Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20200310 DOCKET: M51292 (C67761)

Paciocco J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen Respondent

and

Cecil Seerattan Applicant

Counsel: David Shulman, for the appellant Jeffrey Wyngaarden, for the respondent

Heard: February 7, 2020

Reasons for Decision

[1] On the day of the oral hearing, February 7, 2020, I ordered Mr. Cecil Seerattan’s release pending appeal, on the terms set out in a judicial interim release order of that date, with reasons to follow. These are my reasons.

[2] Mr. Seerattan was convicted after pleading guilty to domestic violence charges arising from two incidents involving the same complainant, with whom he had been in a relationship. He is appealing those convictions, contending that his guilty plea was uninformed and misinformed, and that the trial judge erred in denying an adjournment of his sentencing hearing to facilitate an application to have his guilty pleas set aside.

[3] The Crown contests Mr. Seerattan’s release pending appeal. It contends that Mr. Seerattan has failed to demonstrate that his appeal has merit, and that, given the weakness of the appeal in the circumstances, he cannot demonstrate that his continued detention is not necessary in the public interest under the tertiary ground: Criminal Code, R.S.C. 1985, c. C-46, s. 679(3)(c).

[4] It is necessary to set the background facts out in some detail in order to explain my decision.

[5] Mr. Seerattan, who has a mild intellectual disability and suffers from post-traumatic stress disorder, entered the guilty pleas in question on the first day of a scheduled trial, after the trial judge denied what he interpreted to be an adjournment request from Mr. Seerattan. Mr. Seerattan had advised the trial judge that he had been speaking to a new lawyer, Mr. Weisz, about representing him. The case had long been delayed. This was the second trial date, and Mr. Seerattan had a history of discharging lawyers.

[6] I take no issue with the trial judge’s decision to deny the adjournment, but the circumstances going forward were far from ideal. At the time, Mr. Seerattan’s counsel of record, Mr. Rabinovitch, had a pending application to be released as counsel of record and was not prepared for the trial because Mr. Seerattan had not been communicating with him.

[7] After denying the adjournment, the trial judge instructed Mr. Seerattan to communicate with Mr. Rabinovitch. Before standing the matter down to facilitate this, he asked Mr. Rabinovitch whether any attempt had been made to resolve the case. Mr. Rabinovitch said he had received no instructions to do so. After a brief recess defence counsel indicated that there was a resolution, including a guilty plea to some of the charges, and a joint position on sentence.

[8] Before accepting the guilty plea, the trial judge asked defence counsel whether a plea inquiry had been conducted. Defence counsel confirmed that it had and described the plea inquiry he undertook “so the record is clear.” In recounting the plea inquiry that had been undertaken, Mr. Rabinovitch made no reference to immigration issues. The guilty plea was accepted, and findings of guilt were entered.

[9] Those findings of guilt have significant immigration consequences for Mr. Seerattan, who is a foreign national. In a clear effort to mitigate those consequences, the parties arrived at a joint position on sentencing. Under the terms of that joint position, for the first set of charges (those arising from the first incident), Mr. Seerattan was to be given a total sentence of six months less a day. On the second set of charges, arising from the second, more serious incident, Mr. Seerattan would be given a further sentence of 6 months less a day to be served consecutively to the sentence on the first set of charges. The equivalent of 12 months that Mr. Seerattan spent in custody pending his trial would be credited to this second, more serious set of charges.

[10] This position was communicated to the trial judge, who, in trying to clarify the joint position, correctly described the proposed sentence for the more serious incident as “18 months less a day” before credit for pretrial custody was applied. This prompted Mr. Seerattan to ask to speak, and he said, “Like cause that’s not the calculation we talk about.” He was given an opportunity to speak to counsel, which occurred in the body of the court. The parties before me agree that the recording system picked up part of the conversation, which includes Mr. Seerattan saying, “That is an 18-month sentence … May as well go to trial then … Immigration … It is not going to work for me.” After that conversation, Mr. Rabinovitch explained in open court, “Mr. Seerattan just had some concerns because of immigration issues.”

[11] Despite the joint submission on sentence, the parties wanted to obtain a Pre-Sentence Report, so the sentencing hearing was adjourned.

[12] Mr. Weisz took over the representation of Mr. Seerattan for his sentencing hearing. On April 12, 2019, a date set for the sentencing hearing, Mr. Weisz advised the trial judge that he had concerns about whether Mr. Seerattan’s guilty plea was fully informed relating to the immigration consequences. He requested an adjournment both to prepare for the sentencing and to explore more fully the voluntariness of the guilty pleas. It is fair to say that the trial judge expressed some skepticism about the claim that the plea was not fully informed, but granted the adjournment to enable Mr. Weisz, who had recently been retained, to acquire supporting material.

