicant would experience if
    bail were denied. After viewing those factors in conjunction, I have concluded
    this application should be dismissed.

The Merits of the Appeal

[19]

The
    threshold assessment of merit mandated by s. 679(4)(a) has been described by
    some courts as a search for arguable merit:
R. v. Ewanchuk
, 2000 ABCA 303
, 271
    A.R. 118 (Alta. C.A.), at paras. 5-6;
R. v. Figiel
, 2015 ABCA 19, 588
    A.R. 372, at para. 4. However the test is worded, I am of the view that the
    standard established in s. 679(4)(a) is more stringent than the test for leave
    to appeal sentence: The Honourable Justice Gary T. Trotter,
The Law of Bail
    in Canada
, 3rd ed. (Toronto: Carswell, 2010), at 10-38. I am not convinced
    the applicant has met this higher threshold.

[20]

The
    applicants sentence appeal relies on three alleged errors in the decision
    below. First, the applicant submits that the trial judge erred by refusing to
    grant sentence reduction for the s. 8
Charter
infringement in
    accordance with
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206.
    Second, the applicant argues that the trial judge erred in the limited credit
    she gave for the 28.5 months during which he was subject to a curfew while on
    bail. Third, the applicant submits the trial judge erred by failing to properly
    appreciate the collateral immigration consequences of the sentence she imposed.

[21]

The
    applicant argued his first two grounds of appeal in the proceedings below. They
    were expressly considered and rejected by the sentencing judge. The applicant
    has not, in my view, identified any error in principle with the sentencing
    judges analysis on either point and faces an uphill battle to do so on appeal.
    In any event, during oral argument, it became clear that the focus of the
    applicants sentence appeal is on his submission about collateral immigration
    consequences, which he also raised before the sentencing judge.

[22]

On
    that issue, the applicant submits the sentencing judge misunderstood the
    immigration opinion letter filed by the defence, and consequently failed to
    appreciate the actual consequences of her decision to impose a sentence of
    over six months.

[23]

The
    opinion letter set out that the applicants conviction for possession of
    cocaine for the purposes of trafficking would render him inadmissible to Canada
    due to serious criminality under s. 36(1) of
the Immigration and Refugee
    Protection Act,
S.C. 2001
, c. 27.
The following is the relevant
    passage from the letter:

At the admissibility hearing the Ministers delegate will
    likely attempt to advocate that a Removal Order should be issued and the
    Immigration Division would have no other option but to issue a deportation
    order.

The Immigration Division lacks jurisdiction to consider
    humanitarian or compassionate factors or to stay the removal order once it
    determines identity, the fact of the conviction and the fact of the status of
    the person concerned. The procedure at the Immigration Division, insofar as it
    relates to matters of crimes committed in Canada, is mostly pro forma in
    nature. It is important to emphasize that the removal order issued by the
    Immigration Division would be a deportation order. The person concerned would
    not be able to return to Canada at any time in the future until he received
    written permission to do so, which would be near impossible to obtain until he
    was no longer inadmissible.

[24]

The
    letter also explains why a sentence of six months less a day would provide the
    applicant with the opportunity to pursue an appeal to the Immigration Appeal
    Division should he be found inadmissible.

A permanent resident would, assuming he spent less than six (6)
    months in prison rising from a conviction, have recourse to an appeal at the
    Immigration Appeal Division. Permanent residents who have had little contact
    with their country of origin, who have been living in Canada for many years,
    who have strong ties to Canada and who have a possibility of rehabilitation may
    be able to stay their removal on humanitarian and compassionate grounds at the
    Immigration Appeal Division. This is often the only recourse which would allow
    permanent residents who have been inadmissible for serious criminality pursuant
    to section 26(1) of the
IRPA
to remain in Canada.

[25]

The
    applicant argues that the sentencing judge misapprehended the letter. As
    mentioned earlier in these reasons at para. 13, the sentencing judge ordered
    for the applicant a transcript of proceedings that included her comments
    advocating against the applicants deportation. These comments, in the
    applicants view, suggest that the sentencing judge mistakenly believed that the
    issuance of a removal order was a matter of discretion, one in which her
    opinion on the applicants suitability (or lack thereof) for deportation would
    carry some weight.

[26]

I
    see two significant difficulties with this position that, in my view, militate strongly
    against granting bail.

[27]

First,
    I am not convinced the sentencing judge misunderstood the immigration opinion
    letter. While the opinion letter states that 
[a]t the admissibility hearing
the Immigration Division would have no other option but to issue a
    deportation order, the author also indicates that at an earlier stage of the
    removal process, a CBSA officer 
has discretion
to issue a section 44
    Report and render the person-concerned inadmissible at the admissibility
    hearing (emphasis added in both quotations). The sentencing judge may simply
    have hoped that her comments would be included in the materials reviewed by a
    CBSA officer, who, according to the opinion letter, would have discretion over
    whether to commence inadmissibility proceedings against the applicant.
[1]

[28]

Second,
    even assuming the sentencing judge misapprehended the immigration lawyers
    opinion, the applicant would still need to demonstrate that this error had an
    impact on his sentence:
R v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R.
    1089, at para. 11. I anticipate the applicant will face significant difficulty
    meeting this requirement on his sentence appeal. The sentencing judges
    comments  delivered after she had sentenced the applicant  do not detract
    from her central conclusion that a sentence of six months less a day was not
    appropriate given the gravity of the applicants offence and the need for
    general deterrence. The applicant must ultimately overcome that finding to
    succeed on appeal  unless he does so, this court will not have discretion to
    impose a sentence that preserves his appeal rights under s. 64(1) of the
IRPA
:
R. v. Pham
, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 14.

