New & Notable: Pham considered in the OCA

Sz-Yin Lu was in Canada on a student visa when her boyfriend hit and killed a pedestrian with his car while she was a passenger in it. The police interviewed Ms. Lu twice about the accident and each time Ms. Lu lied by denying any knowledge of the accident. Eventually, Ms. Lu and her boyfriend came clean with the police. She later pleaded guilty to obstruction of justice and her boyfriend was convicted of dangerous driving causing death and failure to remain at the scene of an accident.

At sentencing in the Ontario Court of Justice, Lu sought a conditional discharge. The Crown recommended a suspended sentence followed by a period of probation as well as community service. The Court imposed a suspended sentence followed by six months probation and 75 hours of community service.

Pursuant to the Immigration and Refugee Protection Act (IRPA), Ms. Lu, convicted of a criminal offence, in spite of her eventual marriage to a Canadian, was inadmissible to Canada on grounds of criminality, as she had been convicted of a criminal offence punishable by indictment.

Lu appealed to the summary conviction appeal (SCA) court but that appeal was denied following the SCA judge’s consideration of the Supreme Court of Canada decision in R. v. Pham, 2013 SCC 15. Lu subsequently appealed to the Ontario Court of Appeal: 2013 ONCA 324.

The panel of the Court of Appeal noted the excellent and detailed analysis by the SCA judge. The OCA noted that the SCA judge made note of the following mitigating factors:

  • Lu was young and of good character
  • She had no previous criminal record
  • She bore no responsibility for her boyfriend’s dangerous driving or the accident
  • She had pleaded guilty to the offence
  • She had voluntarily disclosed to the police that she had been at the scene of the fatality, and was genuinely remorseful

The OCA also recorded the SCA judge’s listing of the aggravating factors:

  • She lied to police about a fatality, which is a very serious offence
  • She maintained her lies to the police on two separate occasions and over a five-month period
  • She did not make the lies impulsively or spontaneously, in the confusion of the moment

The Court of Appeal noted that the SCA judge stated that Ms. Lu deliberately impeded the progress of proper law enforcement in the community and contributed to the anguish and grief suffered by the deceased’s family.

The issue on appeal to the OCA was whether the SCA judge had erred in upholding the trial level sentence of a suspended sentence over a conditional discharge. In light of the IRPA the effect of a suspended sentence meant that Lu was inadmissible to Canada while a conditional sentence clearly did not have this effect. The SCA judge applied Pham to this situation: see What a difference a day makes by Mihael Cole for a discussion of the implications of that decision.


The Court of Appeal upheld the decision of the SCA judge:

The SCAJ in this case followed Pham. She considered the mitigating and aggravating factors and then considered the collateral immigration consequences as part of Ms. Lu’s personal circumstances. She recognized that as a result of the criminal conviction and suspended sentence, Ms. Lu is inadmissible to Canada unless she obtains a record suspension or, possibly, an exemption from inadmissibility on humanitarian and compassionate grounds pursuant to ss. 24 and 25 of the IRPA. However, in light of the seriousness of the offence, the sentencing objectives of denunciation, deterrence and reparation, and the need for proportionality, a discharge was not a fit sentence. It was open to her to so conclude [para 47].

Ultimately, the panel of the Court of Appeal accepted that it was open to the SCA judge to conclude that a conditional discharge was not appropriate:

The SCAJ made a case-specific determination that a discharge would be contrary to the public interest. It was open to her to reach this conclusion and there is no basis for interfering with it. Lying to the police, particularly in the context of an investigation into a fatality, is a very serious offence. I am sympathetic to Ms. Lu’s personal circumstances and her desire to be in Canada with her husband as soon as possible. However, those circumstances were fully considered by the SCAJ, who concluded that, at a minimum, her sentence must be a suspended one.

In the end analysis, the Court of Appeal found that the articulation and application of the relevant legal principles by the SCA judge was impeccable. The Court concluded that she fully, fairly and thoughtfully considered all of the relevant factors and that she had the benefit of Pham and gave appropriate consideration to the collateral immigration consequences of a suspended sentence, rather than a discharge.