Court of Appeal

Nova Scotia Court of Appeal

Citation: R. v. Ankur, 2023 NSCA 2

Date: 20230105

Docket: CAC 517706

CAC 520120

 

Between:

Anas Islam Ankur

Appellant

v.

His Majesty the King

Respondent

 

-and-

Between:

Jithin Chandran

Appellant

v.

His Majesty the King

Respondent

 

Judge:	Beveridge J.A.
Motion Heard:	December 15, 2022, in Halifax, Nova Scotia in Chambers
Held:	Applications dismissed
Counsel:	Anna Mancini, for the appellant Mark Scott, K.C., for the respondent

 

Decision:

[1]             The appellants applied for “a stay of convictions” pending the outcome of their applications for leave to appeal.  Despite the Crown’s offered consent to the proposed stay, I denied the applications with reasons to follow.  These are my reasons. 

BACKGROUND

[2]             Mr. Ankur and Mr. Chandran are both relatively young men.  Both came to Canada to study.  Both now work in Canada as Foreign Nationals pursuant to work permits. 

[3]             Unfortunately, both appellants committed Criminal Code offences.  Mr. Ankur was charged in February 2018 with damage to property (s. 430(4) of the Criminal Code) and operating or having the care or control of a motor vehicle with a blood alcohol level greater than 80 mg per 100 ml of blood (s. 253(1)(b)), and impaired care or control of a motor vehicle (s. 253(1)(a)).  On May 6, 2019, he pled guilty to the s. 430(4) offence and on July 17, 2020, to the s. 253(1)(b) offence.  

[4]             At his sentence hearing before Simmons Prov. Ct. J., Mr. Ankur argued the imposition of the mandatory minimum sentence of a $1,000.00 fine would constitute cruel and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms.  In support, he called expert opinion evidence to the effect that if a criminal conviction were to be entered, a report to the Minister of Immigration triggered a 95 percent probability of removal from Canada. 

[5]             Due to the immigration consequences, the provincial court judge decided that the imposition of the mandatory minimum fine would result in a grossly disproportionate sentence to the one she would otherwise conclude is a fit sentence.  She declined to impose the mandatory minimum. 

[6]             Instead, she granted Mr. Ankur a conditional discharge.  Specifically, she placed him on probation for three years with a variety of conditions, including 100 hours of community service.  If he successfully complied with those conditions, he would be discharged.  Although guilty of the offence, no criminal conviction was entered.  There would be no threat of removal by the immigration authorities.  

[7]             Mr. Chandran’s offence occurred on August 17, 2019.  The police approached him in his car at 2:23 a.m.  Indicia of impairment lead to a breathalyzer demand.  He became belligerent and refused several times. 

[8]             Parliament amended the Criminal Code’s impaired driving provisions.  The police charged Mr. Chandran under the new regime with impaired operation (s. 320.14(1)(a)) and refusing a breathalyzer demand (s. 320.15(1)). 

[9]             Mr. Chandran pled not guilty.  On the date set for trial, December 3, 2020, he pled guilty to the charge of impaired operation (which by definition, includes care or control) of a conveyance.  Judge Amy Sakalauskas ordered a Pre-Sentence Report.  The sentence hearing proceeded before Cromwell Prov. Ct. J., as she then was, on May 21, 2021. 

[10]         As in the Ankur proceedings, the appellant asked the judge for a constitutional exemption from the imposition of the mandatory minimum penalty of a $1,000.00 fine on the basis it would amount to cruel and unusual punishment and hence contrary to s. 12 of the Charter. 

[11]         The sentence hearing was adjourned from time to time.  On October 28, 2021, Judge Cromwell delivered her oral decision.  It is unreported.  In it, she canvassed other Nova Scotia Provincial Court decisions that had wrestled with the notion that imposition of the mandatory minimum fine due to immigration consequences amounted to cruel and unusual punishment (R. v. Tebay, 2020 NSPC 43; R. v. Cummings, 2021 NSPC 28; and R. v. Ankur, unreported).

