Tuesday, October 25, 2016


This is an interesting discussion of the requirements necessary in a Study Permit application. Fedreal COurt held that the applicant must show the benefits of the course of study, that he would return to his country after the permit expires, and, in general terms, that his proposed course of action "makes sense" for him.

Garcia v. Canada (Minister of Citizenship and Immigration)

Elvis Christian De La Cruz Garcia, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2016] F.C.J. No. 819
[2016] A.C.F. no 819
2016 FC 784

Docket: IMM-5408-15

 Federal Court
Montréal, Quebec

Y. Roy J.

Heard: June 23, 2016.
Judgment: July 8, 2016.
(24 paras.)

1     Y. ROY J.:-- An application for judicial review was filed under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, chapter 27 (IRPA) regarding the decision made by a visa officer to refuse the application for a study permit that had been filed by the applicant. The reason given was that the applicant had failed to convince the decision-maker that he would leave the country at the end of his stay. Based on the following reasons, the decision is reasonable and the application for judicial review is dismissed.
2     The applicant is a citizen of Guatemala. He is married and is the father of a young child. It appears that on November 5, 2015, the applicant tried to obtain a study permit, such as can be obtained under section 216 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). This study permit was intended to allow the applicant to begin studies to learn English. The studies in question were allegedly to begin on November 9--four days later--and to continue for a period of 40 weeks, at 24 hours per week.
3     In his country of citizenship, this applicant held a position as a systems analyst for a relatively prestigious company from October 2009 to August 2015. As of August 5, 2015, he had just started a job with a high-profile multinational corporation, with a monthly salary of $1,650.00, which, we are told, is a significant salary in Guatemala. In addition, this individual had accumulated savings of over $40,000.00. Yet, according to the visa officer at the Embassy of Canada to Guatemala, it would cost several thousand dollars for the applicant to come and study English for 40 weeks in Canada--around $30,000. I would add that the applicant stated that his spouse also earns an income in Guatemala.
4     The decision-maker in this case concluded that he was not convinced the applicant would return to his country of origin after his immersion period in an English program ended. This decision-maker wondered about this applicant's departure from Guatemala, given that he had just started a new job with a prestigious multinational corporation. No explanation was given as to the reasons why the applicant wanted to learn English, despite the fact that he had admitted to not knowing even the basics of the language. The decision-maker also held that the studies would cost several thousand dollars, and that the applicant's salary would be missed by his family back in Guatemala. The decision-maker did not understand why he would want to come and learn English in Montréal. The lost wages and the costs of studying abroad were not justified. The decision-maker therefore concluded that he was not convinced the applicant would return to Guatemala.
5     The applicant did not indicate what he believed the appropriate standard of review to be. However, his main allegation was that the decision-maker had not allowed him to address his concerns, which, the applicant claimed, constituted a breach of the principles of natural justice. When an allegation is made that the principles of procedural fairness have been breached, the standard of review is the standard of correctness (Mission Institution v. Khela, 2014 SCC 24, [2014] 1 SCR 502). Thus, the judge providing judicial review is not required to show deference to the impugned decision.
6     When applying this standard of review, it is up to the applicant (upon whom the burden of proof rests) to prove that procedural fairness has been breached. In such matters, the degree of procedural fairness is limited. Yet, this was not done. Subsection 11(1) of the IRPA sets out the foreign national's duty to obtain a visa before entering Canada:

·         11 (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 
* * *

·         11 (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi. 
7     The Regulations allow for the provision of a temporary resident visa as long as certain conditions are met:

·         179 An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national 

·         (a) 
has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class; 

·         (b) 
will leave Canada by the end of the period authorized for their stay under Division 2; 

·         . . . 
* * *

·         179 L'agent délivre un visa de résident temporaire à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis : 

·         a) 
l'étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants; 

·         b) 
il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2; 

·         [...] 
As for study permits, they are governed by section 216 of the same Regulations, which reads as follows:

·         216 (1) Subject to subsections (2) and (3), an officer shall issue a study permit to a foreign national if, following an examination, it is established that the foreign national 

·         (a) 
applied for it in accordance with this Part; 

·         (b) 
will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9; 

·         . . . 
* * *

·         216 (1) Sous réserve des paragraphes (2) et (3), l'agent délivre un permis d'études à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis : 

·         a) 
l'étranger a demandé un permis d'études conformément à la présente partie; 

·         b) 
il quittera le Canada à la fin de la période de séjour qui lui est applicable au titre de la section 2 de la partie 9; 

