SUPERIOR COURT OF JUSTICE - ONTARIO
GUELPH COURT FILE NO.: 131/12
DATE: 20130405
RE: HER MAJESTY THE QUEEN v. MICHAEL MEEHAN
BEFORE: DURNO, J.
COUNSEL:
JANINE HODGINS, for the Respondent/Crown
PAUL BURSTEIN, for the Appellant
E N D O R S E M E N T
[On appeal from the judgment of the Honourable R.W. Rogerson,
dated July 19, 2012]
Correction Note: The text of the original judgment was corrected on August 15, 2014 and the description of the correction is appended.
[1] After pleading guilty to driving having consumed excess alcohol, the appellant appeals, contending his guilty plea was invalid because it was not informed. Despite obtaining advice from an immigration lawyer regarding the potential consequences from a conviction, the advice he received was incorrect. Accordingly, he did not realize the consequences of his plea. The Crown submits the plea was valid.
[2] The appellant is from Australia and working at the Ontario Veterinary College in a tenure-track faculty position on a three year “work permit.” When the police investigated a car accident in which the appellant rear-ended a stopped car, he was charged with driving having consumed excess alcohol. Within hours of his release from custody, he spoke with a lawyer regarding the potential consequences from the charge on his immigration status and future plans to apply to become a permanent resident of Canada. The lawyer, was one recommended by the university to assist with advice about immigration matters. He gave the advice pursuant to a program in which the university paid for one consultation.
[3] During the conversation, the appellant asked about the impact a conviction would have on travelling to the United States and his ability to apply for permanent residency in Canada. He was told that since the Americans do not regard “over 80” convictions as crimes involving moral turpitude, he should be able to travel to the Unites States although he should carry documentation to show the nature of the charge. As regards an application for permanent residency, the lawyer told the appellant that a conviction should not be an issue because an “over 80” conviction generally does not result in a jail sentence of greater than 10 years.
[4] The appellant retained another lawyer, an experienced criminal law counsel, for trial and prepared to defend the case. His counsel filed a Charter application seeking to exclude the Intoxilyzer readings because his admission to being the driver was statutorily compelled and he had not been given his rights to counsel before making the admission. When he raised the issue of his immigration status with trial counsel, he said he was not an immigration lawyer and would defer to immigration counsel’s advice.
[5] On the morning of trial, the appellant’s counsel advised him that a witness had attended whom he did not think was going to appear. This resulted in the nature of his Charter application being “greatly weakened” and the Crown would likely succeed in the prosecution. Having been told by the immigration lawyer that there would be no material immigration consequences from being found guilty, the appellant instructed his counsel that he would plead guilty as he did not want to be seen as wasting the court’s time.
[6] The appellant pled guilty, was convicted, fined $1,300 and prohibited from driving for one year. Within a month of the conviction, he received a notice of a hearing to determine whether he should be ordered removed from Canada as a result of the conviction. Contrary to the advice he received, upon any conviction for an offence for which an offender is liable to receive a sentence of ten years if prosecuted by indictment, regardless of the Crown’s actual election, the offender is inadmissible to Canada on the grounds of serious criminality. Immigration and Refugee Protection Act, s. 36 (2)(b). While he or she can apply as a temporary resident, whether that application would succeed is uncertain.
[7] Whether this ground of appeal invoked the Superior Court of Justice Protocol regarding allegations of ineffective assistance of counsel need not be determined as both counsel have spoken to the immigration counsel who has no recollection or notes of his conversation with the appellant. The Crown did not seek leave to cross-examine the appellant on his affidavit.
Analysis
[8] In R. v. T.(R.), (1992), 1992 2834 (ON CA), 10 O.R. (3d) 514 (C.A.) Doherty J.A. held that “[a]n accused who is convicted upon his or her plea of guilty may appeal that conviction. An appellate court will permit the withdrawal of a guilty plea and quash the consequent conviction where there are "valid grounds" for doing so: Adgey v. R., 1973 37 (SCC), [1975] 2 S.C.R. 426 at p. 431, 13 C.C.C. (2d) 177 at pp. 189-90. No finite list of all "valid grounds" can be provided.”
[9] The onus is on the appellant to establish that his plea was invalid on a balance of probabilities. R. v. Easterbrook 2005 12676 (ON CA), [2005] O.J. No. 1486 (C.A.). To be valid, a plea must be voluntary, unequivocal and informed. T.(R.), at para. 14.
[10] The issue here is whether the plea was informed. In T.(R.), Doherty J.A., examined a case where the appellant contended, amongst other problems with his guilty pleas, that he did not know the consequences of his plea. His Lordship held that an informed plea was one in which the accused was aware of the nature of the allegations, the effect of the plea and its consequences. Knowing the consequences meant the realization that convictions would flow as well as an appreciation of the potential penalty he faced. T.(R.), at para. 37.