[12]         I will refer to her analysis in more detail later.  For now, it is sufficient to observe the sentencing judge reasoned that absent the mandatory minimum fine, a conditional discharge would be an appropriate sentence and the collateral immigration consequences would constitute cruel and unusual punishment.

[13]         As Judge Simmons did in Ankur, Judge Cromwell placed Mr. Chandran on probation for three years with a variety of conditions, including the performance of 100 hours of community service.  Should he successfully complete the terms of his probation order, a discharge would follow.

 

THE SCAC PROCEEDINGS

[14]         The Crown appealed both decisions as of right to the Summary Conviction Appeal Court.  Justice Denise Boudreau, in light of the identical issues raised, heard the two appeals together on May 2, 2022. 

[15]         The Crown advanced the same two grounds of appeal:

1.         The Provincial Court Judge erred in law in ruling that the mandatory minimum sentence prescribed by s. 320.19 of the Criminal Code constitutes a violation of s. 12 of the Charter.

2.         The Provincial Court Judge erred in principle in determining that the appropriate sentence was a conditional discharge.[1]

[16]         On August 17, 2022, the SCAC judge delivered separate oral reasons that addressed each appeal.  These were later released in writing.  For Mr. Chandran, they are reported as 2022 NSSC 250, and for Mr. Ankur as 2022 NSSC 251.

[17]         Apart from the different evidentiary record and some factual variations canvassed by Boudreau J., the judge’s legal reasoning followed the same path: the judges committed legal error when they concluded the mandatory minimum constituted cruel and unusual punishment; and they erred when they granted the appellants conditional discharges.

[18]         Later, I will add further details of Boudreau J.’s reasons.

[19]         The appellants filed a joint general Notice of Appeal to this Court (C.A.C. No. 517706) on September 12, 2022. 

[20]         Originally, Boudreau J. had remitted both proceedings back to the Provincial Court for the imposition of sentence.  Justice Boudreau was then convinced it was the SCAC that must impose sentence.  Arrangements were made for the appellants to appear before her on December 14, 2022. 

[21]         The Crown took the same position before Boudreau J. for each appellant: imposition of the mandatory minimum penalty of a $1,000.00 fine.  The required one-year prohibition orders had already been imposed in Provincial Court.  Accordingly, on December 14, 2022, Justice Boudreau fined each appellant $1,000.00. 

 THE APPEAL PROCEEDINGS TO THIS COURT

[22]         As noted above, on September 12, 2022, the appellants filed a general joint Notice of Appeal to this Court.  The grounds of appeal advanced are:

1.         The learned Summary Conviction Court of Appeal judge erred in overturning decisions from the courts below that Conditional Discharges were not fit and proper sentences absent the mandatory minima set out at statute.

2.         The learned Summary Conviction Appeal Court of Appeal judge erred in overturning decisions from the courts below finding that said mandatory minima do not breach s.12 of the Canadian Charter of Rights and Freedoms.

[23]         There are two problems with the Notice of Appeal.  First, neither appellant has a right to appeal to this Court.  They need to seek leave to appeal.  Hence, the general Notice of Appeal was not appropriate. 

[24]         The appellants did correctly identify in the Notice that they seek leave to appeal pursuant to s. 839 of the Criminal Code.

[25]          Second, there were two separate proceedings in Provincial Court and in the SCAC.  There must be two separate applications for leave to appeal.  No doubt the applications for leave to appeal will be heard together. 

[26]         The appellants filed An Amended Notice of Application for Leave to Appeal dated December 9, 2022.  It addresses a number of typographical and spelling issues and is the correct form to prosecute leave to appeal from the SCAC.  The Crown offers its consent to the Amended Notice.  

[27]         I have directed the Registrar to accept the Amended Notice of Application for Leave to Appeal but to assign a second C.A.C. number for Mr. Chandran’s application for leave to appeal and waive any filing fee, if any, that would apply to the new file number.  There will be no need to replicate materials.  The filing and hearing dates will be the same for both applications for leave to appeal. 

