Décision

[1]           The appellants appeal a judgment rendered on October 5, 2018 by the Court of Quebec, Criminal and Penal Division, District of Saint-François (the Honourable Mr. Justice Conrad Chapdelaine), which sentenced them to 45 days in detention for unlawful entry into Canada after a removal order had been issued against them, contrary to sections 52(1) and 124(1)(a) of the Immigration and Refugee Protection Act (“IRPA”).[1]

[2]           The trial judge succinctly summarized the facts and they are not contested.

[3]           The appellant and her son, who are originally from Colombia, applied for a visa (visitor) on September 14, 2015 from Bogota, Colombia. The visa application was denied, even before the appellants had sent the information regarding their safety. On March 11, 2016, the appellants went to the border crossing point in Fort Erie, Ontario, and claimed refugee status. In light of the Canada-U.S. Safe Third Country Agreement, their claim for refugee protection was determined to be ineligible. They were removed from Canada and were not entitled to return for a period of one year. Despite their efforts to apply for a judicial review, the appellants were unable to do so within 15 days of the decision.

[4]           On July 10, 2016, they entered Canada illegally, notwithstanding their inadmissibility. They were arrested and held for nine days, and subsequently released on a $5,000 bond. On July 20, 2016, the risk assessment resulted in a refusal.

[5]           The appellants subsequently filed two applications. The first sought to obtain permanent resident status via sponsorship and the second on humanitarian and compassionate grounds. These applications are pending until judgment is rendered in the case at bar.

[6]           On April 13, 2018, they pleaded guilty to the charge of illegally entering Canada:

On or about July 10th, 2016, returned to Canada without a prescribed authorization after a removal order has been enforced, contrary to sections 52(1) and 124(1)a) of the Immigration and refugee Protection Act, S.C. (2001), c. 27, committing thereby an indictable offence pursuant to section 125(a) of the Act.

The judgment

[7]           The judge referred to the presentence reports to draw a picture of the appellants’ socio-economic and personal situation. He noted that they had no criminal record, lived in Ontario, did not consume drugs, resided with the appellant Martha Patricia Suarez’s other son and were being supported financially by her new spouse. He was of the opinion that both appellants were suffering from depression and post-traumatic stress as a result of threats to their safety made by criminal groups in Colombia and as a result of the difficult immigration process. The judge acknowledged that, in both cases, the presentence reports were positive and recommended supervised measures within the community.

[8]           Despite this, the judge considered that the appropriate sentence should not deviate from the sentences generally imposed in similar situations, which usually range from 30 days to 6 months of detention. The judge stated that he was well aware of the collateral immigration consequences that could result from a conviction. Relying on the judgment in Pham,[2] he pointed out that the influence of these consequences depends on the facts of each case.

[9]           Considering the objectives of proportionality, denunciation and general deterrence, he was of the opinion that a sentence of 45 days was appropriate. He pointed out that the precarious status of a person facing immigration procedures should not automatically entitle the person to a discharge, particularly since the appellants [translation] “had, on more than one occasion, flouted the decisions made against them by the Canadian authorities.” He concluded that ordering a discharge could encourage foreigners to enter Canada in violation of Canadian laws or decisions made against them.

The grounds

[10]        The appellants argue that the judge did not weigh the appropriate factors, thereby rendering a one-sided decision. Among other things, they submit that he did not consider the reasons that drove the appellants to return to Canada in July 2016, before the expiry of the one-year time limit.

Analysis

[11]        Sentencing, which is governed by sections 718 to 718.2 of the Criminal Code, is one of the most delicate stages of the criminal justice process.[3] Recently, in its judgment in Suter,[4] the Supreme Court recalled the applicable principles:

[4]        Sentencing is a highly individualized process. A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1 of the Criminal Code). Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range. This is one such case.

[…]

[23]      It is well established that appellate courts cannot interfere with sentencing decisions lightly: see R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 48; R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, at para. 25; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 46; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 39. This is because trial judges have “broad discretion to impose the sentence they consider appropriate within the limits established by law” (Lacasse, at para. 39).

