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George Jonas: Judges evading
the law

George Jonas | May
22, 2015 1:57 PM ET
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In 2010 four young men robbed a bank in Toronto. They managed to gather up
the loot and make it out of the building, only to crash their getaway car into
an 18-wheeler within a block. Captured, charged, tried and convicted, they were
sentenced to prison terms ranging from nine months to two years less a day.

Bank
robber’s jail term slashed by Ontario court so he would avoid deportation to
Syria

The Ontario Court of Appeal slashed a jail term handed a Syrian-born bank
robber so he could avoid deportation to his homeland, where he could be
conscripted into the civil war.

Because of the “collateral immigration consequences,” the appeal court
reduced Amjad Nassri’s sentence by more than one third — from nine months to
less than six months — for a bank heist that ended when he crashed into a truck
during his getaway.

“It is self-evident that depriving the appellant of the right to appeal
deportation to one of the most dangerous places on Earth would be grossly
disproportionate to this offence,” wrote Justice Robert Sharpe on behalf of a
panel of three judges.

Continue reading…

The relatively longest sentence went to Abdirahman Diriye, an agile bandit
who had vaulted a counter during the robbery and held a knife to a teller’s
neck. The lookout of the gang, Mohamed Noori, got 13 and a half months. The
judge gave the shortest sentence to Amijad Nassri, 21 at the time, who was
behind the wheel of the getaway car, albeit only for a short time.

The sentences may sound rather light for armed robbery, but if the trial
judge found them appropriate for the circumstances, I wouldn’t be prepared to
second-guess him. He heard all the evidence; I didn’t. All the same, I wouldn’t
have given much for the chances of Amijad Nassri when he sought relief from his
9-month sentence at the Ontario Court of Appeal.

“Amijad, son,” I would have said, had he asked me, “you should thank your
lucky stars. You were caught robbing a bank with your buddies, and all you got
for it was nine months in the cooler. With mandatory remissions, if you begin
serving your sentence when the groundhog starts looking for his shadow, you’ll
be out before the end of the black-fly season

“I suggest, instead of appellate counsel, you had better spend your money on
driving lessons.”

That’s what I would have told the young man — and I would have been
wrong. The Ontario Court of Appeal reduced Nassri’s sentence from nine to less
than six months.

What happened? Did the appellate judges credit Nasri’s defence at his trial
that he didn’t know when he used his father’s car to drive his friends to the
bank that they intended to rob it? It was a good story, even if the trial judge
didn’t believe it, but the appellate judges didn’t advert to it at all. Nasri
was appealing only his sentence, not his conviction, and for reasons that had
nothing to do with his lack of mens rea or guilty mind, which had been
his defence at trial.

Nasri wasn’t a Canadian, and it was too harsh a sentence for
him

The young man’s successful defense at appeal was unrelated, not only to his
guilt or innocence, but even to the severity of his penalty in relation to his
crime. Nasri didn’t plead that nine months was too harsh a sentence for driving
a getaway car during a bank robbery. For all he knew or cared, it might have
been a perfectly proportionate sentence for a Canadian, maybe even lenient
— but Nasri wasn’t a Canadian, and it was too harsh a sentence for him.

The Ontario Court of Appeal agreed. Writing for the three-member panel,
Justice Robert Sharpe expressed the view that the consequences of a nine-month
sentence for the appellant before the court “would be grossly disproportionate
to this offence.”

Here’s the reason. Only weeks before Nasri had been sentenced, the
Harper-government enacted legislation that reduced the previous threshold of a
two-year sentence for the mandatory deportation of foreign criminals to a
six-month sentence. People could appeal, but their chances were slim. As Justice
Sharpe put it, a nine-month sentence would in effect deprive “the appellant of
the right to appeal deportation” to the country of his origin, which in Nasri’s
case happened to be Syria.

Considering that the consequences for Nasri would have been near-certain
deportation to a country accurately described by Justice Sharpe as “one of the
most dangerous places on Earth,” it’s difficult to disagree that for this young
man the consequences would have been disproportionate to the offence. Still, the
Ontario appellate court’s reasoning would limit the punishment of non-Canadians
from war-zones to less than six months for any but capital crimes.

Whether it troubles the Supreme Court or not, it troubles me, and ought to
trouble all Canadians

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The former chair of the Ontario Bar Association’s immigration section, Sergio
Karas, was quoted as finding it “somewhat troubling that the court seems to be
trying to fit the sentence to fall shy of the six months bar, which was intended
by Parliament to expedite the removal of noncitizen criminals.” I bet the
government finds it somewhat troubling, too, and may turn to the Supreme Court
to see if it may also be troubled by judges taking the bit between their teeth
to the extent of judicial nullification of the law.

Whether it troubles the Supreme Court or not, it troubles me, and ought to
trouble all Canadians. Judges should interpret and follow the law, not
circumvent it. But I’m equally troubled by mandatory requirements of any kind.
Deportation shouldn’t be rigidly tied to the disposition of other matters. We
may want to see an immigrant embezzler spend a year in jail without necessarily
wanting to see him deported to Idi Amin’s Uganda. Judges may seem inexplicably
lenient (or inexplicably harsh) at times to outside observers, myself included,
but they are in a far better position to determine the outcome of particular
cases than inflexible bureaucrats, self-serving politicians, or loudmouth
journalists.

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Topics: Full Comment, Amijad Nassri, Crime, Mohamed Noori, Ontario Court of Appeal, robbery

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