The better question is why a person who had fourteen ( 14) prior convictions was allowed to remain in Canada even prior to his last offence. That seems quite odd, indigence that many individuals are deported regularly with lesser offences. Many of the offences committed by this individual were very serious.
R. v. Shiwprashad
Between
Her Majesty the Queen, Respondent, and
Kemchand Shiwprashad, Appellant
Her Majesty the Queen, Respondent, and
Kemchand Shiwprashad, Appellant
[2015] O.J. No. 4387
2015 ONCA 577
Docket: C57684
Ontario Court of Appeal
K.M. Weiler, M.H. Tulloch and K.M. van Rensburg JJ.A.
Heard: June 2, 2015.
Judgment: August 20, 2015.
Docket: C57684
Ontario Court of Appeal
K.M. Weiler, M.H. Tulloch and K.M. van Rensburg JJ.A.
Heard: June 2, 2015.
Judgment: August 20, 2015.
(77 paras.)
Criminal law
-- Criminal Code offences -- Offences against rights of property -- Robbery and
extortion -- Robbery -- Appeal by accused from conviction dismissed -- Accused,
a permanent resident, pleaded guilty to robbery for threatening mother at
knifepoint for $40 -- Accused, whose prior removal order had previously been
stayed, was subsequently deported -- Accused knew deportation was potential
consequence of guilty plea although he might not have appreciated extent of his
jeopardy -- Lawyer's failure to advise accused or ensure he obtained advice
concerning immigration consequences prior to his plea did not result in
miscarriage of justice.
Criminal law -- Procedure -- Pleas -- Setting aside guilty plea -- Appeal by accused from conviction dismissed -- Accused, a permanent resident, pleaded guilty to robbery for threatening mother at knifepoint for $40 -- Accused, whose prior removal order had previously been stayed, was subsequently deported -- Accused knew deportation was potential consequence of guilty plea although he might not have appreciated extent of his jeopardy -- Lawyer's failure to advise accused or ensure he obtained advice concerning immigration consequences prior to his plea did not result in miscarriage of justice.
Criminal law -- Procedure -- Pleas -- Setting aside guilty plea -- Appeal by accused from conviction dismissed -- Accused, a permanent resident, pleaded guilty to robbery for threatening mother at knifepoint for $40 -- Accused, whose prior removal order had previously been stayed, was subsequently deported -- Accused knew deportation was potential consequence of guilty plea although he might not have appreciated extent of his jeopardy -- Lawyer's failure to advise accused or ensure he obtained advice concerning immigration consequences prior to his plea did not result in miscarriage of justice.
Appeal by the
accused from the sentence imposed following his guilty plea to a charge of
robbery. He threatened his mother at knifepoint for $40. He pleaded guilty to
robbery and two other charges were withdrawn. He was sentenced to nine months'
imprisonment less credit for pre-sentence custody. Subsequently, the accused
was reported inadmissible on the grounds of serious criminality and was
deported. The accused was a 45-year-old man from Guyana. He had lived in Canada
as a permanent resident for 23 years. He had a criminal record of 14
convictions, including convictions for assault and threatening death, sexual
exploitation and sexual interference. As a result of those sexual offences, the
accused was reported inadmissible to Canada and a removal order was issued
against him. He was granted a four-year stay of the removal order and was
warned that further offences would result in the cancellation of the stay. On
appeal, the accused sought to have his guilty plea set aside on the basis that
he received ineffective assistance of counsel because he was not properly
informed of the immigration consequences of the plea. He also presented a
different version of the facts, claiming that he was simply asking his mother
for his money back.
HELD: Appeal
dismissed. The accused knew that deportation was a potential consequence of his
guilty plea although he might not have appreciated precisely how limited his
options were to avoid that consequence or the extent of his jeopardy.
Therefore, even assuming that his lawyer had a duty to advise him or to ensure
that he obtained advice concerning the immigration consequences prior to his
plea, the failure of counsel to do so did not result in a miscarriage of
justice. The verdict was reliable. There was no credible or reliable evidence
that the accused did not understand the charge against him or the facts to
which he was pleading guilty. Cancellation of the order staying the accused's deportation
and his subsequent deportation was not a surprise. The accused knew he risked
deportation if he was sentenced to more than six months and he chose to assume
the risk that he could receive such a sentence and be deported when he pleaded
guilty.
Statutes, Regulations and Rules Cited:
Statutes, Regulations and Rules Cited:
Canadian
Charter of Rights and Freedoms, 1982, s. 1, s. 7, s. 15(1)
Criminal
Code, s. 151(a), s. 344(1)(b), s. 606(1.1)(b)(ii), s. 606(1.2)
Faster
Removal of Foreign Criminals Act, S.C. 2013, c. 16, s. 24
Immigration and
Refugee Protection Act, S.C. 2001, c. 27, s. 36(1), s. 36(1)(a), s. 64, s.
