The Court of Appeal for British Columbia has overturned a conditional sentence order imposed by a Surrey provincial court judge for a stabbing and replaced it with jail time after finding the lower court judge applied "excessive weight" on how a prison sentence would affect the offender's immigration status.
The Crown successfully appealed the CSO Jae Won Lee had received on April 17, 2025 involving two years less a day of house arrest for aggravated assault and possession of a dangerous weapon after Lee pleaded guilty. Lee had also been sentenced to three years probation following the CSO.
Justice Christopher Grauer noted in his Aug. 22 delivered in Vancouver that Lee stabbed his victim twice "without provocation, relentlessly pursuing him and causing serious injuries."
Lee is not a Canadian citizen but has permanent resident status. Grauer noted the CSO ordered by the Surrey judge "avoided" Lee's "collateral immigration consequences, preserving his right of review for inadmissibility to Canada."
The Crown argued at appeal that the Surrey judge placed "excessive weight on collateral immigration consequences and imposed a sentence that was demonstrably unfit," Grauer noted in his reasons.
The appeal court judge in turn decided a fit sentence is 42 months in prison minus 102 days credit for time served. Justices Joyce DeWitt-Van Oosten and Lisa Warren concurred.
Lee stabbed his victim in the arm with a knife, pursued him into a building and stabbed him again, causing serious injury. "The victim required 18 stitches to repair his arm wound, and 50 staples from his groin to his chest to close the abdominal wound," Grauer noted.
The court heard the middle-aged victim was smoking a cigarette outside his social housing complex in Surrey when he spotted Lee taking the cover off a motorcycle he knew belonged to another resident. He asked Lee, then 23, what he was doing and Lee replied 鈥渕ind your own business old man鈥� and pulled out a knife with a six-inch blade.
"When the victim attempted to return to his building, the respondent stabbed him in the arm. The victim then retreated into the lobby of his building. The respondent followed him inside, left, then pursued him once again. In the building, the respondent backed the victim into a stairwell and stabbed him in the abdomen. The respondent then told the victim 'better get on your knees and say you鈥檙e sorry,'" Grauer stated in his reasons.
The court also heard that two months before the stabbing Lee threatened a SkyTrain passenger with a switchblade, demanded his cellphone and told him "I could have taken your life right there."
Because he's not a citizen, Lee is seemed inadmissible to Canada after being convicted in this country of a crime punishable by a maximum prison term of at least 10 years but a CSO is not deemed to be a "term of imprisonment" to this end.
"Consequently, while the respondent鈥檚 conviction exposes him to a removal order, a sentence of imprisonment for more than six months would deprive him of any right to appeal that removal order to the Immigration Appeal Division," Grauer explained. "Preserving his right of appeal while imposing a sentence of more than six months could be accomplished only by a CSO. The Crown鈥檚 position is that the judge was led into error by attempting to preserve the respondent鈥檚 right of appeal, resulting in a demonstrably unfit sentence."
The Crown sought a four-year prison sentence while the defence argued for a CSO of two years less a day and probation.
The Surrey judge in passing sentence said he gave "careful consideration" to how deportation without review would follow a jail sentence of six months or more as per the Immigration and Refugee Protection Act.
He observed this doesn't apply to a CSO. "Mr. Lee knows nothing of Australia, his country of birth. He has no family connections or other supports there. I have struggled to determine the weight I should attach to these immigration consequences in fashioning a fit sentence," the provincial court judge noted in passing sentence.
"The immigration consequence of deportation without review is a key individual circumstance that differentiates Mr. Lee from other offenders; although not punishment per se, for Mr. Lee it may be almost as life changing and impactful as the punishment itself."
The Surrey judge decided that "in light of Mr. Lee's rehabilitative efforts since his release on bail and the risk assessment, service of the sentence in the community would not endanger the safety of the community."
The higher court, however, found the judge had "used the collateral immigration consequences at issue here to reduce the respondent鈥檚 sentence to the point where it became disproportionate to both the gravity of the offence and the moral blameworthiness of the offender."
"As I see it, service of this sentence in the community would very much endanger the community鈥檚 safety," Grauer found. "The risk was not one that should be taken. But even if a CSO would not endanger the community鈥檚 safety, this would still result in a sentence that unreasonably departs from the fundamental principle of proportionality."
