Court File and Parties

COURT FILE NO.: CR-16-70000108-00AP DATE: 20170725 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – DERRICK HARVEY Appellant

Counsel: Martin Sabat, for the Crown, Respondent Marie Henein and Christine Mainville, for Derrick Harvey, Appellant

HEARD: June 28, 2017

R.F. GOLDSTEIN J.

Reasons for Judgment on Summary Conviction Appeal

[1] Mr. Harvey is a musician. He travels back and forth across the border. Or at least he used to. He also works detailing cars. He is an American citizen. In 2014 he applied for permanent residence in Canada. In October 2016 the immigration authorities informed him that his application was refused on grounds of criminality. That was because on February 3, 2011 Mr. Harvey pleaded guilty to one count of assault and one count of fail to comply with a recognizance. Justice Clements of the Ontario Court of Justice suspended the passing of sentence and placed him on probation for one year on the assault charge in light of five days of pre-sentence custody. Justice Clements also sentenced him to a $500 fine in light of two days pre-sentence custody on the fail to comply charge. It was a joint submission. Mr. Harvey is currently without status in this country.

[2] Mr. Harvey now seeks to have his conviction set aside, and either a new trial or a stay of proceedings ordered. He says that his criminal counsel never informed him that there could be significant immigration consequences if he was convicted. He says that his criminal counsel was ineffective.

[3] For the reasons that follow, I find that his plea was not informed. It is not necessary for me to make a finding that defence counsel was ineffective. The appeal is allowed, the plea is set aside, and a new is ordered. It will be up to the Crown to determine whether to re-prosecute.

The Fresh Evidence

[4] Mr. Harvey’s appellate counsel applied to introduce fresh evidence on the appeal. The Crown consented to the application. The fresh evidence included Mr. Harvey’s affidavit and cross-examination; the affidavit and cross-examination of his trial counsel, Mr. Vaughan; Mr. Vaughan’s file; and the Crown disclosure package in respect of the original charges.

Background

[5] In the late 1990’s or early 2000’s Mr. Harvey toured as a musician. He is from Detroit. He began coming to Canada to play music. He met Nicole Hyatt, in 2002, in Toronto. They began a relationship. They began living together. They had a son in 2005. Mr. Havey continued to go back and forth between Detroit and Toronto. At some point, while still cohabiting with Ms. Hyatt, he began a relationship with Amy Jovkovic. They had a daughter together in 2008. Not surprisingly, Ms. Hyatt broke up with him. He remained involved with both his children.

[6] Mr. Harvey and Ms. Jovkovic began living together with their daughter. On May 30, 2010 they had an argument. Ironically, they apparently argued about one of her former boyfriends. Mr. Harvey punched Ms. Jovkovic in the side of the head. She tried to call the police but he grabbed the phone. She told him he would go to jail. He punched her again and threw her phone. She eventually got away to a neighbour’s where she called the police.

[7] The police arrested Mr. Harvey and charged him with assault. He spent five days in pre-trial custody. On June 3 he was released on bail. One of his bail conditions was that he was to have no contact with Ms. Jovkovic. That same day he contacted her by telephone. He was arrested for breaching his bail conditions on October 3, 2010. He was returning from the United States at the time. He spent a further two days in custody.

[8] Mr. Harvey retained Mr. Vaughan shortly after his release from custody on the breach charge. In his affidavit, he states that he spoke to Mr. Vaughan in February 2011. Mr. Vaughan, he says, told him that Ms. Jovkovic wanted to reconcile with him. A guilty plea would be the fastest way that could happen. Mr. Vaughan also told him that he could arrange for a guilty plea on the next court date. He said that Mr. Harvey would likely be placed on probation. He also said that Mr. Harvey would likely have to take a course on managing his anger.

