COURT FILE NO.: CR-14-40000158-00AP DATE: 20160526

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN - and - JUNGMIN LEE

Counsel: Sunita Malik, for the Crown, Respondent Cameron R. B. Fiske, for the Accused, Appellant

HEARD: May 18, 2016

Kelly J.:

REASONS FOR JUDGMENT

[Summary Conviction Appeal]

Overview

[1] On November 26, 2014, the appellant, Mr. Jungmin Lee pleaded guilty to careless driving contrary to the Highway Traffic Act, R.S.O. 1990, c. H.8 and failing to comply with his recognizance contrary to s. 145(3) of the Criminal Code, R.S.C., 1985, c. C-46. Mr. Lee received a fine in the amount of $250 for the careless driving offence and a suspended sentence with 12 months’ probation pursuant to the fail to comply conviction.

[2] Mr. Lee was born in Korea. At the time of the plea, he was in Canada pursuant to a student visa and had the status of a foreign national. Sometime after the proceeding concluded, he was served with a deportation order. The reason for deportation? Mr. Lee was convicted of an indictable offence. Such a finding renders him inadmissible to Canada pursuant to s. 36(2)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[3] Mr. Lee appeals his convictions and sentence. [1] He raises the following grounds of appeal:

a. That he was deprived of effective assistance of counsel because his counsel, Mr. Randy Barrs Q.C. informed him that in pleading guilty, he would not receive a criminal record;

b. That he was deprived of effective assistance of counsel at trial because Mr. Barrs failed to inform him of the immigration consequences of his plea at the time the plea was entered or before; and

c. In the alternative, that Mr. Barrs erred in failing to inform the Court that Mr. Lee was a foreign national subject to deportation in the event of a conviction for failing to comply with his recognizance.

[4] Mr. Lee submits that if a new trial is not ordered, this Court should vacate the sentence and impose a conditional discharge.

[5] Both counsel submit that the fresh evidence application should be allowed. The fresh evidence consists of affidavits and the cross-examination transcripts of Mr. Barrs, Mr. Lee and Mr. Lee’s then girlfriend, now spouse, Ms. Christine Kim. I agree that it is in the interests of justice that the evidentiary record be complete. As such, the fresh evidence is admissible.

[6] Despite the very capable arguments of counsel for Mr. Lee and for the reasons set out below, the appeal is dismissed.

The Factual Background

[7] The relevant factual background may be summarized as follows:

