Court of Appeal for Ontario

Date: 2024-03-21 Docket: C69764

Before: Pepall, George and Dawe JJ.A.

Between: His Majesty the King Respondent

And: Swainson Mills Appellant

Counsel: Boris Bytensky and Sara Little, for the appellant Alexander Alvaro, for the respondent

Heard: February 26, 2024

On appeal from the conviction entered on March 26, 2021 and the sentence imposed on August 5, 2021 by Justice Lara A. Crawford of the Ontario Court of Justice.

Reasons for Decision

A. Overview

[1] The appellant pleaded guilty to a charge of failing to remain at the scene of a fatal traffic accident and received a sentence of 18 months’ imprisonment. He appeals against his conviction on two separate but related grounds, and also appeals against sentence.

[2] All three of the appellant’s grounds of appeal relate to the collateral immigration consequences that have resulted from his guilty plea and the sentence that he received. The appellant is a permanent resident of Canada. As a result of his conviction and sentence, he is now subject to deportation without any right to appeal his removal on humanitarian or compassionate grounds.

[3] On his conviction appeal, the appellant maintains that his guilty plea was not properly informed because he was unaware of these collateral immigration consequences when he entered it. He argues further that his right to be present during his trial was then violated when the trial judge conducted what was, in effect, a post-plea inquiry with the appellant’s counsel, in the appellant’s absence, into the appellant’s knowledge of these collateral consequences. On his sentence appeal, the appellant seeks to have a reduced sentence imposed that would preserve his immigration appeal rights.

[4] We would allow the conviction appeal and order a new trial, on the basis that the appellant was improperly excluded from his trial when matters affecting his vital interests were discussed between the trial judge and his counsel in his absence, in circumstances where it is evident that the trial judge would have made further inquiries of the appellant concerning the validity of his plea if she had been apprised of the true situation. We are satisfied that, in the circumstances here, the appellant’s exclusion from the proceedings gave rise to a miscarriage of justice that cannot be cured by applying the proviso.

B. The Fresh Evidence Application

[5] The appellant seeks to adduce fresh evidence, consisting of his own affidavit and an affidavit from his trial counsel; transcripts of their cross-examinations; and an affidavit from a legal assistant.

[6] The Crown agrees that this fresh evidence falls “outside the ‘Palmer paradigm’” because it is being tendered to assess “the very validity of the trial process”: R. v. Widdifield (1995), 100 C.C.C. (3d) 225 (Ont. C.A.), at p. 232; R. v. Palmer, [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193. Crown counsel accordingly takes no issue with the admission of the fresh evidence. We agree.

C. Factual Background

[7] In November 2019, a cyclist was struck by a motor vehicle and killed. The driver did not stop after the accident.

[8] In March 2020, the appellant was charged with failing to stop after an accident resulting in death, contrary to s. 320.16(3) of the Criminal Code.

(1) The appellant’s March 26, 2021 guilty plea

[9] On March 26, 2021, the appellant re-elected to be tried in the Ontario Court of Justice and entered a plea of guilty on the fail to stop charge. The trial judge conducted a plea inquiry, after which she stated that she was “satisfied this is an informed and voluntary plea”. However, the appellant’s trial counsel did not advise the trial judge that the appellant was a permanent resident of Canada, and the trial judge’s plea inquiry did not include any questions about the appellant’s immigration status, or his awareness of the collateral immigration consequences of his plea and/or of the sentence that he might receive.

(2) The immigration consequences of the appellant’s guilty plea

[10] The appellant, who was 38 years old at the time of sentencing, was born in Jamaica and came to Canada when he was 13 years old. He was granted permanent resident status but has never obtained Canadian citizenship. His wife is also a Canadian permanent resident. Their children were born in Canada and are Canadian citizens.

[11] Section 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“the IRPA”), deems permanent residents to be “inadmissible on grounds of serious criminality” if they are convicted in Canada of an offence “punishable by a maximum term of imprisonment of at least 10 years”, or if they actually receive a sentence of “imprisonment of more than six months”.

[12] The offence of failing to stop after an accident resulting in death in s. 320.16(3) of the Criminal Code, to which the appellant pleaded guilty, carries a maximum sentence of life imprisonment: Criminal Code, s. 320.21. Because this maximum sentence is greater than ten years’ imprisonment, a conviction for this offence makes the appellant inadmissible under s. 36(1) of the IRPA, regardless of what sentence he actually receives.

