IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Gabriale Rene St. Constantine, a.k.a. David Paul Holder, a.k.a. Daniel Thomas MacCabee, has entered a guilty plea that on or about September 14, 2020, at or near the City of Surrey, in the Province of British Columbia, having been previously deported from Canada on September 14, 2020, pursuant to Deportation Order V376718075, did return to Canada without authorization, contrary to subsection 52 (1) of the Immigration and Refugee Protection Act (“IRPA”), thereby committing an offence under paragraph 124 (1) (a) of the Immigration and Refugee Protection Act. The Crown is proceeding by Indictment.

[2]         The circumstances are such that Mr. St. Constantine is a US citizen with a US criminal record with two assault and one terrorizing convictions. He has previously been removed from Canada, including a most recent entry of April 2012 from Canada for the same offence in which he has entered a guilty plea before me today. Mr. St. Constantine has been the subject of two prior deportation Orders prior to the Order of September 14, 2020, being issued.

[3]         On September 14, 2020, at approximately 10:08 a.m., Mr. St. Constantine was observed by the international border between Canada and the United States, near what is known as the Smuggler’s Inn, by 176 and 0 Avenue, in the City of Surrey, in the Province of British Columbia. He was observed by Canada Border Services Agency staff (“CBSA”) walking and entering into Canada, and failed to report to a CBSA official at the border inspection booths. He was observed by the CBSA officers to be looking back at them, and thereafter continuing to walk away from the CBSA officers and reporting booths, at which time additional CBSA officers approached and took Mr. St. Constantine into custody. He was arrested for failing to report for immigration purposes and illegally entering Canada. While in custody with CBSA, he candidly disclosed to the officers during his warned statement that despite being arrested, he would fully intend to return and enter Canada once again. While arrested, he was properly Chartered, warned and provided his Vienna Convention rights. He chose not to exercise any of his rights. No Charter violations are being alleged. He was told that he was going to be deported, that such Order had no expiry date, however, he voluntarily told the CBSA officers that he would re-enter Canada and that he preferred being in jail in Canada rather than being in the United States. This was his third Deportation Order, that being September 14, 2020, May 21, 2014 and May 10, 2012.

[4]         He has no legal status to be in Canada. He is not a Canadian citizen, permanent resident, or landed immigrant. He has no authorized permits or visas for study, work, or any other form legally issued to him to enter Canada.

[5]         Mr. St. Constantine was held in CBSA custody for nine hours on September 14, 2020, and issued a valid permanent Deportation Order. He was escorted to the US border and removed. Within 20 minutes of his deportation and removal from Canada by CBSA, Mr. St. Constantine willingly and knowingly crossed back into the Canada – US border and was promptly arrested by CBSA.

[6]         Section 52 (1) of the IRPA states:

[7]         Section 124 (1) (a) of the IRPA articulates that contravention of s. 52 (1) of the IRPA is an offence, and that s. 125 provides that upon conviction on Indictment of such an offence, the person is liable to a fine of no more than $50,000 or to a period of incarceration for a term of not more than 2 years, or to both.

[8]         Crown is seeking the Court to impose a sentence of 12 months incarceration and defence is seeking the Court to impose a sentence of time served, in which he has been in custody for 32 days and with enhanced credit of 47 days.

[9]         Section 718 of the Criminal Code of Canada sets out a number of objectives and principles of sentencing that a sentencing judge must consider. These include: denunciation, deterrence, rehabilitation, reparations and promoting a keen sense of responsibility in offenders, including that the offender acknowledge the harm done to both victims and the community as a whole.

[10]      Section 718 of the Criminal Code states:

[11]      The Code further sets out that the sentence must be in proportion to the gravity of the offence and the degree and culpability of the offender. The sentence imposed must be similar to those imposed on similar offenders for similar offences; the offender shall not be deprived of liberty, unless less restrictive sanctions are not available.

[12]      As noted, Mr. St. Constantine has entered a guilty plea, and s. 606 of the Criminal Code was canvassed with him by his defence counsel.