·         [...] 
8     Thus the applicant has a fundamental duty to prove that he will return to his country. The decision-maker, in this case, held that the evidence was insufficient. It is the applicant's duty to present sufficient evidence when filing his or her visa or permit application so as to substantiate that he or she satisfies the requirements of the IRPA. The decision-maker was not required to specify in what way the application was insufficient, as the applicant seems to suggest. In my view, this is not a question of whether the evidence is credible or that a particular piece of evidence is believed not to be genuine, but rather it is a question of the evidence being sufficient, since the decision taken was only based on the insufficiency of the evidence.
9     In my opinion, it is worth establishing the state of law in these matters. Before this Court, the case law has consistently established that the applicant's duty to prove that he will return to his country implies that satisfactory evidence must be presented. As I stated in Bar v. Canada (Citizenship and Immigration), 2013 FC 317, there is no legal duty to speak with an applicant to suggest additional elements of evidence.
10     This is also the opinion expressed by Mr. Justice Fothergill in Hakimi v. Canada (Citizenship and Immigration), 2015 FC 657:

·         [19] The onus was on the Applicant to satisfy the Officer that he was not an immigrant and that he met the statutory requirements of the IRPA and the Regulations (Obeng v Canada (Minister of Citizenship and Immigration), 2008 FC 754 at para 20 [Obeng]). As this Court observed in Hong: 

·         [31] Applications for student visa are to be analyzed on a case-by-case basis and the role of the Visa Officer does not amount to supplementing the applicant's evidence, as counsel for Ms. Hong seems to suggest. It is trite law that the onus is on the applicant to provide the Visa Officer with all the relevant information and complete documentation in order to satisfy the Visa Officer that the application meets the statutory requirements of the Act and the Regulations (Tran v. Canada (Minister of Citizenship & Immigration), 2006 FC 1377. More particularly, in this case, it was the applicant's responsibility to provide the Visa Officer with all of the evidence in order to satisfy the Visa Officer of her financial capacity. 
The same opinion was held by Mr. Justice LeBlanc in Katebi v Canada (Citizenship and Immigration), 2014 FC 813.
11     In fact, these decisions are variations on a theme, which was explained directly and concisely in Hassani v. Canada (Minister of Citizenship and Immigration), [2007] 3 FCR 501, 2016 FC 1283:

·         [24] Having reviewed the factual context of the cases cited above, it is clear that where a concern arises directly from the requirements of the legislation or related regulations, a visa officer will not be under a duty to provide an opportunity for the applicant to address his or her concerns. Where however the issue is not one that arises in this context, such a duty may arise. This is often the case where the credibility, accuracy or genuine nature of information submitted by the applicant in support of their application is the basis of the visa officer's concern, as was the case in Rukmangathan, and in John and Cornea, cited by the Court in Rukmangathan, above. 
12     In my view, the visa officer did not contest the information's authenticity or accuracy. No one is contesting the fact that the language training exists or that the applicant has the financial resources to take the training for a period of nine (9) months. The Court was not convinced that the negative response was based on anything other than the fact that the evidence provided did not satisfy the fundamental duty to prove that the applicant would leave the country at the end of his authorized stay. Procedural fairness does not stretch to the point of requiring a visa officer"to provide an applicant with a 'running score' of the weaknesses in their application" (Rukmangathan v. Canada (Minister of Citizenship and Immigration), 2004 FC 284, at paragraph 23).
13     In this case, the applicant wanted to argue that the decision-maker had based his decision exclusively, or almost exclusively, on that which he called generalizations. He took particular issue with the phrase "[m]ost serious students have started taking English before going to Canada to improve on the basis they've acquired." As I understand the argument, the applicant claims that this comment should be barred and constitutes a breach of procedural fairness, and therefore deference to this decision is not appropriate.
14     That being said, with all due respect, the applicant's error is in failing to consider the circumstances of his application and the context in which the phrase was written. The visa officer has a certain expertise that one acquires through processing visa applications. Common sense, combined with experience, cannot be discounted. If this remark had been the sole basis for denying a visa application, the Court would have had a certain sympathy for the applicant. However, this statement made by the decision-maker is just one of a series of points:

·         * 
The visa application was allegedly submitted on November 5 for courses that were to begin on November 9; 

·         * 
The applicant had just started a lucrative job with a multinational; 

·         * 
There was no indication that the applicant's employer had requested language training or that a leave had been granted. The decision-maker therefore deduced that the applicant, after barely three months of employment, would have to quit his job; 

·         * 
Not only would there be the lost wages, but the visa officer determined that the total costs would be approximately $30,000; 

·         * 
The applicant gave no indication of the benefit that he hoped would come from taking such training; 

