Case information
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34897
Hoang Anh Pham v. Her Majesty the Queen
(Alberta) (Criminal) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2013-03-15 | Appeal closed | |
| 2013-03-14 |
Written reasons rendered after oral judgment, LeB F Abe Ro Mo Ka Wa, The appeal from the judgment of the Court of Appeal of Alberta (Calgary), Number 1101-0206-A, 2012 ABCA 203, dated June 28, 2012, was heard on January 18, 2013, and the Court on that day delivered the following judgment orally: LEBEL J. — Based on the concession of the Crown, the appeal is allowed and the sentence is reduced from two years to two years less a day. Allowed |
|
| 2013-02-28 | Correspondence received, from Nancy Martineau dated Feb 28/13 re: information request | |
| 2013-02-11 | Transcript received, (104 pages) | |
| 2013-01-21 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2013-01-21 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2013-01-18 | Judgment reserved OR rendered with reasons to follow | |
| 2013-01-18 |
Judgment on the appeal rendered, LeB F Abe Ro Mo Ka Wa, The appeal from the judgment of the Court of Appeal of Alberta (Calgary), Number 1101-0206-A, 2012 ABCA 203, dated June 28, 2012, was heard on January 18, 2013, and the Court on that day delivered the following judgment orally: LEBEL J. — Based on the concession of the Crown, the appeal is allowed and the sentence is reduced from two years to two years less a day. Reasons to follow. (Reasons delivered March 14, 2013) Allowed |
|
| 2013-01-18 |
Hearing of the appeal, 2013-01-18, LeB F Abe Ro Mo Ka Wa Judgment rendered |
|
| 2013-01-18 | Acknowledgement and consent for video taping of proceedings, all parties consented. | |
| 2013-01-18 | Intervener's condensed book, (Book Form), filed in Court | Canadian Civil Liberties Association |
| 2013-01-18 | Respondent's condensed book, (Book Form), filed in Court | Her Majesty the Queen |
| 2013-01-18 | Appellant's condensed book, (Book Form), filed in Court | Hoang Anh Pham |
| 2013-01-17 | Correspondence received from, Gowlings rec'd by email re: 2 reserved seats requested | Canadian Civil Liberties Association |
| 2013-01-16 | Supplemental document, Authorities, Completed on: 2013-01-16 | Hoang Anh Pham |
| 2013-01-16 | Notice of appearance, Lorne Waldman. Tamara Morgenthau and Clare Crummey will be appearing and M. Waldman will make oral submissions | British Columbia Civil Liberties Association |
| 2013-01-16 | Correspondence received from, Ms. Major rec'd by fax dated Jan. 16/13 re: 5 reserve seats | Canadian Association of Refugee Lawyers |
| 2013-01-15 | Notice of appearance, Andras Schreck and Apple Newton-Smith will be appearing and Mr. Schreck will make the oral submission | Criminal Lawyers' Association of Ontario |
| 2013-01-15 | Notice of appearance, Matthew Estabrooks and Lynne D. Watt will be appearing and Mr. Estabrooks will make orale submissions | Canadian Civil Liberties Association |
| 2013-01-15 | Notice of appearance, John Norris and Melinda Gayda will be appearing and Mr. Norris will make oral submission | Canadian Association of Refugee Lawyers |
| 2013-01-15 | Reply factum on appeal, (Book Form), Service rec'd Jan. 16/13, Completed on: 2013-01-16 | Hoang Anh Pham |
| 2013-01-15 | Order on motion to file a reply factum on appeal, (see motion record at tab 5) | |
| 2013-01-15 |
Decision on the motion to file a reply factum on appeal, of 5 pages, on behalf of the appellant, LeB Granted |
|
| 2013-01-15 | Submission of motion to file a reply factum on appeal, LeB | |
| 2013-01-15 |
