R. v. Choi (J.W.), 2013 MBCA 75

• Judge: Chartier, C.J.M., MacInnes, Beard, Monnin and Cameron, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 08, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBCA 75;(2013), 294 Man.R.(2d) 261 (CA)

R. v. Choi (J.W.) (2013), 294 Man.R.(2d) 261 (CA);

      581 W.A.C. 261

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. SE.002

Her Majesty The Queen (appellant) v. Jung Won Choi (accused/respondent)

(AR 12-30-07785; 2013 MBCA 75)

Indexed As: R. v. Choi (J.W.)

Manitoba Court of Appeal

Chartier, C.J.M., MacInnes, Beard, Monnin and Cameron, JJ.A.

August 22, 2013.

Summary:

Choi pled guilty to one count under s. 124(1)(c) of the Immigration and Refugee Protection Act with respect to multiple incidents involving six refugees from Korea who worked in Choi's restaurant without documentation. The Crown had proceeded by way of indictment. No minimum penalty was prescribed. At issue was the appropriate sentence. The Crown suggested a fine of $20,000. Choi sought a conditional discharge on terms that would include that he donate $5,000 to a registered charity related to immigration issues.

The Manitoba Provincial Court, in a decision reported at (2012), 278 Man.R.(2d) 108, sentenced Choi to an 18 month conditional discharge, which included supervised probation upon certain conditions, one of which was that Choi make two charitable donations totalling $12,000. The Crown sought leave to appeal and, if granted, appealed the sentence.

The Manitoba Court of Appeal granted leave to appeal, set aside the conditional discharge including the probation order, and considered afresh the matter of sentence. The court imposed a conviction for the offence, and a fine in the sum of $15,000, to be paid within 60 days.

Aliens - Topic 5081

Offences - Hiring persons unauthorized to work - General - [See Criminal Law - Topic 4431 ].

Aliens - Topic 5201

Offences - Sentences - General - [See Criminal Law - Topic 4431 ].

Criminal Law - Topic 4431

Procedure - Verdicts - Discharges and dismissals - Conditional discharge in lieu of conviction - The accused pled guilty to one count under s. 124(1)(c) of the Immigration and Refugee Protection Act (IRPA) with respect to his illegal employment of six foreign nationals - The Crown had proceeded by way of indictment - The sentencing judge sentenced the accused to an 18 month conditional discharge, which included supervised probation upon certain conditions, one of which was that he make two charitable donations totalling $12,000, relying on s. 732.1(3)(h) of the Criminal Code (protecting society and facilitating reintegration) - The Crown appealed - The Manitoba Court of Appeal set aside the conditional discharge, including the probation order - The sentencing judge did not address the imperatives of s. 732.1(3)(h) - Further, the charitable donation condition was punitive in nature - The court, considering afresh the matter of sentence, imposed a conviction and a fine of $15,000 - The granting of a conditional discharge was an unfit sentence, as it did not amount to adequate denunciation - The sentencing judge erred in failing to place sufficient emphasis on the need for denunciation of the accused's conduct, and the need for general deterrence of a willful violation of the IRPA in illegally employing foreign workers - See paragraphs 50 to 66.

Criminal Law - Topic 5735.1

Punishments (sentence) - Probation or probation order - Charitable donations - The Manitoba Court of Appeal, sitting in a division of five judges, concluded that the imposition, in this case, of the charitable donation condition in the probation order which formed a part of the conditional discharge sentence was punitive in nature, and thus was not a sentencing option under the Criminal Code - Accordingly, it was unnecessary to reconsider R. v. Rivais, which was identical to this case, or to consider the issue whether certain charitable donations could be viewed as non-punitive - Nevertheless, the court commented in respect of both - "Until Rivais is reversed by this court, or by the Supreme Court of Canada, it is binding upon the lower courts of this province. ... If charitable donations are to be a sentencing option for judges, a legislative amendment should be considered and enacted to create an appropriate regime and thereby avoid the negative impact upon the administration of justice which may arise when judges make such orders on an ad hoc basis." - See paragraphs 67 to 77.

Cases Noticed:

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. 13].

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. 13].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 13].

R. v. Wisniewski (R.) (2002), 166 Man.R.(2d) 73; 278 W.A.C. 73; 2002 MBCA 93, refd to. [para. 41].

R. v. Kirton (S.E.L.) (2007), 214 Man.R.(2d) 59; 395 W.A.C. 59; 219 C.C.C.(3d) 485; 2007 MBCA 38, refd to. [para. 53].

R. v. Prokos (1998), 127 C.C.C.(3d) 190 (Que. C.A.), refd to. [para. 72].

R. v. M.A.F.A. Inc., [2000] O.J. No. 1773 (Sup. Ct.), refd to. [para. 72].

R. v. McKeigan, [2000] O.J. No. 1598 (C.J.), refd to. [para. 72].

R. v. DeKleric, [1969] 2 C.C.C. 367 (B.C.C.A.), refd to. [para. 72].

R. v. McMeekin, [1991] N.W.T.J. No. 11 (C.A.), refd to. [para. 72].

R. v. Russell, [1982] A.J. No. 421 (C.A.), refd to. [para. 72].

R. v. Schell (J.R.) (2002), 313 A.R. 125; 2002 ABQB 439 (Q.B.), refd to. [para. 72].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 730(1) [para. 56]; sect. 732.1(3)(h) [para. 51].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 124(1)(c) [para. 3]; sect. 125(a) [para. 4].

Counsel:

R.L. Rankin and V.P. Cornick, for the appellant;

K.S. Zaifman, for the respondent.

This sentencing appeal was heard on May 8, 2013, before Chartier, C.J.M., MacInnes, Beard, Monnin and Cameron, JJ.A., of the Manitoba Court of Appeal. In reasons written by MacInnes, J.A., the Court delivered the following judgment, dated August 22, 2013.