New & Notable: What a difference a day makes

Being convicted and sentenced for a criminal offence has many consequences.  Some, like loss of liberty, are easily identifiable.  Others can be more properly characterized as collateral.  For Hoang Pham it was a collateral consequence that led to his appearance before our nation’s highest court: 2013 SCC 15


Mr. Pham, a non-citizen, was a drug dealer with a criminal record.  After being convicted of two drug offences, a joint submission was placed before the court for a two-year penitentiary sentence.  The sentencing judge agreed and the offender was sentenced to two years.  Unbeknownst to any of the parties, under the Immigration and Refugee Protection Act [IRPA], a non-citizen sentenced in Canada to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her.

Upon coming to this realization, Mr. Pham appealed his sentence, asking for a reduction of one day to allow him to appeal the deportation order.  The Alberta Court of Appeal upheld the sentence holding that a reduction in sentence would only seek to undermine the IRPA and that the offender “had abused the hospitality afforded to him by Canada”.  Mr. Pham appealed to the Supreme Court.

In granting Mr. Pham’s appeal, the Supreme Court cited section 718 of the Criminal Code and held that collateral consequences of sentencing are proper considerations as they pertain specifically to “they circumstances of the offender” under section 718.1.

Importantly, however, the Court qualified its remarks stating that each case is fact specific and that artificial sentences should not be imposed solely to avoid collateral consequences.  Doing so would allow the collateral consequences to dominate the sentencing exercise, essentially misusing the statutory sentencing scheme and circumventing Parliament’s will.

With respect to this particular case, as highlighted at paragraph 25 of the decision, the Supreme Court specifically noted that the Crown conceded that had it been aware of the collateral consequences it would have agreed to a sentence of two years less a day for this joint submission.  The Crown further conceded that the sentencing judge would have imposed a two year less a day sentence had the court been made aware of the collateral immigration consequences.  On the basis of these fact specific concessions, the Court granted the Appeal.