 

THE STAY REQUEST

[28]         On December 8, 2022, the appellants filed a motion for a stay and Brief in support, returnable on December 15, 2022.  The motion requests a stay of the convictions imposed by Boudreau J. on December 14, 2022.

[29]         There are several problems with the requested relief.  Justice Boudreau fined the appellants $1,000.00 each on December 14, 2022, and in doing so, entered convictions against them.  How can I “stay a conviction” that has already been entered?  Where do I derive my authority to grant the requested relief?  And, even if I have that authority, have the appellants met their burden?

[30]         There are Criminal Code provisions that permit a court to suspend the operation of a sentence pending the hearing of an appeal.  Section 679 authorizes a judge of the appeal court to grant bail pending appeal from conviction or sentence.  In addition, an appeal court or a judge thereof can, pursuant to s. 683(5), suspend a broad range of orders until an appeal has been determined.  It provides as follows:

(5) If an appeal or an application for leave to appeal has been filed in the court of appeal, that court, or a judge of that court, may, when the court, or the judge, considers it to be in the interests of justice, order that any of the following be suspended until the appeal has been determined:

            (a) an obligation to pay a fine;

                        (b) an order of forfeiture or disposition of forfeited property;

                        (c) an order to make restitution under section 738 or 739;

                        (d) an obligation to pay a victim surcharge under section 737;

                        (e) a probation order under section 731; and

                        (f) a conditional sentence order under section 742.1.

[31]         If the appellants had been sentenced to incarceration in an institution or to be served conditionally, bail or a suspension of the conditional sentence order would have been available.  I undoubtedly also have the power to suspend their obligation to pay a fine or the requirements of a probation order pending their appeals.  None of these pertain.

[32]         The appellants turn to Civil Procedure Rules 90.41(2) and 91.02(2) and the well-established jurisprudence in civil cases that authorizes a judge to stay enforcement and grant relief from the effects of judgments pending appeal (see for example, Nova Scotia (Attorney General) v. Morrison Estate, 2009 NSCA 116). 

[33]         Jurisdiction outside the relevant Criminal Code provisions to grant a stay or similar relief in criminal cases is not universally accepted (see for example: R. v. Zurowski, 2003 ABCA 174; R. v. Howells, 2009 BCCA 297; R. v. Hehr, 2020 ABCA 444).  In Nova Scotia, the jurisdiction to order stays in situations not specifically enumerated in the Criminal Code appears to be well-accepted (see: R. v. Keating (1991), 106 N.S.R. (2d) 63; R. v. Dempsey (1995), 138 N.S.R. (2d) 110; R. v. MacIntosh, 2008 NSCA 73; R. v. Nova Scotia (Ombudsman), 2017 NSCA 9).

[34]         Section 482 of the Criminal Code authorizes this Court to make rules with respect to appeals or matters incidental thereto.  It provides:

482(1) Every superior court of criminal jurisdiction and every court of appeal may make rules of court not inconsistent with this or any other Act of Parliament, and any rules so made apply to any prosecution, proceeding, action or appeal, as the case may be, within the jurisdiction of that court, instituted in relation to any matter of a criminal nature or arising from or incidental to any such prosecution, proceeding, action or appeal.

[35]         Civil Procedure Rule 91 was made pursuant to this rule-making power. Rule 91.02 specifically provides that Rule 90 applies when not inconsistent with Rule 91:

91.02 Scope of Rule 91

            (1)       This Rule is made under subsections 482(1) and (3) of the Code.

            (2)        The Civil Procedure Rules as a whole and in particular Rule 90 apply to this Rule with any necessary modifications and when not inconsistent with this Rule.

            (3)        The procedures in Rule 90 for motions made to a judge of the Court of Appeal and to the Court of Appeal apply to motions made under this Rule.

[36]         Civil Procedure Rule 90.41 is as follows:

90.41 Stay of execution

(1)  The filing of a notice of appeal shall not operate as a stay of execution or enforcement of the judgment appealed from.

(2)  A judge of the Court of Appeal on application of a party to an appeal may, pending disposition of the appeal, order stayed the execution and enforcement of any judgment appealed from or grant such other relief against such a judgment or order, on such terms as may be just.

