In January the British Columbia Court of Appeal released its decision in R. v. Rich 2014 BCCA 24 dismissing the appeal in a sexual exploitation case of a convicted sex offender seeking to avoid the immigration consequences of his sentence.
Immigration consequences of a sentence of more than two years
Mr. Rich was convicted of sexual exploitation for abuse involving his youngest daughter. He was sentenced to 2 1/2 years in prison. As a non-Canadian who had lived in Canada since a young boy, the sentence meant he was subject to potential deportation. That’s because the provisions then in effect of the federal Immigration and Refugee Protection Act allowed for deportation of non-citizens sentenced to more than 2 years in prison, without any right of appeal against a removal order.
Mr. Rich’s lawyer argued the sentencing judge should have taken the potential immigration consequences for his client into account when deciding the appropriate sentence. So far, so good. The court has previously decided it’s appropriate in BC for a sentencing judge to consider immigration consequences of a particular sentence. Mr. Rich’s problem was that immigration consequences can’t justify a sentence that would otherwise be unfit, and the sentencing judge found a sentence of less than 2 years was not appropriate.
The argument Mr. Rich’s lawyer asked the appeal court to accept went like this. At the time of the hearing of Mr. Rich’s appeal, he had already been in custody for 10 months and was likely a good candidate for parole. If the appeal court replaced the original 2 1/2 year sentence with a suspended sentence followed by probation for 30 months (thereby treating Mr. Rich’s 10 months in custody as probation rather than imprisonment), for practical purposes, it would result in the same remaining punishment, but with 20 months of probation rather than 20 months of parole. This would have avoided any immigration consequences for Mr. Rich.
Wilful blindness, concealment and doublethink
The three appeal judges didn’t buy any of it. Writing for the court, Justice Groberman said that to do so would require the court to engage in an “odd sort of wilful blindness”. In language evocative of George Orwell’s dystopian novel 1984, Justice Groberman said it would be unseemly and inappropriate to engage in “that sort of concealment and doublethink”.
The BC Court of Appeal was right to accept the argument Mr. Rich’s lawyer asked them to accept. Judges, lawyers, accused persons and anyone else who might be interested must be able to read the decisions of our courts and understand why a particular case has been decided in a particular way. We must all be able to know why a particular sentence has, or has not, been imposed. Engaging in the kind of mental gymnastics urged upon the appeal court in this case would not have been good for justice.