[13] However, the appellant’s actual sentence had important consequences for his right to appeal against a removal order on humanitarian or compassionate grounds: see e.g., Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at paras. 6-7. In summary, if the appellant had received a sentence of less than six months’ actual imprisonment – including a conditional sentence of any length – he would have been able to appeal a removal order to the Immigration Appeal Division pursuant to s. 63(3) of the IRPA. However, if he received a custodial sentence of six months or more, he would lose the right to appeal: IRPA, s. 64(2).

(3) The June 21, 2021 appearance for sentencing submissions

[14] The case returned before the trial judge for sentencing submissions by videoconference on June 21, 2021. The appellant’s trial counsel argued that the appellant should receive a conditional sentence, while the Crown took the position that he should receive an upper-reformatory sentence of imprisonment. Neither counsel made any mention of the potential immigration consequences of a conviction and sentence.

[15] The appellant’s trial counsel incorrectly affirmed, when asked by the trial judge, that the appellant was a Canadian citizen. However, when the trial judge later asked the appellant whether he wished to say anything on his own behalf, the appellant corrected his counsel about this and informed the trial judge that he was in fact a permanent resident.

[16] This prompted the trial judge to ask the appellant whether he had spoken to an immigration lawyer about the potential immigration consequences of a criminal conviction and sentence for the charged offence. The appellant replied that he had not done so.

[17] The trial judge then stated:

[G]enerally speaking, when there is an issue like this that arises, I would like to make sure that you have an opportunity to speak with an immigration lawyer about the potential consequences, but usually I like to do that before the plea is entered and we get this far.

Trial counsel then advised the trial judge that he had not known that the appellant was a permanent resident. The trial judge concluded:

Well, I have nothing before me from an immigration or any kind of an opinion, Mr. Mills, as to how that may or may not affect you. So, I am going to - there is a case that [trial counsel] filed that outlines some of the things that I might be able to take into account with respect to that, but thank you for clarifying the fact that you are a permanent resident. And I will let you finish what you wanted to say to me here today, and then we will have a further discussion about this after.

However, the proceedings that day then concluded without any further discussion of this issue. After the appellant left the videoconference, a date for the imposition of sentence was fixed for August 5, 2021.

(4) The June 29, 2021 appearance

[18] After the virtual court proceedings on June 21, 2021 concluded, the trial judge had court staff send an email to counsel to arrange a further virtual appearance before her “some time this week or next”, stating, “I would like [the appellant] to be present as well”. In her email to court staff, which staff forwarded to both the Crown and trial counsel, the trial judge explained that “[t]here was an aspect of the sentencing that I did not return to and would like to address with them.”

[19] This further appearance was ultimately scheduled to occur by videoconference on the afternoon of June 29, 2021. In an email confirming this new appearance with counsel, court staff reiterated: “Please make sure [the appellant] is also present”.

[20] It is undisputed that trial counsel did not tell the appellant about the new June 29, 2021 virtual appearance, and that the appellant did not attend that day. Trial counsel’s evidence is that he understood from the emails that the June 29, 2021 appearance would be “a JPT to satisfy the judge that, in fact, we're continuing with the plea and that there’s no issue as to its voluntariness.”

[21] The trial judge began the June 29, 2021 appearance by explaining that she had brought counsel back because the last appearance on June 21, 2021 had concluded without any further discussion of the immigration issue. She explained further:

I told [the appellant] I would return to that so we could address it, and I did not. My concern as the Court at this point, is of course that it is a valid plea that has been entered, and it has to be voluntary and unequivocal and I am not concerned about those two things.

It is the being informed part that I want to make sure [the appellant] entirely was, and is, as we move forward. The immigration part of the collateral consequences is very much at play, just by the very nature of the charge he has been found guilty of now, under that section of the Immigration and Refugee Protection Act.

So, I suppose what I wanted to canvass with you and [the appellant] was whether he wished an opportunity to consult with an immigration lawyer if he has not done that. I did not go into it with him because I said I would come back to it, and then I never did. And so I just want to be satisfied that he made his plea on an informed basis on that point before I went any further with my judgment, because I want to make sure he understands the consequences there. [Emphasis added.]

[22] Trial counsel responded:

So he understands, and he certainly is sticking with his plea. This is a resolution that he’s told me to follow, and it’s the correct resolution for him. [Emphasis added.]

Crown counsel then asked trial counsel if, without divulging privileged communications, he could confirm:

… that even though there was that apparent miscommunication about the status, you’ve confirmed with him since then that it’s still his wish to have a plea?

Trial counsel responded: “Yes”.

[23] The trial judge then concluded:

All right, thank you very much to both of you, I appreciate that. Based on what I have heard from both of you, particularly you, [trial counsel], about addressing it again with [the appellant], after I brought it up, I am satisfied that it would be a voluntary, unequivocal and informed plea. So we will proceed on that basis.