[24]      In Lacasse, a majority of this Court held that an appellate court could only interfere with a sentence in one of two situations: (1) where the sentence imposed by the sentencing judge is “demonstrably unfit” (para. 41); or (2) where the sentencing judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor, and such an error has an impact on the sentence imposed (para. 44). In both situations, the appellate court may set aside the sentence and conduct its own analysis to determine a fit sentence in the circumstances.

[12]        For the reasons set out below, we find that the judge committed an error in principle and that the sentence imposed in the case at bar is demonstrably unfit, because it disregards the particular situation of the appellants. Although the judge stated that he was aware of the consequences of his decision, he did not elaborate and did not give any weight to those consequences in his analysis.

[13]        Indeed, in order to send a clear message to any foreigners who might be tempted to act as the appellants did, the judge excluded any possibility of ordering a conditional discharge for this type of offence, without considering the best interests of the appellants and the actual impact of his decision:

[translation]

[29]      Granting a discharge would amount to encouraging foreigners seeking entry to Canada to do so by flouting Canadian laws or the decisions rendered by Canadian authorities against them, which is what the two accused did.

[14]        The judge therefore directed himself in law as if the offence in question were excluded from the application of section 730 Cr.C. Not only is such an approach incompatible with the text of that provision, it is also incompatible with the principle of proportionality and the value placed on the individualized sentencing process.[5]

[15]        The appellants’ situation is very particular in that they sought to claim refugee protection by going to the border in a completely lawful manner, resulting in the outcome that we know. They subsequently tried to obtain legal services in order to appeal the decision. They did so first in the Buffalo area, where they spent four days doing so, and then in New York, where they spent three months looking for the necessary information to challenge the correctness of the decision made against them. Their financial situation became very precarious and they lived in unhygienic homeless shelters. Out of desperation, they decided to return to Canada a few months before the end of their period of inadmissibility, in order to try to have the decision changed.

[16]        The presentence reports, which the judge characterized as positive, are very favourable and reveal the following regarding the appellants’ situation:

Presentence report of Martha Patricia Suarez

The offender successfully obtained employment in real estate in 2006 while living in Colombia. Unfortunately, she was forced to flee her native homeland reportedly due to her and her family being threatened by an influential drug lord, who was captured as a result of information that she provided to police authorities in January, 2016. This man who was arrested reportedly was associated with the guerilla groups, which meant that they posed a significant and credible threat to the offender and her family. This marked a significant change in the offender’s life, as her life has since been filled with fear for her life, as well as for the life of her family. It was necessary for the offender to re-locate far away where she and her family could not be found, as it became very clear to her through past experience that these groups want to avenge the “wrongs done to them” and she stated that they will ‘‘seek you out to get their revenge until they succeed”. The offender subsequently attempted to apply for refugee status in North America.

The offender has involved herself into receiving counselling services to improve her coping skills due to the trauma and extreme stress that she has endured fleeing her native homeland to secure a safe place for her and her children to reside. The offender was diagnosed by Dr. Devins, Consulting and Clinical Psychologist, with “major depressive disorder of moderate severity and posttraumatic stress disorder with dissociative symptoms” as a result of the persecution she and her family endured in Colombia, as well as the immigration process she experienced upon entering Canada.

The offender and her children have been living together with Jose Couto in Chatham, Ontario since July, 2016. They are now considered common-law partners and love and care a lot about each other. Mr. Couto has provided the offender and her children with much emotional and financial support.

Psychological report of Martha Patricia Suarez

As noted, Ms. Suarez was exposed to traumatic events in Colombia. Deleterious, psychological after-effects persist. Her distress has remained intense since she arrived in Canada, although it has shifted from the fear of violence to the fear of removal (“My only stress and my only pressure is Immigration. In Colombia, my only stress was my safety. I’m afraid here to be deported. In Canada, I feel more close to heaven’’).

DIAGNOSIS AND RECOMMENDATION

Ms. Suarez satisfies diagnostic criteria for major depressive disorder of moderate severity (296.22 [F32.1]) and posttraumatic stress disorder (309.81 [F43.10]) with dissociative symptoms in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (5^th ed., DSM-5). She requires mental-health treatment. Psychological treatments might include stress-management training, behavioral activation, and cognitive-behavior therapy. Ms. Suarez’s condition will deteriorate with exposure to further threats of harm.

