Case Comment: R v Nassri

R v Nassri Clarifies the Weight of Losing Immigration Rights in Criminal Sentencing

Note: this legal writing sample is a case comment prepared and submitted for LAW149

The Ontario Court of Appeal’s decision in R v Nassri[1] provides us with updated insight about how Ontario courts might handle criminal cases when the accused is a permanent resident facing incarceration longer than 6 months. The appellant, a permanent resident of Canada, appealed a 9-month imprisonment conviction after he drove the getaway car for a bank robbery involving knives. The appeal judges, Sharpe, Cronk and Huscroft JJ.A, adjusted the sentence to six months less 15 days on the basis that the trial judge was not made aware the law was recently changed to cause any non-citizen to lose their right to appeal deportation if they were sentenced to incarceration for longer than six months. The main issue was whether the otherwise appropriate sentence could be shortened so the appellant would avoid losing his right to appeal deportation.

The precedent set by the Supreme Court in R v Pham [2] factored heavily in this case. In Pham, the Supreme Court granted an appeal to a non-citizen convicted of two drug-related offences, adjusting his sentence from two years to two years less a day to avoid losing the right to appeal deportation. The trial judge in Pham was unaware of the collateral consequences to immigration rights when setting the sentence. Pham established the principles that, 1) sentencing judges may consider collateral consequences when determining criminal sentences, and 2) appeal judges could adjust sentences if the original sentencing judge was unaware of collateral consequences. These Pham principles include the caveat that the ultimate sentence must still be appropriate based on the severity of the crime and responsibility of the offender.

The appeal judges in Nassri got the decision right from both moral and legal perspectives, first by choosing to apply the Pham principles and then by applying them correctly. Though there were changes to the law since Pham, altering section 36(1)(a) of The Immigration and Refugee Protection Act to “6 months” as opposed to “two years”[3], the basic facts of the appeals were essentially equivalent: the trial judges did not know the length of the sentence would cause the offenders to lose their right to appeal deportation. However, two critical distinguishing features in Nassri required the appeal judges to reason through the Pham principle closely: first, the Nassri appeal Crown counsel said the reduced sentence would be disproportionate to the offence[4], whereas the Crown in Pham did not raise this issue. Second, the sentence in Nassri would have to be reduced overall by 3 months and 15 days, while the precedent of Pham was reducing a sentence by one day in total.

To reason through the difference in the Crown’s perspective and the larger sentence reduction, the appeal judges relied on Justice Wagner’s emphasis in Pham on the legal principles of sentence individualism and parity. The sentencing principle of individualism compels judges to consider individual circumstances of offenders, while the parity principle ensures the sentence is like those imposed on similar offenders. The accused was a young, first-time offender, with a support system through his family helping him make strong rehabilitation progress. Conversely, the risk of being deported to Syria would likely interfere with his rehabilitation since he had no connections there and would face mandatory, traumatizing military service.

The appeal judges also addressed the parity principle by reasoning that the lengthier sentences imposed on the two other known associated offenders was understandable since they were the ones who used weapons and threatened victims. Together, these reasons produced the morally correct decision that Mr. Nassri’s offence and situation, weighed against the collateral consequence of almost certain deportation, physical harm, and possible death, justified the shorter sentence. From their explanations of how they applied Pham to Nassri, we now have the benefit of more clarity about how Ontario courts balance the appropriateness of a sentence with the severity of the consequences to an offender’s immigration rights. We can use this to inform how we work with clients, including preparing information about their rehabilitation and circumstances of their country of citizenship

[1] R v Nassri, 2015 ONCA 316 [2] R v Pham, 2013 SCC 15 [3] Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36(1)(a) [4] R v Nassri, 2015 ONCA 316, at para 29

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