Order by, Cro, FURTHER TO THE ORDER dated December 27, 2012, granting leave to intervene to the Canadian Association of Refugee Lawyers, the Criminal Lawyers’ Association of Ontario, the British Columbia Civil Liberties Association, the Canadian Counsel for Refugees and the Canadian Civil Liberties Association; IT IS HEREBY FURTHER ORDERED THAT the Canadian Association of Refugee Lawyers is granted permission to present oral argument not exceeding ten (10) minutes at the hearing of the appeal. AND IT IS HEREBY FURTHER ORDERED THAT the Criminal Lawyers’ Association of Ontario, the British Columbia Civil Liberties Association, the Canadian Counsel for Refugees and the Canadian Civil Liberties Association are each granted permission to present oral argument not exceeding five (5) minutes at the hearing of the appeal. Granted, no order as to costs |
|
| 2013-01-14 | Intervener's book of authorities, (Book Form), Completed on: 2013-01-14 | Criminal Lawyers' Association of Ontario |
| 2013-01-14 | Motion to file a reply factum on appeal, (Book Form), of 5 pages (sent to the Court Jan. 15/13), Completed on: 2013-01-14 | Hoang Anh Pham |
| 2013-01-14 | Correspondence received from, Ronald Reimer rec'd by fax dated Jan. 11/13 re: corrections to the record and factum of the respondent (sent to the Court Jan. 15/13) | Her Majesty the Queen |
| 2013-01-11 | Intervener's book of authorities, Completed on: 2013-01-11 | Canadian Civil Liberties Association |
| 2013-01-11 | Intervener's factum, word version missing, Completed on: 2013-01-11 | Canadian Civil Liberties Association |
| 2013-01-11 | Intervener's factum, Completed on: 2013-01-11 | Criminal Lawyers' Association of Ontario |
| 2013-01-11 | Intervener's book of authorities, Completed on: 2013-01-11 | Canadian Association of Refugee Lawyers |
| 2013-01-11 | Intervener's factum, Completed on: 2013-01-11 | Canadian Association of Refugee Lawyers |
| 2013-01-11 | Intervener's book of authorities, (Book Form), Completed on: 2013-01-16 | British Columbia Civil Liberties Association |
| 2013-01-11 | Intervener's factum, (Book Form), Completed on: 2013-01-15 | British Columbia Civil Liberties Association |
| 2013-01-11 | Intervener's book of authorities, (Book Form), Completed on: 2013-01-11 | Canadian Council for Refugees |
| 2013-01-11 | Intervener's factum, (Book Form), Completed on: 2013-01-11 | Canadian Council for Refugees |
| 2013-01-11 | Appeal perfected for hearing | |
| 2013-01-09 | Supplemental document, (Authorities), Completed on: 2013-01-09 | Her Majesty the Queen |
| 2013-01-09 | Respondent's record, (Book Form), Completed on: 2013-01-09 | Her Majesty the Queen |
| 2013-01-09 | Respondent's book of authorities, (Book Form), Completed on: 2013-01-09 | Her Majesty the Queen |
| 2013-01-09 | Respondent's factum, (Book Form), Completed on: 2013-01-09 | Her Majesty the Queen |
| 2013-01-08 | Notice of appearance, Donna Spaner and Ronald Reimer will be appearing. Ronald Reimer will present oral submissions. | Her Majesty the Queen |
| 2013-01-04 | Notice of appearance, Erika Chozik and Alias Sanders will be appearing and Ms. Chozik will make oral submissions | Hoang Anh Pham |
| 2012-12-28 | Correspondence received from, Donna Spaner dated Dec. 28/12 and rec'd by email re: request for 3 reserved seats | Her Majesty the Queen |
| 2012-12-28 | Letter sent to Intervener(s) | |
| 2012-12-27 | Order on motion for leave to intervene, (BY CROMWELL J.) | |
| 2012-12-27 |
Decision on the motion for leave to intervene, Cro, UPON APPLICATIONS by the Canadian Association of Refugee Lawyers, the Criminal Lawyers’ Association of Ontario, the British Columbia Civil Liberties Association, the Canadian Counsel for Refugees and the Canadian Civil Liberties Association for leave to intervene in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motions for leave to intervene of the Canadian Association of Refugee Lawyers, the Criminal Lawyers’ Association of Ontario, the British Columbia Civil Liberties Association, the Canadian Counsel for Refugees and the Canadian Civil Liberties Association are granted and the said interveners shall be entitled to each serve and file a factum not to exceed 10 pages in length on or before January 11, 2013. The requests to present oral argument are deferred to a date following receipt and consideration of the written arguments of the parties and the interveners. The interveners are not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the interveners shall pay to the appellant and respondents any additional disbursements occasioned to the appellant and respondent by their interventions. Granted, no order as to costs |