[9] On February 3 2011 Mr. Harvey pleaded guilty to one charge of assault and one count of breaching his bail. Crown counsel read in the facts. There was a joint submission for a suspended sentence and probation on the assault charge. There was also a joint submission for a $500 fine on the breach of recognizance charge. Mr. Harvey’s counsel made stated the following in the course of his submissions to Justice Clements:

He was in the music business and he used to travel a lot performing. At present he’s learned to detail cars and he’s working at Maximum Detailing in the Greenwood and Danforth area, so he’s working full-time. He works a lot. This matter was set for trial in March and Mr. Harvey has been calling me for the last month trying to get this matter brought forward, so this is a plea and I think, to his credit, is clear acknowledgement of what he’s done and he actually spoke with the O.I.C., as well, and told him of his desire to resolve all these matters as soon as possible…

[10] There was a passing reference by Crown counsel to Mr. Harvey’s nationality. He stated: “I understand that he may be an American citizen.” There was no mention by either of the lawyers or the trial judge as to Mr. Harvey’s immigration status. Justice Clements imposed sentence in accordance with the joint submission.

[11] In his affidavit, Mr. Harvey says that he did not have immigration status in Canada until 2011. He was flagged at Pearson Airport. A border official issued him a Temporary Residence Permit (which I will refer to as a “TRP”) for 6 months. He says that he renewed his TRP several times upon coming into Canada. He simply requested a TRP every time he crossed the border from Windsor. He says that Canadian authorities usually interviewed him. His criminal conviction always came up. Copies of several of his various TRP’s are attached to his affidavit. Two of the TRP’s mention his criminal convictions, although the dates are incorrect. The convictions were obviously not a bar to him obtaining temporary status in Canada.

[12] In 2013 Mr. Harvey and Ms. Jovkovic broke up. He resumed co-habiting with Ms. Hyatt. They got married on October 10 2013. He applied for and received another TRP a few days later, on October 15, 2013. He decided to apply for permanent residence. His immigration lawyer submitted an application in 2014. Ms. Hyatt sponsored his application. He was granted a work permit and a further TRP in the interim. The work permit expired on October 15, 2016. He ceased working at that point. The immigration authorities informed him a short time later that his application for permanent residence was refused. The refusal was based on criminality. It was at that point that Mr. Harvey moved to set aside his plea of guilty.

Analysis

[13] The critical issue in this case is whether Mr. Harvey made an informed decision to plead guilty: R. v. Henry, 2011 ONCA 289. Ms. Henein and Ms. Mainville, for Mr. Harvey, argue that Mr. Vaughan, his trial counsel, was ineffective. Mr. Vaughan failed to inform Mr. Harvey of the immigration consequences of a conviction and a suspended sentence. Mr. Harvey would not have pleaded guilty had he known the conviction and sentence would render him ineligible to become a permanent resident. The plea was, therefore, not informed. They argue that Mr. Vaughan’s failure caused significant prejudice to Mr. Harvey.

[14] Crown counsel, Mr. Sabat, argues that there is no basis to set aside the guilty plea. A person who chooses to plead guilty must understand the nature and consequences of the plea: Henry, at para. 36. Mr. Harvey did. Further, he argues that it is unreasonable that a person living in North America in 2011 would not know that, as he put it in his factum, that “criminals get deported.” Mr. Harvey had no intention of staying in Canada when he pleaded guilty. The issue only arose when he decided to apply for permanent residence. Since Mr. Harvey was only interested in whether he could travel back and forth across the border, he had enough information to plead guilty.

[15] I must respectfully disagree with the Crown on this point. I find that Mr. Harvey’s guilty plea was not informed. Mr. Harvey was unaware of some of the most important ramifications of the plea. I find that there was a realistic likelihood that Mr. Harvey would have risked a trial had he known the collateral consequences of his plea: Henry, at para. 37; R. v. Quick, 2016 ONCA 95 at para. 29.

[16] In order or a plea to be valid, it must be voluntary, unequivocal, and informed: R. v. R.T. (1992), 10 O.R. (3d) 514 (C.A.). In R.T. Doherty J.A. stated that to be informed, an accused person must be aware of the nature of the allegations, the effect of the plea, and the consequences of the plea. Those consequences include the collateral consequences.

