The immigration consequences of criminal convictions are always an important consideration sentencing, as per the Supreme Court of Canada decision in
R.V. Pham. However, that decision did not offer a "free pass' to convicted criminals. One argument that those convicted have tried to advance to escape the restrictive language in
Pham is to rely on lack of knowledge of immigration consequences and "blame the lawyer" by arguing that counsel did not make them aware of those consequences. In the case below , the BCCA rejects such argument.
R. v. Kitawine
Between
Regina, Respondent, and
Hemed Kassim Kitawine, Appellant
[2016] B.C.J. No. 752
2016 BCCA 161
Docket: CA41654
British Columbia Court of Appeal
Vancouver, British Columbia
I.T. Donald, M.E. Saunders and R. Goepel JJ.A.
Heard: March 14 and 16, 2016.
Judgment: April 18, 2016.
(30 paras.)
Court Summary:
Appeal against a conviction for robbery following
a guilty plea said to be without awareness of the immigration consequences.
Held: appeal dismissed. While the legal advice the appellant received was
incomplete, it did not cause him to plead guilty. He pleaded guilty in the hope
of getting a lower sentence. The prospect of remaining in Canada after a
conviction for robbery was too remote. No miscarriage of justice was shown.
Appeal From:
On appeal from an order of the Supreme Court of
British Columbia, dated October 21, 2013 (R. v. Kitawine, Victoria Docket 155709-2).
Reasons for Judgment
·
The judgment of the Court was
delivered by
1 I.T.
DONALD J.A.:-- The appellant pleaded guilty to robbery, hoping that if he
received a sentence of six months he would keep alive his chances of remaining
in Canada. His counsel was unaware that as a matter of law a conviction for an
offence, like robbery, carrying a maximum penalty of ten years or more, would
terminate the appellant's appeal from an immigration removal order, regardless
of the length of sentence.
2 The
appellant appeals for an order permitting him to withdraw the plea and for a
new trial on the ground he was not informed of the consequences of his plea.
3 I
would dismiss the appeal. The criminal process was not unfair. The appellant
was well aware that his conviction would seriously jeopardize his immigration
status. His position was not made worse by acting on incomplete advice about
sentencing.
Background
4 The
appellant is a Tanzanian national. He was granted permanent resident status in
Canada on 31 March 2001. He is the father of two children who live with their
mother in Alberta.
5 On
15 July 2011, a member of the Immigration Division of the Immigration and
Refugee Board made a removal order on a finding that the appellant is
inadmissible to Canada on grounds of serious criminality: s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the "Act").
This refers to convictions for 12 offences recorded on 7 October 2010 for fraud
and identity theft. He was sentenced to 15 months' imprisonment and one year of
probation.
6 The
appellant appealed the order and sought a stay on humanitarian grounds: s.
68(1) of the Act. After a
hearing before the Immigration Appeal Division, a stay was granted for four
years. The decision, dated 29 November 2011, contained a Notice of Decision
which, in relevant part, reads as follows:
NOTICE OF DECISION
·
The removal order in this
appeal is stayed. This stay is made on the following conditions -- the
appellant must:
|
|
[1]
|
|
Inform the Canada
Border Services Agency (the "Agency") and the Immigration Appeal
Division (the "IAD") in writing in advance of any change in your
address.
|
|
The address of the Agency is:
Canada Border Services Agency
700 - 300 West Georgia Street
Vancouver, BC V6B 6C8
The address of the IAD is:
Immigration Appeal Division
1600 - 300 West Georgia Street
Vancouver, BC V6B 6C9
|
|
[2]
|
|
Provide a copy of
your passport or travel document to the Agency or, if you do not have a
passport or travel document, complete an application for a passport or a
travel document and to provide the application to the Agency.
|
|
|
|
[3]
|
|
Apply for an
extension of the validity period of any passport or travel document before it
expires, and provide a copy of the extended passport or document to the
Agency.
|
|
|
|
[4]
|
Not commit any
criminal offences.
|
|
|
|
[5]
|
|
If charged with a
criminal offence, immediately report that fact in writing to the Agency.
|
|
|
|
[6]
|
|
If convicted of a
criminal offence, immediately report that fact in writing to the IAD.
|
|
* * *
·
[13] Keep the peace and be of
good behaviour.