Date	Occurrence
Dec. 3, 1989	Mr. Lee was born in Korea.
2004	Mr. Lee immigrated to Canada. He was in Canada on a visitor’s visa. His status is that of a foreign national.
Apr. 24, 2013	Mr. Lee was charged with assault and assault cause bodily harm contrary to sections 267(b) and 266 of the Criminal Code. Mr. Lee retained Mr. Barrs. Mr. Lee was released on a recognizance of bail. It required that he not be away from his place of residence each and every night between the hours of 11:00 p.m. and 6:00 a.m. except in the direct company of his surety. His surety was his girlfriend at the time and now wife, Ms. Christine Kim.
2013	After Mr. Lee was charged, he spoke with an immigration consultant and three immigration lawyers. Two of the lawyers advised that he may have to go back to Korea. One lawyer told him that if he was “exonerated” he could stay in Canada. He was told that if he was found guilty and received a criminal record, he could be sent back to Korea. [2]
Nov. 15, 2013	Mr. Lee was arrested and charged with breaching his recognizance, over 80 and impaired driving. Mr. Lee, again, retained Mr. Barrs.
Feb. 24, 2014	Mr. Barrs set a date for trial: November 26, 2014. It was scheduled for 1.5 days with the aid of a Korean interpreter for Mr. Lee.
2014	After a three day trial, Mr. Lee was acquitted of the assault charges arising from the information laid on April 24, 2013.
Nov. 26, 2014	Mr. Lee attended at the court for trial on the charges of failing to comply, over 80 and impaired driving. Crown Counsel sought to amend the information to include “care and control” which was vigorously opposed by Mr. Barrs. Grossman J. suggested that he may be persuaded to amend the information, but that if he did, he might also grant an adjournment. There was a break in the proceedings to permit Counsel to talk. During the break, Crown Counsel and Mr. Barrs did talk. Following that, Crown Counsel got authorization to withdraw the over 80 and impaired driving charges. Counsel had reached an agreement: Mr. Lee would plead guilty to careless driving and failure to comply with his recognizance. The over 80 and impaired driving charges would be withdrawn. Upon resuming, Grossman J. was advised of the resolution. In addressing Mr. Barrs, Grossman J. confirmed that he had conducted a plea inquiry with his client. Upon the arrival of a Korean interpreter, this was confirmed. Mr. Barrs stated: “… We discussed it in detail and he wishes to forego a trial and enter a plea to careless driving and to fail to comply”. Mr. Lee, himself, confirmed that he was entering the plea voluntarily. Mr. Lee was arraigned. Crown Counsel elected to proceed summarily. When asked if he was “guilty or not guilty”, Mr. Lee responded: “I would like to plead guilty”. Grossman J. noticed some hesitation and asked him again if he wished to plead guilty. Mr. Lee responded: “yes”. He then pleaded guilty to both careless driving and failure to comply. The facts, read into the record, on the failure to comply charge are as follows: “The attention of the primary response officers was drawn to the accused exiting Shoppers Drug Mart at a high rate of speed. Upon seeing the marked police car … the accused abruptly stopped his vehicle partially out onto Tomin (ph) Street, he then proceeded slowly westbound on Tomon [sic] Street. Officers queried the license plate of the vehicle and the query returned an indication that the accused was on charges of assault and assault causing bodily harm and that he had been released on a recognizance with a condition that included a curfew that he not be away from his place of residence each and every night between the hours of 11:00 p.m. and 6:00 a.m. except in the direct company of his surety. Breaching his curfew, officers attended the accused’s home address which is 23 Lorraine Drive. This was a short distance away. Upon arriving at 23 Lorraine Drive, officers observed the accused urinating beside his car. The accused’s car was running with the lights turned off. During the course of the investigation, the accused identified himself verbally as Jungmin Lee with the date of birth of December 3rd, 1989. He denied being arrested or having previous police involvement. At 4:56 a.m. the accused was placed under arrest for failing to comply with his recognizance and placed in the rear of the police car. During the course of conversation officers detected an odor of alcohol from the accused’s breath and they found his speech to be slurred. Officers formed a suspicion the accused had consumed alcohol while operating his motor vehicle. He was read an approved screening demand to enable proper analysis of his breath. The accused complied and registered a fail on the roadside screening device. At which time the officers read a demand for the accused to provide a suitable sample of his breath into an approved instrument to enable an analysis to be made to determine the concentration, if any, of alcohol in his blood. The accused complied and was taken to 32 Division. He provided a first breath sample at 6:28 a.m. with a reading of 160 milligrams of alcohol in 100 millilitres of blood and a second sample at 6:58 a.m. with a reading of 140 milligrams of alcohol in 100 millilitres of blood. The accused was advised that he would be further charged with impaired driving. He was held for a show cause hearing. Those are the facts.” Mr. Barrs, on behalf of Mr. Lee, admitted the facts. Convictions were registered. On sentencing, Crown Counsel asked for a suspended sentence, 12 months of probation and 75 hours of community service on the count of failing to comply with his recognizance. On the count of careless driving, Crown Counsel sought a three-month driving prohibition as well as a fine of $300. Mr. Barrs asked for a fine of $200 and no driving prohibition on the careless driving conviction. He asked for a sentence of time served (7 days) regarding the failure to comply conviction. Mr. Barrs made submissions about Mr. Lee’s background, etc. He did not advise the Court of Mr. Lee’s immigration status in Canada. When he was finished, the following exchange occurred between Grossman J. and Mr. Lee: Grossman J.: Mr. Lee, is there anything sir that you want to say to me before I pass sentence? Mr. Lee: You mean about the incident that happened? Grossman J.: I’m asking if you had anything to say that your lawyer hasn’t already said about the situation or your background before I pass the appropriate sentence. Mr. Lee: No, Your Honour, I think my lawyer has said everything that’s needed to be said. Thereafter, Grossman J. passed sentence and had the following to say about the offence of failing to comply: “As it relates to the fail to comply, I cannot overlook that when a court order is made, the intention is that it is complied with. This was an order of bail and it required that he observe a curfew seven days a week from 11:00 p.m. to 6:00 a.m. unless he was in the company of his surety. His surety was his girlfriend. His girlfriend was home. He was not. It was not close to 11:00 p.m. and it was not close to 6:00 a.m. It was about 4:40 a.m. in the morning when he was operating a motor vehicle at a high rate of speed having consumed alcohol. That cannot be viewed lightly. I am satisfied that a conviction be registered [and] that he be placed on probation and sentence be suspended. …”
Nov. 30, 2014	Mr. Lee’s visitor’s visa expired.
Feb. 17, 2015	Mr. Lee was advised of a hearing date for a potential removal order as a result of his conviction pursuant to s. 145(3) of the Criminal Code.
Mar. 3, 2015	Mr. Lee received a deportation order from Canada resulting from his conviction for failing to comply with his recognizance. The notice states that there are grounds to believe that Mr. Lee is inadmissible having been found guilty of an indictable offence: failure to comply contrary to s. 145(3) of the Criminal Code.

