Court File and Parties

Court of Appeal for Ontario Date: 20220107 Docket: C69050

Miller, Zarnett and Coroza JJ.A.

Between

Her Majesty the Queen Respondent

and

Demaine Asphall Appellant

Counsel: Ben ElzingaCheng, for the appellant Molly Flanagan, for the respondent

Heard: in writing

On appeal from the convictions entered and the sentence imposed on March 11, 2015 by Justice Malcolm McLeod of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant, who is a permanent resident of Canada and has been in Canada for 30 years, seeks to set aside guilty pleas on the basis that he was uninformed of the immigration consequences of them. The Crown now concedes the appeal.

[2] The appellant pleaded guilty to possession of a restricted firearm with ammunition, carrying a concealed weapon, and breach of weapons prohibition. He was convicted and sentenced to two years less a day for possession, 90 days consecutive for carrying a concealed weapon, and 60 days consecutive for breach of the weapons prohibition. He has served his sentence.

[3] After serving his sentence, the appellant was arrested by the CBSA and advised he was ineligible for admission to Canada as a consequence of his convictions, and that removal proceedings had been commenced against him.

[4] The appellant swore in an affidavit in support of this appeal that he had been unaware of the immigration consequences of his convictions, and if he had been aware he would not have pleaded guilty but would have proceeded to trial. He was cross-examined on that affidavit, and the Crown now concedes that there is no basis in the evidence to challenge the appellant’s assertion that he was unaware of the immigration consequences of his guilty plea: there was no plea inquiry at trial, and trial counsel had no notes, no specific recollection, and did not have a uniform practice of advising clients of immigration consequences. Furthermore, the appellant provided evidence that he faced prejudice from removal from Canada: he has lived in Canada since he was 9 years old and removal would disrupt his family life: he has 8 children and has been living with his wife and 6 of those children for the past 12 years.

Disposition

[5] Given the Crown’s concession, we allow the appeal, set aside the guilty pleas and convictions, and order a new trial.

“B.W. Miller J.A.”

“B. Zarnett J.A.”

“S. Coroza J.A.”