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Criminal - Sentencing - Immigration Consequences. R. v. Al-Gburi
In R. v. Al-Gburi (Ont CA, 2026) the Ontario Court of Appeal considered the role of immigration consequences in criminal sentencing:[62] Collateral immigration consequences of a sentence for the particular offender may be taken into account in sentencing. Their weight varies depending on the case. A sentence “must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her 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”: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 13-14.
[63] The errors in the trial judge’s summary of the immigration consequences do not rise to a level that justifies appellate intervention. The trial judge misstated the prerequisite to deemed inadmissibility for serious criminality as including a sentence of six months or more.[4] The error was harmless. No one suggested in this case that the sentence should be less than six months, and therefore the consequences that might occur in that situation were not pertinent and could not have impacted on the sentence imposed.
[64] The trial judge’s statement that a deportation order could be appealed if the sentence exceeded six months was incorrect. There would be no right of appeal from a deportation order if the sentence were six months or more. But more pertinent to sentencing is the risk of deportation itself: R. v. Sousa, 2023 ONCA 100, 165 O.R. (3d) 641, at para. 10-11, 14. The presence or absence of a right of appeal is relevant to sentencing to the extent it sheds light on the likelihood or risk of deportation.
[65] Here, given the appellant’s status as a convention refugee, a deportation order might not be sought. In any event, the appellant would not be deportable unless the Minister of Immigration, Refugees and Citizenship made a finding that he was a danger to the Canadian public. “Serious criminality does not suffice. The Minister must also be of the opinion that the person is a danger to the public”: Makomena v. Canada (Citizenship and Immigration), 2019 FC 894, at para. 4; Immigration and Refugee Protection Act, s. 115(1) and (2). Before a danger to the public finding is made, the refugee is notified and given an opportunity to respond; if made, the danger to the public finding may be judicially reviewed: Makomena, at paras. 5 and 25-26, citing Ragupathy v. Canada (Minister of Citizenship and Immigration), 2006 FCA 151, [2007] 1 F.C.R. 490, at paras. 16-19.
[66] Accordingly, the trial judge’s error could not have had an impact on sentence since legal protections and process existed which affected the likelihood of deportation actually occurring, similar to a right of appeal.
[67] The appellant submits that the trial judge only considered whether he could reduce the sentence to avoid immigration consequences and, having decided that less than six months would be an unfit sentence, did not otherwise consider those consequences in determining what a fit sentence would be for this offender. This was an error, according to the appellant, because even if a sentence cannot be reduced to avoid immigration consequences, those consequences remain relevant, as the sentence imposed will have a more significant impact on a person subject to immigration consequences than on a Canadian citizen: R. v Ignacio, 2019 ONSC 2832, at paras. 28 to 30. The appellant points out that nowhere does the trial judge specify how he was taking the immigration consequences into account. . R. v. Rouse
In R. v. Rouse (Ont CA, 2024) the Ontario Court of Appeal considered immigration consequences in criminal sentencing:[7] We also reject the appellant’s arguments on his sentence appeal. The trial judge expressly considered the collateral immigration consequences, referencing both the relevant provision of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the governing jurisprudence. She recognized that, as a permanent resident, the appellant would be inadmissible on grounds of serious criminality and that he could only appeal his removal from Canada if he received a sentence under six months or a conditional sentence. However, she concluded that neither would adequately address the gravity of the offence and the applicable sentencing principles. The sentence imposed was well within the acceptable range for this offence. . R. v. B.M.
In R. v. B.M. (Ont CA, 2023) the Court of Appeal considers the impact of immigration consequences on criminal sentencing:(3) The sentencing judge erred in his treatment of the immigration consequences of a custodial term
[31] In addition, the sentencing judge erred in his treatment of the collateral immigration consequences a custodial sentence would have on the respondent.
[32] The reasons for sentence indicate that the sentencing judge was concerned with crafting a sentence that would avoid potential collateral immigration consequences. He stated:I am further satisfied on the information that I’ve received, that [the respondent] is likely to be deported if he receives a significant jail sentence … I agree with [the respondent’s counsel] that a deportation to Africa of [the respondent] would be very dangerous for him, given his sexual orientation and his mental health and is not necessary for the protection of the Canadian public. [33] This too was in error. Disproportionate sentences cannot be imposed to avoid collateral immigration consequences which flow from other legislation: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 11-16; R. v. R.B., 2013 ONCA 36, 114 O.R. (3d) 465, at para. 24; R. v. R.L.S., 2020 ONCA 338, at paras. 10-11; R. v. G.F., 2022 ONCA 44, at para. 8. While these considerations may be taken into account, they cannot be applied in such a way as to result in the imposition of a sentence that is otherwise wholly inappropriate in the circumstances: Pham, at para. 15.
