R. v. Beltran (L.R.), (2010) 488 A.R. 17 (PC)

• Judge: Skene, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: April 01, 2010
• Citations: (2010), 488 A.R. 17 (PC);2010 ABPC 113

R. v. Beltran (L.R.) (2010), 488 A.R. 17 (PC)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. AP.038

Her Majesty The Queen v. Leopoldo Rojo Beltran (081540205P10101; 2010 ABPC 113)

Indexed As: R. v. Beltran (L.R.)

Alberta Provincial Court

Skene, P.C.J.

April 1, 2010.

Summary:

The accused pleaded guilty to re-entering Canada without the prescribed authorization contrary to the Immigration and Refugee Protection Act. The accused had left Canada under a removal order, but surreptitiously returned without authorization. The Crown sought five months' imprisonment. The accused sought a conditional discharge.

The Alberta Provincial Court sentenced the accused to five months' imprisonment, less 18 days' credit for nine days in pre-trial custody, for a net sentence of four months and 13 days.

Aliens - Topic 5204

Offences - Sentences - Illegal entry - The 35 year old accused, a Mexican national, pleaded guilty to re-entering Canada without the prescribed authorization contrary to the Immigration and Refugee Protection Act - The accused had left Canada under a removal order, but illegally returned without authorization - The accused had been twice deported prior to his latest removal - The Crown sought five months' imprisonment - The accused sought a conditional discharge - The Alberta Provincial Court sentenced the accused to five months' imprisonment, less 18 days' credit for nine days in pre-trial custody, for a net sentence of four months and 13 days - There was a delay in apprehending and removing him, as he was under investigation for drug offences and currently faced charges respecting the proceeds of crime - The accused married a Canadian citizen six weeks after his second deportation - They had two children and lived in Canada - The accused's application for a discharge was not motivated to avoid jail time, but to speed up the application process and keep future impediments to his application to enter Canada to a minimum - A conditional discharge was not appropriate - The accused repeatedly entered Canada illegally - Any hardship on his Canadian family was inflicted by his own conduct - There were no exceptional circumstances to put the accused, by way of conditional discharge, "in a position he would have been in, but for his third illegal entry".

Criminal Law - Topic 4431

Procedure - Verdicts, discharges and dismissals - Conditional discharge in lieu of conviction - [See Aliens - Topic 5204 ].

Cases Noticed:

R. v. MacFarlane (1976), 55 A.R. 222 (C.A.), refd to. [para. 11].

R. v. Guifaro Zelaya (A.A.), [2009] A.R. Uned. 95; 2009 ABPC 7, refd to. [para. 11].

R. v. Frimpong, [2001] O.J. No. 6222 (Sup. Ct.), refd to. [para. 1].

R. v. Zuniga, 2008 BCPC 74, refd to. [para. 11].

R. v. Van Riessen, [1996] O.J. No. 4911 (H.C.), refd to. [para. 11].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 2(1), sect. 36(1), sect. 36(2), sect. 52(1), sect. 124(1), sect. 125 [para. 4].

Counsel:

S. Couper, for the Crown;

H. Van Harten, for the accused.

This matter was heard at Calgary, Alberta, before Skene, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on April 1, 2010.