[11] The issue on this appeal is did the appellant understand the consequences of his guilty plea? While he understood the nature of the charge and the potential criminal law penalties he faced, his decision to plead guilty was based in part upon erroneous legal advice he received about the immigration consequences of a conviction. I am persuaded that in the highly unusual circumstances in this case that it is appropriate to strike the plea, quash the conviction and direct a new trial be held. I reach this conclusion for the following reasons.
[12] First, the appellant realized within weeks of his conviction that he had received inaccurate advice and sought to pursue an appeal, as opposed to seeking to withdraw the plea years later. See R. v. Tzeng, [2007] O.J. No. 878 (S.C.J.) His conduct from the time he received the notice of hearing is consistent and supports his position that he was misinformed and relied on the information he received when he decided to plead guilty.
[13] While the case dealt with erroneous advice about the potential sentence, in R. v. Armstrong [1997] O.J. No. 45, the Court of Appeal allowed a guilty plea to be struck. The appellant, who received a 30 day jail sentence, had been erroneously told she was eligible for a conditional discharge when she was not. In R. v. Stewart (2002), 2002 16206 (ON SC), 33 M.V.R. (4th) 103 (S.C.J.), Glass J. allowed an appeal when the appellant was never told he faced an automatic three year license suspension under the Highway Traffic Act, and not the two years that he was told. The Highway Traffic Act suspension is automatic and not part of the criminal law penalties. See also: R. v. Fells [2003] O.J. NO. 1392 (S.C.J.) where the unknown implications of a discharge was the basis for the striking of a guilty plea.
[14] Second, unlike others who have raised the same issue, he directed his mind to the implications on the date he was charged and received legal advice from counsel recommended by the university to provide advice on immigration issues. The appellant received advice and relied upon it. His trial counsel understandably deferred to the immigration counsel’s advice.
[15] While the conversation with the immigration counsel is not recalled verbatim, it is apparent the appellant understood that since there would not be a ten year sentence imposed, he did not have concerns regarding his stay in Canada. Absent cross-examination on his affidavit, I accept that he honestly believed there would be no immigration concerns. This is very different from the British Columbia Court of Appeal judgment in R. v. Tyler 2007 BCCA 142, 218 C.C.C. (3d) 400 where that offender knew his immigration status in Canada was in serious jeopardy when he entered the guilty plea. It is also distinguishable from cases where the immigration consequences were unforeseen.
[16] Third, the timing of the plea is important. Up to the morning of trial the appellant intended to plead not guilty and defend the charge on the basis of a breach of his Charter rights. It was only on the morning of trial that things changed when a witness who was not expected to appear attended and greatly weakened the Charter application. At that time, trial counsel and the appellant re-assessed their intention to proceed to trial. The appellant’s affidavit notes that he had been told there were no immigration consequences, so he decided not to waste the court’s time and plead guilty. It is apparent that his decision to plead guilty was at least in part premised on the advice he received from immigration counsel. Given the appellant’s understanding of that advice, that there is nothing to dispute that he was given the information he says he was, and the timing of the plea, I am not persuaded there was an onus on him to get additional information from the immigration lawyer or another immigration expert before pleading guilty.
[17] While referring to a case in which the Crown had failed to disclose evidence, the Supreme Court of Canada held that an offender who sought to withdraw a guilty plea had to demonstrate that there was a reasonable possibility that the undisclosed evidence would have influenced his or her decision to plead guilty, if it had been available before the plea was entered. The test is objective, not whether the offender would actually have declined to plead guilty, but rather whether a reasonable and properly informed person, put in the same situation, would have run the risk of going to trial if he or she had timely knowledge of the undisclosed evidence, when it is assessed together with all of the evidence already known. If assessing the potential impact of the unknown evidence on the offender’s decision to admit guilt leads to the conclusion that there was a realistic possibility the offender would have run the risk of a trial, leave must be given to withdraw the plea. R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307 at para. 90. Here, there is a realistic possibility the appellant would have proceeded to trial.
[18] Fourth, in Ontario there is no need for an appellant who seeks to strike his or her guilty plea to establish they had a defence if the case proceeded to trial. R. v. Rullie 2011 ONCA 18. To the extent that some of the Crown’s cases from other provinces relied on the absence any indication of a viable defence, the law in Ontario is different. R. v. Hunt 2004 ABCA 88; R. v. Tyler (2007), 2007 BCCA 142, 218 C.C.C. (3d) 400 (B.C.C.A.) Even if that factor was required, the appellant had an arguable issue on the Charter application although the chances of success were greatly reduced when the witness appeared.
[19] Fifth, it cannot be said that the appellant pled guilty to gain some short-term advantage as occurred in R. v. Tyler (2007), 2007 BCCA 142, 218 C.C.C. (3d) 400 (B.C.C.A.). That offender gained the advantage of his release from jail, knowingly setting aside any consideration of the long-term consequences. Tyler, at para. 23.
