Man’s immigration status wins him slightly shorter sentence

A Toronto court credited a Vietnamese-Canadian permanent resident for time served and gave him a suspended sentence with probation.

A Toronto court has given a permanent resident a slightly lighter sentence so he can fight possible deportation, a judgment becoming more common as a new law makes that process harder for certain non-citizens convicted of crimes in Canada.

In a recent judgment, Justice Fergus O’Donnell credited a Vietnamese man, Hoang Vu, for the equivalent of just under six months already served and gave him a suspended sentence with three years’ probation.

Considering the crime alone, O’Donnell said, an appropriate sentence would have been six to eight months. That would have made Vu unable to challenge a possible deportation order under the newly passed Faster Removal of Foreign Criminals Act.

“Mr. Vu left Vietnam as an 11-year-old boy. After two years in an Indonesian refugee camp he arrived in Canada as a 13-year-old boy. He is now a 43-year-old man,” O’Donnell wrote in the decision released this month. “At this point in his life, Vietnam is a foreign country to him.”

The Star was not able to reach O’Donnell or the Crown for comment over the weekend. Vu’s lawyer said he needed to confer with his client before commenting.

Vu, who has 11 prior convictions, had pleaded guilty to a single count of assault with a weapon, a charge to which the defence recommended a sentence of under six months in prison. The Crown had recommended 15 months.

Under the Faster Removal of Foreign Criminals Act, non-citizens sentenced to terms six months or longer cannot appeal to the Immigration Appeal Division if a decision is made to deport them. Before the new law came into effect this year, that threshold was two years.

Experts said judges do have the right to consider a convicted person’s status when sentencing — but with only a little discretion.

Under the precedent set by the case R. v. Pham in 2013, judges can consider a slightly lighter sentence, which will not have immigration consequences, only if it still falls in the appropriate range for the crime, said Sergio Karas, an immigration lawyer and former chair of the Ontario Bar Association’s immigration section.

O’Donnell gave Vu 1.5 times credit for the roughly four months he already served, resulting in 180 days, just a few days below what he said was the range.

“It seems to me that, even with this one serious offence and with his previous history of mostly trivial criminality, it would be odious to send Mr. Vu back to Vietnam.”

Steven Tress, who practises both immigration and criminal law in Toronto, said the slight reduction would not be unfair to Canadian criminals. Sentencing is an individualized process that takes into account personal circumstances, Tress said, immigration status being one of those.

“Canadian criminals don’t have to face deportation, don’t have to interrupt their rehabilitation programs,” he added. “If rehabilitation is an important enough factor in sentencing of a foreign criminal, then you’re actually leveling the playing field.”

Vu’s sentence comes follows a similar case in May, in which a Syrian man’s nine-month sentence for bank robbery was slashed by one-third on appeal. In another case, this month, a Cuban-born drug smuggler failed to get his six-year sentence lowered because of his immigration status.