Ontario Criminal


Loss of potential remedy against deportation order not mitigating factor on sentence

Accused appealed his sentence of five years imposed after he was convicted of sexual assault, sexual interference, invitation to sexual touching, and sexual exploitation, all perpetuated upon his underage niece. Offences occurred while complainant was six to 15 years old, and advanced from sexual touching to sexual intercourse. Accused was 42 years old at sentence with no prior criminal record. Accused did not take issue with quantum of punishment, but only wished Court reconstitute sentence into series of shorter consecutive sentences, not exceeding two years, so that he, as permanent resident, could appeal his deportation on immigration matters. Trial judge may have been aware of accused’s permanent resident status, but she did not consider its implications in her sentencing analysis. Leave to appeal granted; appeal dismissed. Loss of potential remedy against deportation order is not mitigating factor on sentence, nor could sentencing process be used to circumvent provisions and policies of Immigration and Refugee Protection Act. Accused’s suggested approach was simply not available even if totality of sentence was not disturbed because appropriate sentence for either sexual assault or sexual exploitation in case could not reasonably be less than five years imprisonment; sentence of two years less a day for either of those counts would have been patently inadequate or artificial.

R. v. B. (R.) (Jan. 23, 2013, Ont. C.A., LaForme, Laskin and Hoy JJ.A., File No. CA C52908) Decision at 2009 CarswellOnt 9791 was affirmed. 104 W.C.B. (2d) 1321.

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