64(1), s. 64(2)
Appeal From:
Appeal From:
On appeal
from the conviction entered on March 8, 2015 by Justice Hugh K. Atwood of the
Ontario Court of Justice.
·
The judgment of the Court was delivered
by
1 K.M. WEILER J.A.:-- The appellant, a
permanent resident of Canada, pleaded guilty to the charge of robbery and was
subsequently deported. One of the requirements for a court to accept a plea of
guilty is that the accused understand "the nature and consequences of his
plea": s. 606(1.1)(b)(ii) of the Criminal Code. The appellant
argues that he did not understand the consequences of his plea because he did
not know he would be deported if he pleaded guilty. In this regard, the
appellant alleges that there was a duty on the part of counsel to inform him of
the immigration consequences of his plea prior to his pleading guilty and,
since this was not done, he alleges ineffective assistance of counsel.
2 In addition, the appellant challenges the
constitutionality of s. 606(1.2) of the Criminal Code, which states:
"The failure of the court to fully inquire whether the conditions set out
[for a valid plea] in subsection (1.1) are met does not affect the validity of
the plea." The appellant alleges that this section violates ss. 7 and
15(1) of the Charter and is not saved under s. 1.
3 Having regard to the fresh evidence filed, I am
satisfied the appellant knew that deportation was a potential consequence of
his guilty plea although he may not have appreciated precisely how limited his
options were to avoid that consequence. While the appellant may not have been
aware of the precise extent of his jeopardy at the time he pleaded guilty, he
knew that deportation was a possible consequence. Thus, even assuming that the
appellant's lawyer had a duty to advise him or to ensure that he obtained
advice concerning the immigration consequences prior to his plea, on the facts
of this case, the failure of counsel to do so did not result in a miscarriage
of justice. The constitutional issue respecting s. 606(1.2) does not arise on
these facts. Accordingly, I would dismiss the appeal.
A. FACTS
·
(1)
Events Prior
to the Plea
4 The appellant was born on August 16, 1970 in
Guyana and is now almost 45 years old. He came to Canada with his family as a
young man and lived here as a permanent resident for approximately 23 years
prior to his deportation on February 11, 2014.
5 Prior to his conviction for robbery, the
appellant had 14 entries on his criminal record, including convictions for
assault and threatening death.
6 His last conviction, entered on October 20,
2008, was for sexual interference and sexual exploitation in relation to an
incident involving his 15-year-old stepdaughter, to which he pleaded guilty. On
the conviction for sexual interference, the appellant received a 12 month
conditional sentence, in addition to 100 days of pre-sentence custody. A 90-day
intermittent sentence was imposed for the sexual exploitation conviction.
7 On July 8, 2009, as a result of the sexual
interference conviction, the appellant was reported as inadmissible to Canada
on the basis of serious criminality pursuant to s. 36(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").1 A removal order was issued on November
23, 2009. The appellant appealed to the Immigration Appeal Division of the
Immigration and Refugee Board of Canada.2
8 On January 28, 2011, a four-year stay was
granted on the removal order.
9 As part of the stay, the appellant was required
to report to the Canadian Border Services Agency (the "Agency") and
do the following things, among others:
·
1)
Not commit
any criminal offence;
·
2)
If charged
with a criminal offence, immediately report that fact in writing to the
Agency;
·
3)
If convicted
of a criminal offence, immediately report that fact in writing to the Agency
and the Immigration Appeal Division;
·
4)
Report to the
Agency in person six months from the hearing and every six months thereafter
and hand in a written report respecting employment and living conditions.
10 At the end of the stay order is the following
warning:
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 a term of imprisonment of at least ten years)
before your case has been finally reconsidered.
11 The appellant, who is illiterate, had this
warning read to him by his immigration consultant, Mr. Ramkissoon, and was
warned he could not get into any trouble or the stay of his deportation would
be cancelled.
12 The appellant attended every six months at Mr.
Ramkissoon's office following the hearing in order to have him prepare the
paperwork for the written report the appellant handed in to the Agency. Each
time, Mr. Ramkissoon asked him if he had been in any trouble with the law. The
last date he reported prior to his conviction was January 3, 2013.
·
(2)
The Plea and
Events Prior to Sentence
13 On February 5, 2013, the appellant was charged
and arrested for robbery, threatening death and assault with a weapon. He was
alleged to have threatened his mother at knifepoint for $40.