[17]        The presentence report of Wilson Giovany Cordero Suarez clearly explains the steps the appellants took:

The subject advised that he and his family felt as though they were in danger in Colombia so elected to flee to North America in order to apply for refugee status in Canada. They arrived at the border in Buffalo, New York in March of 2016 and their refugee status was denied as they had no family in Canada. They were penalized for one year, which he explains meant that they could not attempt to enter Canada again for that period of time. They then travelled to a shelter in Buffalo, New York and remained there for a few weeks. Next, they travelled to New York City, New York in order to seek assistance from an immigration lawyer to appeal the decision in Canada. They were advised by legal counsel in New York that they could not assist with an appeal as they were not aware of the immigration laws in Canada.

When there was no option for an appeal of the decision, the subject and his family elected to reside at an immigration shelter in Bronx, New York. He advises that the shelter was able to assist with food, shelter and health, however he described the living conditions as unsafe. He recalls stress and fear from being in the presence of gang activity, surrounded by substantial drug use and living in unhygienic conditions with rodent and insect infestation. As a result, he and his family decided to approach the Canadian immigration officials once again and travelled to the Canadian border. They advised border officials that they were coming to apply for refugee status.

The subject and his mother were both diagnosed with major depressive disorder and post-traumatic stress disorder with dissociative symptoms as a result of the persecution he and his family experienced in Colombia as well as the immigration process since they entered Canada, it was the psychologist’s opinion that the conditions will deteriorate with exposure to further threats of harm. He advised that treatments might include counselling in stress management and cognitive behavioural therapy.

[18]        By contrast with a number of the decisions cited by the judge, the appellants have no criminal record and did not make any false statements, and this was their first and only attempt at unlawful entry into Canada.

[19]        Professors Parent and Desrosiers emphasize the fact that when analyzing the best interests of the accused, one must generally presuppose that [translation] “[…] the accused is a person of good character, who does not have a criminal record, who does not deserve a dissuasive penalty or one based on rehabilitation, and for whom a conviction would have particularly harmful consequences.”[6]

[20]        The presentence and psychological reports are clear and recommend a discharge.

[21]        Although the judge stated that he was aware of the immigration consequences, he did not comment thereon. However, a sentence of 45 days of imprisonment will result in the appellants having to wait 10 years, outside Canada, before being able to file a sponsorship application, a consequence that, given the specific rules in immigration matters, will not occur if a conditional discharge is ordered.[7]

[22]        Clearly, it is in the best interests of the appellants that a conditional discharge be ordered.

[23]        As for the public interest, which is an infinitely variable concept, it must take into account not only the general deterrence objective, but also the gravity of the offence and its impact on the community. Professors Parent and Desrosiers conclude that: [translation] “Stated succinctly, the likelihood of obtaining a discharge is inversely proportional to the gravity of the offence viewed through the prism of the circumstances of the case”.[8]

[24]        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.

[25]        Based on the facts in the case at bar, the judge should not have excluded the possibility of a conditional discharge from the outset and should have seriously considered the consequences of a sentence of imprisonment. Had he done so, he would have ordered a conditional discharge.

FOR THESE REASONS, THE COURT:

[26]        ALLOWS the appeal;

[27]        REVERSES the judgment at first instance;

[28]        SUBSTITUTES, for each accused, instead of the sentence of 45 days of imprisonment, an order directing a conditional discharge together with an 18-month probation order, subject to the following conditions:

(a)  keep the peace and be of good behaviour;

(b)  appear before the court when required to do so by the court;

(c)  reside at a location approved by the probation officer and not relocate without the probation officer’s prior consent;

(d)  participate in any program the probation officer may suggest;

(e)  report to the probation officer within five days of this judgment and, thereafter, when and in the manner required by the probation officer;

(f)    perform 120 hours of community service, within a period of 12 months, under the supervision of the probation officer; and

(g)  make a $500 donation to the Quebec Crime Victims Assistance Centre before October 1, 2019.

[29]        ORDERS the appellants to appear at the Sherbrooke Courthouse to sign the required orders, unless an agreement is entered into with the Ontario authorities.