[37]         Rule 91.01 defines judgment to include a conviction or order of a summary conviction appeal court:

“judgment” means a conviction, finding of guilt, acquittal, order staying a proceeding, sentence, verdict of unfit to stand trial, verdict of not criminally responsible on account of mental disorder, a decision or order of a summary conviction appeal court, and includes any other decision or order from which an appeal is available to the Court of Appeal;

[38]         The problem is this: I am not being asked to stay the enforcement of the $1,000.00 fine imposed by Boudreau J.  That is something I could do pursuant to s. 683(5) of the Code.  Instead, I am being asked to issue an order that somehow undoes the fact convictions were entered concomitantly when the fines were imposed.

[39]         Counsel for the appellants suggested instead of a stay of convictions, I could issue an order that would prohibit the Clerk of the Nova Scotia Supreme Court from issuing certificates of convictions.  The theory is without certificates of conviction, the immigration officials could not forward documentary proof to the Minister to establish the appellants had in fact been convicted. 

[40]         Perhaps I had the jurisdiction to order a stay of the scheduled December 14, 2022, sentence proceeding in the Supreme Court or have it to prohibit the Clerk from issuing certificates of conviction pending appeal.  However, even if I have such jurisdiction to grant these remedies, I am not satisfied the appellants have made out their burden to obtain a stay. 

[41]         Over thirty years ago, in Purdy v. Fulton Insurance Agencies Ltd. (1990), 100 N.S.R. (2d) 341 (C.A.), Hallett J.A. articulated the requirements an applicant must meet for a stay in civil proceedings.  They have since been consistently applied in Nova Scotia.

[42]         There are two tests described in Purdy.  The primary test requires the appellant to satisfy a judge on a balance of probabilities: (i) an arguable issue is raised by the appeal; (ii) if the stay is not granted and the appeal is successful the appellant will have suffered irreparable harm that it is difficult to or cannot be compensated for by a damage award; and (iii) the appellant will suffer greater harm if the stay is not granted than the respondent would suffer if the stay is granted (the balance of convenience).  The secondary test permits a judge to issue a stay even if the applicant cannot meet the primary test, but only where there are exceptional circumstances.

[43]         The appellants request I apply the Purdy primary test in the context of their applications for leave to appeal pursuant to s. 839 of the Criminal Code.  I need not discuss the secondary test.

[44]         With respect to the primary test, the appellants addressed each requirement.  The need to demonstrate an “arguable issue” is not an onerous condition.  Typically, it does not engage a judge in a prolonged or detailed examination of the merits of an appeal. 

[45]         Although “an arguable issue” is a low threshold, the appellant must at least identify realistic grounds which appear to be of sufficient substance to be capable of convincing a panel of the Court to allow the appeal.  In the words of Freeman J.A. in Amirault v. Westminer Canada Ltd. (1993), 125 N.S.R. (2d) 171, the ground of appeal must have a realistic chance of being able to convince a panel the judge erred in law (para. 11).

[46]         Despite it being a low bar, the requirement must be met.  The appellants failed in Colpitts v. Nova Scotia Barristers’ Society, 2019 NSCA 45; Higgins v. Nova Scotia (Attorney General), 2013 NSCA 118, and Y. v. Swinemar, 2020 NSCA 56. 

[47]         In this case, I am not satisfied the appellants have demonstrated they have a realistic chance of convincing a panel of this Court the SCAC judge erred in law. 

[48]         The appellants’ brief describes their arguable issues as:

•         That the Summary Conviction Appeal Court Judge erroneously conducted a reversed analysis of the Nur framework: she began her analysis by first determining that the mandatory minimum was the appropriate sentence by virtue of the fact that it is a mandatory minimum.  She then worked backwards to determine whether the Appellants’ circumstances warranted a sentence that departed from the mandatory minimum.  In contrast, the Provincial Court Judges appropriately first determined the fit and proper sentences for the Appellants, including a reasonable assessment of the collateral consequences that they faced.  The Provincial Court Judges each then properly assessed whether the mandatory minimum would require them to impose sentences that were disproportionate to the sentences they deemed to be proper and fit.  In finding that it did, the Provincial Court Judges correctly found that the mandatory minimum breached the Appellants’ s.12 Charter rights, and imposed the appropriate sentence.

