On March 14, 2013 the Supreme Court of Canada released the judgment of R. v. Pham 2013 SCC 15, clarifying what collateral factors and effects a sentencing judge may take into consideration when fashioning a particular punishment. The Supreme Court held that sentencing judges may exercise discretion and take take immigration consequences into account. In order to do so, the sentence must still be proportionate to the gravity of the offence and the degree of responsibility of the offender.
To simplify what that means (particularly as it relates to Mr. Pham, the sentencing judge was sentenced to two years imprisonment for a drug offence. As a result, Mr. Pham faced deportation with no right of appeal under the Immigration Refugee and Protection Act (IRPA). Had the judge sentenced to Mr. Pham to two less less one day, Mr. Pham would retain his right to appeal the deportation order under the IRPA. The facts of Mr. Pham’s case established that the judge was not aware of these significant consequences for an insignificant difference of one day in sentence. Despite the Crown’s recommendation to reduce the sentence by one day, the Alberta Court of Appeal refused to do so, finding that it would undermine the provisions of the IRPA. The Supreme Court of Canada, in granting Mr. Pham’s appeal ruled that collateral consequences of a particular offence (in this case, deportation) may be taken into account by the sentencing judge. The degree to which these collateral consequences may be taken into account will vary and are determined on a case by case analysis. It is also important that these consequences do not create a sentence that is otherwise improper or below the range of what is appropriate.
Of particular note and pride, this case was argued by our own chamber-mate Erika Chozik. Congratulations Erika!