Peter H. Edelmann

The accused sought to withdraw a guilty plea after learning it carried serious immigration consequences.

A majority held that an accused must show a reasonable possibility of subjective prejudice, meaning they would have pleaded differently if informed.

The court found the plea was uninformed but dismissed the appeal because that prejudice was not established.

The Supreme Court allowed the appeal and quashed a ministerial referral for an admissibility hearing under s. 36(1)(a) of the Immigration and Refugee Protection Act.

It held that a conditional sentence is not a 'term of imprisonment' for the serious criminality threshold based on an imposed sentence.

It also held that the 'maximum term of imprisonment of at least 10 years' must be assessed based on the law at the time the offence was committed, not at the time of the admissibility determination.

The matter was remitted to a different delegate for redetermination on a correct legal interpretation.

The Court allowed the appeals and held that former section 117 of the Immigration and Refugee Protection Act was overbroad under section 7 of the Charter.

It captured humanitarian aid, mutual aid among asylum-seekers, and assistance to family members, which fell outside Parliament’s objective of targeting organized people smuggling.

Attorney General consent to prosecute did not cure the constitutional defect.

The Court read down the former provision to exclude those protected categories and remitted the charges for trial.