FINAL RECONSIDERATION
·
Take notice that the IAD will
reconsider the case on or about the 9th day of October,
2015 or at such other date as it determines, at which
time it may change or cancel any non-prescribed conditions imposed, or it may
cancel the stay and then allow or dismiss the appeal. Until your final
reconsideration is decided (or your stay is otherwise ended), your stay remains
in effect and you must comply with the conditions of your stay, including
advising the Agency and the IAD in writing before any change in your
address.
·
The IAD may contact you by
letter in advance of final reconsideration to ask you to provide written
confirmation that you have complied with the conditions of stay.
IMPORTANT WARNING
·
This stay of removal is
cancelled and your appeal is terminated by operation of law and you may be
removed from Canada if you are convicted of another offence referred to in
subsection 36(1) of the Immigration and Refugee
Protection Act (sentence of more than six months
imposed or punishable by term of imprisonment of at least ten years) before
your case has been finally reconsidered.
·
[Underlined emphasis
added.]
7 On
21 January 2013, the appellant was charged that, in Victoria, on 1 December
2011, he robbed a woman of her purse, contrary to s. 344(1)(b) of the Criminal Code. Robbery carries a maximum
penalty of life imprisonment.
8 The
appellant engaged Mr. Andrew Rafuse, who represented him at the immigration
appeal hearing, to act for him at the preliminary inquiry. He was committed for
trial. He engaged Mr. Timothy Russell as counsel for the trial. After
discussing the immigration implications of the robbery case with Mr. Rafuse,
Mr. Russell approached the Crown prosecutor for a plea bargain for a sentence
of six months. The prosecutor was seeking a sentence of one year and the
appellant was so informed. On the day of trial, Mr. Russell had a conflict in
his schedule and arranged for Mr. Mathais Sarrazin to act for the appellant.
9 The
trial proceeded on 21 October 2013 and the Crown called the complainant and her
friend who witnessed the event. They testified they were walking down the
street in Victoria at night when a man came from behind, grabbed the purse
strap off the complainant's shoulder, and after a brief struggle ran away with
the purse. He was apprehended by the police shortly thereafter.
10 Before
the Crown was to call its last witness, a police officer, the court took a
recess. According to Mr. Russell, he and Mr. Sarrazin explained to the
appellant that the case against him was strong, and unless he testified, a
conviction was inevitable. The appellant did not want to give evidence. Counsel
then suggested he might receive a lesser sentence by pleading guilty as a show
of remorse and acceptance of responsibility. He instructed counsel that he
wished to plead guilty. The appellant and his lawyers have different versions
of what happened next.
11 The
appellant was cross-examined on his affidavit to support a claim of ineffective
assistance of counsel. His evidence was that he pleaded guilty to get a
sentence that allowed him to stay in Canada. That was his theme and he stuck to
it. For the most part, his testimony was unconvincing. He was argumentative and
unresponsive. His statement that he had a plea bargain for a sentence of six
months does not fit in with the surrounding circumstances. He was not promised
a six-month sentence in exchange for a plea. What does emerge from the evidence
is that his lawyers thought, before trial, that a six-month sentence might have
an impact on his immigration status and so advised him. I am satisfied that the
appellant believed that if he received a six-month sentence he might be able to
argue for a continuation of his stay of removal. But I am also satisfied that
he knew the Crown was seeking a greater sentence and there was no plea bargain.
12 At
sentencing, his counsel was still not fully briefed on the immigration
implications of the sentence. The following is an excerpt from the transcript
at the sentence hearing:
·
MR. RUSSELL: ...
·
I wish to say something also
about Mr. Kitawine's immigration circumstances, and I -- I had spoken to Mr.
Rafuse a number of months ago, actually around the time that the plea was
entered, and the advice at that time from Mr. Rafuse was that an offence of. .
.
·
THE COURT: Who's Mr.
Rafuse?
·
MR. RUSSELL: Sorry, Mr. Rafuse
is the immigration counsel for Mr. Kitawine, and as a result of his last
offence, he -- Mr. Kitawine is facing immigration issues with -- he's a
permanent resident and so there -- there was a[n] effort to have him removed
from Canada and that effort has been resisted, and what Mr. Rafuse advised just
prior to the guilty plea was that a sentence of six months or less would be a
significant advantage to him in his immigration pursuits and I -- in the sense
that it would, as I understood, preserve a right of appeal.
