OTTAWA — The Manitoba Court of Appeal has ruled a judge gave an excessively light sentence to a 23-year-old Somalian refugee to prevent him from being deported, after the man rammed his car into a police vehicle and threatened to kill the officers who arrested him.
The court ruling Oct. 31 increased Mustaf Ahmed Yare’s sentence to more than 13 months, from five months and 25 days. In their decision, the judges found the longer sentence “may result in his deportation,” but was necessary because the sentencing judge “failed to impose a sentence that was proportionate to the gravity of the offences.”
The case sheds light on how judges weigh the severity of crimes committed by non-citizens against the consequences of jail time for those who could be deported, after Harper-era changes to immigration rules attempted to make it easier to remove criminals.
Yare’s family is Somali, and he was born and raised in a refugee camp, his lawyer said. He and his family moved to Canada in 2009 and he lived with his parents, according to the appeal court ruling. In September 2017, he was arrested after he refused to pull over during a traffic stop, instead accelerating, ramming into the police car and causing it to stall. He then drove off at high speed with other police cars chasing him, crashed into a metal sign post and fled on foot.
I'm a real gangster and you will die
After he was arrested, according to the court decision, he told police officers: “I’m going to get my gang and I’m going to find you and kill you. I’m a real gangster and you will die. Trust me, you fucking goofs.” Less than two weeks after he was released on bail, he was arrested again while in breach of his curfew. According to the ruling, he was already on probation at the time of his arrest, and has a “lengthy and related criminal record.”
Yare pleaded guilty to charges including fleeing from police and uttering threats. During his sentencing hearing, the judge found he “ought to be jailed for about a year for these charges,” but ultimately decided on a much shorter sentence — five months and 25 days.
Permanent residents can lose their status and be deported from Canada if they’re convicted of a crime with a possible jail sentence of 10 years or more, or sentenced to more than six months in prison. A sentence of six months or longer also strips them of their right to appeal deportation.
Knowing this, the sentencing judge decided to go easy on Yare. “I am not inclined to subject you to deportation hearings, but you need to know how lucky you are,” he told him.
The appeal court, however, found the lower court judge “imposed an artificial sentence” to prevent Yare from being deported, and raised his total sentence to 13 months and 10 days, acknowledging the punishment “will affect his right of appeal … and may result in his deportation.” Yare had already served the jail time prior to the appeal hearing.
Yare’s Winnipeg-based lawyer, Edmond Murphy, said it’s hard to say whether his client will be deported imminently or not, as Yare has since been arrested again and is back in custody on charges of assault with a weapon and uttering threats.
I am not inclined to subject you to deportation hearings, but you need to know how lucky you are
The Supreme Court of Canada has ruled that judges should consider immigration consequences in sentencing, said Sergio Karas, an immigration lawyer and analyst, but the punishment must still fit the crime.
It’s unfair, he said, for a non-citizen to get a much lower sentence than a citizen for the same crime, simply to avoid deportation. “You can’t have that, because otherwise it’s like playing favourites.”
But Toronto immigration lawyer Lorne Waldman said the right to appeal deportation orders has been unfairly restricted over the years. It used to be that anyone could appeal a removal order, he said, but in the early 2000s, that right of appeal was denied to those sentenced to more than two years. Under the Harper government, that was expanded to anyone sentenced to more than six months.
“I think there should always be the right to a review,” he said, arguing that individual circumstances like how long someone has been in the country and whether they have children need to be considered.
“I don’t think it’s unreasonable for Canada to consider taking action against a non-citizen who has violated the criminal law, but I think the changes that were brought in by the former Conservative government were very extreme,” Waldman said. “That’s why you’re seeing judges imposing sentences of less than six months.”
However, Karas said the Harper government changed the rules because some judges previously sentenced non-citizens to two years less a day to avoid deportation, and there was public outrage that people with lengthy criminal records weren’t being removed from the country. “Let’s face it,” he said. “For somebody to be sentenced to six months of incarceration, it’s got to be a pretty heavy-duty offence.”
Like Waldman, Murphy believes anyone should have the right to appeal a deportation order, regardless of the length of their sentence. He said Yare’s parents support him and want him to be able to stay in the country.
But beyond that, Murphy said, cases like these prove “that when people immigrate to Canada, they should take steps to become Canadian citizens.” He said it’s not uncommon to see people who came to Canada as children lose their status after being convicted of a crime because they never gained citizenship. “And (they) end up getting deported to a country where they’re now detached from both the language and the culture.”
