Court File and Parties

Court File No.: CR-14-0023-AP Date: 2017-01-11

Ontario Superior Court of Justice

Between:

Her Majesty The Queen, Respondent (S. Frenette, for the Respondent)

And:

Elmer Argueta, Appellant (M. Hargadon, for the Appellant)

Heard: October 14, 2016, at Thunder Bay, Ontario

Before: Mr. Justice W.D. Newton

Reasons For Judgment

Overview

[1] The appellant, Mr. Argueta, was charged with assault with a weapon. With the assistance of duty counsel, a plea agreement was reached and, on February 3, 2014, Mr. Argueta pleaded guilty to the offence of possessing a weapon for a purpose dangerous to the public contrary to section 88(1) of the Criminal Code. The Crown proceeded summarily. Mr. Argueta was fined $250, placed on probation for 18 months, and prohibited from possessing weapons for three years.

[2] Mr. Argueta is not a Canadian citizen but a permanent resident and recognized convention refugee. Within weeks of being sentenced, Mr. Argueta received a letter indicating that he was “inadmissible on grounds of serious criminality for having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.” [^1] That led to an interview with immigration officials.

[3] Subsequently, Mr. Argueta received correspondence from the Canada Border Services Agency which stated:

This letter is in reference to your interview on 18Feb2014 concerning your criminal convictions and status in Canada.

Permanent residents of Canada are reported to the Minister when they have engaged in criminal activity of a serious nature. Your conviction for possession of a weapon for dangerous purpose is a reportable offence and, consequently, a report has been filed.

This report is now a permanent part of your immigration record. The circumstances of your case have been considered carefully and it has been decided that the report will not be referred to the Immigration Division for an admissibility hearing at this time.

If you have any further criminal convictions registered against you, or if new information comes to light, this decision will be reviewed. A future decision to pursue enforcement action may result in the referral of a report to the Immigration Division of the Immigration and Refugee Board for an admissibility hearing. The outcome of this hearing could result in a deportation order and your permanent removal from Canada.

[4] Mr. Argueta appeals this conviction and seeks a new trial on the grounds that his plea of guilty was invalid and that the assistance he received from duty counsel was ineffective. He argues that because he was not apprised of the immigration consequences flowing from the guilty plea, his plea was uninformed and, therefore, invalid.

[5] Another issue raised is that Mr. Argueta, by reason of intoxication, could not form the intent to be in possession of the weapon and that statements made by him at the time of his plea (“I do not carry any weapons”) undermined his guilty plea affirming that he was in possession of a weapon.

Facts

[6] The evidence on this appeal consists of Mr. Argueta’s affidavit and the transcript of Mr. Argueta’s cross-examination. Duty counsel who assisted Mr. Argueta, Ms. Brown, provided an affidavit and the transcript of her cross-examination was also filed.

[7] No evidence was presented with respect to the standard of care for duty counsel in these circumstances.

[8] Mr. Argueta deposed that his first language is Spanish and that, although he could speak English “well enough,” his ability to read, understand, and write in English is poor. He deposed that when he first met Ms. Brown they reviewed the disclosure and he told her he was intoxicated on the day of the offence, that an argument broke out, and that, after some shoving, he produced a knife. He deposed that he was not told anything about immigration consequences but was told that the plea bargain deal with the Crown would result in a fine and probation and not jail. He deposed that had he known he would be deemed inadmissible to Canada as result of this conviction he would not have pleaded guilty.

[9] Mr. Argueta is not unfamiliar with the criminal justice system. His record includes convictions for failing to appear, assault, theft, mischief, impaired driving, possession of stolen property and break and enter and theft as a youth and breach of recognizance, obstruct police, theft, failure to attend court, personation with intent, assault, mischief, theft, uttering threats, and impaired driving as an adult up to 2008. It is not known whether any of these prior adult convictions triggered immigration consequences.

[10] On his cross-examination, Mr. Argueta said that he was never asked about his immigration status, never told that there could be immigration consequences to his guilty plea, and never advised to seek immigration advice. He also testified that he was never advised that the Crown was seeking a jail term on the assault charge. He admitted that he was in possession of a weapon.

