Earlier this week, t
he Supreme Court of Canada released their ruling in R. v. Pham 2013 SCC 15 which answers the question, “What weight should be given to collateral immigration consequences in sentencing?”
Mr. Pham was not a Canadian citizen. He was convicted at trial of producing marihuana and possessing it for the purpose of trafficking. The trial judge imposed a sentence of two years imprisonment after a receiving a joint recommendation on sentence from Pham’s lawyer and the crown prosecutor.
Only after the sentencing hearing did Pham learn he had lost the right to appeal a deportation removal order made against him pursuant to the Immigration and Refugee Protection Act. This was on account of the fact that he received a jail sentence of more than two years. Neither his lawyer, nor the judge were aware of this collateral immigration consequence at the time the sentence was imposed.
On appeal, Pham sought to reduce his jail sentence by one day so that he would be eligible to challenge his removal order. The Alberta Court of Appeal refused to modify the sentence given that the original sentence Pham received was not “unfit”.
Ultimately, the Supreme Court of Canada overturned the Alberta Court of Appeal and granted Mr. Pham a sentence reduction of one day so that he might appeal his removal order.
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.”
However, the court also warned that, “the 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.”
All of this is to say that the collateral consequences of a jail sentence such as immigration concerns should be only one factor to consider when crafting an appropriate sentence and should not, “dominate the exercise or skew the process either in favour of or against deportation.”
The Supreme Court was prepared to modify Pham’s sentence because either the sentencing judge was not aware of the collateral immigration consequences of the sentence or because his counsel had failed to advise the judge on this issue and the modification of sentence did not otherwise render the sentence unfit.
However, Justice Wagner cautioned, “where the issue of immigration consequences is brought to the trial judge’s attention and the trial judge applies the proper sentencing principles but nonetheless decides on a two-year sentence, then, absent fresh evidence, deference is owed to that decision”.
Therefore, absent new evidence not presented at the time of sentencing, the Pham decision stands for the proposition that appeal courts will rarely, if ever, interfere with a trial judge’s decision not to reduce a sentence in order to accommodate collateral immigration consequences even if the request is to simply reduce the appropriate sentence by just a single day.
