Court of Appeal for Ontario

Date: 2019-11-27 Docket: C62380

Judges: Watt, Miller and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Chris Denny Pineda Appellant

Counsel

Naomi M. Lutes, for the appellant

Caitlin Sharawy, for the respondent

Heard: September 12, 2019

On appeal from the conviction entered on May 22, 2013 by Justice Steve A. Coroza of the Ontario Court of Justice.

Reasons for Decision

Background

[1] The appellant seeks to set aside his guilty pleas on the basis that they were uninformed. Had he known the immigration consequences of his guilty pleas, he maintains that he would have instead proceeded to trial. For the reasons set out below, we allow the appeal, set aside the guilty pleas, and order a new trial on all counts of the information.

[2] The appellant, an American national, came to Canada at age three and thereafter became a permanent resident. His four dependent children all reside in Canada, as do his mother and developmentally challenged brother. He conducted his business in Canada and considered himself Canadian. However, he never applied for, or received, Canadian citizenship.

[3] On November 1, 2012, the appellant was charged with three firearm-related offences under the Criminal Code and one possession offence under the Controlled Drugs and Substances Act. He plead guilty to three of the offences – careless storage of a firearm, unlawful possession of a loaded prohibited firearm, and possession of cocaine – and a fourth charge was withdrawn. Pursuant to a joint submission he received a global sentence of 15 months incarceration less time spent in pre-trial custody, followed by 36 months probation. As a result of these convictions and sentences, he was stripped of his status as a permanent resident and ordered deported to the United States, with no right of appeal. He now resides in the U.S. and is not permitted re-entry into Canada where his children continue to reside.

[4] The appellant now seeks to introduce fresh evidence to establish that his guilty pleas were uninformed because he was unaware of the serious immigration consequences of them.

Analysis

[5] To be valid, a guilty plea must be voluntary and unequivocal. It must also be informed, in the sense that the accused must be aware of the allegations made against him, and of the effect and "legally relevant collateral consequences" of that plea: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at paras. 3-4. Legally relevant collateral consequences include immigration consequences. To set aside a presumptively valid plea, the appellant must establish that: (i) he was unaware of a legally relevant consequence of the plea, assessed objectively; and (ii) he has suffered prejudice, in the sense that he would have acted differently had he been properly made aware of the consequences: Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 33.

[6] In the fresh evidence, the appellant states that although he was advised by his lawyer that there might be immigration consequences to his guilty pleas, and that he should seek the advice of an immigration lawyer, he did not understand that deportation would be within the range of possible consequences. He had thought he might be subject to questioning by an immigration official, or subject to an immigration hold. He did not consult an immigration lawyer. Trial counsel, in his affidavit, did not contradict this evidence. Trial counsel agreed that although he had a conversation with the appellant and alerted him that there might be immigration consequences, he likely did not discuss any specific immigration consequences with the appellant. Trial counsel's evidence, at its highest, was that the word "deportation" may have come up.

[7] There was no plea comprehension inquiry conducted in court. The appellant's counsel advised the trial judge that the plea inquiry had been conducted with the appellant in advance. The trial judge was not made aware of the appellant's immigration status or that immigration consequences could flow to the appellant as a result of his convictions.

[8] The respondent concedes that the fresh evidence should be admitted. We are satisfied that the fresh evidence meets the Palmer criteria, as modified to assess the validity of a guilty plea, and ought to be admitted: R. v. Sangs, 2017 ONCA 683, at para. 7.

[9] It is the respondent's position that, at a minimum, the appellant was wilfully blind as to the immigration consequences arising from his plea. The respondent argues that the appellant should not be permitted to rely upon his wilful blindness in support of the claim that his pleas were involuntary: R. v. Girn, 2019 ONCA 202 at 62-3, 79.

[10] Based on the record before us, however, it seems clear that the appellant did not know the serious jeopardy he was in. While his lawyer told him that there may be serious immigration consequences arising from his guilty pleas, his lawyer admits that he did not "get into the specifics". Rather, he told the appellant that he should seek the advice of an immigration lawyer. Knowing that the in-custody appellant had not done so, and did not know the "specifics" about the consequences of a guilty plea, the lawyer assisted the appellant with entering his plea.

[11] The consequences were, of course, grave. Not only was the appellant deportable after the plea because of his permanent resident status, but the length of sentence meant that he would not have a right of appeal from such an order.

[12] On the basis of the fresh evidence, we are satisfied that the appellant had not been informed by his counsel and was not otherwise aware of the potentially serious immigration consequences arising from his guilty pleas, specifically that he could be deported without a right of appeal.

[13] With respect to prejudice, we accept that the appellant would have elected to stand trial if he had been aware of the immigration consequences of his pleas. In his reasons for sentence, the sentencing judge noted the Crown's case was circumstantial, there were triable issues including "issues with respect to whether or not the Crown could prove beyond a reasonable doubt that he was in fact in possession of the item that's been exhibited…". The consequences of deportation were devastating to the appellant's relationship with his dependent children. The appellant states that had he known he would be facing deportation without a right of appeal, he would have taken all available steps in an effort to stay in Canada and keep his family together. One of those steps would have been pleading not guilty in the face of what he characterized as a weak Crown case.

Disposition

[14] We admit the fresh evidence, set aside the pleas of guilty and consequent convictions, and order a new trial on all counts in the information.

"David Watt J.A."

"B.W. Miller J.A."

"Fairburn J.A."