|
| 2012-12-27 | Submission of motion for leave to intervene, Cro | |
| 2012-12-20 | Reply to the motion for leave to intervene, Completed on: 2012-12-20 | British Columbia Civil Liberties Association |
| 2012-12-20 | Response to the motion for leave to intervene, (original filed Dec. 28/12), Completed on: 2012-12-20 | Her Majesty the Queen |
| 2012-12-19 | Response to the motion for leave to intervene, Completed on: 2012-12-19 | Hoang Anh Pham |
| 2012-12-17 | Motion for leave to intervene, (Book Form), Completed on: 2012-12-17 | Canadian Civil Liberties Association |
| 2012-12-17 | Motion for leave to intervene, (Book Form), Completed on: 2012-12-17 | Canadian Council for Refugees |
| 2012-12-17 | Motion for leave to intervene, (Book Form), Completed on: 2012-12-17 | British Columbia Civil Liberties Association |
| 2012-12-17 | Motion for leave to intervene, (Letter Form), Completed on: 2012-12-17 | Criminal Lawyers' Association of Ontario |
| 2012-12-17 | Motion for leave to intervene, (Book Form), Completed on: 2012-12-17 | Canadian Association of Refugee Lawyers |
| 2012-12-12 | Appellant's book of authorities, (3 volumes), Completed on: 2012-12-12 | Hoang Anh Pham |
| 2012-12-11 | Appellant's factum, Completed on: 2012-12-11 | Hoang Anh Pham |
| 2012-12-03 | Notice of hearing sent to parties | |
| 2012-11-28 | Appellant's record, Completed on: 2012-11-28 | Hoang Anh Pham |
| 2012-11-26 | Discontinuance of motion to appoint counsel, (Letter Form), from Erika Chozik, by fax | Hoang Anh Pham |
| 2012-11-26 | General proceeding, Form 25 B | Hoang Anh Pham |
| 2012-11-26 | Notice of appeal, CD and service rec'd Nov. 27/12, Completed on: 2012-11-29 | Hoang Anh Pham |
| 2012-11-22 | Correspondence received from, François Lacasse rec'd by email Nov. 22/12 re: change of solicior | Her Majesty the Queen |
| 2012-11-22 | Correspondence received from, François Lacasse by email dated Nov. 22/12 re Ronald C. Reimer is appointed as counsel with Donna Spaner | Her Majesty the Queen |
| 2012-11-22 |
Appeal hearing scheduled, 2013-01-18 Judgment rendered |
|
| 2012-11-21 | Response to motion to appoint counsel, (Letter Form), from Francois Lacasse, dated Nov.21/12, by fax, Completed on: 2012-11-21 | Her Majesty the Queen |
| 2012-11-19 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2012-11-16 |
Decision on the motion for a stay of execution, (BY ROTHSTEIN J.), CJ Ro Mo, UPON APPLICATION by Hoang Anh Pham for an order under Rule 62 of the Rules of the Supreme Court of Canada staying the deportation order made on August 2, 2012 by C.M. Kowalyk, Immigration Division Member, under s. 45(d) of the Immigration and Refugee Protection Act pending the determination of the application for leave to appeal and, if granted, pending the determination of the appeal; AND HAVING READ THE MATERIAL FILED by the parties and the Minister of Public Safety and Emergency Preparedness; AND THE APPLICATION FOR LEAVE TO APPEAL having been granted and the appeal ordered expedited; AND HAVING RECEIVED an undertaking from the Canada Border Services Agency, on behalf of the Minister of Public Safety and Emergency Preparedness, not to remove Hoang Anh Pham from Canada pending the determination of the appeal; IT IS HEREBY ORDERED THAT the motion for a stay of execution is adjourned sine die. IT IS HEREBY FURTHER ORDERED THAT the appeal is to be heard on January 18, 2013 and that the schedule for serving and filing the materials will be set by the Registrar. Adjourned Sine Die, no order as to costs |