[13]      There are four elements to this offence, those being:

[14]      Crown counsel seeks to rely upon the decision of R. v. Polnac, 2017 BCSC 2408, from November 27, 2017, wherein the BC Supreme Court imposed a custodial sentence of 2 years upon Mr. Polnac, who was arrested while residing illegally in Vancouver, was 50 years of age, and had a criminal record. The Court was not convinced by what they refer to at para. 27 as his “[failure] to illustrate what is heroic about an American citizen who sneaks into Canada and acts as though the laws of Canada ought not to apply to him.” He did not enter a guilty plea and the Court found no remorse. He had been the subject of six other removal Orders with a sentencing range commencing at 68 days, then 4 months, then 10 months, then 13 months, and finally an imposition of 2 years. In the matter before me, defence counsel submits that one of the reasons why Mr. St. Constantine illegally entered Canada was his fear and concern about political unrest in the United States, including the Confederate flag, and the open carrying of firearms in the State of Oregon. However, as noted in para. 31 of the Polnac, (supra), decision, the Court held:

[15]      In the March 2, 2006 decision of R. v. Williams, an unreported decision from the BC Provincial Court from the Honourable Judge Howard, Mr. Williams was sentenced to 12 months jail after a guilty plea to both an immigration and CDSA violation. He was 40 years of age, had both a Canadian and US criminal record, and this was his third immigration infraction. His prior removals garnered him jail time of 25 days, 30 days, and 9 months before the imposition of a 12-month period in custody. In reviewing the decision, the relevant portions are set out in para. 21 of the decision, where the Court states:

[16]      Defence counsel respectfully seeks to rely upon the decision of R. v. Luckstein, [1995] B.C.J. No. 2206, wherein the British Columbia Court of Appeal noted that the emphasis on sentencing must be on both specific and general deterrence, and imposed a 12-month sentence for an individual who returned to Canada one month after being deported. The uniqueness of this decision, however, is that Mr. Luckstein had been convicted of second degree murder, and committed this offence while on parole. At the trial level, the trial judge failed to find any compassionate grounds for Mr. Luckstein to return to Canada. The Court of Appeal, in focussing upon the leading principle of deterrence for this offence, noted at para. 7 “…that the message be made clearly and loudly by the courts that such response to a removal order will not be tolerated by this country.”

[17]      In the decision of R. v. Dosson, [2018] B.C.J. No. 3298, the BC Supreme Court imposed a period of 3 months incarceration at the conclusion of a trial for both immigration and offences that included assaulting a peace officer – that being a CBSA officer – and spitting in his face, and obstructing the peace officer. Mr. Dosson returned back to Canada within months of being deported. The Court was unable to find any mitigating factors.

[18]      I have reviewed the decisions, both at trial and upon appeal, of R. v. Suarez, 2019 QCCA 649, from the Quebec Court of Appeal, wherein reviewing the range of sentences, the Court found them to be from 30 days to 6 months. Neither counsel were able to find any succinct review from the Province of British Columbia. In the Suarez appeal, the Court noted the individualized process in crafting an appropriate sentence, including balancing the sentencing objectives and addressing proportionality. The Court, however, noted the importance of these offences and that the emphasis must be on deterrence to “….send a clear message to any foreigners who might be tempted to act….” (para. 13), and further noted at para. 23,

[19]      I have considered the mitigating factors before me. Mr. St. Constantine has entered a guilty plea very early on in this process. Defence counsel respectfully submits that when Mr. St. Constantine entered Canada on September 14, 2020 and was arrested, he initially made and declared a refugee claim, stating that he was doing so because of the political turmoil in the United States, and that he was further seeking refuge in Canada and, thereafter, ultimately to Israel because he is Jewish. He withdrew his refugee claim shortly thereafter before the CBSA officers. Defence counsel submitted that while residing at a homeless shelter in Eugene, Oregon, Mr. St. Constantine would regularly read a vast array of news information online from media outlets such as CNN, the Chicago Tribune, the NY Times, and the LA Times. This, along with his submission that the State of Oregon permits citizens to openly carry firearms, and that there was political unrest with protests, violence, and the flying of the Confederate flag, all compounds to his personal belief that he was fearful, and wished to enter Canada and, thereafter, to Israel for safety and refuge. I am not convinced. While there is indeed unrest in the United States in the form of protests and violence, there is nothing before me that would indicate that Mr. St. Constantine, as a Caucasian citizen of the United States of Jewish faith had been intimidated, threatened, or subject to harassment or violence while residing in the homeless shelter in Eugene, Oregon. That does not minimize what is occurring south of this international border; however, those are broad-sweeping submissions with no nexus to Mr. St. Constantine.

