Wednesday, 24 June 2015

Should a convicted robber be deported to Syria? 

This article will give my readers some idea of what constitutes an application for bail and also a better understanding of an appeal process.

In Canada, there are three basic reasons why a judge or justice of the peace may choose to refuse to release on bail persons who are accused of crimes. The first reason is that that accused persons may not show up for trial. The second reason is that members of the public and witnesses may be harmed by such persons if released and the third reason is that to release some criminals on bail would reduce confidence in the administration of justice. These reasons are generally applied in other democratic nations

The first two reasons has never been an issue since it makes obvious sense however the third reason is questionable to some. It is this third reason that this article has been written for you.

Amjad Nassri was convicted of robbery and possession of a weapon for a dangerous purpose. The robbery involved a CIBC branch in Toronto on November 10, 2010. Three men, Mohamed Noori, Abdirahman Diriye and an unknown man, entered the branch just after 11:30 a.m. All three men were armed with knives and had their faces covered with bandanas.  Noori remained at the front door keeping watch, while Diriye and the third man vaulted over the cashiers’ counter and obtained money at knife-point.  At one point, Diriye or the unknown man was holding a large knife to the back of a teller’s neck.  The three men were in the bank for under a minute.

Nassri had driven the three men to the area in his father’s Corolla and parked the car across the road from the bank.  He then waited in the car. Following the robbery, the three men ran to the car and got in. Nassri drove away at a high rate of speed but almost immediately thereafter, he ran a stop sign and collided with an 18-wheel tractor-trailer. He stayed with the damaged car and offered to pay the driver to be let him leave. The other three men fled.                          

Two of the other participants in the robbery, Noori and Diriye, had been convicted and sentenced. Noori was 18 years old at the time of the offence and had no criminal record.  He pleaded guilty during the preliminary inquiry.  He was sentenced to 13.5 months incarceration. Diriye was 20 years old at the time of the offences and had a criminal record that included a penitentiary sentence. He also pleaded guilty during the preliminary inquiry. He was sentenced to two years less a day incarceration which means that he wouldn’t be sent to a penitentiary but rather to a provincial correctional institution.

During Nassri’s two-day judge-alone trial, the sole issue was whether Nassri knew that the individuals he was driving in his father’s car planned to commit a robbery. The trial judge disbelieved Nassri’s denial and convicted him as a party to both offences in which he had been charged. He then sentenced him to nine months in jail.

Now unbeknown to the trial judge, sending him to jail for “nine’ months was going to be a real problem for Nassri that could have a devastating effect on his life. 

Nassri was 21 years old at the time of the offence and 24 years old at the time of sentencing. He was born in Syria and he has been living in Canada as a permanent resident with his parents since the family immigrated in 2005.  He is not a Canadian citizen of Canada. He had no prior criminal record at sentencing beyond one minor incident of failure to comply with his bail recognizance for the current offence, to which he pleaded guilty and received a conditional discharge. At the time of sentencing, Nassri was living with his parents, taking business courses at a college, and operating a small business. He has strong family support and positive references. One of the appellant’s professors described him as an exemplary student.  Nassri was released on parole after serving his nine month sentence.

As a result of his conviction for robbery, Nassri became inadmissible on grounds of serious criminality as per the Immigration and Refugee Protection Act. (IPA) The definition of “serious criminality” includes having been convicted in Canada of an offence that is punishable by a maximum term of imprisonment of at least 10 years. This could apply even to a purse snatcher who never went to jail but was put on probation after being convicted of robbery.

Imagine if you will a young teenager grabs a purse off of a woman and drops it while running away. Since robbery is punishable by a maximum penalty of 10 years in prison and the young teenager is convicted of robbery and placed on probation, would it be just to take him from his family and deport him? Of course not. It would conflict with Canada’s concept of justice.   

One month before Nassri’s sentence was imposed, Bill C-43, the Faster Removal of Foreign Criminals Act, came into force and amended section 64(2) of the IRPA.  As a result of the amendment, the definition of “serious criminality” for the purpose of section 64(1) changed from “a crime that was punished in Canada by a term of imprisonment of at least two years to a crime that was punished in Canada by a term of imprisonment of at least six months or more.