[11] Ms. Brown deposed that she had her first client interview with Mr. Argueta on January 15, 2014. She was told by him that he was a Permanent Resident after having been found to be a Convention Refugee. Her email to Crown counsel discussing a possible plea deal describes Mr. Argueta as a Convention Refugee. She told Mr. Argueta that there could be employment and immigration consequences and specifically told him that if he was convicted of assault with a weapon, deportation could be a risk. She deposed that she therefore suggested that he speak with a local immigration lawyer or that he obtain free advice from the Refugee Law Office in Toronto.

[12] Ms. Brown further deposed that after exploring plea bargain options with the Crown she spoke to Mr. Argueta by telephone on January 21, 2014. She deposed that, during that call, she inquired whether he had sought immigration advice and was told that he had not. She deposed that she therefore again encouraged him to seek immigration advice prior to his plea scheduled for February 3, 2014.

[13] She deposed that, on February 3, 2014, prior to plea, she did a plea inquiry with Mr. Argueta and had him sign a “Plea Comprehension Inquiry” which includes the following paragraph:

I understand that entering a plea of guilt may also have consequences outside of the court, especially with respect to employment, immigration and travel. Should I have any concerns, I have been advised to seek the assistance of employment or immigration lawyer before pleading.

[14] When Ms. Brown was cross-examined, she confirmed that she did not take any steps between January 15, 2014 and February 3, 2015 to ascertain what the immigration consequences might be. She further confirmed that, when she met with Mr. Argueta on February 21, 2015 after he received his letter from immigration, she was able to locate the applicable section of the immigration statute within five minutes.

Plea and Sentence February 3, 2014

[15] Justice Pelletier of the Ontario Court of Justice received the guilty plea after inquiring whether Mr. Argueta was satisfied that he should be entering a guilty plea. During submissions, his immigration status as a convention refugee was confirmed. During allocution, Mr. Argueta said, among other things, “I do not carry any weapons.” Shortly after making that statement, in dialogue with the judge he recognized that “next time I might kill, I might kill somebody or can hurt myself really bad…” He acknowledged that where there is a weapon, some one could have been seriously hurt.

Positions of the Parties

[16] The appellant argues that his plea was uninformed because duty counsel did not apprise him of the collateral consequences of a conviction and, that in failing to do so, fell below the standard of care. The appellant also argues that his plea is invalid because he was too intoxicated to know that he possessed a weapon.

[17] The Crown argues that duty counsel did not breach the duty of care because the appellant was advised to seek immigration advice but chose not to do so. The Crown also argues that the comments of the appellant before the Ontario Court of Justice must be read in its entirety and doing so confirms that the appellant acknowledged that he had a weapon at the time.

The Law

[18] It is acknowledged that the onus is on the appellant to establish that his plea was invalid on a balance of probabilities. It is also acknowledged that to be valid, a plea must be voluntary, unequivocal, and informed.

[19] In R. v. Shiwprashad, 2015 ONCA 577, the accused pleaded guilty to robbery and was deported. On appeal, the accused argued that he did not understand the consequences of his plea because he did not know that he could be deported. He argued that there was a duty on the part of his counsel to inform him of the immigration consequences and, since this was not done, he alleged ineffective assistance of counsel. The Court of Appeal found that the accused knew that deportation was a potential consequence and, even assuming that the accused’s lawyer had a duty to advise him or to ensure he obtain advice concerning immigration consequences prior to plea, the failure of counsel to do so did not result in miscarriage of justice.

[20] At paragraph 32 and 58 of the Shiwprashad decision, the court set out the test for ineffective assistance of counsel:

[32] In R. v. Joanisse (1996), 102 C.C.C. (3d) 35 (Ont. C.A.), this court held at p. 59 that there are three components to a claim of ineffective assistance of counsel:

1.) The appellant must establish the facts on which the claim is based; 2.) The appellant must establish that the representation provided by trial counsel was incompetent; and, 3.) The appellant must establish that the incompetent representation resulted in a miscarriage of justice.

[58] In Joanisse, at p. 61, this court stated:

[I]ncompetence is determined by a reasonableness standard measured by reference to counsel’s performance in the particular circumstances of the case from the point in time when counsel made the decisions challenged on appeal. The wisdom of hindsight has no place in this assessment. This approach recognizes that in many situations counsel will have a wide range of options any of which, if taken, will constitute competent representation. Appellate courts must give deference to choices made by counsel and the competence assessment must be informed by a presumption in favour of competence. [Emphasis added.]