[17] Henry sets out the principles to be applied in this case. On the day of trial Henry’s counsel obtained disclosure of some police communications. The communications would have revealed whether the police had reasonable grounds to arrest Henry. The violation of Henry’s constitutional rights was the only viable issue. A violation might have led to the exclusion of the incriminating evidence, 29 baggies of cocaine. Henry’s counsel sought and received a brief adjournment to listen to the communications. He was satisfied that no viable constitutional issue arose. He informed Henry. Henry then decided to plead guilty. There was an adjournment requested to prepare a pre-sentence report. Henry subsequently listened to the communications. It transpired that Henry’s counsel had made a mistake in his understanding of the communications. Henry discharged his lawyer and sought to set aside the plea. The trial judge dismissed the application.

[18] The Court of Appeal allowed the appeal. Watt J.A., for the Court, found at para. 36 that an accused person must have: “sufficient information about the charge to make an informed decision” to plead guilty. The decision to plead guilty in that case was based on a misapprehension of the evidence by Henry’s original trial counsel. An accused person must show that there is a realistic likelihood that he or she would have run the risk of a trial had he or she known the true state of affairs: Henry, para. 37. Henry did not know the true state of affairs when he pleaded guilty.

[19] In Quick, the accused pleaded guilty to dangerous driving. Since it was his third conviction, his driver’s licence was suspended indefinitely under the Highway Traffic Act. His counsel did not tell him that a third conviction would result in an indefinite suspension. Quick said he did not otherwise know that he was at risk of indefinite suspension. Laskin J.A., for the court, found at para. 29 that a guilty plea is not informed if an accused person is unaware of the collateral or non-criminal consequences of the plea. Following the reasoning in Henry, Laskin J.A. found at para. 33 that the simple way to measure the legal relevance of the collateral consequence was to ask these questions:

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.

[20] There is no question that in this case Mr. Harvey’s plea was voluntary and unequivocal. During his cross-examination, Mr. Harvey agreed that he pleaded guilty voluntarily. Nobody forced him to plead guilty. He made the decision on his own. A review of the facts, however, shows that Mr. Harvey did not know that he would have been ineligible to apply for permanent residence, and that it would have mattered to him.

[21] Mr. Harvey does not need to demonstrate that he would not have pleaded guilty had he known. He need only demonstrate a realistic likelihood he would not have pleaded guilty. I agree with Crown counsel that it is likely that Mr. Harvey and Mr. Vaughan were not focussed on his eligibility for permanent residence. They were more focussed on the border-crossing issue. I infer, however, that Mr. Harvey was not aware of the distinction. My review of the transcript indicates that he is clearly intelligent, but not sophisticated in these matters.

[22] The immigration issues in this case were on the radar as of October 2010. That was before Mr. Harvey pleaded guilty. On October 15, 2010 Ms. Jovkovic wrote to the OIC of the case. She indicated that she wanted to reconcile with Mr. Harvey. She asked that the “mess” be concluded as quickly as possible. She noted that:

Any charge laid on him would not be beneficial being that he is an American citizen and travel is a big part of his life/job.

[23] In cross-examination Mr. Harvey stated that he only met Mr. Vaughan once or twice. Mr. Vaughan never mentioned that, as a foreigner, he might not be permitted to reside in Canada. Mr. Vaughan was aware that he was an American citizen, that he was a musician, and that he frequently travelled back and forth to the United States. Mr. Harvey says that it never occurred to him that he might not be able to remain in Canada as a result of the conviction. His lawyer never alerted him to the possibility. He did not become aware that he would be inadmissible to Canada until the immigration authorities informed him of that in October 2016.

[24] Mr. Harvey also maintained throughout the cross-examination on his affidavit that he did not know that there were the immigration consequences to the conviction:

Q. Now the other thing I want to suggest to you is just basically this is – I wouldn’t say common knowledge but pretty known fact that if you’re visiting from a neighbouring country and you don’t have a status in this country and getting arrested for a criminal offence you would have known at the time that there could be potentially immigration consequences?