14 The appellant retained the same counsel who
represented him on his sexual interference and sexual exploitation charges and
instructed him to pursue discussions respecting a guilty plea.
15 The matter was pre-tried. The pre-trial judge
indicated that a sentence of two years on a guilty plea would be appropriate.
Defence counsel did not accept this recommendation.
16 On March 8, 2013, the appellant pleaded guilty
to one count of robbery, with the understanding that the facts would be read in
at a later date and the other charges would be withdrawn.3 Defence counsel advised the court that
he had reviewed the plea inquiry with the appellant and that the appellant was
entering his plea "voluntarily, waiving his right to a trial and
understands [that the court is] not bound by anything we say."
17 Crown counsel indicated she would be seeking a
three year sentence of imprisonment and would like to proceed on an agreed
statement of fact. The matter was put over to allow Crown counsel to review a
videotaped statement given by the appellant's mother to police and to speak to
the appellant's mother and sister, both of whom provided letters of support on
behalf of the appellant.
18 On March 28, 2013, the Crown outlined the
allegations against the appellant including the aggravating circumstances that
he had threatened to kill his mother, threatened his sister-in-law at the same
time, and threatened to burn the house down. The appellant indicated that he
was not prepared to acknowledge all of the facts as set out by the Crown. As
such, the matter was adjourned to April 30, 2013 for a Gardiner hearing
for the Crown to prove the aggravating circumstances. The appellant continued
to be detained in custody pending the hearing and applied for bail.
·
(3)
The Bail
Hearing
19 The bail hearing took place on April 22, 2013,
and the sentencing judge heard almost a full day of evidence, including the
evidence of the appellant's mother on behalf of the defence.
20 In cross-examination, the Crown played the
mother's videotaped statement to the police, which the mother adopted as true.
In that videotaped statement, the appellant's mother makes reference to her
son's immigration status. She advised the police that the appellant "had
problems with his child's mother", and he had a "little time to
serve". She explained that he "served his time, and now he has
immigration problems." When the police asked for clarification, the
appellant's mother added: "he has immigration problem ... he will get
deport ... He is not a citizen, he's not landed, he's not a citizen."
21 The Crown also referred to the appellant's
immigration status in closing submissions, noting that "[i]t would seem
that there are people here who rely on [the appellant]" and "perhaps
there's some concern of ... him being in this situation and what effect, if any
that might have on ... his status in Canada." The Crown added: "[The
appellant] has children here, he certainly has roots here. He's lived here for
a long, long time, so I can understand their concern." Nonetheless, the
Crown urged the court to deny bail on the basis that the appellant's violence
was escalating and he was likely to reoffend.
22 Defence counsel also made submissions at the
bail hearing but he did not mention the appellant's immigration problems.
During the course of his submissions defence counsel stated that the appellant
had a drug problem that would be addressed if he were released.
23 Although the sentencing judge was satisfied that
there were "some real benefits to the defence for release", including
the appellant's "immigration issues," he ultimately accepted the
Crown's submission that the appellant should be detained on the basis that he
is likely to reoffend. Bail was denied.
24 After the sentencing judge's ruling, defence
counsel indicated that a Gardiner hearing would not be necessary. The
court and counsel agreed to proceed with sentencing on April 30, 2013.
·
(4)
Sentence and
Events Following Sentencing
25 On April 30, 2013, the appellant was sentenced
to four months and 22 days imprisonment, in addition to credit for pre-trial
custody, or a sentence equivalent to nine months' imprisonment. Although no
mention was made of immigration consequences at the time of sentencing, those
present in court were also present during the bail hearing and had heard the
appellant's mother mention deportation in her videotaped statement. They could
not help but be aware there would be immigration consequences to the appellant
being found guilty of robbery.
26 On May 7, 2013, the appellant was reported
inadmissible due to serious criminality pursuant to s. 36(1)(a) of the IRPA,
and on June 4, 2013, the stay of the 2009 removal order was cancelled and the
appellant's appeal was terminated.4 A warrant for the appellant's arrest was executed on July 30, 2013,
while he was in custody.
27 The appellant completed his sentence on August
3, 2013, but was placed on an immigration hold. Notice of the decision
cancelling the stay, dated August 16, 2013, was given to the appellant. On
September 24, 2014, the appellant filed a judicial review application. The
application was unsuccessful. A further application to the Federal Court of
Canada to stay the removal order was also unsuccessful.
28 The appellant was deported as scheduled on
February 11, 2014.
B. ISSUES
29 The following issues are raised on this appeal:
·
1)
Did the
appellant receive ineffective assistance of counsel such that his guilty plea
was uninformed?
·
2)
Does the plea
inquiry in s. 606(1.2) of the Criminal Code violate ss. 7 and 15 of the Charter?