·         * 
The applicant's spouse and his child would not accompany the applicant, which would add to the sacrifice and the costs. 
After making the list of insufficiencies, the visa officer stated that he was "not satisfied that he is [sic] a genuine purpose to visit Canada." Since the file is insufficient--whereas a complete file would have addressed the issues raised in a way that makes sense--the visa officer concluded that he was not convinced that the applicant would leave Canada at the end of his stay.
15     As I pointed out at the hearing, the absence of a breach of procedural fairness does not make a decision reasonable within the meaning of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190.
16     If the applicant had also contested the reasonableness of the decision taken by the visa officer, the Court would have determined that the decision taken was reasonable, within the meaning of paragraph 47 of the Supreme Court's decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. The deference owed to the decision-maker is sufficient to dispense with the issue. The applicant did not prove that the decision was unreasonable.
17     It must be recalled that the applicant bears the burden of proving that the decision rendered does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Without being a model of articulation, the decision is transparent and the facts and inferences show cause for it.
18     The applicant has a different perspective on the reasons. For example, the fact that the applicant and his family have the financial means to cover the costs of the course and the stay is presented as a justification for his coming to Canada to study--because he can afford it. The applicant is reading into the visa officer's decision the suggestion that he would not be able to reintegrate into Guatemalan society. Lastly, the applicant seeks to circumvent the decision by reaffirming that his wife has her own source of income.
19     This raises two points. Firstly, Dunsmuir acknowledges that a reasonable decision is not that which is correct or that which the reviewing judge would have preferred. It is sufficient for the decision to be among the possible acceptable outcomes.
20     It is incongruous that an applicant should, without explanation, wish to get out of his country, leaving his wife and child behind, to come and learn English in Montreal. The applicant is leaving not only his family behind him, but also a high-paying job, and is committing to considerable expenditures without any indication whatsoever as to what benefit he might gain from all of this. This insufficiency of evidence also demonstrates the reasonableness of the decision of the individual who must decide if a person will return to his country of origin after his stay in Canada. The burden of proof upon the applicant is to show that the decision is not an acceptable possible outcome.
21     This brings us to my second point. That which the applicant puts forth is nothing but a different interpretation. It does not render the decision unreasonable. Furthermore, the respondent in no way suggested that the applicant would not be able to reintegrate into Guatemalan society. What the applicant was trying to do was to invoke the case law of Bonilla v. Canada (Minister of Citizenship and Immigration), 2016 FC 20 [Bonilla]. The applicant is responding to a false question. The question regarding the family's financial circumstances is similar. The decision-maker's point was to note the high costs, the lost income and the absence, given that he had only held his job for a short time. The fact that the applicant's spouse has her own source of income has no bearing on the fact that deciding to come and take language training is a costly choice when the applicant gave no evidence as to his motivation. This is the source of the insufficiency in the decision-maker's opinion. The ability to pay is not an issue.
22     The applicant bases his argument mainly on the decision in Bonilla. Yet, this case is not useful as it is based on very different reasons. That which was criticized in Bonilla was that the visa officer was essentially basing his decision on a rather crude generalization suggesting that after four years of secondary studies, it was unlikely that an applicant would return to his country of origin, given the long separation from his family and culture.
23     In our case, the true issue arises not from a generalization but rather from the fact that concerns about the evidence provided were not conveyed to the applicant. In my opinion, it was the sufficiency of the evidence that was lacking. The comments made by Mr. Justice de Montigny when he was a judge in this Court have not been disavowed and remain valid.

·         [16] It seems to me the visa officer went beyond what was expected. The officer was under no obligation to alert Mr. Liu of these concerns since they were about matters that arose directly from Mr. Liu's own evidence and from the requirements of the Act and of the Regulations. An applicant's failure to provide adequate, sufficient or credible proof with respect to his visa application does not trigger a duty to inform the applicant in order for him to submit further proof to address the finding of the officer with respect to the inadequacy, deficiency or lack of credibility. . . 

·         Liu v. Canada (Minister of Citizenship and Immigration), 2006 FC 1025 (cited case law omitted) 
24     Consequently, the application for judicial review is dismissed. There are no questions to certify.
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. There are no questions to certify.


Friday, September 30, 2016


I was quoted in today's National Post story commenting on Ontario COurt of Appeal decision.


September 29, 2016

Illegal immigrants not entitled to injury compensation from public funds: Ontario court

By Adrian Humphreys 

Ontario's court of appeal has rejected a hard-fought claim from a Brazilian man - in Canada illegally - who was hurt in a hit-and-run walking...