|
| 2012-11-15 | Correspondence received, (by fax) S.M. Telles-Langdon; undertake not to remove the appellant until his appeal is determined by the Court | |
| 2012-11-14 | Motion to appoint counsel, (Letter Form), from Erika Chozik, dated Nov.14/12, by fax, Completed on: 2012-11-14 | Hoang Anh Pham |
| 2012-11-09 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2012-11-09 | Judgment on leave sent to the parties | |
| 2012-11-08 | Correspondence (sent by the Court) to, all parties; from O. Rees; undertaking not to remove the appellant until his appeal is determined by the Court | |
| 2012-11-08 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal of Alberta (Calgary), Number 1101-0206-A, 2012 ABCA 203, dated June 28, 2012, is granted without costs. The date of the hearing of the appeal is to be expedited. The schedule for serving and filing material will be set by the Registrar. Granted, without costs |
|
| 2012-11-01 | Submission of motion for a stay of execution, CJ Ro Mo | |
| 2012-11-01 | Reply to motion for a stay of execution, (Letter Form), from Erika Chozik dated Nov. 1/12 to Minister of Safety's letter of Oct. 26/12 in response to the motion for stay (submitted to the panel on Nov. 1/12), Completed on: 2012-11-01 | Hoang Anh Pham |
| 2012-10-26 | Correspondence received, from Sharlene M. Telles-Langdon dated Oct. 26/12 on behalf of the Minister of Public Safety and Emergency Preparedness with submissions (as a response) on motion for a stay of execution (submitted to the panel on Nov. 1/12) | |
| 2012-10-18 | Reply to motion for a stay of execution, (Letter Form), (submitted to the panel on Nov. 1/12), Completed on: 2012-10-18 | Hoang Anh Pham |
| 2012-10-15 | Response to the motion for a stay of execution, (submitted to the panel on Nov. 1/12), Completed on: 2012-10-15 | Her Majesty the Queen |
| 2012-10-05 | Motion for a stay of execution, (Book Form), (submitted to the panel on Nov. 1/12), Completed on: 2012-10-09 | Hoang Anh Pham |
| 2012-10-05 | Notice of miscellaneous motion, (Letter Form), pursuant to Regle 32 (2), fees missing (rec'd on Oct 15/12), Completed on: 2012-10-15 | Hoang Anh Pham |
| 2012-10-01 | All materials on application for leave submitted to the Judges, CJ Ro Mo | |
| 2012-09-26 | Applicant's reply to respondent's argument, Completed on: 2012-09-26 | Hoang Anh Pham |
| 2012-09-19 | Respondent's response on the application for leave to appeal, Completed on: 2012-09-19 | Her Majesty the Queen |
| 2012-08-22 | Letter acknowledging receipt of a complete application for leave to appeal | |
| 2012-08-21 | Application for leave to appeal, (Book Form), CD rec'd, Completed on: 2012-08-21 | Hoang Anh Pham |
| 2012-08-01 | Correspondence received from, Erika Chozik dated July 31, 2012. Re: Corrections to the fax number and postal code | Hoang Anh Pham |
| 2012-08-01 | Notice of application for leave to appeal, C/A order rec'd on August 8, 2012, Completed on: 2012-08-01 | Hoang Anh Pham |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Pham, Hoang Anh | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Canadian Association of Refugee Lawyers | Intervener | Active |
| Criminal Lawyers' Association of Ontario | Intervener | Active |
| British Columbia Civil Liberties Association | Intervener | Active |
| Canadian Council for Refugees | Intervener | Active |
| Canadian Civil Liberties Association | Intervener | Active |
Counsel
Party: Pham, Hoang Anh
Counsel
Alias Sanders
102 - 662 King Street West
Toronto, Ontario
M5V 1M7
Telephone: (416) 986-5873
FAX: (416) 364-9705
Email: erika@choziklaw.com
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Party: Her Majesty the Queen
Counsel
Donna Spaner
700 EPCOR Tower 10423, 101st Street
