Unfit For Canadian Citizenship

"Ultimately, the appellant's request to vary her sentences would allow the adverse immigration consequences to be the controlling factor in determining the type or length of sentence she receives." 

"Though the appellant's circumstances are sympathetic, the law does not permit a court to impose a sentence solely for the purpose of avoiding such consequences."

"Although the immigration consequences of a sentence can be significant, as they are for the appellant they cannot change a fit sentence into an  unfit one."

Court of Appeal for Ontario decision

Ontario’s top court has drawn the line on when the immigration consequences of a sentence veer into unfit punishment in the case of a woman who struck a stranger in the head with a tossed table and two glass bottles. National Post

 

A Mississauga, Ontario woman's claim that the judge who had sentenced her to a year in jail for her attack on a stranger for the "gratuitous" attack that left her female victim with disfiguring injuries had, in her judgement, failed to adequately take into consideration the consequences that could ensue with respect to her immigration status. The attack took place on December 1, 2020 at the Mountfort Restaurant, Dundas Street East in Mississuaga, and Agata Trabinska, a permanent resident without citizenship status pleaded guilty to to assault causing bodily harm.

 

She has served the sentence and chose to appeal it in an effort to ensure that the sentence whose length makes it a federal offence, would not imperil her immigration status. The 43-year-old fears deportation to her native Poland, separating her from her Canadian-born triplet teen-age sons. This is, in fact, a rather rare case when a judge chose to impose a sentence more fitting of a crime than many others do, taking into account the precarious prospect of deportation for those convicted for serious crimes who are not Canadian citizens. 

 

The assault charge was not the only one levied against this woman. She also pleaded guilty to possession of cocaine and methadone for trafficking purposes, along with possession of property obtained by crime under $5,000 and possession of property obtained by crime, over $5,000. For these offences another judge had given her an intermittent 60-day sentence which she also sought to appeal, though she served that sentence in full, as well. 

 

Agata Trabinski and Brian Funes, both of Mississauga, are facing drug and other offences. Photo by Handout /Peel Regional Police

 

"She overturned a table, which struck the victim. The appellant also threw two glass bottles, both of which struck the victim in the side of the head and caused very serious injuries." This scenario was heard by the court, explaining that Trabinska had engaged in a verbal altercation with a friend of the victim at the restaurant the night in question. The restaurant attack merited Trabinska being barred from "appealing her inadmissibility finding to the Immigration Appeal Division" as a result of "serious criminality".

 

The Crown had urged a sentence of 15 to 18 months, highlighting the "random, unprovoked, and violent nature of the attack, the victim's significant injuries, and that cases involving similar assaults normally merit a custodial sentence". Trabinska's lawyer, on the other hand, recommended  two years less a day of house arrest. After due consideration,  however, the sentencing judge "concluded that, applying the principle of restraint, a 12-month custodial sentence was appropriate and was the lowest possible sentence that would be consistent with the objectives of sentencing." 

 

The court heard that Trabinska had immigrated to Canada from Poland at age 20, had "struggled with substance abuse since she was 16", and had raised her triplets as a single parent from the time their father left the family shortly after she had sponsored him to come to Canada. The sentencing judge had accepted the joint submission of a 60-day intermittent sentence. Because her penalties exceeded six month in jail, she could be declared inadmissible to Canada for her crimes, but that has not yet occurred.

 

Under the Immigration and Refugee Protection Act of Canada, permanent residents and temporary foreign workers in Canada can potentially face deportation  if they are sentenced to serve over six months in prison for criminal offences. Ms. Trabinska's appeals "must fail", declared the appeal court, notwithstanding. 

 

The immigration consequences of an assault charge includes the loss of immigration status, deportation, and prohibition of future visits to Canada. This applies whether the offender is a tourist, student, someone on a work permit, or a permanent resident.  On Criminal Law

"[Trabinska's] immigration status would not have resulted in a conditional sentence or a custodial sentence of less than six months [taking into consideration the reasoning of the sentencing judge]."

"This was a very serious assault that had a significant physical, psychological, and financial impact on the victim."

"She has suffered permanent facial scarring and nerve damage causing chronic pain. She also suffers from persistent hypervigilance, anxiety, depression, and suicidal ideation."

"She has suffered financially, paying for topical scar treatments and transportation for medical appointments."

Appeal Court