COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shiwprashad, 2015 ONCA 577

DATE: 20150820

DOCKET: C57684

Weiler, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kemchand Shiwprashad

Appellant

Najma Jamaldin, for the appellant

Stacey Young, for the respondent

Heard: June 2, 2015

On appeal from the conviction entered on March 8, 2015 by Justice Hugh K. Atwood of the Ontario Court of Justice.

Weiler J.A.:

[1] 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 Phamwas 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.

Released: August 20, 2015

(KMW)

“K.M. Weiler J.A.”

“I agree M. Tulloch J.A.”

“I agree K. van Rensburg J.A.”

[^1]: The punishment for conviction of sexual interference is “imprisonment for a term of not more than 10 years”: Criminal Code, s. 151(a). Section 36(1) of the IRPA, reads in part, “A permanent resident ….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 …”

[^2]: At the time, a person who had been sentenced to a term of imprisonment of less than two years could appeal a deportation order to the Immigration Appeal Division pursuant to s. 64(1) of the IRPA. Section 24 of the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16, which came into effect on June 19, 2013, and amended s. 64(2) of the IRPA, lowered the threshold for loss of appeal rights to six months. Pre-trial custody is included in the calculation of a period of imprisonment: Nguyen v. Canada (Minister of Citizenship and Immigration) 2010 FC 30, 2010 F.C. 30 at para. 20.

[^3]: Under s. 344(1)(b) of the Criminal Code robbery is punishable by imprisonment for life.

[^4]: The changes to s. 64 of the IRPA brought by the Faster Removal of Foreign Criminals Act apply to those sentenced before June 19, 2013, so long as they have not already been referred to the Immigration Appeal Division (“IAD”). The appellant had already been referred to the IAD.

[^5]: Katie James and Nora Rock, “Can a criminal conviction make your client inadmissible for residency/citizenship?”, online: LawPRO http://www.practicepro.ca/information/doc/conviction_inadmissible.pdf

[^6]: Paul Calarco, “June 2013 Appeal Court Review - R. v. Pham: Immigration Consequences in Sentencing”, online: Ontario Bar Association http://www.oba.org/en/pdf/sec_news_crim_jun13_cal_app.pdf

[^7]: Gary R. Clewley, Paul G. McDermott, Rachel E. Young, Sentencing: The Practitioner’s Guide, looseleaf (Toronto: Canada Law Book, 2015), at para. 1.330.