Since Nassri was sentenced to nine months imprisonment, it made him him vulnerable to a removal order leading to deportation.  A permanent resident may appeal a removal order to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board.  The IAD can stay a removal order if it is satisfied that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.  However, no appeal to the IAD may be made by a permanent resident if he or she has been found to be inadmissible on grounds of serious criminality.

Nassri’s trial lawyer, unaware of the recent changes brought about by the legislation reviewed above, misinformed the trial judge that the right to appeal a removal order would only be lost if the sentence was two years or more. 

Accordingly, Nassri’s nine month sentence prevented him from appealing a removal order to the IAD for consideration of the humanitarian and compassionate grounds of his case.   

The trial judge imposed a sentence of nine months in custody and two years’ probation.  She noted the seriousness of the offence that involved the brandishing of knives in a busy place of business in broad daylight.  The mitigating factors were the appellant’s youth, lack of criminal record, conduct at trial, conduct while on bail, community support, family support, expression of remorse to his parents, and a generally positive pre-sentence report. He would be eligible for an automatic release after serving six months.

The judge was unaware of the devastating effect that that sentence would have on Nassri’s future because of the change in the Immigration law.

Nassri’s lawyer upon learning of the change in the Immigration law filed an appeal based on new evidence, the new evidence being that the new Immigration law could result in Nassri being deported. The Crown (prosecutor’s office) to its credit didn’t contest those grounds for the appeal.

It was argued that as a result of his robbery conviction, it was almost a certainty that the Nassri would be referred to an admissibility hearing, and that would lead to a non-discretionary removal order. On the other hand, if the sentence including pre-trial custody were less than six months, Nassri would have a strong case before the IAD to appeal his removal on humanitarian and compassionate grounds.                                                        

He did have a strong case because if he was deported to Syria where  he and his family had fled from, he could be killed. The grievous conditions in contemporary Syria are notorious since there is an ongoing war in that country.

Nassri moved to Canada as a teenager and has no close connections in Syria, except for a grandmother who is in her 90s. Further, fresh evidence strongly suggested that Nassri would be subject to mandatory military service upon returning to Syria, leading to his involvement in the civil war. There seems little doubt that deportation to Syria would be highly traumatic and would put Nassri in a situation of extreme risk of physical harm or death.

The sole issue on appeal was whether appeal court should reduce the custodial portion of the sentence to a period of less than six months because of the collateral immigration consequences of a sentence of six months or more. To avoid any doubt as to the calculation of the length of the sentence on account of pre-trial custody, Nassri’s lawyer asked the appeal judge to vary the sentence to six months less fifteen days which would then give Nassri the right to be heard by the Immigration Appeal Division of the Immigration and Refugee Board.       

Nassri’s lawyer didn’t argue that the sentence imposed by the trial judge was unfit. He did however submit that when the drastic and unforeseen collateral consequences of the sentence flowing from the change in IRPA were taken into account, the result was grossly out of proportion to the crime he committed. The lawyer contended that a sentence of just under six months was within the realm of reasonable sentences for this offence and this offender.      

The question facing the appellant court was whether or not a sentence otherwise falling within the range of fit sentences can be varied by an appellate court on the basis that the offender would face collateral consequences.     

It is however obvious that the flexibility of Canada’s sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will especially if the collateral consequences are not too severe.

A sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.      

What could a judge do if the crime is really serious? Consider the case of Yosef Gopaul who threw a stone at a woman with the intent to knock her out so he could steal her purse and the woman died. He was convicted of manslaughter and sentenced to twelve years in prison. Suppose this British Columbia man was not a citizen of Canada and he was born in Syria. And suppose after he served eight years when his release would be mandatory and by the time he was released, the ISIS terrorists had overtaken Syria. If he was deported to Syria, he might be killed by the terrorists as soon as he arrived in Syria.

It is self-evident that depriving a killer of the right to appeal deportation to one of the most dangerous places on Earth would be grossly disproportionate to this offence of manslaughter. Canada is going to have to deal with this question and find an appropriate answer.

The decision of the appeal court in Amjad Nassri’s appeal was that he was granted leave to appeal his sentence and his appeal was granted thereby reducing the custodial portion of the sentence to one of six months less fifteen days so that he won’t be deported to Syria. 

No comments: