Her Majesty the Queen v. Girn
[Indexed as: R. v. Girn]
Ontario Reports
Court of Appeal for Ontario
Hoy A.C.J.O., Watt J.A. and Then J. (ad hoc)
March 13, 2019
145 O.R. (3d) 420 | 2019 ONCA 202
Case Summary
Criminal law — Counsel — Ineffective assistance of counsel
Immigration officer telling accused that he could be deemed inadmissible to Canada as result of previous convictions and that he would lose right to appeal removal order if he received future sentence exceeding six months — Accused pleading guilty next day to assault causing bodily harm and seven other offences and knowing counsel making joint submission to 12 months' imprisonment less credit of 247 days for pre-trial custody — Sentencing judge attributing entire custodial sentence to assault causing bodily harm conviction — Accused not following defence counsel's suggestion before plea that could get legal aid for immigration issue — Fresh evidence from accused explaining he relied on information from other inmates that immigration consequences only arose if he served more than six months (even if sentence imposed being longer than six months including credit for pre-sentence custody) — Inmates also telling accused that people with families could not be deported — Accused not demonstrating any prejudice or that proceeding unreliable because of alleged failings of trial counsel — Plea voluntary unequivocal and informed — Given offences involved not clear could have apportioned sentences for offences so that less than six months imposed for all offences in light of need for proportionality regardless of immigration consequences — Sentence imposed lenient for recidivist domestic violence offender — Accused having adequate understanding of immigration consequences of his guilty plea — Accused failing to establish that trial counsel provided ineffective assistance — Accused's appeal from conviction and sentence dismissed.
Criminal law — Plea of guilty — Application to strike plea on appeal based on allegation of incompetence of counsel — Collateral consequences of guilty plea
Immigration officer telling accused that he could be deemed inadmissible to Canada as result of previous convictions and that he would lose right to appeal removal order if he received future sentence exceeding six months — Fresh evidence from accused explaining he relied on information from other inmates that immigration consequences only arose if he served more than six months (even if sentence imposed being longer than six months including credit for pre-sentence custody) and that people with families could not be deported — Accused pleading guilty next day to assault causing bodily harm and other offences and sentenced on joint submission to 12 months' imprisonment less credit of 247 days for pre-trial custody — Sentencing judge attributing entire custodial sentence to assault causing bodily harm conviction — Given offences involved not clear could have apportioned sentence in manner that it was not longer than six months without offending principle of proportionality — Sentence imposed lenient for recidivist domestic violence offender — Accused failing to show any prejudice from alleged failures of trial counsel — Accused having adequate understanding of immigration consequences of his guilty plea — Accused failing to establish that trial counsel provided ineffective assistance — Accused's appeal from conviction and sentence being dismissed.
Facts
While serving a sentence for assaults on his wife, the accused was advised by an Immigration Enforcement Officer that he could be deemed inadmissible to Canada as a result of those convictions and that he would lose his right to appeal a removal order if he received a future sentence of more than six months. The next day, the accused pleaded guilty to eight of 26 counts arising from further attacks on his wife and was sentenced on a joint submission to 12 months' imprisonment, less a credit of 247 days for pre-trial custody, followed by three years' probation. The sentencing judge attributed the custodial sentence and term of probation to the assault causing bodily harm conviction, and suspended the passing of sentencing and imposed probation on the other counts. A removal order was subsequently made against the accused as a result of the convictions and sentence for assault causing bodily harm. The accused appealed his conviction and sought leave to appeal his sentence. He argued that his guilty plea was uninformed because he was not aware of the collateral immigration consequences of the joint submission, and that his trial counsel provided ineffective assistance.
Held: The appeals should be dismissed.
The accused had an adequate understanding of the immigration consequences of his plea when he pleaded guilty. Knowledge of "consequences" has not been taken to include knowledge of appellate rights and their limitations. There was an element of wilful blindness in the accused's approach, as the accused's fresh evidence stated that he relied on the advice of fellow inmates that pre-trial custody did not count in determining the length of sentence (for immigration purposes) and that a person who has a family cannot be deported, rather than following his criminal lawyer's advice and obtaining a legal aid certificate for immigration purposes. The accused also failed to establish prejudice. His affidavit was barren of any viable suggestion that, but for the alleged informational deficit, he would not have pleaded guilty. A trial would have put him at risk of conviction on 26 rather than eight counts, deprived him of the mitigating effect of his guilty plea on sentencing, and likely provided sustenance for the Crown's request that he receive a penitentiary sentence. Nor was this a case in which, with further information, the accused might have pleaded guilty with different conditions. As he pleaded guilty to eight counts, the sentence imposed, no matter how the pre-trial custody was apportioned, could not have left a right of appeal from the removal order open to him. The likely certainty of removal cannot justify a sentence that is inconsistent with the fundamental purposes and principles of sentencing.
The accused failed to establish that he received ineffective assistance from trial counsel. In light of the conclusion that his guilty plea was informed, the full burden of establishing prejudice rested on the impact of trial counsel's failure to discuss with the Crown or submit to the sentencing judge an apportionment of the credit for pre-trial custody in such a way that the custodial portion of the proposed 12-month sentence would not exceed six months. That failure had no effect on the reliability of the result of the proceedings. Moreover, it was far from clear that such an apportionment would have been available, as the risk of deportation cannot justify imposing a sentence inconsistent with the fundamental principles of proportionality.
Cases Considered
R. v. Coffey, [2017] B.C.J. No. 2072, 2017 BCCA 359
R. v. Shiwprashad, [2015] O.J. No. 4387, 2015 ONCA 577, 337 O.A.C. 57, 328 C.C.C. (3d) 191, 126 W.C.B. (2d) 2
R. v. Wong, [2018] 1 S.C.R. 696, [2018] S.C.J. No. 25, 2018 SCC 25, 424 D.L.R. (4th) 191, 364 C.C.C. (3d) 1, 47 C.R. (7th) 451, 56 Imm. L.R. (4th) 1
Other Cases Referred to
R. v. B. (G.D.), [2000] 1 S.C.R. 520, [2000] S.C.J. No. 22, 2000 SCC 22, 184 D.L.R. (4th) 577, 253 N.R. 201, [2000] 8 W.W.R. 193, 81 Alta. L.R. (3d) 1, 261 A.R. 1, 143 C.C.C. (3d) 289, 32 C.R. (5th) 207
R. v. Boudreault, [2018] S.C.J. No. 58, 2018 SCC 58, 369 C.C.C. (3d) 358, 50 C.R. (7th) 207
R. v. Cherrington, [2018] O.J. No. 4012, 2018 ONCA 653
R. v. G. (D.M.), (2011), 105 O.R. (3d) 481, [2011] O.J. No. 1966, 2011 ONCA 343, 281 O.A.C. 85, 84 C.R. (6th) 420, 275 C.C.C. (3d) 295
R. v. Kitawine, [2016] B.C.J. No. 752, 2016 BCCA 161, 386 B.C.A.C. 24, 130 W.C.B. (2d) 356
R. v. Lavergne, [2017] O.J. No. 4145, 2017 ONCA 642
R. v. Pham, [2013] 1 S.C.R. 739, [2013] S.C.J. No. 100, 2013 SCC 15, 357 D.L.R. (4th) 1, 441 N.R. 375, 76 Alta. L.R. (5th) 206, 544 A.R. 40, 293 C.C.C. (3d) 530, 99 C.R. (6th) 219
R. v. Quick, (2016), 129 O.R. (3d) 334, [2016] O.J. No. 582, 2016 ONCA 95, 94 M.V.R. (6th) 42, 345 O.A.C. 237, 26 C.R. (7th) 424
R. v. T. (R.), (1992), 10 O.R. (3d) 514, [1992] O.J. No. 1914, 58 O.A.C. 81, 17 C.R. (4th) 247
R. v. Tyler, [2007] B.C.J. No. 434, 2007 BCCA 142, 237 B.C.A.C. 312, 218 C.C.C. (3d) 400
Statutes Referred to
Criminal Code, R.S.C. 1985, c. C-46, s. 606(1.1)
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36(1)(a), 64(1), (2)
APPEAL
Appeal by the accused from the convictions entered and from the sentence imposed by Merenda J. of the Ontario Court of Justice on March 24, 2016.
Counsel:
Lakhwinder Sandhu, for appellant
Andrew Hotke, for respondent
JUDGMENT
The judgment of the court was delivered by WATT J.A.
The Background Facts
The Early History
[1] On March 23, 2016, the appellant, Yashpal Singh Girn, was in jail. That day he had a visitor. It was an officer from the Canadian Border Services Agency ("CBSA"). The officer brought some documents and explained them to the appellant.
[2] The documents related to convictions entered against the appellant on two separate occasions in 2015 and advised him that, because of those convictions, there were reasonable grounds to believe that he was inadmissible to Canada. A decision whether to allow him to remain in Canada or to order his removal would be made in the near future after a complete review of his case. He was advised to complete some forms and submit them to the CBSA office.
[3] The next day, the appellant pleaded guilty to eight further offences committed on two days in October 2015. His lawyer and the trial Crown made a joint submission on sentence to the presiding judge. They proposed a sentence of 12 months in custody, followed by probation for a term of three years. With credit of 247 days for 165 days of actual pre-disposition custody, the custodial component of the sentence imposed was four months. The judge acceded to the joint submission and imposed the proposed sentence.
[4] About one year later, the Immigration Division of the Immigration and Refugee Board of Canada issued a deportation order directing the removal of the appellant from Canada on the grounds of serious criminality.
[5] The appellant sought and obtained orders from judges of this court extending the time within which he could appeal his convictions and seek leave to appeal his sentence.
[6] In the reasons that follow, I will explain why I have concluded that both appeals fail and should be dismissed.
The Early History
[7] The grounds of appeal advanced do not require a detailed description of the circumstances of the offences to which the appellant pleaded guilty. But the procedural history of the prosecution and the removal proceedings are important to better understand the grounds of appeal advanced and their determination.
[8] As a result of three separate incidents with his spouse in the first half of 2015, the appellant pleaded guilty to and was convicted of two counts of assault, one count of assault with a weapon, two counts of failure to comply with a probation order and single counts of break and enter with intent and uttering threats. The dispositions included brief jail terms (taking into account time spent in pre-disposition custody) followed by periods of probation.
[9] The terms of probation included requirements that the appellant keep the peace and be of good behaviour and that he not communicate in any way with the complainant.
The October Offences
[10] As a result of three separate incidents occurring on two days in October 2015, about two months after he had been sentenced on prior similar offences, the appellant was charged with 26 counts involving offences against the person and property of his spouse and failures to comply with three separate probation orders. Some of the offences were punishable by terms of imprisonment of ten years or more.
[11] The appellant was detained in custody.
The Immigration Notice
[12] The appellant entered Canada when he was 14 years old in 1996. He is a permanent resident and has not applied for citizenship.
[13] While in custody on March 23, 2016, an Immigration Enforcement Officer from the CBSA told the appellant that he may be deemed inadmissible to Canada as a result of his previous convictions for break and enter with intent and assault with a weapon. The officer explained that "serious criminality" referred to crimes committed in Canada that were punished by terms of imprisonment of at least six months. The officer also reminded the appellant of his obligation to make submissions about why he should remain in Canada. The letter provided to the appellant by the officer contained most of this information.
[14] In cross-examination on his affidavit in support of his application to withdraw his guilty plea and advance his claim of ineffective assistance of counsel, the appellant confirmed that he understood from the officer that he could be subject to a removal or deportation order. He also appreciated that, because he had not received sentences of six months or more for his previous offences, he could appeal any removal order made against him. He was also made aware that any sentences of imprisonment exceeding six months which resulted in a removal order, left him without a right of appeal from that order.
The Pleas of Guilty
[15] On March 24, 2016, the day following his meeting with the Immigration Enforcement Officer, the appellant appeared with counsel and pleaded guilty to eight of the 26 counts arising out of the incidents in October of 2015. Counsel had represented the appellant in prior proceedings in another jurisdiction and was the only lawyer the appellant had retained in connection with the charges from October 2015.
[16] In advance of his court appearance, the appellant met with his counsel who explained that he and the Crown would be making a joint submission for a sentence of 12 months in custody on all charges.
[17] In the courtroom, the appellant pleaded guilty to all eight counts on which he was arraigned. Included were counts charging assault causing bodily harm and break and enter with intent, each of which carries a maximum punishment of imprisonment for at least ten years.
The Sentences Imposed
[18] Where permitted to choose mode of procedure, the Crown proceeded by indictment. Counsel on both sides admitted that the sentence that should be imposed was 12 months' imprisonment, less credit of 247 days for 165 days of pre-disposition custody, to be followed by three years of probation with several proposed terms. Neither counsel suggested how to apportion the pre-disposition custody among the various convictions or how the individual sentences should be calculated or served to arrive at the proposed sentence of about four months.
[19] The sentencing judge's endorsements on the information indicate that he attributed the custodial sentence and term of probation to the conviction of assault causing bodily harm. On the other counts, he suspended the passing of sentence, imposed periods of probation on the same terms as for the conviction of assault causing bodily harm and directed that the sentences be served concurrently.
The Immigration Proceedings
[20] On May 3, 2017, the Immigration Division of the Immigration and Refugee Board of Canada issued a removal order for the appellant as a result of his convictions and sentence for assault causing bodily harm.
[21] On September 18, 2017, the Immigration Appeal Division dismissed the appellant's appeal from the removal order for lack of jurisdiction. The appellant had no right of appeal because he was found to be inadmissible on grounds of serious criminality (the conviction of assault causing bodily harm), which had been punished by imprisonment of at least six months (four months plus credit of 247 days for the pre-disposition custody).
The Appellate Proceedings
[22] Judges of this court extended the time within which the appellant could appeal the convictions entered and sentence imposed on March 24, 2016.
The Grounds of Appeal
[23] The appellant seeks to withdraw his guilty plea and have a new trial, or wants his sentence reduced so that he can appeal his removal order. He identifies two errors in the proceedings that he says resulted in his conviction and sentence:
(i) his plea of guilty was uninformed because he was not aware of the collateral immigration consequences of the joint submission on sentence; and
(ii) his trial counsel provided ineffective assistance in his representation.
[24] The grounds are discrete, yet related. The sparse trial record has been supplemented by materials furnished in accordance with our protocol for claims of ineffective assistance of counsel. I would admit this material as fresh evidence because I consider it to be in the interests of justice to do so.
Ground #1: The Uninformed Plea of Guilty
The Plea Proceedings
[25] An examination of the plea proceedings, as well as the information provided in connection with the claim of ineffective assistance of counsel, is essential to understanding this alleged error and its determination.
[26] When the appellant entered his pleas of guilty, he was represented by counsel who had appeared on his behalf throughout these proceedings and had acted for him in a prior unrelated prosecution in another jurisdiction. Counsel had participated in resolution discussions with the Crown as well as pre-hearing conferences with the judge before whom the appellant pleaded guilty.
[27] When the appellant was arraigned and entered his pleas of guilty, the presiding judge did not conduct a plea inquiry in accordance with s. 606(1.1) of the Criminal Code. Defence counsel indicated that he had conducted a plea inquiry with the appellant and was satisfied that the appellant was familiar with the allegations made against him and wanted to plead guilty to the counts on which he would be arraigned. Defence counsel informed the judge that there would be a joint submission on sentence and that the appellant understood that the judge did not have to impose the sentence counsel recommended.
[28] The appellant indicated that he was prepared to proceed in accordance with what defence counsel had said.
[29] None of the participants inquired or said anything about the appellant's immigration status in advance of entering the guilty pleas. During sentencing submissions, defence counsel told the trial judge that someone from Immigration had visited the appellant and told him that he was to report to Immigration on his release from custody after completing his sentence.
[30] No one asked anything about the appellant's immigration status after defence counsel's mention of it during submissions. The appellant said nothing about immigration in his allocution.
The Further Evidence
[31] In his affidavit filed in support of his ineffective assistance of counsel claim, the appellant acknowledged the visit of the Immigration Enforcement Officer and the officer's instructions that he report to the Immigration Office on his release from custody. He told trial counsel about this visit. The lawyer never told him that he should contact an immigration lawyer, or that he would be deported after he had served his sentence and would not be able to appeal the deportation order. The appellant claimed that he never expected that his imminent removal from Canada would occur as a result of his guilty plea.
[32] In cross-examination, the appellant agreed that the Immigration Enforcement Officer had spoken to him about his prior convictions in 2015 and had told him that, as a result, he may be inadmissible to Canada. The appellant understood that because the sentences imposed on those convictions were less than six months, he could appeal a deportation order. He also understood that receiving sentences of six months or more meant that he could not appeal any deportation order made as a result.
[33] The appellant testified that he told his trial counsel that he was a permanent resident. He denied that trial counsel advised him about the seriousness of the charges he faced and the impact of his prior convictions. Before he pleaded guilty, trial counsel told him that he and the Crown would be (jointly) recommending a sentence of 12 months.
[34] In further cross-examination, the appellant denied telling trial counsel that he had an inheritance in India and wished to return there. Trial counsel did not tell him that deportation could follow as a result of his convictions or that he would have no right to appeal a deportation order if the sentence imposed exceeded six months in jail. Had he known that deportation would follow from conviction, he would not have pleaded guilty.
[35] The appellant did not change his mind about pleading guilty after he spoke to the Immigration Enforcement Officer. He made this decision because he knew from what other inmates at the jail had said, that pre-trial custody did not count in determining the length of sentence and a person who has a family cannot be deported.
[36] In his affidavit, trial counsel explained that the appellant told him that he (the appellant) was a citizen of India where he wished to return to collect an inheritance to which he would not be entitled if he became a Canadian citizen. Counsel told the appellant to stay out of trouble because further trouble would increase the length of sentence the judge would impose and that any sentence over six months would result in a deportation order that the appellant could not appeal or seek to have stayed.
[37] Trial counsel testified that he told the appellant that he could apply for legal aid certificates for immigration and family law counsel. The appellant declined to do so because he would not be staying in Canada. After counsel received and reviewed the Crown disclosure, he told the appellant that he would be "looking at deportation" because the sentence he would likely receive would exceed six months in custody. The initial position of the Crown was that a penitentiary sentence should be imposed. As a result of the plea inquiry conducted with the appellant, defence counsel was satisfied that the appellant understood that the judge would make the final decision about sentence even though counsel would be jointly suggesting a custodial sentence of 12 months, less pre-disposition custody, and a period of probation.
[38] It was the evidence of trial counsel that the appellant understood the joint submission and instructed him to proceed. He was unconcerned about the immigration implications because he planned to return to India.
[39] Trial counsel did not discuss with the appellant any apportionment of the time spent in pre-disposition custody among the various offences, so that with credit, the sentence imposed would not exceed six months in custody. A sentence under six months was simply impossible according to trial counsel because of the appellant's record and the fact that he committed the offences while bound by the terms of several probation orders.
The Arguments on Appeal
[40] The appellant says that his plea of guilty should be set aside because it was not fully informed. He did not know that he would have no right of appeal from the deportation order because his sentence, including credit for time spent in pre-disposition custody, exceeded six months.
[41] In the appellant's submission, the mere fact that he understood the general nature of the warning provided by the Immigration Enforcement Officer was not sufficient to render his plea of guilty informed. What is more, counsel had a duty to advise the appellant specifically that a jail sentence that exceeded six months deprived him of the right to appeal any deportation order made as a result of that conviction and sentence.
[42] The respondent rejects any suggestion that the appellant's guilty plea was uninformed because he lacked specific information about the availability of appellate review to challenge deportation orders.
[43] According to the respondent, the record of trial proceedings as amplified by the fresh evidence demonstrates that the appellant knew that there were immigration consequences of his convictions. And he knew from what the Immigration Enforcement Officer had told him the day before he pleaded guilty, that if he received a custodial sentence of six months or more, he would lose his right to appeal the deportation order. The appellant's essential complaint is that he relied on information provided by fellow inmates that time spent in pre-disposition custody was not included in the sentence calculations for immigration purposes. That the information was erroneous does not make his guilty plea uninformed.
[44] The respondent emphasizes that the decision in R. v. Wong, [2018] 1 S.C.R. 696, [2018] S.C.J. No. 25, 2018 SCC 25, 364 C.C.C. (3d) 1 requires an appellant who seeks to set aside on appeal a guilty plea as uninformed to demonstrate not only that he or she was unaware of a legally relevant collateral consequence, but also that this lack of awareness caused him or her subjective prejudice. The respondent says that the appellant has failed to satisfy either requirement.
[45] The respondent argues that the inability to appeal a deportation order is not a legally relevant collateral consequence. Admittedly, state compelled immigration consequences of a custodial sentencing disposition are legally relevant collateral consequences of a guilty plea. But it is sufficient to satisfy the "informed" component of a guilty plea where an accused is aware that deportation is a potential consequence. He or she need not know precisely how likely deportation will be or how limited the options may be to avoid it.
[46] Even if the inability to challenge a deportation order on appeal were a legally relevant collateral consequence of a guilty plea, the appellant's claim should be rejected. The appellant asserts that he was unaware that the joint submission for a 12-month sentence would leave him without a right of appeal because his lawyer failed to advise him of this, and his fellow inmates said that immigration authorities did not consider time spent in pre-disposition custody as part of a sentence. This explanation beggars belief. He did not ask his counsel, rather relied on advice from fellow inmates, well knowing the substance of the joint submission -- 12 months in custody plus probation. Trial counsel testified that he told the appellant that if he spent more than six months in jail he would be deported without a right of appeal.