•         That the initial sentences imposed by the Provincial Court Judges were proper and fit sentences, taking into account all relevant factors and sentencing principles, including a proper analysis of collateral consequences for the Appellants.  With respect, the Summary Conviction Appeal Court Judge erred in her reliance on “starting points” or “sentencing ranges” in determining that the Provincial Court Judges had imposed demonstrably unfit sentences, and subsequently inappropriately intervened with the Provincial Court Judges’ discretion on sentencing. [footnotes omitted]

[49]         These suggested errors are unfounded.  More importantly, the notion that a fine of $1,000.00 can constitute cruel and unusual punishment is untenable. 

[50]         In both decisions, the SCAC judge correctly referred to the analytical framework established by the Supreme Court of Canada in R. v. Nur, 2015 SCC 15, to determine if a sentence mandated by Parliament amounts to cruel and unusual punishment contrary to s. 12 of the Charter. 

[51]         The framework involves two steps: what is a fit and appropriate sentence considering the objectives and principles of sentence; and does the mandatory minimum require a court to impose a sentence that is grossly disproportionate to the fit and proper sentence.  For this latter enquiry, the mandatory minimum might be grossly disproportionate with respect to the offender or others in reasonably foreseeable situations (Nur, at paras. 46, 65, 77). 

[52]         McLachlin C.J., for the majority in Nur, summarized the law as follows:

[77]      In summary, when a mandatory minimum sentencing provision is challenged, two questions arise. The first is whether the provision results in a grossly disproportionate sentence on the individual before the court. If the answer is no, the second question is whether the provision's reasonably foreseeable applications will impose grossly disproportionate sentences on others. This is consistent with the settled jurisprudence on constitutional review and rules of constitutional interpretation, which seek to determine the potential reach of a law; is workable; and provides sufficient certainty.

[53]         The Supreme Court has repeatedly endorsed this approach (see: R. v. Lloyd, 2016 SCC 13; R. v. Morrison, 2019 SCC 15).  As these and other cases make clear, the bar set by the Supreme Court for a sentence to be considered cruel and unusual punishment is high.  It must be so excessive so as to outrage standards of decency and be abhorrent or intolerable to society:

[22]      The analytical framework to determine whether a sentence constitutes a "cruel and unusual" punishment under s. 12 of the Charter was recently clarified by this Court in Nur. A sentence will infringe s. 12 if it is "grossly disproportionate" to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: Nur, at para. 39; R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law's reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, at para. 77.

…

[24]      This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be "grossly disproportionate" a sentence must be more than merely excessive. It must be "so excessive as to outrage standards of decency" and "abhorrent or intolerable" to society: Smith, at p. 1072, citing Miller v. The Queen, [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.

R. v. Lloyd, supra

[54]         Boudreau J. acknowledged that although the sentence judges undertook the two steps described in Nur, they erred in both steps.  The first error was to find a discharge was within the appropriate range of sentence for this offence and the individual offenders.  Justice Boudreau referenced the fact that Canadian society, Parliament, and the courts have recognized the seriousness of impaired driving.  Penalties have increased over the years, and there is a need to emphasize deterrence and denunciation. 

[55]         In both cases, a discharge was considered appropriate because of the immigration consequences for the appellants if convictions were entered.  The SCAC judge correctly noted the role for collateral immigration consequences was clearly laid out by the Supreme Court of Canada in R. v. Pham, 2013 SCC 15, where Wagner J., as he then was, for the Court, explained:

[15]      The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will.

[16]      These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.

[56]         In both cases, the SCAC judge reasoned as follows:

[46]      In the case of Mr. Ankur, a discharge was simply not within the appropriate range of sentence for this offence and this offender. The discharge came about in order to avoid the immigration procedure that would follow.