[21] In Shiwprashad, after hearing submissions from the Crown and appellant as to the duty of counsel to inform the accused of the consequences of a guilty plea on immigration status, the court said this:

[64] Perhaps in recognition of the increased importance of the intersection of criminal law and immigration consequences, LawPRO, the professional indemnity corporation for Ontario lawyers, has advised criminal lawyers to identify clients’ immigration status before entering plea and/or sentence negotiations in order to avoid exposure to possible claims.[ 5] Similarly, Mario D. Bellissimo, in his text, Immigration Criminality and Inadmissibility, looseleaf (2014), (Toronto: Carswell, 2014), at p. 10-46 advises lawyers to obtain a written direction from a client prior to any guilty plea, and to reference the possible immigration consequences of a plea in that direction. Further, an article for the Criminal Justice Section of the Ontario Bar Association written in the wake of the Pham decision states that it is “essential” that counsel be aware of the immigration status of any client. The author suggests that counsel “will well be advised to discuss the immigration consequences of matters with a member of the immigration bar and to refer clients accordingly.”[6] Clewley, McDermott & Young also suggest that defence counsel “make sure that accused people are aware of the immigration implications before they are arraigned at trial or enter guilty pleas.” [ Emphasis added]

[22] However, the Court of Appeal concluded that it did not have to determine whether the failure to ascertain the effect of a guilty plea on immigration status constituted incompetence and did not “propose to do so having regard to the lack of evidence as to the standard of care in Canada.” (See paragraph 65) [Emphasis added]

[23] In R. v. Quick, 2016 ONCA 95 the Court of Appeal considered whether the accused’s unawareness of collateral consequences (in this case, driving prohibition) of a guilty plea may render the plea uninformed. The court said this:

[33] What is called for is a fact-specific inquiry in each case to determine the legal relevance and the significance of the collateral consequence to the accused. A simple way to measure the significance to an accused of a collateral consequence of pleading guilty is to ask: is there a realistic likelihood that an accused, informed of the collateral consequence of a plea, would not have pleaded guilty and gone to trial? In short, would the information have mattered to the accused? If the answer is yes, the information is significant. I draw support for this approach from the reasons of Lebel J. in R. v. Taillefer; R. v. Duguay, 2003 SCC 70; [2003] 3 S.C.R. 307 and the reasons of Watt J.A. in R. v. Henry, 2011 ONCA 289. [Emphasis added]

[24] In R. v. Meehan, 2013 ONSC 1782, Durno J. quashed a guilty plea to an impaired driving charge where an Australian, in Canada on a work permit, consulted an immigration lawyer who advised him that there were no immigration consequences to an impaired driving conviction. Both he and his criminal lawyer deferred to the immigration lawyer. Unfortunately, the immigration lawyer provided incorrect advice. Like Mr. Argueta, Mr. Meehan received a notice that his immigration status was in jeopardy. In reviewing the “unusual circumstances of this case” Justice Durno noted that there is no need for an appellant who seeks to strike his or her guilty plea to establish that they had a defence if the case proceeded to trial. In considering whether a plea is informed whether the accused had a viable defence is not a relevant factor. Rather, “the prejudice lies in the fact that in pleading guilty the appellant gave up his right to a trial” (See R. v. Rulli, 2011 ONCA 18).

Analysis

The Facts

[25] Where the evidence of Mr. Argueta conflicts with the evidence of Ms. Brown, I prefer Ms. Brown’s evidence. On his cross-examination, Mr. Argueta stated that Ms. Brown never asked him anything about his immigration status. Ms. Brown refers to his exact status in her email to the Crown, which confirms that his immigration status was discussed.

[26] I accept, therefore, that Ms. Brown advised Mr. Argueta that he should seek immigration advice about the consequences of a guilty plea from an immigration lawyer or the Refugee Law Office. Mr. Argueta signed an acknowledgment that warned him, among other things, that his guilty plea may have immigration consequences and that he had been advised to seek the assistance of an immigration lawyer.