C. ANALYSIS
30 On appeal, the appellant seeks to have his
guilty plea set aside on the basis that he received ineffective assistance of
counsel because he was not properly informed of the immigration consequences of
the plea. He also argues that the plea inquiry in s. 606(1.2) of the Criminal
Code violates ss. 7 and 15 of the Charter because it does not
require a sentencing judge to inquire whether or not the accused is aware of
possible immigration consequences of the plea.
31 I will address the ineffective assistance claim
first.
·
(1)
Ineffective
Assistance of Counsel
·
(a)
The Test for
Ineffective Assistance of Counsel
32 In R. v. Joanisse (1996), 102 C.C.C. (3d)
35 (Ont. C.A.), this court held at p. 59 that there are three components to a
claim of ineffective assistance of counsel:
·
1.)
The appellant
must establish the facts on which the claim is based;
·
2.)
The appellant
must establish that the representation provided by trial counsel was
incompetent; and,
·
3.)
The appellant
must establish that the incompetent representation resulted in a miscarriage of
justice.
33 For the reasons that follow, it is my view that
the appellant has failed to establish the facts on which his claim is based or
that a miscarriage of justice has occurred.
·
(b)
The Facts
·
(i)
The
appellant's evidence
34 In his affidavit filed as fresh evidence on this
appeal, the appellant acknowledges that after he received the stay of the
removal order, he was "told very clearly by Mr. Ramkissoon that [he] could
not get into any more trouble or else [he] would be deported."
35 However, later in his affidavit, he deposes that
after he was charged with robbery, he received conflicting advice from defence
counsel about the consequences of his criminal activity. The appellant claims
that defence counsel told him he would "only receive 60-90 days on
weekends on a sentence" and that he was advised to "take the deal so
that [he] could get back to work." The appellant insists that he informed
defence counsel of his "immigration problems", but counsel advised
him that "if [he] received a sentence of less than six months jail,
immigration could not bother [him]."
36 The affidavit further deposes that the appellant
entered the guilty plea because of defence counsel's advice, and that he did
not seek additional advice from his immigration lawyer because he believed
defence counsel was better equipped to advise him on the consequences of the
plea. He states:
·
On March 5, 2013 I entered a guilty
plea. I pleaded guilty because of what [defence counsel] told me about getting
90 days to be served on weekends. I believed him when he told me that as long
as I did not get more than six months I would not get deported. I did not call
my immigration counsel to confirm this advice. I thought that my criminal
lawyer would know better than my immigration lawyer what the consequences of my
plea would be.
37 The Crown cross-examined the appellant on his
affidavit and asked him when, exactly, he told defence counsel about his
immigration issues and the requirement that he had to report to the Agency
every six months. The appellant testified that he informed defence counsel
about these issues sometime in 2009, after his conviction for sexual
interference and sexual exploitation. However, when advised by the Crown that
the removal order was dated January 2011, the appellant changed his answer to
say that he told defence counsel about his immigration problems after the
removal order was stayed.
38 The appellant admitted that he had a copy of the
stay order and that Mr. Ramkissoon read him the whole order, including the
warning that he could be deported if he committed further criminal offences.
The appellant said he was able to communicate with Mr. Ramkissoon without any
problems. The appellant further conceded that each time he went to Mr.
Ramkissoon's office to have him prepare the paperwork for the report to the
Agency, Mr. Ramkissoon asked him if he had been in any trouble. The appellant
had to have been aware that one of the important conditions of the stay was
that he not receive further convictions.
39 The appellant also testified that defence
counsel never talked to him about immigration prior to his plea on the robbery
offence. He alleges defence counsel told him he would not have any difficulties
with a sentence of 60-90 days intermittent; promised him this was the sentence
he would receive; never advised him to see an immigration lawyer; and told him
that immigration would not bother him. He added, "I go with what he said
because I trust him as my attorney."
40 The appellant agreed that defence counsel told
him he should only plead guilty if he was prepared to accept the allegations
made by the Crown. The appellant also agreed that defence counsel told him he
could go to trial, but he insisted that defence counsel also told him that if
he went to trial, he would still receive a sentence of 60 to 90 days to be
served on weekends. The appellant also said that defence counsel never
explained to him that it was up to the sentencing judge to determine the
sentence or that by pleading guilty he would not have a trial.
41 After this appeal was perfected, the appellant
filed a further short affidavit in which he deposes: "I would never have
pleaded guilty to robbery in Brampton in March 2013, if I knew that I would be
deported and lose my family and my job."
42 The Crown objects to the admissibility of this
statement but declined to cross-examine the appellant further. For the purposes
of this appeal, I will admit the evidence and consider what weight if any to
give it in my analysis.