[24] It is common ground that the appellant’s trial counsel had not, in fact, given the appellant any legal advice about the immigration consequences of his guilty plea and the sentence that he might receive. The appellant and his trial counsel disagree about whether they discussed the immigration issue before the June 29, 2021 appearance. The appellant maintains that they did not do so. His trial counsel swore an affidavit in which he stated that they “did not discuss any immigration‑related issue that might arise from conviction or sentence … at any time (prior to June 21, 2021 or afterwards)”. However, in cross-examination, he changed his evidence and said that they did discuss the immigration issue at some point after June 21, 2021, but that he did not provide the appellant with any immigration law advice.

[25] It is also undisputed that trial counsel did not tell the appellant about the June 29, 2021 appearance, and that the appellant only learned about it months later, after he had been sentenced.

(5) The sentence imposed

[26] When the appellant’s matter returned to court on August 5, 2021, the trial judge sentenced him to 18 months’ imprisonment. She noted:

During the sentencing hearing, the court was advised that [the appellant] is not a Canadian Citizen, he is a permanent resident. During further submissions the court was satisfied that [the appellant] was aware of the impact this conviction could have on his immigration status and had given his counsel … informed instructions to continue with this sentencing process.

[27] After discussing the Supreme Court of Canada’s decision in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, the trial judge stated:

In this case, Section 320.21 of the Criminal Code sets out that section 320.16(3) is an offence punishable by a maximum term of imprisonment for life. As a result, section 36 of the IRPA appears to be engaged by the very conviction for this offence. Given that this conviction has the offence falling under the first criteria of inadmissibility under s. 36, the potential collateral consequence of the second criteria, that being the length of the sentence itself, is not necessarily as significant a consideration in this matter.

In my view, however, given the gravity of this offence as described, and the degree of responsibility of this offender, including his actions covering up his offence and the primary sentencing principles at play, a sentence of 6 months or less would not be a fit sentence in this case and I would not have imposed it regardless of the immigration consequences.

D. Analysis

[28] Section 650(1) of the Criminal Code requires an accused person to be “present in court during the whole of their trial”. This includes sentencing proceedings: see e.g., R. v. Petrovic (1984), 13 C.C.C. (3d) 416 (Ont. C.A.), at pp. 425-26. As Martin J.A. explained in R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.), at p. 537, leave to appeal refused, [1982] S.C.C.A. No. 124:

[T]he characterization of a proceeding as a part of the trial in relation to the accused's right to be present at the proceeding would seem to depend upon whether his exclusion from the proceeding violates his right to be present so that at all times he may have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests.

[29] This court has previously observed that s. 650 codifies a pre-existing common law right (see R. v. M.C., 2023 ONCA 611, 430 C.C.C. (3d) 281, at paras. 34-35), and that “[t]he right to be present at one’s trial also has a constitutional footing”: R. v. S.M., 2022 ONCA 765, at para. 33; see also R. v. Burnett, 2021 ONCA 856, 159 O.R. (3d) 321, at paras. 28, 69-71.

[30] The right to be present at trial in s. 650(1) is subject to a number of statutory exceptions. Most notably for present purposes, s. 650.01(1) permits criminal defendants to “appoint counsel to represent [them] for any proceedings under this Act by filing a designation with the court”. Section 650.01(3) then sets out the circumstances in which an accused person may appear by designated counsel rather than by appearing personally, while s. 650.01(3)(b) provides that “an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise”.

[31] In this case, the June 29, 2021 appearance before the trial judge plainly engaged the appellant’s vital interests. The trial judge was evidently concerned about the possibility that his guilty plea three months earlier had not been adequately informed, and had arranged the June 29, 2021 appearance in order to conduct what would have effectively been a further plea inquiry.

[32] Although the trial judge had specifically requested that the appellant appear personally on June 29, 2021, the Crown argues that s. 650.01(3) nevertheless gave her jurisdiction to proceed in his absence, because his counsel had previously filed a designation, and because s. 650.01(3)(b) provides that “an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise”.

[33] Even assuming that the appellant’s absence on June 29, 2021 did not cause the trial judge to lose jurisdiction, by virtue of s. 650.01, we are not satisfied that the existence of a designation cures the broader problem that arose when the trial judge conducted what was effectively a further plea inquiry with the appellant’s counsel, in the appellant’s absence. We reach this conclusion for four main reasons.

[34] First, while s. 650.01(3) permits guilty pleas to be taken in the accused’s absence, s. 650.01(3)(c) also creates a default presumption that the accused should be present, “unless the court orders otherwise”. Although the appellant had already entered his guilty plea months earlier, the trial judge evidently meant to use the June 29, 2021 appearance to conduct what would in effect be a further plea inquiry. She had also specifically directed that the appellant should attend personally by videoconference.

