Supreme Court


Collateral immigration consequence a relevant factor

Trial judge sentencing accused to two years’ imprisonment for drug offences based on joint submission. Accused had been convicted of offences of production of marijuana, possession of marijuana for purpose of trafficking. Accused has prior conviction. Trial judge not being advised accused non-citizen, would face removal order with no appeal for sentence of two years. Crown on appeal conceding sentence should be varied to two years less one day. Majority of appeal court dismissing appeal, holding collateral immigration consequence should not skew otherwise fit sentence, particularly in light of accused’s prior conviction. Appeal to Supreme Court of Canada allowed, sentenced varied to two years less one day’ imprisonment. Collateral immigration consequence a relevant factor to consider in crafting proportionate sentence. Appeal court has authority to vary sentence where sentencing judge unaware of collateral consequence. Where Crown does not consent to appeal, some evidence should be adduced for consideration by Appeal Court. In light of Crown concession, court of appeal erred by refusing sentence reduction based on prior convictions, belief accused abused Canada’s hospitality.

R. v. Pham (Jan. 18, 2013, S.C.C., LeBel J., Fish J., Abella J., Rothstein J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34897) Decision at 102 W.C.B. (2d) 83 was varied. 105 W.C.B. (2d) 488.

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