·
(ii)
Defence
counsel's evidence
43 Pursuant to the ineffective assistance of
counsel protocol, the appellant's defence counsel swore an affidavit dated
August 22, 2014.
44 In his affidavit, defence counsel deposes that
he never told the appellant he would not be deported if he received a sentence
of less than six months. In fact, he insists that he was unaware an immigration
issue arose after the appellant's convictions for sexual interference and
sexual exploitation. He states: "Given [the appellant's] roots [in the]
country over the past 25 years (secure full-time employment, two Canadian born
children) I had no reason to believe he required the assistance of an
immigration lawyer."
45 In cross-examination on his affidavit, defence
counsel acknowledged that, having represented the appellant previously, he knew
the appellant was not a Canadian citizen. However, the appellant never told him
that he lost his status after pleading guilty to the sexual interference
charge, nor did he tell him about the removal order and stay.
46 Defence counsel admitted that a general thought
about potential immigration consequences was triggered when the Crown put its
position of a three year sentence on the record in response to the appellant's
guilty plea. As such, he advised the appellant to seek advice from an
immigration lawyer. He testified:
·
I know that a permanent resident
certainly would have an immigration issue if they're found guilty of this
offense given the penalty for robbery ... which is why I told him to seek
immigration counsel's advice if he had any concerns about that. I do not know
if he did or didn't, but he came back to me and said that he wanted to proceed
with it.
47 When defence counsel was reminded his affidavit
said that he was unaware of any immigration issues, he explained that his
affidavit referred only to his lack of awareness of the deportation issues that
arose following the 2008 convictions, and had he known about those issues, he
would have set a date for trial.
·
(iii)
Findings on
fresh evidence
48 I do not accept aspects of defence counsel's
evidence. He denies being aware of any immigration issues in the sense that the
appellant was subject to deportation, yet he saw the appellant's mother's
videotaped statement in which she told police that the appellant was going to
be deported. He also heard the Crown's comments at the bail hearing respecting
the immigration concerns of the appellant's family, and he was aware the
sentencing judge referred to the appellant's immigration status in his ruling
on the bail application.
49 Defence counsel says that he had enough of a
concern about the Crown's position concerning a three year sentence on the
appellant's immigration status to tell him to seek advice from an immigration
lawyer. Yet he acknowledges he never followed up with the appellant and asked
him whether he had sought immigration advice.
50 Quite apart from the Crown's position that a
three year sentence was warranted when the appellant pleaded guilty on March 8,
2013, the appellant's immigration status was a relevant consideration at his
sentencing hearing. In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 15, at
paras. 6-24, the Supreme Court held that providing the sentence imposed is
still fit, an appellate court can vary an otherwise fit sentence where the
sentencing judge did not take account of immigration consequences having regard
to the principles of individualization and "the sentencing objective of
assisting in rehabilitating offenders." The Court's judgment in Pham
was given the same day the appeal was heard, on January 18, 2013, and the
reasons were delivered March 14, 2013. The appellant was sentenced on April 30,
2013.
51 If defence counsel told the appellant to seek
immigration advice, it would have made sense that he follow up and ask the
appellant if he had obtained that advice in order to make what use he could of
it on sentence. Defence counsel acknowledged that he did not do this.
52 I would also reject aspects of the appellant's
evidence, namely, that defence counsel promised him he would receive a sentence
of 60 to 90 days and told him he would not be deported if he pleaded guilty and
received a sentence of less than six months. There are four reasons for my
conclusion.
53 First, counsel are not likely to make such promises
especially when a joint submission as to sentence is not being made, the
accused has a criminal record for other offences involving violence, and the
offence to which the accused is pleading guilty is an escalation of violence.
54 Second, the appellant was not unfamiliar with
the court system. He had pleaded guilty to each of his 14 prior convictions. In
these circumstances it is difficult to understand how the appellant could not
know that when he pleaded guilty to this robbery the sentencing judge was not
bound by defence counsel's submission as to sentence.
55 Third, defence counsel told the court, in the
appellant's presence, that the appellant knew the sentencing judge would not be
bound by his submission as to sentence. The appellant does not allege that he
did not hear defence counsel make this statement, nor does he suggest that he
did not understand what was meant.
56 Fourth, I accept defence counsel's evidence that
it is not his practice to give immigration advice and that he did not do so on
this occasion. Defence counsel consistently ignored the appellant's immigration
status. If defence counsel had, in fact, promised the appellant he would not be
deported if he received a sentence of less than six months, he most certainly
would have suggested the sentencing judge consider the appellant's immigration
status as a factor in sentencing, which he did not do.
