This case deals with the question of what factors a court should consider when crafting a just and fair criminal sentence. Under immigration law, criminal sentences of a certain length trigger additional immigration consequences for non-citizens, including the potential for deportation.
Mr. Pham, who has lived in Canada since he immigrated as a teenager, was sentenced to two years in prison. This sentence made him eligible for immediate deportation and stripped away his right to appeal the removal order. Although the government agreed to reduce the sentence requested by one day to help avoid this result, the Alberta Court of Appeal refused to modify his sentence. As a consequence, a removal order was issued against Mr. Pham, turning a two-year sentence into deportation from Canada.
The BCCLA has long been concerned about fairness in sentencing, and believes that criminal justice can only be served if the punishment fits the crime. Sentences can only be fair if all penal consequences are taken into account by the sentencing judge. As an intervener in this case, the BCCLA argues that immigration consequences such as those faced by Mr. Pham must be part of a judge’s consideration in determining a just and fit sentence.
The BCCLA’s argument in this case is available here >>
On March 14, 2013, the Supreme Court of Canada released its judgment in this case. The Court allowed Mr. Pham’s appeal and reduced his sentence to two years less a day. In so doing, the Court recognized that collateral immigration consequences are a relevant factor in sentencing. Where the issue of these consequences is not raised before the trial court, an appeal court may take them into account in reviewing whether a sentence that has been handed down is just and fit. In the Court’s holding, the collateral consequences of a sentence are “any consequences for the impact of the sentence on the particular offender.” However, the weight to be given to collateral consequences will vary from case to case.
A copy of the Supreme Court of Canada’s judgment in this case can be found here >>
The BCCLA is represented by Lorne Waldman of Lorne Waldman & Associates.
