IMMIGRANT OVERCOMES LEGAL CATCH-22

Man Who Asked For Longer Sentence To Get Help For Addiction Had Faced
Deportation

When Monir Alejandro Leila was busted again for possession of stolen
property in 2006, he didn't dispute the charges.

In fact, the Chilean immigrant asked for a longer sentence than what
his lawyer thought he could get for him, all in the hopes of getting
into a federal addictions program to kick his heroin habit.

But neither he nor his lawyer knew his two-year sentence would come
back to haunt him, as it meant he would face deportation with no
chance to appeal.

Leila, a permanent resident of Canada, was caught in a legal
conundrum: A criminal sentence of two years (plus time spent in
custody) put him in a federal institution with better drug treatment
options, but also meant he couldn't appeal the deportation order that
comes with a major conviction.

On Friday, Leila wiggled out of this catch-22 when he won an appeal to
have his original sentence reduced to two years less a day.

Leila's appeal lawyer, Gabriel Chand, said his client's case is an
example of a system so complex that even lawyers sometimes don't
realize the consequences of sentencing on immigration status.

"What happened in Mr. Leila's case and in other cases like his, is the
two-year mark is the difference between federal and provincial time,"
Chand said. "It's generally known . . . that the federal institutions
have better programs for addictions."

After five years of heroin addiction and crime, including property
offences, impaired driving, and obstructing a peace officer, Leila
wanted to get clean in a federal institution, according to the
decision published on the B.C. courts website.

But Leila didn't tell his defence lawyer, Rishi Gill, that although he
had lived in Canada since age seven, he was not a Canadian citizen.

Under the Immigration Act, permanent residents convicted of an offence
with a maximum prison term of at least 10 years -- whether or not they
actually receive the maximum sentence -- are deemed "inadmissible to
Canada" and face deportation.

Since possession of stolen property carries a 10-year maximum
sentence, Leila's guilty plea put him in jeopardy of being kicked out
of the country where he had lived for nearly 25 years.

Although immigrants often appeal deportation orders on humanitarian
and compassionate grounds, Leila lost that right when he got a
two-year sentence, which puts him in the category of "serious
criminality."

"The difficulty is that a lot of criminal lawyers don't know about
this immigration repercussion thing," Chand said.

"They think they're getting their client a good deal, but in reality
they're slitting their throat."

The appeal decision of Justice M. Anne Rowles to reduce Leila's
sentence to two years less a day follows other cases in B.C., Alberta
and Ontario, in which immigrants have pleaded that a two-year sentence
was unfair.

"The loss of the appellant's immigration appeal rights is a
disproportionally severe collateral sanction, which was unforeseen by
the appellant and his counsel at that sentencing hearing and
apparently unintended by the sentencing judge," Rowles wrote.

Leila, now 32, has since been released from federal custody on parole,
Chand said, adding that when they last spoke in October, his client
was "clean and sober" and holding down a job in Vancouver.

The Canada Border Services Agency has so far chosen not to start
deportation proceedings, Chand said, meaning Leila hasn't even had to
exercise his newly won right to appeal.