Monday, March 18, 2013

Concerning the Supreme Court, R v Pham, IRAP and Sentencing

The SCC handed down a decision on R v Pham. An appeal of a lower court sentence of 2 years for a conviction. The appeal was pursued due to consequences of a two year sentence on Mr. Pham's ability to appeal a deportation proceeding. An immigrant convicted of a crime and sentenced to more than 6 months must appear before an immigration board and to explain why they should not be deported. A sentence of two years or more immediately begins the deportation proceedings; no appeal is allowed. IRAP 36(1)(a).

The lower court denied the appeal of the sentence; they did recognized that reducing the term by one day would allow the defendant to appeal deportation, but as the purpose of that Section of the IRAP is there so serious offenders can be deported, reducing the sentence to allow the appeal defeated the purpose of the legislation. I note here, that the Crown did not oppose the sentence reduction. The SCC in granting the appeal and reducing the sentence by one day has overturned that decision.  The ruling can be found here. 

The SCC ruling entailed two ideas; judicial discretion and collateral effects. What the Supreme Court was saying in that ruling is that Judges have a right to discretion in sentencing. This is in the face of the Harper government's recent legislation to introduce a more mandatory sentences. The notion of mandatory sentences are popular with the conservative base but are recognized, even in places like the United States as being counter productive. Mandatory sentencing removes from the Judge their ability to act and respond to unique elements in trials; all cases are not the same and may require different approaches in sentencing. We pay Judges for their  knowledge and experience, it is a shame to render them incapable of using them. I will point out that the SCC gave Judges the leeway to alter sentences but must do so in relation to the crime and with an eye to the level if engagement by the defendant. Any reduction or increase in a sentence must be reasonable and proportionate to the crime. 

The other point raised in conjunction with Judicial discretion is what factors may be considered as relevant when sentencing. This case turned on a section of the IRAP dealing with deportations and appeals. The defendant was rendered incapable of appealing a deportation or due to the collateral effect of a two year sentence. A day less and the defendant would have leave to explain why he shouldn't be deported. The SCC  deemed it reasonable and within the judges discretion to reduce the sentence to allow Mr. Pham's appeal. Now the ruling was specific to this case; where a sentence remains reasonable and will allow an immigrant to purse an appeal regarding their deportation; the sentencing judge may reduce a sentence. I will again note that the SCC didn't give judges carte blanche to alter sentence to meet a defendants immigration needs; any alteration must be considered in relation to the crime and level of defendant's responsibility for the crime. A wider interpretation is that collateral effects of a sentence may be considered by Judges. This is a big strike against mandatory minimums.

I didn't here a lot about this decision in the news but I did find a small piece on the The Sun News site. The comments are what you want to read. 

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