[8] It is conceded that Mr. Barrs did not discuss immigration consequences with Mr. Lee, either at the time of the plea or before it. It is also conceded that at no time did Mr. Barrs advise Grossman J. that Mr. Lee was a foreign national and that his immigration status in Canada might be affected should he be convicted of an indictable offence. He did not ask the Court to impose a conditional discharge for the offence of failing to comply with his recognizance.

[9] This is the factual context in which I will consider the grounds of appeal.

a. Was Mr. Lee deprived of effective assistance of counsel because Mr. Barrs informed him that in pleading guilty, he would not receive a criminal record?

[10] I do not find that Mr. Lee was deprived of effective assistance of counsel because Mr. Barrs informed him that in pleading guilty, he would not receive a criminal record (ie. he was receiving a conditional discharge). Why? I am not persuaded that Mr. Barrs told Mr. Lee that he was receiving a conditional discharge and that he would not receive a criminal record.

[11] Firstly, I find that Mr. Lee was aware of the immigration consequences prior to the charges being laid with respect to the failure to comply, etc. He testified that he had spoken to an immigration consultant and three immigration lawyers pursuant to his assault charges. He was informed and he understood that if he was found guilty of an offence, he would have a criminal record and his immigration status in Canada could be affected.

[12] Secondly, I do not find that Mr. Barrs advised Mr. Lee that he would NOT receive a criminal record and receiving a conditional discharge by pleading guilty to failing to comply with his recognizance. Mr. Barrs was asked about this specifically during his cross-examination and he answered as follows:

Q.: Prior to entering the guilty plea, did you tell Mr. Lee that he was going to receive a conditional discharge?

A.: Absolutely not.

Q.: After the guilty plea was entered, did you tell Mr. Lee that he had received a conditional discharge?

A.: Absolutely not.

Q.: …did you ever have a telephone conversation where you told Ms. Kim that her boyfriend had received a conditional discharge?

A.: No, absolutely not. [3]

[13] Further, Mr. Barrs testified that he kept Mr. Lee fully informed about his negotiations with Crown Counsel during the break in proceedings. He did so with the assistance of Ms. Abigail Choo, an experienced Korean interpreter. He said the following about his discussions:

After I had this conversation at length with the Crown, the Crown couldn’t make any deal with me in the circumstances. There’s protocol on impaired cases. … and I remember clearly explaining to him what was going on and what we were trying to achieve and I remember saying to him that I don’t think it’s going to happen . . . then when the Crown came back, and we had this deal, it was all explained to him in the hall with Abigail [the Korean interpreter] present. He understood exactly what was going on. All the requirements of the Code were satisfied . [4] [Emphasis added]

[14] Mr. Lee places significant reliance on an email exchange between his girlfriend and the office of Mr. Barrs on Friday, December 12, 2014. In it, Ms. Kim writes: “Jung Min Lee is planning to leave Canada sometime in January to visit his parents in Korea. Since he does not have any criminal record under his name (as you said over the phone), he would be able to make the trip without any problem?” The response provided is: “YES NO PROBLEM”. I do not find this so compelling as to find that Mr. Barrs advised there would be no criminal record.

[15] While I appreciate there may have been some miscommunication in correspondence sent to Mr. Lee’s girlfriend following the plea from Mr. Barrs’ office, I find that it was just that – a miscommunication. I accept the evidence of Mr. Barrs – at no time did he advise Mr. Lee, or his girlfriend on the phone, that Mr. Lee would NOT receive a criminal record following the plea before Grossman J.

[16] As such, I do not find that Mr. Lee was deprived of effective assistance of counsel because Mr. Barrs informed him that in pleading guilty, he would not receive a criminal record. As such, this ground of appeal is dismissed.