57 Based on my analysis of the evidence above, the
appellant has not established the facts on a balance of probabilities to support
his claim that defence counsel made the promises he did.
·
(c)
Incompetence
of Counsel
58 In Joanisse, at p. 61, this court stated:
·
[I]ncompetence is determined by a
reasonableness standard measured by reference to counsel's performance in the particular
circumstances of the case from the point in time when counsel made the
decisions challenged on appeal. The wisdom of hindsight has no place in this
assessment. This approach recognizes that in many situations counsel will have
a wide range of options any of which, if taken, will constitute competent
representation. Appellate courts must give deference to choices made by counsel
and the competence assessment must be informed by a presumption in favour of
competence.
59 In this case, the appellant submits that the
presumption of deference has been rebutted. Defence counsel had represented the
appellant before the robbery and knew that he was not a Canadian citizen. The
provisions of IRPA are clear and explicit in defining the removal
consequence on the appellant's conviction for an offence punishable by a
sentence of ten years or more, and robbery, being an offence punishable by life
imprisonment, is such an offence. While immigration law can be complex, in this
case defence counsel could have determined that the appellant's plea would make
him eligible for deportation by reading the text of the statute. This provision
is not recent. Thus, even if the appellant's evidence is rejected, the
appellant submits that defence counsel's failure to provide any immigration
advice prior to his plea amounts to ineffective assistance.
60 The Crown argues that immigration consequences,
such as deportation, are a collateral, not direct, consequence of a guilty plea
and have no bearing on the requirement that an accused understand the
consequences of his guilty plea within the meaning of s. 606 (1.1)(b)(ii) of
the Criminal Code. Immigration consequences are only a valid
consideration on sentencing. The Crown's position is that because deportation
is a collateral consequence of a guilty plea, current Canadian jurisprudence
does not require counsel to give advice respecting the collateral consequences
of a plea: R. v. Tyler, 2007 BCCA 142, 237 B.C.A.C. 312; R. v. Hunt,
2004 ABCA 88, 346 A.R. 45; R. c. Nersysyan, 2005 QCCA 606.
61 The appellant submits that the reasonableness
standard for the level of competence for a criminal lawyer carries with it a
duty to inform him of the consequences of a guilty plea on his immigration
status prior to entering the plea. Counsel for the appellant urged this court
to adopt the approach of the United States Supreme Court, which held in Padilla
v. Kentucky, 559 U.S. 356 (2010), that the failure of criminal defence
lawyers to advise noncitizen clients about the immigration consequences of
guilty pleas constitutes ineffective assistance of counsel. Prior to this
decision, defence counsel in the United States were not required to advise
clients of the collateral consequences of a guilty plea such as loss of
government benefits. Deportation was considered a collateral consequence.
62 In Padilla, Stevens J. for the majority
acknowledged that immigration law can be complex and is a legal speciality of
its own. He held that the duty on a defence counsel will vary depending on
whether the law is clear or whether the consequences are unclear or uncertain.
Where the impact of the law is "not succinct and straightforward",
the lawyer "need do no more than advise a noncitizen client that pending
criminal charges may carry a risk of adverse immigration consequences"
(footnotes omitted): at p. 369. However, where the law and deportation
consequences are "truly clear", criminal defence lawyers have a duty
to inform clients that deportation will result from a conviction: p. 369. Thus,
the court held at pp. 373-374 that, when dealing with a noncitizen who clearly
faces a risk of deportation, counsel cannot remain silent:
·
The severity of deportation --
"the equivalent of banishment or exile" -- only underscores how
critical it is for counsel to inform her noncitizen client that he faces a risk
of deportation.
·
It is our responsibility under the
Constitution to ensure that no criminal defendant -- whether citizen or not --
is left to the "mercies of incompetent counsel." To satisfy this
responsibility, we now hold that counsel must inform her client whether this plea
carries a risk of deportation. [Citations omitted; footnotes omitted.]
63 Unlike in Padilla, where a wealth of
evidence was filed by various organizations, in this case, no affidavit
evidence was filed from any defence counsel or association such as the Criminal
Lawyers Association as to the standard of care expected of a criminal defence
lawyer in Canada. However, as Gary R. Clewley, Paul G. McDermott and Rachel E.
Young observe in their text Sentencing: The Practitioner's Guide,
looseleaf (Toronto: Canada Law Book, 2015), at para. 1.330, "[a]wareness
of immigration issues on the part of criminal lawyers is becoming more
important for several reasons," namely "the increasing number of new
Canadians; the increasing number of self-represented or under-represented
accused; the increasing number of sentences with minimum jail terms;" and
the amendments to immigration legislation reducing the length of sentence
required to remove appeal rights of permanent residents from a removal order.
