Court of Appeal for Ontario

Date: 2022-01-13 Docket: C68816

Judges: Miller, Zarnett and Coroza JJ.A.

Between: Her Majesty the Queen, Respondent and Deon Evans, Appellant

Counsel: Nicolas M. Rouleau and Jeff Carolin, for the appellant Matthew Asma, for the respondent

Heard: January 6, 2022 by video conference

On appeal from the convictions entered by Justice Tamarin M. Dunnet of the Superior Court of Justice on November 15, 2013.

Reasons for Decision

[1] The appellant moved to Canada from Guyana when he was 12 years old, and later obtained permanent resident status.

[2] In November 2013, the appellant pleaded guilty to two counts of robbery committed in 2011, when he was 18 years old.

[3] The appellant was told by his trial counsel that he would receive a lower sentence by pleading guilty than would likely be imposed if he was found guilty after trial, and that trial counsel would request a total sentence of 30 months, which after credit for time served, would result in the appellant spending no further time in custody. And, as he told the appellant he would do upon a guilty plea, the appellant’s trial counsel asked the trial judge to split a total sentence of 30 months between the two counts, as sentences that were less than two years per count would give the appellant a “fighting chance” from an immigration perspective. The trial judge gave effect to this request, and the appellant received sentences of 15 months per count which, after credit for pre-trial custody, amounted to an effective sentence of time served.

[4] In actuality, the guilty pleas, convictions and sentences provided no “fighting chance” from an immigration perspective. The convictions rendered the appellant inadmissible to Canada and made him subject to a removal order. As the sentences he received exceeded six months per count, the appellant would have no right to appeal any removal order.

[5] Asserting that he pleaded guilty without full awareness of these collateral immigration consequences, and that he suffered prejudice by doing so, the appellant asks that his convictions be set aside, and that proceedings against him be stayed or a new trial directed.

[6] At the conclusion of oral argument, we allowed the appeal with reasons to follow. These are those reasons.

[7] To set aside the guilty pleas, the appellant must satisfy two criteria: (a) that the pleas were uninformed in the sense that he was misinformed or uninformed about their immigration consequences; and (b) that he suffered subjective prejudice, in the sense that there is a “reasonable possibility that [he] would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions”: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at paras. 3-6, 33-34 and 36. In order to assess the veracity of the appellant’s claim that he suffered subjective prejudice, the court can look to objective, contemporaneous evidence. “The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim”: Wong, at paras. 6, 26.

[8] In order to meet these criteria, the appellant filed fresh evidence including his own affidavits. The Crown agrees that the fresh evidence should be admitted, and we do so.

[9] The Crown also agrees that the appellant has satisfied the first criterion of the test for setting aside the guilty pleas. The appellant was not aware that convictions based on the guilty pleas rendered him inadmissible to Canada, with no right to appeal a removal order based on the convictions. He was led to believe that keeping his sentences for each count to under two years would be of significance to future immigration consequences. In fact, there was no beneficial significance, from an immigration perspective, to any sentence that was over six months; any such sentence meant the appellant would not have any right to appeal a removal order.

[10] On the basis of the evidence and the Crown’s concession, we conclude that the first criterion of the test for setting aside the guilty pleas has been satisfied.

[11] We also conclude that the appellant has satisfied the second criterion of the test.

[12] The appellant’s affidavit evidence is that had he been informed of the relevant immigration consequences, he would not have pleaded guilty and, instead, would have taken all available steps in an effort to stay with his family in Canada, including pleading not guilty, electing to stand trial, and appealing any guilty verdict.

[13] The credibility of that assertion is challenged. The Crown argues that the appellant’s trial counsel told the appellant there may be immigration consequences and that he had no expertise in immigration law. As a consequence, the appellant must have been motivated to plead guilty more by the desire to immediately end his time in custody rather than by what might happen to his immigration status. As well, the Crown points to the appellant’s failure to take prompt steps to retain immigration counsel in 2016, after the appellant was notified of the risk of a removal order, and to follow the advice of immigration counsel to retain criminal counsel.

[14] We are not persuaded by these arguments. Although trial counsel did qualify his advice and although the appellant was aware that there might be immigration consequences, it is common ground that the appellant was misinformed as to those consequences and led to believe that there would be a benefit — a “fighting chance” — from an immigration perspective to pleading guilty and receiving the sentence he did, when there was no benefit. Nor do we take, from the appellant’s conduct post-2016, which ultimately resulted in the retainer of immigration counsel and of counsel to bring this appeal, that the appellant was unconcerned about being removed from Canada.

[15] The credibility of the appellant’s assertion is supported by certain objective matters, including the following:

(a) The appellant’s trial counsel had been of the view that the appellant had a strong defence to the charges he was facing, as he had strong grounds to resist the admission of a confession the appellant had made to the police. The trial judge held the confession to be admissible; it was shortly after that occurred that trial counsel engaged in discussions with the Crown that led to the guilty pleas. Trial counsel had told the appellant that he thought there were strong grounds to appeal the ruling that admitted the confession. Accordingly, from the appellant’s perspective, if he had been fully aware of the immigration consequences of a guilty plea, there would be a reason why he might pursue the “upside” of not pleading guilty with the hope that if his counsel was right, he could ultimately avoid any immigration consequences from a conviction and resulting sentence.

(b) The parties agree that at the time of the guilty pleas, the appellant had spent 30 months in pre-trial custody, and thus had 45 months of credit for pre-trial custody. The parties also agree that the sentence that he would have received were he convicted after trial would likely have been four to five years, less pre-trial custody. The “downside” to proceeding to trial was the same from an immigration perspective as the guilty pleas, and was limited in terms of additional time that the appellant might have to spend in custody. The appellant may have been willing to proceed to trial and risk the downside of an additional 3 to 15 months in custody if it provided the possible upside of avoiding conviction and thus avoiding any immigration consequences.

(c) The appellant’s life, family, and friends were all in Canada. He no longer had any close family or friends in Guyana, to which he would be deported. Accordingly, he had strong reasons to wish to avoid deportation and to follow a course of action that had a prospect of avoiding it.

[16] Assessing the credibility of the appellant’s evidence against the objective factors, we are satisfied that there is a reasonable possibility that, if properly informed, he would have followed an alternative course rather than pleading guilty.

[17] For these reasons, we allow the appeal, set aside the convictions, and order a new trial. The Crown has advised that if the appeal is allowed, it does not view prosecuting the appellant again to be in the public interest given that: (i) the sentences imposed have been served; (ii) he has not re-offended; and (iii) there are extreme pressures on court resources as a result of the pandemic. Accordingly, in the interests of justice, we exercise our discretion under s. 686(8) of the Criminal Code, R.S.C. 1985, c. C-46 and stay further proceedings against the appellant.

“B.W. Miller J.A.”

“B. Zarnett J.A.”

“S. Coroza J.A.”