[29]

I
    see little merit in the submission that the sentencing judge erred by finding
    that a sentence of six months less a day would have been inappropriate for the
    applicant. The sentencing judges conclusions on this point are owed deference
    and do not, in my view, disclose any error in principle.

[30]

These
    difficulties are compounded by the fact that, according to the immigration
    opinion letter, the length of sentence necessary to trigger the relevant
    provisions of the
IRPA
is measured 
prior to any credit given for
    pre-sentence custody
 (emphasis added). This position is borne out by
    decisions of the Federal Court and this court: see
Brown v. Canada
    (Minister of Public Safety & Emergency Preparedness)
, 2009 FC 660, 81
    Imm. L.R. (3d) 90, at paras. 18-23;
Ariri v. Canada (Minister of Public
    Safety & Emergency Preparedness)
, 2009 FC 834, 83 Imm. L.R. (3d) 162,
    at para. 17-19;
R. v. McKenzie
, 2011 ONCA 42, 280 O.A.C. 175, at para.
    14;
R. v. Freckleton
, 2016 ONCA 130, 39 Imm. L.R. (4th) 158, at para.
    6. In other words, to avoid the collateral immigration consequences the
    applicant complains of, this court must vary his sentence to six months less a
    day before accounting for any pre-sentence credit. This outcome would
    contradict the defence position at sentencing that the appropriate range of
    sentence, not including pre-sentence credit, is between 9 and 12 months. It would
    also run counter to the position adopted in the applicants factum for these
    bail proceedings, in which he submits that [a] sentence of 11 to 12 months
    custody would have been fit and within the range of available sentences for
    [this] offence.

[31]

In
    my view, therefore, an assessment of the merits of the appeal weighs against
    granting bail.

Hardship

[32]

I
    am required under section 679(4)(a) to consider not only the merits of the
    applicants sentence appeal, but also whether denying the applicant bail
    pending appeal would cause unnecessary hardship. The two factors are
    inter-related: the weaker the merits of a pending appeal, the harder it will be
    for an applicant to show that hardship caused by continued incarceration is
    unnecessary. My above observations regarding the merits of this particular
    appeal therefore weigh strongly against a finding of unnecessary hardship.
    Even assuming the applicants sentence appeal has greater merit than I have
    recognized, however, I am still of the view that unnecessary hardship has not
    been made out.

[33]

Of
    course, incarceration is by its nature a hardship.
Unnecessary
hardship means something more:
The Law of
    Bail in Canada
, at 10-37-10-39. To show unnecessary hardship, an applicant
    must demonstrate that his appeal is sufficiently meritorious such that, if
    judicial interim release is not granted, he will have spent more time in
    custody than what is subsequently determined to be fit:
The Law of Bail in
    Canada
, at 10-39. Accordingly, I will also consider whether, even if the
    applicant is ultimately successful on appeal, it is likely that he will have
    served more time in custody than he ought to have spent.

[34]

The
    applicant has been in custody since his sentencing on November 16, 2017. He
    seeks to have his sentence varied to six months less a day. Assuming he is
    successful on appeal, he would be eligible for release by mid-March in 2018. I
    am confident the appeal can be disposed of on an expedited basis before then,
    even allowing for some delay for the decision to be reserved, written and
    released. Consequently, I do not think it is likely the applicant will have
    spent more time than necessary in custody even if he succeeds on appeal. In
    these circumstances, I am unable to find that the applicants continued
    detention would cause 
unnecessary
hardship.
[2]
His bail application must therefore be denied.

DISPOSITION

[35]

This
    has not been an easy case for the determination of bail. As I have attempted to
    stress in these reasons, the applicants personal circumstances, including his
    immigration issues, are compelling. I share the sentencing judges view that
    the applicants deportation from Canada would not advance the public interest.
    That said, I am not satisfied that the applicant has met his onus under s.
    679(4) to obtain judicial interim release. The application is therefore
    dismissed.

[36]

I direct that the applicants sentence appeal be expedited to the
    first date available from the Registrar of this court. Counsel should contact
    the Registrar for this purpose on their receipt of these reasons.

Gloria Epstein J.A.





[1]
The opinion letter is silent on whether the materials reviewed by a CBSA
    officer would include the transcript of the decision below.



[2]
This analysis assumes the applicant is seeking an
effective
sentence of
    six months less a day. As mentioned above, in his factum, the applicant states
    the appropriate range of sentence is between 11-12 months, and only arrives at
    a six month sentence following deductions for pre-sentence credit (5 months)
    and the
Charter
breach (1 month). Had the applicant argued for a
formal
sentence of six months less a day (i.e. an effective sentence of one
    month), I would still have dismissed this bail application, on the grounds that
    the appeal does not have sufficient merit such that the risk of the applicant
    spending unnecessary time in custody amounts to unnecessary hardship.