64 Perhaps in recognition of the increased
importance of the intersection of criminal law and immigration consequences,
LawPRO, the professional indemnity corporation for Ontario lawyers, has advised
criminal lawyers to identify clients' immigration status before entering plea
and/or sentence negotiations in order to avoid exposure to possible claims.5 Similarly, Mario D. Bellissimo, in his
text, Immigration Criminality and Inadmissibility, looseleaf (2014), (Toronto:
Carswell, 2014), at p. 10-46 advises lawyers to obtain a written direction from
a client prior to any guilty plea, and to reference the possible immigration
consequences of a plea in that direction. Further, an article for the Criminal
Justice Section of the Ontario Bar Association written in the wake of the Pham
decision states that it is "essential" that counsel be aware of the
immigration status of any client. The author suggests that counsel "will
well be advised to discuss the immigration consequences of matters with a
member of the immigration bar and to refer clients accordingly."6 Clewley, McDermott & Young also
suggest that defence counsel "make sure that accused people are aware of
the immigration implications before they are arraigned at trial or enter guilty
pleas."7
65 In this case I do not have to determine whether
the failure to ascertain the effect of a guilty plea on the client's
immigration status prior to plea constitutes incompetence of counsel, and I do
not propose to do so having regard to the lack of evidence as to the standard of
care in Canada, and my conclusion explained below that even if there was
ineffective assistance of counsel, there was no miscarriage of justice. As this
court stated in Joanisse, at p. 62:
·
Counsel's failure to meet competence
standards does not automatically lead to a reversal of a conviction. The
ultimate purpose of the appellate inquiry is not to grade counsel's
performance, but to determine whether a miscarriage of justice occurred. The
third and final component of this court's approach to allegations of
incompetent representation at trial presumes a finding of incompetence and
looks to the effect of that incompetence on the fairness of the trial
proceedings. This inquiry examines the nature and seriousness of counsel's
errors both from the perspective of the reliability of the verdict and the
adjudicative fairness of the process leading to the verdict. If counsel's
incompetence rendered the verdict unreliable or the process unfair, then the
appellant has demonstrated that he received ineffective assistance resulting in
a denial of the right to a fair trial and a miscarriage of justice.
·
(d)
Miscarriage
of Justice
·
(i)
The verdict
was reliable
66 In the appeal before us, the appellant has
raised, for the first time on appeal, a version of the facts that is completely
at odds with the facts to which he pleaded guilty. It is submitted that the
appellant was simply demanding his own money back and that he could not,
therefore, commit the offence of robbery. This argument is not tenable in law.
The appellant gave his mother $250 (either as rent he owed her or as a gift)
and then demanded the money back. She returned $210, and he demanded the other
$40. A gift requires three things: intention by the donor to make a gift;
sufficient delivery of the gift; and acceptance by the donee: McNamee v.
McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 24. Once these three
things happen, the gift is complete, property in the gift passes to the donee,
and the donor of the gift has no right to revoke it or take it back: Berdette
v. Berdette (1991), 3 O.R. (3d) 513 (C.A.), p. 520, leave to appeal to
S.C.C. refused, [1991] S.C.C.A. No. 306. The money was no longer the
appellant's money. Quite apart from the appellant's pleading that he had a
viable defence, defence counsel was never asked in cross-examination whether he
should have explored such a potential defence with the appellant. Defence
counsel did not fall below the reasonable standard required of counsel in this
regard.
67 Moreover, the issue of the knife and the manner
in which the appellant held it was thoroughly explored at the bail hearing and
the Gardiner hearing was subsequently waived. The recast version of the
facts on appeal, that the appellant was peeling vegetables and his mother
misunderstood his gesture with the knife is simply not credible and ignores the
threats the appellant made as well as his subsequent use of a cleaver in the
presence of his mother and his sister-in-law.
68 There is no credible or reliable evidence to
suggest that the appellant did not understand the nature of the charge against
him or the facts to which he was pleading guilty. The verdict is reliable.
·
(ii)
The process
was not unfair
69 Both the appellant and defence counsel swore
that a plea of guilty would not have been entered had they known the appellant
would be deported. Rather, the case would have gone to trial. As a result, the
appellant submits that the plea was not informed and he did not understand the
consequences of his plea.
70 In deciding whether the appellant understood the
consequences of his guilty plea, the Supreme Court of Canada's decision in the
oft-cited case of R. v. Lyon, [1987] 2 S.C.R. 309, is instructive. In Lyon,
the appellant, who was 16 years old at the time, elected to be tried by judge
alone and then pleaded guilty to breaking and entering a dwelling house, using
a weapon or imitation thereof in committing sexual assault, using a firearm
while committing an indictable offence, and stealing property worth in excess
of $200. Just before sentencing, the Crown told defence counsel that it might
bring a dangerous offender application. The sentencing hearing was adjourned.
