Defendant’s inability to appeal deportation considered as fresh evidence on sentencing appeal
By: Jeffrey Milligan
3. — The Ontario Court of Appeal reduces a sentence where the appellant faced deportation
The appellant was convicted of fraud over $5,000 and received a sentence of imprisonment of 26 months, less credit for pre-sentence custody. His net sentence of imprisonment was two years less a day.
The Ontario Court of Appeal heard his sentence appeal and gave him additional credit for pre-sentence custody.
He appealed again and applied to the Court of Appeal to introduce fresh evidence concerning the adverse immigration consequences of his sentence.
The Ontario Court of Appeal admitted the application to receive fresh evidence and allowed the appeal.
They noted that a sentence appeal may be re-opened where, at the time of the original hearing, the court did not have all the information needed to fully and properly adjudicate the issue of sentence on its merits: see R. v. De la Cruz, [2003] O.J. No. 3235 (Ont. C.A.) at paragraph 4.
The fresh evidence indicated that the appellant was unaware at the time of his sentencing and his first sentence appeal that because he was sentenced to a sentence of greater than two years, he had no right to appeal his deportation order.
He had lived in Canada for over two decades and had no ties at all to his native Jamaica. The Court of Appeal reduced his sentence further so that he could appeal his deportation order.
”Certainty of deportation” is a factor that may be considered in sentencing: R. v. B.R.C., [2010] O.J. No. 3571 (Ont. C.A.) at paragraph 8; R. v. Hamilton (2004), 72 O.R. (3d) 1 (Ont. C.A.) at paragraph 156.
R. v. Edwards (2015), 2015 ONCA 537, 2015 CarswellOnt 10844 (Ont. C.A.)