Ineffective Assistance of Counsel

[17] I will now deal with the last two grounds of appeal together:

b. Was Mr. Lee deprived of effective assistance of counsel at trial because Mr. Barrs failed to inform him of the immigration consequences of his plea at the time the plea was entered or before?; and

c. In the alternative, did Mr. Barrs err in failing to inform the Court that Mr. Lee was a foreign national subject to deportation in the event of a conviction for failing to comply with his recognizance?

The Effective Assistance of Counsel – The Governing Legal Standard

[18] To be successful in an appeal of this nature, the threshold for establishing a claim of ineffective assistance of counsel is high. Mr. Lee must establish the following in order to succeed:

a. the material facts upon which the incompetence claim is based;

b. that the assistance provided by counsel was ineffective (the “performance component”); and

c. that the ineffective assistance of counsel resulted in a miscarriage of justice (the “prejudice component”). [5]

[19] I will now deal with each of these components to demonstrate why the appeal alleging ineffective assistance of counsel must fail. In essence, I find that no prejudice has occurred.

i. The material facts upon which the incompetence claim is based

[20] Mr. Lee is required to establish the material facts in support of the incompetence claim on a balance of probabilities. In essence, the material facts upon which the incompetence claim are based is admitted.

[21] Mr. Barrs conceded that he did not discuss immigration consequences with Mr. Lee, either at the time of the plea or before it. Further, at no time did Mr. Barrs advise Grossman J. that Mr. Lee was a foreign national and that his immigration status in Canada might be affected should he be convicted of an indictable offence. He did not ask that a conditional discharge be imposed on the fail to comply charge.

ii. That the assistance provided by counsel was ineffective

[22] In assessing whether the assistance provided by Counsel was ineffective, the Court is to evaluate the conduct of Counsel against a standard of reasonableness. Hindsight is not a consideration at this point in the inquiry. The evaluation at this stage must consider the circumstances as they existed at the time.

[23] There is a strong presumption in favour of competence. In order to succeed, Mr. Lee must show that the acts of Mr. Barrs could not have been the result of his professional judgment and that his performance must have been so unreasonable that it fell below professional standards.

[24] Counsel for Mr. Lee, during the appeal, conceded that the result obtained by Mr. Barrs in this case was a very good one: just not for Mr. Lee. Why? The impact of the conviction for failing to comply is too significant because of the immigration consequences. He submits that the pros and cons of the plea should have been explained to Mr. Lee following which he could make the decision on how to proceed.

[25] Looking at the case objectively, Mr. Barrs did achieve a good result in all of the circumstances. Following his opposition to the amendment of the information, he embarked on very successful plea negotiations that resulted in the withdrawal of two serious criminal charges, a plea to a Highway Traffic Act offence and a plea to a serious breach that did not result in a further jail sentence for Mr. Lee.

[26] However, I agree that Mr. Barrs could (and should) have determined that Mr. Lee’s plea would make him eligible for deportation and advised him of such a result. Further, it would have been prudent for Mr. Barrs to advise the Court of Mr. Lee’s immigration status and to seek a conditional discharge. There are several cases which suggest this is the appropriate course of action: R. v. Pham [6], R. v. Meehan [7], R. v. Rajadurai [8] and R. v. Shiwprashad [9].

[27] Despite the omissions regarding the immigration consequences of the plea being considered, I find there is no miscarriage of justice in this case resulting in a new trial.

iii. That the ineffective assistance of Counsel resulted in a miscarriage of justice

[28] To be successful regarding an allegation of ineffective assistance of counsel, the onus is on the appellant to satisfy the court that there has been a miscarriage of justice. The task of the reviewing court is to determine whether a miscarriage of justice occurred. [10] As the Court of Appeal stated in Joanisse at p. 62: [11]

Counsel’s failure to meet competence standards does not automatically lead to a reversal of a conviction. The ultimate purpose of the appellate inquiry is not to grade counsel's performance, but to determine whether a miscarriage of justice occurred. The third and final component of this court's approach to allegations of incompetent representation at trial presumes a finding of incompetence and looks to the effect of that incompetence on the fairness of the trial proceedings. This inquiry examines the nature and seriousness of counsel's errors both from the perspective of the reliability of the verdict and the adjudicative fairness of the process leading to the verdict. If counsel's incompetence rendered the verdict unreliable or the process unfair, then the appellant has demonstrated that he received ineffective assistance resulting in a denial or the right to a fair trial and a miscarriage of justice.