·
Now, I -- what I'd tried at the
break, I -- I tried to contact Mr. Rafuse again today, this morning, and I was
unable to. I was trying to get some material for Your Ladyship to point to the
sections and to try to explain that to you, but unfortunately immigration law
is a little bit more complicated than I'm able to put that altogether, but that
-- I can tell you that I did have that conversation with Mr. Rafuse and that
was the advice I received from him.
·
Certainly, there's a reference
in s. 36(1) to the definition of serious criminality, however in trying to --
and one of those definitions is being convicted of an offence for which a term
of imprisonment of more than six months has been imposed. The other definition
for that is being convicted of a[n] offence with a maximum term of imprisonment
of at least 10 years. So I think both of them apply, so I'm not sure how the
six-month limitation -- not sure how it, in fact, engages in this case, but
that was the advice that had been provided to me earlier.
·
And the reason I raise that is
because I am asking this court to consider a sentence of six months and what --
the cases that my -- my friend referred to, in my submission, are all
significantly worse cases...
13 He
was sentenced to a term of one-year imprisonment and two years' probation.
14 The
Immigration Appeal Division issued a further Notice of Decision, Removal Order,
cancelling the stay and terminating the appeal, on 8 May 2014.
15 This
matter began as a sentence appeal and was converted to a conviction appeal when
it appeared to a division of this Court that, after hearing him in person, the
appellant's argument went to the validity of his guilty plea. Counsel was
appointed for him under s. 684 of the Criminal Code and, in due course, an application was filed to admit as fresh evidence
the affidavits of the appellant, Mr. Rafuse and Mr. Russell.
16 Counsel
for the respondent was given leave to cross-examine all three affiants at the
hearing of the appeal and did so.
Issues
17 The
appeal raises the following issues:
·
1.
Must an accused have
complete awareness of the collateral consequences of a guilty plea?
·
2.
Was the process in
which the appellant pleaded guilty of robbery unfair?
Discussion
·
Awareness of Consequences
18 The
elements of a valid guilty plea are prescribed in s. 606 of the Criminal Code which, in subsection (1.1),
sets out the conditions for accepting a guilty plea:
·
(1.1)
A court may accept a
plea of guilty only if it is satisfied that the accused
·
(a) is making the plea voluntarily; and
·
(b) understands
·
(i)
that the plea is an
admission of the essential elements of the offence,
·
(ii)
the nature and consequences of the plea, and
·
(iii)
that the court is not
bound by any agreement made between the accused and the prosecutor.
·
[Emphasis added.]
19 Relevant
consequences may, depending on the circumstances, include the effect of a
sentence on matters collateral to the criminal process itself, such as
immigration or licensing. Thus, in R. v. Quick, 2016 ONCA 95, the court set aside a guilty plea for dangerous
driving on the ground that the appellant's plea was not informed because he was
unaware of the indefinite suspension that automatically followed under the Highway Traffic Act, R.S.O. 1990, c. H.8. Mr.
Justice Laskin, for the court, put the test this way:
·
[33] What is called for is a
fact-specific inquiry in each case to determine the legal relevance and the
significance of the collateral consequence to the accused. A simple way to
measure the significance to an accused of a collateral consequence of pleading
guilty is to ask: is there a realistic likelihood that an accused, informed of
the collateral consequence of a plea, would not have pleaded guilty and gone to
trial? In short, would the information have mattered to the accused? If the
answer is yes, the information is significant. I draw support for this approach
from the reasons of Lebel J. in R. v. Taillefer; R. v.
Duguay, 2003 SCC 70; [2003] 3 S.C.R. 307 and the
reasons of Watt J.A. in R. v. Henry, 2011 ONCA 289.
20 Quick was a case of absence of knowledge.
More difficult are those cases where the accused had a general awareness of the
nature of the collateral consequences, but not necessarily an appreciation of
the precise outcome. The general trend in such cases, beginning with R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Tyler, 2007 BCCA 142, in this
jurisdiction; and R. v. Shiwprashad, 2015 ONCA 577 in Ontario, is to uphold the plea as sufficiently
informed.
