TIMING OF CITIZENSHIP GRANT AT ISSUE IN UNUSUAL CASE

This is an unusual case: the applicant was granted citizenship on the same day of his trial for sexual assault, and convicted soon thereafter.  The central question  in the case is whether the authorities can issue an IRPA Section 44  report after the person because a citizen The answer from the court is clear: the report was correctly issued because the citizenship was granted in error while the applicant was charged with a crime, and therefore he should not have been sworn as a citizen.

Berisha v. Canada (Attorney General)

Between
Shaqe Berisha, Applicant, and
Attorney General of Canada, the Minister
of Citizenship and Immigration and
the Minister of Public Safety and Emergency
Preparedness, Respondents
And between
Shaqe Berisha, Applicant, and
Attorney General of Canada and the Minister
of Public Safety and Emergency
Preparedness, Respondents
And between
Shaqe Berisha, Applicant, and
Attorney General of Canada and the Minister
of Public Safety and Emergency
Preparedness, Respondents

[2016] F.C.J. No. 726

2016 FC 755

Dockets: IMM-3874-15, IMM-3872-15, IMM-3873-15

 Federal Court
Saskatoon, Saskatchewan

Diner J.

Heard: June 15, 2016.
Judgment: July 5, 2016.

(40 paras.)

---

JUDGMENT AND REASONS

1     DINER J.:-- This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c-27 [the Act]. The Applicant seeks judicial review of three interrelated decisions:

·         A. 

A report under subsection 44(1) of the Act [the Report] dated February 16, 2015 and made by an Inland Enforcement Officer [the Officer] at Canada Border Services Agency; 

·         B. 

A referral under subsection 44(2) of the Act [the Referral] dated February 27, 2015 and made by a Delegate of the Minister [the Delegate] at Canada Border Services Agency; 

·         C. 

A deportation order [the Order] dated August 7, 2015 and issued by a member [the Member] of the Immigration Division of the Immigration and Refugee Board of Canada. 

2     The three matters, originally filed separately, were consolidated into this judicial review.

I. Background

3     The Applicant was born in Kosovo in 1976 and arrived in Canada as a refugee on October 31, 2005. On March 16, 2011, the Applicant made an application for Canadian citizenship.

4     On June 13, 2012, the Applicant was charged with sexual assault pursuant to section 271 of the Criminal Code, RSC 1985, c C-46. Sexual assault is an indictable offence and, as per subsection 22(1) of the Citizenship Act, RSC 1985, c C-29 as it read at the relevant time, "a person shall not be granted citizenship ... or take the oath of citizenship ... while the person is charged with, on trial for or subject to or a party to an appeal relating to ... an indictable offence under any Act of Parliament".

5     On March 11, 2013, the Applicant wrote his citizenship test. At that time, he signed a form declaring that he was not prohibited from taking the oath of citizenship. On May 16, 2013, he appeared before a Citizenship Judge, signing another form once again declaring that he was not prohibited from taking the oath.

6     On September 17, 2013, the same day the Applicant's trial for the sexual assault charge was scheduled (but adjourned), the Applicant took his oath of citizenship and was issued a certificate of citizenship. Citizenship and Immigration Canada [CIC] was only informed of the charge against the Applicant after it had administered the citizenship ceremony.

7     On October 11, 2013, the Applicant was convicted of sexual assault.

8     On November 7, 2013, the Applicant received a letter from the Registrar of Canadian Citizenship. The Registrar had decided to cancel his certificate of citizenship since the Applicant "had been charged with an indictable offence and [was] prohibited from taking the Oath". The Applicant did not challenge this citizenship decision.

9     On July 4, 2014, the Applicant was sentenced to three years' imprisonment.

10     On February 5, 2015, the Applicant received a letter from the Officer advising him that an inadmissibility report might be issued against him under subsection 44(1) of the Act based on grounds of serious criminality (as per paragraph 36(1)(a) of the Act). The letter invited the Applicant to make submissions in response and he did so.

