R. v. Duhra (H.S.), 2011 ABCA 165

• Judge: Martin, Watson and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 25, 2011
• Citations: 2011 ABCA 165;(2011), 505 A.R. 248 (CA)

R. v. Duhra (H.S.) (2011), 505 A.R. 248 (CA);

      522 W.A.C. 248

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JN.024

Her Majesty the Queen (respondent) v. Harinder Singh Duhra (appellant/applicant)

(1101-0071-A; 2011 ABCA 165)

Indexed As: R. v. Duhra (H.S.)

Alberta Court of Appeal

Martin, Watson and Rowbotham, JJ.A.

May 25, 2011.

Summary:

The appellant immigrated to Canada in 1992. He was a permanent resident, but not a Canadian citizen. On a joint submission following his guilty plea to a count of robbery, he was sentenced to a term of imprisonment that (with double credit for pre-trial custody) was regarded by the sentencing judge as an effective sentence of imprisonment of two years plus 18 months' probation. After sentencing, the appellant was notified that he faced a hearing to determine if he was a person described in s. 36(1)(a) of the Immigration and Refugee Protection Act (IRPA). A person convicted of an offence of "serious criminality" under ss. 36 and 64 of IRPA became subject to deportation on grounds of inadmissibility. Under s. 64 of the IRPA, if the sentence imposed was "at least two years", the person was not given any right to appeal to the Immigration Appeal Division. The appellant appealed, seeking to have the sentence reduced by one day, which would provide him with the opportunity to appeal to the Immigration Appeal Division under the IRPA.

The Alberta Court of Appeal allowed the appeal and reduced the prison sentence to an effective term of two years less one day. All of the other elements of the sentence were affirmed.

Criminal Law - Topic 5834.8

Sentencing - Considerations on imposing sentence - Effect on citizenship or immigration application, status, etc. - The appellant immigrated to Canada in 1992 - He was a permanent resident, but not a Canadian citizen - On a joint submission following his guilty plea to a count of robbery, he was sentenced to a term of imprisonment that (with double credit for pre-trial custody) was regarded by the sentencing judge as an effective sentence of imprisonment of two years plus 18 months' probation - No one raised with the sentencing judge the implications of the Immigration and Refugee Protection Act (IRPA) - After sentencing, the appellant was notified that he faced a hearing to determine if he was a person described in s. 36(1)(a) of the IRPA - A person convicted of an offence of "serious criminality" under ss. 36 and 64 of IRPA became subject to deportation on grounds of inadmissibility - Under s. 64 of the IRPA, if the sentence imposed was "at least two years", the person was not given any right to appeal to the Immigration Appeal Division - The appellant appealed, seeking to have the sentence reduced by one day, which would provide him with the opportunity to appeal to the Immigration Appeal Division under the IRPA - The Alberta Court of Appeal allowed the appeal and reduced the prison sentence to an effective term of two years less one day - All of the other elements of the sentence were affirmed.

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. Belance, 2011 QCCA 137, refd to. [para. 1].

Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 539; 339 N.R. 1; 2005 SCC 51, refd to. [para. 3].

R. v. Belenky (A.S.) (2010), 477 A.R. 354; 483 W.A.C. 354; 253 C.C.C.(3d) 344; 2010 ABCA 98, refd to. [para. 9].

R. v. Morgan (D.N.) (2008), 446 A.R. 140; 442 W.A.C. 140; 239 C.C.C.(3d) 187; 2008 NWTCA 12, refd to. [para. 9].

Counsel:

I. Kuklicz, for the respondent;

A.A. Sanders, for the appellant.

This appeal was heard on May 25, 2011, before Martin, Watson and Rowbotham, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered orally by Watson, J.A., on May 25, 2011, and was filed on June 2, 2011.