[35] Second, it is undisputed that the appellant’s trial counsel never told the appellant about the June 29, 2021 appearance. As far as the appellant knew, his case had gone over to August 5, 2021 for sentencing. Even though the appellant had previously signed a designation of counsel, it is debateable whether this gave trial counsel the authority to appear on the appellant’s behalf, without specific instructions, at a court appearance that the appellant had no idea was taking place.

[36] Third, we are satisfied that the representations that trial counsel made to the trial judge at the June 29, 2021 appearance were misleading. The trial judge had specifically sought confirmation that the appellant understood the immigration consequences of his guilty plea. Trial counsel responded by saying:

[H]e understands, and he certainly is sticking with his plea. This is a resolution he’s told me to follow, and it’s the correct resolution for him.

[37] Taken in context, the trial judge likely would have understood trial counsel to be assuring her that since the last court appearance on June 21, 2021, he had given the appellant legal advice about the immigration consequences of a criminal conviction and sentence, and had received instructions from the appellant to proceed with the plea.

[38] In fact, trial counsel had not given the appellant any such legal advice.

[39] Crown counsel urges us not to accept the appellant’s evidence that he did not understand the specific immigration consequences that would result if he was convicted of the fail to stop offence and received a jail sentence of six months or more: namely, that he would lose the right to appeal a removal order on humanitarian or compassionate grounds.

[40] We are unable to accept this submission. Although his various affidavits are not fully consistent, it is undisputed that the appellant had not received any immigration law advice from his trial counsel, and his trial counsel did not know whether the appellant had obtained immigration law advice from anyone else. Given the trial judge’s concerns, had she been aware of the circumstances, she would have arranged a further appearance to question the appellant about these matters.

[41] Fourth, in our view, the June 29, 2021 proceedings squarely engaged the animating purpose of the common law and statutory “presence” requirement. As Martin J.A. observed in Hertrich, at p. 537:

Fairness and openness are fundamental values in our criminal justice system. The presence of the accused at all stages of his trial affords him the opportunity of acquiring first-hand knowledge of the proceedings leading to the eventual result of the trial. The denial of that opportunity to an accused may well leave him with a justifiable sense of injustice.

See also R. v. Barrow, [1987] 2 S.C.R. 694, at p. 706; R. v. M.C., at para. 37.

[42] The appellant ought to have been afforded the opportunity to be present on June 29, 2021. In her reasons for sentence given on August 5, 2021, the trial judge stated that she had heard “further submissions”, and that these submissions had satisfied her that the appellant:

… was aware of the impact this conviction could have on his immigration status and had given his counsel … informed instructions to continue with this sentencing process.

[43] The appellant was unaware that there had been a further court appearance where his knowledge of the impact of a conviction and sentence on his immigration status had been discussed in his absence. The submissions made on this occasion led the trial judge to incorrectly believe that the appellant had received immigration law advice from his trial counsel. Since he was not present at this appearance, the appellant had no opportunity to correct the record.

[44] Section 686(1)(a)(iii) permits us to allow a conviction appeal “on any ground where there was a miscarriage of justice”. We need not decide whether the appellant’s absence during the June 29, 2021 appearance violated his statutory right to be present during the whole of his trial under s. 650 of the Criminal Code, because we are satisfied that the proceedings that took place in his absence on this occasion gave rise to a miscarriage of justice: see R. v. McDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494, at para. 44.

[45] The Crown argues that even if the trial judge was misled about the appellant’s knowledge of the potential collateral immigration consequences of his guilty plea, “that does not undermine his designation, nor ought it to convert a procedural irregularity into a fatal breach of the [a]ppellant’s rights”.

[46] We disagree. Even if we assume that trial counsel had the authority under s. 650.01 to appear on the appellant’s behalf at the June 29, 2021 appearance pursuant to the designation, we are not persuaded that the appellant’s absence caused him no prejudice. It is possible that the appellant’s guilty plea might have been struck. Furthermore, the appellant’s absence at the June 29, 2021 appearance affected “the apparent fairness” of the proceedings: R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 123, leave to appeal refused, [2010] S.C.C.A. No. 459.

[47] In these circumstances, the curative proviso in s. 686(1)(b)(iv) of the Criminal Code should not be applied.

E. Disposition

[48] We accordingly allow the appellant’s conviction appeal and order a new trial. This makes it unnecessary for us to address the appellant’s sentence appeal.

“S.E. Pepall J.A.”

“J. George J.A.”

“J. Dawe J.A.”