11     The Officer issued the Report on February 16, 2015, finding the Applicant inadmissible pursuant to paragraph 36(1)(a) based on the following information:

·         THAT: SHAQE BERISHA 

·         - 

IS NOT A CANADIAN CITIZEN 

·         - 

BECAME A PERMANENT RESIDENT ON 31OCT2005 

·         - 

WAS CONVICTED ON 11OCT2013 AT MOOSE JAW, SK OF SEXUAL ASSAULT CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA 

·         - 

WAS SENTENCED ON 04JUL2014 TO THREE YEARS IMPRISONMENT 

·         - 

SEXUAL ASSAULT IS AN INDICTABLE OFFENCE AND IF CONVICTED THE MAXIMUM PUNISHMENT IS A TERM OF IMPRISONMENT NOT EXCEEDING TEN YEARS 

·         (Certified Tribunal Record for File IMM-3874-15 at 16 [CTR]) 

12     The Officer also prepared a referral letter to accompany the Report that provided more detail about the Applicant's circumstances and submissions. In that letter, the Officer recommended that the file be referred for an admissibility hearing and that the Applicant be issued a deportation order:

·         This is Mr. Berisha's only conviction however it was from a crime which was being committed throughout a long period of time and it was a violent crime which will have a big impact on the victim. He also shows he can not [sic] be trusted as he misrepresented on his citizenship papers as he failed to declare his outstanding charges on numerous occasions. Mr. Berisha will not have appeal rights however he is a convention refugee and if a deportation order is issued CBSA still requires a danger certificate to remove the subject from Canada. 

·         (CTR at 10) 

13     The Officer also noted that he was advised that the Applicant was not a Canadian citizen.

14     On February 27, 2015, the Delegate referred the Report to the Immigration Division for an admissibility hearing. In the Referral, the Delegate agreed with the Officer's recommendations as laid out in the Report and the referral letter.

15     On August 7, 2015, after an admissibility hearing, the Member issued the Order. In reasons issued orally at the hearing, the Member concluded that the Applicant was not a citizen of Canada, had been convicted of sexual assault under section 271 of the Criminal Code, and was therefore inadmissible. This in turn, the Member concluded, required the issuance of a Deportation Order.

II. Issues

16     The Applicant raises three issues:

·         A. 

Did the Officer err in issuing the Report when the Applicant had a certificate of citizenship at the time of his conviction? 

·         B. 

Did the Officer or the Delegate err in failing to provide adequate reasons? 

·         C. 

Did the Officer or the Delegate err in failing to provide the Applicant an opportunity to make submissions? 

III. Analysis

·         A. 

Standard of Review

17     The question of whether the Officer could have issued the Report in the first place depends on a finding of fact: whether the Applicant was, or was not, a citizen at the time of the conviction. As such, it is reviewable on a reasonableness standard (Faci v Canada (Public Safety and Emergency Preparedness), 2011 FC 693 at para 17). This Court will not intervene if the decision as a whole is justified, transparent, and intelligible, and falls within a range of acceptable, defensible outcomes (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).

18     Similarly, the question of whether the Officer (in issuing the Report) or the Delegate (in issuing the Referral) provided adequate reasons is reviewable on a reasonableness standard (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 11 [Newfoundland Nurses]). Adequacy of reasons is not a stand-alone basis of review. Instead, it must be considered "together with the outcome" and "if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met" (Newfoundland Nurses at paras 14-16).

19     Finally, the question of whether the Applicant was given sufficient opportunity by either the Officer or the Delegate to make submissions is an issue of procedural fairness and is thus reviewable on a correctness standard (Finta v Canada (Public Safety and Emergency Preparedness), 2012 FC 1127 at para 30 [Finta]).

·         B. 

Did the Officer err in issuing the Report?

20     The Applicant argues that the Officer erred in issuing the Report since, at the time of the conviction, the Applicant had been issued a certificate of citizenship. It was only after the conviction that the certificate of citizenship was revoked. Since there is nothing in the Act that says that a citizen can be the subject of a report under subsection 44(1), and since the letter from the Registrar does not state that the cancellation would have a retroactive effect, the Applicant argues that he cannot properly be subject to an inadmissibility report, a referral under subsection 44(2) of the Act, or a deportation order. The Applicant further explained at the hearing that a statutory interpretation of that section could only lead to one conclusion: that only the Applicant's status at the time of the conviction matters. If the legislators had wanted to include citizens who subsequently lost their citizenship from that clause, they would have explicitly stated so.

21     The Respondent accepts that the Applicant had been issued the certificate of citizenship prior to his conviction, but argues that it was of no effect at the time of his conviction because he had not met the requirements of the Act when he received it. The certificate of citizenship was issued on September 17, 2013; at that point, the Applicant had declared, wrongly, that he was not barred from taking the oath. In reality, he was barred because of the June 13, 2012 charge. As a result, the Applicant was never a citizen in the first place and the Officer's conclusion -- that he was a permanent resident and thus could be subject to an inadmissibility finding -- was entirely reasonable.

