Court of Appeal clarifies how a judge is permitted to use immigration consequences in sentencing
Today the Ontario Court of Appeal released its decision in R. v. McKenzie, 2017 ONCA 128, ruling that immigration consequences do not warrant a significant departure from the appropriate range of sentences.
The facts as related by the court were:
 The appellant was convicted of sexual assault, contrary to s. 271(1)(b) of the Criminal Code, for which he received a sentence of nine months’ imprisonment, followed by two years of probation. He appeals on the basis that the sentence is unfit, especially in light of the immigration consequences he faces under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”).
 The appellant was found guilty after a judge-alone trial. At the time of the offence, the appellant, 33, and the complainant, 19, were co-workers at a restaurant. The incident giving rise to the charge occurred at a work Christmas party. They both consumed alcohol and danced with each other; as the complainant described it, she was, “winding and grinding on him.” The appellant touched the complainant’s buttocks and thighs. It made her feel uncomfortable, but she did not tell him that. The appellant and the complainant kissed on the lips, even though she did not wish to do so. She did not tell the appellant that she did not want him to kiss her. The appellant pulled the complainant into a washroom and then shut and locked the door. The appellant kissed the complainant’s neck, without objection. He pulled his pants down and then the complainant’s, turned her around, and pressed his penis into her anus, achieving partial penetration. At the time, the victim said, “No, no, no.” She said she felt pain. The penetration lasted for 20 to 35 seconds. When someone knocked on the bathroom door, the incident came to an end.
 The appellant testified, claiming that the complainant consented. The trial judge found that the complainant did not consent, and rejected the defence of honest but mistaken belief in consent, holding that the appellant had failed to take reasonable steps to ascertain whether the complainant was consenting, as required by s. 273.2(b) of the Criminal Code.
 In her Victim Impact Statement, the complainant said that she felt that the appellant took advantage of her that night. She reported feeling pain after the fact. The trial judge held that, while the offence was “significant”, the impact on the complainant fell “lower down on the scale than in many other cases.”
The circumstances of the offender are that:
 The appellant was 35 at the time of sentencing. He was born in Jamaica and came to Canada when he was about 20. His is a permanent resident.
 The appellant has worked regularly since his arrival. At the time of sentencing, he worked in a factory that makes fibreglass pallets. He also owns a barbershop and beauty supply store, employing others.
 The appellant is the father of two children born in Canada, who were 10 and 3 at the time of sentencing. He remains in a stable relationship with the mother of his youngest child. He provides financial and emotional support to both children, and sends money to his mother in Jamaica.
 A Pre-Sentence Report (PSR) was prepared. The trial judge observed at para. 25: “overall, the pre-sentence report is positive.” After considering the input of the appellant’s friends and family, who consider the appellant to be an upstanding individual, the author of the PSR said:
The subject continues to maintain his innocence, which could indicate a lack of insight into his offence behaviour. He admits to having sexual intercourse with the victim…, however maintains that the act was consensual. He stated that he is sorry for his actions (referring to his infidelity), as it has triggered trust issues in his current relationship.
. . .
He admitted to engaging in sexual behaviour with the victim but denied it was done in a forceful manner; noting that there was consent from the victim. Minimization of the subject’s actions was present throughout the interview, as he alluded to the victim being flirtatious with him.
. . .
Victim awareness by the subject is non-existent as he [is] not of the belief that he did anything illegal; only unfaithful.
The court stated further that:
 The immigration consequences of the appellant’s offending are extremely serious. Under s. 36(1)(a) of the IRPA, a permanent resident is “inadmissible” on grounds of “serious criminality.” When R. v. Pham, 2013 SCC 15(CanLII),  1 S.C.R. 739 was decided, s. 64(2) provided that a removal order based on inadmissibility due to “serious criminality” could be appealed to the Immigration Appeal Division (“IAD”) “with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.” Upon appeal, the IAD can stay a removal order if it is satisfied “that sufficient humanitarian and compassionate considerations warrant special relief in all of the circumstances of the case”: IRPA, s. 68(1). This provision has since been amended by s. 24 of the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16, which ousts the right to appeal “with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).”
 In Pham, Wagner J., writing for the court, discussed the interaction of immigration consequences with the principles of sentencing set out in ss. 718, 718.1 and 718.2 of the Criminal Code. Referring to proportionality, parity, rehabilitation and denunciation, Wagner J. held at paras. 11, 14 and 16:
In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2(1)(a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation.
. . .
The general rule continues to be that a sentence must be fit in having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or he 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.
. . .
These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.
 Returning to the facts of this case, the trial judge did give serious consideration to the appellant’s immigration situation. He thoroughly considered the issue and, after “anxious consideration”, concluded that it would not be appropriate to impose a sentence of imprisonment that was less than six months. Indeed, he could find no jurisprudential support for such a lenient sentence in the circumstances of this case, nor could counsel on appeal point us to any authority. To have imposed a sentence of less than six months’ imprisonment would have involved reducing the sentence solely for the purpose of avoiding the impact of the IRPA, something that the court in Pham, para. 15, held inappropriate. See also R. v. Badhwar, 2011 ONCA 266 (CanLII), 270 C.C.C. (3d) 129, at paras. 42 to 45; R. v. Freckleton, 2016 ONCA 130(CanLII), 128 W.C.B. (2d) 434, at para. 2; and R. v. Mohammed, 2016 ONCA 678 (CanLII), 132 W.C.B. (2d) 383, at para. 3. It would have resulted in a demonstrably unfit sentence for a “significant sexual assault” involving anal penetration.
While the Court of Appeal is sympathetic to the immigration consequences an offender will face from a sentence, the Court was cognizant of not placing undue emphasis on the immigration consequence and thereby creating a separate sentencing regime for offenders facing deportation. This case reiterates that immigration consequences are only one factor that a sentencing judge must take into account. And while the consequence of deportation will likely weigh heavily into the calculus, a sentencing judge must not allow that one factor to dominate the sentencing process. For many offenders, this decision will be a disappointment. It reinforces the importance of making effective sentencing submissions to ensure the best result.
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