[47] Further, the respondent continues, any lack of knowledge is the appellant's own doing. He knew the substance of the joint submission and the fact that a sentence of six months or more meant no appeal. He also knew that the sentencing judge was not bound by the joint submission. His approach of deliberate ignorance should be unavailing.
[48] The respondent also takes issue with the appellant's claim of subjective prejudice arising from his uninformed guilty plea. Any assertion that the appellant would have pleaded not guilty and proceeded to trial or insisted on different conditions, had he known there was no right of appeal, lacks evidentiary support. In addition to the circumstances already mentioned, it is plain that, from the outset, the case was headed for resolution, not for trial. Indeed, this was the appellant's history with all prior incidents. Nor was the appellant in a position to insist on different conditions on entry of his pleas of guilty. As counsel said in cross-examination, a sentence that aggregated less than six months inclusive of pre-disposition custody was "impossible" given the circumstances of the case.
The Governing Principles
The Requirements of a Valid Guilty Plea
[49] For the most part, the parties are not at odds about the principles that govern our decision in this case, only the result that should follow from their application.
[50] To be valid, a plea of guilty must be voluntary, unequivocal and informed: Wong, at para. 3; R. v. Quick (2016), 129 O.R. (3d) 334, [2016] O.J. No. 582, 2016 ONCA 95, at para. 4.
The Informed Guilty Plea
[51] For a plea of guilty to be informed, the accused who enters it must be aware of the nature of the allegations made by the Crown and the effect and consequences of the plea: Wong, at para. 3; Quick, at para. 4; R. v. T. (R.) (1992), 10 O.R. (3d) 514, [1992] O.J. No. 1914 (C.A.), at p. 519 O.R.
[52] An informed guilty plea means that an accused must be aware of the criminal consequences of the plea and the legally relevant collateral consequences. A legally relevant collateral consequence is a consequence that bears upon sufficiently serious legal interests of the accused. Immigration consequences bear on sufficiently serious legal interests, falling within the legally relevant collateral consequences of a guilty plea: Wong, at para. 4.
The Immigration Consequences
[53] For permanent residents of Canada, s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") declares them inadmissible on grounds of serious criminality for having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.
[54] Under s. 64(1) of the IRPA, permanent residents found to be inadmissible to Canada on grounds of serious criminality have no right of appeal to the Immigration Appeal Division from a removal order. For these purposes, "serious criminality" refers to a crime punished in Canada by a term of imprisonment of at least six months: s. 64(2), IRPA.
[55] Taken together, ss. 36(1)(a) and 64(1)-(2) of the IRPA render a permanent resident convicted of a Criminal Code offence punishable by a maximum term of imprisonment of at least ten years inadmissible to, and thus, removable from Canada and without a right of appeal when sentenced to a term of imprisonment of at least six months.
Knowledge of Immigration Consequences
[56] Some pre-Wong authorities have considered the nature and extent of a permanent resident's knowledge of immigration consequences that will defeat a claim that a guilty plea was uninformed.
[57] In R. v. Shiwprashad, [2015] O.J. No. 4387, 2015 ONCA 577, 328 C.C.C. (3d) 191, the appellant, a permanent resident, was subject to a removal order arising out of convictions for sexual offences. The Immigration Appeal Division stayed the order for four years on certain conditions. The stay order contained the following wording:
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.
[58] During the currency of the stay order, the appellant pleaded guilty to and was convicted of robbery. He was sentenced to a term of imprisonment that was the functional equivalent of a sentence of nine months in custody. He was subsequently deported: Shiwprashad, at paras. 10, 16, 25-28.
[59] On appeal, the appellant sought to set aside his guilty plea on the ground that his counsel provided ineffective assistance by failing to inform him of the immigration consequences of his plea.
[60] This court dismissed the appeal, satisfied that the appellant knew that
(i) he was subject to deportation;
(ii) the stay of his deportation would be cancelled if he committed any further offences punishable by imprisonment for ten years or more or if he were sentenced to imprisonment for a term of six months or more; and
(iii) he could be deported.
See Shiwprashad, at paras. 72, 75.
[61] In R. v. Coffey, [2017] B.C.J. No. 2072, 2017 BCCA 359, the appellant sought to set aside his guilty plea as uninformed on the basis that he was unaware of the collateral immigration consequences of the guilty plea and two-year sentence. In particular, the appellant said that he did not know at the time of his guilty plea that as a permanent resident he could face deportation or that the length of his sentence, based on a joint submission, would prevent him from appealing his removal order.
[62] The British Columbia Court of Appeal was satisfied that the appellant was aware that his permanent resident status in Canada could be jeopardized by his conviction and sentence. He was concerned that his guilty plea might lead authorities to initiate a removal process and instructed his lawyer not to raise immigration status during plea negotiations. Despite his concern, he did not choose to consult an immigration lawyer. A sentence of six months or less was unfeasible in the circumstances: Coffey, at paras. 46-49.
[63] The appeal was dismissed. In delivering the reasons of the court, Garson J.A. concluded, at paras. 50-51:
In summary, an informed guilty plea requires the accused to have some awareness of the potential immigration consequences of their plea. Further, immigration consequences may be a necessary consideration in sentencing. However, an accused need not necessarily know the precise immigration consequences of their conviction and sentence. Case-by-case analysis is required to determine the degree to which an accused person must be aware of the specific details of the immigration consequences of their guilty plea.
