Tuesday, April 26, 2016


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

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.
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:

·         The removal order in this appeal is stayed. This stay is made on the following conditions -- the appellant must: 


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


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.


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.


Not commit any criminal offences.


If charged with a criminal offence, immediately report that fact in writing to the Agency.


If convicted of a criminal offence, immediately report that fact in writing to the IAD.

* * *

·         [13] Keep the peace and be of good behaviour. 

·         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. 

·         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.
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? 

·         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.

M.E. SAUNDERS J.A.:-- I agree.
R. GOEPEL J.A.:-- I agree.

Tuesday, April 19, 2016


I was honored to chair and moderate a panel at the American Bar Association Section of International Law, "Till death do us part...or not? : international issues in marriage, divorce and custody". My sincere thanks to the panelists who did a superb job: Graeme Kirk, Jessica Sandberg, Jeremy Morley and Daniela Horvitz.

Friday, April 1, 2016


I was quoited in today's Globe and Mail article on Express Entry. http://www.theglobeandmail.com/news/national/express-entry-program-skewed-too-heavily-toward-in-demand-jobs-critics/article29488413/

March 31, 2016

Express Entry program skewed too heavily toward in-demand jobs: critics


A government report shows majority of invitees were already in the country as temporary residents

Almost 80 per cent of the people who were invited to apply for permanent residence through Express Entry were already in Canada, the government said in its year-end report on the new immigration system, released on Thursday.
Slightly more than 31,000 invitations were issued in 2015, a number that will grow in coming years as Express Entry becomes the main pathway for economic immigrants. The system was designed to improve how well immigrants do in the labour market by better matching them with employers, but some say that the results from its first years show it is too skewed toward jobs in demand right now.
"You have to look at some of the human capital and there is not enough of that going on," said Stephen Green, a Toronto-based immigration lawyer.
Express Entry awards people 600 points in its ranking system if their employer has applied for a labour market impact assessment (LMIA), showing they tried to find a qualified Canadian for the job. Employers in many industries, from high tech to business, have said the process is slow and approval rates are low, leaving them increasingly unable to recruit much-needed workers from abroad.
"I don't believe that our selection of economic immigrants should be weighed so heavily on a labour-market test," Mr. Green said.
A review of Express Entry, Citizenship and Immigration Canada said in a statement, will look at all aspects of the program.
"The review will include ... job offers, the LMIA requirement, and how Express Entry can be used to better support former international students and family reunification," the statement said.
Any review of the system must give priority to labour market needs, Michelle Rempel, the Conservative immigration critic, said in a statement.
"Unfortunately, the current Liberal government plans to slash key streams of economic immigration, including 15,000 spots in the Federal Skilled Workers Program, 8,000 cuts to the Caregiver immigration class and 800 cuts to the Business Class stream," the statement said.
Express Entry is to become the main entry route for economic immigrants, but the report shows that last year it brought in only a fifth of this group. Most of those who were successful are in skilled jobs, with 40 per cent working as financial and investment analysts and 8 per cent in tech and design. But 16 per cent are cooks and supervisors in the food industry and 2 per cent are retail managers.
Many of the 80 per cent who were already in Canada were here as temporary residents, including temporary foreign workers, intracompany transfers and international students.
Over all, very few of all those who apply succeed. The new report shows that 95 per cent of 200,000 applicants have fewer than 450 points. No one with fewer than that number has been approved so far.
"We should stop the pretense that anyone can fill out a profile, because they are clogging the system," said Sergio Karas, a veteran immigration lawyer.
Mr. Karas says a more honest system would openly give priority to workers already in Canada, set aside a number of spots for international students and only then consider applications from elsewhere.
"Why would you pick someone who lives elsewhere, who has no experience, when you have people right here," he said.
Still, the low acceptance rate has led to frustration.
"If you are sitting in India and China and are a high-skilled person, you say 'my chances of being selected are pretty small,'" Mr. Green said.
International students in particular have said the system has closed the door to settling in Canada. Under a prior system, they were almost certain to be able to stay after graduation.
Under Express Entry, the report shows, less than 1 per cent of 8,000 people who had studied in Canada had a sufficient number of points to qualify.