April 10, 2019
Bélanger, Healy, Gagné
Appeal from a judgment of the Court of Quebec sentencing the appellants to 45 days in detention after they pleaded guilty to a charge of entering Canada illegally after a removal order had been enforced, contrary to ss. 52(1) and 124(1)(a) of the Immigration and Refugee Protection Act (S.C. 2001, c. 27). Allowed; a conditional discharge with probation for 18 months was ordered.
After their application to obtain refugee status was refused, the appellants were subject to a removal order and were not entitled to return to Canada for 1 year. They had previously applied for a visa from Colombia, which was denied even before the information regarding their safety had been disclosed. They entered Canada illegally before the expiry of the period of inadmissibility, were arrested and pleaded guilty to the charges against them.
The trial judge committed an error in principle by excluding the possibility of ordering a conditional discharge on the ground that it could encourage foreigners to enter Canada by flouting Canadian laws or the decisions rendered against them. That approach is contrary to the wording of s. 730 of the Criminal Code (R.S.C. 1985, c. C-46) and is incompatible with the principles of proportionality and the individualization of sentencing.
Moreover, the sentence imposed on the appellants was demonstrably unfit because it disregarded their particular situation, which arises from the fact that they went to the Canadian border in a lawful manner to claim refugee status, which was refused pursuant to the Canada-U.S. Safe Third Country Agreement, resulting in their removal. Their return to Canada before the end of their period of inadmissibility could be explained by their precarious situation in the United States and was for the purpose of continuing their efforts to obtain refugee status.
In this case, the judge would have ordered the appellants’ conditional discharge had he not excluded that possibility and considered the consequences of a sentence of imprisonment. The appellants had no criminal record, did not make any false statements, and had never previously attempted unlawful entry into Canada.
The presentence and psychological reports were positive and recommended a conditional discharge with probation. The sentence of imprisonment imposed by the judge would have resulted in the appellants having to wait 10 years, outside Canada, before being able to file a sponsorship application. Therefore, it was in the best interests of the appellants that a conditional discharge be ordered. Furthermore, the public interest in general deterrence should not automatically preclude a discharge, particularly where the consequences for the accused would be severe, as in the present case, and where the offence is a less serious one.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca
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