Hoang Anh Pham, a non-citizen, was convicted of producing and possessing marijuana for trafficking for being a “party” to a marijuana grow-operation in Calgary in 2010.
The Provincial Court of Alberta issued a two-year sentence for the offence, a sentence that triggered an automatic deportation order.
Section 64 of the Immigration and Refugee Protection Act prevents any non-citizen from appealing a deportation order “if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.” Serious criminality is defined as a crime that receives a prison term of two years or more.
Pham, a Vietnamese citizen, requested that the punishment be reduced by a single day. While this seems symbolic, a single day provides the opportunity for permanent residents such as Pham to challenge deportation orders issued against them.
The Crown agreed to reduce the sentence by one day, yet a majority of the Alberta Court of Appeal refused and dismissed Pham’s appeal.
However, this January, the Supreme Court allowed Pham’s appeal and instituted a sentence of two years less a day.
The Supreme Court discussed proportionality as a “fundamental principle of sentencing.” A proportional sentence, the court noted, means that if an offender’s personal circumstances are different, they may receive different sentences. The “collateral consequences” of a sentence “may be taken into account in sentencing.”
The ruling in Pham, while defendant-centric, does not challenge the validity of the legislation. In fact, relevant provisions of the Immigration and Refugee Protection Act were upheld in previous instances.
In Charkaoui vs. Canada (Citizenship and Immigration), the deportation provisions of the Immigration and Refugee Protection Act were challenged for violating the section 15 equality rights of the Charter of Rights and Freedoms. The Supreme Court upheld the deportation orders, noting that the charter mobility rights only apply to citizens. For this reason, deportation legislation that treats non-citizens differently was found not to violate equality rights.
Parliament had a valid objective when it created the two-year cut-off date for deportation orders. It is crucial to note that the constitutionality of the Immigration and Refugee Protection Act was upheld in previous Supreme Court decisions and was not challenged by Pham. When the act’s new provisions were implemented, they were challenged in Medovarski vs. Canada (Minister of Citizenship and Immigration), in which two permanent residents were ordered deported. In this instance, the Supreme Court upheld the validity of the act.
The court noted that “the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by section 7 of the Canadian Charter of Rights and Freedom.”
While the Supreme Court has upheld the provisions of the Immigration and Refugee Protection Act, the decision in Pham subtly sidesteps Parliament’s intentions. The two-year cut-off date is significant. Any sentence less than two years is served in a provincial facility, while those two years or greater are served in a federal facility. The Supreme Court has shown a willingness to exercise leniency in sentencing so that the no-appeal provision is not triggered.
The recent ruling should encourage Stephen Harper’s Conservatives to re-examine their recent Bill C-43, The Faster Removal of Foreign Criminals Act, which broadens the range of crimes that triggers the non-appeal of a deportation order. The sentence cut-off will be decreased from two years to six months. The bill has passed the House of Commons and is currently in second reading in the Senate.
The parliamentary secretary to the Minister of Citizenship and Immigration, Rick Dykstra, has reiterated in Parliament the Conservative talking point of keeping streets and communities safe. Yet judicial discretion buttressed by the recent ruling in Pham and the proposed Bill C-43 will not equate to a safer society.
Judges have now been given the green light to consider the effect of their sentence upon potential deportation orders. Proportionally, very few offences carry mandatory minimum sentences, and judges are given considerable discretion in applying penalties. The Supreme Court’s ruling in Pham encourages leniency for non-citizens, and sentencing can be tailored so that the provisions of the Immigration and Refugee Protection Act will not be triggered. With a new six month cut-off date, there is a danger that courts may apply differential sentencing mechanisms to non-citizens.
The Alberta Court of Appeal, which struck down Pham’s appeal, said as much: “Furthermore, it would be a strange and unfortunate legal system wherein a non-citizen could expect to receive a lesser sentence than a citizen for the same crime. No such distinction should be countenanced.”
The Supreme Court acknowledges this risk, noting that “the flexibility of our sentencing process should not be misused … in order to avoid collateral consequences” regarding immigration, and that it must not lead to a separate sentencing scheme. The court notes that it should not be “circumventing Parliament’s will.” But it has, in effect, done precisely that by assigning a more lenient sentence to Pham because of his non-citizen status.
The new six-month provision will only exacerbate the problem. Judges who do not wish to trigger the deportation provision may assign penalties of less than six months when the statute does not prevent otherwise. Bill C-43 and the Pham ruling are akin to two dangerous substances that, when mixed, may prove lethal.