[27] Ms. Brown thought that she had asked Mr. Argueta on the morning of his plea again whether he had sought immigration advice and that his response was no. There was not any discussion about adjourning the plea so Mr. Argueta could seek that advice.

Ineffective Representation of Counsel

[28] In argument, counsel for Mr. Argueta stated that it was easy to determine the immigration consequences. I disagree. While a reading of the Act would disclose that even a summary conviction could be sufficient to cause a non-citizen to become ineligible, the effective consequences are less certain. As later events confirm, all that could be determined was that a guilty plea might have immigration consequences. Whether the guilty plea would have led to an admissibility hearing, I conclude is a matter for an immigration specialist. Based on the correspondence that Mr. Argueta received from the Canada Border Services Agency on March 26, 2014 it appears that there is a great deal of discretion at this level in the Agency to determine whether to proceed to admissibility hearing. As Mr. Roy states: “The circumstances of your case have been considered carefully and it has been decided that the report will not be referred to the Immigration Division for admissibility hearing at this time.”

[29] Like the Court of Appeal in Shiwprashad, having regard to the lack of evidence on the standard of care in the circumstances, it is not appropriate for me to opine on the standard of care.

[30] Given my findings of fact, the appellant has not satisfied me that the representation by duty counsel was ineffective.

Informed Plea

[31] Can the plea nevertheless be invalid because Mr. Argueta was not informed, through his own neglect, as to immigration consequences?

[32] As instructed by the Court of Appeal in Quick, the question is whether there is a realistic likelihood that Mr. Argueta, informed of the collateral consequences of his plea, would not have pleaded guilty and gone to trial. In the circumstances, I consider this is significant information. To be informed, Mr. Argueta had to know that his plea could render him ineligible and therefore liable to be called before an admissibility hearing with deportation a possible consequence. As Durno J. noted in Meehan, whether Mr. Argueta has a viable defence is not a relevant factor. The prejudice lies in the fact that in pleading guilty Mr. Argueta gave up his right to a trial.

[33] What if, as in this case, the failure to be informed prior to plea resulted from, in whole or in part, the failure of the accused to take reasonable steps to become informed, or the choice of the accused to remain uninformed with respect to consequences? Permitting willful blindness would promote willful blindness because unknown consequences would always result in the setting aside of a guilty plea. The facts in Meehan are unusual and significantly different from the facts in this case. In Meehan, the appellant adverted to the consequences from the conviction and honestly believed that there were no immigration consequences, because unfortunately he was given erroneous advice. Here, Mr. Argueta was warned that there might be immigration consequences and that he should seek immigration advice. He failed to do so. The principle in Meehan is that when an 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. That is not this case. Accordingly, I decline to follow Meehan.

[34] As I said colloquially during argument, this is a case of being careful what you wish for. At present, Mr. Argueta has a conviction for possessing a weapon for a purpose dangerous to the public. As a consequence of this conviction there are not any pending immigration consequences but he was warned that if further criminal convictions are registered against him or if new information becomes available, then the decision not to proceed to an admissibility hearing will be reviewed. That much is certain. But, if there is a new trial, nothing is certain. However, I note that, providing the sentence imposed is proportionate to the gravity of offence, a sentencing judge may exercise his or her discretion to take collateral results, such as immigration consequences, into account in imposing sentence (See R. v. Pham, 2013 SCC 15).

Lack of Intent

[35] Mr. Argueta’s argument that he lacked the intent to possess a weapon because of intoxication is, in my view, negated by his admission that he had the weapon. Read in its entirety, the exchange between the court and Mr. Argueta on sentencing does not leave me with the impression that he did not admit to carrying a weapon at the time.

Disposition

[36] For reasons given, the appeal is dismissed.

“Original signed by”____ The Hon. Mr. Justice W.D. Newton

Released: January 11, 2017

COURT FILE NO.: CR-14-0023-AP DATE: 2017-01-11 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty The Queen Respondent − − and − Elmer Argueta Appellant REASONS FOR JUDGMENT Newton J. Released: January 11, 2017 /cnm

[^1]: The Immigration and Refugee Protection Act, S.C. 2001, c.27 section 36(3) provides that an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence even if it is prosecuted summarily.