In this case, because of what I have termed Mr. Coffey's willful blindness, I conclude that Mr. Coffey's plea was sufficiently informed. It follows that his counsel did not contribute to an uninformed plea. On this basis alone I would dismiss the appeal.
[64] In R. v. Tyler, [2007] B.C.J. No. 434, 2007 BCCA 142, 218 C.C.C. (3d) 400, the appellant sought to have his guilty plea struck on the basis that it was uninformed because he did not know the likely immigration consequences flowing from his plea. In dismissing his appeal, Donald J.A. wrote, at paras. 23-25:
While the automatic effect of a further conviction of possession of a break-in instrument may not have been fully understood by the appellant, I am satisfied that he knew that his status in Canada was in serious jeopardy. He pleaded guilty to achieve the short term gain of early release and he put aside consideration of the longer term consequences, no doubt hoping that things would work out as time went on. This was a free choice; his first lawyer urged him to try the charges but that would have meant staying in jail for several more months.
Does the ignorance of the automatic effect of the conviction vitiate the plea? If that were so, then pleas could be struck on the basis that the outcome was not precisely as anticipated. That kind of certainty is not to be expected of the criminal process, especially when judges are free to depart from bargains struck by counsel, within certain reasonable limits. See R. v. Hoang, 182 C.C.C. (3d) 69, 2003 ABCA 251 paragraph 36:
The requirement that the accused understand the nature and consequences of a guilty plea is not a requirement to canvas every conceivable consequence which may result or may be foregone. Such a requirement would be a practical impossibility. American jurisprudence has held the accused should be aware of the probable direct consequences of the plea: Parker v. Ross, 470 F.2d 1092 (4th Cir. 1972).
Here the appellant knew he had been deported for possession of a break-in instrument, received a stay on good behaviour, and then pleaded guilty to the same offence within a few months of receiving the stay. I agree with respondent's counsel that the difference between awareness of an automatic effect, and knowledge of a highly probable result, is too fine a distinction.
See, also, R. v. Kitawine, [2016] B.C.J. No. 752, 2016 BCCA 161, 386 B.C.A.C. 24, at paras. 20, 25-28.
Setting Aside Pleas of Guilty
[65] An accused who seeks to set aside a presumptively valid guilty plea, on the basis that the plea was uninformed because he or she was unaware of a legally relevant collateral consequence at the time of entering the plea, must establish
(i) that she or he was in fact unaware of a legally relevant consequence of entering the plea at the time of pleading guilty; and
(ii) subjective prejudice.
See Wong, at paras. 6, 9, 19.
[66] To establish subjective prejudice, an accused must file an affidavit establishing a reasonable possibility that he or she would have either
(i) elected to plead not guilty and go to trial; or
(ii) plead guilty, but with different conditions.
See Wong, at paras. 6, 19.
Of necessity, a reviewing court must assess the veracity of an accused's claim. This inquiry is subjective to the particular accused who seeks to set aside their plea, but allows for an objective assessment of contemporaneous evidence to determine the credibility of the accused's subjective claim: Wong, at para. 6.
[67] In connection with the first form of prejudice -- where an accused would have pleaded not guilty and opted for trial -- there will always be cases in which the accused may have little to no chance of success. However, that is not to say that a remote chance of success at trial means the accused is not sincere in his or her claim that the plea would have been different. Sometimes, certain but previously unknown consequences of a conviction make even a remote chance of success at trial a chance worth taking. Provided a court accepts the veracity of the accused's statement, when tested against the objective contemporaneous evidence, then the accused has demonstrated prejudice and should be entitled to withdraw their guilty plea: Wong, at para. 20.
[68] The second form of prejudice -- where an accused would have pleaded guilty, but only on different conditions -- will be established where a reviewing court finds that the accused would have insisted on those conditions to enter the guilty plea and those conditions would have alleviated, in whole or in part, the adverse effects of the legally relevant collateral consequence: Wong, at para. 21.
[69] On the other hand, the mere possibility of different conditions, without more, is not automatically sufficient. It is only where an accused credibly asserts that she or he, during the plea negotiation phase, would have insisted on additional conditions, but for which she or he would not have pleaded guilty. Said in another way, an accused must articulate a meaningfully different course of action to justify vacating a plea, and satisfy the reviewing court that there is a reasonable possibility that she or he would have taken that course: Wong, at paras. 22-23.
[70] A final point concerns the consequences of focusing the prejudice analysis on the subjective choice of the accused. It does not follow from this focus that a court must automatically accept an accused's claim. The credibility of the claim is at large, not a given. The court must measure the accused's claim about what his subjective and fully informed choice would have been against the objective circumstances as revealed by the evidence. Relevant factors in this assessment include, but are not limited to
(i) the strength of the Crown's case;
(ii) any concessions or statements from the Crown about its case (for example, a willingness or refusal to participate in a joint submission or reduce the charge to a lesser included offence);
(iii) any available defence; and
(iv) the strength of connection between the plea of guilty and the collateral consequence (where the collateral consequence depends on the length of the sentence, a court may have reason to doubt the veracity of the claim).
See Wong, at paras. 26, 28.
The Principles Applied
[71] As I will explain, I would not give effect to this ground of appeal. In my view, the appellant has failed in his attempt to set aside his guilty plea on the basis that it was uninformed because he was unaware of the immigration consequences of his plea and the sentence jointly proposed by counsel.
