by Jennifer Duncan

Since 2005, the British Columbia Court of Appeal has heard a number of sentence appeals involving the effect of a two year sentence on a permanent resident’s ability to appeal a deportation order. The issue appears to have arisen first in Ontario in R. v. Hamilton (2004), 186 C.C.C. (3d) 129 (C.A.) and R. v. Spencer(2004), 186 C.C.C. (3d) 181 (C.A.).

These decisions underscore the critical importance of ascertaining a client’s immigration status and advising the sentencing judge accordingly.

If a permanent resident has been convicted of an offence in Canada for which a maximum term of imprisonment of 10 years or more could be imposed, he or she becomes inadmissible to Canada and will be issued a deportation order. A permanent resident has the right to appeal such a deportation order to the Immigration Appeal Division, but this right of appeal is lost if the permanent resident receives a sentence of two years or more. The calculation of two years includes pre-trial custody, so an individual who receives a one year sentence in addition to double credit for six months pre-trial custody, has received a two year sentence.

In R. v. Kanthasamy, [2005] B.C.J. No. 517, BCCA 135, the appellant received the equivalent of a two year sentence. His counsel did not alert the sentencing judge to the effect of a two year sentence on the appellant’s status in Canada. In allowing the appeal and reducing the sentence by one day, Mr. Justice Donald said:

[23] In my view, the substitution of a term of two years less a day does no violence to the sentence imposed by the trial judge and avoids an unintended consequence of great significance. I am persuaded by the appellate authority to which I have referred that the adjustment in the sentence is within our review power and should be exercised to prevent the disproportionate ramifications of a single day of imprisonment.

Kanthasamy has been followed in a number of decisions, including R. v. Leila, [2008] B.C.J. No. 30 and R. v. Q.A.M., [2005] B.C.J. No. 2700. Leila is noteworthy for two reasons. First, Mr. Leila entered a guilty plea to a number of offences, the most serious of which was possession of stolen property in excess of $5,000. That offence, which is fairly common, carries a maximum period of imprisonment of 10 years and thus has the potential to trigger a deportation problem. Second, Mr. Leila’s counsel actually sought a two year sentence so his client could access federal programs. The sentencing judge acceded to what was effectively a joint submission. When the deportation issue became apparent, a sentence appeal was pursued. The Court of Appeal reduced the sentence so it was effectively two years less a day.

Offenders who receive sentences well in excess of two years may not expect reductions in sentence as a result of the risk of deportation. In R. v. Worrell, [1989] B.C.J. No. 236, an appeal against a six year sentence, Mr. Justice Seaton noted “The likelihood, or possibility, of deportation might be a proper factor for consideration in the case of a minor offence, but I think it’s not a factor of significance in a serious offence and I think this to be an extremely serious offence.” The Court reached a similar conclusion in R. v. Fuentes (1994), 51 B.C.A.C. 164 and R. v. Dhillon, 2006 BCCA 531.

Most recently, in R. v. Edy Arismendy Martinez-Marte, 2008 BCCA 136, the Court of Appeal refused an extension of time for a drug trafficker who sought to appeal an effective sentence of three years imprisonment. The appellant wanted to argue that the sentence had a serious unintended consequence to his status in Canada and should be reduced to two years less a day. Chief Justice Finch for the Court noted that the sentence sought was below the range of appropriate sentence for the offence committed and would not have been possible, given the very serious circumstances of the offence. The Chief Justice concluded by saying:

[19] A number of recent cases in this Court have raised this issue. It is to be hoped that in the future, the record will demonstrate adequate consideration of the immigration consequences of any sentence to be imposed. It is perhaps not too much to ask the Crown to address these matters before the sentencing judge in the event that defence counsel fails to do so.

This article was published in the June 2008 issue of BarTalk. © 2008 The Canadian Bar Association. All rights reserved.