[29] In the case of R. v. Pham, the Supreme Court of Canada held that a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account as part of the personal circumstances of the offender, provided that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. However, the general rule is that the sentence imposed must be a fit one having regard to the particular crime and the particular offender. Collateral immigration consequences are but one relevant factor in assessing the appropriate sentence. Collateral immigration consequences cannot dominate or skew the sentencing process. [12]

[30] While it would have been prudent for Mr. Barrs to discuss the implications of the plea, canvass the possibility of a conditional discharge and advise the Court of Mr. Lee’s status in Canada, such an oversight did not result in a miscarriage of justice. The conviction and sentence imposed by Grossman J. was more than warranted in the circumstances. It is my view that imposing a conditional discharge, while in Mr. Lee’s best interest, would have been contrary to the public interest. Although he did not specifically mention it in his reasons, Grossman J. said as much and I agree with his conclusion.

[31] To grant a conditional discharge, even considering the immigration consequences, would contravene the principles of sentencing. Imposing a discharge to Mr. Lee to ameliorate his future immigration difficulties would result in an unfit sentence having regard to the gravity of the offence and the degree of responsibility of the offender.

[32] The facts giving rise to the failure to comply conviction are serious and would not warrant the imposition of a conditional discharge:

a. At the time of these offences, Mr. Lee was facing serious criminal offences: assault and assault causing bodily harm.

b. Mr. Lee was released on a strict bail: that he remain inside his residence between the hours of 11:00 p.m. and 6:00 a.m. unless he was in the company of his surety.

c. At 4:40 a.m. Mr. Lee was seen driving at a high rate of speed. When he saw a marked police car, he abruptly stopped and then proceeded slowly.

d. The officers checked the license and concluded that Mr. Lee was in breach of his recognizance and attended at his home.

e. Upon arriving at the address, officers observed Mr. Lee outside his car which was running with the lights turned off. He was urinating beside it.

f. Mr. Lee denied having been arrested or having any previous police involvement which was likely intended to mislead the police so that he remain undetected for breaching his recognizance. At the time of his arrest, he was on a recognizance of bail for the two assault charges.

g. Mr. Lee provided a breath sample and registered a fail on the roadside screening device.

h. At the station, Mr. Lee’s blood alcohol concentration read 160 and 140 milligrams of alcohol in 100 millilitres of blood – well over the legal limit.

[33] The breach was a flagrant violation of the terms of Mr. Lee’s recognizance. Mr. Barrs submits, and I accept, that Mr. Lee had no defence to the three offences as charged, especially the failure to comply charge. I find that even had Mr. Barrs advised Grossman J. of the immigration consequences of a conviction, a conditional discharge would not have been granted. The sentence, as imposed, might rightly be considered lenient. As such, there is no miscarriage of justice. These two grounds of appeal fail.

The Sentence Appeal

[34] Lastly, Mr. Lee submits that if a new trial is not ordered, this Court should vacate the sentence and impose a conditional discharge. For the reasons set out above, in paragraphs 31-34, even had I considered vacating the sentence, I would not impose a conditional discharge. In fact, I may have considered noting the seven days served in presentence custody and imposed a further custodial sentence.

Conclusion

[35] For the above reasons, the appeal is dismissed.

Footnotes

[1] The Notice of Appeal was filed before Mr. Lee received the deportation notice.

[2] See: Cross-examination transcript of Jungmin Lee, dated March 27, 2015 at pp. 40-43.

[3] See: Cross-examination of Mr. Randy Barrs dated June 19, 2015 at p. 98.

[4] See: Cross-examination of Mr. Randy Barrs dated June 19, 2015 at p. 97.

[5] See: R. v. Archer, 2005 ONCA 865, [2005] O.J. No. 4348 (C.A.) at paras. 119-121 and R. v. Joanisse, [1995] O.J. No. 2883 (C.A.) at paras. 63-81.

[6] 2013 SCC 15, [2013] 1 S.C.R. 739

[7] [2013] ONSC 1782

[8] [2015] ONSC 3018 (S.C.J.)

[9] [2015] ONCA 577

[10] See: R. v. Shiwprashad, 2015 ONCA 577 and R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520 at para. 29

[11], [1995] O.J. No. 2883 (C.A.)

[12] See: R. v. Pham, supra, at paras. 6, 11, 12-16 and R. v. James, 2013 ONSC 4177

Kelly J.

Released: May 26, 2016