Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20200528 DOCKET: C64420

Strathy C.J.O., Tulloch and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Garth Davis Appellant

Counsel: Howard Rubel, for the appellant Vanita Goela, for the respondent

Heard: In Writing

On appeal from the conviction entered on November 2, 2016 by Justice Michael Harpur of the Ontario Court of Justice.

Reasons for Decision

A. Introduction

[1] The appellant is a permanent resident and has lived in Canada for over 21 years. A deportation order was issued against him on May 29, 2007, due to prior criminal convictions. However, the Immigration Appeal Division of the Immigration and Refugee Board (“IAD”) granted a stay of the order based on humanitarian and compassionate grounds. The IAD warned the appellant that further convictions for specific types of criminal offences would lift the stay and subject him to removal from Canada.

[2] In April of 2014, the appellant was charged with 33 offences that included drug offences and the unauthorized use of credit card data. The appellant retained counsel and he elected to contest the charges. He elected a trial in Superior Court by judge and jury and requested a preliminary hearing.

[3] On November 2, 2016, the seventh day of his preliminary hearing, the Crown and the appellant’s trial counsel concluded plea negotiations. They agreed to propose a joint submission as to sentence if the appellant pleaded guilty to three offences. It is not disputed that the joint submission, a non-custodial sentence of probation with no reporting conditions, was lenient. The appellant decided to re-elect to be tried in the Ontario Court of Justice and pleaded guilty.

[4] Prior to entering the plea, the trial judge conducted a plea inquiry, as required by s. 606(1.1) of the Criminal Code, R.S.C., 1985, c. C-46. During the inquiry, the appellant advised the trial judge that: (1) he was voluntarily entering pleas of guilty; (2) by pleading guilty, he was aware that he was giving up his right to a trial; and (3) he was aware that the trial judge was not bound by any joint submission as to sentence advanced by counsel. The trial judge then arraigned the appellant and he pleaded guilty to two drug offences (contrary to ss. 4 and 5 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19) and one count of unauthorized use of credit card data (contrary to s. 342(3) of the Criminal Code).

[5] On December 7, 2016, the appellant was sentenced to a period of probation for one year with conditions.

[6] The appellant now seeks to introduce fresh evidence to support his claims that his guilty plea was uninformed and that he received ineffective assistance from his counsel, amounting to a miscarriage of justice. The fresh evidence consists of the appellant’s affidavit and accompanying cross-examination, affidavits from defence and Crown trial counsel, and a letter of opinion from the appellant’s immigration counsel.

[7] According to the appellant, prior to entering his pleas of guilty, trial counsel told him that the resulting convictions and the proposed sentence would not lead to any immigration consequences. This advice played a significant role in his decision to plead guilty. However, on August 30, 2017, he was summoned to a hearing before the IAD. During that hearing, he discovered that the stay of deportation had been lifted because of the convictions, and he was now subject to removal from Canada.

[8] The respondent does not oppose the introduction of the fresh evidence. However, the respondent contends that the appeal should be dismissed because the pleas of guilty were voluntary, informed, and unequivocal, and the appellant was fully aware that conviction of specific offences would affect his immigration status.

[9] We would admit the fresh evidence because it is in the interests of justice to do so: Criminal Code, s. 683(1); R. v. Sangs, 2017 ONCA 683, at para. 7. After reviewing the fresh evidence, we are persuaded that the appellant was provided with erroneous information about the immigration consequences that would occur if he pleaded guilty. As a result of the convictions, the appellant has suffered prejudice. Therefore, we are allowing the appeal, setting aside the guilty pleas, and ordering a new trial on all counts of the information.

B. Analysis

[10] A guilty plea must be voluntary, unequivocal, and informed: R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519. A plea is an informed one if the accused is aware of the effects and consequences of the plea. In this case, there are collateral consequences that bear upon serious legal interests of the accused, such as deportation: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 4; R. v. Girn, 2019 ONCA 202, 373 C.C.C. (3d) 139, at para. 52.

[11] To set aside his plea, the appellant must establish that: (i) he was unaware of a legally relevant consequence of the plea at the time of pleading guilty; and (ii) he suffered subjective prejudice: Girn, at paras. 65-66, citing Wong, at paras. 6, 9, and 19.

[12] In his affidavit and cross-examination, the appellant does not deny that he was aware that certain types of convictions would put his immigration status in jeopardy when he was charged. According to the appellant, he informed trial counsel that he was highly concerned about potential immigration consequences at the beginning of the retainer and throughout the proceedings. However, trial counsel assured him there was “nothing to worry about” because they “could beat the charges”. The appellant further asserts that, before he decided to plead guilty on November 2, 2016, trial counsel erroneously advised him that pleading guilty would not affect his immigration status. We accept this assertion.

[13] Trial counsel, in his affidavit, acknowledges that the appellant raised his immigration status with him at the outset of the retainer, and that the appellant was concerned about the effect the charges could have on that status.

