Immigration Consequences at Sentencing: What R v Pham Means Today

Yes. Justice Wagner on behalf of the unanimous Court recognized that judges are entitled to consider collateral immigration consequences when sentencing an offender provided that “the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender” (R v Pham, 2013 SCC 15, para. 14).

Only within the range of fit sentences. The Court warned that “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 Parliament’s will” (Pham, para. 15).

Mr. Pham, who was not a Canadian citizen, was convicted of producing marihuana and possessing it for the purpose of trafficking. On a joint recommendation, the trial judge imposed two years’ imprisonment. Nobody raised the fact that a sentence of two years would cost him his appeal against removal from Canada.

The Supreme Court overturned the Alberta Court of Appeal and reduced the sentence by one day, to two years less a day, so that Mr. Pham could appeal his removal order. The Crown had conceded that the shorter sentence was still fit.

It can if the sentencing judge was not told about the consequence and the reduced sentence is still fit. But where the issue was brought to the trial judge’s attention and the judge still chose the longer sentence, “absent fresh evidence, deference is owed to that decision” (Pham, para. 23).

At the time, s. 64(2) of the Immigration and Refugee Protection Act removed the right to appeal a removal order to the Immigration Appeal Division for a sentence of at least two years. Since June 19, 2013, the threshold has been six months.

A permanent resident is inadmissible for serious criminality if convicted of a federal offence with a maximum of at least 10 years, or if a term of imprisonment of more than six months is imposed (IRPA s. 36(1)⁠(a)). If the sentence is imprisonment of six months or more, there is no appeal to the Immigration Appeal Division (s. 64(2)).

Not under s. 36(1)⁠(a). In Tran v Canada, 2017 SCC 50, the Supreme Court held that a conditional sentence served in the community is not a “term of imprisonment” in that provision. The offence’s maximum penalty can still make it serious criminality.

A discharge is not a conviction: the offender is deemed not to have been convicted (Criminal Code s. 730(3)). The inadmissibility rules in s. 36 of the IRPA are based on a conviction.

Yes, on conviction. Impaired driving, over 80 and refusal carry a maximum of 10 years on indictment (Criminal Code s. 320.19(1)), and because they can be prosecuted either way they are treated as indictable (IRPA s. 36(3)⁠(a)). That meets the 10-year test in s. 36(1)⁠(a) whatever sentence is imposed.

If the offence could have been prosecuted by indictment, yes. A hybrid offence is deemed indictable even when prosecuted summarily (IRPA s. 36(3)⁠(a)), and a foreign national is inadmissible for a conviction for an indictable offence (s. 36(2)⁠(a)).

Possibly. Under R v Wong, 2018 SCC 25, an uninformed plea can be withdrawn if you file an affidavit showing a reasonable possibility that you would have gone to trial, or pleaded guilty only on different conditions, had you known. The court tests that claim against the objective circumstances.