R. v. Clarke, 2022 ONCA 883

Court of Appeal for Ontario

Date: 2022-12-15 Docket: C69501

Judges: Lauwers, Huscroft and Miller JJ.A.

Between:

His Majesty the King Respondent

and

Baldwin Clarke Appellant

Counsel: Kenneth Jim, for the appellant Mark Luimes, for the respondent

Heard and released orally: December 13, 2022

On appeal from the convictions entered on December 4, 2020 and the sentence imposed on December 4, 2020 by Justice John F. Adamson of the Ontario Court of Justice.

Reasons for Decision

[1]

Background

In December 2020, the appellant pleaded guilty to assault, robbery, possession of weapons dangerous, and breach of recognizance. A joint submission on sentence proposed incarceration of 120 days less pre-sentence custody for the assault and robbery and 90 days less pre-sentence custody for the other offences. He received a sentence of 180 days for the assault and robbery and 135 days for the other offences. The sentences amounted to time served.

2The convictions were not the appellant’s first. Nearly 10 years earlier, in 2011, the appellant pleaded guilty to break and enter, and received a sentence of 38 days of incarceration and two years probation.

3The appellant is not a Canadian citizen. As a result of his 2011 conviction, the appellant was found to be inadmissible to Canada for reasons of serious criminality. The Immigration Division of the Immigration and Refugee Board issued an order removing him to St. Vincent and the Grenadines. The appellant appealed that order and in 2017 was granted permission to stay in Canada on compassionate and humanitarian grounds.

4Three years later, when the appellant pleaded guilty to the 2020 charges, the appellant did not bring his immigration status to anyone’s attention. To the contrary, the appellant’s lawyer erroneously advised the presiding judge that the appellant was a Canadian citizen, and the appellant did not correct him.

5In January 2021, the appellant received a letter from Canada Border Services Agency advising him that as a result of his 2020 convictions, he was inadmissible to Canada and could receive a deportation notice.

[6]

Conviction Appeal

On appeal, the appellant seeks to set aside the guilty plea on the basis that it was uninformed. He was unaware, he argues, of the potential immigration consequences of his guilty plea. He had thought there would be no immigration consequences as long as his sentence was less than 6 months. Had he known that the nature of the offences to which he was pleading guilty would place his immigration status in jeopardy, he would have chosen instead to proceed to trial on all counts.

7We are not persuaded that the appellant was unaware of the potential immigration consequences at the time of his guilty plea. Given his experience with the immigration system from 2011 to 2017, it is simply unbelievable that he would not have known that there were potential immigration consequences from a conviction. He was informed in a Canada Border Services Agency letter in 2011 that serious criminality would render him inadmissible. He either understood the potential consequences of the guilty plea or was wilfully blind and chose to make no inquiries. Either way, there is no basis to set aside the guilty plea. The fresh evidence does not disclose any arguable defence. The appellant is simply hopeful that on a retrial the Crown would agree to substitute lesser charges for the charges to which he pleaded guilty. There is no reason to believe this to be the case. We dismiss the appeal against conviction.

[8]

Sentence Appeal

With respect to the sentence appeal, we accept the Crown’s concession that the sentence ought to be varied. We vary the sentence to give effect to the joint submission that had been made at the time of the guilty plea. That is, 120 days less time served for the assault and robbery and 90 days less time served for the other offences.