[20] Sixth, in a somewhat similar case, a new trial was ordered in R. v. Shaiq Chinoy by Trotter J. on July 19, 2011. Ms. Hodgins very fairly brought this case to my attention. There, the realization of immigration consequences occurred after the plea. There is no indication that the issue was adverted to before the plea. I regard this case as providing a stronger basis upon which to strike the plea.
[21] Seventh, while other provincial appellate courts have held that unforeseen immigration consequences are not a ground upon which to invalidate a guilty plea (R. v. Hunt, 2004 ABCA 88, [2004] A.J. No. 196 (C.A.), R. v. Nersysyan [2005] Q.J. No. 7952 (C.A.) and R. v. Tyler 2007 BCCA 142, [2007] B.C.J. No. 434 (B.C.C.A.), the Court of Appeal for Ontario has yet to determined that issue. In R. v. Hetzberger, [1979] O.J. No. 1818 Weatherston J.A. considered the immigration consequences as a factor, albeit not the only one, in granting an extension of time.
[22] While an extension was not granted in R. v. Closs, 1998 1921 (ON CA), [1998] O.J. No. 172 by Carthy J.A, that applicant did not face immigration consequences for himself. Rather, he sought to extend the time to file an appeal when he was refused entry to the United States a year after he pled guilty and served 25 days in jail. His plea resulted in the charges being withdrawn against his wife who would have been deported if convicted. Carthy J.A. found “[t]there are many negative consequences of having a criminal conviction and it cannot be expected that these will all be explained to an accused prior to a plea; nor should the convicted person expect the judicial system to provide a fresh start when a surprising consequence of the conviction is encountered.” The negative consequence in Closs was the appellant, a Canadian citizen, being refused entry to the United States. The consequences here are significantly different. Where a person who is not a Canadian citizen is charged with an offence more recent authorities examined the immigration consequences that flow from sentences and could be viewed as suggesting that there is an expectation that the accused and the trial court should be aware of the potential immigration consequences. R. v. Pham 2012 SCC 15, R. v. C.(B.R.), (2010), 2010 ONCA 561, 259 C.C.C. (3d) 27 (C.A.) In addition, to the extent that Carthy J.A. relied on the whether there was an “appreciable promise of success” at a trial in dismissing the application in chambers, Rulli, a subsequent judgment of a panel found that whether or not there was a viable defence was not a relevant factor.
[23] In these unusual circumstances, I am persuaded that the plea was not informed. The appellant adverted to the consequences from a conviction and honestly believed there were no immigration consequences. In these circumstances, when the accused takes steps to determine the consequences and relies on that advice when deciding whether to defend the charge, he or she should know the actual potential consequences.
[24] The appeal is allowed, the conviction quashed and a new trial ordered.
[25] The appellant is to appear on April 26, 2013 at 9:30 a.m. in Courtroom #2, Ontario Court of Justice, 36 Wyndham St. S., Guelph to set a new trial date.
DURNO J.
DATE: April 05, 2013
GUELPH COURT FILE NO.: 131/12
DATE: 20130405
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN
v.
MICHAEL MEEHAN
BEFORE: DURNO J.
COUNSEL:
J. Hodgins, for the Respondent/Crown
P. Burstein, for the Appellant
ENDORSEMENT
[On appeal from the judgment of the Honourable R. W. Rogerson, dated July 19, 2012]
Durno J.
DATE: April 05, 2013
GUELPH COURT FILE NO.: 131/12
DATE: 20130405
CORRECTED DECISION
[On appeal from the judgment of the Honourable R.W. Rogerson,
dated July 19, 2012]
[1] CORRECTED DECISION: The following paragraphs correct the corresponding paragraph in the original judgment issued on April 5, 2013.
[2] Paragraph 6: The original version of the reasons noted that the applicable section of the Immigration and Refugee Act was s. 36(2)(b) that provides that a permanent resident or a foreign national is inadmissible on grounds of serious criminality for being convicted in Canada of an offence punishable by a maximum of term of imprisonment of at least ten years. Pursuant to s. 255(1)(b) of the Criminal Code driving having consumed excess alcohol when prosecuted by indictment has a five year maximum.
[3] The appellant's notice was under s. 26(2)(b) of the Immigration and Refugee Protection Act that provides that a foreign national is inadmissible on grounds of criminality if convicted of an offence punishable by indictment. Hybrid offences are deemed to have been prosecuted by indictment, even if prosecuted summarily. s. 26(3)(a) Accordingly, the appellant was inadmissible because he was a foreign national who was convicted of a hybrid offence, regardless of the maximum penalty.
DURNO J.
DATE: August 15, 2014