R. v. Barkza (H.), (2011) 513 A.R. 333

• Judge: Costigan, Martin and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 27, 2011
• Citations: (2011), 513 A.R. 333;2011 ABCA 273

R. v. Barkza (H.) (2011), 513 A.R. 333; 530 W.A.C. 333 (CA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. OC.002

Her Majesty the Queen (respondent) v. Hamidullah Barkza (appellant)

(1001-0226-A; 2011 ABCA 273)

Indexed As: R. v. Barkza (H.)

Alberta Court of Appeal

Costigan, Martin and Rowbotham, JJ.A.

September 27, 2011.

Summary:

The accused pled guilty to aggravated assault and was sentenced to 26.5 months' imprisonment. The accused was a permanent resident of Canada, but not a citizen. He had served his sentence, but was now subject to a deportation order. Under s. 64(1) of the Immigration and Refugee Protection Act, a person who was found to be inadmissible to Canada on grounds of serious criminality could not appeal a deportation order. Serious criminality was defined as a crime punished by a term of imprisonment of at least two years. The accused appealed from his sentence, seeking a reduction to two years less a day so that he could appeal from the deportation order.

The Alberta Court of Appeal allowed the appeal. Two years less a day was a fit sentence and was within one day of the range originally sought by the Crown.

Criminal Law - Topic 5834.8

Sentencing - Considerations on imposing sentence - Effect on citizenship or immigration application, status, etc. - The accused pled guilty to aggravated assault and was sentenced to 26.5 months' imprisonment - The accused was a permanent resident of Canada, but not a citizen - He had served his sentence, but was now subject to a deportation order - Under s. 64(1) of the Immigration and Refugee Protection Act, a person who was found to be inadmissible to Canada on grounds of serious criminality could not appeal a deportation order - Serious criminality was defined as a crime punished by a term of imprisonment of at least two years - The accused appealed from his sentence, seeking a reduction to two years less a day so that he could appeal from the deportation order - The Alberta Court of Appeal allowed the appeal - In R. v. Belenky (A.S.) (2010 Alta. C.A.), the court stated that the consequences of deportation could only be given limited weight in varying a sentence - The court could not otherwise remove a sentence from the appropriate range - The accused's sentence fell within the small amount of movement contemplated in Belenky - Two years less a day was a fit sentence and was within one day of the range originally sought by the Crown.

Criminal Law - Topic 5840

Sentencing - Considerations on imposing sentence - Prospective deportation of convict - [See Criminal Law - Topic 5834.8 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5834.8 ].

Cases Noticed:

R. v. Hamilton (M.A.) et al. (2004), 189 O.A.C. 90; 72 O.R.(3d) 1; 186 C.C.C.(3d) 129 (C.A.), refd to. [para. 5].

R. v. Duhra (H.S.) (2011), 505 A.R. 248; 522 W.A.C. 248; 2011 CarswellAlta 914; 2011 ABCA 165, refd to. [para. 6].

R. v. Morgan (D.N.) (2008), 446 A.R. 140; 442 W.A.C. 140; 2008 NWTCA 12, refd to. [para. 6].

R. v. Belenky (A.S.) (2010), 477 A.R. 354; 483 W.A.C. 354; 2010 ABCA 98, refd to. [para. 6].

Counsel:

B.R. Graff, for the respondent;

A.A. Sanders, for the appellant.

This appeal was heard on September 27, 2011, by Costigan, Martin and Rowbotham, JJ.A., of the Alberta Court of Appeal. On the same date, Rowbotham, J.A., delivered the following memorandum of judgment orally for the court.