[14] According to trial counsel, on November 2, 2016, the trial Crown took it upon herself to research the issue of immigration consequences. Trial counsel states that the trial Crown explained to him that the proposed sentence would not lead to any immigration consequences for the appellant, and since he did not practice immigration law, he accepted this representation. Trial counsel states that the appellant proceeded to plead guilty based on a misapprehension that there would be no immigration consequences.

[15] The trial Crown denies that she researched any immigration issues or discussed immigration consequences with trial counsel.

[16] We need not resolve this conflict in the evidence because, regardless of the source of the erroneous information, the evidence of trial counsel is that the appellant was under the misapprehension that he would suffer no immigration consequences by pleading guilty.

[17] We do not accept the respondent’s argument that the appellant has provided inconsistent evidence about whether trial counsel advised him about immigration consequences. In his affidavit, the appellant stated that trial counsel advised him that pleading guilty would not impact his immigration status. The appellant was thoroughly cross-examined by the respondent on this point. A fair reading of his cross-examination discloses that he only decided to plead guilty after trial counsel advised him, on November 2, 2016, that there would be no immigration consequences.

[18] The consequences of the appellant’s pleas of guilty are extremely serious. The appellant has received an opinion from his immigration lawyer that, as a result of the credit card data conviction, his stay of deportation will be cancelled by operation of law, his appeal will be terminated, and he will be removed from Canada.

[19] In summary, on the basis of the fresh evidence, we are satisfied that trial counsel told the appellant that there would be no immigration consequences if he pleaded guilty. The appellant relied on this advice in coming to the decision to plead guilty. The advice was wrong. In fact, the opposite is true. We are satisfied that the appellant was not aware of the collateral consequences when he entered his pleas of guilty and the pleas were not informed.

[20] We also accept that the appellant has demonstrated subjective prejudice. The appellant contends that, had he known the information he was being given was erroneous, he would have continued with his preliminary hearing and proceeded to trial. We must assess the veracity of his statement with objective contemporaneous evidence. In our view, the appellant’s claim is credible.

[21] First, we note that the appellant has been living in Canada for at least 21 years and has three children. During the sentencing hearing, the trial judge was told that one of the children was living with him. It is clear that he has an interest in remaining in Canada. It is highly unlikely that he would have pleaded guilty knowing he would be deported.

[22] Second, his pleas of guilty occurred in the middle of a preliminary hearing, a proceeding designed to test the strength of the Crown’s case. A Crown witness was scheduled to provide evidence on the day he pleaded guilty. Although we have no evidence as to the strength of the Crown’s case against the appellant, the timing of the plea suggests that, had he known that he would be removed from Canada by pleading guilty, he likely would not have done so. Instead, he likely would have continued with the preliminary hearing, and he may have taken the matter to trial in the Superior Court, if the preliminary hearing judge had committed him for trial.

[23] On the basis of the fresh evidence, we are satisfied that the appellant’s guilty pleas should be set aside because the appellant was uninformed.

[24] In light of our conclusion, it is not necessary to deal with the appellant’s second argument that his trial counsel provided ineffective assistance, resulting in a miscarriage of justice. However, we do have serious reservations about trial counsel’s conduct, given his position that he relied on the Crown’s research about the appellant’s immigration consequences in assisting his client with the pleas of guilty. Neither the trial counsel or the trial Crown were cross-examined on their affidavits filed as fresh evidence on this appeal, and we do not have a sufficient record to make definitive findings on this issue. That said, assuming trial counsel’s affidavit is accurate, we are troubled by his position. It is trial counsel who had a duty to the appellant, and it was his responsibility to ensure the accuracy of any advice he gave to his client about immigration consequences.

[25] In Wong, the Supreme Court of Canada recognized that it is a well-established matter of practice that “defence counsel should inquire into a client’s immigration status and advise the client of the immigration consequences of a guilty plea”: at para. 73. Similarly, in R. v. Shiwprashad, 2015 ONCA 577, 328 C.C.C. (3d) 191, at para. 64, leave to appeal refused, [2017] S.C.C.A. No. 40, this court reviewed literature that suggests that if there are potential immigration issues, counsel should conduct their own research or discuss the immigration consequences of matters with a member of the immigration bar. Trial counsel’s own affidavit reveals that this was not done.

[26] Finally, during the plea inquiry, the trial judge did not ask the appellant if he was aware of any collateral consequences that could occur if he pleaded guilty, such as immigration. In fairness to the trial judge, he did not have the benefit of the Supreme Court of Canada’s decision in Wong or this court’s decision in Girn. However, it is now beyond dispute that awareness of collateral immigration consequences forms part of an informed guilty plea: Wong, at para. 4; Girn, at para. 51. Although there is no standard format for conducting a plea inquiry, in our view, it is good practice for trial judges to canvass with the accused during a plea inquiry if there are any potential immigration issues. By doing that, trial judges can direct the accused and counsel to turn their minds to the issue, and it will likely assist the judge in determining whether the plea of guilty is informed.

C. Disposition

[27] For these reasons, we admit the fresh evidence, set aside the appellant’s pleas of guilty and consequent convictions, and order a new trial on all counts.

“G.R. Strathy C.J.O.”

“M. Tulloch J.A.”

“S. Coroza J.A.”