[34] The reasons for sentence indicate that the sentencing judge allowed his concerns about the potential immigration consequences and the respondent’s mental health diagnosis and treatment issues to displace or overwhelm the objectives of deterrence and denunciation. While there is no obligation on sentencing judges to recite well-established sentencing principles in every case simply to recite them, the substance of the sentencing judge’s reasons here reveal error in principle. The absence in the reasons of any explicit or implicit recognition of the primary principles and the emphasis on rehabilitation and possible immigration consequences demonstrate the erroneous approach taken. This approach not only led the sentencing judge into error, but led to a demonstrably unfit sentence. . R. v. Sousa
In R. v. Sousa (Ont CA, 2023) the Court of Appeal considered whether and when criminal sentencing should be reduced by related immigration consequences:[12] The appellant argues that his “impending deportation from Canada renders the impact of his sentence more significant than it would be for a Canadian citizen in a similar position”, and that the sentencing judge erred by failing to take these immigration consequences into account: R. v. Pham, 2013 SCC 15, [2013] 1 SCR 739, at paras. 13-14, and R. v. Suter, 2018 SCC 34, [2018] 2 SCR 496, at paras. 45-48. I disagree. The sentencing judge was aware of the consequences but exercised his discretion to determine that the sentence should not be adjusted. In Pham, at para. 14, the Supreme Court highlights the role of discretion:[A] sentencing judge may exercise his or her 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. [13] This court has adjusted sentences taking into account unforeseen immigration consequences: see e.g., R. v. Frater, 2016 ONCA 386; R. v. Nassri, 2015 ONCA 316, 125 O.R. (3d) 578, at para. 33; R. v. Al-Masajidi, 2018 ONCA 305, at paras. 12-15; R. v. Edwards, 2015 ONCA 537, at paras. 6, 8. In these cases, it was unknown at the time of sentencing that the appellants would lose a right to appeal related to their immigration status and the sentences were adjusted, in part, to retain such a right. This court has also adjusted sentences where the sentencing judge has either considered immigration consequences but did not take it into account as a mitigating factor, as in R. v. Butters, 2017 ONCA 973, at para. 7, or failed to consider it altogether, as in R. v. Chang, 2019 ONCA 924, at para. 12. In these cases, sentences that were close to the six months’ imprisonment threshold were adjusted to account for significant immigration consequences.
[14] The criminal acts in this case were so egregious that no reasonable adjustment in the sentence could obviate any immigration consequences. As noted in Pham, cited above, the sentence must ultimately still be proportionate to the gravity of the offence and the responsibility of the offender. Given the characteristics of this case, and the unknown likelihood of actual deportation, there is no reason to adjust the sentence on the basis of immigration consequences. This is how I interpret the judge’s statement, and I agree with him. I would dismiss this ground of appeal. . R. v. Berhe
In R. v. Berhe (Ont CA, 2022) the Court of Appeal considers the degree of knowledge of immigration consequences that may effect the validity of a guilty plea:[68] In R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, the Court recognized that a plea will be uniformed if the accused person was unaware of a legally relevant collateral consequence – i.e., an immigration consequence: see also R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 52 and R. v. Davis, 2020 ONCA 326, 391 C.C.C. (3d) 385, at para. 10. A plea may be withdrawn on this basis if it is established that the accused person suffered subjective prejudice by proving that they would have either opted for a trial, or pleaded guilty with different conditions: Wong, at para. 6.
(a) The Knowledge Component
[69] In my view, Mr. Berhe has failed to establish that he lacked the necessary degree of knowledge about his immigration status. This issue has been addressed in a number of decisions from this court.
[70] In R. v. Shiwprashad, 2015 ONCA 577, 328 C.C.C. (3d) 191, the appellant was a permanent resident who committed a number of offences. His penultimate convictions resulted in him being declared inadmissible to Canada on the basis of “serious criminality” under s. 36(1) of IRPA. Like Mr. Berhe, the appellant’s removal order was stayed for a four-year period on certain conditions, including that he not commit any criminal offences, and that he observe certain reporting requirements if charged and/or convicted of a criminal offence. The stay order included the following:IMPORTANT WARNING
This stay or removal is cancelled and your appeal is terminated by operation of law and you may be removed from Canada, if you are convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act (sentence of more than six months imposed or punishable by a term of imprisonment of at least ten years) before your case has been finally reconsidered. [71] In dismissing the appeal, Weiler J.A. said, at para. 3: “While the appellant may not have been aware of the precise extent of his jeopardy at the time he pleaded guilty, he knew that deportation was a possible consequence.”
[72] In Girn, Watt J.A. observed, at para. 75, that the courts have “resisted imposition of a fixed quantum or standard of information necessary to characterize the plea as ‘informed’. Instead, the jurisprudence counsels a case-by-case analysis consistent with both the subjective nature of guilty pleas and the level of understanding of the consequences of entry of guilty pleas generally.” He further wrote that “[n]o case suggests that knowledge of ‘consequences’ includes knowledge of appellate rights and their limitations”: at para. 75; see also R. v. Coffey, 2017 BCCA 359, at para. 44. In Girn, like Shiwprashad, the court concluded that the appellant had sufficient information to know that further criminality would impact negatively on his immigration status: at para. 78.
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[76] In short, Mr. Berhe had sufficient knowledge of the negative immigration implications of pleading guilty to criminal harassment, on not just one, but two occasions. This case is different from R. v. Davis, 2020 ONCA 326, 391 C.C.C. (3d) 385, in which the court concluded that the appellant had been misled as to the impact of his guilty plea on his immigration status by his trial counsel erroneously advising him that he would suffer no immigration consequences: at para. 17. That did not happen in this case.
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