22     I agree with the Respondent that the Officer did not err in issuing the Report. The language of paragraph 22(1)(b) of the Citizenship Act is clear that a person shall not be granted citizenship or take the oath of citizenship if charged with an indictable offence:

·         22 (1) Despite anything in this Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship 

·         (b) 

while the person is charged with, on trial for or subject to or a party to an appeal relating to an offence under subsection 29(2) or (3) or an indictable offence under any Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act; 

23     Furthermore, subsection 12(3) of the Citizenship Act states that:

·         12 (3) A certificate issued pursuant to this section does not take effect until the person to whom it is issued has complied with the requirements of this Act and the regulations respecting the oath of citizenship. 

24     In other words, if a certificate is issued but the recipient has not complied with the requirements of the Citizenship Act, then the certificate does not take effect. Therefore, it cannot be said that the certificate ever conferred any status whatsoever. As noted by Justice Russell in Afzal v Canada (Citizenship and Immigration), 2014 FC 1028 at para 25,"[s]ubsection 12(3) provides a legislative foundation for the cancellation of a certificate issued in error. A certificate, even if issued, is of no effect where the conditions precedent to citizenship have not been met".

25     One such condition precedent, as is plainly described in paragraph 22(1)(b) of the Citizenship Act, is that the recipient of the certificate not take the oath of citizenship while at the same time be charged with an indictable offence -- such as sexual assault under section 271 of the Code. The Applicant was so charged at the time he took the oath of citizenship and received the certificate of citizenship. He thus had not met one of the conditions precedents to citizenship. Indeed, the evidence on file from CIC indicates that it never considered the Applicant to have had citizenship: in response to inquiries made by the Officer, CIC responded that "with the information provided, we have searched our records and have found no indication that this person has been granted or issued a certificate of Canadian Citizenship or naturalization" (CTR at 018).

26     I can find no error in the Officer's decision to issue the Report when he did. The Applicant's certificate of citizenship was of no effect and thus he was a permanent resident at the time the Report was issued.

27     As to the wording of the statute, subsection 44(1) of the Act reads as follows:

·         44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. 

·         (Emphasis added) 

28     The Applicant, who was only a permanent resident at the time of the Report, met this criterion due to paragraph 36(1)(a) of the Act, the relevant parts of which are underlined below:

·         36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for 

·         (a) 

having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; 

29     According to the Applicant, the above provisions require that an officer look only at permanent resident or foreign national's status at the exact moment in time when the conviction occurs. I disagree and do not find that a plain reading of the statute means anything other than that which the Officer, Delegate, and Member interpreted it to mean -- that he was a permanent resident and not a citizen at the time each of their decisions were taken.

30     The Applicant argues that had status during about six weeks in the fall of 2013 and one cannot retroactively take that status away. Again, I disagree. As already explained above, in light of the relevant provisions of the Citizenship Act then in force, the Applicant never obtained status even though he obtained a certificate. That certificate was obtained through misrepresentation. Even if the misrepresentation was innocent as the Applicant claims and he misunderstood the two forms in which he attested to having no outstanding criminal charges (which he clearly knew about, including adjourning court when it conflicted with his citizenship ceremony), such a misunderstanding does not confer status upon him. As discussed above, the certificate issued to him never took effect because he never complied with the requirements of the Act respecting the oath. And even if I am wrong and he had status for those six weeks, I do not agree that one can only look at his status at the moment the conviction occurred. This does not accord with either a plain or contextual reading of the statute and the Applicant could not point to any precedent supporting his interpretation of the legislation.

·         C. 

Did the Officer and the Delegate provide adequate reasons?

31     The Applicant argues that the Officer and the Delegate (who adopted and relied on the Officer's reasons as expressed in the Report and the Officer's referral letter) failed to provide adequate reasons for their respective decisions, but rather only provided factual statements along with a vague and unclear accompanying letter full of broad conclusive statements lacking evidentiary support.

32     The Applicant further argues that there was insufficient evidence to conclude that he was not "trustworthy" as a result of his citizenship history, and in any event, trustworthiness was not a relevant or appropriate factor for the Officer and the Delegate to consider. As such, the Applicant submits that their reasons are inadequate and lack a coherent and proper analysis of the Applicant's circumstances.

33     I find, to the contrary, that the Report provided more than adequate reasons. The Officer laid out the factual basis for the decision to report: that the Applicant was not a Canadian citizen and that the Applicant was convicted of sexual assault, an indictable offence. These facts alone were sufficient to make the recommendation and referral and served as the foundation for all three decisions. They were certainly sufficiently clear for the Applicant to address them at the admissibility hearing. As noted by Justice Zinn in his discussion on adequacy of reasons in the inadmissibility report context, "reasons are required, given the importance of the decision to the person being considered for removal. However, that is not to say that the reasons that are given must be of the detail required in quasi-judicial or judicial proceedings... the test is whether they allow the person affected to understand why the decision was made and allow the reviewing court to assess the validity of the decision" (Iamkhong v Canada (Public Safety and Emergency Preparedness), 2008 FC 1349 at paras 31-32 [Iamkhong]; see also Richter v Canada (Minister of Citizenship and Immigration), 2008 FC 806, at para 18, aff'd 2009 FCA 73 [Richter]).