[72] At the outset, I do not contest the proposition that the immigration consequences of an accused's plea, conviction and sentence fall within the legally relevant collateral consequences of which an accused must be aware to make an informed guilty plea.
[73] Two inquiries determine whether a guilty plea should be set aside on the ground that it was uninformed because the accused was unaware of legally relevant collateral consequences:
(i) Was the accused misinformed or not informed about a legally relevant collateral consequence of entry of the plea?
(ii) Did this misinformation or lack of information result in prejudice to the accused?
[74] At the first step or stage of the analysis to determine whether the accused was misinformed or not informed about a legally relevant collateral consequence of his plea, the assessment is objective. In this case, the critical issue is whether the accused was aware of the immigration consequences of his plea to the extent necessary to meet the "informed" requirement for a valid guilty plea.
[75] The authorities teach that where immigration consequences may ensue from a guilty plea, conviction and sentence, an accused must be aware of those consequences for his or her plea to be informed. Those immigration consequences include removal from Canada -- in a word, deportation. But the authorities have resisted imposition of a fixed quantum or standard of information necessary to characterize the plea as "informed". Instead, the jurisprudence counsels a case-by-case analysis consistent with both the subjective nature of guilty pleas and the level of understanding of the consequences of entry of guilty pleas generally. No trial. Conviction. Sentence. No case suggests that knowledge of "consequences" includes knowledge of appellate rights and their limitations.
[76] In this case, the appellant was aware from what he had been told and documents he had received from an Immigration Enforcement Officer that convictions and sentences had immigration consequences. Those consequences included removal from Canada. He was also aware that both criminal convictions and the sentences imposed were the reasons for those consequences.
[77] He learned further that he "may or may not have the right to appeal to the Immigration Division should a removal order be issued" against him. He was also aware that "a term of imprisonment of at least six months" meant that he had no right of appeal from the removal order. And he was invited to make written submissions explaining why his removal should not be sought. In addition, the appellant was aware that he would be pleading guilty, as he had in all other cases involving his spouse, and that his lawyer and the Crown would be asking the judge to impose a sentence of 12 months in custody followed by probation for three years.
[78] In my respectful view, in the circumstances of this case, the appellant had an adequate understanding of the immigration consequences of his plea of guilty and the proposed sentence, which he understood the judge was not required to impose on the lawyers' say-so. In particular, he was aware that those consequences included removal from Canada -- perhaps without a right to appeal the removal decision.
[79] As in Coffey to which I have earlier referred, there is also an element of wilful blindness in the appellant's approach: see Coffey, at paras. 47-51. He relied on fellow inmates for legal advice, rather than picking up counsel's suggestion of obtaining a legal aid certificate for immigration purposes. And on his belief, despite the plain language in the documents he received from the Immigration Enforcement Officer, that he would only be given a warning, not removed from the country. He rolled the dice. And lost.
[80] In light of my response to the first inquiry, it is unnecessary to consider the second. That said, I am also satisfied that the appellant has not established the prejudice component of the test.
[81] To begin, the appellant's affidavit is barren of any viable suggestion that, but for the alleged informational deficit, he would have pleaded not guilty and taken the case to trial. His assertion that his estranged spouse would not have testified against him is completely at odds with her conduct. A trial would have put him at risk of conviction of three times the number of offences to which he had pleaded guilty, deprived him of the mitigating effect of his pleas of guilty on sentence and likely provided sustenance for the Crown's request that he receive a penitentiary sentence.
[82] Nor is this a case in which with further information the appellant might have pleaded guilty with different conditions. He pleaded guilty to only eight of 26 counts. The sentence imposed, no matter how the pre-disposition custody credit was apportioned, would not have resulted in leaving a right of appeal open to him. The likely certainty of removal cannot justify a sentence that is inconsistent with the fundamental purpose and applicable sentencing principles of the Criminal Code.
[83] It is for these reasons that I would not permit the appellant to withdraw his guilty plea on the basis that it was uninformed.
Ground #2: The Ineffective Assistance of Counsel
[84] This ground of appeal is discrete from, yet related to the claim that the appellant's plea of guilty was uninformed. Having already determined that the plea of guilty was not uninformed, there is no need to retill the same ground in connection with this issue.
The Added Background
[85] In his affidavit filed in support of his claim that his plea of guilty was uninformed and that his counsel provided ineffective assistance, the appellant alleged that counsel never showed him the Crown disclosure or advised him of the available modes of trial. He did not anticipate deportation would follow conviction and sentence without any right to challenge the order on appeal as he said in his affidavit:
I plead guilty as I never expected that as a result of my guilty plea and sentence, deportation order is imminent. I thought that I will get warning from the immigration and that everything will be over. I plead guilty as I knew that I spent a lot of time in custody and there is no surety. I also knew that if I went to trial, my wife will not come to court to testify against me.
[86] The appellant also asserted that trial counsel never said anything to him about speaking to an immigration lawyer after the appellant told counsel of his immigration status. Nor did counsel ever suggest apportioning the pre-disposition custody credit to ensure that no sentence exceeded six months in custody.
[87] Trial counsel responded that he reviewed Crown disclosure with the appellant on five occasions when they met in the courthouse cells. Counsel recommended trial in the Ontario Court of Justice based on the uncomplicated facts, the lack of any viable defences and the fact that the appellant would likely remain in custody pending trial because of his record, breach of probation orders and lack of a surety. Counsel told the appellant to stay out of trouble because further offences would likely increase the length of any sentence he would later have imposed upon him, and that any sentence exceeding six months would mean that he could not appeal the removal order. The appellant did not have any interest in retaining an immigration lawyer because he told counsel that he intended to return to India where he could collect an inheritance.