[47]      In her decision, in my view, the sentencing judge did exactly what the court in Pham said a sentencing court could not do; set up a separate sentencing scheme only for those persons in Mr. Ankur’s circumstances, i.e., a foreign national facing likely or probable deportation as a result of criminal convictions.

2022 NSSC 251, and 2022 NSSC 250 at paras. 47-48

[57]         While I do not disagree with the SCAC judge’s comments about the seriousness of impaired driving offences, and the legions of caselaw that have emphasized the need to deter and denounce these crimes, the whole exercise whether a discharge is within the appropriate range of sentence is actually quite artificial in these circumstances. 

[58]         That is because a conditional or absolute discharge has never been an available sentence for the offences of impaired care or control, refusing a breathalyzer demand, or care or control having a blood alcohol level of more than 80 mg of alcohol in 100 ml of blood. 

[59]         A discharge is a legal invention.  It permits a finding of guilt but if an offender were granted a discharge, they can truthfully answer they have never been “convicted” of that offence. 

[60]         Discharges first became available when Parliament enacted the Criminal Law Amendment Act, S.C. 1972, c. 13, s. 57.  It provided:

662.1(1)  Where an accused, other than a corporation, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable, in the proceedings commenced against him, by imprisonment for fourteen years or for life or by death, the court before which he appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or upon the conditions prescribed in a probation order.

…

(3)  Where a court directs under subsection (1) that an accused be discharged, the accused shall be deemed not to have been convicted of the offence to which he pleaded guilty or of which he was found guilty and to which the discharge relates except that

(a)  the accused or the Attorney General may appeal from the direction that the accused be discharged as if that direction were a conviction in respect of the offence to which the discharge relates or, in the case of an appeal by the Attorney General, a finding that the accused was not guilty of that offence; and

(b)  the accused may plead autrefois convict in respect of any subsequent charge relating to the offence to which the discharge relates.[2]

[61]         At the time of this enactment, the relevant Criminal Code offences (ss. 234, 235 and 236) all prescribed minimum mandatory penalties, even for a first offence.[3] Prior to 1972, a discharge was not part of the Canadian criminal law lexicon.  The legislative bifurcation of guilt from conviction was a new Canadian invention. 

[62]         Before 1972, a plea or finding of guilt constituted a conviction.  Martin J.A., writing for a five-member panel of the Ontario Court of Appeal in R. v. McInnis (1974), 1 O.R. (2d) 1, described the law as follows:

A finding that the accused is guilty of the offence charged or a plea of guilty to an offence under ordinary circumstances constitutes a conviction for the offence although no sentence is imposed: R. v. Blaby, [1894] 2 Q.B. 170; R. v. Sheridan, [1937] 1 K.B. 223; R. v. Grant (1936), 26 Cr. App. R. 8; Ex p. Johnston, [1953] O.R. 207, 105 C.C.C. 161, 16 C.R. 93 …

[63]         Even a cursory examination of the relevant Criminal Code provisions prior to the 1972 Criminal Law Amendment Act, make clear a finding or plea of guilt constituted a conviction (Criminal Code, R.S.C. 1970, c. C-34, ss. 645(1)(2), 662(1), 663).

[64]         Every attempt to obtain a discharge for otherwise deserving offenders who had pled or been found guilty of drinking and driving offences has failed (R. v. Millen (1973), 13 C.C.C. (2d) 395 (N.S.S.C.A.D.); R. v. Poulin, [1974] 4 W.W.R. 104 (Man. C.A.); In Regina v. MacNeill (1974), 8 N.B.R. (2d) 467 (N.B.S.C.A.D.); R. v. Bradshaw, [1976] 1 S.C.R. 162).[4]

[65]         The only avenue that has ever existed for a conditional discharge for a drinking and driving offence was through the curative discharge provision found in what was most recently numbered as s. 255(5) of the Criminal Code.[5]  This provision was in force at the time of Mr. Ankur’s offence.  He did not apply for it as he did not qualify. 