Edmonton, Alberta
T4H 0E7
Telephone: (780) 495-4079
FAX: (780) 495-6940
Email: ron.reimer@ppsc-sppc.gc.ca
Agent
284 Wellington Street
2nd Floor
Ottawa, Ontario
K1A 0H8
Telephone: (613) 957-4770
FAX: (613) 941-7865
Email: flacasse@ppsc-sppc.gc.ca
Party: Canadian Association of Refugee Lawyers
Counsel
Melinda Gayda
Toronto, Ontario
M5H 4E2
Telephone: (416) 596-2960
FAX: (416) 596-2598
Email: john.norris@simcoechambers.com
Agent
397 Gladstone Avenue
Suite1
Ottawa, Ontario
K2P 0Y9
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Party: Criminal Lawyers' Association of Ontario
Counsel
Apple Newton-Smith
6 Adelaide Street East, 5th Floor
Toronto, Ontario
M5C 1H6
Telephone: (416) 977-6268 Ext: 1
FAX: (416) 977-8513
Email: schreck@schreckpresser.com
Agent
2600 - 160 Elgin St
Box 466 Station D
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
Email: brian.crane@gowlingwlg.com
Party: British Columbia Civil Liberties Association
Counsel
Clare Crummey
Tamara Morgenthau
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
Telephone: (416) 482-6501
FAX: (416) 489-9618
Email: lorne@waldmanlaw.ca
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Party: Canadian Council for Refugees
Counsel
Carole Simone Dahan
526 St. Clair Avenue West, Unit 3
Toronto, Ontario
M6C 1A6
Telephone: (416) 653-9964
FAX: (416) 653-1036
Email: barb@bjackman.com
Agent
1 Nicholas Street, Suite 422
Ottawa, Ontario
K1N 7B7
Telephone: (613) 241-7008 Ext: 5224
FAX: (613) 241-8680
Email: bossinm@lao.on.ca
Party: Canadian Civil Liberties Association
Counsel
Matthew S. Estabrooks
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Criminal law Sentencing Considerations Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 64 How should a criminal or appellate court consider the unintended or collateral consequences of a criminal sentence, particularly consequences relating to the immigration status of an offender? Whether the Court of Appeal erred in principle by refusing to vary the appellant’s sentence by one day in order to preserve his right to appeal an immigration deportation order.
Under s. 64 of the Immigration and Refugee Protection Act (“IRPA”), a non citizen loses his right to appeal a removal order if he has been, among other things, convicted of a crime for which he has been sentenced to a term of imprisonment of at least two years. The appellant is a Vietnamese citizen who came to Canada under the sponsorship of his father. He was convicted of producing and possessing marihuana for the purposes of trafficking. Pursuant to a joint submission on sentence, he was sentenced to 2 years’ imprisonment. Despite the joint submission, the appellant appealed, arguing that the consequences of the sentence with respect to the IRPA ought to have triggered a reduced sentence. The Crown consented to the reduction. The majority of the Court of Appeal dismissed the appeal. In its view, the particular circumstances of this case, and in particular, the appellant’s prior convictions, did not warrant varying the sentence or undermining the provisions of the IRPA. Martin J.A., dissenting, would have allowed the appeal solely on the basis of the Crown’s consent which, in his view, was given on the assumption that the sentencing judge would have agreed to the reduction had counsel been aware of the collateral consequence flowing from a two year sentence. He cautioned, however, that this relief is not automatic and that had it not been for the Crown’s concession based on fairness, the appellant would not have qualified for such relief.
Lower court rulings
Provincial Court of Alberta
090212598P1, 2010 ABPC 323
Applicant sentenced to 24 months’ incarceration
Court of Appeal of Alberta (Calgary)
1101-0206-A, 2012 ABCA 203
Appeal dismissed
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
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