R. v. Arganda (J.R.), (2011) 268 Man.R.(2d) 194 (CA)

• Judge: Hamilton, Freedman and MacInnes, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: July 15, 2011
• Jurisdiction: Manitoba
• Citations: (2011), 268 Man.R.(2d) 194 (CA);2011 MBCA 54

R. v. Arganda (J.R.) (2011), 268 Man.R.(2d) 194 (CA);

      520 W.A.C. 194

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. JL.044

Her Majesty The Queen (respondent) v. Joselito Rabaya Arganda (accused/appellant)

(AR 11-30-07517; 2011 MBCA 54)

Indexed As: R. v. Arganda (J.R.)

Manitoba Court of Appeal

Hamilton, Freedman and MacInnes, JJ.A.

July 15, 2011.

Summary:

The 38 year old accused, a permanent resident but not a Canadian citizen, was an integral part of a group involved in a fraudulent cheque-writing/cashing scheme. He pleaded guilty to forgery, possession of goods obtained by crime (six counts), possession of counterfeit money (two counts), fraudulent use of credit card data, uttering a forged document and failure to comply with a recognizance. The trial judge sentenced the accused to two years' imprisonment, less 18 months' credit for pre-trial custody, followed by 18 months' probation. After serving that sentence, and subsequent sentences for later offences, the accused received a deportation order. Because the accused received a sentence of two years or more, s. 64(2) of the Immigration and Refugee Protection Act precluded the accused from appealing the deportation order. The accused's immigration status had not been raised or considered on sentencing. The accused appealed his sentence, seeking a reduction to two years less a day to permit him to appeal his deportation order. The accused argued that given his immigration status, a sentence exceeding two years less a day was demonstrably unfit.

The Manitoba Court of Appeal allowed the appeal and reduced the sentence to two years less a day.

Editor's Note: For a decision on the extension of time to appeal and leave to appeal the sentence see (2011), 262 Man.R.(2d) 244; 507 W.A.C. 244.

Criminal Law - Topic 5840

Sentencing - Considerations on imposing sentence - Prospective deportation of convict -The 38 year old accused, a permanent resident but not a Canadian citizen, was an integral part of a group involved in a fraudulent cheque-writing/cashing scheme - He pleaded guilty to forgery, possession of goods obtained by crime (six counts), possession of counterfeit money (two counts), fraudulent use of credit card data, uttering a forged document and failure to comply with a recognizance - The trial judge sentenced the accused to two years' imprisonment, less 18 months' credit for pre-trial custody, followed by 18 months' probation - After serving that sentence, and subsequent sentences for later offences, the accused received a deportation order - Because he received a sentence of two years or more, s. 64(2) of the Immigration and Refugee Protection Act precluded the accused from appealing the deportation order - The accused's immigration status had not been raised or considered on sentencing - The accused appealed his sentence, seeking a reduction to two years less a day to permit him to appeal his deportation order - The accused argued that the judge failed to consider a relevant factor (his immigration status) and that the sentence was demonstrably unfit - The Manitoba Court of Appeal allowed the appeal and reduced the sentence to two years less a day - Absent the immigration issue, the sentence was fit - Given the immigration issue, the sentence was unfit because of the serious unintended and unfair effect of precluding the accused's appeal of the deportation order - Reducing the sentence by one day would do no injustice to the original sentence - The failure of the original sentence to take into account a circumstance peculiar to the accused resulted in a disproportionately severe sentence for the accused - The accused's post-sentence conduct (further convictions) was not sufficiently serious to maintain what was determined to be an unfit sentence.

Criminal Law - Topic 5842.1

Sentencing - Considerations on imposing sentence - Post-conviction, post-charge or post-discharge conduct - [See Criminal Law - Topic 5840 ].

Cases Noticed:

R. v. Ruizfuentes (H.S.) (2010), 258 Man.R.(2d) 220; 499 W.A.C. 220; 2010 MBCA 90, refd to. [para. 25].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 25].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 25].

R. v. Hamilton (M.A.) et al. (2004), 189 O.A.C. 90; 186 C.C.C.(3d) 129 (C.A.), refd to. [para. 29].

R. v. Spencer (T.-A.) (2004), 188 O.A.C. 363; 186 C.C.C.(3d) 181 (C.A.), refd to. [para. 29].

R. v. Kanthasamy (S.) (2005), 210 B.C.A.C. 54; 348 W.A.C. 54; 195 C.C.C.(3d) 182; 2005 BCCA 135 (C.A.), refd to. [para. 29].

R. v. Wisniewski (R.) (2002), 166 Man.R.(2d) 73; 278 W.A.C. 73; 2002 MBCA 93, refd to. [para. 29].

R. v. Leila (M.A.) (2008), 250 B.C.A.C. 117; 416 W.A.C. 117; 2008 BCCA 8, refd to. [para. 33].

R. v. Doradea (B.S.) (2010), 295 B.C.A.C. 175; 501 W.A.C. 175; 2010 BCCA 423, refd to. [para. 33].

R. v. Lacroix (D.) (2003), 172 O.A.C. 147 (C.A.), refd to. [para. 33].

R. v. Wozny (C.P.) (2011), 262 Man.R.(2d) 75; 507 W.A.C. 75; 2010 MBCA 115, refd to. [para. 75].

R. v. N.A.S. (2007), 220 Man.R.(2d) 43; 407 W.A.C. 43; 2007 MBCA 97, refd to. [para. 43].

R. v. Shrupka (M.L.) (2000), 153 Man.R.(2d) 61; 238 W.A.C. 61; 2000 MBCA 112 (C.A.), refd to. [para. 43].

R. v. B.R.C. (2010), 268 O.A.C. 114; 259 C.C.C.(3d) 27; 2010 ONCA 561, refd to. [para. 49].

Counsel:

B.F. Bonney and D.H. Davis, for the appellant;

E.A. Thomson, for the respondent.

This appeal was heard on May 16, 2011, before Hamilton, Freedman and MacInnes, JJ.A., of the Manitoba Court of Appeal.

On July 15, 2011, MacInnes, J.A., delivered the following judgment for the Court of Appeal.