[13] On the return date, May 10, 2019, Mr. Weisz advised the trial judge that he had just received an opinion letter from an immigration lawyer that morning, and had learned that, despite the attempt by the parties to negotiate a sentence of less than six months on each of the charges that would preserve Mr. Seerattan’s right to appeal a removal order, Mr. Seerattan was not entitled to the right of appeal that he expected because he did not hold a permanent resident visa.

[14] The trial judge then gave Mr. Weisz time to meet with Mr. Seerattan. After the meeting, Mr. Weisz informed the trial judge that he had instructions to apply to strike the guilty plea. A date of June 24, 2019 was scheduled for that application.

[15] When that date arrived, Mr. Weisz was not ready. Dissatisfied with the first immigration opinion he had received, he had sought a second opinion which arrived too late to enable him to prepare Mr. Seerattan’s affidavit. In counsel’s view, Mr. Seerattan required confirmation of the actual legal consequences of the findings of guilt before being able to attest that he would not have entered the pleas had he known of the immigration consequences. The trial judge did not accept this explanation and denied the adjournment.

[16] Mr. Seerattan has yet to file an affidavit to support his contention on appeal that his guilty pleas should be set aside. Relying on the decision in R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, the Crown contends that without such affidavit, his appeal has no merit because he has not demonstrated a foundation that could meet the test in R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, for setting aside a guilty plea.

[17] I do not agree. Defence counsel understands that without such affidavit, the appeal is unlikely to succeed, but submits that in the circumstances of this case, for the purposes of this application for bail pending appeal, the record is adequate to demonstrate that the appeal is not frivolous. I agree with this position, for the following reasons.

[18] First, there is a firm foundation for finding that Mr. Seerattan was not only uninformed but misinformed about the collateral immigration consequences of his plea. The Crown conceded as much during the sentencing hearing, noting that the parties negotiating the guilty pleas were under the mistaken impression that by structuring the sentence as they did, Mr. Seerattan would have the right to appeal a removal order. It is not contested between the parties that there is no such right.

[19] Second, there is adequate foundation that Mr. Seerattan was subjectively prejudiced as a result. The comments made by Mr. Seerattan when the trial judge pointed out that the sentence for the second incident was in fact an eighteen-month sentence support a reasonable inference that Mr. Seerattan’s belief that he would have the right to appeal a removal order was crucial to his decision to plead guilty.

[20] This court did decide in Girn that a party who has pleaded guilty knowing that the potential consequences include removal from Canada and that he may or may not have a right to appeal a removal order depending on the length of his sentence has not been prejudiced if it turns out that there is no right of appeal: at paras. 77-78. It remains to be decided, whether a party who enters a plea based on an affirmative yet mistaken belief that he or she will have a right to appeal a removal order has entered a “voluntary, unequivocal and informed” guilty plea. Girn does not provide an answer to that question. Indeed, in contrast to Girn, this court set aside a guilty plea in R. v. Pineda, 2019 ONCA 935, where a party pleaded guilty after counsel informed him that there may be serious immigration consequences but did not “get into the specifics”: at paras. 10-12.

[21] As a result, Mr. Seerattan’s appeal is not frivolous.

[22] Nor do relevant considerations unrelated to the merits of the appeal support the Crown’s submission that Mr. Seerattan has failed to demonstrate that his detention is not necessary on the tertiary ground. In paragraph 38 of his Reasons for Sentence, the trial judge extended a plea to the immigration authorities to exercise discretion in favour of permitting Mr. Seerattan to remain in Canada. He said, at para. 38:

Seerattan is a first offender, he pleaded guilty, he has led a law-abiding life for 46 years, he is hard-working and maintains a number of different jobs, he has certain diagnosed conditions that have responded well to counselling from a number of different agencies in Toronto, and he has been on bail successfully since October 2016 without re-offending. Perhaps, most significantly, the victim in this case (Ms. David) has recovered fully and speaks highly of Seerattan (as do other women in his life, such as his ex-wife and half-sister). In particular, Ms. David advised the Court that Seerattan is a “good person” and that he would be harmed if he was deported to Guyana. She struck me as unbiased, in this regard, because she no longer has any relationship with Seerattan. She also struck me as a strong and sincere individual who was now working a good job and who had successfully “moved on” from the effects of the present offences.

[23] I appreciate that Mr. Seerattan is now seeking to remove the guilty plea that lent support to the trial judge’s opinion. I also recognize that Mr. Seerattan now stands charged with an additional, unrelated offence that allegedly occurred while on release. However, given those circumstances in the trial judge’s plea to immigration authorities that do remain true, the merits of the appeal, the fact that Mr. Seerattan has now served most of his sentence, and the fact Mr. Seerattan has been on bail release for many years without other incident, it is not in the public interest to detain him pending his appeal.

[24] I therefore ordered his release, satisfied that the terms of release, including the continued involvement of the Toronto Bail Program in his supervision, will preserve public safety and allay concerns that reasonable members of the community may have about the impact of his release on the repute of the administration of justice.

“David M. Paciocco J.A.”