[20]      Defence counsel further submits that consideration of a mitigating factor was that Mr. St. Constantine, in reading his online media access, was fearful for his personal well-being as an elderly man with diabetes and two prior heart medical issues, was fearful of the Coronavirus (also known as Covid) in the United States, and believed that he would personally be much safer in Canada. That is not a factor that is appropriate for consideration as a mitigating factor. If Mr. St. Constantine has been truthful about his extensive reading online of various media outlets across the United States, he would have been well aware that Covid is a global pandemic, and that he further would have been aware of the international border being closed between Canada and the United States since March 20, 2020. The United States is a vast country, and it would have presented Mr. St. Constantine with a vast array of options to ensure his personal well-being and safety within the confines of his own country before illegally entering Canada. I am not convinced.

[21]      I will acknowledge that his record is dated.

[22]      I will acknowledge that through his counsel he has expressed remorse.

[23]      He is currently 59 years of age, born in New York. He is one of six children and obtained a college diploma in computer science. He resided in Madison, Wisconsin from the 1990s until the economic collapse in 2008, and has resided in Eugene, Oregon since 2016, including the past 6 months at a homeless shelter. He has no drug or alcohol substance misuse issues. He suffers from no known mental health issues. When caught re-entering Canada, he was not carrying any contraband on his person. He did not obstruct or assault any CBSA peace officers.

[24]      I find there are a number of aggravating factors that I must consider. Mr. St. Constantine has been deported from Canada in the past and was very familiar with Deportation Orders. He flagrantly endeavoured to re-enter Canada a mere 20 minutes after being deported on September 14, 2020 in front of CBSA officers. Defence counsel submits that Mr. St. Constantine did so because he was angry for being held in custody for some 9 hours before being released, and, in the form of a temper tantrum, simply chose to walk past the CBSA officers, waved to them and continued to walk into Canada illegally, after which he was stopped by additional uniformed officers. That is more than a mere temper tantrum from an adult man with no evidence of mental health issues. That is, simply put, a flagrant disregard for the laws of this country. To re-enter this country some 20 minutes after being escorted and removed is aggravating. He has been the subject of other Deportation Orders. During his warned interview, he candidly told CBSA officers that if he was deported, he would continue trying to enter Canada. Even while in custody, Mr. St. Constantine did not appreciate the continued gravity of his offence

[25]      I also turn my mind to the global pandemic of Covid and that the Canada – United States’ border has been closed to all but essential travel since March 20, 2020. Mr. St. Constantine, by his own admission, was readily reading online and accessed a number of high profile and long-standing mainstream media outlets across the United States, and therefore was abundantly well aware of Covid, its implications, and that the border was closed. By knowingly crossing the international border, contrary to the restrictions put in place, and knowing the ravages of Covid, the quarantine requirements imposed and well publicized by Canada, he put both himself, CBSA officers, and members of the Canadian community at large at risk by flagrantly entering, and after being deported, simply walking back across some 20 minutes later. Mr. St. Constantine selfishly put his own interests first above the law and, above all, global and national health orders and directives in place, thus risking his own personal exposure to Covid, risking an exposure to front line CBSA officers to Covid, as well as citizens of Canada to Covid. That is clearly not acceptable.

