Don’t reduce sentences for non-citizens, lawyers urge

“Immigration consequences” cannot be counted on to reduce a court sentence because it defeats Ottawa’s goal to expedite the removal of non-citizen offenders, Canada’s top court has heard.

It is within a sentencing court’s discretion to take account of the risk of deportation faced by noncitizens, but government lawyers say a judge is “neither entitled nor obliged” to consider the immigration implications stemming from the length of sentence.

On Friday, the Supreme Court heard the case of Hoang Anh Pham, whose two-year jail sentence was upheld by the Alberta Court of Appeal, despite the Crown’s consent to reduce the time in light of the risk he faced in losing his immigrant status and being deported.

Permanent residents jailed for two years or more are stripped of their rights to appeal against the revocation of their status.

Pham was sponsored from Vietnam by his father in the mid-1990s when he was a teen. In 2009, he was arrested in Calgary and jailed for two years on drug-related charges.

His appeal to reduce his sentence by one day — and hence a reprieve from expedited deportation — was rejected. The top court granted him leave to appeal.

The government said Pham’s status was known to the defence and the court before the sentencing, yet the trial judge was not asked to exercise that discretion. Losing one’s immigration status is a consequence that ought to be expected, it argued.

However, the intervening parties in the case had dissenting views, arguing immigration consequences would further penalize non-citizens.

“The appropriate sentence cannot be determined without considering all of the circumstances of the offender,” said the Criminal Lawyers’ Association of Ontario.

The Canadian Association of Refugee Lawyers said any decision leading to the deportation of a permanent resident should rest in the hands of trained adjudicators with the Immigration and Refugee Board, not with the criminal courts.

“If upheld, this approach would require the sentencing judge to ignore the circumstances of the noncitizen offender, which would actually result in the unequal treatment of the citizen and non-citizen offender,” said the Canadian Civil Liberties Association.

“This is both unreasonable and wrong in law.” The court agreed to reduce Pham’s jail sentence by one day, but reserved its decision on the broader issue.