Court of Appeal for Ontario

Date: 2017-09-05 Docket: C62230

Judges: Watt, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Carl Sangs Appellant

Counsel

Frank Bernhardt, for the appellant Ghazala Zaman, for the respondent

Heard and released orally: August 30, 2017

On appeal from: the conviction entered and the sentence imposed on June 2, 2014 by Justice Sally E. Marin of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant pled guilty to a single count of trafficking cocaine over a six-week period. The plea was accepted and a conviction recorded after a complete plea comprehension inquiry by a very experienced judge of the Ontario Court of Justice. The sentence imposed, four months' imprisonment, in light of credit of nine months for pre-disposition custody, to be followed by a term of probation for three years, was the subject of a joint submission by counsel.

[2] On his appeal from conviction and sentence, the appellant seeks to set aside his plea of guilty and resultant conviction on the ground that his plea was uninformed. The appellant says that he was never informed of the immigration consequences of his plea and conviction, that as a permanent resident, he would be rendered inadmissible, ordered removed from Canada and have no right of appeal from the removal order. In the alternative, he asks that his sentence be varied to avoid the immigration consequences of which he complains.

[3] The appellant was originally charged with 83 counts of trafficking in crack cocaine, each a discrete transaction alleged to have occurred on a specified day. Extensive pre-trial discussions took place with counsel and the trial judge in her capacity as a case management judge. In the end, the appellant agreed to plead guilty to a single count of trafficking, amended to encompass the entire timeframe during which the individual acts of trafficking occurred.

[4] In making submissions as to sentence in support of the joint proposal, defence counsel described the appellant as a Canadian citizen. During his allocution, the appellant did not take issue with his counsel's description of his status as a Canadian citizen.

[5] Nearly two years later, the Immigration and Refugee Board notified the appellant of his removal under s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). This provision deems inadmissible to Canada permanent residents sentenced to a term of imprisonment of six months or more, or convicted of an indictable offence punishable by a maximum term of imprisonment of at least 10 years. Under ss. 64(1) and (2) of IRPA, a permanent resident has no right of appeal from a removal order if found inadmissible on the ground of serious criminality, which includes an offence punished by a term of at least six months of imprisonment.

[6] The appellant seeks leave to introduce as fresh evidence his affidavit and the cross-examination that accompanies it. In it, among other things, he says that:

i. he never told his lawyer that he was a Canadian citizen;

ii. he was not sure of his citizenship status at the time he entered his plea;

iii. he did not know that his citizenship status was relevant at sentencing; and

iv. he would not have pleaded guilty had he known the immigration consequences of his plea and sentence.

[7] We are satisfied that it is in the interests of justice to receive the appellant's affidavit and accompanying cross-examination as fresh evidence on the hearing of the appeal. It is relevant to and admissible on the issue raised to set aside the plea of guilty, that is to say, that the plea of guilty was uninformed because he was unaware of the collateral immigration consequences of its entry.

[8] Having admitted the fresh evidence, we are satisfied that the appellant's plea of guilty was uninformed. It follows, in our respectful view, that the plea of guilty cannot stand as one of the legal requirements for it to be valid is lacking. It follows from its invalidity that it cannot form the basis of the conviction entered in the trial court.

[9] In the result, we admit the fresh evidence, set aside the plea of guilty and consequent conviction, and order a new trial on all counts of the information.

"David Watt J.A."

"Grant Huscroft J.A."

"G.T. Trotter J.A."