TORONTO - Illegal immigrants are not entitled to compensation from public funds for a motor vehicle accident, says Ontario's court of appeal, which has rejected a hard-fought claim from a Brazilian man hurt in a hit-and-run when walking across a Toronto street.
Jarley Silva was run down in 2011 while he was walking across Bloor Street West. The driver was never identified.
Silva had arrived in Canada in 1992 using a fraudulent passport and lived partially off the grid - he obtained an Ontario driver's licence but did not own a car or have insurance; he worked as a cleaner and then in construction, even registering his own drywall company, but did not report his income or pay tax.
He even joined a trade union, the International Union of Painters and Allied Trades, court heard.
Silva lived in rental apartments and paid for his living expenses in cash. He didn't have any credit cards and never applied for a Social Insurance Number or OHIP, the province's health plan.
He had been deported in 1995, but soon returned in Canada, illegally crossing the border from the United States at Niagara Falls and returning to his quiet life in Toronto.
In 2002 he applied for, and was issued, a driver's licence, although he apparently never owned a car and never drove. From then until his accident, he never left Ontario.
(The judge) recognized that de facto physical presence in Ontario, even if continuous, does not automatically establish ordinary residency
When Silva was hit on Bloor, he suffered a shattered left ankle and fractured right knee. The ankle was surgically repaired with screws and a plate and he spent time in a wheelchair and then on crutches after the surgery.
After the crash he filed two claims: one for refugee protection, which was denied him in April 2013, and one for compensation for his injuries. Because the identity of the driver was unknown, there was no insurance policy that could respond to damages, putting his claim before the Motor Vehicle Accident Claims Fund.
The traffic accident, however, exposed his life of more than 10 years in the shadows.
Silva was deported to Brazil in 2013, but he continued to press his claim in court.
The government sought to have Silva's claims rejected by the court because the act that created the fund states it is open only to people who "ordinarily reside in Ontario."
Thus began the debate over whether someone who lived in Ontario continuously for almost a decade - but did so without having legitimate immigration status - could be considered a true resident.
In January, Justice James F. Diamond of the Ontario Superior Court sided with the government, declaring Silva's "physical presence" in Ontario was the result of "deception." Diamond did not believe the law was meant to give someone "the opportunity to reap the benefits of ordinary residency in Ontario via a clandestine life through the passage of time."
Silva appealed the decision to the Ontario Court of Appeal, which last week upheld the decision, and ordered Silva to pay $5,000 in costs to the government.
"(The judge) recognized that de facto physical presence in Ontario, even if continuous, does not automatically establish ordinary residency in Ontario for the purpose of access to the Fund. The appellant was present in Ontario illegally, was subject to deportation on discovery and had already been deported once," Justice Eleanore Cronk wrote on behalf of the appeals panel.
The case highlights limits placed on immigrants without legal status in Canada, said Toronto immigration lawyer Sergio Karas.
"This case should sound a cautionary note for those individuals who have obtained driver's licences and drive motor vehicles without immigration status," Karas said.
• Email: ahumphreys@postmedia.com1 | Twitter: AD_Humphreys2

Tuesday, September 27, 2016


The Alberta COurt of APpeal unanimously rejected the argument that the sentence of a convicted driver who killed the driver of another car.  The appellant  was in Canada illegally after his  Study Permit had long expired, and he argued that his sentence should be reduced based in part on the potential immigration consequences that he would face. The court correctly held that, since the driver was already illegally in Canada after his Study Permit expired,  the matter had little relevance.

R. v. Mbachu

Her Majesty the Queen, Respondent, and
Eze Mbachu, Appellant
[2016] A.J. No. 945
2016 ABCA 270

Docket: 1501-0147-A

Registry: Calgary

 Alberta Court of Appeal

R.L. Berger, P.W.L. Martin and B.K. O'Ferrall JJ.A.

Heard: June 21, 2016.
Judgment: September 19, 2016.
(35 paras.)
Appeal From:
On appeal from the Sentence by the Honourable Madam Justice M.C. Erb Dated the 27th day of May, 2015 (Docket: 130124621Q1).