The Crown brought its application, and the accused was found to be a dangerous
offender and sentenced to a period of indeterminate detention. The Court of
Appeal dismissed his appeal.
71 On appeal to the Supreme Court, one of the
arguments was whether, given the serious consequences of a dangerous offender
application, the Crown ought to have advised the appellant of its intention to
bring the application prior to his election and plea so as to enable him to
make an informed decision. The appellant argued that the Crown's failure to do
so violated his rights under s. 7 of the Charter. In dismissing this
argument La Forest J., on behalf of the majority, explained that in order for a
plea to be informed, the appellant needs to understand "the potential
consequences of a guilty plea", not the precise consequences of his plea
which may be difficult to predict. He states at paras. 103, and 106-107:
·
It seems, therefore, that the only
prejudice the appellant can claim to have suffered is that had he been
forewarned of the Crown's intention to make a Part XXI [dangerous offender]
application, he might have elected a trial by judge and jury rather than by
judge alone, or might have pleaded not guilty rather than guilty to the charges
against him. It seems to me, however, that there is a limit beyond which it
would be unseemly for courts to inquire into or 'go beyond' such decisions of
accused persons. For example, I do not think it would be proper to inquire into
whether and to what extent the absence of such notice impaired the ability of
the accused to plea bargain effectively, for "justice should not be, and
should not be seen to be, something that can be purchased at the bargaining
table". Nor do I think it proper to consider that an accused might elect a
trial by jury in the hope that a jury would be less inclined to convict in
circumstances where he or she was liable to indeterminate incarceration.
...
·
It seems to me to be difficult to
articulate precisely in what sense the liberty interests of the appellant were
infringed by the absence of notice earlier than is statutorily provided for. It
is nowhere alleged, here or in the courts below (where this issue was not even
addressed), that the appellant did not appreciate the potential
consequences of his plea; indeed, Part XXI itself can be seen to provide
notification that the dangerous offender provisions are invocable if
"serious personal injury offences" are committed by an accused. Nor
is it alleged, for example, that the accused was unfairly taken by surprise by
the application, that he was not represented by competent counsel, or that
counsel pressured him to plead guilty against his will, etc. ... Rather, the
complaint appears simply to be that the appellant did not know that the Crown
was actually contemplating making a Part XXI application. [Citations
omitted.]
72 In this case, the appellant was already subject
to deportation as a result of his prior plea and conviction on the charges of
sexual exploitation and sexual interference. He had a copy of the order staying
his deportation. He had had it read to him by his immigration counsel Mr.
Ramkissoon. He had been told that if he was convicted of an offence punishable
by imprisonment for ten years or more the stay order would be cancelled.
Although he may not have appreciated that robbery is an offence punishable by
imprisonment for ten years or more, he must be taken to know that robbery is a
serious offence. He also knew that one of the conditions of his stay order was
that he not receive a sentence of six months or more or the stay would be
cancelled and he could be subject to deportation. By instructing defence
counsel that he wished to plead guilty to the robbery charge, although he knew
the Crown would be seeking a sentence of more than six months, the appellant
chose to assume the risk that he would be deported.
73 In these circumstances, dissatisfaction with the
result is not a basis for setting aside the appellant's guilty plea.
Cancellation of the order staying his deportation and his subsequent
deportation was not an unfair surprise.
74 Accordingly, the plea was informed, and there
was no miscarriage of justice.
D. CONCLUSION
75 The appellant knew he was subject to
deportation. He knew that the stay of his deportation order would be cancelled
if he committed a further criminal offence which carries a penalty of ten years
or more or if he received a sentence of six months or more and that he could be
deported. In the circumstances, irrespective of whether the appellant's counsel
fell below the standard required of a criminal law defence counsel by not
advising the appellant of the immigration consequences of his plea, or, by not
following up with him if he referred him for immigration advice, the appellant
understood deportation was a potential consequence of his plea, the process was
not unfair, and there was no miscarriage of justice.
76 In the circumstances, I need not address the Charter
argument raised by the appellant respecting s. 606(1.2) of the Criminal Code.
77 I would dismiss the appeal.
K.M. WEILER
J.A.
M.H. TULLOCH J.A.:-- I agree.
K.M. van RENSBURG J.A.:-- I agree.
M.H. TULLOCH J.A.:-- I agree.
K.M. van RENSBURG J.A.:-- I agree.
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