34     I also disagree with the Applicant's suggestion that the reasons provided in the Officer's letter of referral were vague and drew conclusions about the history of his citizenship application without sufficient evidence. The referral letter provides a detailed timeline of the Applicant's interactions with both immigration and law enforcement officials and clearly identifies the evidence upon which the Officer reaches his decision to report. The Officer's assessment that the Applicant could not be trusted was based on the fact that he had more than once failed to disclose the charge of sexual assault when required.

35     Finally, with respect to the appropriateness of taking "trustworthiness" into consideration, the case law states that, while exercising a very limited discretion, both the Officer and the Delegate may consider some other factors (Cha v Canada (Minister of Citizenship and Immigration), 2006 FCA 126 at para 37). In Fabbiano v Canada (Minister of Citizenship and Immigration), 2014 FC 1219, for example, Justice O'Reilly wrote:

·         [15] The role of the Minister's delegate is to consider the evidence relevant to admissibility, and to exercise his or her discretion in the circumstances, which may include H&C factors (Faci v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 693, at para 31). The latter are more significant in cases involving persons, like Mr Fabbiano, who are long-term permanent residents of Canada. According to departmental guidelines, a delegate should consider the person's age, the duration of his or her residence in Canada, family circumstances, conditions in the person's country of origin, the degree of the person's establishment in Canada, the person's criminal history, and his or her attitude (see Citizenship and Immigration Canada, "ENF 6 - Review of reports under A44(1)" at 19.2). 

36     In short, I see nothing inappropriate in the Officer and the Delegate's consideration of the Applicant's previous history of non-compliance with immigration authorities. That said, even if it were unreasonable to consider the Applicant's trustworthiness, I find that the Officer's comment was clearly superfluous obiter. The determinative findings in the matter were the Applicant's status as a permanent resident and his conviction for sexual assault. These findings offered sufficient grounds for the Report, the Referral, and ultimately the Order.

·         D. 

Did the Officer and the Delegate err in not giving the Applicant an opportunity to make submissions?

37     The Applicant argues that he was not permitted to explain the circumstances around his certificate of citizenship and its revocation or to address any issues of trustworthiness. Since these were relevant matters for the Officer, he should have been afforded the opportunity, either orally or in writing, to make submissions on these points.

38     Individuals who are subject to section 44 proceedings are owed a duty of procedural fairness. However, as was noted recently in Huang v Canada (Public Safety and Emergency Preparedness), 2015 FC 28 at para 84, the case law establishes a relaxed duty of fairness in the context of subsection 44(1) and 44(2) decisions. This duty confers two rights: the right to make submissions (either written or oral) and the right to obtain a copy of the reports (see also Richter at para 18; Finta at para 35; Iamkhong at 31).

39     Here, the Applicant was afforded the opportunity to make submissions before the Report was issued and was given a copy of the Officer's reasons in order to prepare for the inadmissibility hearing. There is no right to be informed of the specific factors that the Officer or the Delegate might consider, especially when the Applicant takes issue with parts of the assessment based on information he already had (Tran v Canada (Public Safety and Emergency Preparedness), 2009 FC 1078 at para 19). Here, the Applicant knew that his certificate of citizenship had been revoked and knew that this was because he had not provided proper disclosure of his pending sexual assault trial. In any event, as already pointed out above, the comments on trustworthiness were superfluous and the equivalent of obiter.

IV. Conclusion

40     In light of all of the above, this application for judicial review is dismissed. No questions are certified and no costs are ordered.

JUDGMENT

THIS COURT'S JUDGMENT is that:

·         1. 

This application for judicial review is dismissed; 

·         2. 

No questions are certified; and 

·         3. 

No costs are ordered. 

DINER J.

ONTARIO COURT OF APPEAL REFUSES TO LOWER SENTENCE FOR ROBBERY AND EXTORTION BASED ON IMMIGRATION CONSEQUENCES

In a very thorough and well reasoned judgement, the Ontario Court of Appeal refused to lower the sentence imposed on a robber with multiple convictions who argued that he was ignorant of his potential deportation even though he was adequately warned by the Immigration Appeal Division. The convicted blamed his lawyer for not advising him appropriately, an argument that the court rejected.

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

[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.

(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.

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:

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:

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.