Ontario Court of Appeal Judgment Recognizes Risk of Deportation as Sentencing Factor

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A recent decision by the Ontario Court of Appeal, R v Regis, reinforced the previous decision that the risk of deportation and similarly damaging immigration matters can factor into deciding an appropriate sentence for criminal convictions.

In R v Regis, the appellant sought to reduce a judgment given for two counts of possession for the purpose of trafficking from 14 months for both counts to six months less a day for each of the two counts. In making his submission, the appellant referred to R v Woolcock which established that the range of sentences for trafficking offences span from six months to two years less a day, even for non-first offenders. Had the Court upheld the original sentence, the appellant would be subject to immigration consequences, particularly losing the ability to appeal should a deportation be made at his upcoming hearing. The Court found for the appellant on the basis of the minute difference between the original sentence and that requested by the appellant, the appellant’s family history, and relatively clean criminal record.

The exception to this finding was raised in 2011 in R v Bhadwar, where it was established that courts cannot “impose inadequate or artificial sentences in an inappropriate attempt to circumvent problems at will in immigration matters”.

This decision although consistent with previous decisions is particularly timely in a period where political discourse regarding immigration and deportation has been refreshed. The 2016 U.S. Presidential election, including the months of campaigning leading up to the election, cast a spotlight on issues of migration and citizenship on a global scale and caused a ripple of controversial sentiments in North America particularly. With significant instability in the United States around the status of “illegal aliens”, this decision once again highlights Ontario’s, and more broadly, Canada’s approach to managing immigration matters. The Court has reinforced their commitment to ensuring the fairness of the judicial system.

This decision is one which deals with policy concerns specifically and the need to consider the social repercussions and the goals of sentencing. While the sentence was ultimately necessary to match the conviction, the Court took notice of the appellant’s willingness to rehabilitate, relatively clean criminal record, and his role and contributions as a community member. The Court’s willingness to reinforce that sentencing should not merely be punitive but serve the greater goals of rehabilitating individuals is a breath of fresh air in an otherwise politically complex and controversial matter.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.