Court of Appeal for Ontario

Date: 2019-07-09 Docket: C65687 Judges: Rouleau, Tulloch and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Andre Dean Appellant

Counsel

Andre Dean, in person Philip Norton, duty counsel Andrew Hotke, for the respondent

Heard: July 9, 2019

On Appeal

On appeal from the conviction entered on March 10, 2016 and the sentence imposed on March 10, 2016 by Justice David P. Cole of the Ontario Court of Justice.

Appeal Book Endorsement

[1] The appellant asks to set aside his guilty pleas to dangerous driving and fail to comply with conditions of a recognizance. The offences arose from a serious motor vehicle collision involving a police vehicle and a stolen vehicle. One officer suffered serious injury.

[2] The appellant's trial lawyer acknowledges that he may not have discussed the actual immigration consequences arising from the guilty pleas with his client who was in custody at the time. The joint submission involved a suspended sentence with credit of 328 days' time served (enhanced from 225 days real time). It is agreed on appeal that this plea, combined with the agreed upon sentence imposed, has immigration consequences for the appellant.

[3] Crown counsel fairly concedes that the appellant has met his onus of demonstrating on appeal that, when he pled guilty, he was not aware of the immigration consequences that would flow. The Crown submits, however, that the appellant has failed to establish subjective prejudice, particularly when measured against the objective circumstances. We do not agree. The appellant has established that there is a reasonable possibility that he may not have pled guilty had he known of the immigration consequences that would result from the plea and joint submission on sentence.

[4] On the record before us, we are not in a position to adequately assess the strength of the Crown's case had the matter proceed to trial, particularly as it relates to the dangerous driving count. At the time of the plea, the appellant was 19 years of age and he had only been in the country for a few years. He had a lawyer and would not necessarily have known to inquire about immigration consequences, especially given that he may well have focused on the suspended sentence aspect of the joint submission.

[5] In light of the full fresh evidence record before us, measured against the plea proceedings and having regard to the serious implications arising from the plea, we are satisfied that this appellant has met his onus for setting aside his guilty pleas.

[6] In the circumstances we would allow the appeal, set aside the guilty pleas and order a new trial.