A. Not necessarily. Not necessarily. Because all the way through from the jail to the lawyer no one explained any of that. I found out on my own about immigration, inadmissibility and all these other things of the nature. Not one person at the courthouse, judge, attorney, anyone explained the severity of not being able to be in Canada or being a Canadian citizen with that particular charge, period.

[25] The Crown had a theory as to why Mr. Harvey pleaded guilty. The Crown theory was put to Mr. Harvey at the cross-examination:

Q. Let me put it this way: you were not concerned whether you would be allowed or not allowed to stay in Canada before that guilty plea because you were simply coming her to visit. You did not have at that point in time any plans to stay here permanently.

[26] Mr. Harvey rejected that contention:

A. I can’t say. That’s not correct, because I got two kids here. I got a son and a daughter. So that’s not correct. I still wasn’t planning on throwing away Canada.

[27] Ultimately, Mr. Harvey’s position was that he wanted to resolve the case but that he would not have pleaded guilty if he knew the immigration consequences. He would have taken his chances with a trial:

Q. So what happened is you’re arrested for the assault, then you’re arrested for the fail to comply recognizance, and that’s when you discuss this with Mr. Vaughan and you decide you want to resolve those matters through a guilty plea.

A. I wanted to resolve it.

Q. Knowing well that meant that you are accepting the facts and you are no longer going to have the option of taking this to trial?

A. Somewhat. But at the same time no immigration conversation was even talked about, anything. Even when I talked to him about me taking a plea he didn’t say, listen, you’ll be inadmissible to Canada, you won’t be able to come back to Canada and this, that and the other, no, he didn’t say anything like that, nothing of the sort. Because if he would have said that I wouldn’t have pled guilty. Truthfully.

[28] Mr. Vaughan knew that Mr. Harvey was an American citizen and a musician. He also was aware that Mr. Harvey frequently crossed the border. Mr. Harvey never raised immigration concerns that he recalled. He recalled that Mr. Harvey’s most urgent concerns were that he would have to go into custody. Mr. Vaughan stated in his affidavit:

I do not recall that Mr. Harvey ever raised any immigration concerns with me with regard to the plea. Similarly, although I often raised immigration concerns with clients, I may not have thought of potential immigration concerns in this particular case, given the nature of the charges, the circumstances of the case, and the law at the time.

[29] In his cross-examination, Mr. Vaughan indicated that he swore his affidavit before he found the file, which had to be recalled from storage. His memory was, therefore, incomplete at the time he swore the affidavit. He reviewed the file. It contained few notes and there were no written guilty plea instructions, but he recalled a few more details. The file contains a handwritten note indicating the following:

Letter from Promoter explaining how a criminal record will make it impossible to work/tour.

[30] In cross-examination, Mr. Vaughan stated that the note was not his. It may have been a student who made notes during the course of an interview. He recalled that the cross-border issue was related to his work status as a musician. He was aware that Mr. Harvey’s manager had indicated a concern about being able to get back and forth across the border. He believes that he must have indicated to the student, or whoever took the note, that he should obtain a letter from the promoter indicating the concern. He indicated that he usually told his clients that most people with criminal records do get across the border to visit parents. Usually, he said, drugs are the biggest problem. He felt that he could take a letter and show it to Crown counsel as part of the plea negotiations – he could have shown the Crown why Mr. Harvey needed a discharge. He admitted that immigration issues were new to him. Usually, the process that he was concerned about was the pardon process. That was because he had many clients who were permanent residents or otherwise had status and a criminal conviction could affect their ability to obtain citizenship. He would tell those clients to speak to immigration counsel if there were other issues. He did not recall having that conversation with Mr. Harvey, although he thinks he discussed the cross-border issue. He did not recall if he discussed a plan by Mr. Harvey to move to Canada permanently. He recalled that Mr. Harvey’s concern was his ability to go back and forth.