Memorandum of Judgment

·         The following judgment was delivered by 

·         THE COURT:-- 
I. Introduction
1     The appellant appeals his sentence of two-years less-a-day for dangerous driving causing death. Under section 249(4) of the Criminal Code, everyone who operates a motor vehicle in a manner which is dangerous to the public and thereby causes death is guilty of an indictable offence and liable to a term of imprisonment not exceeding 14 years.
2     The appellant asks that the two-years less-a-day sentence imposed by the sentencing judge be replaced with a sentence of six months incarceration followed by a period of probation.
3     The appellant argues that the sentence imposed was unduly harsh having regard to cases that have imposed lower sentences in what the appellant argues were similar circumstances and similar offences. He argues that a sentence of less than six months would accomplish the sentencing objectives of denunciation and deterrence. The appellant further submits that, in arriving at the sentence she did, the sentencing judge overemphasized his previous driving record (four prior convictions in contravention of the restriction in his learner's permit requiring him to drive only if accompanied by a fully-licenced driver). Finally, the appellant argues that the sentencing judge failed to give sufficient consideration to the immigration consequences of the sentence imposed.
II. Background
4     At 6:30 a.m. on a January morning in 2013 the appellant ran a stop sign on Big Hill Springs Road (secondary highway 567) and killed the driver of a vehicle driving south along Simons Valley Road (secondary highway 772).
5     The appellant pled not guilty to the charge. He did agree to a statement of facts which were put before the trial judge by counsel for the defence and the Crown. In that agreed statement of facts, the appellant admitted, inter alia, that:

·         (a) 
he was driving alone on the day in question in contravention of his Class 7 Operator's Licence (commonly referred to as a learner's permit or learner's licence) and that he was aware that he was required to have a fully-licenced driver supervising him when he was driving; 

·         (b) 
his vehicle passed nine warning signs that he was approaching a major intersection and was required to stop and that those warning signs were as follows: 

·         (i) 
a stop sign at the intersection; 

·         (ii) 
a flashing red light on top of the stop sign clearly visible from approximately half a kilometer from the intersection; 

·         (iii) 
a roadsign a half a kilometer from the intersection stating "Important Intersection Ahead"; 

·         (iv) 
the words "Stop" and "Ahead" painted on the road surface roughly 400 meters from the intersection; and 

·         (v) 
five sets of rumble strips warning of the intersection and the need to stop; the rumble strips were located 301, 253, 197, 147 and 100 meters, respectively, from the intersection stop line; 

·         (c) 
there were no obstructions restricting visibility; 

·         (d) 
the appellant did not brake or veer prior to the collision; and 

·         (e) 
the appellant's vehicle, including its brakes, were operating properly. 
6     Prior to the accident which resulted in the victim's death, the appellant, a 25-year-old Nigerian citizen who was in Canada on a student visa and who had only a learner's permit to drive, had been given four traffic tickets for driving without being accompanied by fully-licenced driver, as required by a learner's permit. His learner's permit was issued in March of 2011, shortly after he arrived in Canada at 23 years of age. His first ticket was issued in July of 2011 (he was convicted in September of 2011). The three other tickets were issued in January, February and March of 2012 (for which he was convicted in February, March and November, 2012, respectively). On the day of the fatality which gave rise to this charge (January 9, 2013) he was also driving without the required supervision.
III. The Sentencing Decision
7     Before delivering the sentence, the sentencing judge set out the circumstances of the offence. In particular, she noted the appellant was aware that he was not to drive without having a fully-licenced driver in the vehicle with him and also emphasized the fact that there were numerous indicators of the need to stop at the intersection which the appellant failed to heed. The sentencing judge then reviewed the circumstances of the offender, including his difficult early experiences in Nigeria, his coming to Canada and the fact that he was sincerely remorseful about the death of the driver of the other vehicle (though she noted that, according to the writer of the Pre-sentence Report, the appellant diminished his role in the tragic events). The sentencing judge also took into consideration the terrible loss suffered by the victim's family as illustrated by the victim impact statements.
8     After reviewing the principles and objectives of sentencing set out in the Criminal Code, the sentencing judge considered the aggravating and mitigating circumstances. She found the appellant's multiple prior convictions for not complying with the restrictions of his learner's licence to be aggravating. As to mitigating factors, she noted that the appellant had complied with the conditions of his judicial interim release, had expressed remorse and had proceeded to trial on the basis of an Agreed Statement of Facts with the result being that no additional witnesses needed to be called at trial. The sentencing judge also considered the immigration consequences of the appellant's conviction.
9     Before imposing sentence, the sentencing judge noted that, given the diversity of circumstances in dangerous driving cases, there was no sentence starting point for this offence. Having considered the circumstances of the offence and the offender, the sentencing judge found the gravity of the offence to be profound and the degree of the appellant's moral and legal blameworthiness to be high and as a result imposed a term of imprisonment of two-years less-a-day.
IV. Issues on Appeal
10     The appellant submits that the sentence imposed was unduly harsh. Therefore we must determine whether or not in the circumstances of this case a two-year sentence for dangerous driving is a fit sentence. In addressing this issue, we must consider the appellant's arguments that a less-restrictive sanction would be appropriate in the circumstances and would meet sentencing objectives and his argument that the trial judge erred in overemphasizing the appellant's previous convictions for driving without the required supervision. We must also consider, based on the case law, whether the sentence imposed in this case is within the range of sentences for cases involving similar circumstance and similar offences. Finally, we must address the appellant's argument that the trial judge did not give sufficient consideration to the immigration consequences of the sentence imposed.
V. Standard of Review
11     The standard of appellate review in sentence appeals is deferential. To ground intervention, the sentence must be "not fit", "clearly unreasonable" or a "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes" (see for example R v M(CA), [1996] 1 SCR 500, 105 CCC (3d) 327). This court may vary a sentence where there has been an error in principle, a failure to consider a relevant factor or an overemphasis of an appropriate factor, but only if the sentence is demonstrably unfit. An appellate court cannot intervene "simply because it would have weighed the relevant factors differently" (R v Lacasse, 2015 SCC 64 at para 49, [2015] 3 SCR 1089). An overemphasis of a relevant factor or failing to give sufficient weight to a relevant factor may amount to an error in principle requiring appellate intervention, but only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercised his or her discretion unreasonably: R v McKnight (1999), 44 OR (3d) 263, [1999] OJ No 1321 (QL) at para 35 (CA).
VI. Analysis