21 Where
it is alleged that counsel failed to give any advice on immigration
consequences, the extent of the accused's own knowledge of his jeopardy is a
crucial factor: see, e.g., Shiwprashad at paras. 72-73. The instant case presents a different wrinkle;
here, the appellant says he was wrongly led to believe by his lawyers that
pleading guilty might help his immigration problem. It would appear that the
bargaining for a six-month sentence before trial and the submission at sentence
by Mr. Russell support the appellant's contention. Mr. Darnay, his counsel on
appeal, submits that this misunderstanding deprived his client of the option of
continuing with the trial and taking his chances on the outcome. This argument
must be closely examined to determine whether there was a miscarriage of
justice.
·
Fairness of the Process
22 During
the break in the trial, the appellant found himself in a tight predicament. The
Crown had put in a strong case which called for an answer. The appellant was
unwilling to testify. He was left with two options: proceeding with the trial
and advancing an argument that he did not intend any violence and should be
found not guilty of robbery, but guilty of the lesser but included offence of
theft under $5,000; or pleading guilty and hoping for a more lenient sentence.
23 The
first option was not viable. Both Crown witnesses testified that the
complainant resisted the theft and struggled with the appellant, so the
violence element of the robbery offence was established. Their testimony was
not shaken in cross-examination. This would have been obvious to the appellant.
24 The
second option, pleading guilty, was the one he chose. I can put the appellant's
position no higher than the following: the six-month issue may have been at the
back of his mind and influenced his choice, but the immigration problem was not
part of the discussion he had with his counsel at the break just before he
pleaded guilty. This is how Mr. Russell described the discussion in his
affidavit:
·
6.
I was at the same
Courthouse during the trial and I spoke with Mr. Kitawine and Mr. Sarrazin at
the break after the critical crown evidence had been called. Mr. Sarrazin
advised me that the crown witnesses were very strong and that, in his opinion,
a conviction was inevitable. I was present when Mr. Sarrazin told Mr. Kitawine
that unless he could testify and raise a reasonable doubt as to his actions
and/or his intentions that it was very likely he would be convicted. Mr.
Kitawine was clear that he did not want to testify. Mr. Sarrazin suggested to
Mr. Kitawine that he might receive a lesser sentence by pleading guilty, as a
show of remorse and an acceptance of responsibility. Mr. Kitawine then
instructed Mr. Sarrazin that he wished to change his plea to guilty.
25 The
appellant's assertion that he thought he had a plea bargain for six months is
not credible. He admitted in cross-examination that he knew the prosecutor
intended to argue for a higher penalty. But what about his state of mind regarding
his immigration plight?
26 The
appellant acknowledged receiving the Immigration Appeal Division's stay
decision with the notice attached stipulating a condition that he not commit any criminal offence (see para. 6 of these
reasons). His immigration lawyer, Mr. Rafuse, said in cross-examination that he
told the appellant any conviction would likely end the stay order regardless of
the sentence.
27 In
trying to measure the degree of influence that the confusion over the six-month
sentence played in the appellant's decision to plead guilty, I note the
following uncertainties that were known to him:
·
1.
The sentencing judge
would have to give him a sentence of six months. Mr. Russell told him a
sentence of less than one year was unlikely. I quote from Mr. Russell's
affidavit:
·
3.
I met with Mr. Kitawine
before trial. I explained to him that if the crown witnesses appeared and
testified in accordance with their statements to police that he would very
likely be convicted of robbery, unless he could testify to a defence. I advised
him that if convicted the Crown would seek a 1 year jail sentence and that I
thought it unlikely he would receive less, given his record and all of the
circumstances...
·
2.
Even if he succeeded in
getting a sentence of six months, he had to face the Immigration Appeal
Division when he had breached its condition not to commit an offence within six
months of its issuance.
28 I
conclude that if, as the appellant says, he pleaded guilty to stay in Canada,
he did so on wishful thinking, not from anything his lawyer said to him. The
only incentive held out to him was the prospect of a lower sentence. He was not
led to believe that he would get a sentence that would help his immigration
problems. In my judgment, the appellant pleaded guilty to make the best of a
bad situation.
29 For
the foregoing reasons, I conclude that the process was not unfair and no
miscarriage of justice occurred.
30 I
would dismiss the appeal.
I.T. DONALD J.A.
M.E. SAUNDERS J.A.:-- I agree.
R. GOEPEL J.A.:-- I agree.