[31] Mr. Vaughan also indicated, at first, that he told Mr. Harvey that he needed to “speak to somebody about the immigration issues, okay.” Alternatively, Mr. Harvey should have his promoter speak to someone about the immigration issues. Music promoters, he believed, had the money and resources for that. Mr. Vaughan said that the deal on offer by the Crown was the best he was going to get under the circumstances. He also stated:

“You’re going to have to deal with the consequences. I don’t know who else to help you in terms of immigration. I’m not an immigration lawyer. Like, I don’t – you know, this is not – this is far beyond like just whether you’re a permanent resident and can you apply for citizenship. After that there are immigration issues and you need to figure that out with somebody who knows what they’re doing in that area.”

[32] Mr. Vaughan said that he had no idea if Mr. Harvey discussed the immigration consequences of the plea with his music promoter. He was also aware that he had ties to Canada and that he was going to “be here for a while”. Later in the cross-examination, Mr. Vaughan said this:

I don’t remember the exact discussions. I mean, I just don’t remember. It’s been six years. I’d be lying if I said I remember telling him this and that. But he was – the plea was completely driven by him, I want to get this done now. After that and – those were the instructions, bring it forward… I don’t recall talking about the immigration issues. I don’t remember saying you could be thrown out. I could not tell you that.

[33] I draw the following inferences from the fresh evidence:

• Mr. Harvey wanted to plead guilty, put the matter behind him, and reconcile with Ms. Jovkovic;
• Mr. Harvey and Mr. Vaughan discussed his ability to go back and forth across the border as a travelling musician. Mr. Vaughan told Mr. Harvey to raise the issue with his promoter;
• Mr. Harvey did not appreciate the distinction between the ability of a person to obtain entry at the border and criminal inadmissibility for the purposes of applying for status as a permanent resident.
• Mr. Vaughan did not turn his mind to the distinction between the ability of a person to obtain entry at the border and criminal inadmissibility for the purposes of applying for status as a permanent resident. Based on Mr. Harvey’s position, as he understood it, Mr. Vaughan did not tell Mr. Harvey that this might be an important distinction.

[34] I must also respectfully disagree with the notion that any reasonable person living in North America in 2011 would understand that criminals are automatically deported. The mythical reasonable person, still riding the modern Toronto version of the Clapham omnibus – the subway – and reading the news on his or her phone, might well see stories to the effect that some criminals are deported and some are not. Indeed, Mr. Henry’s own experience shows that he wasn’t deported at all. He was able to obtain temporary residence permits despite his criminal convictions. Parfitt J. of this Court observed in R. v. Rajadurai, 2015 ONSC 104 at para. 14: “… the complexities of the inter-relationship between criminal convictions and immigration status is not a subject matter that is well understood by the general public. Indeed, it is not always well understood by counsel.”

[35] In my view it is not necessary to show that Mr. Harvey’s lack of information flowed from the ineffective assistance of counsel. I do not need to decide whether Mr. Vaughan was ineffective. That is because I do not accept that an accused person must demonstrate that his or her counsel was ineffective in order to show that the plea was not fully informed. Cases such as R. v. G.D.B., [2000] 1 S.C.R. 26 and R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont.C.A.) do not apply here.

[36] In R. v. Aujla, 2015 ONCA 325 the Appellant sought an extension of time to appeal from a guilty plea. He had a long criminal record and was a permanent resident. The plea had resulted in criminal inadmissibility. He was subject to deportation as a result. The Crown argued that lack of knowledge of the immigration consequences could not set aside a valid plea. The plea in that case was voluntary and unequivocal. Pardu J.A. granted the extension. She found that it was at least arguable that his plea was not informed. She did not suggest that the lack of information flowed from the incompetence of counsel.