[66]         Parliament abolished the possibility of a curative discharge in 2018.[6]  Instead, a court can elect not to impose the mandatory minimum punishment if an offender successfully completes a treatment program, but the Court is statutorily precluded from granting a discharge (s. 320.23(2)).

[67]         As for the second “arguable issue”, at no time did the SCAC judge refer to “starting points” or somehow improperly rely on “sentencing ranges”.

[68]         Even if I were to be convinced it is arguable the SCAC judge got it wrong to find the provincial court judges committed reversible error about the appropriate sentence for these appellants absent the mandatory minimum, it is simply not realistic to suggest the imposition of a $1,000.00 fine amounts to cruel and unusual punishment. 

[69]         Counsel for the appellants could not identify any case that has suggested a fine can constitute cruel and unusual punishment.  If a court were to impose an excessive fine, an appeal court has the authority to intervene—not because the amount of the fine constitutes cruel and unusual punishment, but because of potential legal error by the sentencing judge or the fine is demonstrably unfit as being manifestly excessive. 

[70]         It is simply not a tenable proposition that any fine, let along one of $1,000.00, is a punishment so excessive so as to outrage standards of decency and be abhorrent or intolerable to society. 

[71]          Of course, it is not the fine that motivates the appellants—it is the attendant entry of convictions which trigger likely immigration consequences. 

[72]         There must always be a first case.  But it is also telling that counsel could not point to any case in Canada which had found that the entry of a conviction and refusal to grant a discharge constitutes cruel and unusual punishment.  Every case is to the contrary (see: R. v. Luke, 2021 ONSC 3550; R. v. Sabattis, 2020 ONCJ 242); including ones where the conviction would trigger immigration consequences (see: R. v. Tebay, supra; R. v. Cummings, supra).

[73]         Although not necessary, I will also refer, as did the SCAC judge, to Revell v. Canada (Citizenship and Immigration), 2019 FCA 262[7] and Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711.

[74]         First, let me observe, the SCAC judge did not order either appellant deported.  Deportation or the risk of deportation are not part of the sentence imposed.  She fined each appellant.  This triggered either a likelihood or possibility of deportation pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27. 

[75]         In Chiarelli, the appellant challenged the constitutionality of the former Act[8] which allowed for a permanent resident to be deported if convicted of an offence for which a term of imprisonment of five years or more may be imposed.  The appellant relied on the Constitutional rights to life, liberty, and security of the person (s. 7) and not to be subject to cruel and unusual treatment or punishment (s. 12).

[76]         Sopinka J., for the Court, discounted the suggestion deportation for commission of a criminal offence could amount to a breach of fundamental justice (para. 27).  Similarly, deportation could not be said to outrage standards of decency and is not cruel and unusual punishment:

[31]  The deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain in Canada by committing a criminal offence punishable by imprisonment of five years or more, cannot be said to outrage standards of decency. On the contrary it would tend to outrage such standards if individuals granted conditional entry into Canada were permitted, without consequence, to violate those conditions deliberately.

[77]         In Revell, the Court reviewed the current legislative scheme and protections afforded permanent residents and foreign nationals from being deported pursuant to a removal order.  The appellant was a permanent resident.  De Montigny J.A., for the Court, rejected the suggestion that deportation amounted to cruel and unusual treatment:

[129]    Even if this were not the case, I would still find, for essentially the same reasons as those set out earlier with respect to "gross disproportionality" in the context of my section 7 analysis, that the appellant has not made out a breach of section 12 of the Charter. I agree with the Judge that, while it may be "slightly disproportionate" to deport the appellant if he is at low risk of reoffending (F.C. Reasons, at paragraph 223), this does not reach the high bar for a finding of cruel or unusual treatment. As noted above, the various processes in the inadmissibility determination and removal regime allow for individual circumstances to be considered, and protect against grossly disproportionate results.

[78]         I am not convinced the appellants have put forward a realistic ground of appeal capable of convincing a panel of this Court that the application for leave to appeal should be granted and the appeal allowed.