·         A. Would a sentence of six months or less satisfy the purposes of sentencing?
12     The appellant submits that the fundamental purpose of sentencing set out in section 718 of the Criminal Code could be met by a less-restrictive sanction. More specifically, the appellant argues that a custodial sentence of six months or less, with or without probation, would achieve that purpose.
13     For reasons which we will set out below, we are not of the view that the trial judge erred in imposing the sentence she did. That is, we do not agree that the sentencing judge erred in finding that the purpose and objectives of sentencing would not be satisfied by a term of imprisonment of six months or less, as the appellant had proposed.

·         B. Did the sentencing judge place undue emphasis on the appellant's driving record?
14     The appellant submits that the sentencing judge overemphasized his previous convictions for violating the terms of his learner's licence. He argues that the non-compliant behaviour, namely driving without the required supervision, had no bearing on his willingness to ignore danger and accept risk nor on the dangerousness of his driving at the time the offence took place. We cannot agree.
15     The requirement that those with a learner's licence not operate a vehicle without the supervision of a fully-licenced driver exists for a reason. The person with the learner's licence not only benefits from the presence of an experienced driver, but also from having a second set of senses in the vehicle. It is reasonable to think that, had an experienced driver been with the appellant on the morning of January 9, 2013, the tragedy that took place could have been avoided.
16     The appellant was very much aware that one of the conditions of his learner's permit required that he not operate a vehicle without a fully-licenced driver being present. Indeed, he had been convicted of failing to adhere to this condition on four separate occasions prior to January 9, 2013 when he, yet again, operated a vehicle without the required supervision. The conditions on learners' permits exist for the safety of both the licence holder and the general public. Although the appellant did not set out that fateful day intending to hurt anyone, let alone kill someone, in making the deliberate decision to drive without the required supervision, he disregarded a condition of his licence designed to ensure not only his own safety, but that of others as well.
17     Conditions on learners' permits are not negotiable or optional. It is not open to the holder of a learner's permit to decide that one or more requirements do not apply to him or her. If it were so, public safety would be compromised. Therefore, we do not agree with the appellant that the sentencing judge placed undue emphasis on the appellant's driving record or the fact that, on the day in question, the appellant again chose to drive without the supervision required under his learner's licence.

·         C. Is the sentence in this case within the range of sentences in dangerous driving cases with similar offenders and similar circumstances?
18     The appellant argues that the sentence of two years less a day is unduly harsh considering that there was no alcohol involved, no evidence he was driving recklessly prior to the accident, an expression of remorse by the appellant, and considering his personal circumstances and the immigration consequences of his conviction. The appellant argues that the facts of this case are more like to cases where a short-custodial sentence (e.g., 90 days) coupled with community service and probation or a suspended sentence have been imposed than to cases where substantial custodial sentences have been imposed.
19     Sentencing is an individualized process (see for example M(CA)) at para 92). Nowhere is this more apparent than sentencing those convicted of the offence of dangerous driving causing injury or death where courts throughout Canada have recognized the difficulty in comparing cases as the nature of the offender and the circumstances surrounding the offence vary greatly (R v Grenke, 2012 ABQB 198 at para 21, 537 AR 287, R v Dunford, 2015 SKQB 386 at para 42 (CanLII)). For this reason, in the case of dangerous driving offences, various courts have noted the futility of establishing sentencing starting points (e.g., R v Chikie, 2011 ABQB 420 at para 32, 527 AR 44) and also noted that the range of appropriate sentences is very broad (R v Hansell, 2015 MBQB 109, 318 Man R (2d) 169).
20     That being said, sentencing ranges are useful to the extent that they assist the court in applying the relevant sentencing principles and objectives (Lacasse at para 57). Alive to the wide range of circumstances in dangerous driving cases, we note that sentencing ranges are not "straightjackets" (to paraphrase Wagner, J. in Lacasse at para 69).
21     In considering the appropriate range of sentence in the present instance we are mindful that courts throughout Canada have stressed the importance of deterrence and denunciation in the sentencing of those convicted of dangerous driving causing death or injury (Grenke at paras 23-31, Dunford at 29). In the recent British Columbia Court of Appeal decision in R v Bosco, 2016 BCCA 55, Madam Justice Dickson discussed issues in sentencing in the case of dangerous driving offences:

