Court of Appeal Decision of the Week

Reconsidering the Collateral Consequences of Sentencing

Case: R. v. Hans, 2019 ABCA 253 (CanLII)

Keywords: Application to Reconsider; s. 403(1)(a) of the Criminal Code; Immigration and Refugee Protection Act, SC 2001, c 27

Synopsis:

The Applicant, a Tanzanian living in Canada on a student permit, uses another individual’s identity to mislead an employer about her eligibility to work. Using this scheme, she is employed in Canada for more than 2.5 years.

The Applicant is convicted inter alia of impersonation with intent to obtain employment while not permitted to do so contrary to s. 403(1)(a) of the Criminal Code and receives a conditional sentence. The conviction and sentence result in “collateral consequences” – under the Immigration and Refugee Protection Act, SC 2001, c 27, and because she does not hold a permanent resident visa, the Applicant has no right to appeal a removal order.

In anticipation of an appeal as against her sentence, the Applicant seeks permission for that panel to reconsider two precedents: R v MacFarlane (1976), 1976 ALTASCAD 6 (CanLII) and R v Fung, 1973 CanLII 1547 (ABCA).

The Court of Appeal dismisses the application to reconsider either case.

Importance:

MacFarlane and Fung broadly stand for the proposition that,

  1. discharges should not be “granted routinely” and should be used “sparingly”; and
  2. immigration consequences should not be taken into consideration when deciding to grant a discharge.

For the Applicant, Fung is “inconsistent with” more recent Supreme Court of Canada jurisprudence on the appropriate level of consideration for immigration consequences in sentencing (R v Pham, 2013 SCC 15 (CanLII)). As for MacFarlane, the Applicant asserted that there have been significant changes to the law of sentencing since 1976 and that, as such, it may be that judges relying on it “…overemphasize the judiciousness with which discharges should be given and the extent to which a discharge removes a crime from the public record.” (See para. 8).

The Court of Appeal acknowledged the age of the MacFarlane decision but noted that similar principles with respect to the exceptional nature of a discharge have been recently articulated in R v Reid, 2015 ABCA 334 (CanLII) at para. 17 and the Supreme Court of Canada in R v Lacasse, 2015 SCC 64 (CanLII). (See paras. 8-9).

Rather than reconsider Fung and McFarlane, the Court of Appeal suggests, at para. 10, that the Applicant may yet receive a discharge by applying them to her matter:

(a) MacFarlane does not purport to limit the analysis. It provides six criteria that are often relevant, but clearly states at para 14 “. . . it is quite impossible to lay down rules which would cover the myriad of situations which may appear . . .”. The six listed criteria, though considered, might not apply but other criteria might apply, depending on the facts of the case. MacFarlane does not preclude this Court from considering that;

(b) The availability of a discharge is governed by the wording of the Code (which has not changed over time). Sentencing is always governed by the overriding principle of “proportionality”, and discharges must be in the public interest. In many cases, the result may be that discharges are “used sparingly”, but that is the outcome of the analysis; where a discharge is called for, one can be granted;

(c) Permission to reargue is not required where an authority has been overruled by subsequent decisions or statutory amendments (for example, to codify the principle of proportionality by adding s. 718.1 of the Code). As the Information Note after R. 14.72 states:

This Rule does not prevent a party from arguing that a prior precedential decision has been overruled by a decision of the Supreme Court of Canada, or by a legislative change. It also does not prevent argument about the ratio decidendi of the prior decision, nor whether it can be distinguished on recognized grounds.

For example, if aspects of Fung have been overruled by Pham, permission to reargue is not required;

(d) If the statutory sentencing criteria have evolved over time, or if new sentencing tools have now come into play (e. g., conditional sentences), MacFarlane does not preclude this Court from considering where discharges fit in the range of available sentencing options;

(e) If the types of cases contemplated by MacFarlane are now diverted, the issue of a discharge with respect to them is moot.

Counsel for the Appellants: C.A. Schlecker

Counsel for the Respondents: D.F. Bullerwell

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Posted: Tuesday, July 16, 2019