[26]      In carefully considering the global pandemic, defence counsel seeks to rely upon the Ontario decision of R. v. Hearns, 2020 ONSC 2365 (CanLII), [2020] O.J. No. 1648, wherein the Ontario Superior Court of Justice addressed the pandemic and persons being placed in custody. Of note, this was a joint submission, unlike the matter before me, and did not include Deportation Order violations, which in and of itself has an emphasis on deterrence. In the Hearns decision, at para. 11, the Court noted:

[27]      It is indeed a unique consideration and balancing in imposing the sentence during a global pandemic. On the one hand, I am mindful of Mr. St. Constantine’s selfish and flagrant disregard for health laws and restrictions by risking exposure to Covid to himself, front line CBSA officers, and citizens of this country; and on the other hand, I am mindful of the risk of Covid while in custody. Both must be balanced and considered. I have done so.

[28]      Covid alone does not justify nor permit the reduction of a sentence. However, the uniqueness of the offender’s situation is to be considered. There is nothing before me that would convince me that Mr. St. Constantine is entitled to a blatant reduction in his sentence simply due to Covid. He is diabetic and has had two heart medical issues, albeit those were not articulated as to what they were. He is otherwise healthy. In illegally entering Canada, there was nothing before me to indicate that he was medically at risk, and, in fact, chose to put himself and others at risk by his very actions that were well within his control and purview. I am mindful of the global pandemic and take judicial notice of such. I am unable to find anything before me that would convince me that there are personalized and unique circumstances before me that would necessitate a reduction in a period of incarceration for this accused. In considering such, I am also familiar and have applied the May 20, 2020 Provincial Court of British Columbia decision of R. v. Stevens, 2020 BCPC 104, from the Honourable Judge Malfair in the Prince George Registry, wherein she thoroughly canvassed the impact of Covid on the principles of sentencing, and notably at para. 47, Covid was described as a “collateral consequence” and as having an impact on proportionality. I have considered Covid as a collateral consequence upon the personal circumstances of Mr. St. Constantine (R. v. Morgan, 2020 ONCA 279; R. v. Lemmen, 2020 BCPC 67; R. v. Parasmothy, 2020 ONSC 2314). Covid is a collateral consequence that must be considered, however, it should not detract from the legal principles of sentencing in that any sentence crafted must be mindful of s. 718 of the Criminal Code of Canada and the sentence must be done on an individualized basis. In the matter before me, I am mindful that while dated, Mr. St. Constantine is very familiar with a Deportation Order; that he had knowledge of the global pandemic; that this is not his first offence; that he flagrantly put himself, CBSA officers, and the citizens of Canada at risk to a global pandemic by entering Canada and thereafter being deported, only to return some 20 minutes later, all of which is very troubling. There is nothing before me to convince me that a period of incarceration for Mr. St. Constantine would expose him to significant collateral consequences making the imposition of the sentence that I will impose to be disproportionate.

[29]      I am guided by my decision in R. v. Singh, Provincial Court of British Columbia, Surrey Registry file number 213187-1, wherein Mr. Singh had entered a guilty plea for an offence contrary to s. 131 of the IRPA to assist persons illegally entering Canada. I acknowledge that this is a different offence, however, I take guidance from para. 11 of the decision which states:

[30]      I am not convinced that there was a risk to Mr. St. Constantine, and, in fact, by re-entering Canada he knowingly violated the faith and trust of this country as a whole to be safe, and re-entered illegally. He is not exempt from the law, nor is he above the law. When one enters this country, it is to be done lawfully, both in respect of its immigration laws and currently, uniquely, with the global pandemic. It is a core value in this country to respect and abide by the law.

[31]      In carefully considering the facts before me, the statutes applicable, the case law, the personalized mitigating and aggravating factors before me, and the uniqueness of the global pandemic as a collateral consequence in which I must be mindful, I will impose a period of incarceration upon Mr. St. Constantine of 9 months. This shall be less 32 days in custody, and with enhanced credit to be 47 days. While this is a period of step up from his last conviction, it is clear that Mr. St. Constantine is not appreciating the severity of his actions, both in committing the offence once again, but also the irony that he is seeking an application of Covid when considering his period of incarceration, even though he chose to put himself, the CBSA officers and citizens of this country at risk. To also re-enter this country some mere 20 minutes after spending 9 hours in custody, is a flagrant disregard and disrespect for the laws of this country. In crafting this sentence, I am mindful of the principles of sentencing and that the uniqueness of this offence places emphasis on both general and specific deterrence.