·         General deterrence and denunciation are the primary sentencing goals in dangerous driving cases. Members of the public share its highways and are entitled to do so in the expectation of reasonable safety based, in part, on responsible use of motor vehicles by all concerned. As Madam Justice Epstein emphasized in Rawn, [2012] O.J. No. 3096 at paras. 49-50, driving is a privilege that can wreak great havoc when it is exercised recklessly. Accordingly, sentences for dangerous driving must unambiguously express society's condemnation of the conduct and serve to warn like-minded others that it will not be tolerated. 

·         Driving offences are unusual in that otherwise law-abiding citizens like Mr. Bosco may be inclined to commit them without fully appreciating their criminality. Driving is a commonplace activity, and, to varying extents, human frailties like impatience, inattentiveness and impulsivity are ubiquitous. When drivers irresponsibly indulge such frailties from behind the wheel they imperil others in their orbit, sometimes with catastrophic consequences. All drivers are expected to know this and govern themselves accordingly. When they do not and harm ensues, the result is no mere accident. It is a true crime: R. v. Giles, 2012 BCSC 775 at para. 25; Johnson at [1996] B.C.J. No. 2508, para. 30. (paras 38-39) 
22     Although the court in Bosco was considering sentencing in the context of dangerous driving causing bodily harm, the court's reasoning also applies to cases of dangerous driving causing death. Similar reasoning is likely behind trends noted by Justice Germain in Grenke in his list of "commonsense propositions" regarding the sentencing of dangerous driving offenders, some of which are as follows:

·         2. 
lower or lighter sentences are handed out for dangerous driving causing death or bodily harm where there is an [sic] no involvement of alcohol or drugs, and the driving pattern is at the lower end of riskiness; 

·         ... 

·         4. 
where an offender has a previous record that involves drinking and driving or other dangerous tendencies relating to the rules of the road, sentences tend to be harsher. (para 34) 
23     Having read the transcript of the submissions before the sentencing judge as well as her sentencing decision, having considered the written and oral arguments by appellant's counsel and the Crown, having reviewed the case law put before us and bearing in mind the standard of review applicable to sentence decisions, we are not convinced appellate intervention is warranted in this case as we are not satisfied the sentence imposed is unfit.
24     It is apparent that the sentencing judge placed significant weight on the appellant's decision to drive without the required supervision both at the time of the incident and on a number of occasions prior to that. For reasons already discussed, we do not think it was unreasonable of her to do so.
25     As to the moral blameworthiness of the appellant, the judge's sentencing decision quite properly considered the appellant's driving without the requisite supervision to be risky behaviour. We do not consider this to be an unreasonable characterization. As the trial judge noted, "[t]he inattentiveness here was not only substantial, it was prolonged over half a kilometer distance in the face of repeated warnings". It is hard to imagine two occupants of a vehicle both failing to notice the numerous warnings, including rumble strips, of the need to stop at an upcoming intersection. The appellant's culpability was exacerbated by the fact that, despite multiple "reminders" that he was required to drive with supervision, the appellant repeatedly chose to engage in the prohibited behaviour.
26     The cardinal principle of sentencing is proportionality: the sentence imposed should reflect the gravity of the offence and the moral blameworthiness of the offender. In the present case, the gravity of the offence was high. The consequence of the impugned conduct was the most terrible imaginable--the loss of a life. Society's recognition of this gravity was reflected in changes to the Criminal Code in 2007 which made those convicted of dangerous driving causing death ineligible for conditional sentences. Given the significant gravity of the offence and the sentencing judge's conclusion that the appellant's conduct attracted an "exceedingly high degree of moral and legal blameworthiness" and our consideration of the cases provided to us by counsel, we do not believe a term of imprisonment of two years less a day is outside of the acceptable range of sentences or otherwise an unfit sentence considering the circumstances.

