Background
Harpreet Singh Sandhu, a permanent resident of Canada, pleaded guilty to possession of opium and heroin for the purpose of trafficking after police observed him engage in at least eight drug transactions over two days. A search of his vehicle uncovered 176.94 grams of opium in the trunk, additional packaged quantities on his person, a scale, packaging materials, and a score sheet consistent with trafficking activity. Text messages confirmed active sales of opium in bulk quantities, and the total value of the seized drugs exceeded $10,000, indicating a commercial operation with elements of both street-level and mid-level trafficking.
At sentencing, the Crown sought three years’ imprisonment, characterizing the conduct as straddling street-level and mid-level trafficking ranges established in R v McLean, 2022 MBCA 60 and R v Alcera, 2024 MBCA 32. The defence argued for a conditional sentence order (CSO), in part to mitigate immigration consequences, as a conviction under the Immigration and Refugee Protection Act (IRPA) rendered Sandhu inadmissible. Crucially, neither party advised the sentencing judge that a jail sentence exceeding six months would strip Sandhu of his right to appeal a removal order on humanitarian and compassionate grounds, nor that a CSO would not constitute “imprisonment” under s. 36(1)(a) of the IRPA.
The sentencing judge found the offence serious, with aspects of mid-level trafficking elevating moral culpability, and determined the appropriate range to be thirty to thirty-six months. He imposed thirty months’ imprisonment, reduced to twenty-five months after credit for approximately five months of pre-sentence custody. Sandhu sought leave to appeal his sentence and brought a motion to admit fresh evidence in the form of an affidavit from his immigration counsel detailing the full immigration consequences of the sentence.
The Court’s Holding
The Court of Appeal (leMaistre JA, writing for Cameron JA and Kroft JA) denied the motion for fresh evidence, granted leave to appeal, and dismissed the sentence appeal. On the fresh evidence motion, the court held that while immigration counsel’s affidavit provided a useful overview of the law, that alone does not constitute fresh evidence. More fundamentally, applying the test from Palmer v The Queen, 1979 CanLII 8 (SCC), the court found the evidence could not reasonably have been expected to affect the result, because the immigration consequences could not have justified the sentence reduction required to reach CSO range without violating the principle of proportionality.
On the sentence appeal, the court held that the sentencing judge’s incomplete appreciation of the immigration consequences — specifically, the loss of the right to appeal a removal order on humanitarian and compassionate grounds — did not constitute a material error in principle. The judge was aware in a general way that immigration consequences were relevant and expressly acknowledged them. More importantly, once the judge determined that a penitentiary sentence of thirty to thirty-six months was demanded by the gravity of the offence and the accused’s degree of responsibility, those collateral consequences could not justify a materially lower sentence without distorting proportionality, as confirmed by R v Pham, 2013 SCC 15.
The court also rejected the argument that the judge had misstated the law on conditional sentences. Read in context, the judge’s remarks about rehabilitation explained his refusal to depart from the fit sentence, not an imposition of a novel legal threshold for CSOs. Although the judge briefly and erroneously considered whether pre-sentence custody credit might bring the effective sentence below two years — an error conceded by both parties per R v Henderson, 2026 MBCA 28 — the court found that error had no impact on the ultimate sentence imposed.
Key Takeaways
- Immigration consequences, including loss of the right to appeal a removal order under the IRPA, are collateral consequences that sentencing courts may consider as part of an offender’s personal circumstances, but they cannot distort an otherwise proportionate sentence.
- Once a sentencing judge determines that a penitentiary-range sentence is required by the gravity of the offence and the offender’s culpability, the failure to fully canvass collateral immigration consequences will not be a material error in principle if a fuller understanding of those consequences could not have justified the reduction necessary to reach CSO range.
- An affidavit summarizing the legal landscape on immigration consequences does not qualify as “fresh evidence” on appeal; and where the evidence could not reasonably have affected the result, it will not be admitted under the Palmer test.
- A sentencing judge’s error in briefly considering whether pre-sentence custody credit might enable a CSO — after already finding a sentence exceeding two years appropriate — will not warrant appellate intervention where it had no impact on the sentence ultimately imposed.
Why It Matters
This decision reinforces the limits of the immigration-consequences doctrine in Canadian sentencing law. While Pham confirmed that courts may adjust sentences to account for collateral immigration effects, Sandhu makes clear that this flexibility has a proportionality ceiling: where the offence demands a sentence firmly within penitentiary range, immigration consequences cannot drive a reduction substantial enough to cross into CSO territory. Defence counsel and immigration lawyers should note that failing to fully advise a sentencing judge of IRPA consequences — such as the loss of humanitarian and compassionate appeal rights triggered by a sentence exceeding six months — will not automatically constitute reversible error if the gravity of the offence would have foreclosed the remedy sought regardless.
The case also serves as a practical reminder of the interplay between the IRPA and the Criminal Code: a CSO is not “imprisonment” under s. 36(1)(a) of the IRPA (per Tran v Canada, 2017 SCC 50), meaning the distinction between a CSO and a custodial sentence can have profound immigration consequences. Counsel in cases involving non-citizen offenders should ensure these distinctions are squarely placed before the sentencing court at first instance, rather than relying on appellate correction.