Toronto criminal lawyer Brian Weingarten Defence Law

On May 15, 2013, the Ontario Court of Appeal released its judgment in the case of R. v. Lu. This case involved the appeal of the sentence imposed on Ms. Lu. Ms. Lu, a Taiwanese woman, was not a Canadian citizen. She came to Canada on a student visa in 2006. On the evening of July 13, 2008, her partner Mr. Precup hit a pedestrian with his car and did not stop his car after the accident. The pedestrian later died from his injuries. During police questioning concerning the incident, Ms. Lu denied any knowledge of the incident and was subsequently charged with obstruction of a peace officer under s. 129 of the Criminal Code. She later pleaded guilty to the offence. At the sentencing hearing, the defence argued for the imposition of a conditional discharge. The Crown sought a suspended sentence and a period of probation.

Under the Immigration and Refugee Protection Act, s. 36(2), a foreign national is deemed inadmissible to Canada on grounds of criminality if they have been convicted of an offence in Canada punishable by way of indictment. Section 36(3)(a) of the Act deems hybrid offences to be indictable for the purpose of the section. Because a discharge is not deemed to be a conviction under the Criminal Code, the defence sought the imposition of a discharge in order to avoid Ms. Lu’s deportation.

The sentencing judge ultimately imposed a suspended sentence together with 6 months probation and 75 hours of community service. As such, Ms. Lu became inadmissible to remain in Canada.

Ms. Lu appealed the sentence to the Summary Appeal Court Judge. The defence argued that an absolute discharge should be imposed because of the immigration consequences flowing from the original sentence. While the Court was sympathetic to Ms. Lu’s position, the appeal was dismissed. The case was then appealed to the Ontario Court of Appeal.

The central question on the appeal was whether the Court of Appeal should substitute a conditional discharge for the suspended sentence imposed.

The Court of Appeal proceeded to address the recent Supreme Court case of R. v. Pham. In R. v. Pham, the accused, a non-citizen, was convicted of two drug related offences. Under the immigration and Refugee Protection Act, a non-citizen sentenced to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her. The question in this case was how a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account when determining the appropriate sentence.

The Supreme Court held that the significance of collateral immigration consequences depends on the facts of the particular case. These consequences, however, are only one of the relevant factors that a sentencing judge must take into account when crafting an appropriate sentence. The Supreme Court did hold that immigration consequences might be relevant to sentencing. However, these consequences must not be allowed to skew the process either in favour or against the deportation of the accused. The paramount consideration in crafting a sentence is whether the particular sentence would be appropriate in light of the gravity of the offence and the degree of responsibility of the offender. The Supreme Court, however, did explain that an appeal court is permitted to intervene and vary a sentence if a sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel failed to advise the judge on this issue.

Returning to R. v. Lu, the Ontario Court of Appeal explained that appeal courts are only to interfere with a sentencing decision: 1) where the sentence is demonstrably unfit, or 2) where the sentencing decision reflects an error in principle, such as the failure to consider a relevant factor, or the over-emphasis of a relevant factor. Appellate courts cannot interfere with a sentence simply because it would have weighed the relevant factors differently.

The Court of Appeal reviewed the reasons of the Summary Court Appeal Judge and held that, while a conditional discharge was a legally available sentence, there was nothing inherently wrong with the judge concluding that it was not a fit sentence. In this case, the Judge did consider the collateral immigration consequences associated with a suspended sentence as part of Ms. Lu’s personal circumstances. The Judge correctly observed that a discharge may not be granted if to do so would be contrary to the public interest. The Judge held that anything less than a suspended sentence would not be a fit sentence. The Court of Appeal agreed with the Judge’s reasons in their entirety and dismissed Ms. Lu’s appeal.

For the full judgment see:

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