·         D. Immigration Consequences
27     The appellant submits that the trial judge erred in not giving sufficient consideration to the effect of the sentence imposed on his immigration status about which we note the evidence was less than satisfactory. It appears that, regardless of his criminal conviction and sentence, Mr. Mbachu faced the possibility of being the subject of a removal order. His student visa has expired. He has no work permit. He is not a permanent resident. And there was no evidence that the appellant holds a temporary resident permit or has temporary resident status. Consequently, on the record before us, he appears to have been a foreign national with no authorization to be in Canada.
28     Regardless of his seemingly precarious immigration status prior to trial, as a result of his criminal conviction Mr. Mbachu became "inadmissible" under the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), which means a removal order can be made against him without an admissibility hearing. Subsections 36(1)(a) and 36(2)(a) of IRPA read:


(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

·         (a) 
having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years [the maximum term for dangerous driving causing death is 14 years], or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed. 

·         (2) 
A foreign national is inadmissible on grounds of criminality for 

·         (a) 
having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence [emphasis added] 
29     Under both of these grounds, a foreign national may be subject to a removal order without an admissibility hearing (s. 44(2) IRPA and s. 228(1)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227). However, where a foreign national is deemed to be inadmissible on grounds of "serious criminality", more specifically where a foreign national has been sentenced to a term of imprisonment of at least six months, there is also no right to appeal the removal order to the Immigration Appeal Division (s. 64 IRPA).
30     In considering the immigration consequences of any sentence imposed upon the appellant, it is important to understand that the appellant faces the possibility of deportation as a consequence of having been convicted of an indictable offence (s. 36(2)(a)), regardless of the term of imprisonment. The only immigration consequence of the sentence imposed is that because the appellant was sentenced to a term of imprisonment longer than six months, he will not have the ability to appeal any deportation order which may be made.
31     At trial, defence counsel summarized the appellant's situation as follows:

·         Okay, Well, in the present case, presently, his visa has expired in any event. He is a foreign national with no visa. He's not a permanent resident. So currently -- his current status, as soon as this Court make a ruling, there will be a Section 44 deportation order given and he's going to be deported. If that's going to go fast-track, if it's six months or more, he can't even appeal it. And his chances on appeal, from my understanding, are very remote but there is -- that option is kept open for a hearing. 
32     On appeal, the appellant does not argue that the trial judge was unaware or otherwise ignored the fact that Mr. Mbachu faces significant immigration consequences. Rather, the appellant argues that the trial judge failed to give sufficient consideration to the effect of sentencing on the appellant in terms of his immigration status. While acknowledging that immigration consequences should not dominate the sentencing process, the appellant argues, citing the Supreme Court of Canada decision in R v Pham, 2013 SCC 15, [2013] 1 SCR 739, that these consequences should be given appropriate consideration.
33     In Pham, the Supreme Court considered the issue of the immigration consequences arising from sentencing and concluded that where the trial judge is aware of the immigration consequences and applies the proper sentencing principles but still arrives a sentence that results in the accused losing the right to appeal a removal order, then, absent fresh evidence, that decision is owed deference (para 23). As Justice Wagner, for the court, went on to explain at paragraph 24:

·         An appellate court has the authority to intervene if the sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel had failed to advise the judge on this issue. In such circumstances, the court's intervention is justified because the sentencing judge decided on the fitness of the sentence without considering a relevant factor: M. (C.A.), at para. 90. As I explained above, however, the aim of such an intervention is to determine the appropriate sentence in light of the facts of the particular case while taking all the relevant factors into account. Although there will be cases in which it is appropriate to reduce the sentence to ensure that it does not have adverse consequences for the offender's immigration status, there will be other cases in which it is not appropriate to do so. 
34     In the present case, the trial judge was aware of the immigration consequences for the appellant of imposing a term of imprisonment of greater than six months. But given what we have said above about the fitness of the two-year-less-a-day sentence imposed, to drastically reduce that fit sentence to less than six months in order to ameliorate the immigration consequences of the sentence would have been inappropriate.
VII. Conclusion
35     In conclusion, we are of the view that the sentence imposed was not unfit. The sentencing judge exercised her discretion in a reasonable way and our intervention is not warranted. The appeal is therefore dismissed. The appellant will surrender himself to the Calgary Police within 48 hours of the filing of this Judgment.
Memorandum filed at Calgary, Alberta this 19th day of September, 2016