COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Aujla, 2015 ONCA 325
DATE: 20150508
DOCKET: M44961
Pardu J.A. (In Chambers)
BETWEEN
Her Majesty the Queen
Respondent
and
Gurpreet Aujla
Applicant
Cecilia Fearon-Forbes, for the applicant
Brian McNeely, for the respondent
Heard: May 4, 2015
On a motion to extend the time to appeal
ENDORSEMENT
[1] The applicant moves for an order extending the time to appeal from convictions entered on March 31, 2014 following guilty pleas to mischief over $5,000, theft under $5,000 and breach of probation.
[2] The applicant broke into a vehicle and stole a cellphone. He was caught red handed by the owner and held until police arrived. He was sentenced to 29 days’ jail on top of the 46 days of pre-plea custody and placed on probation for 12 months.
[3] The applicant, who is a permanent resident of Canada, says his lawyer did not advise him of the immigration consequences associated with his plea. His lawyer apparently confirms that absence of advice.
[4] As a result of these convictions, in January 2015 the applicant received a letter from the Canada Border Services Agency (“CBSA”) advising him that he would be subject to an admissibility hearing under s. 44(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), to determine whether he was a person described in s. 36(1)(a) of that act. Section 36(1)(a) provides that regardless of the actual sentence imposed, a conviction for an offence punishable by a maximum sentence of 10 years or more renders a permanent resident or a foreign national “inadmissible on grounds of serious criminality”. A conviction for mischief over $5,000 falls within the scope of s. 36(1)(a).
[5] The applicant has filed an opinion from an immigration lawyer advising that in light of the applicant’s conviction for mischief over $5,000, this hearing would result in a deportation order by the Immigration Division of the Immigration and Refugee Board. The applicant would have the right to appeal the deportation order to the Immigration Appeal Division, where his appeal could be allowed, dismissed or stayed.
[6] Although a permanent resident loses the right to appeal to the Immigration Appeal Division if a sentence of six months’ jail or more is imposed, there is a right of appeal where a lesser sentence is imposed.
[7] Section 67(1) of the IRPA provides:
- (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,
(a) the decision appealed is wrong in law or fact or mixed law and fact;
(b) a principle of natural justice has not been observed; or
(c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
[8] To stay a removal order, the Immigration Appeal Division must be satisfied that “sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case”: IRPA, s. 68(1).
[9] If the Immigration Appeal Division has previously stayed a removal order, but the permanent resident is subsequently convicted of another offence carrying a maximum penalty of 10 years or more, the stay is “cancelled by operation of law and the appeal is terminated”: IRPA, s. 68(4).
[10] The applicant also says that he suffers from a serious mental illness which has required hospitalization both before and after he received the letter from the CBSA in January 2015. He says this has affected his ability to pursue the application for an extension of time to appeal.
[11] The applicant is now 27 years old. He became a permanent resident when he was 12 years old. He has accumulated a significant criminal record with more than 20 convictions dating back to 2008, including impaired driving, failure to remain at the scene of an accident, obstructing police, theft under $5,000, possession of a controlled substance, assault, assault with a weapon, mischief and theft under $5,000.
[12] In September 2011 he was convicted of possession of property obtained by crime, having a value over $5,000. This offence carries a maximum penalty of 10 years and thus falls within the scope of s. 36(1)(a) of the IRPA. He told the CBSA he was driving in a stolen vehicle and got into an accident. He explained that he fled from the scene of the accident because he was a prohibited driver who was driving a stolen vehicle. The CBSA decided not to refer him to an admissibility hearing as the reportable offence was a property-related offence not involving violence or drugs. He was given a warning letter and counseled in person by a CBSA border services officer about the consequences of any further criminal activity.
[13] It appears that the immigration officials were unaware of his March 2011 convictions for assault with a weapon and criminal harassment, which also rendered him subject to a deportation order under s. 36(1)(a) of the IRPA. The Crown argues that as a result of these earlier convictions, the applicant may still be deported even if the mischief conviction is eventually set aside. There is no way of evaluating whether the CBSA will now take any steps related to those convictions.
[14] There is no evidence from the applicant that he was not, in general, aware that conviction for a criminal offence could result in a deportation order. It seems likely that he had this general awareness, given his meeting with the border services officer in 2011.
[15] As observed in R. v. R.T. (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at para. 14:
To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed, that is the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 at p.371, 37 C.C.C. (3d) 1 at p. 52; Law Reform Commission of Canada Working Paper No. 63, “Double Jeopardy Pleas and Verdicts” (1991) at p. 30.
[16] Here, there is no dispute that the applicant’s pleas were voluntary and unequivocal. Despite his general awareness of potential immigration consequences, I am persuaded that the applicant has an arguable case that his pleas were not informed because he did not know that by pleading guilty to mischief over $5,000, a deportation order was mandated by the IRPA, unless stayed or set aside on appeal on compassionate and humanitarian grounds.
[17] The Crown argues that lack of knowledge of potential immigration consequences cannot render a guilty plea invalid, and as a result, the applicant’s proposed ground of appeal has no merit.
[18] In my view, this applicant has an arguable case that his plea was not informed. It will be for the panel hearing the appeal to determine whether the applicant’s plea should be set aside.
[19] The applicant was recently diagnosed with schizophrenia. I accept that this disorder and his related hospitalization may have adversely affected and delayed his ability to move for an extension of time within which to appeal.
[20] In R. v. Rulli, 2011 ONCA 18, the court observed, at para. 2, that if a plea was not informed “the prejudice lies in the fact that in pleading guilty, the appellant gave up his right to a trial. Whether he had a viable defence was not a relevant factor in the circumstances.”
[21] In any event, mischief to property having a value of $5,000 or less carries a maximum penalty of two years’ jail. The applicant could have elected to go to trial or attempted to negotiate a plea to this lesser offence if he had understood the precise immigration consequences of a plea to mischief over $5,000.
[22] I am persuaded that the applicant has an arguable case to set aside his plea and that the delay in pursuing the appeal is attributable in part to the timing of the letter from the CBSA, which was received 10 months after his plea was entered, and in part to his illness.
[23] Time to appeal extended to a date 30 days following the release of these reasons.
“G. Pardu J.A.”