Appeal Court Gets Creative Around Consecutive Sentences

Consecutive or concurrent sentences.

The first step a sentencing judge must take when required to sentence on multiple offences is to determine whether any or all of the sentences are to be served concurrently or consecutively. This question and the decision does not relate to the overall length of sentence.  Rather, they pertain to the nature and circumstances of the criminal activity under consideration and the connectedness of two or more offences to each other.

See for instance, R. v. Maroti (M.), 2010 MBCA 54 (CanLII).  

Risk of Deportation as a Factor on Sentence

Under section 36(1)(1) of the Immigration and Refuge Protection Act, a permanent resident or foreign national is inadmissible on grounds of serious criminality whereupon he/she is convicted of

·         federal offence (which includes any offence in the Criminal Code or the Controlled Drugs and Substances Act) punishable by a maximum term of at least 10 years’ imprisonment, or

·         a federal offence for which a term of imprisonment of more than 6 months has been imposed.


The risk of deportation can be a factor to be taken into account in choosing appropriate sentencing dispositions and in tailoring the sentences to fit the crime and the offender.

See R. v. Hamilton (2004), 72 O.R. (3d) 1, at para. 156 (C.A.).

At the same time, courts cannot impose inadequate or artificial sentences in an inappropriate attempt to circumvent problems at will in immigration matters.

See R. v. Bhadwar, 2011 ONCA 266, at para. 45.

 In R. v. Regis, 2017 ONCA 848 the Court of appeal for Ontario -- taking into account the fact that were the appellant to be sentenced to a period of incarceration of 6 months or more he would be subject to removal under the Immigration and Refugee Protection Act -- varied the sentence of the appellant to two consecutive periods of incarceration of 6 months less a day (a global sentence of 12 months less two days).

The original sentence had been a sentence of slightly more than 12 months on each count, to be served concurrently (that is, at the same time). 

While the total amount of incarceration is approximately the same in both scenarios, pushing the sentences to the lower end of the sentencing range and then having them run consecutively eliminates the significant collateral consequences that the sentence would otherwise have on an offender who is a permanent resident or a foreign national. 

Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca

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