Irreparable harm

[79]         The appellants put their case for irreparable harm as follows:

19.       The Appellants submit that their deportation in advance of the appeal hearing would cause irreparable harm.  Following removal from Canada on the basis of criminal inadmissibility, the Appellants would not be permitted re-entry to Canada, and would be unable to attend or participate in the hearing of their appeal.

[80]         Counsel conceded that if the appellants were to be successful on their appeal and have their conditional discharges reinstated, they would no longer have convictions and could gain re-entry.  The absence of the requested stays does not frustrate or render nugatory their applications for leave to appeal.

[81]         It is accurate that they might be unable to attend in person the appeal hearing.  This does not constitute irreparable harm.  I say this for three reasons.

[82]         First, I scheduled the applications for leave to appeal to be heard by a panel of this Court on June 15, 2023.  I have absolutely no evidence when the appellants might exhaust their resistance to what the Courts below found to be a likely removal order as foreign nationals convicted of a criminal offence that was punishable by indictment.  Mr. Ankur’s affidavit simply states that upon a conviction being registered on December 14, 2022, he will become inadmissible to Canada under s. 36(2) of the Canadian Immigration and Refugee Protection Act. 

[83]         Mr. Chandran deposes that:

9.         That I am advised, and do verily believe, that a file in my name is currently open with Mr. Chris McIntosh, an agent of the Canadian Border Services Agency (CBSA).  Mr. McIntosh initially closed my file following my sentencing hearing in Provincial Court.  However, following the appeal of my sentence, my file was re-opened.  I have been advised that, upon my conviction, the CBSA will commence the deportation process. 

[84]         Second, the appellants’ physical presence is entirely unnecessary for their applications for leave to appeal to be prosecuted.

[85]         If in Canada, and they were not in custody, they would have the right, as any member of the public would, to attend and observe the hearing.  They have counsel in appeals that involve questions of law alone.  If they were in custody in Canada, they would have no right to be present (s. 688(2) of the Criminal Code). 

[86]         Third, this Court has the capacity and willingness to have parties appear using audio-visual technology. 

[87]         I need not consider the balance of convenience. 

SUMMARY AND CONCLUSION

[88]         Two fairly young foreign nationals came to Canada to study.  They remain on work permits.  They have no history of criminality. 

[89]         They made mistakes.  Each appellant drove motor vehicles while impaired or while their blood alcohol level exceeded what the law permits.  Their Pre-Sentence Reports were positive.  

[90]         The information before Judge Simmons was that Mr. Ankur was due to graduate from university in the spring of 2021 and had employment available.  He had made restitution for the damage caused by his actions.  He no longer drove and had returned to his religion that made alcohol taboo.  Mr. Ankur had committed himself to being a productive member of the community.

[91]         Mr. Chandran comes from a good family in India.  Apparently, he had been nominated by the Nova Scotia Office of Immigration for the Provincial Nominee Program through Express Entry, and subsequently invited to apply for permanent residence.  He advised Judge Cromwell he has addressed his mental health issues, abstains from alcohol, and is in a positive long-term relationship. 

[92]         Canada may well benefit from having such individuals as residents or citizens.  Their status and ability to remain in Canada are matters for the Minister of Immigration. 

[93]         They have not satisfied me, on a balance of probabilities, they have advanced an arguable issue in their respective applications for leave to appeal.  It is an untenable proposition that a fine of $1,000.00 can constitute cruel and unusual punishment.  It cannot be viewed as a punishment so excessive so as to outrage standards of decency and be abhorrent or intolerable to society.  What would likely be incomprehensible to the average Canadian citizen is how a foreign national could receive a conditional discharge for a drinking and driving offence when that sentence option is beyond the reach of every Canadian citizen despite having an otherwise unblemished background.

[94]         Furthermore, the appellants have not demonstrated a stay or other remedy is necessary to avoid frustrating or rendering nugatory their applications for leave to appeal.

[95]         I was not asked to determine if leave to appeal should be granted.  I set dates for the filing of facta and the appeal hearing.  Accordingly, the issue of leave to appeal will be decided by the panel which will hear this case on June 15, 2023. 

 

Beveridge J.A.