The Arguments on Appeal
[88] In support of his claim that trial counsel provided ineffective assistance, the appellant relies upon what he says were three critical failures that resulted in a miscarriage of justice:
(i) the failure to advise the appellant the sentence of imprisonment of six months or more meant that he had no right of appeal from a removal order;
(ii) the failure to discuss with the Crown or seek from the sentencing judge an order apportioning credit for pre-disposition custody so that the custodial term did not exceed six months; and
(iii) the failure to expressly raise immigration consequences as a mitigating factor on sentence.
[89] The respondent contends that the appellant has failed to establish the facts essential to underpin his claim of ineffective assistance. The trial counsel's affidavit and cross-examination contradict the appellant's claims. Additionally, it is clear that the appellant was aware, after the visit from the Immigration Enforcement Officer the day before he pleaded guilty, of the significant impact a custodial sentence of six months or more would have on his right to appeal any removal order. Despite this information, the appellant agreed to plead guilty knowing that the sentence to be jointly proposed was 12 months in custody.
[90] The respondent says that the expanded record fails to support the appellant's claim that he would have pleaded not guilty and proceeded to trial if he had information about the lost right of appeal on imposition of a jail sentence of six months or more. And the assertion that the sentence imposed would not exceed six months thus leaving a right of appeal, had his counsel made submissions about apportioning credit for pre-disposition custody, was not at all viable. To do so would have been to impose a sentence that would offend the lessons of R. v. Pham, [2013] 1 S.C.R. 739, [2013] S.C.J. No. 15, 2013 SCC 15, at paras. 13-16, 24.
The Governing Principles
[91] The principles that govern determination of claims of ineffective assistance of counsel at trial are well settled. An appellant must establish
(i) the facts on which the claim is grounded;
(ii) the incompetence of the representation provided by trial counsel (the performance component); and
(iii) a miscarriage of justice as a result of the incompetent representation by trial counsel (the prejudice component).
See R. v. Cherrington, [2018] O.J. No. 4012, 2018 ONCA 653, at para. 25.
The burden settled upon the appellant is not easily satisfied: R. v. G. (D.M.) (2011), 105 O.R. (3d) 481, [2011] O.J. No. 1966, 2011 ONCA 343, 275 C.C.C. (3d) 295, at paras. 100-101.
[92] Once the facts that underpin the claim have been established, the ineffective assistance analysis begins with the prejudice component. This component engages a determination of whether a miscarriage of justice has occurred. Either because of some procedural unfairness in the proceedings, a compromise of the reliability of the verdict or some combination of both consequences: R. v. B. (G.D.), [2000] 1 S.C.R. 520, [2000] S.C.J. No. 22, 2000 SCC 22, at paras. 28, 34; Cherrington, at para. 27. Where the reviewing court does not make a finding of prejudice, it is undesirable for the court to conduct an inquiry into and render a conclusion upon the performance component: B. (G.D.), at para. 29; R. v. Lavergne, [2017] O.J. No. 4145, 2017 ONCA 642, at para. 17.
The Principles Applied
[93] For the brief reasons that follow, I would not give effect to this ground of appeal.
[94] The decision on this ground of appeal is largely pre-determined by rejection of the claim that the appellant's guilty plea was uninformed because he was unaware of the legally relevant collateral consequences of it -- deportation. The principal contaminant upon which the appellant relied to found his assertion of ignorance was the failures of counsel. Since I have found the information gap claim unavailing, the alleged inadequacies of counsel are somewhat beside the point. The trial judge was also aware that immigration consequences were in play because, in his submissions on sentence, defence counsel told the judge that the appellant was to report to immigration on release from custody. An experienced trial judge would have no difficulty in fathoming the reason for the attendance or the likely consequence.
[95] The full burden of establishing prejudice then rests on the impact of the failure of trial counsel to discuss with the Crown or submit to the judge an apportionment of the credit for pre-disposition custody in such a way that the custodial portion of the proposed 12-month sentence would not exceed six months.
[96] This failure had no effect on the reliability of the result of the proceedings. The appellant pleaded guilty. His plea of guilty was voluntary, unequivocal and informed. The legal effect of that plea and the congruity of the admitted facts with the essential elements of the relevant offences resulted in inevitable convictions.
[97] It is also far from clear that this apportionment device is so readily available to sentencing judges. To the extent its application would run afoul of the principle accepted in Pham, that the risk of deportation cannot justify imposing a sentence inconsistent with the fundamental principles of proportionality, it cannot assist.
[98] Nothing that occurred here compromised the fairness of the proceedings either in connection with the entry of the conviction or the determination of a fit sentence.
[99] The appellant also invited us to rework the sentencing calculus to achieve a result his counsel should have obtained had he done so at trial. I see no reason to do so. For a spousal abuse recidivist and serial probation order violator, the sentence imposed could be seen as rather lenient.
Conclusion
[100] I would dismiss the conviction and sentence appeals in their entirety, other than to remit any victim fine surcharge that has been paid in light of the Supreme Court's decision in R. v. Boudreault, [2018] S.C.J. No. 58, 2018 SCC 58, 50 C.R. (7th) 207.
Appeal dismissed.
End of Document