[37] In R. v. Nassri, 2015 ONCA 316 the offender drove the getaway car of a knife-point bank robbery. He received a nine-month sentence. Shortly prior to the sentencing IRPA was amended to provide for the faster deportation of someone in the Nassri’s position. Defense counsel was unaware of the change to the legislation. He erroneously informed the trial judge that Mr. Nassri would only be deported if he was sentenced to two years or more. Fresh evidence regarding Nassri’s immigration status and the conditions in his native Syria was permitted on appeal. Sharpe J.A., writing for the Court of Appeal, reduced the sentence to six-months less a day. The Court of Appeal did not address whether defence counsel was ineffective.

[38] Obtaining a new trial on the basis of ineffective assistance of counsel is a very high bar. Requiring such a finding would set the bar too high. The Court of Appeal has not required such a finding. In Henry defence counsel made an error but the conviction was overturned without a finding of that counsel was ineffective. The same thing happened in Nassri, as I have noted. In Quick there was no finding that counsel was ineffective despite failing to give the offender full information. A plea that is not fully informed could arise from any number of circumstances. Incompetence of counsel leading to a miscarriage of justice is a sufficient condition, but not a necessary one.

[39] Although I do not need to decide this point, I should also say that I do not accept that Mr. Vaughan was ineffective when measured against Mr. Harvey’s personal circumstances or the legal standards of 2011. Mr. Vaughan clearly did take some steps to make Mr. Harvey aware that there could be cross-border consequences if he was found guilty.

[40] Furthermore, it is not clear that in 2011 the law had developed to the point where defence counsel was required to fully inform a client as to all of the collateral consequences of a plea. It was not until 2013 that the Supreme Court in R. v. Pham, 2013 SCC 15, paras. 11-13 noted at paras. 11-13 that a trial judge may take into account the collateral immigration consequences of a conviction when sentencing an offender.

[41] In R. v. Shiwprashad, 2015 ONCA 577 Gillese J.A. examined the standard of care required of defence counsel regarding immigration consequences. Defence counsel did not take Shiwprashad’s immigration status into account when giving him advice, although Shiwprashad knew he was at risk of deportation when he pleaded guilty. Gillese J.A. concluded that there was simply not enough evidence to determine the standard of care in Canada. She ultimately determined that she did not have to determine whether the failure to ascertain the effect of a plea on a client’s immigration status fell below the standard of care because there was no miscarriage of justice.

[42] Today, there is more clarity. In R. v. Ismail, 2017 ONCA 597, the Court recently stated:

It is well established that a sentencing judge is required to take into account any collateral immigration consequences in determining a fair and appropriate sentence.

[43] I therefore find that there must be a new trial on the basis that Mr. Harvey’s plea was not fully informed.

Disposition

[44] The appeal is allowed. Ms. Henein argues that this Court should impose a stay of proceedings. I agree that on the face of it there are good humanitarian reasons to order a stay. Mr. Harvey has largely stayed out of trouble. He continues to work and be a productive member of the community. He has strong ties here, notwithstanding his ties to Detroit. Canadians can, and frequently do, have strong ties in more than once place.

[45] That said, I think it would be trenching on the proper role of the Crown if I impose a judicial stay of proceedings in this particular case. A judicial stay of proceedings is something to be exercised only in the clearest of cases. This is not a situation where there was a wrongful conviction. There was no abuse of process by the authorities that the Court must dissociate itself from.

[46] In contrast, the decision to re-prosecute engages different criteria. Crown counsel is required to determine whether there is a reasonable prospect of a conviction and whether it is in the public interest to re-prosecute. The decision to prosecute is an important power given to Crown counsel and is to be exercised in a quasi-judicial manner. In my respectful view, the real issue here is whether it is in the public interest to re-prosecute. Crown counsel is uniquely positioned to make that determination. Furthermore, Crown counsel has much better access to the information needed to make this decision: whether the complainant will cooperate; whether humanitarian issues should prevail; the fact that Mr. Harvey has already served his sentence and has not re-offended. I therefore leave it to Crown counsel to make the decision. If the Crown chooses to re-prosecute it may serve new process on Mr. Harvey.

R.F. Goldstein J.

Released: July 25, 2017